Allison Mathis

Allison Mathis is a criminal defense attorney in the post-conviction writs division of the Harris County Public Defender’s Office in Houston, Texas. She has defended the public from the spurious claims of the government in various places, including Aztec, New Mexico, the Swinomish Indian Tribal Community in LaConner, Washington, and the Republic of Palau. She serves on TCDLA’s board of directors and is a founding member of her office’s extraordinary Knit Club. Before she was a lawyer, she was a superlative late-night diner waitress and an aspiring literary critic, but mostly she drank wine. You can reach her at .

Chapter & Verse: History of Hearsay


My Dear and Beloved Reader, I need a break. Yes, it’s true. Even indefatigable, un-shut-upable columnists like yours truly get fatigued from time to time. Having this giant copy of the Code of Criminal Procedure strapped to my back the past year of writing Chapter and Verse has done it to me. Sometimes a change is as good as a rest, they say, and so that’s what I seek: change. For these next few columns, I want to switch focus from digging through the CCP to digging through the ROE. Yes, you heard me right, dear friends: first, we’re going to spend a while getting cuddly with Article VIII –  Hearsay. Oh, don’t make that face. Deep breaths, we can do this… deep breaths.

We should start in the beginning of this story – which, in the case and of all things evidentiary – is dear John Wigmore.  Wigmore, if you don’t remember,  was a law professor who spent more than ten years “in monastic study” to produce a massive sketch of the evidentiary landscape. In a 1904 Harvard Law Review article, Wigmore alerts us to the recency of the hearsay doctrine in Anglo-American law. He traced it as  something that began in back to the 1500s, but clarifies that it was not really nailed down until the 1700s.1

I know you don’t believe me, dear reader, but the way that this worked out is actually super interesting and I think will illuminate the path for us in the dark nights to come. Historically, before about 1500, a big part of a juror’s role was to educate himself (never herself – because jurors were always men, remember?) about the case as much as possible BEFORE the trial. Yes, you heard me right. They were supposed to go knock on doors and visit people, and ask any questions they deem necessary, and then show up to court and discuss what they had learned with each other and with the judge. Wigmore even cites a 1303 robbery where, the judge asks the sheriff if the jury is ready, and the sheriff replies, “The least informed of them has taken great pains to go up and down in every hole and corner of Westminster—they and their wives—and to learn all they could…”2 (let’s all appreciate that even in 1303, or maybe especially in 1303, wives were considered an important part of effective hearsay-gathering). These were trials where jurors took an active role, and themselves often acted as witnesses. The concept of hearsay, or even, really, any kind of rules of evidence, didn’t make sense in that paradigm.

But as the world became a more crowded place, and as cities in Europe grew, trials became a different spectacle all together. It became increasingly expected, and then requisite for the parties to bring actual evidence to trial. Conversely, and it became increasingly common for the jury to be pulled from a larger group and be less familiar with intimate facts, to as a result, juries began to consider that the evidence presented to them impartially. Eventually, in the mid-1500’s, trial courts were routinely holding that hearsay evidence could only be considered for (as we would put it in modern legalese) “the truth of the matter asserted” when if it was corroborated. The mentality being, it seems, that no shocking revelations should come as a form of gossip.

Today, it seems like pretty common sense that hearsay, by itself, is not sufficient to sustain a conviction. However, that proved difficult under the social norms of the time, but I think it’s also interesting to note that for most of history, all women (and men who were enslaved or indentured) were generally forbidden from of testifying at trials. This makes any case with an alleged female or minority victim particularly difficult to prove without hearsay evidence. For a particularly chilling example of this principle in action, see: occurred in People v. Hall, 4 Cal 399 (1854), (Where the California Supreme Court overturned the murder conviction of a white man who killed a Chinese laborer in front of several Chinese witnesses, finding that because, per the State’s high court, no Chinese persons should be able to give testimony against a white man as a matter of law.)

But I digress… let’s go back for a moment to dear John Wigmore. Painstakingly, he draws connections between the development of hearsay rules. He articulates that not only the way the role of the juror changed, but also, later, the way the role of counsel changed. Wigmore points out that until 1695, defense counsel didn’t do much more than give impassioned arguments for the accused, and only if the accused were even permitted an attorney – and over the next hundred or so years, the role of the “defense lawyer” gradually started to include cross-examining witnesses, as well, which had previously been something the judge or the accused would do himself. 3

This greatly lengthened the average trial, and also began the evolution of “the art and science of cross examination”, which still makes a few worthy practitioners and many unworthy bloviators a lot of money to this very day. As cross examination became a skill practiced by law-trained defense attorneys, the legal theory and reasoning of the hearsay doctrine grew more refined.

