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Observations and questions about the APD arrest of West Point graduate Antonio Buehler (Part 3 of 3)

Please watch these videos before you read further. If you don’t watch them, you won’t understand I say below.

When put on the spot, some officers will complain that you don’t know the streets the way they do, or deal with the dangerous scumbags they have to deal with.

Well, it’s true I don’t know the streets of Austin the way the officers do. Years ago, when I was a prosecutor, I occasionally rode with police officers late at night in the worst parts of town, but I do not claim to know the streets of Austin as the police do.

But I think it’s safe to say that Antonio Buehler has known more danger than many Austin police officers have, though he may have known it in places such as Ar Ramadi, Mosul, or Baghdad. There, danger was not simply being spat upon, but that an improvised explosive device might kill him, or that his unit might be out-flanked, ambushed, and slaughtered. Further, if a police officer doesn’t like dealing with “dangerous scumbags,” he can quit his job, unlike a soldier who has to wait for his enlistment to end. If the officer doesn’t quit, then he can’t complain about the hazards he has volunteered to face.

But I don’t know all the facts. I only know that the truth will out.

Observations and questions about the APD arrest of West Point graduate Antonio Buehler (Part 2 of 3)

Please watch the videos at the beginning of my last post, or you won’t understand what I’ve written below. 

Is it probable that Antonio Buehler spat at Officer Oborski? 

Let’s start by examining what we know about Mr. Buehler.  Antonio Buehler not only graduated from the United States Military Academy at West Point, and the Army Ranger School, but also the Graduate School of Business at Stanford.  Let’s start with Mr. Buehler’s admission to West Point.  Good grades and a high SAT score alone will not get you into West Point.  http://www.youtube.com/watch?v=xrtPLrs6uWg .  They also look for physical fitness and leadership potential.  They want student body presidents, team captains in varsity sports.  That’s the kind of guy Antonio Buehler had to be just to get admitted to West Point.  That kind of young man respects authority.  That makes it less probable that he would spit at a police officer. 

Now let’s talk about the kind of man Mr. Buehler had to be to graduate from West Point.  Read David Lipshy’s “Absolutely American,” or go on Netflix and look at the National Geographic documentary “Surviving West Point.”  Read the book or watch the documentary and you’ll see that those who disrespect authority don’t graduate from West Point. 

Now let’s talk about the kind of man Mr. Buehler had to be to become an Army Ranger.  Take a look at this video:

http://www.youtube.com/watch?v=xzg3_LC3bGU .  If you become an Army Ranger, you might not like those who have authority, but you will respect them. 

Either institution, West Point or Army Ranger School, drills respect for authority into the soldier from the top of his helmet to the soles of his boots. 

All of this appears to paint a picture of a young man who has respected authority all his life. 

But let’s look at the video.  At the beginning of the video, it appears that Officer Oborski has indeed backed Mr. Buehler up against the tailgate of a pick-up truck.  An appropriate question might be: “why did Officer Oborski do that?”  In any event, during part of the video, you see that Mr. Buehler has his arms out as if he were making the letter “T” with his body.  His hands do not appear to be fists.  Does that look like a man who is disrespecting authority or assaulting a peace officer?  On the other hand, Mr. Buehler does not appear willing to go quietly.  You can hear Mr. Buehler repeatedly yelling “why are you touching me?”  You can see him holding onto the pick-up truck tailgate with one hand while Officer Oborski tries to take him down.  You can see that while he does not assault the officer, neither does he make it easy for the police to arrest him.  He has explained that he had seen what happened when the young lady went limp and that’s why he kept his limbs extended.   That explanation appears plausible.

Observations and questions about the APD arrest of West Point Graduate who photographed rough treatment of woman (Part 1 of 3)

Please watch these videos before you read further.  If you don’t watch them, you won’t understand I say below.

http://www.youtube.com/watch?v=qNVZDpGCKks

http://www.youtube.com/watch?v=ZobWmgC5OQk

Now, not all the facts are in and I don’t presume to pass judgment on what happened.  Just as Antonio Buehler should be presumed innocent and given due process, so should Officer Oborski.  All I’m doing here is making observations, asking some questions, and thinking about what happened.

I know Officer Oborski professionally.  He is intelligent, highly motivated, and a tough adversary in court.  How high is his motivation?  Well, the local Mothers Against Drunk Driving chapter awarded Officer Oborski with their “Enforcement Hero” award for making 300 DWI arrests in 2010.

http://www.kvue.com/news/local/MADD-recognizes-everyday-heroes-at-Austin-award-ceremony-123577459.html

Chief Acevedo received the “Diamond Hero Leadership Award” from MADD, no doubt thanks in part to Officer Oborski.

With that said, I have a few observations.

First, you have a First Amendment right to tell someone not to perform field sobriety tests and not to blow into the Intoxilyzer.  Exercising your First Amendment right is not interfering with a police investigation.  Texas Penal Code § 38.15(d) says that it is a defense to prosecution for the offense of interference with the duties of a public servant that the defendant’s conduct consisted of speech only.

