Bobby Mims

Bobby Mims is a criminal defense lawyer in Tyler, Texas. He graduated from the University of Texas in 1974 with a BA, from South Texas College of Law in 1977 with a JD, and attended the Harvard Business School in 1979. He served with the 25th Infantry Division in Vietnam before college. He was in corporate management until 1990. He is a partner in the Boren & Mims, PLLC, law firm dedicated to defending the citizen accused. He is a past president of TCDLA. He can be reached at or (903) 595-2169.

Blue Matters Matter

By now, we all should know that the Texas Code of Criminal Procedure Article 39.14 requires the prosecutor to disclose to the defense the criminal histories of its witnesses. This disclosure often matters to defense counsel if the alleged victim is a “no-good SOB” who might have had coming what our client allegedly gave. However, what about those police officers that the prosecutor will parade into the courtroom wearing “just-so” pressed uniforms, pistols, and shiny badges? These officers would not have criminal histories, would they? Are there no skeletons in their closets? If they did, then they would not have those “Batman” utility belts, precise creased polyester pants, fresh “high-and-tight” haircuts, nor take on “Napoleonic” temperaments, now would they?

Well, that police officer might not have a criminal history (because he would never think of driving drunk), but if he has been a cop for any appreciable amount of time, you could bet that house your ex-wife lives in that he has been “in the barrel” with internal affairs or has received the Garrity Warning 1 2at least once in his career. Many criminal defense attorneys who represent police officers find that cops get into trouble about as often as other clients. They just get into a different kind of trouble. At trial, their trouble is potentially as useful to the defendant as impeachment evidence as are the prior convictions of the prosecutor’s testifying “snitch.”

A Brief History of Police Union Lobbying

In the mid-70s, a group of police officers bolted from the Texas Municipal Police Association (“TMPA”) to form the Combined Law Enforcement Associations of Texas (whose acronym is “CLEAT”).  CLEAT members believed that the TMPA was not aggressive enough in protecting cops from “management,” i.e., government and civilian oversight. CLEAT membership was concerned with matters regarding the discipline of law enforcement officers.

CLEAT soon got busy lobbying, and in 1987, Chapter 143 of the Texas Local Government Code as it exists became the law in Texas. Chapter 143 is essentially “legislated unionization” for municipal police and fire departments in municipalities where the electorate has voted to enact it. Those municipalities that enact it are called 143 Civil Service Municipalities (“143 Municipalities”) in the context of police and fire departments. Dallas, Fort Worth, Houston, San Antonio, Austin, Beaumont, Port Arthur, Orange, El Paso, Lubbock, Amarillo, and Tyler are 143 Municipalities. Chapter 143 can apply to any municipality with a population of 10,000 or more, which votes to enact it for their departments.

CLEAT still lobbies and negotiates generous collective bargaining agreements for its membership. CLEAT takes pride in being much more radical and aggressive than TMPA.3

Discipline That Is Not Discipline4

What, you may ask, does Chapter 143 do, exactly? It imposes rules and regulations upon the operation, maintenance, and management of a municipality’s police and fire departments, including classification and appointment (Subchapter B), compensation (Subchapter C), disciplinary actions (Subchapter D), leaves (Subchapter E), and several other administrative “odds and ends.”

Included in “odds and ends,” found in Subchapter F, is §143.089, which governs the maintenance of personnel files. Section 143.089(a) states that officer personnel files are subject to public disclosure. It describes what a personnel file must contain, including any record of the past discipline of an officer. Section 143.089(g) provides for a separate personnel file that a department chief may maintain, which, according to the statute, is not subject to disclosure to the public. This file is euphemistically called the “G-file.” The contents of a G-file must include, inter alia, any records of verbal and written reprimands, i.e., discipline for policy violations.

So, let us consider Subchapter D and see how it defines discipline. Section 143.051 begins by defining discipline within the context of “[r]emoval or [s]uspension.” Section 143.052 describes the manner and method by which a department head (chief of police) may suspend without pay (including an indefinite suspension, which is the same as a termination) an officer for disciplinary reasons. Section 143.054 describes the manner and method by which a department head may demote, for disciplinary purposes, an officer. Note a similarity here? Hint: each involves a financial penalty to the officer in question.

Underlying the legal bases for a suspension without pay or a demotion assumes that the officer in question has been found culpable for transgressing one of the 12 enumerated “no-noes’” in §143.051. Section 143.051 includes such things as convictions for felonies and misdemeanors, incompetency, neglect of duty, discourtesy to the public (seriously!), acts showing a lack of good moral character (we’re not making that one up), off-duty intoxication, neglecting to pay one’s debts, being AWOL, shirking duty and cowardice. The “term of art” in most departments is a finding of “Sustained” for an alleged violation found to be “True.” It is possible, legally, theoretically, and practically speaking, for the charge against an officer of §143.051 to be Sustained without that finding leading to a suspension without pay or a demotion. Because of the progressive (not liberal but incremental) disciplinary policies that most police departments use, it is likely that an officer’s first time “in the barrel” for a Sustained violation will result in some disciplinary action that falls short of a suspension without pay or a demotion. By operation of §143.089, the paper trail that leads from an allegation of an officer’s violation of some part of §143.051, and to a finding of “Sustained” that does not involve a suspension without pay or a demotion will be nowhere in the officer’s personnel file maintained under §143.089(a), which is subject to public disclosure. Instead, these little gems end up in the officer’s G-file, and out of sight from the meddlesome public eye.

Put succinctly, how discipline is treated by Subchapter D is that it excludes disciplinary actions that do not involve an adverse financial impact on a police officer. An officer can be found to have violated a policy, rule, or statute that does not qualify as a discipline under Subchapter D of Chapter 143 because the action does not result in the officer losing pay, an unpaid suspension, or a demotion. Furthermore, records for these incidents are kept from the public by operation of the language of a statute that the legislature enacted because of the lobbying efforts of CLEAT. The upshot is that the form of discipline, whether written or oral reprimand, for a Sustained rule/policy/statutory violation does not count unless a portion of the officer’s pay leaves the public fisc by way of forfeiture of pay or demotion.

Case Law on Our Side

There should be no question but that these records ought to be available to the defense in a Motion for Discovery or by the invocation of the Michael Morton Act. However, prosecutors and attorneys representing Civil Service municipalities routinely get up in arms when a defense attorney files a Motion for Discovery or a Morton Demand seeking these records. Cops and their chiefs are very jealous of the contents of their G-files, and to some degree are so are municipal civil service directors. Thus, even a request for an in-camera inspection of the G-file is met with the rending of clothes and gnashing of teeth along with the filing of a fierce Motion to Quash.

