Emmett Harris

A resident of Uvalde, Emmett Harris has primarily practiced criminal defense for the last 35 years. Twice president of the Uvalde County Bar Association and past president of the Border District Bar Association, he has served as a member of the Board of Directors and the Executive Committee of TCDLA and has spoken at numerous seminars. He also served as Editor for the organization’s magazine, Voice for the Defense. Emmett has previously served as Secretary, Treasurer, Second Vice President, and First Vice President of TCDLA.

President’s Message: A Swan Song – By Emmett Harris

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There is an ancient belief that swans, though silent or not so musical during life, sing a beautiful song just before death. Thus the metaphorical phrase describing a final gesture, effort, or performance given just before death or retirement. This will be mine. While I certainly have no plan to die, I do plan to step aside at Rusty Duncan and welcome Mr. Sam Bassett as our next President of TCDLA. He has been and will continue to be a fine leader of our association. Now as I toddle off the stage let me leave these few thoughts with you.

First of all I thank Joseph Martinez and his staff for their encouragement and support during this last year. They are remarkable people who understand what TCDLA is all about and who are absolutely dedicated to our purposes. There is not enough ink in the word processor to list all of their contributions. They treated me with kindness and professionalism on every step of the way.

Then to my executive committee a standing ovation is due. They are: Sam Bassett, John Convery, David Moore, Mark Snodgrass, Kerri Donica, Michael Gross, Susan Kelly, Edward Mallett, and Bill Harris. Not only did they serve at our quarterly board meetings, but they also spent countless hours on a zillion telephone conferences working with me on the pesky kind of problems that came along. Their patience and wisdom were amazing.

This was a legislative year, and we were well served by Mark Daniel, Chair of our Legislative Committee, Allen Place, Patricia Cummings, David Gonzalez, and Kristin Etter. We had strong and effective voices speaking for us in Austin.

Thank you to all of the course directors who organized our seminars; to our CDLP committee, led by the wonderful Jani Maselli Wood; to Kameron Johnson, our TCDLEI chair; and to Robb Fickman for continuing our Independence Day readings.

Our CLE work is simply unrivaled. Grant Scheiner and Danny Easterling continue to carry Top Gun in Houston. Larry Boyd did great work recently in Arlington. Mark Thiessen and Deandra Grant continue to show the way to take science into the courtroom. In short, there is no other DWI training that can approach the excellence of ours. Again, thanks to Bobby Mims we are enjoying a good team effort at MSE in New Orleans. Tony Vitz stepped into the gap and led our psychodrama program to its best event yet at Round Top.

Nicole DeBorde, Casie Gotro, and Stan Schneider have valiantly come to the aid of our fellow criminal defense lawyer, David Dow. I believe that you will hear from them at Rusty.

In short, TCDLA is living up to the motto—United We Stand.

And now, a few more words about Joseph. I spoke with him almost daily this past year. Perhaps only a past president can fully understand what Joseph does and who he is. He is more than an extraordinary executive director. He is a good human being with a huge heart. I had occasions to watch him reach out to members who were in crisis and see his heart breaking for people who were hurting. He loves us and is committed, heart and soul, to this association.

So, from one retiring, but definitely not dying, swan to the rest of the marvelous swans of TCDLA, I bid a fond farewell. TCDLA is united and stronger than ever. See you, my heroes, at Rusty Duncan in San Antonio. Vaya Con Dios.

Emmett Harris

President’s Message: Our Lives, Our Fortunes, and Our Sacred Honor – By Emmett Harris

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Had you been standing around at the State House in Philadelphia on July 8, 1776, you would have been among the first to hear those words from our nation’s birth certificate read aloud in public. You would have heard loud shouts, huzzas, firing of muskets and bells (including the “liberty bell”) ringing all day throughout the city. Thus began our tradition of Fourth of July celebrations.

This 4th of July our members will read these words from courthouse steps all over the State of Texas. Last year we were in 74 counties. This year we want to be in at least 100. Why are we doing this? Why is this important? One needs only to watch televised on-street interviews to see the absence of knowledge about current civic events or history. One survey found that more people knew the names of judges on “American Idol” than knew of the phrase “government of the people, by the people, and for the people,” or that it came from Lincoln’s Gettysburg address. So I say that we need to do what we can to remind people whence we/they came.