Second, the police (and especially DWI enforcement officers such as Officer Oborski) hate it when you exercise your First Amendment right that way.  To them, making DWI arrests is not just a job.  It’s a cause.  They want to not merely arrest people, but also to see them successfully prosecuted.  If someone refuses to perform field sobriety tests and blow, that makes successful prosecution much harder.  In Austin, the police department will make you pay a price for exercising your First Amendment right that way.  Namely, they will arrest you for public intoxication.  The ability to arrest someone for public intoxication gives officers astounding power and nearly unlimited discretion.

Third, photographing the police in a public place is not illegal in any way, shape, or form.  It is only because a citizen videotaped a number of California peace officers beating Rodney King that those officers were successfully prosecuted in federal court.  Nobody even thought of arresting or prosecuting that photographer.

Fourth, there appears to be agreement between the police and the young lady who was arrested for public intoxication that she “went limp.”

With all that said, a number of questions arise.  First, did the officers interfere with the young lady’s First Amendment right to tell someone not to do the field sobriety tests and not to blow?  Second, did Officer Oborski interfere with Antonio Buehler’s lawful photographing of Oborski and his fellow officer as they arrested the young lady?  Third, why would Officer Oborski care if he was being photographed if he was doing nothing wrong?  Fourth, what did the young lady from San Antonio signal when she went limp?  One possibility is that she relaxed her body completely to let the officers know that she was not resisting their (possibly illegal) arrest of her.  Fifth, if she wasn’t struggling, why did they bruise her?  Sixth, the question was put to Cpl. Anthony Hipolito about why the officers had Mr. Buehler blow into the Intoxilyzer.  He didn’t know.

Well, I have a suggestion for why they did it.  Officer Oborski is a DWI arrest-making machine.  It was already established that Mr. Buehler was the designated driver of his group that New Year’s Eve.  So if Mr. Buehler is to be arrested for driving while intoxicated, proving the “driving” part of the offense was easy.  The next step is proving that he’d been driving “while intoxicated.”  Unfortunately for APD, Mr. Buehler blew 0.000.

Even more unfortunately for APD, Mr. Buehler had the presence of mind to run his ad on Craig’s List and procure the video you’ve seen.

The hard questions

What is “justice”?

It’s a hard question, isn’t it? Simply muttering platitudes such as “justice means doing the right thing” doesn’t really answer the question, does it? Because that just leaves you with the question “well, what is doing the right thing?”

“What is justice?” is the kind of question that Socrates once asked Athenian judges in front of hundreds of people. Much to their embarrassment, they couldn’t satisfactorily answer the question.

My point is this: people have always had difficulty defining “justice,” but they know “injustice” when they see it.

An example of “injustice” would be a man serving nearly 25 years in prison for a murder he did not commit.

An example of “injustice” would be fighting the man’s attempts to gain access to evidence, even after his conviction, that would establish his innocence.

Those of us in central Texas know the examples to which I’m referring.

Michael Morton’s wife was murdered not long after he left for work one morning. His three year old little boy said a monster killed his mommy, but daddy wasn’t home. The State knew about this, but did not disclose this to the Defense.

That’s injustice.

After Michael Morton’s wife was murdered, someone was out there using her credit cards. It couldn’t have been Michael Morton, because he was locked up. The State knew about this, but did not disclose this to the Defense.

That’s injustice.

Through Williamson County District Attorney John Bradley, the State fought for years to prevent Michael Morton from getting to DNA evidence that would establish his innocence, that would in fact ultimately show that someone else had committed the murder.

That’s injustice.

Michael Morton was deprived of the opportunity to raise his son, to help his boy get over the loss of his mother.

That’s injustice.

Michael Morton’s son lost both his parents that day. The murderer deprived that boy of his mother. The Williamson County Criminal Justice system deprived him of his father.

That’s injustice.

Some Williamson County voters are proud of the “tough on crime” attitude of their law enforcement agencies and prosecutors.

But wanting to be tough on crime doesn’t mean you want injustice. This is the tenterhook upon which Williamson County District Attorney John Bradley’s political career hangs.

The hard question for Williamson County District Attorney John Bradley is not “what is justice?” The hard question for him is “how do I explain my conduct in fighting against the release of DNA evidence to people who want to be tough on crime, but don’t want to keep the innocent locked up?”

Oh, your blood test result is 0.100, give or take 20%.

Suppose you went to your bank’s ATM to check your balance and found that, lo and behold, you have 20% more money than you thought you had. How would you react? I would start with “woo hoo!” and then I’d go check my records to see what the discrepancy was. Some news appears too good to be true and I don’t want to go spend money and then have the bank withdraw even more from my account to correct their mistake.

Conversely, suppose you went to your bank’s ATM and found that, oh no, you have 20% less money than you thought you had. How would you react? You might worry about how you’re going to pay your mortgage, your car note, or your credit card bill. I would start with “oh Lord,” and then I’d go check my records to see what the discrepancy was. Some news appears too bad to be true, too.

Either way, 20% is significant.

A local TV station, Fox 7, recently interviewed me about a brother criminal defense lawyer’s case. In that case, the crime lab reported his client’s blood alcohol content test result at 0.100. When Sam Bassett had the sample retested, the blood alcohol content came back at 0.080.