But guess what? Besides Brady v. Maryland, 373 U.S. 83 (1963) and United States v. Bagley, 473 U.S. 667 (1985), there actually exists state case law that supports at least an in-camera review of G-files in criminal cases. Back in the ’70s and ’80s, when Scooby Doo was still a common staple of Saturday morning TV programming, Tex. Code Crim. Proc. Art. 42.12 contained §27, which protected from disclosure any and all records maintained by the Texas Department of Corrections on inmates subject to “parole, release to mandatory supervision, or executive clemency.” In Texas Department of Corrections v. Dalehite, 623 S.W.2d 420 (Tex.Crim.App. 1981), the Texas Court of Criminal Appeals addressed the issue of whether those records covered by §27 were discoverable by the defense in a criminal proceeding. It turns out that they were. Citing Texas Board of Pardons and Paroles v. Miller, 590 S.W.2d 142 (Tex.Crim.App. 1979), the Court reasoned that, while some confidentiality was necessary in order for the Board of Pardons and Paroles to function effectively, the statutory privilege of Tex. Code Crim. Proc. Art. 42.12 §27 had to give way where it stood in the way of the exercise of a constitutional right. 623 S.W.2d at 432. The Court went on to cite United States v. Nixon, 418 U.S. 683 (1974), wherein the United States Supreme Court held that: “The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense.” Thus, did the Supreme Court, as put by the Texas Court of Criminal Appeals, conclude: “that the President’s broad interest in confidentiality would not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal cases, especially since the production of the materials was for in camera [sic] inspection with all the protection that a district court would be obliged to provide. The assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.” 623 S.W.2d at 423. Who knew that “Tricky Dick” would be useful to the Texas criminal defense bar in the Year of our Lord 2020?

Defense Lawyers Need to Seek the G-File

The writers suggest that where police officers have been listed as witnesses in a criminal trial, which is practically in every trial, that a Morton Demand, a Motion for Discovery of State Witnesses Personnel Files and/or a Subpoena Duces Tecum seeking the G-File should be considered by counsel. The G-File will probably contain information beneficial to defense counsel in trial preparation and cross-examination. The attitude of virtually all Judges is probably that the G-File is exempt from disclosure. However, if the criminal defense bar moves forward in this area to educate the Judges of the relevance of this material, that they should assume their duties to provide a fair trial under the law and the Constitution, then we may see the dam break and at least have the files more often reviewed in camera. If so, then we could expect that the salutary effect would be that officers would be more careful in their actions, the public might become more trusting of the system when bad officers are exposed. The benefit gained by exposing bad officers who shuttle around to various police departments might be realized.

Legislature Needs to Act

The national social conversation and political movements are likely to result in some remedial legislation. Considering the recent events in our country that highlight the need for police reform and more oversight of how law enforcement conducts and polices itself, it is time that the veil of secrecy that shrouds the contents of G-files to be reviewed in Austin by the legislature. Amending §143.089 mandating that any record in a G-file that could impeach a testifying police officer in a criminal trial be turned over to defense counsel is a step in the right direction.

So, it seems, that blue matters really do matter!

Motion and Brief for Discovery of State’s Witnesses’ Personnel Files

My Welcome Home From Vietnam: Back in the World in One Piece

My ears popped, and the tires screeched as the TransTexas Airways DC-3 touched down at the Airport in Tyler. The stewardess had avoided eye contact, and the other passengers looked away from me. The short flight from Dallas was a replay of the plane ride from San Francisco. It was strange that no one would look at me, and the stewardesses were not friendly. 

Seventy-two hours earlier, I climbed into a chopper in Cu Chi with my orders to go home. Seventy-two hours before that, I was pulling my final patrol with my platoon. The old loud rattling DC-3 reversed props and braked to make the first turn in to the terminal. It seemed like another world from where I’d just left. I had left this same terminal 2 years before with my induction notice and kissed my mom goodbye, tears in her eyes. I was a 18-year-old kid from one of the poorest families in the county and was scared because the war was all over the news. 

 

I had been born in Houston because my mother needed to get away: I was going to come a little early to suit the folks in the community. She ran away with my dad, who was barely 20 years old himself. He had dropped out of school, lied about his age, and joined the Navy at age 15. He was just out of the Navy after serving in the last two years of the Pacific war against Japan. He was the last of a long line of men in my family that had served in the military back to the Revolutionary War. Military service was a duty and rite of passage into manhood. Military service was honorable and expected of every male in my family. 

I was drafted in 1969 as the Vietnam War raged. The Tet Offensive of 1968 was fresh in memories, and every week, 200 or 300 GIs were KIA. Already our hometown had lost 5 men. One man was a fighter pilot shot down and missing over North Vietnam. The draft was what was on everyone’s mind. You could avoid the draft if you had money, if you had parents had a friend on the draft board, had a bad knee, defecated in your pants, had poor eyesight, or if you went to college. Married men with kids got deferments. Soon the draft board eliminated that exemption. They were drafting everyone who could not get a deferment. For me, there was never a question of avoiding the draft or going to Canada like so many were doing during that time. The men in my family served the country. We were patriots. 

The pilot announced that the temperature was 90 degrees, the time was 10:15 a.m. It was Friday in October 1970. He told us that we were in Tyler, Texas, but to keep our seat belts on until we reached the terminal. Two weeks before, I had been sitting in the open door of an Army chopper flying at 5,000 feet—with my boots on the skids, full field pack, an M-16—and no one warned me to put on a seat belt. The stewardess opened the door and thanked everyone for choosing TransTexas. Everyone except me. She was older than me, attractive, especially since I had not been around women for months. However, I was married, anxious to get to my wife as soon as possible. There were no baggage carousels back then. The baggage handler just sat your luggage out by the plane, you picked it up, and walked out.

So I shouldered my duffle bag and looked up at the crystal clear blue sky. The air was fresh and smelled of pine needles and freedom. There was a flock of crows cawing and sparrows chased them away. I saw squirrels in trees scampering around, making ready for the winter. I even saw a flock of geese high up in the sky in the V formation heading south for the winter. October is beautiful in East Texas. As I breathed in deeply, I pleasantly realized something was missing. There was no odor of the dank, dirty smell of rice paddies full of buffalo dung that infiltrated into everything in Vietnam. Instead, it was the smell of East Texas. I was glad to be home. I had plans.

Two years earlier, I was just another 145-pound poor kid from East Texas with an order to appear for induction into the armed services of the United States of America. I was barely 5΄8΄΄and skinny as a river-bottom reed. In the Army, I had grown to 6΄1΄΄and weighed 195 pounds. Interestingly, my feet did not grow. My boot size never changed. Back then, I had stepped forward and took the oath to defend America from all enemies, foreign and domestic, with the full knowledge that I was going to Vietnam. Despite a year of “humping” in Vietnam jungles, burning off leeches with borrowed cigarettes, enduring moments of terror, suffocating heat, or shivering in the freezing cold monsoons, I felt strong. On that day, and in that place, I wore a full dress U.S. Army uniform with the 25thInfantry Division patch on my left shoulder and my ribbons earned in Vietnam; my shoes were spit-shined, my gig line was perfect. I was in excellent physical condition. I felt that I had earned the rights of manhood. I was confident and proud. I had made it out alive, and I was exhilarated.