The signers of the Declaration were not being melodramatic when they pledged to support their declaration with their lives, fortunes, and sacred honor. They meant it, and they made good on their pledges. Some of them lost their lives in the war. Some of them who survived lost their homes and lands. Some of them died as paupers. But none of them ever lost their honor. We should do nothing less than remember their sacrifices with public readings of their words. Because of this declaration we, to this day, continue to be free and independent and to enjoy the unalienable rights of life, liberty, and the pursuit of happiness.

The nation that was born through this declaration was young and, it can be argued, far from perfect. Some of the signers owned slaves. Women were far short of suffrage. Native Americans were referred to in the declaration as “merciless Indian Savages.” We had a long way to go, but the nation created by this declaration has become our nation today, now dedicated more than ever to the proposition that all are created equal. Ours is a nation that enjoys freedoms the likes of which have never before been seen. Our nation was indeed conceived in liberty and should never be allowed to perish from the earth.

President Lincoln spoke of a “great civil war, testing whether that nation, or any nation so conceived, and so dedicated, can long endure.” The Declaration of Independence marked our conception, and we have long endured. May God continue to bless the United States of America.

So please do not miss the opportunity and privilege of remembering and honoring our nation’s birth certificate. Organize a public reading in your home county. You’ll be glad you did.

President’s Message: The Sun Will Come Out Tomorrow – By Emmett Harris

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“The sun’ll come out tomorrow.
Bet your bottom dollar that tomorrow there’ll be sun.”
                                                                —Annie

We just closed the page on another calendar year. It’s a good time for reflecting on 2014 and gazing into 2015. Hoping not to sound like those “Holiday Letters” that we get, first, let’s take a look back at this past year.

Most of the statistics that follow are drawn from our fiscal year rather than a calendar year, because that is just how our home office keeps the records. These numbers cover FY 9/1/13–8/31/14. What they show is that our membership increased from 3,202 to 3,302. During that period we put on 53 CLE seminars and 38 online CLE events. During that period we trained 6093 lawyers across the State of Texas. Thank you, Kelly Pace (Tyler) and Jani Maselli Wood (Houston), our CDLP chair and co-chair, respectively.

Last July we launched a new Lone Star DWI seminar in Austin, which drew an attendance of over 250. Thank you, Deandra Grant (Dallas) and Mark Thiessen (Houston), our course directors.

Our long-standing DWI seminars, Top Gun in Houston and Stu Kinard in San Antonio, continued to thrive. Thank you, Grant Scheiner (Houston), Danny Easterling (Houston), Mark Stevens, Michael Gross, and Adam Kobs (all from San Antonio), our course directors, respectively.

Our presence at the Mastering Scientific Evidence (MSE) New Orleans seminar in late March, co-sponsored with the National College for DUI Defense, continued and has been extended in duration. Thank you, Bobby Mims, our past president.

Our Round Top IV psychodrama event was another success, thanks to Tony Vitz (McKin­ney), our course director.

Once again, under the able direction of Lydia Clay-Jackson (Conroe) and Tim Evans (Ft. Worth), we presented the inestimable Texas Criminal Trial College in Huntsville.

TCDLA’s membership has increased in number and diversity.

Looking ahead, we have added to the strength of our presence and voice in the upcoming legislative session. We are well equipped to resist erosion of the Michael Morton Act. Thank you, Allen Place (Gatesville) and Patricia Cummings (Austin).

Shortly after the conclusion of our 2014 Rusty Duncan Seminar, work began on 2015’s Rusty Duncan with the theme of “United We Stand.” It should be the best ever. Thank you Lance Evans (Fort Worth), Laurie Key (Lubbock), Dan Hurley (Lubbock), and Sarah Roland (Denton), our course directors for this year’s Rusty Duncan.

We just finished a fantastic 34th Annual Prairie Dog seminar in co-sponsorship with the Lubbock Criminal Defense Lawyers Association (LCDLA) in Lubbock, with attendance in the three CLE over 300. Thank you, Brian Murray, president of LCDLA.