When the reporter interviewed me, he said that the Austin Police Department Crime Lab said that a 20% difference in blood test results is “insignificant.” It was only two 1/100ths of a gram. No big deal.

Excuse me, but did I hear that correctly? Or as we might say in Texas (with an expression of incredulity), “do what now?”

Here’s how the numbers work. With a blood test result, the measure by law is of weight to volume. The specific question is how many tenths, hundredths, and thousandths of a gram of alcohol (the weight measure) are there per deciliter of blood (the volume measure)? If the first result is 0.100, and the second result is 0.080, then the results are 20% different.

How significant is a 20% difference? In Sam’s case, it moved a felony DWI charge to a misdemeanor, and rightly so.

How significant is a 20% difference? Suppose the first result had been 0.090. Twenty percent of that result is 0.018. So, 0.090 minus 0.018 equals 0.072. That’s the difference between above the legal limit and below the legal limit.

How significant is a 20% difference? Well, it can be the difference between a felony on your record or not having a felony on your record. It can be the difference between a guilty and a not guilty verdict.

Here are some hard questions for the crime lab: if two 1/100ths of a gram are “insignificant,” why does State law require you to test for that quantity? Moreover, why does State law require you to test not only to the 1/100ths of a gram, but to the 1/1000ths of a gram? Why does State law require you to report these “insignificant” results at all?

What Bill Mange, Austin DWI Attorney has to say about the 20% margin of error in Texas blood alcohol tests.

Let me see if I understand: torture is “bad,” but murder is “good”?

This is going too far.   It is just going too far.   The American government should just not be killing Americans based upon the decisions of a secret panel of senior government officials.   That includes very, very bad Americans such as Anwar Awlaki.

If we don’t like what the Awlakis of the world are doing (and make no mistake, I don’t), then we bring them here, indict them, try them, and then give them the death penalty.  If a foreign government won’t hand them over, and we want them badly enough, we send in Seal Team Six or Delta Force to do a snatch and grab and bring them here.

The question which interests me most about this story is: when will the secret kill orders go into effect on Americans on American soil?

If you think that’s a silly notion, consider this: President Obama denounced President Bush’s administration because Mr. Bush had people tortured.  Now President Obama has streamlined the process to move straight to outright murder.    Say what you will, but there’s really no other way to describe what President Obama’s Star Chamber is doing.

Why wouldn’t you think the secret kill orders will start resulting in certain Americans just disappearing?

We’re all for public safety laws, except, well, when they interfere with our right to do something dangerous as hell

Which micromanages your behavior more?  A law which would require you to allow a doctor to insert a probe into your body before seeking treatment, or a law which prohibits texting while driving?

There’s no right or wrong answer here.  Just opinions.  We’re all entitled to them.  But if you think the probe law micromanages your behavior more, you and I agree.  http://jurist.org/paperchase/2011/05/texas-governor-signs-law-requiring-sonogram-before-abortion.php

Guess which law was vetoed because Texas Governor Perry viewed it as “a government effort to micromanage the behavior of adults.”  http://www.statesman.com/news/texas-politics/perry-vetoes-texting-while-driving-ban-22-other-1547116.html

Does this really make sense to anyone who doesn’t belong to the Tea Party?

Right to Carry Arms – Some of Us Are More Equal Than Others

I am not against the idea of Texans who qualify under the law having a license to carry a concealed handgun or CHL. In fact, I’m for it.

What I’m against is politicians who abuse their power to vote as legislators giving themselves special privileges which non-politicians can never enjoy.

Do you think that a present or former member of the Texas Legislature is more important or more special than you? Do you think that they necessarily exercise better judgment under pressure than you do?

The Texas Senate says yes. Under legislation approved by legislators on Monday, they can carry their CHL wherever the hell they want to, even when it’s illegal for anyone else to do so. See for yourself: http://www.capitol.state.tx.us/tlodocs/82R/billtext/pdf/SB00905E.pdf#navpanes=0

Feel safer now?

Suppose you go to a political function to meet your legislator.

Do you feel like your legislator who will shake your hand and slap you on the back and talk to you as if your opinion matters to him is really your friend, considers you an equal, or could give two cents about your opinion?

The Senate’s vote pretty much shows that he isn’t, doesn’t, and couldn’t. He thinks he’s better than you are, which means you and he will never be real friends, and that he will never care about your opinion.

Think about that before you write Senator Backslapper a check.

The end is near!

If your driver license is suspended because you haven’t been making your surcharge payments, then you’d better get a move on: April 7 is the deadline to sign up for the DPS amnesty for the Driver Responsibility Program.

The state is offering a sweet deal–pay only 10 percent of what you owe, up to $250, and get your driver license back. In other words, if you owe $5,000 on your surcharges, you will only pay $250. Once you’ve applied, you have until April 17 to pay the $250.

Don’t miss this opportunity to get right with the state. It’s too good a deal to pass up.

Here’s where you can go to get more information on whether you’re eligible: www.txsurchargeonline.com or call 1-877-207-3170.