I got in line with the other passengers. They were chatting with each other, and some knew each other. Some had wives or friends meeting them. They were all civilians. Not one tried to speak to me or acknowledge me. It was strange. I did not care since the only thing on my mind was to get home and find my wife. We got married before I Ieft for Vietnam. I had only seen her for a brief R&R in Hawaii. We had been apart more than together. I wondered if it would be the same as before. My duffle bag had everything I owned in the world, so I just slung it over my shoulder and walked out of the airport. I noticed some of the cars that were picking up passengers, loading and driving out of the airport. It was only about a half-mile from the terminal out to Highway 64 and then another 60 miles to my hometown. It would be no sweat since I could hitchhike all the way home. I was sure that all I had to do was stand on the highway and thumb my way back. I did not think much when the cars leaving the airport passed me up. Surely when I got to the highway, I would catch a ride. 

I wondered what my buddies were doing at the time. I recalled the nights that we sat on the ambush patrol. They were probably in the bush again, setting up the claymores, the tripwires, and getting the flares ready. These were the best guys in the world, and we all swore we would meet up back in “the world,” buy Harleys and ride all over the USA. I found out a few days later that they had been ambushed and taken casualties. Donnie, a kid from Kermit, Texas, was KIA, and several of my guys were wounded and had to be medivacked out to the 12thEvac Field Hospital at Cu Chi. But on that day, I did not know that yet, and so I looked forward to getting my wife and going back to reclaim the job I had before I was drafted. 

Highway 64 is a busy highway linking Tyler to Dallas. Tyler, in 1970, was not large but was the largest city in East Texas. On that morning, the traffic in both directions was reasonably heavy. Pickups, big rigs, passenger cars, and farm vehicles headed east in a hurry to get to wherever they were going. I sat my duffle bag down and stuck out my thumb. This hitchhiking was going to be easy. Eighteen months ago, I had hitchhiked 600 miles to make it to my sister’s wedding and only needed three rides. I never waited more than a minute or two before someone would pick me up. A GI had no problem getting rides in early 1969. 

I was wrong. Car after car after car passed me up without even slowing down. Trucks, big rigs, a farm truck with a load of hay just passed me up. The thumb wasn’t working. It is about six miles to the loop that I needed to get to from the airport. I started walking. I would occasionally take a chance and try to thumb a ride, but no one stopped. This was not going to be the easy trip I thought. I walked and walked and walked the six miles to the loop.

I was in good shape, but after about an hour of walking, I was getting angry and confused. What was the problem? I did not understand that the country had changed. Here I was a 20-year-old kid just back from Vietnam and could not get a ride. Here I was in East Texas, and these people are good people who love the country and the troops. Yet I could not get a ride. I finally made it to the loop, and the sun was now high in the sky, the temperature climbing. But I was used to the heat. I did not unbutton my uniform since I did not want to dishonor it by becoming sloppy despite the heat. I had started to continue around the loop. The loop around Tyler in 1970 was all rural and pasture land. There were no stores, no houses, no businesses. 

I finally gave up trying to catch a ride and resolved to hump all the way home if that is what it took. I might be able to find a phone and make a collect call home and see if someone would come and pick me up. I had stopped even turning around and looking at the oncoming traffic. After a few minutes, over my shoulder, I heard the sound of a car coming at a very high speed. It was different than the others as this car was traveling fast, loud, and hard. He sped by me without slowing down. The wind blast and dust nearly blew me off the shoulder. It was a shiny black 1970 Chevelle SS 396 with only the driver inside. The car suddenly hit the brakes hard and skidded to a stop, leaving rubber and smoke all over the pavement. The driver put it in reverse and gunned it back to me with the engine at full throttle. I wondered what this was all about, but at least someone had stopped. 

“Where you going, troop?” the driver asked.

I told him that I had just got in from Vietnam was trying to get home to see my wife. He told me to get in and that he would take me. I told him that it was at least 60 miles. He said: “I don’t give a fuck. I’ll take you as far as this thing will go, or we run out of gas first.” 

He asked me what unit I was in, and I told him that I had just been discharged out of Vietnam with the 25thInfantry Division in Cu Chi and Tay Ninh. He said, “Well, son, you need to salute me since I am a first fuckin’ arty lieutenant with the Big Red One.”

I said, “No problem, sir!” giving him my best dress salute.

He then said, “I order you to get into this fuckin’ vehicle and tell me where we’re a-goin’.”

I got in, and he said, “Son, If you’d saluted me in the Nam, I’d have either shot your ass or busted you back to E-1 or both.”

 I said: “I know, sir. We don’t salute in the Nam.” 

He revved up the engine, popped the clutch, and burned out, fish-tailing all over the road, and the first thing we were over 100 mph. This guy was crazy, but I loved it. He told me that he had got shot up bad at a FireBase that had nearly been overrun by the VC during Tet. He explained that he was on a convalescent leave out of Fort Sill. He had just bought the SS 396 and paid cash from the money he had saved. He was on his way to New Orleans to party, get high, and get laid. He asked if I wanted to go with him. He said he had plenty of money and would pay for everything. I told him that I had a wife, but that I appreciated the offer. He laughed, shifted gears again, and floored it. I think he got smoke and rubber in 3rdgear. This lieutenant was probably only 23 or 24 years old. I never asked. To me, he was an old guy who outranked me, so I just went along with whatever he wanted to do so long as he got me closer to home and my wife. 

We swapped some war stories, and before I knew it, we’d gone the 60 miles. We stopped at the courthouse square in the middle of the afternoon. Before I got out, he turned to me and said: “Son, this country has changed. Some people are not going to like you. That uniform you’re wearing there is going to get you in trouble. I advise shuckin’ that military garb as soon as you can. Get you some civvies, and don’t tell anyone that you’ve been to the ‘Nam.’ I’m just sayin’ it to give you some free advice. You are not going to be treated the same as before. You are damaged goods, and people are going to be afraid of you.”

I asked him, “Why do you say that?”

“Trust me!” he replied.

I got out and gave him a salute, which he returned. He burnt out, leaving smoke and rubber all over the downtown street. The townspeople on the square looked up in surprise as this mystery SS 396 roared out of town and this strange GI suddenly appeared in their midst. I never got his name, but I will always remember this first lieutenant as the only person who stopped to pick up a GI who needed a ride. 

Postscript

This mysterious lieutenant was correct warning me about how I would be treated as a Vietnam veteran. These stories about being spat upon or being called “baby killer” never happened to me. It seemed that we were to be ignored, unseen, damaged, crazy, unstable, and unreliable. I had been drafted from a job with a major oil company. When I presented myself to reclaim my job, I was told that they no longer had a job for me.

One of my buddies in my platoon was 25 years old and had a law degree from Ohio State University. He had been drafted but refused to accept a direct commission as an officer. I was always impressed with how he was always able to use his wit and education to quote Army regulations to any offending NCO. I did not intend to be ignored any longer and insisted that I be given my job back. I said something about the Soldiers’ and Sailors’ Civil Relief Act. I was grudgingly hired in the lowest pay  grade the company had. I then went back to visit with my old boss, who was a WWII vet, and told him that I was ready for work. He told me that he was glad that I was back in “one piece.” 

As we talked, one of the engineers came into his office and interrupted our conversation. He looked at me and said, “Hey Bobby, I haven’t seen you in a while. where have you been?”