So that, my charming correspondents, is the quick and very dirty history of how we have gotten to where we are today. In 1975, the Federal Rules of Evidence were finally codified, and reliance on Wigmore’s (lengthy, historical, and frankly much more lovely and fascinating) traditions of evidence waned. Somewhat unbelievably, Texas did not officially adopt an actual Rules of Evidence to apply to criminal cases until 1986! And didn’t adopt a unified civil and criminal code, such as that we have now wasn’t adopted, until 1997, when your darling Allison was but a babe in arms (or maybe a moody and rebellious teenager, who can be sure?), but still well within the professional memory of many of our esteemed members.

For next time, dear reader, now that we have seen the painful birth of this ROE baby, let’s take a deep breath and turn to TROE 801 (a)-(d). It’s a short reading assignment, but I assure you that it has a lot to unpack. Until then, I remain, as always,


Chapter & Verse: July/August 2021


In December of 2014, I became the Chief Public Defender of the Republic of Palau, a small island nation near Micronesia. I had been a lawyer for 2 years and 1 month and had worked as an assistant public defender there for six months before my boss quit and left me holding the bag. Even though the nation was small, the job was big. The private bar was tiny and generally disinterested in taking low-paying criminal work, which meant our office handled about 95% of all criminal cases- around 1,200 a year. These cases included murders, drug trafficking from the nearby Philippines, and a large number of sex assaults. In addition to rampant alcoholism, the native population of Palau also had one of the largest percentages of schizophrenics in the world.

I knew that I was underqualified for the job. I had no resources and no help. For the first three months, I was the only lawyer in the office, running desperately from traffic court to misdemeanor docket to felony trials. I bleated for help to everyone I could back home, through achingly slow dial-up internet. TCDLA answered.

Jani Maselli sent me dozens of hours of CLE on disks that even my battered desktop could play. She sent me books and banks of motions and everything she could get her hands on. The package arrived out of nowhere and I wept in my office, not just because of the life-changing materials I desperately needed, but because of the overwhelming kindness it showed.

Months later, David Ryan would show up on a late-night flight, bleary-eyed, and would present a CLE the next day to just about every practicing lawyer in Palau, a group that could fit in a medium-sized conference room. When you’ve been isolated for such a long time, seeing a familiar face, hearing a familiar voice, smelling their familiar cigars, and leaning against them as the night wears on in a muggy outdoor bar in a strange land means more to you than they can really ever know.

 And that’s what TCDLA means to me. More than I can ever repay.

Chapter & Verse: Duties of District Attorneys


Well, here it is. We’ve made it through the first chapter in this behemoth of a cursed code. It’s just the beginning, and I’m feeling like Lawrence Sterne’s character, poor old Tristram Shandy, trying to write his wretched memoirs but each day he recalls takes him two days to write down, the insurmountable stack of memories piling up behind him as the stack of papers in front of him fails to keep up the pace. Sterne’s novel – in nine mind-numbing volumes – was once the talk of the 1760’s, with Shandy weighting in on everything from definitions of honor to how to best make button-holes. But now, it is relegated largely to the halls of academia where bored graduate students are forced to push through it at the behest of tenured faculty and their insistence on the importance of proper buttonholing.

Today, though… today we make some real headway, and we start an all-new chapter. TCCP Art. 2.01 “Duties of District Attorneys.” Please read along if you can, but the pertinent part is the part I will quote here, “It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.” You see that, “progressive” prosecutors? You see that, Chief of Capital Misdemeanors? You see that, sleeping intake DA? PRIMARY. That means first. Your FIRST duty is to make sure justice is done. Tell me the last person at the DAO who was promoted because of their compassion, high dismissal and alternative diversion rate, and ability to see and solve problems that are creating continued interactions with the criminal courts. That’s not the rubric for promotion, of course.

