John A. Convery

It’s hard to believe that this is my last President’s message! That means my year as the President of TCDLA is coming to an end, and it has just flown by. What a ride it has been!

Initially, I was going to write more about some of the bills moving in the Texas Legislature related to sexual behavior, the new offense of indecent contact, definitions of consent, the crime of bestiality—or some other bills of importance, like the 300-page rewrite of the code or the bill that would eliminate sales tax on your morning pastry as long as it is served cold (except kolaches—don’t worry, they can be hot or cold and avoid the tax!).

But, upon some reflection, I feel like we will collectively hear about new laws in June at Rusty Duncan, so instead of discussing more potential bills while there is still a month left in the 85th Legislative Session, I decided to use this last Voice message to reflect on the last year and successes of TCDLA.

TCDLA remains the lead defense attorney organization providing critical services to our membership. Our heavy-hitters Strike Team had to stop everything in a few cases and go to the rescue of an individual member being targeted by a judge. Our Amicus Committee prepared and submitted several briefs that we hope will help judges align with the right point of view and catalyze change on important issues.

TCDLA put on a total of 125 defense-attorney or defense-team training programs—including 48 seminars on location and 77 online courses—to ensure that our members have the latest and most reliable information as they take on serious criminal cases. More than 5,675 defense attorneys and team members attended the seminars held statewide. The reviews from attendees are generally glowing, and attendees report that they learn new and innovative ways to defend their cases from our trainings.

Not that I have any bias, but certainly the President’s Trip CLE put on in the Voyager of the Seas Conference was a highlight of the year—we had great speakers, learned and laughed in the sun. In some cases, we learned too much information about our colleagues.

TCDLA has faced a number of challenges this year as well. Our staff has worked tirelessly to put together these amazing and creative CLEs. Our financial staff has worked to ensure complete compliance with the terms of our grant from the Court of Criminal Appeals. The TCDLA audit, completed in February 2017, indicated no issues that were out of standard compliance.

Our legislative team has—and is still—working long days ensuring that our clients are protected from unfair legislative efforts to undercut our clients’ statutory or constitutional rights. In the waning days of the Legislature, they are watching prosecutors or other interest groups who may attempt to put in amendments with which we disagree. Already we have seen huge successes from our lobbying team—not the least of which is insisting that preventive detention be taken out of the pretrial release bill—so now, our clients will not be held without bond while their cases are pending.

We all know that the success of a leader, a director, or a President is the quality of his or her staff. I believe that TCDLA has an amazing and committed staff, for which we members and leaders should be grateful. I hope to stay involved so that there is continuity among our leaders and institutional memory about important decisions. And, most importantly, I wish every success for our new President, David Moore, as he takes on the gavel and the responsibilities it represents.

You all might remember my President’s Message from last November, in which I shared information with you about our legislative efforts related to pretrial release. Since then, both Senator John Whitmire and Representative Andrew Murr filed identical bills, and it is expected that they will be heard very soon in both chambers. In the past four months, as negotiations have taken place, the bill has morphed, sometimes favorably and sometimes not. TCDLA has had a seat at the table during these negotiations, and as a result, we have been able to insert favorable language and compromise positions on sections about which we do not agree.

Given the widespread implications of these bills, I thought it fitting to write about it again now to make sure our members know about the good and the ugly. These bills contain two major and distinct concepts, the first of which represents good, positive reform that will directly affect our clients and the section of which is just ugly, as it allows for defendants to be held without bond for the duration of their case in charges other than capital murder, to include any felony or jailable misdemeanor.

Let’s start with the good in these bills. It is encouraging that the Texas Legislature is taking a hard look at the reasons our county jails are overcrowded and how the process could better ensure that low-level, nonviolent offenders would be released early in the process. We know that more than forty thousand defendants are currently held in county jails, resulting in an annual $1 billion price tag to the counties. The cost to our clients who find themselves in these situations is dire—defendants held in jail are more likely to plead guilty to get out of jail, and they risk losing their jobs, homes, and families.