I replied, “Well, Jim, I’ve been to Vietnam.”

Without so much as an acknowledgment, he turned as if I wasn’t there and ignored me—and never spoke to me again. That one encounter was indicative of how I felt the people back home treated us. It was like a lightning strike and a lesson. 

From then on, I never told another person that I was a Vietnam veteran or even that I had served. In those days, it was a stigma. You were never going to be promoted nor even given a chance in corporate America. While we were serving our country in the jungles of Vietnam, there were those who dodged the draft and stayed home, earning good salaries, getting promoted, marrying, having children, buying homes, and living the American Dream. Then they self-protected each other as they rose in the corporate ranks. If you couldn’t find a way to dodge the draft then you were considered a “sucker.” I have often wondered if there was any small element of shame or embarrassment with these people. 

Because of my lawyer buddy, I had a dream of going to law school and becoming a lawyer. I applied to every law school in Texas, but each, except one, rejected me despite having a good LSAT score and good undergraduate grades. I cannot say they did so because of my military background, but it sure felt that way. I got a call from South Texas College of Law, and they said that Dean Garland Walker was holding 20 spots open for veterans, and that I was being considered for admission. I met personally with Dean Walker, also a WWII veteran, and he advised that he was going to take a chance with a class of Vietnam vets, and that he hoped that I would not disappoint him. That class of veterans was outstanding, and today some of these lawyers are leaders in the bar and in their communities all over the nation. 

It is only very recently I have felt comfortable discussing my Vietnam service. The country has changed, and though the gratitude is late coming, it is appreciated. My son bought me a Vietnam veteran hat recently and has encouraged me to wear it. I have not so far but might soon. 

Now, 50 years later, with most of my career behind me, I am so thankful that I served my country, that I became a criminal defense attorney, that I practiced in the courts of the greatest nation on earth. I am blessed that I have made such close friends and colleagues in the Texas Criminal Defense Lawyers Association and the Harris County Criminal Lawyers Association. If I have accomplished anything in this life, I am most proud to be a criminal defense attorney with brothers and sisters who fight every day for freedom and justice. 

Finally, not one thing that I did in Vietnam compares to what criminal defense lawyers do every day to defend the Constitution of the United States of America. So, be proud of what you do because your country, your state, and your community need you. 

No other institution stands against the overwhelming power of the Government on behalf of freedom except the criminal defense lawyer.

Buck Files Makes It 200!

In October 1986 the U.S. president was Reagan, Thatcher was UK Prime Minister, and Gorbachev was in power in Russia. The Berlin Wall yet divided East and West Germany. “Magnum PI” was the most popular TV show, the Mets won the 1986 World Series. In 1986 gas was 89 cents a gallon, a personal computer was $2,000, cell phones were just novelties, email had yet to take over the way Americans communicated, and, mercifully, disco had died. In October 1986 Buck Files wrote his first article for the Federal Corner of the Voice for the Defense.

This issue of the Voice for the Defense contains the 200th article that Buck Files has written. Buck Files’ articles have been written and published for 30 years. Every issue since the October 1986 issue has contained at least one article written by Buck. During this period there have been dynamic changes in criminal justice. Since October 1986, in the Federal system, lawyers have witnessed the implementation of the Federal Sentencing Guidelines, several significant landmark Supreme Court decisions, and the very important Batson decision affecting the way that juries are seated. The start of the War on Drugs, several decisions limiting rights under the 4th Amendment, mass incarceration, and a general belief that the 5th Amendment was just for the protection of the guilty were issues that left much to be concerned about for criminal defense attorneys in 1986.

This month TCDLA and, with its cover, the Voice for the Defense honor Buck Files. No one has provided more material to the Voice and CDLP than Buck during the last 40 years. Buck has written a staggering 200 articles. Most members have never written one. Each has been submitted before the deadline, properly cited and ready for publication. Not once has he missed a deadline. Twice he researched, wrote, and delivered his article from a hospital bed. He has been to the editors of the Voice as Cal Ripken Jr. has been to baseball.

If you have known Buck for the last 40 years, you will notice one thing has never changed. He has always worn a blue three-piece vested suit, a white shirt, a burgundy tie, with his glasses perched on the top of his head. So far as anyone knows he has worn this signature ensemble since the ‘70s—until it became fashionable again in 2016. This speaks to Buck’s consistency and sense of tradition in both his personal and professional life. One of the most interesting characters that seem to always be in trouble with the Feds and who catches Buck’s attention is the venerable “Waldo Snerd.” Mr. Snerd has been indicted, convicted in multiple Federal cases, and frequently is the unfortunate fellow that has his name printed in the Voice. Buck has followed Snerd for years. Anytime Waldo Snerd gets into trouble there is Buck following his case. We are fortunate for Snerd and for Buck’s Voice articles about Snerd’s legal problems, as we always are given a new arrow to put in our legal quiver.

Buck is a legend in the courts of East Texas and has tried some of the most important cases in Texas during his 53 years of practice. In the high-profile State of Texas vs. Deana Laney case he became one of the few criminal defense lawyers who successfully obtained a verdict of Not Guilty by Reason of Insanity. Recently Buck, Stan Schneider, and Casie Gotro in Paroline v. United States, No. 12-8561, won a decision in the U.S. Supreme Court that limited damage claims in child pornography cases. Presently, he is working on a research project on Federal Forfeiture which portends to be a tour de force on the subject.

The credentials and accomplishments of Buck Files in the law are almost unprecedented. Buck is a Past President of the State Bar of Texas, a Charter Member of TCDLA, a member of the TCDLA Hall of Fame, and a former director of TCDLA. In June he becomes the first criminal defense attorney and TCDLA member to be Chair of the Texas Bar Foundation. Buck is Board Certified in Criminal Law and was in the charter class in 1975. He was a Marine Corps officer during the Vietnam War. He graduated from Austin College with a BA. He holds an MLA and a JD from SMU Law School. Buck is most proud of his wife of 54 years, Robyn, his two children, and three grandchildren. Buck is a founding partner in the excellent law firm of Bain, Files, Jarrett, Bain and Harrison, P.C., in Tyler.

The Texas Criminal Defense Lawyers Association and its 3,200 members this month honor Buck Files for the publication of his 200th article for the Voice for the Defense and look forward to another 200.

President’s Message: Reflections of 43 Years and Challenges Ahead – By Bobby Mims

/

More than 43 years ago a group of lawyers decided that a separate organization devoted to the training, education and support of criminal defense attorneys was needed. These lawyers literally drove all over Texas collecting money to start the Texas Criminal Defense Lawyers Association. For years this small band of brothers and sisters worked and fought to prevent the erosion of the rule of law. From that small group the TCDLA has emerged as the largest and most effective state association of criminal defense lawyers in the United States.

Among the members of this association are some of the finest lawyers in the nation. Some are nationally known superstars, but all are courageous fighters for justice. Every day in every court in Texas TCDLA lawyers confront power and advocate for the defendant. Every TCDLA member stands shoulder to shoulder with criminal defense lawyers as they walk into the courtrooms of Texas. There are few more cohesive groups than the members of this association.