Art. 2.01 is the statutory version of Brady for us. It doesn’t give us quite as much – notice that the language is “capable of establishing the innocence…” – as Brady’s more generous, “tends to establish.” (Emphasis added). See:  Brady v. Maryland, 373 U.S. 83 (1963). That said, it’s not the definition of the evidence that I think is the biggest chasm here between defense and State. It’s the definition of the word “justice.” 

I am sick of banging my head against this Article. Sick of listening to ADA’s with little life or legal experience tell me what my client “deserves” with no awareness of what the State can actually prove. Sick of ADA’s, casually pleading away people’s lives, negotiating years like dollars, like a kid’s poker game for candy.

The Texas defense bar has long let political infighting and competition for appointments prevent them from wielding the power that the defense bar should have in matters of how our clients are treated and how we are treated, but that needs to end.  No matter how many cases a beleaguered defense attorney, public or private, carries, an ADA will always carry more. We have the power to set things for trial, to give them motion sickness, to challenge and claw and fight each step of the way if we don’t get what we want. TCDLA does a great job of organizing, supporting, and connecting us, but we need to utilize our resources better. Let’s actually pull stuff out of the motions bank, contribute our own motions, and push for more and better discovery earlier and harder. Don’t get bogged down in local custom that exists just because it always has, even though it’s not in our clients’ interest.

I know it’s a slog. I know you’re busy. I know you think you don’t have time. But really, I’m not talking about inefficiency – I’m talking about extreme efficiency. Learning the law, learning the things we can do for our clients and how we can do them in a way that is heard, that is effective, and that is not just waiting until the next setting to try and ask the DA for discovery again and then getting a reset. We all have something to offer the defense bar and the other people in it. Part of the reason prosecutors handle things the way they do is because we let them. We are a legion of skilled, educated professionals with a lot of unique experience among us, and we need to demand what they are obligated to give our community but often refuse to: Justice. We can’t let the buttonholes at the DAO get in our way.

Love Always, Allison

Chapter & Verse: Public Trial


Here we are, pushing forth into the month of May and as yet we are not even through the first chapter of this monstrous CCP, this albatross, this millstone, this student-loan of all possible Codes. But this month we will do our best, as we always do, to chug ahead, in this never-ending pandemic, to Art. 1.24, “Public Trial.” “The proceedings and trials in all courts shall be public.” Doomp. End of sentence. Of course, that’s not the end of the real sentence, though. Like most of our unlucky clients, it’s what comes after the sentence that does you in…the parole/annotations.

Lily v. State, 365 S.W.3d 321 (Tex. Crim. App. 2012), tells us about how judges can allow closure of “an accused’s trial or any part thereof.” (1) The party seeking to close the proceeding must advance an “overriding interest” that he is likely to be prejudiced (so we know the court can’t do this sua sponte, at least); (2) the closure must be no broader than it has to be to protect that interest; (3) the Court has to consider reasonable alternatives to closure; and (4) it has to make findings to support the closure. That’s a lot of steps.

Interestingly, the right to a public trial isn’t only held by the defendant under the sixth amendment – it’s also held by the public under the first amendment. Presley v. Georgia, 558 U.S. 209 (2010). In Presley, the Court closed voir dire proceedings to the defendant’s uncle, over defense objection. The court said what a lot of courts, I think, would like to say, which was essentially: “Look, it’s just during voir dire, and we don’t really have a lot of room. I don’t want him mingling with the jury and I don’t want him taking up space, so just tell him to come back for opening statements.” Presley was convicted and appealed based on the exclusion of his uncle from jury selection. The ever-stodgy Supreme Court of Georgia ruled against him. Guess what, though? SCOTUS struck them down, ruling that trial courts are “obligated to take every reasonable measure” to keep trials open to the public, which could include things that sound pretty labor-intensive to me, including, “dividing the jury venire panel to reduce courtroom congestion.” Presley at 212.

 There is hope, dear reader, for Georgia, yet.

Your Darling Allison pretends to remember the days of the King’s (or Queen’s) Star Chamber, back in the Tudor days, in which those muckety-mucks too effete to be tried in lower courts could be comfortably tried in private by the biggest of wigs. Though in theory this seemed like a good idea, like many good ideas it quickly turned into a literal torture chamber where high-ranking enemies of the Crown were quietly, un-due-processily, beaten, branded with irons, and forced to have their… various parts cut off. Yes, they carried out these gruesome punishments on very expensive rugs in privy chambers.