First, while asking for increased state funding and recognizing that all existing forms of bond and bail should remain in effect, the legislation calls for an amendment to the Texas Constitution that would create a presumption that all persons charged with a crime in Texas are entitled to pretrial release through personal bond. The bills seeks to require that all Texas counties adopt and implement a validated risk-assessment tool that would be given to all defendants arrested for jailable misdemeanors and felonies, prior to magistration. The results of such an assessment would be used to place defendants along a risk scale and as a factor in determining appropriate bond conditions and supervision.

This risk assessment is important. The ideal risk assessment—which would objectively provide courts with information necessary to determine bond and to serve the interests of the criminal justice system—is one in which there is no need for an interview and the score is based on prior convictions or failures to appear. The Office of Court Administration, should the bill pass, would establish a model risk assessment for counties to use—such as the assessment made by the John and Laura Arnold Foundation in Houston. The assessment will focus on the only two criteria that courts should evaluate: what is the risk of the defendant failing to appear and what is the likelihood that the defendant will be a danger to the community. Because of these specific topics, the Arnold Foundation assessment considers a defendant’s background related to prior failures to appear, if any, and prior convictions (not just arrests) for violent crimes.

Both of the bills also include a provision that no indigent defendant can be held on the basis that they cannot pay the personal bond fee, an issue that has caused thousands around the state to stay in jail after they have been granted a personal bond.

The position of the bill authors is that the system faces two problems—one, that low-level nonviolent people are being held too long in the county jails and two, that some individuals who have the financial ability to post nearly any amount of money are being released when they really should stay in jail. Because this is an inherent philosophy, both instances are being addressed in this legislation. Therefore, Senator Whitmire and Representative Murr are also proposing to amend the Texas Constitution to provide that defendants posing a high risk of flight and/or a danger to community safety may be held in jail without bail pending trial after certain findings are made and a detention hearing held. While the expressed goal regarding this provision is to prevent flight or a community safety threat by those with affluent means, expanding the class of individuals who can be held without bond pretrial beyond those charged with capital murder is, understandably, concerning to us and other legislators.

This process—known as preventative detention—is enumerated as follows. A magistrate or a judge can find by clear and convincing evidence that bail or the conditions of pretrial release are insufficient to reasonably ensure the person’s appearance in court or the safety of the community or the victim on the alleged offense. Upon that finding, the decision to continue to hold a defendant without bond and therefore trigger a preventive detention hearing rests in the hands of the state. Should the state proceed, a detention hearing must be held no later than 10 days after the initial magistrate or judge’s denial of release. The state may not continue the case past those 10 days, but the defense can if we need more time to prepare.

At the detention hearing, defendants will have the ability to present witnesses and evidence related to the case. During the hearing, the Judge must consider a number of factors, including the weight of the evidence and the likelihood that the evidence would be admissible, as well as the history, mental condition, employment, past conduct, and character of the defendant. If the court makes a finding by clear and convincing evidence that setting bond would not reasonably ensure the defendant’s appearance in court or the safety of the community or the victim of the alleged offense, it can order that the defendant be held without bond. If such a finding is made, the Court must make written findings as to its justification for such a detainer.

The bills also enumerate a specific right to appeal such a finding to the Court of Criminal Appeals and would give this Court the responsibility of rule-making to accelerate this process. Given the breadth of topics the Courts can consider, including the weight of the evidence and its admissibility, it is imperative for the defense to be provided with discovery in advance of the hearing with enough time to prepare for the hearing.

After much review and analysis, the TCDLA Legislative team and leadership believe that some of the recommendations for reform to the pretrial release procedures are sensible, strategic, and good—and therefore, will have our endorsement and support. However, the expansion of preventive detention gives overly broad discretion to magistrates and judges to trigger the process in any case they choose.

TCDLA supports the provisions in the bill that will result in the pretrial release for a class of defendants—those who have nonviolent charges. However, TCDLA does not support the expansion of preventive detention, despite the scope of the detention hearing to which defendants would be entitled. TCDLA will continue to advocate for specific change and protections should this legislation pass over our objection.