In short, TCDLA continues to be a strong and dynamic organization. Now, not all of this occurred without some distractions. There were a few, but throughout it all, we remained united and dedicated to our purpose of training lawyers, and helping the citizens accused—i.e., those who can’t help themselves.

That is why, with the confident spirit of a little orphan named Annie, you can bet your bottom dollar that tomorrow for TCDLA there’ll be sun.

President’s Message: Strength in Unity – By Emmett Harris

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What does it mean when we say we are an association? How do we, all 3,000-plus of us, go about the business of associating? The secret is in deciding what we mean when we join efforts and interests in a common cause.

So I asked Shirley MacLaine to see if she could channel up former President John F. Kennedy and ask him if he had any advice for us. She did, and he said (you can see this one coming, right?): Ask not what TCDLA can do for you. Ask what you can do for TCDLA. All right. I was just messing with you. I didn’t really talk to Shirley, but it is not bad advice.

When we decide, as we have, that we have common interests and that we can benefit by the strength numbers provide, then we join or “associate” to pursue them. All 3,000 of us. We have committed to encouraging cooperation with each other and presenting the best continuing legal education product possible. Most of the time we succeed. Sometimes we hit a rough patch of pavement that tests the strength of our commitment to continue “associating.”

To each of you who have accepted the responsibility of serving on a committee, being a course director at a seminar, speaking at a seminar, or serving on the associate board or board of directors or as an officer, I say thank you. These services require significant amounts of time away from your practices and real self-sacrifice on behalf of the association. What I want you to think about is what has motivated you to do so. My hope is that self-promotion or ego massage is way down or off the list of reasons that have motivated you. We are all over the State of Texas handling everything from shoplifting to capital murder. Some of you take on varied misdemeanors and felonies. Some of you have more specialized practices. Each of you by joining this association has taken on responsibilities and duties owed to the whole group. You have accepted a fiduciary loyalty to the association. This is the price we all pay for the privilege of being a part of an association. It is a small and appropriate price, given the goals of TCDLA to encourage cooperation among members and to educate lawyers.

We may not always vote unanimously on a particular decision. We may occasionally find ourselves on the losing side of a particular question. It would be odd indeed if every vote were blindly unanimous. When there are differences and they are settled, then we move on as a united and effective association. To do otherwise would not do justice to the association and the responsibilities we have accepted as members. To march off to the tune of a pied piper would be a shame. Let that never be the case. This association needs the wisdom and input of every one of you. I’ve said it before. United we will stand. United our potential is limitless.

President’s Message: Part of the Solution – By Emmett Harris

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Maybe it is my age. Geezerdom may be descending on me and affecting my view of the world. I am bothered by the notion that our world is populated by self-absorbed people who are focused solely on themselves and lack any interest in who we are as a nation and where we came from. One need only to watch the man-on-the-street interviews on television to see evidence that the interviewees are essentially ignorant of history. They can’t identify national leaders or place within 50 years the dates of the civil war, not to mention what it was all about. What they can do is speak with confidence about who is “twerking” whom and who has posted the latest “selfie.”

Therefore, please allow me to use this space to do the following: first to talk about our Independence Day readings, and second to talk about an additional project that I want to propose.

For several years now we have gathered at courthouses around the state and read the Declaration of Independence. This last July we did so in 60 counties, and we are beginning to have readings in other states around the country. A huge thank you is due to each one of you who has participated thus far. In particular I want to thank Robert Fickman for the countless hours he has spent encouraging us to be involved. He is a true believer in this effort. Without him we would not be where we are with this project. My challenge is to see this important event grow much larger. Please contact me or Robb Fickman as soon as possible and let us know of your interest. We need to shout it out from the rooftops—or at least the courthouse steps all over this state—that this declaration is no less than our birth certificate. It says where we come from and who we are. The social media crowd needs to hear it, and we should try to get more media coverage in every community where it is read.