It was probably the Star Chambers and their echoing injustices that terrified our Founding Fathers into including the right to a public trial into our constitution. My dear friend William Blackstone commented that it kept everyone honest to have public trials, and it prevented judges from overstepping as much. Maybe that is true, or maybe sitting and watching trials is just a long-standing form of human entertainment, akin to Roman bread and circuses.

But sometimes as we sit in court checking our phones and waiting for the ever-later chance to approach the bench and deal with our cases, we should remember to pay attention to what’s going on. To sit with arms crossed as a silent and effective observer when judges are doing the wrong thing. To take notes, obviously. To raise an eyebrow and stare down the State as a member of the great and powerful mob, exercising our right to be present.

Chapter & Verse: Become an Outlaw


Dear and Beloved Colleagues,

Last we spoke, we talked about double jeopardy. Today, we move on to maybe my favorite word in the English language: the Outlaw. Article 1.18 of this fat, miserable companion of mine specifies, “No citizen shall be outlawed, nor shall any person be transported out of the State for any offense committed within the same.”

“Ok, Allison,” you’re saying, “what on earth does that matter?”

And I ask you, in return, does Jesse James matter? Does Wild Bill Hickock matter? Does absolute freedom from tyranny and injustice matter?

The purpose of outlawry is basically banishment. You, as a person, have been deemed to illegally exist in our jurisdiction. You have no legal rights anymore.

It’s interesting because, in a former life in a different country, we frequently resolved cases by making the sole condition of probation that the defendant would “leave the jurisdiction and not return during the pendency of the probated sentence.” It worked pretty well, and I remember recounting this to a salty old DA in New Mexico once. He laughed.

“You know, when I used to practice in Oklahoma, we would kind of do the same thing,” he said. “I’d tell repeat misdemeanor defendants to just not show up to court and we’d bench warrant them. Since misdemeanors weren’t extraditable, it basically meant if they left the county, they’d never have to face charges for it.”

Not in Texas, you wouldn’t, my Salty DA.

Smarter lawyers than I have argued that the outlawry provision effectively prohibits sex offender registration requirements, which I think is a pretty interesting way of turning things. Unfortunately, the 14th COA slapped that down pretty handily in Velez v. State, 2002 Tex. App. LEXIS 1153 at 15, basically saying that registrants don’t give up all their legal rights, and registration is not a punishment, technically, so nyah.

But I just need to tell you, dear friends, that there’s a legal definition of outlawry, which I don’t really care for, and a true definition of outlawry, which I aspire to.

Please turn, if you are able, to one of my favorite authors of all time, Tom Robbins, who is still alive in LaConner, Washington, where I once worked and frequented the same coffee shop (the only coffee shop) in the hopes of catching a glimpse of the Outlaw King himself. My icy, outlaw‑wannabe heart skips a beat when I read this passage from Still Life With Woodpecker:

The difference between a criminal and an outlaw is that while criminals frequently are victims, outlaws never are. Indeed, the first step toward becoming a true outlaw is the refusal to be victimized. All people who live subject to other people’s laws are victims. People who break laws out of greed, frustration, or vengeance are victims. We outlaws, however, live beyond the law. We don’t merely live beyond the letter of the law–many businessmen, most politicians, and all cops do that–we live beyond the spirit of the law. In a sense, then, we live beyond society.

When war turns whole populations into sleepwalkers, outlaws don’t join forces with alarm clocks. Outlaws, like poets, rearrange the nightmare.

The trite mythos of the outlaw; the self-conscious romanticism of the outlaw; the black wardrobe of the outlaw; the fey smile of the outlaw; the tequila of the outlaw and the beans of the outlaw; respectable men sneer and say ‘outlaw’; young women palpitate and say ‘outlaw’. All outlaws are photogenic. ‘When freedom is outlawed, only outlaws will be free.’ Unwilling to wait for mankind to improve, the outlaw lives as if that day were here. Outlaws are can openers in the supermarket of life.

Dear friends, I so encourage you to find your inner outlaw. The outlaw doesn’t listen to the definitions or branding of the State. The outlaw creates the world he wants to live in. But still, you know, wash your hands.