Ahoy, friends! We just returned from the TCDLA President’s Retreat and had a great time. The 7-day cruise took us to Mexico, the Grand Caymans, and Jamaica. It was a good opportunity for rest and relaxation, combined with high-quality CLE presentations, fellowship, and friendship. And we had a nice turnout—more than 60 TCDLA members and their families joined us on the Liberty of the Seas out of Galveston. Members spent time together on a beautiful beach in Jamaica and at a delicious steak dinner aboard ship. It was fun to spend time with people purely on a social basis and get to know family members. Our own Mark Thiessen received ship-wide attention by winning a highly coveted award! If you see him, ask him about it!

We were on the cruise on Valentine’s Day—which meant people all over the ship were celebrating their love for and commitment to their partners. Hearts were affixed to cabin doors, flowers were abundant, and, of course we know, those three special words—“I love you”—were shared between couples. All of these things—being on a cruise, enjoying time with friends and family, and having an amazing partner to share my life with—made me feel very grateful for the blessings in my life.

As I reflected on that, I thought about friends and colleagues who might be struggling right now. I thought about those who are dealing with depression, anxiety, substance abuse, or other addiction issues that are keeping them from fully enjoying their lives. And so, while I could spend this entire article talking about the cruise, I want to talk about how to help those suffering with these issues and how to ensure that we all are taking care of ourselves while doing this incredibly stressful work.

We all know that lawyers are at high risk for experiencing substance abuse and other mental health issues. Studies show that lawyers are 5 times more likely to struggle with these issues than other people, and that 18–20% of lawyers abuse drugs. Why are these numbers so high? The American Bar Association issued a statement to try to answer that question: “Because many lawyers and judges are overachievers who carry an enormous workload, the tendency to ‘escape’ from daily problems through the use of drugs and alcohol is prevalent in the legal community.” This makes sense, especially in light of another statistic about our community, that the average lawyer works 60–80 hours a week.

Just as these issues affect lawyers with all sorts of practices, TCDLA has seen some of our members struggle with depression and mental health issues, and some have had these issues completely ruin their lives. Given what we know about the statistics and seeing our friends hurting, the questions remain. How can we best help our friends who find themselves trapped in these situations? And how can we individually ask for help when we need it? Both of these questions are tough.

No one wants to approach a friend or colleague and tell them that you are worried about them, that you see danger signs, and that you want to help. Sometimes being that honest is scary. It could damage a friendship and cause the person you care about to withdraw.

And let’s face it—lawyers will not easily admit they need help. We thrive on and succeed on our ability to have everything in our control. We need to be in control and we need to convey to everyone else that we have it all figured out. Understandably, if someone sees a crack in that armor, that feels like failure. We will do anything to keep that from happening.

Similarly, that constraint, that is really ego-based because it’s premised on perceptions that aren’t necessarily true, is what keeps us from asking for help. This inner dialogue that we have it all worked out and that we can handle whatever situation we are in, is our enemy. We can see what is happening to our lives. We withdraw, we become less social, we deal with it in silence because we listen to that voice. Even when things get really bad—when we miss work obligations, have family problems, or financial issues—we tell ourselves that we’ve got this! We can turn it around. Even if things are bad now, we are smart enough to solve the problem without help. The ABA had it exactly right. We are over-achievers. In a lot of ways, our brains are our own worst enemies in getting help.

All of us know that each of these issues from depression to substance abuse represents a mental illness or disease. Yet it still carries such a stigma that we seem not able to accept that. To us, it still feels like a weakness, or a choice, or a failure. There are abundant resources available at our fingertips, and if you don’t know about the Texas Lawyers Assistance Program of the State Bar, please find them online. It is a strictly confidential service to attorneys who struggle with any mental health or substance abuse issue. The staff at TLAP know how hard it is for attorneys to fight against the admission that we are suffering, and they will us break down those barriers to save our own lives.

I wanted to share these thoughts with you—especially after a wonderful vacation. I do not want our members and friends to miss out on opportunities to enjoy their lives, to laugh, to be healthy and happy. I know that those of you out there who are suffering are doing so alone—many of you missing out on loving relationships, maybe some of you have become so isolated that you don’t share many “I love you’s” on Valentines—or any other day. All of you deserve to be happy.