I am reminded of past victories and challenges of TCDLA lawyers. The great lawyers of the past are benchmarks for the lawyers of today. Today criminal defense lawyers are challenged like never before. The erosion of the 4th Amendment, invasion of privacy, attack on the judiciary and the jury system by forces inside and outside of the legal profession are faced daily by TCDLA lawyers. The Patriot Act, NSA surveillance, parallel investigations and out right perjury by government agents in the name of national security are the known challenges facing criminal defense attorneys. We are fortunate to live in a time when the country needs criminal defense lawyers as never before.

TCDLA is on the cutting edge of legal training and provides the best criminal defense training in the nation. As forensic science evolves, TCDLA will continue to be at the forefront in training the criminal defense bar. TCDLA and its members will continue to set the standard of practice for criminal defense representation during the 21st century. There has been progress in educating the public and the judiciary about the perils of junk science. Texas has made significant progress in protection of the accused by reform of eyewitness testimony, arson science, DNA exonerations, lineups,and compensation for the wrongfully convicted. The Indigent Defense Commission and the Innocence Project of Texas are led by TCDLA lawyers. The Forensic Science Commission has been depoliticized, and its chairperson is a scientist. There have been improvements in the investigation and correction of crime labs, and incompetent analysts have been exposed and dismissed. There is a need for an independent Forensic Science Lab under the Forensic Science Commission. This should be a priority for the next legislature. This independent lab should be created immediately by the Legislature and forensic evidence testing removed from the Department of Public Safety. The avoided cost of exoneree compensation alone might justify the investment.

The Morton Act appears to be having a positive effect on prosecutors, as evidenced by the recent spate of voluntary disclosures of crime lab errors. Many prosecutors are requiring that the police provide statements that they have fully complied with delivering Brady and other materials favorable to the defense to the prosecutor along with the case file. Many in the law enforcement and prosecution communities appear to be mindful of the events of Williamson County. There will likely be calls to modify the Morton Act in the next legislature by some of these interests. TCDLA will resist all efforts to roll back Morton but rather will seek to improve the Act to give even more protection.

As we go forward with an excellent group of Officers and Directors, supported by the best professional staff in the business, TCDLA members can be confident that they have the support of the organization. TCDLA will have increased challenges and obligations, and members may be asked to provide more resources since the association has taken on more obligations in service to the membership, to the public, and to the legislature. TCDLA is dedicated to assisting legislators as they consider new legislation to resist any further erosion of individual rights. TCDLA will be very active at the legislature, ready to provide assistance to leaders as they formulate laws affecting our members and clients.

Recently, the nation observed Memorial Day by honoring those who made the ultimate sacrifice for America and the Constitution. As this organization was being formed more than 43 years ago this nation was embroiled in the Vietnam War. America was more divided than at anytime since the Civil War. Those founders saw the need to bring warriors for justice together to defend the Constitution and formed the TCDLA. We honor our veterans, as we should, but you, the TCDLA criminal defense lawyer who goes to court every day armed with nothing more than the law and your skill, do as much to defend freedom and the Constitution as I ever did when I wore the uniform in that war more than 43 years ago.

It has been an honor to have served as the 43rd President of the Texas Criminal Defense Lawyers Association. Of the things in this life that I am most proud, besides my family, it’s that I am a member of the TCDLA and a criminal defense attorney.

Bobby Mims

President’s Message: A Strong Organization of Loyal Members and Volunteers – By Bobby Mims

/

The TCDLA membership exceeds 3,200 criminal defense lawyers with members in practically every county in Texas. Each year TCDLA sponsors more than 50 seminars to train lawyers in the latest trial tactics and cases and statutory law. TCDLA, with the assistance of a grant from the Texas Court of Criminal Appeals, trained over 5,300 lawyers statewide. TCDLA seeks to give its members the training to provide the best criminal defense representation possible for the unfortunate accused.

TCDLA relies upon the volunteer service of its loyal members. At each seminar there are course directors who are selected for their special expertise to design the curriculum, obtain the speakers, and promote the seminar. These seminars are set in locations that hopefully give a reasonable opportunity to members practicing in all areas of Texas to obtain continuing education. Additionally, these seminars are periodically redesigned to implement new developments in the law and to address new issues. An attempt is made to make each of these seminars both timely and relevant. Much work goes into the planning and implementing of these seminars. The greater portion of the work is done by our professional staff and course directors. There is always a tension between the need to provide the highest quality training and holding down expenses. The revenue realized from these seminars is used to provide services to the membership and keep dues as low as possible. It is vital to the financial health of TCDLA to operate as economically efficiently as possible while fulfilling the mission of the organization.

The course directors and speakers are all volunteers who give up their valuable time to TCDLA and its members. These are some of the best lawyers in the country recognized for their expertise. These course directors have undertaken a special responsibility to the membership and to the organization by designing a curriculum that is timely. Course directors must change periodically to give effect to new ideas and provide fresh outlooks for our seminars. With each new set of course directors comes new speakers to present on timely topics from a different perspective.

Presently, the most dynamic changes are in the DWI training. The emphasis is now on blood training to give members the latest and best training in how to provide representation on blood draw cases. TCDLA is blessed with some of the best DWI defense lawyers in the country. For more than 10 years, TCDLA and the National College of DUI Defense (“NCDD”) have jointly sponsored the Mastering Scientific Evidence (“MSE”) seminar. Recently the leadership of both organizations met and negotiated a long-term agreement to continue the relationship between the organizations and to continue the seminar until at least 2017. The MSE seminar has been held in New Orleans for the last several years and is attended by DWI lawyers from all over the U.S. and Canada. The MSE is the brain child of Troy McKinney, who serves as its course director with TCDLA Past President Gary Trichter. The MSE seminar provides state-of-the-art DWI defense training and is an example of the skill and expertise of these course directors.

In Texas, TCDLA has added an additional training seminar to be known as the Lone Star DWI seminar, which is scheduled to initially be held in Austin in July 2014. The Lone Star seminar will emphasize blood training and has scheduled as speakers the brightest DWI defense lawyers who have actually tried and won blood test cases. This seminar will become the fourth annual seminar dedicated solely to DWI defense. TCDLA will continue to sponsor the advanced DWI law seminars known as Top Gun DWI in Houston, the DWI Defense Project in Arling­ton, and the Stuart Kinard Memorial Advanced DWI Seminar in San Antonio.

Not everyone has the skill and the expertise to serve as a course director. However, it is vital to the continuing development of the organization and to the program of continuing education to develop new speakers, new course directors, and to give opportunities to younger members with the skill to also become speakers, course directors, and leaders. It is commendable that some loyal course directors have set aside personal desires and stepped aside with good grace to give others an opportunity to serve the organization. TCDLA members owe a special debt of gratitude to these course directors who have made these seminars the best in the nation. The next time you see one of these excellent lawyers, please personally thank them for their service, their dedication and their loyalty to their 3,200 sisters and brothers in the finest criminal defense organization anywhere.