Love always, AJM

Chapter and Verse: Double Jeopardy


Dear and Beloved Colleagues,

This month, I write to you from the fog of eternal social distance. Me and my big orange O’Connor’s are snuggled up in bed together with a cup of tea and a burning desire to get to know one another since, you know, we have time on our side. There’s a sink full of dishes I’m ignoring, a toddler in the next room clomping around in my long-neglected high heels, and a feral cat noisily spraying his potent urine all over the outside of my bedroom window since one of the forsaken neighbors literally leaves 50 lb. bags of cat food open on his front porch. But inside my bedroom is a picture of calm, just me and the tea and the Code.

Somehow this thing always knows just what I need to hear. The next section is always exactly on-point. Like dipping into the Bible (ok, not so much the Old Testament with all the begats and the wrath), it always seems weirdly prescient. Today’s reading is §1.10-JEOPARDY. In a time so reminiscent of “Groundhog Day” where each day is the same as the last, jeopardy seems especially poignant. Even more, I am actually struggling with a jeopardy issue in a trial division case in which I seem to have gotten myself entangled recently.

No person for the same offense shall be twice put in jeopardy of life or liberty; nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction.

The rule seems extremely straightforward, but it turns out it comes with a long and bizarre series of asterisks that ensure that almost no one really understands what jeopardy is, except probably our wizened TCDLA presidents. Fortunately, those guys are on our side. Unfortunately, everyone else thinks they know what jeopardy is because the rule looks so deceptively simple.

A long time ago when I was a baby public defender, someone gave me a job for which I was not yet ready. Across the stormy ocean, very far from home, and without access to a legal research database, I hacked (with a blunt machete, dear friends, not a computer) my way into the law.

On that tiny island that used U.S. law and precedent, I represented a man who had lost all hope. He was an expat from the Philippines working for a pittance at a local tourist hotel. The job did not live up to what was promised, and he was homesick, broke, and struggling with undiagnosed mental health problems while living in a filthy, sweltering barracks with other workers. One day he grabbed a knife and threatened to kill himself in front of his only friend there, a fellow countryman who tried to talk him out of it. As the talking seemed to not be working, the friend struggled with my client over the knife, and the client, in the struggle, stabbed the friend in the neck inadvertently. Horrified and shocked, he jumped out of the window of the barracks, hoping to hit the sharp rocks beneath him. Of course, friends, you know what happened. He landed in the water. A local man saw him and quickly rescued him, and then he became my client.

Locked up in the small psychiatric cell at the local hospital, my client grieved and wept. The single psychiatrist in that country was also from the Philippines and she did her best to counsel and comfort him. I could tell she wanted to help him, but she found him competent, and I believed her. The DA offered to dismiss charges if he agreed to deportation. The family of the dead man petitioned the Philippine government to press murder charges and render harsh punishment. I tried to imagine what that was in the Philippines and I decided it was probably more akin to a lynching than a trial.

I sat on my porch with some other American lawyers I knew, drinking lukewarm Asahi beer and smoking harsh Korean cigarettes. “I think we have to prosecute him here, and then jeopardy attaches, and the Philippines can’t do anything to him.” I felt brave. We had double jeopardy protections; the Philippines had double jeopardy protections (I had bothered to check). That’s when I heard, for the first time, about the Separate Sovereigns doctrine. My heart lurched and for the millionth time that week, I realized again how inadequate I was.

Eventually, after a series of negotiations, the Philippine government agreed to confine my client to a mental hospital and not try him again if he were adjudicated of something in the island nation (not the Philippines) where charges were brought. I pleaded him to an involuntary manslaughter charge, and his sentence was suspended for ten years, with the only condition being that he leave the country and not return. Later, the Philippine consul brought me a box of instant coffee packets and a large pineapple. I am still unsure whether that gesture was personal or professional, but it was better received than the melting sack of frozen fish I once found on my coffee table after I woke up from a nap.

This is my round-about way of telling you, dear friends, that double jeopardy is weird. If you catch any sort of indication of it, much like a whiff of seafood coming from your living room on a warm, equatorial afternoon, it is a good idea to investigate immediately.

Stay safe and let me know if you need anything.

Love Always,

Chapter and Verse: The History of the Bail System


Dear and Beloved Colleagues,

I am not sure how it is that the Code knows just what I need to hear. This fat, new baby of mine falls right into the sections that are most applicable right when I need them, it seems. As I turned through the sections we’ve already covered and came across the next section in our read-along, boom, right there, in the middle of page 13: Art. 1.07 Right To Bail.