Let’s incorporate another three words into our conversations this spring. Say “Are you ok?” if you see a colleague who’s hurting, even if it is just a suspicion. Don’t turn away and leave it for someone else to say. Those of you who are hurting—for once, don’t listen to that inner voice that wants you to believe you have everything in control. Turn off that over-achieving brain. Say three words you might not ever say to a client or in a courtroom. You may only have to say these three words once to save your life: I need help.

Well, it is official! The legislative session began on January 10, and there is already a flurry of activity in the Capitol as hundreds of bills have already been filed. As you know, TCDLA invests significant time, energy, and staff in legislative efforts. TCDLA pursues reform to criminal justice issues to ensure that our clients are protected from efforts to diminish their constitutional and statutory rights. We do that by proposing and advocating for changes to procedural and substantive issues, tracking and monitoring all of the bills that might impact our membership and our clients, and opposing any and all efforts to curtail our clients’ rights.

This is intense and detailed work. Often, as the session progresses and bills move in committees, we find ourselves mired in the specifics of the language proposed. Details like should the language be an “and” or an “or,” a “shall” or a “may”? We can even spend hours negotiating with prosecutors or lawmakers on the placement of a comma. We become so immersed in the picayune that we sometimes forget some of our core beliefs—the things that make us do this work and keep us committed and enthusiastic.

Lately, I have been thinking about some of those fundamental issues we care about deeply. We have already seen some bills filed this session that tear at those basic principles of fair play and threaten the values we hold dear—bills to criminalize using someone else’s idea of the “wrong” bathroom and those to increase the punishment on crimes solely on the basis of a person’s lawful residence. I was reminded of one of these fundamental principles when recently responding to an inquiry from a reporter. It made me want to refresh our collective memory about how we treat juveniles in Texas. Perhaps there is no aspect of promoting justice and the common good that is more significant than protecting those who make up the next generations—the children.

TCDLA strongly supports legislation that would keep teenage offenders in the juvenile justice system until the age of 18. Texas, as one of only 7 states that automatically sends 17-year-olds to adult court—and therefore to adult jails and prisons—is out of step with the majority of the rest of the country. We are increasingly in the minority as several states have increased the age to 18 recently.

We all know that many of young people facing criminal charges today represent a subset of our community that has been all too often marginalized and vulnerable. We see children coming from poverty, broken homes, or trauma. Children who have experienced or witnessed profound or persistent violence, had access to substandard education, or are experiencing undiagnosed or untreated mental health issues. In scores of these cases, the only difference between a chance at a productive life and a path of repeated criminal activity for these teenagers is the juvenile justice system and the services it provides.

It is widely known and accepted that those teenagers who stay in juvenile court are less likely to re-offend than those who are processed in the adult system. Due to services tailored to those young people—including mental health services, counseling and treatment related to substance abuse issues, access to services aimed at keeping teenagers in school, job skills, and training programs—the juvenile system is rightly focused on rehabilitation, as opposed to punishment. We also know via research and anecdote that the majority of offenses committed by this population are minor and nonviolent in nature. Data gathered by the Texas House of Representatives, released in October 2016, showed that the majority of the offenses committed by 17-year-olds in 2015 were low-level crimes. Nearly 44% of these offenses were for things like marijuana possession, theft, and liquor law violations.

In our view, there are only benefits to such a change in Texas. TCDLA believes that raising the age to 18 would dramatically increase the chances that this subset of teenagers will be rehabilitated and not recidivate. They would be in a system that is set up to address their treatment and educational needs while protecting them from older, more mature offenders who could model the type of behavior the juvenile system is dedicated to preventing.

While TCDLA will certainly continue to wordsmith every line in a proposed bill, each comma, semicolon, and period. We will focus on all the little details that could make a difference in how a statute is interpreted in courtrooms across the state. But while we do so, we—as a membership—can also reflect on some of the big issues, especially those policies that are just wrong. Like treating children as adults.

It is time for the Texas Legislature to recognize this reality and move on from a “one size fits all” method for dispensing criminal consequences. Raising the age is long overdue.