Bobby Mims
President

President’s Message: Hope for the Crumbling Federal Prison System? – By Bobby Mims

/

Recently it has become apparent that the federal prison system is crumbling from overcrowding. In 1980, the federal prison population was approximately 25,000 people, but since then it has grown exponentially—over 800 percent. Currently, the Federal Bureau of Prisons (“BOP”) has custody of nearly 219,000 people. The agency’s facilities are operating at almost 40 percent over capacity. With less than 5 percent of the world’s population, the U.S. has more than 25 percent of the world’s prisoners. The average cost per inmate to the taxpayer is more than $28,000 per year. That is unsustainable, and incarcerating nonviolent offenders is a poor use of the taxpayer’s dollar.

Congress passed the Fair Sentencing Act (“FSA”) in 2010 to equalize the guidelines for crack and powder cocaine. However, the act was not retroactive and only applied to sentencing imposed after the effective date of the FSA. This was the first effort to address some of the unfairness in sentencing, but the act did not do much to slow the growth of the federal prison population.

Recently, Attorney General Eric Holder has directed all U.S. Attorneys to draft complaints so that the mandatory minimum provisions would not apply to low-level nonviolent drug offenders. More recently, Deputy Attorney General James Cole addressed the New York Bar Association, calling upon defense attorneys to identify federal inmates sentenced to long prison sentences that would not be imposed if they were convicted today. Deputy AG Cole has requested that the criminal defense bar assist the U.S. Attorneys in identifying low-level drug offenders who no longer pose a threat to public safety and whose “long-term incarceration harms our criminal justice system” . . . for possible commutation of sentence. A qualified petitioner is one who has a clean record in prison, who does not present a threat to public safety, and who is facing a life or near-life sentence that is excessive under current law.

There have been signs that there are efforts in the Department of Justice (“DOJ”) to review some of these old marijuana cases that resulted in long prison sentences. After all, Washington and Colorado have legalized the possession and use of marijuana. The DOJ advised that they would not enforce federal marijuana laws in those states so long as strict regulations were imposed and enforced under state law. The DOJ essentially advised that they were taking a “hands-off but watchful eye” policy on the enforcement of federal marijuana laws in those states. These developments have drawn into stark relief the unfairness of federal inmates serving long sentences based on old convictions that if the crime occurred today would not even be enforced.

Last September I met with federal officials in the Western District of Texas about a 1996 case involving a Jamaican who had been indicted, tried, and convicted of possession for the mere possession of marijuana seeds. The West Texas federal jury had convicted him, and the court sentenced him to 35 years pursuant to the sentencing guidelines. With the cooperation of the Assistant U.S. Attorney who had prosecuted him, this individual’s sentence was reduced to “time served” pursuant to Rule 35 by the same Judge who sentenced him. He was turned over to immigration authorities and deported to Jamaica. He has been reunited with a family he has not seen in many years. I try not to tell “war stories,” but this example is offered as indicative, at least to me, that something encouraging may be underway in the DOJ.

Pending in Congress is the Smart Sentencing Act (“SSA”), which has bipartisan support in the House. This bill seeks to reduce the statutory mandatory minimums for some low-level drug cases and expand the “Safety Valve” provision. The SSA also, if enacted, would make the FSA retroactive as well. There is an unusual coalition of supporters from the right and left wings of the political spectrum to reduce prison populations. Both have different reasons for supporting the reduction of prison population, but the effect would be the same if the SSA is enacted.

Presently, it is encouraging that in the federal prosecution bar there appears to be an effort to “look back and do justice” in some cases. Members of TCDLA should encourage this hopeful development and render assistance. Many prosecutors and judges are dismayed at the severe sentences the present federal law and guidelines impose. The “tough on crime” policies and the “war on drugs” have forced this situation on the public. The SSA, if adopted, could give some relief to the system and correct some of the injustices that have been imposed in the past.

Members are encouraged to review their old files and identify cases for review by the DOJ. There is no guarantee you will get relief, but at least in some circumstances you might find that the door is open at the U.S. Attorney’s office.

Bobby Mims
President

President’s Message: State of the Association at the Close of 2013 – By Bobby Mims

/

As 2013 closed and as 2014 began, it is time to review the state of the Texas Criminal Defense Lawyers Association. In doing so it is informative to review 2013 and set out the challenges of 2014.

When 2013 began the TCDLA was faced with a multitude of proposed legislation that would greatly impact the practice of criminal defense and the people of the State of Texas. TCDLA lobbyists and leadership took on the challenge of advising the legislature and leaders about this legislation. Some proposed new laws were allowed to “die in committee” while others were passed signed by the governor. The Michael Morton Act was the most significant criminal justice legislation out of the last legislative session, and TCDLA had a great impact on its final language.

The TCDLA leadership has determined that one of the most important roles of this association was to be involved in the legislative process. A decision was made by the board in September to augment lobbying efforts and allocate additional resources. A decision was made to employ full-time personnel to assist the paid lobbyists and to have a permanent presence at the Capitol.

TCDLA began a participation with the Texas Indigent Defense Commission (“TIDC”) in a study of Indigent Defense programs in Texas. TCDLA and TIDC agreed to participate with Texas A&M Research Group and gather data on the practices of actual criminal defense lawyers in indigent cases. At the close of 2013 more than 200 TCDLA members had volunteered to participate in the study.

The American Bar Association Task Force reviewed the capital murder statutes in Texas and published its evaluation, making suggestions to improve the capital murder system. The TCDLA has called for a moratorium on executions until the legislature and the leaders have had an opportunity to decide whether to address these suggestions. Presently there does not appear to be an actual mechanism under the law to impose a moratorium unless the judiciary generally abates setting execution dates until action by the governor and the legislature in 2016.

As 2013 closed the association is on sound financial ground. The professional staff and comptroller have improved the accounting procedure, and audit exceptions are rare and have been corrected. The Board of Directors approved the employment of outside auditors Montemayor and Hill & Company to audit the association. The results of this audit will be made available to the TCDLA Budget Committee and available for review by members when it is completed in April 2014.

The Challenges and Opportunities for 2014

TCDLA along with the Criminal Defense Lawyers Project (“CDLP”) sponsors about 50 seminars a year to train criminal defense lawyers. Recently there have been indications that some seminars have seen a reduction in attendance. This may be attributable to seminar fatigue, the economy, or to the success of the past training. One of the concerns expressed by some is that the DWI seminars have saturated the market and more such seminars will diminish the established programs. Others hold that more DWI training is needed in areas of the state where members do not have access to the big seminars in New Orleans, Houston, San Antonio, and the DFW metroplex due to expense. There are some issues in our important partnership with other associations that need to be addressed. The leadership is actively working to resolve these issues. TCDLA and its members are fortunate that we have the best DWI lawyers in the country volunteering to train Texas lawyers.

The Board of Directors of TCDLA has hired an excellent lawyer to serve as General Counsel. This position has been vacant for three years, and the association has relied on outside counsel for legal advice. The new position will assist in publication revision, coordinate with capital counsel, provide legal advice to the Board and the professional staff, and will co­or­di­nate lobbying efforts with paid lobbyists. This is a signifi­cant organizational event for the association. This position will improve the functioning and efficiency of the organization. The General Counsel will assume duties on March 3, 2014.