Any recognizable form of a bail system started with the Anglo Saxons, somewhere around 600 AD. Stay with me, beloved friends. This isn’t as boring as you think it’s going to be. The Anglo Saxons, you’ll remember, were the people who lived about where England is now (Angle-land, get it?) and they left us a lot of their language and some of their culture, and they farmed and fished in relative harmony until about 1066 or so, when something terrible happened, but that’s not what we’re talking about now. The Anglo Saxons developed a system of were-gild. “Were” means “man,” like in “were-wolf,” and “gild” means “gold,” or more generally “money.” So they developed this Man-Money system. There was a whole list of crimes and the corresponding restitution payments: if you cut off someone’s index finger, that was punished by a set amount. If you cut off someone’s pinky finger, there was a lower amount. There were things we might think of as enhancements (You stole a pig? That’s $50. Oh, it was the King’s pig? That’s $100). Then there were things that were mitigating (You stole a wife? That’s $200. You stole her from her second husband? That’s $100 and you have to keep her).  There was an idea that people generally aren’t dangerous to the community as a whole, so expending massive resources to confine someone, or wasting manpower by executing or mutilating people for small offenses, was probably not good for anybody. I tend to agree with them on this point.

Though the law was clear about what the restitution amounts were, trials still had to take place in front of factfinders, and sometimes that took a while. This is where the bail system emerged. People who were charged with a crime had to find someone who would stand as their surety, and if they absconded pre-trial, the surety would agree to pay the were-gild in full. Everyone was satisfied.

But then, as time went on, things changed. The horrible events of 1066 unfurled. Later, Martin Luther would drive a stake into the heart (and door) of the church, and the rift that followed would both lead to the colonization of the US and the rise of capitalism, both of which have everything to do with the current ridiculous money-bail situation we find ourselves in today, my dear coworkers. Now bail amounts are arbitrary and almost entirely discretionary. This is made worse by the predatory practices of commercial bondsmen, and the misinterpretation by judges of how those bondsmen work.

What’s the point of all of this history? I’m not sure. Something about how we can learn from the past, from even older, dead-er white guys who made the law before this current iteration, how the barbarians 1,500 years ago were more humane, somehow, than these barbarians in expensive haircuts and tailored suits who make the law now. Oh, friends who are still with me, I am at a loss this month. How weird it is to write about bail when one has been sheltering in one’s home for months on end.

 But what I will say about this section of this giant tome of sections is that it is short–blessedly, powerfully, impactfully so. In the same vein as “Jesus wept.”

“ALL PRISONERS ARE BAILABLE.” Of course, there’s an asterisk to that–the “death is different” asterisk. But for us, that is all we have to remember, that single promise reaching out to us through history and cronyism and viruses and uncertain futures: All prisoners are bailable. Some are more bailable than others.

Love always.

Chapter & Verse: Defending in the Name of Hope


My Dear and Beloved Defenders,

Today I am reading TCCP 1.051, the next nibble in our attempt to eat the law whole. Right to Representation by Counsel. And then 1.051 (c), especially close to my little public defender heart: An indigent defendant is entitled to have an attorney appointed to represent him in any adversary judicial proceeding that may result in punishment by confinement and in any other criminal proceeding if the court concludes that the interests of justice require representation.

If the interests of justice require… that’s the part I’m thinking the most about today. The “interests of justice” part. Something I wonder about in the minutes of quiet during this quarantine is my role in the interest of justice. Sometimes I struggle with the part we all play as defense counsel to the damned. The further we climb into this system, the more apparent it is that it is rigged, that the game is predetermined, and the dull and powerful will win every time.

Grant Gilmore (who knew a lot about Hell because he was one of the law professors who drafted the Uniform Commercial Code-remember that?) wrote in the New York Times in 1977: “The worse the society, the more law there will be. In Hell there will be nothing but law and due process will be meticulously observed.”

I wonder if my appearance as counsel helps to legitimize an illegitimate system. If I know that the deck is stacked, why am I playing the game? I’ve thought about this many times in the seven long and strange years I’ve done this job, and more than once I’ve almost walked away because of it. 

When I was in law school, my aunt fought breast cancer. By the time they caught it, it had already metastasized and there was little hope of her survival. She had also struggled for many years with drug addiction, and she was the first person I knew who went to prison. When I was eight years old I visited her there in TDCJ. She wrote me long letters on yellow legal pads and drew the intricate and beautiful designs the women in her cellblock would weave into each other’s hair.  Later, when I was 17, I would bail her out of jail. I would sit up with her and pray that she would not go to prison again. I would try to sneak in stamps and perfume in the pages of letters I mailed her and help her come up with spread recipes from the prison commissary lists.