While writing this, it struck me that the holidays are upon us. Neighborhoods are starting to sparkle with green and red lights. Christmas music is playing everywhere. I always find that the end of a year is a good time to reflect on the past year, both personally and professionally, the good and the bad, the joyous and the heartbreaking. I recognize the things that I am grateful for, and know that I am blessed with much more than anyone deserves.

I am particularly grateful this year for the family that is TCDLA. When joining TCDLA in 1984, I knew I was going to be the recipient of many resources, people freely willing to help me along the way, amazing seminars, and other materials to develop my practice. What I didn’t know then was that I was joining an association that is as much about personal connections as it is about professional relationships.

I could easily talk about what an amazing year TCDLA has had, and that could fill up pages of the Voice. TCDLA, through the CDLP Committee with chairman John Hunter Smith at the helm, has put on innovative and exceptional seminars across the state, made possible by the Court of Criminal Appeal’s grant. It’s great to see new committee chairmen invigorate their work and add new, energetic committee members. New memberships and renewals continue to come in. We have lively discussions on the listserve, and TCDLA received an all-time high in applications from members wanting to join the Board of Directors. I am also pleased with the ongoing efforts of the Legislative Committee, under the direction of Bill Harris, as we prepare for what will likely be a difficult session starting in January.

All of those accomplishments—and many, many others—truly deserve specific recognition. This year, I am compelled to express my gratitude for the lifelong friendships that I have made and that I have been a witness to as a result of my association with TCDLA. Two examples of the dedicated, family aspect of TCDLA deeply touched my heart this year.

Many of us felt helpless and concerned as Executive Director Joseph Martinez’ wife, Bertha, became increasingly ill over the summer and passed away a few weeks ago. We watched with feelings of sadness and confusion as she went in and out of doctor visits, emergency rooms, and hospitals, days or weeks at a time with no official diagnosis that made sense to form the basis of a treatment plan. Those who knew Bertha or who spent any period of time with her will tell you they were the better for it. Bertha was an op­timistic and positive woman who always looked at life with hum­ble gratitude. She viewed difficult challenges as a blessing and an opportunity to serve God or help others. She was kind and gentle, but, at the same time, a fierce advocate and supporter of TCDLA and the work we do. She believed to her core that the work we do as criminal defense lawyers to help the vulnerable and marginalized was noble and valuable.

We also watched Joseph as he went through the nightmare of seeing his vibrant wife lose her strength slowly, holding on as long as she could. We saw Joseph try to be strong, but his face and voice revealed his fear and exhaustion. Bertha’s rosary and funeral revealed just how much she meant to TCDLA. Past presidents and members came from the far reaches of the state to pay their respects. They did this because TCDLA is a family. As we move forward, especially during the holidays, let us continue to remember Bertha and be there for Joseph.

I am also grateful to Tim Evans and Lydia Clay-Jackson for their selfless dedication to the Trial College. As you all know, the Trial College is one of the most praised and anticipated seminars of the year for TCDLA. There are always more student applicants that can be accommodated, and the faculty is always invested and excited to participate. The College has been as successful as it is because of their commitment to the Trial College and to TCDLA.

In 2017, Tim and Lydia will both become Deans Emeritus of the Trial College and will participate in the planning and future direction of the College. I have appointed Lance Evans and Kerri Anderson-Donica to serve as the new deans. Both have demonstrated a commitment to the Trial College and have been actively participating as faculty for many years. Tim and Lydia will continue to be leaders and provide important guidance to the new deans, again promoting the personal and family-like relationships of the TCDLA participants. Lance and Kerri will serve a four-year term that can be renewed one time. This way, going forward, we will be able to involve more leaders at Trial College, keep the program diverse, and energize faculty and students. Thank you Tim and Lydia for your outstanding leadership—and Lance and Kerri for your willingness to serve.

These two instances represent examples of my gratitude for the people in TCDLA. I hope you can similarly look back over the year and find an example of a personal connection within the association for which you are grateful. When I get caught up in the day-to-day headaches or annoyances of my practice, I try to find a quiet moment to reflect on the many blessings in my life.