My other idea is that in February of each year in connection with Constitution Day we should be out in front of these same courthouses reading the Bill of Rights. Just today there was a news item about a survey of high school students in which only four percent knew that the first ten amendments to the Constitution of the United States was called the Bill of Rights. Very few were able to list the three branches of the government. I don’t know whose fault that is, but I know that we could be a part of the solution. TCDLA needs to lead the way in public readings of the Bill of Rights. I’m calling for volunteers to work on a February Bill of Rights reading. If you are interested please contact me or Robb so that we can get started.

President’s Message: Responding to the Call – By Emmett Harris

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Eight years ago when I walked into these pages as editor of the Voice I spoke about the nature of who we are, what we do, and why we do it. Having written in our last issue about renewing our attention to our purpose as defined in our bylaws, I wanted to remind you of my thoughts on the subject. Please allow me to redeliver that message as it appeared here in 2006.

whom shall I send,
and who will go for us

  —Isaiah 6:8

Jem Finch was devastated by the conviction of Tom Robinson. His father has lost a case Jem thought surely was won. The all-white, all-male jury had taken the word of the Ewells over the obvious innocence of Tom. One of the neighbors, Miss Maudie, said to Jem: “I simply want to tell you that there are some men in this world who were born to do our unpleasant jobs for us. Your father’s one of them . . . We’re the safest folks in the world[.] . . . We’re so rarely called upon to be Christians, but when we are, we’ve got men like Atticus to go for us.” (To Kill a Mockingbird, Harper Lee)

We have been called upon to “go for” the accused. Just as surely as Isaiah’s God asked him the question in the title, we are faced with the question of who will stand and speak for the person charged with crime. Those of us who have answered that we will, and have taken on that responsibility as criminal defense lawyers, must surely realize that in a very real sense it is a calling. We do our society’s unpleasant jobs. We fight to make it safe. How we respond to this calling defines us—not merely as lawyers, but as human beings. I don’t know if we were all born to do it, but I do know that many of the men and women I have been privileged to meet through TCDLA must have been.

So why did Miss Maudie describe our job as “unpleasant”? Why did she suggest that we are responsible for people’s “safety”? It is unpleasant because too many people do not presume innocence. It is unpleasant because too many people do not place the burden of proof on the prosecution. It is unpleasant because too many people do not respect the defendant’s right to silence. It is unpleasant because too many people do not care if we do anything about it. It is critical to the safety of our society because too many people do not grasp how inclined they are to sacrifice their own constitutional rights, and what their lives would be without them.

Atticus had said: “Scout, simply by the nature of the work, every lawyer gets at least one case in his lifetime that affects his personally. This one’s mine I guess.”

Let me tell you about one of mine. About 16 years ago I defended, unsuccessfully, a man who was convicted of rape based on the DNA testimony of a man named Fred Zain. I remember that, notwithstanding my cross-examination, the jury loved him. I thought he was an arrogant blowhard. What I did not know was that he was either the world’s leading incompetent forensic scientist or a perjurer. Four years later when Zain was found out, I was able to get Gilbert Alejandro returned from prison and eventually vindicated. There was, of course, no way to give him back the years he had spent locked up for a crime he did not commit. This case affected me personally in two ways. First, I felt personally to blame despite the fact that Zain had fooled many juries before mine. Second, I met a brilliant lady named Cynthia Orr, because she was handling a Zain case at the same time I was dealing with mine. Through her friendship and encouragement, I got involved in TCDLA. But for her I might still be relatively ignorant of our fantastic organization. Through TCDLA I have met, and am now privileged to call my friends, a number of modern-day Atticus Finches. Just being in their presence is a reminder of the scope and critical importance of our calling. They teach me why we must do our society’s unpleasant jobs and keep it safe. They also teach me how.

So I invite each of you to become more active in TCDLA. Talk to the officers and directors in your area, and discuss how you can become more involved. I look forward to serving you as editor of the Voice. I hope that I can contribute to it positively. I may make future references to Mr. Finch. I believe there is much for us to learn from him.

Now, listen as Jem’s little sister, “Scout,” watches her father’s lonely walk out of the courtroom:

I looked around. They were standing. All around us and in the balcony on the opposite wall, the Negroes were getting to their feet. Reverend Sykes’ voice was as distant as Judge Taylor’s: “Miss Jean Louise, stand up. Your father’s passin’.”