Later, when I was 29, I sat in a hospital room, trying to chat casually as the doctors dripped slow, thick poison into my tiny aunt’s veins to kill her cancer. I complained about law school. I complained about the idea of being a lawyer. “But at least you… have a chance,” she said, “and I…” she trailed off. That was as close as she ever came to admitting her disease was terminal, that she knew she was mortal. Soon after, as my aunt lay dying in her tiny apartment, my mother would lift her sister’s frail body, hollow-boned and aching, from the shallow bathtub and I heard her rasp, “I’m not going to die in that bed.”

 “I’m not going to let you,” my mother said, firmly, in this voice that I have always believed. “I won’t let you.” And I know she believed it, fervently, they both did, even though they also both knew that my mother, as powerful as she was and is, had no real control over life and death. And though I didn’t see it, I imagine my mother patted my aunt’s narrow arm as she lifted her up into the bed that she would in fact, two days later, die in.

I think of both of those women, and I know that I can’t be a spectator to all of this. That even if I know the result, that I know my client’s fate is sealed, that even if my whole job is palliative care, I have to do it. That as I have faced terrible things in my own life, I have wanted someone by my side to pat my arm and believe fervently that there is hope.

Oh friends, I love you, and I revel in your victories that are healing and restorative, that push past hospice and into recovery. But please know that in your defeats you are just as meaningful, and sometimes more so. And whether or not justice will exist for your client, and whether or not hope is justified, please know that that is why you are there, at the feet of the dying, because if there is hope it is in your advocacy and your representation, and you are called, by the interests of justice, to serve.

Love always and wash your hands.

Chapter & Verse: What Does “Speedy Trial” Mean Anyhow?


As I strike out on this venture to read through the TCCP with all of you, my darling colleagues, I realize now, in this second humble installment, what a huge elephant I have promised to eat. For example, the next section I want to dive into is Art. 1.05. “Rights of the Accused.” Oh gosh. That’s a lot. Even in Texas, apparently, the accused have a lot of rights. Even the first sentence has a lot to unpack: “In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury.” We have to pick something to focus on here. I pick the speedy part.

Speedy trials have come to mean something entirely different in Texas than they did when they were first invented. Back in the Day (and by “day” I mean 1166 AD, specifically the Assize of Clarendon), trials had to be held within a few days of the person being arrested. To be totally fair, “trials” were also a bit easier to organize back then, requiring mostly a large vat of boiling water into which the hand of the accused person was plunged, then wrapped in bandages for an additional three days and then examined by a priest who determined if the hand was infected or not. If the wounds were infected, the person was guilty. This is about as fair a system as has ever been invented and, frankly, I’d probably take my chances with the vat of boiling water if I was ever given the option of that or to sit in the county jail for 20 months or so months awaiting trial, but I digress.

Texas actually used to have what most other states have, which is a speedy trial act that required the state to be ready for trial within a set amount of time after “the commencement of a criminal case.” In Texas, this meant that the state had 120 days to get ready for a felony, barring exceptional circumstances. In my humble experience in other jurisdictions with similarly strict day requirements, there are always exceptional circumstances. In Meshell v. State, 739 S.W.2d 246, the CCA declared that the Texas Speedy Trial Act violated the separation of powers doctrine, and that the legislature couldn’t tell the DA how long it would take to get ready for trial. That’s disappointing, especially for Meshell himself, whose lawyers didn’t argue that his case was a federal or state constitutional speedy trial violation. So, when the act was struck down, he hadn’t preserved any error for review and ended up with a conviction (lesson: OMG CONSTITUTIONALIZE YOUR OBJECTIONS).

So now where does that leave us? What do we get when we get a speedy trial? Answer: Not much. We get SCOTUS’s Barker v. Wingo factors for the court to consider once the delay gets long enough to qualify as “presumptively prejudicial” (the length of delay, reason for the delay, assertion of the right, and prejudice to the accused). How long is long enough to be considered “presumptively prejudicial?” Cantu v. State, 253 S.W. 3d 273, tells us that it’s more than four months but definitely 17 months. Everything else is up for interpretation.