TCDLA will call on its Capital Assistance Committee to work with the Legislative Committee to propose legislation seek­ing to address the issues that were raised by the ABA Task Force on capital murder. The challenge will be to draft proposed legislation that has a reasonable chance of enactment. TCDLA has an excellent cadre of experienced capital defenders as a resource and some of the most effective lobbyists who can advise on what legislation is likely to pass.

In December an ice storm required the Board of Directors meeting to be canceled. The leadership decided to reschedule and relocate the meeting to Lubbock in conjunction with the TCDLA and Lubbock Criminal Defense Lawyers Association’s “34th Annual Prairie Dog Advanced Criminal Law Seminar.” Also the TCDLA Nominations Committee met and nominated its slate of officers and board members for election by the membership for 2014–2015. An excellent slate of candidates has been nominated for these offices. TCDLA has a goal to enhance diversity in leadership positions, and the nominations committee slate advances toward this goal.

Looking out to 2016, it is likely that the President of TCDLA and the President of the NACDL will both be Texans, TCDLA members, and excellent criminal defense lawyers from Austin. TCDLA will work closely with NACDL on a seminar and other event planned for Austin to celebrate this significant event, which should enhance the relationship of the two sister associations.

There are other opportunities and challenges for 2014. The members of this association make up the largest state criminal defense association in the country. Our members are the best trained lawyers in the nation and provide the best possible legal representation for the accused. We are more than 3200 strong and growing. We are on sound financial ground and operate efficiently. Our professional staff is the best in the business and continually seeks for ways to improve service to the membership and to the public. Our relationship with our affiliate organizations is solid, and we have added several new affiliate organizations in important areas of Texas.

As 2014 begins, the state of the Texas Criminal Defense Lawyers Association is “SOUND!”

Best wishes for all in 2014.

Bobby Mims
President

President’s Message: Criminal Discovery—A New Law and New Obligations for Defense Counsel – By Bobby Mims

/

On January 1, 2014, the Michael Morton Act becomes effective. This law represents a “sea change” in criminal discovery in Texas. However, it also imposes new obligations and responsibilities on criminal defense lawyers. With this landmark legislation come new obligations and responsibilities for defense counsel.

As officers of the court each criminal defense lawyer is obligated to provide zealous defense of the accused within boundaries of the law and the canons of ethics. However, the legislature has now imposed obligations on prosecutors, defense counsel, and judges to form a closed “universe” for criminal discovery. The thrust of the Michael Morton Act is to make criminal discovery more transparent between the parties. However, this legislatively mandated transparency is strictly limited to only those who have a need to know within this “universe,” and your client may not be one of those entitled to know everything. Defense counsel will have the obligation to redact certain information provided by the prosecution. In the event that counsel wishes to disclose, or the prosecutor wishes to protect, the Act provides that the court should make appropriate orders.

During the legislative process the parties were involved in protracted negotiations. Some of the prosecution interests opposed the Michael Morton Act because they did not trust defense counsel to act responsibly with the full disclosure of discovery. Responsive to those concerns, the legislature imposed limitations on defense counsel and the dissemination of discovery. Defense counsel may not disseminate discovery outside of the defense team and may not give copies of discovery to defendants. The defendant can view the discovery, properly redacted, but may not be given copies.

There are other reasons for withholding discovery from the defendant as a means of client management. My law firm has a long-held policy of not disclosing discovery to defendants until we have obtained a full and credible debrief. This promotes truthful disclosures to counsel and avoids having clients fabricate stories to fit the discovery. Additionally, when an incarcerated defendant is provided copies of discovery, it frequently finds its way into the facility “grapevine,” and jailhouse snitches suddenly appear to “parrot” back exactly what is in the discovery. It is in the interest of counsel as effective advocates to treat discovery very confidentially and only share with the defendant as needed to provide for his or her defense.

Some defense lawyers have expressed concern about their ethical obligation to turn over files to the defendant after the case is closed. After all it is the client who owns the file. However, the statute gives guidance and protection to defense counsel to withhold discovery. The file may be the property of the defendant, but arguably, all discovery contained therein is held in trust by defense counsel and may not be disclosed without compliance under the statute or protection from the court. This Act prohibits the dissemination of discovery except in some very limited circumstances. There will be litigation in this area as the law matures and cases are decided.

The Texas District and County Attorney Association has started training programs for prosecutors to educate them on their obligations under Brady and the Michael Morton Act. TCDLA has scheduled training to educate defense counsels on their obligations to protect against the dissemination of discovery that would violate the act. This edition of the Voice for the Defense contains several articles from respected defense lawyers that may be used as a starting point for understanding the new obligations of defense counsel.

In this “new world” of criminal discovery in Texas, it is hoped that the parties involved, the prosecutors, defense counsel, and the judges will remember that each is an important part of the judicial process. Each has an obligation to the system and to its integrity. Prosecutors should embrace the new law as a tool to settle cases, where they show the defendant their evidence and challenge the defense to “take their best shot” to attack their case. Defense counsel should accept this new responsibility to protect against the dissemination of discovery. Judges should promulgate appropriate orders reflecting the intention of the legislature. All should embrace this act to seek better justice and to promote transparency in the discovery process.

Some may disagree with me, but I do not see prosecutors as the enemy. I see prosecutors as “worthy adversaries” in the judicial process. I am of a generation of criminal defense lawyers who believe that lawyers should be the zealous opponents inside the courtroom but colleagues outside. Recently, my friend and mentor, Buck Files, charter member of TCDLA and immediate past president of the State Bar of Texas, has advanced The Lawyer’s Creed as a guide for all lawyers. He has challenged Texas lawyers to observe the Creed. At the heart of the Creed is “civility” between prosecutors, defense counsel, and judges.

While The Lawyer’s Creed is aspirational, it can also be a guide for defense counsel, prosecutors, and judges as they navigate this new world of discovery in Texas. In this sense members of the Texas Criminal Defense Lawyers Association can accept the new mantle of responsibility, welcome the new world of transparent discovery, and do justice to the act—which bears the name of a man who has suffered from the worst of abuses.

Bobby Mims
President

President’s Message: A Landmark Study in Indigent Defense and a Professional Opportunity! – By Bobby Mims

/

The members of TCDLA have an opportunity to participate in a landmark study that will impact justice in Texas for a generation. The legislature has ordered the Texas Indigent Defense Commission (“TIDC”) to conduct a Weighted Caseload Study “for the purpose of determining guidelines for establishing a maximum allowable caseload for a criminal defense attorney that… allow the attorney to give each indigent defendant the time and effort necessary to ensure effective representation.

In this issue of the Voice for the Defense, Jim Bethke, the Executive Director of TIDC, has written “Improving Indigent Defense Through Research & Data,” which explains the project and requests the help of all TCDLA members. This project is the most important indigent defense effort in Texas since the Fair Defense Act was enacted 12 years ago. It is common knowledge that indigent defense is one of the most politically unpopular and chronically under-funded parts of the entire criminal justice system. The Constitution and the law demand that indigent defendants be provided defense counsel and that they be effectively represented. However, hard data does not exist that policy makers can rely upon or that appointed counsel can urge to obtain proper funding. The legislature has directed that this project be undertaken to generate data to form the basis for rational decisions about indigent defense funding of resources. With the data generated by this study, a strong case can then be made to officials that adequate resources should be made available to defense counsel.

