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.

President’s Message: A System in Crisis and the Wrong Remedy – By Bobby Mims

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The rights guaranteed by the Constitution and as told in the Gideon v. Wainwright decision of 50 years ago are being dismantled. The right to counsel guaranteed by the Sixth Amendment and as promised by Gideon is being seriously eroded by budget cuts in the Federal Defender Service and reduced and delayed payments to CJA Panel attorneys.

In Texas, and across the nation, the Federal Defender offices have been the subject of terminations, layoffs, and furloughs of attorneys and staff. Additionally, the government has held up payments to appointed defense counsel, causing financial hardship for solo practitioners and small firms. This is causing an immediate crisis in indigent defense for the country. Already, the indigent resources were limited and the professionals within the system overburdened. With these recent budget cuts and layoffs, our court system is at risk of losing 50 years of progress.

On August 19, 2013, the date of this message, U.S. District Judge Catherine C. Blake of the DC Circuit announced that the Executive Committee of the CJA had decided to defer into FY 2015 up to four weeks of panel attorney payments that otherwise would be payable in FY 2014. Further, the Executive Committee voted to reduce, by $15 per hour, the panel attorney compensation rates for capital and non-capital case representations, which the Judicial Conference has otherwise authorized pursuant to 18 U.S.C. § 3006A(d)(1). This reduced rate is applicable for work performed from September 1, 2013, through September 30, 2014. In other words the sequestration is falling mainly on the defense bar.

This will have a devastating impact on the federal indigent defense system. Our federal criminal justice system cannot be sustained unless all components—prosecution, judiciary, and defense—receive adequate and stable funding. Already this year, deep cuts to the federal public defenders’ budget have required significant layoffs, furloughs of 15–20 days, and the complete elimination of defender training. Further cuts necessitating massive layoffs will almost certainly decimate the federal defender system, degrade the overall quality of federal indigent defense, and undermine the administration of justice. To avert the crisis, Congress will have to restore funding to the Defenders Services account, but the politics in Washington do not bode well for this.

As Federal Defenders are required to turn down cases, indigent defense costs will simply be transferred to pay for court-appointed counsels, who now will be ordered to provide defense services at a discount. Any savings achieved will fall on the backs of the private bar and CJA Panel attorneys. Every federal defendant without resources to hire an attorney is entitled to government-paid counsel; therefore, the notion that savings can be achieved by reducing the federal public defender budget is simply incorrect. The reduction of rates paid to CJA Panel attorneys will reduce the pool of competent attorneys willing to accept indigent cases. Already, judges are cutting vouchers for those being submitted, resulting in financial hardship for many of our members. This is likely to become worse in the coming months, and it would be prudent for members to adjust their finances accordingly.

Recently TCDLA members Warren Wolf and Bud Ritenour argued and won Trevino v. Thaler, 569 U.S. ___ (2013), before the Supreme Court of the United States. In that case, SCOTUS would only appoint one lawyer, so Warren was appointed. Bud was thus precluded from filing any vouchers for his work. Warren was paid much less than his voucher by the court—which he generously shared with Bud. These excellent lawyers were forced to finance the defense out of their own purses. This is an instance where they were denied funding and suffered reduced payments on a case they won. This is an example of the dedication and commitment that criminal defense lawyers have for their case and client. The reduction of rates and the delay of payments by the courts to such lawyers is an attack on the principals of Gideon. I am concerned that this is a glimpse of the future for counsel and for indigent defendants.

The judiciary predicts delays and postponements, which will increase the time defendants spend in expensive pretrial detention facilities. In addition, many federal defender offices that manage the local panel of court-appointed attorneys will be forced to abdicate that responsibility to the judiciary, resulting in increased administrative costs and diminished efficiency despite the reduction of rates paid to panel attorneys.

I frequently hear candidates for high office ask to be elected because they will “run the government like a business.” Besides the obvious that government is not, nor should it be, a business, it is apposite to state that the decision to cut expenditures for the most basic purposes is something that no competent business would do when faced with financial problems. You do not go out of business to stay in business.

The investment made in indigent defense pays huge dividends by ensuring the innocent are acquitted and the guilty con­victed. In Texas, at the state level, we have witnessed the cost of wrongful convictions when indigent defense was inadequate. Millions of taxpayer dollars have been paid to individuals wrongfully convicted and later exonerated. The investment in providing adequate funding for indigent defendants is not a dis­cretionary expense item in the budget. Instead, as Gideon established, it is a basic necessity of the American criminal justice system. Rather than the first item to be cut in the budget, it should be among the last.