As you respond to the call to speak for the accused, may each of you be so blessed to have such said of you some day.

Emmett Harris
President

President’s Message: United We Stand – By Emmett Harris

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As I took the oath of office at Rusty Duncan I remembered the line from the Robert Redford movie, “The Candidate,” where, to his surprise, he has been elected, looks at his handlers, and asks: “What do we do now?” Here are my suggestions for some answers to that question.

First of all, I give another salute to my predecessor, Mr. Bobby Mims. I watched and learned from him during his presidency as he sacrificed countless hours and miles navigating your association through occasionally challenging seas. He was and is a remarkable and diplomatic leader. Thanks to him we now have a newly minted agreement and relationship with the National College of DUI Defense and its excellent Mastering Scientific Evidence seminar in New Orleans.

High on our to-do list is our legislative effort. We have added a new member to our team. Patricia Cummings is our new addition to the legislative arena. You had a chance to meet her at Rusty, and I’m sure you saw what an extraordinary asset she will be leading and personifying us in the legislature.

We have created a new committee, the Listserve Committee, which will be chaired by Past President Bill Harris. This committee will formulate a specific structure to improve the quality and service of our listserve. It will also monitor and deal with questions or complaints concerning the use of the listserve by our members.

We are looking at new ways to reach out to law schools and attract new lawyers to our membership.

Here is what I think we do next. This may be a very good time to think about who we are. What is our purpose? What are we supposed to be up to? Our bylaws (our constitution) say:

Article II—Purpose

The purpose of the Association shall be:

To protect and ensure by rule of law those individual rights guaranteed by the Texas and federal Constitutions in criminal cases;

To resist the constant efforts which are being made to curtail these rights;

To encourage cooperation between lawyers engaged in the furtherance of these objectives through educational programs and other assistance;

And through this cooperation, education, and assistance to promote justice and the common good.

Did you catch that phrase “to encourage cooperation between lawyers”?

Are we encouraging cooperation between lawyers engaged in ensuring individual constitutional rights? How so? Are we encouraging cooperation or engaging in competition between lawyers?

Now, we are all fighters. We do not suffer any deficiency of ego. We do not lack self-confidence. There are now over three thousand of us in this association spread across this huge state, from multi-storied firms in big city buildings to modest one-lawyer offices in small towns. We will inevitably have different views on particular issues, and we practice in an adversarial arena. There is an element of combat in what we do, and the deck is always stacked against us to some extent.

The public, from which our jurors come, is not inclined to embrace the presumption of innocence. It is not inclined to embrace our client’s right to remain silent. It is inclined to hold that silence against our client. It is not inclined to place the burden of proof on the state. It is not inclined to respect what we do as advocates for the accused.

And what is the health of those constitutional rights the curtailment of which it is our purpose to resist? How about the constitutional scholars who teach that our Constitution is no longer of any value, was written by a bunch of pre-industrial revolution slave-holders and should be abandoned? You can put that in the curtailment column. How about the steady erosion of the Fourth Amendment and the exclusionary rule? And how about the difficulty of arguing the issue of “expectation of privacy” in our cyber world?

Yes we are all fighters, and we had better be. There are, indeed, “constant efforts to curtail” constitutional rights. The answer to what we do now is that we continue to fight… but for Pete’s sake, not with each other! Let’s re-embrace that important part of our purpose and enthusiastically, energetically, encourage cooperation between our brother and sister lawyers. We do not have the luxury of fighting ego-driven turf wars within our association. We do not have the luxury of using our association merely as an arena for self-promotion. We will not let it be said that we took our eyes off the ball because we were scuffling around in the mud fighting with each other. Rather let it be said that we were united in the pursuit of our true purpose. We must always fight, but we must fight united as those who are dedicated to promoting justice and the common good.

It is a high and humbling honor to be your president. I encourage each of you to dedicate yourselves to the noble purpose of this association. United we will stand. Have a wonderful fun year rediscovering the joys of encouragement.

Emmett Harris
President