Monthly archive

March 2012 - Page 2

Said & Done

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Leonard Martinez, Travis Williamson, and Jerry Howith recently secured a “not guilty” verdict in Travis County in a continuous sexual assault of a child case. Before Martinez, Williamson, and Howith became involved, the case had been set for trial. The civil lawyer who was working on the case recognized the need for expert assistance and retained the new trial team. The new trial team was given only two weeks to prepare for trial.
 The allegations arose out of an outcry purportedly made by a 13-year-old child in response to her sister’s threat that she would tell the older sister’s secret if she didn’t let her have her way. An aunt overheard the threat and followed up, asking what the younger child meant. The younger child reported that the 13-year-old had been sleeping with their mother’s boyfriend for an extended period of time. Though the older girl first denied the allegations, she ultimately alleged that she had been raped 10 to 15 times weekly while she was in the fourth grade.
 During the two-week preparation period, the trial team reviewed offense reports, forensic interviews of the child and a witness and investigated an interview purportedly recorded by a rookie cop who could no longer produce the tape. The team also reviewed medical records and school records that they were able to obtain.
 The trial team scoured Facebook, developing excellent impeachment evidence, and put together a theme dealing with motives for the false accusation. The team was ably assisted by an investigator who was able to corroborate the whereabouts of the accused during the times of the alleged attacks.
 The State’s experts were effectively cross-examined and fact witnesses were impeached as the defense had been denied expert assistance. After conducting two recusal hearings and a waging a week-long trial, the team and their client received the jury’s verdict on Saturday. Congratulations Leonard, Travis, and Jerry.

The talk of Denton lately has been of Victor Amador, who got a mistrial in an aggravated assault case in the 158th District Court. The case was subsequently dismissed after Victor charged prosecutorial misconduct in the case, saying two prosecutors intentionally failed to disclose exculpatory/favorable evidence, and the judge agreed—to the extent of banning the pair from appearing in his court until further notice. This is big news in a county apparently struggling with the concept, as Victor notes, that “the government has the duty to disclose and no internal policy should excuse them from complying with Brady and subsequent federal and state case law that mandate disclosure of favorable evidence to the defendant.” Way to go, Victor.

Jason Horton received good news on an appeal he handled when the Sixth Court of Appeals reversed and remanded, based on the trial court’s erroneous instruction. The client was convicted of aggravated robbery and sentenced to 20 years in TDCJ. Evidence tying the client to the robbery was weak, so DA brought in 5 other robberies committed within 30 days of the subject robbery as proof of identity, all fairly similar. Jury came back with question: Can we use other robberies to find defendant guilty of this robbery? Rather than recite 404(b) instruction that proof of other robberies can be used to determine “identity” of robber in this case, trial court submitted a supplemental instruction indicating proof of other robberies can be used to determine “guilt or innocence” in this case. Former Bowie County Public Defender Charlie Pelowski stood his ground and preserved his objection that the jury should be instructed as per the model instructions. Good work, Jason.

Kellie Bailey, with second chair Ciara Williams, scored a major victory in a tough case in Travis County. Their client was charged in a nine-count indictment with aggravated assault with a deadly weapon, aggravated assault with serious bodily injury, and enhanced family violence habitual. The minimum was 25, and he was on parole, so it didn’t look good. Kellie had hung the jury before, and this was a retrial. The offer before trial was five non-agg, which the client refused, and Kellie and Ciara courageously fought and won another hung jury. The state gave up and offered 2 years non-agg. That is amazing work, you two.