A criminal justice system is vital to a free society and de­mocracy. The rule of law is basic to a free society. In the Amer­i­can system of government, an independent judiciary is the engine of freedom. The zealous defense of the individual before the awesome power of the government is a vital limit on government. Without an independent judiciary and a zealous advocate for defendants, democracy cannot long survive. It is vital to democracy and to justice that the poorest of society be most protected in the criminal justice system.

Many fear the rise of governmental power, the militarization of police, and the invasion by intelligence agencies into the privacy of Americans. A free and independent court system and the unassailably right to trial by jury are absolutely vital to democracy. However, within that system only the criminal defense lawyer stands between the citizen accused and the awesome power of the government.

As the Federal Defender Service is being dismantled, it is vital to freedom that the criminal defense lawyers of the Texas Criminal Defense Lawyers Association become even more vigilant in the protection of individual rights of our clients.

Bobby Mims
President

President’s Message: Discovery and the Legislature – By Bobby Mims

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I begin my service as the 43rd President of the Texas Criminal Defense Lawyers Association (“TCDLA”) at the conclusion of 83rd Regular Session of the Texas Legislature. During this session TCDLA lobbyists were able to craft legislation that may result in some of the most significant changes in the practice of criminal defense in Texas in a generation.

At the start of every legislative session, for as long as one can remember, there have been legislative proposals by prosecutors for the defense to be required to provide “reciprocal discovery.” In the past this has been the most divisive issue within the TCDLA and the most insistent demands by the prosecutors. Individually, District Attorney offices have realized that an “open file” policy is good business for the management of their offices. Open file policies promote the settlement of cases and the movement of dockets. As of this writing it is estimated that 90 percent of Texans live in a jurisdiction where the DA has some form of open file policy.

At the start of this legislative session the prosecution forces were, under the guise of agreeing to a statutory open file policy, demanding that the legislature mandate “reciprocal discovery” for the defense. Their proposal would have required a criminal defense attorney to provide the prosecutor with his list of witnesses, their witnesses’ statements, and a notice of defenses in advance of trial. The environment of the multiple exonerations that have occurred in Texas over the last few years, the highly publicized exoneration of Anthony Graves in Washington County, and the more highly publicized Michael Morton case in Williamson County operated to put much political pressure on the legislature to “do something.” Incredibly the “do something” was to demand discovery from defense lawyers. It was the paradoxical position of the prosecutors and a few misguided friends of the criminal defense bar that this would solve the problem of wrongful convictions. They were very close to “selling” this to the legislature.

TCDLA and the Harris County Criminal Defense Lawyers Association (“HCCLA”) joined forces and, along with TCDLA lobbyists, met with legislators and stakeholders to oppose any bill that contained a reciprocal discovery provision. Michael Morton and his lawyers met with the leaders of TCDLA and HCCLA to discuss the reasons why both organizations opposed reciprocal discovery. During these meetings the Morton forces became allies and also opposed reciprocal discovery. Indeed, during the markup of these bills and the negotiations, the prosecutors were faced with an array of opposition to reciprocal discovery that included members of the judiciary.

During the pendency of this legislation the TCDLA Board of Directors passed a strong resolution opposing reciprocal discovery, clearly stating that no one spoke for TCDLA at the legislature other than our lobbyists. This resolution was a strong statement to the legislature and to the public that the 3500 members of the TCDLA stood absolutely against any form of reciprocal discovery. This “froze” the politics in Austin, causing the prosecution interests to relent and agree to support a statutory open file policy. They dropped their demand for reciprocal discovery from the defense. This is an incredibly important development for the practice of criminal defense and for the public in Texas. This issue is resolved for the foreseeable future. The efforts of our lobbyists were very successful, and we owe them a debt of gratitude.

This year the confluence of political forces in the legislature fortunately favored the defense and the righteous position of the TCDLA. This will not likely be the situation in the next session. The challenge for the leadership of this organization over the next two years is to be better prepared for the 84th legislature.

We are underfunded in our legislative efforts. We must find funds to have a continuing presence at the legislature. Our lobbyists dedicate incredible time to this effort, but they have their own practices to which they must attend. We must find additional funds to augment our legislative efforts or we are going to be incapable of meeting the legislative challenges in 2015. The leadership has been meeting to address this situation, and a recommendation will be made to the Board of Directors at the September meeting.

