48 Hours Mystery: Dennis Davis Case

I had the privelege of defending a client, Dennis Davis, this year in a jury trial that was covered by CBS's 48 Hours Mystery.  Mr. Davis was charged with murder--a cold case that stemmed from a murder committed in Austin in 1985.  Despite having a suspect who fit the description given by a witness, a description that did not match Mr. Davis, the investigation never resulted in charges being filed against that suspect. There may have been several reasons for this, but one of the main reasons, perhaps, was because that original suspect was convicted a few months later of sexual assault and sent to prison for a lengthy sentence. Another factor may have been that the lead investigator became ill with cancer and ran out of time to finish investigating the case. Mr. Davis, who knew the victim, as did the original suspect, became a target of a cold-case investigation after he reportedly made an ambiguous statement to his ex-wife that seemed to indicate that he felt guilty about something from his past. In 2007 the cold case unit investigator tracked down an ex-girlfriend of Mr. Davis, who, for the first time, claimed that Mr. Davis had made an incrimiating statement to her as well. These allegations and other circumstantial evidence led to a conviction by the jury. The law of Texas, which the judge followed, did not allow me to present evidence against the original suspect even though the evidence against him was almost as compelling as the evidence against Mr. Davis.

Although the trial lasted only a week, it was a long difficult case from the time I was retained until the final verdict. A witness, a neighbor to the victim, had seen a man with a weapon about an hour prior to the murder lurking around the apartment complex. The neighbor told the police that he had seen this man--a man who looked completely different from Mr. Davis, with a baseball bat in his hands, muttering something, and in a state of rage.  This neighbor, who had moved out of Austin (and was tracked down by my investigator) was too afraid to come testify at the trial, fearing that if Mr. Davis were acquitted, he might then be charged with the crime himself. This witness had literally gone into hiding and could not be served with a subpoena to force his testimony at trial. I was able to introduce a statement this neighbor made to the police shortly after the murder, but it did not have the impact that his live testimony would have had. Had he testified that the man on trial, Mr. Davis, looked nothing like the man he had seen, I believe the outcome of the trial may very well have been different.

CBS's 48 Hours Mystery  crew covered the case and produced a program entitled "Redemption Song." The show gives an excellent short-hand version of the many twists and issues in the case.  Here is the link to the show:  www.cbsnews.com/video/watch/?id=7384838n 

(austin criminal lawyer, austin criminal attorney, Austin, Texas)

Blood: Gas Chromatograph Testing

If you have been arrested for DWI and you gave a blood sample, the results of the test on that sample could be inaccurate or just plain wrong. Here are just a few of the things that could affect the accuracy of the test:

1) If your arm is swabbed with a pad containing alcohol, this could skew the test results

2) Storing the blood sample at room temperature for an extended period of time, meaning 5 days or so, could lead to more alcohol being created in the tube of blood

3) The sample must always be returned to room temperature before testing

4) The testing is done with a gas chromatograph.  Guess what? This machine doesn't always work properly and there are ways to find out if it is not working properly, such as:  a) examining the print-out of the results, the "chromatograph," to see if the machine is separating out the various chemicals in the blood, such as ETOH (the alcohol in beverages) b) examining the separation matrix to see if the control mix used to test the machine indicates that it was working properly.  Bottom line is--if the machine isn't properly separating out the  alchohol from other chemicals in the blood, then it is not going to be able to quantify the amount of alcohol in the blood.

This machine is complex, and the prosecutor must be able to prove it was working properly. If they can't explain how it works and prove that it was working properly, then they should not be able to convict you based solely on the results of the blood test.

Blood Sample Warrants: "No-refusal Weekends"

If you live in Austin, you have probably heard of "No-refusal" weekends or holidays.  These are times when the Austin Police Department has decided to seek blood samples from every person arrested for DWI, such as New Year's Eve, Halloween and other "high party" times.

In order to get a blood sample, a police officer must submit an affidavit to the on-duty magistrate and ask the magistrate to issue a warrant for taking a sample of the blood of the arrested person.  Since the person is already under arrest for DWI, it is usually easy to convince the magistrate to issue the warrant, unless there are problems with the case, such as a long delay between the stop on the street and the time the officer is asking for the warrant. One recent Texas case said that a long, unexplained delay that could have been as much as 25 hours or so was too long, and found the warrant to be invalid, so the blood test was thrown out. Other earlier cases have said shorter unexplained delays are OK. Every case is a little different and I always look to see if there is a problem in the timing that can help my client who has been arrested for DWI and forced to give a blood sample.