The TIDC has partnered with the Public Policy Research Institute (“PPRI”) at Texas A&M University to conduct the study. This fall, PPRI in coordination with TCDLA will begin recruiting attorneys to participate in this study. The PPRI and TCDLA will seek 500 attorneys who are willing to volunteer and to participate in the study. Those who volunteer will be trained in the use of timekeeping software, then asked to record the time spent on cases for 12 weeks. The final report will be issued in December 2014.

I realize that timekeeping and hourly billing is one of the reasons that we in the criminal defense business prefer to use flat fees. However, those of us who are CJA panel attorneys in the Federal courts keep our time on a one-tenth hourly basis. Those of us who accept criminal appointments also keep time on an hourly basis, and all capital defense time is reported on an hourly basis as required by most indigent defense plans in Texas. The software that will be provided will have the incidental effect of providing volunteers with an opportunity to evaluate their practices to see if they are spending time in the most efficient manner possible.

I urge you to accept this challenge to assist the TIDC, TCDLA, and the PPRI in this landmark study. Your work and data will be used as a benchmark for years by policy makers. In early November representatives of Texas A&M University’s PPRI will begin contacting attorneys to participate in the study. This is an important opportunity to make a valuable contribution to the criminal defense profession that will have a lasting effect on justice in Texas.

This is a very worthwhile project, and I call on TCDLA members to participate and volunteer. If you are willing to be part of this project, visit http://texaswcl.tamu.edu , or just send an email to the project director, Dr. Dottie Carmichael, at . Those who volunteer will be recognized for their contribution in the final report to the Legislature—and will know that they have been a part of this important landmark study to benefit the criminal justice system in Texas.

Bobby Mims
October 2013

LISTEN TO AUDIO (MP3)

President’s Message: Is It Time for a Moratorium on Executions in Texas? – By Bobby Mims

/

On September 18, the American Bar Association’s Death Penalty Due Process Review Project released its latest report entitled Evaluating Fairness and Accuracy in State Death Penalty Systems: The Texas Capital Punishment Assessment Report (An Analysis of Texas’s Death Penalty Laws, Procedures, and Practices). The report is focusing on the fairness and accuracy of Texas’ death penalty system. In summary the findings of the report stated: “In many areas, Texas appears out of step with better practices implemented in other capital jurisdictions, fails to rely upon scientifically reliable methods and processes in the ad­min­is­tration of the death penalty, and provides the public with inadequate information to understand and evaluate capital punishment in the state.”

Many of us who have been involved in capital defense for years already know too well the unfairness of the capital murder scheme in Texas. There does not appear to be any consensus among the members of TCDLA about whether the death penalty should be abolished or continue to be implemented. However, there is little doubt that a vast majority of our members support the right to a fair trial under the Constitution and laws of the United States and Texas. In many ways the evils that the Supreme Court found in Furman v. Georgia, 408 U.S. 238 (1972), still prevail in the current death penalty scheme. The report brings into stark relief what Texas capital defenders have been stating for years.

The ABA Team consisted of two law school professors, a former Federal Judge (and now a law-school dean), a former U.S. attorney, the chair of the litigation section of a large civil law firm, a former justice on the Texas Supreme Court, the former chairman of the Texas Department of Corrections, and a former governor of Texas. The importance of the ABA’s report filed by the Texas Capital Punishment Assessment Team is that it takes no position on the death penalty regarding whether it should be abolished or not. Rather, the report seeks to point out the areas where Texas needs to improve the process in order to ensure that the death penalty is administered fairly and constitutionally.

The assessment made several recommendations to help prevent wrongful convictions and improve due process, including requiring the indefinite preservation of biological evidence in violent crimes, abandoning the law’s emphasis on predicting the “future dangerousness” of the defendant in deciding death sentences, and enacting appropriate statutes to deal with capital defendants with intellectual disabilities and severe mental illness. The report commended Texas on recent improvements to its justice system, such as the 83rd Legislature passing and the governor signing the Michael Morton Act. The report commended Texas for adopting better lineup procedures, disclosure of police reports to the defense, and the establishment of Regional Public Defenders for Capital Cases in a large part of Texas and the Office of Capital Writs to provide capital habeas representation throughout the state.

There is no question that the issue of “future dangerousness” is the most confusing to lawyers and judges, but most particularly is confusing to jurors. It’s misleading and “often turns on unreliable scientific evidence,” and, in my opinion, is intentionally “fear based” in an effort to motivate/scare a juror to answer the issue in a manner that will result in the death penalty. As the report properly stated, “the defendant’s alleged future dangerousness is placed at the center of the jury’s punishment decision.” One of the report’s recommendations was that “expert testimony as to a defendant’s propensity to commit criminal acts of violence must be prohibited, whether by statute or by rule.” Some, such as a capital murder juror, will recoil when asked to predict the future in order to decide whether some person lives or dies.

Much has been documented and said about the issue of prosecutorial misconduct and the failure to disclose exculpatory evidence. There have been 12 exonerations of death row prisoners since 1976. The Texas District and County Attorney Association has undertaken to emphasize training in Brady and other issues since the passage of the Michael Morton Act. It is hoped that this will ameliorate in some manner future abuses. However, the fact remains that since 1976, Texas has sentenced to death more than 1,000 men and women who did not have the benefit of protection of the Michael Morton Act. It is unknown if there is an innocent among the nearly 300 who remain on death row. We do know, and the ABA report sets out in stark clarity, the problems with the death penalty scheme in Texas. Presumably each of these inhabitants of Death Row has been tried and convicted under the present law with its imperfections.

Texas leads the nation in executions since 1976 with 504 through September 19, 2013, including 12 so far in 2013. Some members have called for a “Moratorium on Executions in Texas” until these issues have been dealt with by the lawmakers. Certainly our policy makers want a system that is constitutional and fairly implemented if Texas is going to have the death penalty. Under the present state of the law, there may be no mechanism to implement a moratorium. If so, then this is another failure of the law to protect its citizens and should be addressed by the policy makers and the lawmakers. In any event it would seem that it is reasonable to stop any further executions in order to give time for our legislature to hold hearings and to implement changes in the system that are deemed appropriate. After all, if the state seeks to execute one of its citizens it should ensure that all due process has been obtained so that the people can be assured their criminal justice system has not made a mistake.

Now is the time for the governor and the legislature to show leadership on this critical issue of criminal justice and act promptly on considering a moratorium on executions.

There are those who will say that it’s working just fine, and that Texas has made tremendous progress in a more fair crim­i­nal justice system. That may be true, but when lives are at stake and the fairness of our system that decides who should live and who should die is in question, we should make time in our pursuit of justice.

Is it time for a moratorium on executions in Texas?

Bobby Mims
September 2013