There are many other challenges for TCDLA in the next year, but at least for now the legislature has spoken on discovery and the governor has signed this legislation into law.

I am honored to serve as the 43rd President of the finest organization in the country. We are made up of more than 3500 criminal defense lawyers who daily stand against the power of the government. You can be proud to be a criminal defense attorney and a member of the TCDLA.

Bobby Mims
June 2013

LISTEN TO AUDIO (MP3)

TCDLA Affiliate and Rural Practice Committees

Mission Statement of the TCDLA Affiliate Committee

by Bobby Mims

“The Affiliate Criminal Defense Bar Committee seeks to promote the establishment of local county and/or city crimi­nal defense bar associations in order to promote the mission of TCDLA at the grassroots level. This committee will also advise and assist members who seek to form and/or strengthen their organizations by providing pro forma bylaws and organization materials. Additionally, this committee will work with the Criminal Defense Lawyers Project Committee to coordinate criminal law seminars held in all areas of the state in conjunction with TCDLA affiliates which are seeking to stimulate growth of the local organizations and thereby growth to TCDLA. The Committee will advise the officers and staff of TCDLA on methods to establish clear lines of communication between TCDLA and local affiliate organizations in order to ensure that the state organization is cognizant and responsive to the concerns of the local membership.”

Committee:

Mimi Coffey, Sharon Curtis, Harold Danford, John Gilmore, James Granberry, Deandra Grant, Bobby Mims, Doug Murphy, Katherine Scardino, Gary Thomas, and Christopher Tritico

Activities:

Presently TCDLA has 32 affiliates associations. Presently TCDLA members are organizing new affiliates in Corpus Christi and Texarkana. The existing organization in Corpus Christi appears to have been subsumed by the Nueces County Bar Association and has ceased to function as solely a criminal defense association, and meetings are attended by civil attorneys, prosecutors, and judges. Recently, two members advised that they were disenchanted and stated that “TCDLA does nothing for the lawyers in the Coastal Bend.” Joe Martinez has forwarded copies of bylaws to one of our members in Corpus. The Trail Tactics: The Art of War seminar was held on August 26, 2011, in Corpus Christi. This is a huge geographical area with a large population presently under-served by TCDLA. Re-establishment of an affiliate in Corpus and the Coastal Bend is a priority of this committee.

Charles Pelowski of Texarkana has volunteered to start an affiliate in Texarkana as the Bowie County Criminal Defense Lawyers Association. We have never had a significant presence in Texarkana other than our members, and this area is another demographic that is under-served by TCDLA. There are good opportunities to add membership if we can establish an active and effective affiliate in Texarkana. Charlie Pelowski is one of our brightest young members and is presently with the Bowie County Public Defender’s Office in Texarkana. We may add members who are licensed in Arkansas as well as Texas. If we plan a seminar in that area, we may even be able to have CLE approved by the Arkansas State Bar and attract participants that would otherwise not be available and realize revenues generated from out-of-state sources.

The committee asks for input from the membership on other areas that need attention, and we are looking for opportunities to expand the service to all members wherever they are located in Texas.

Report of the Rural Practice Committee

by Theodore A. (Tip) Hargrove III

El Presidente created a new committee called Rural Practice, and we are glad he did! Criminal defense for those of us who live and/or work in Hooterville can be quite different than that seen by our brothers and sisters in the city. Example: A defense lawyer in a small rural county wants a bench trial on a misdemeanor domestic assault case. The county judge is not a lawyer. The defense counsel and the prosecutor, who are on a first-name basis, go see the county judge with whom both are on a first-name basis. The county judge is friends with the defendant’s family and wants to recuse himself. The three of them talk about it for a while and agree that the defense at­tor­ney can draft for the county judge a letter to the dis­trict administrative judge asking for someone to be appointed. Defense counsel and the prosecutor agree on a couple of choices and off the letter goes. Can you folks in Gotham City imagine doing such a thing? Probably not, but those facts—and they are facts—illustrate many of the things that we are discovering about rural practice.

Shortly before Rusty, the Rural Practice Committee sent out a questionnaire to any and all who classified themselves as rural practitioners. The results are interesting. The first thing we discovered is that rural practitioners don’t like to fill out questionnaires! Some of what we have to report here is based on a spotty response so take all this with a grain of salt.

