Ethics and the Law: No Man Is an Island - By Robert Pelton

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Saturday, July 20th, 2013

As you get older, you realize no man is an island. This thought came to me at the Rusty Duncan award ceremony when I saw John Dietz, Bill White, John Boston, Ron Goranson, Scrappy Holmes, Tim Evans, and a few others. Travis Bryan was not there. Travis is now a District Court Judge in Bryan. Back then, he was like the rest of us, working as a defense lawyer. Rusty Duncan had also been part of our group at the Huntsville Trial College. We had many things in common and became fast friends. We were all young lawyers, but luckily, had trained under great lawyers like Charles Tessmer, Roy Minton, Jim Skelton, Warren Burnett, Racehorse Haynes, and other great ones. Some of the students went on to become great lawyers. Some went on to be wasted space.

Every now and then people come along who go above and beyond the call of duty: Audie Murphy, the most highly decorated soldier of WWII, Alvin York, who single-handedly captured numerous German enemies killing his comrades. We in the criminal defense bar do not wear uniforms and carry weapons with us as we do our jobs. We do our jobs by standing up to the tyranny of the government. We do our jobs by filing motions for discovery, investigating our clients’ cases, trying cases, and appealing cases. A lawyer has taken an oath to zealously represent the client, doing it right and ethically.

When you are in the military and do not follow your oath, bad things happen. The same is true for lawyers. Some lawyers brag at cocktail parties and other places, “I am a lawyer,” and then never follow their oath. It happens every day in every courtroom across the state. They get the check to the bank and head for the golf course or Paris. The client calls and wants to know what happened to that man who claims to be the greatest lawyer in the world on his website or billboard. What happened to that man or woman who told me they could save the day? As my friend Ken “Dude” McLean used to say, “Most of them have not read a case since Plessey v. Ferguson.” He also said the same thing about the judiciary.

Every now and then people rise above others and do remarkable things to help their fellow man. The people I selected on the ethics committee are such people: Don Davidson, Jack Zimmerman, Robyn Harlin, Ray Fuchs, David Sheppard, David Zavoda, Joe Pelton, Greg Velasquez, Joseph Connors, Cary Hart, and Michael Mowla. Gerald Goldstein and Cynthia Orr are such people. Bobby Mims is also one of those people. Randy Schaffer and Josh Schaffer are also among them. Terry Gaiser is one. Audley Heath is one. 

As I noted once before, my bronco-riding rodeo friend said, “When you deal with some people in West Texas, you better have your tennis shoes on tight because they are going to be tough.” When Robb Fickman, who is from Midland, found out what was happening in Edna, Texas, he was like Col. William Travis at the battle of the Alamo. He sent out a message for help to save a fellow lawyer from possible jail and great agony. Lawyer Fickman mobilized up to 70 men, women, and boys and girls to go to Edna in support of a lawyer being railroaded by a prosecutor. They all worked together as a team and it turned out to be a happy ending. If you think this is an isolated case, you must still believe in the Easter bunny.

Prosecutors and judges across the state ignore the Constitution. There are some good judges and prosecutors. Let’s give them the benefit of the doubt and believe that they just don’t get it. It is a sad state of affairs when a prosecutor in Houston gets recognized for doing the right thing. He did what his oath requires. It happens so infrequently that it makes the news when the oath is followed.

We need to be professional when we “remind” the judges and prosecutors what their oath is and what the Constitution, statutes, and cases say.

Like David Crockett said, “Be sure you are right, then go ahead.” He died fighting for what he thought was right.

Even if you do not like, have no use for, and simply can’t stand the judge, always show respect for the position. It is always humorous when someone gets appointed or wins an election for a judicial bench and then says: “I want to be a public servant. I am willing to take a cut in pay.” It is a long-standing joke that is not true. Nine times out of ten the new judge has not been very successful as a lawyer. Otherwise they would not be trying to get on the public trough. They know that once they get there, unless they are caught in a devious act, they will stay for what seems forever. There are a few exceptions. There are a few judges who were actually successful criminal defense lawyers in Houston—such as Sherman Ross and Denise Collins. But many have ascended that well-greased wheel to their thrones from the district attorney’s office. Judges are then sent to “Judges School,” where they master the art of “overruled” and “move along,” and “I gotta move my docket.”

Warren Burnett, when as he said he was in a sporting mood, used to ask the judge, “Your Honor, from what to what do you want me to move along to?” Lawyer Burnett was a smooth operator. More than once he would go to the funeral of a judge, as he said, “to make sure the bastard was dead.” Remember Rule 8.03. You have a duty to report unethical behavior of prosecutors, judges, or defense lawyers. Lawyers complain but then do nothing. It is time to stop complaining and take action. Ex-parte communications are unethical and should be reported. Also, when prosecutors lie or hide evidence, it should be reported.

If something bad happens, file the motion for a PR bond under section 21.002(d) of the Texas Government Code. Remember that you are always entitled to a bond and a hearing in front of another judge.

The Lone Ranger had Tonto, Wyatt Earp had Doc Holiday, Waylon had Willie, Johnny Cash had June Carter, Roy Rogers had Dale Evans, and you have 3,200 TCDLA members to help. Just call the hotline number: (512) 646-2734.