So, much like life itself, we are challenged to sift through a morass of meaninglessness and come up with meaning for ourselves. I would contend that it is good practice in appropriate cases to: (1) Demand in writing a speedy trial at the beginning of a case; (2) refuse to agree to resets – make the state request it, write on the reset that you’re signing as to service only, not agreeing, etc; (3) flesh out your prejudice (yeah, it’s prejudicial if a material witness dies, but you can’t show what they would have testified to if you never interviewed them); and (4) move to dismiss for speedy trial violations.

Chapter and Verse: A Deep Dive into the CCP

I have noticed that as I get busy and old, I tend to fall into bad habits. One of those habits, which I have also noticed in other attorneys (none in TCDLA, of course) I call “practicing law by word of mouth.” By this, I mean relying on what other attorneys or judges say the law is rather than actually looking it up and reading it oneself. At that point, we may as well be taking legal advice from our client’s cell mate’s cousin, who once took a criminal justice class, and has reported to most of the tank that they are all  entitled to that famous and elusive provision, §12.44(a).

I thought recently of my Southern Baptist adolescence, spent desperately paging through daily devotionals, where one read a short chunklet of the Bible and then a brief explanation or illustration of what it said with the intention of eventually familiarizing oneself with the most important selections of that impenetrable tome. If one can get twelve-year-olds to solemnly read the Pentateuch, I feel strongly that us grown-ups with law degrees can muddle our way through our own books of the law in similar fashion.

So, in order to try and combat my own laziness and ineffectiveness, I am endeavoring to read the entire Texas Code of Criminal Procedure, start to finish, and I am inviting you, dear friend, to do it with me. Of course, it would not be effective or efficient to reproduce the Code in its entirety in this humble article, but I will focus on what I think is interesting and important as we move forward. C’mon, you’ve already gotten this far, let’s go.

Dust off your code book and let’s open together to TCCP Art. 1.03, The Objects of this Code.

Section 1.03 outlines the reasons the State wanted to write this code in the first place – namely, to prevent crime, ensure the secure confinement of prisoners, effectuate fair and speedy trials, to produce relevant evidence, and to make sure sentences actually get carried out when they’re pronounced. Section 1.03 proclaims that it “make[s] the rules of procedure […] intelligible to the officers who are to act under them, and to all persons whose rights are to be affected by them.”

I’m unconvinced that the code actually achieves any of these quite aspirational goals, starting with intelligibility, but I suppose as we move forward in this endeavor, we shall see for ourselves. I like the idea, though, of putting us all on notice of the rights we are losing to the State. The 4,000 year-old code of Ur-Namu, the written law of an ancient Sumerian king, emphasizes how important the availability of the law to the public is in its prologue, “…so the orphan is not delivered up to the rich man, so the widow is not delivered up to the mighty man…” I like that. That’s what our CCP says it’s trying to do, too, in its own inelegant way.

Check out Parker v. State, 745 SW 2d 934, which is an interesting case. In Parker, the trial judge threatened both the State and Defense attorneys in a DWI case with contempt if they dare tell the jury they could review evidence during deliberations. It seems that this inordinate pique came from the judge’s ill humor and desire to get things over with. The record is silent as to why neither attorney objected to this or what came later. One would imagine that the video would probably be helpful to one side or the other or why on earth would it be relevant in the first place? But during closing arguments, no one mentioned the option to the jury.

The jury, acting on its own, requested to see the video during deliberations. The judge pulled the jury out into the courtroom and basically told them, “Look, that’s going to be a real pain. We don’t have a lot of VCRs down here, one of them eats tapes, and we’d have to wait for the court next door to be done with theirs, so, like, I don’t really want to go through all that since you already saw it once. Just make up your minds and let’s gooooooooo.” More or less.

Parker got convicted and appealed. The 14th COA really felt strongly about the fact that this, in spite of being unpreserved by a lack of objection, was harmful and prevented a fair trial. They felt so strongly, in fact, they quoted a flowery old 1914 case, from back when judges wrote with a bit of a flourish:

“No one, under any circumstances, should be deprived of any right given him by the laws of this state, and, if any provision of our [CCP] has been overlooked or disregarded, if, in the remotest degree, it could have been hurtful or harmful to the person on trial, the verdict should be set aside.”

Dang. That’s beautiful.