First, there appears to be more male rural practitioners than female, and usually at or past middle age. The percentage that are board certified is rather low. That is likely a function of economics. Very few rural practitioners indicated that they could survive on criminal defense work alone. The vast majority handle family, real estate, probate, and various other areas of civil prac­tice. A fair number of responders even indicated that they represented the local bank or credit union. Virtually everyone handles family law cases in addition to criminal defense. With a few exceptions, rural practitioners have a large number of appointed cases each year. There was only one person who practiced in an area where it was possible to opt out of appointed work. Most indicated that they were not allowed to opt out if they accepted criminal cases for pay. This is quite a contrast to urban areas where attorneys compete for appointed clients. In the rural areas many are overwhelmed by appointments and wish they had fewer. One responder indicated that he had averaged 72 appointed cases for 10 years in a row. That same practitioner reported that one third of his total criminal and civil case load was appointed criminal while one ninth of his income was from appointed criminal.

That leads to the next area of questions which, concern whether or not the rural practitioner felt that the fee paid for appointed criminal cases was fair. Most indicated that “fair” was the wrong word. Few believed the fee received was fair, but most indicated they could live with it. Most also indicated that they had little trouble actually getting the judge to sign an order for payment; that is probably related to the fact that most rural practitioners know their judges on a first-name basis.

The average rural practitioner sees the same judges and same prosecutors every day. Most are on friendly terms with the judge and prosecutor. Only a few growled that they could not get along with the judge and/or pros­e­cutor with no explanation as to why. Very few responders indicated they ever had to take punitive action against the judge or prosecutor, and very few in­di­cated any experience with the grievance committee. That probably means problems are handled internally on a face-to-face basis behind closed doors rather than within the formal disciplinary process.

Virtually every responder indicated the computer was essential to their practice. Most used some form of ad­ver­tising but of a “low key” nature. You just don’t put up a billboard or have a TV ad in Pecos, Texas.

Everyone wanted to collect their fees up front and few ever got it. Most admitted they had to work on a pay-out basis, and many times were stuck with collecting only a partial fee.

Our responders came from counties from all sizes, with at least one saying he lived in a county of 750,000 people. It seems clear that many of us consider ourselves to be rural practitioners although we live in the city. That means we travel to small counties and do not mind doing so.

When it came to seminars, most wanted those that did not extend beyond two days and were on Friday and/or Saturday. The requested topics were varied but centered on DWI and scientific evidence. We surmised—partly from personal experience—that when you live in the country you drive around with a cold beer in your hand.

The committee was gratified, and TCDLA should be too, with the responses concerning what we were do­ing right or wrong. Most responders indicated that TCDLA was helpful, and that nothing was missing in the way of effort extended by the organization.

Now to what is needed. Everyone wanted to know how to get access to information. While the List Serve was applauded, it was also deemed to be, at times, overwhelming. In addition, it was difficult to anticipate which gems to save and which ones to delete. That leads us to a suggestion or two. The rural practice committee would like to improve access to resources. There is a lot of information out there, but how do we get to it? Here is an example. Frequently, the List Serve refers to a wonderful article in the Harris County Criminal Defense Lawyers Association publication, The Defender. How is a lawyer in Paducah, Texas, going to get that? Perhaps the large-county TCDLA af­filiates could provide for an auxiliary membership for non-locals. I personally have joined the Harris County Criminal Defense Lawyers Association to have access to The Defender although it is unlikely I will ever attend a meeting. We also wonder why we can’t establish not just a brief bank but a memo bank as well. Many times a one-page analysis of a particular sub­ject that should be preserved somewhere will show up on the List Serve. The comments of Michael Mowla and Leonard Martinez are prime examples. We need a place for those things to go so we can find them on an as-needed basis. Fact situations that occur in Dallas or Houston on a daily basis may occur in Marfa only once a year, and while Mr. Mowla responds every time he is asked, he shouldn’t have to do that. Hopefully a better system of gathering and indexing our resources would be a benefit not just to the rural practitioner but to the membership no matter where located.

The Rural Practice Committee will continue to function and gather information on the country lawyers of Texas. Hopefully, the more we know the more we will be able to help. It is good to know that rural prac­ti­tioners like and appreciate our organization. We pledge to continue to strive to do an even better job for our members and TCDLA.