Friends, I wish you all the best this holiday season. I am grateful for each of you.

Although the temperatures belie it now, fall is upon us. With it, we will see the end of an intense and unpredictable summer of politics and the start of the holiday season. A holiday season in an even-numbered year, means that a legislative session is right around the corner! The 85th Session of the Texas Legislature will start in January, and again, legislators will embark on the near-impossible task of addressing all critical legislative needs in a 140-day period—and the TCDLA Legislative team will work diligently to protect our clients and improve the quality of justice in Texas. The legislative team has been preparing initiatives on a number of issues designed to ensure that our clients are treated fairly, and among them is the subject of pretrial release.

For the first time in recent memory, the Texas Legislature seems poised and committed to seriously address the jail overcrowding crisis created by housing tens of thousands of individuals as they await trial. According to the Texas Judicial Council (hereinafter “TJC”), currently more than 41,000 defendants are sitting in Texas jails waiting for trial, and the annual cost to local government for housing inmates pretrial nears a shocking $1 billion.

TCDLA has long advocated for reform to bond and bail practices that have resulted in over-incarceration in general, as well as the unconscionable incarceration of the poor simply because they are unable to pay. We all know the stories of people who lose jobs and housing because they are unable to post bond even in minor, nonviolent cases. Cases like that of Sandra Bland, who committed suicide in jail after being unable to post a $500 bond on a non-violent charge, make national headlines. We have seen firsthand the devastating impact on our clients of being held in custody for even 24–48 hours. And we know clients held in custody are more likely to plead guilty to charges, more likely to serve sentences of incarceration, and more likely to reoffend after release. The negative consequences of pretrial incarceration—particularly in nonviolent offense—have reached crisis proportion, both in terms of costs to taxpayers and to society in general.

In 2015, the Texas Judicial Council created a Criminal Justice Committee that has, for more than a year, with the input of stakeholders, studied the problem, existing research and studies, and solutions adopted in jurisdictions across the country. After a thorough analysis, TJC made a number of findings and passed a series of resolutions embodying legislative recommendations for reform.

After much review and analysis, the TCDLA Legislative team and leadership believe that some of the recommendations for reform coming via the TJC resolutions are smart and strategic and will have our endorsement and support. Of course, as with most complicated legislative proposals, the devil is in the details, and your legislative team will carefully monitor and actively par­ticipate in the development of these specific provisions. There are, however, provisions in the TJC resolutions that we believe are complicated and potentially unwise.

TJC is advocating for several key provisions. First, while asking for increased state funding and recognizing that all existing forms of bond and bail should remain in effect, TJC is recommending an amendment to the Texas Constitution that would create a presumption that all persons charged with a crime in Texas are entitled to pretrial release through personal bond. TJC seeks to require that all Texas counties adopt and implement a validated risk-assessment tool that would be given to all defendants arrested for jailable misdemeanors and felonies, prior to magistration. The results of such an assessment would be used to place defendants along a risk scale and as a factor in determining appropriate bond conditions and supervision.

One such validated risk assessment tool has been promulgated by the Laura and John Arnold Foundation in Houston Texas (http://www.pretrial.org/national-model-pretrial-risk-assessment/). This is a non-interview-based tool that utilizes objective information designed to assess if an individual is likely to present a risk of flight or of danger to the community. This particular assessment tool has some important features. It is structured so that impermissible factors—like racial bias—are not part of the bond-setting decision, and it ana­lyzes risk based on prior convictions, as opposed to arrests.

TJC is also proposing to amend the Texas Constitution to provide that defendants posing a high risk of flight and/or danger to community safety may be held in jail without bail pending trial after certain findings are made and a detention hearing held. While the expressed goal of TJC regarding this provision is to prevent the flight or community safety threat by those with affluent means, expanding the class of individuals who can be held without bond pretrial beyond those charged with capital murder is, understandably, concerning to us and leg­islators as well.

This set of recommendations will just be some of those considered by the Legislature. A number of other provisions have been talked about both outside of and within TCDLA. Of course, TCDLA will be monitoring the hundreds of bills related to criminal justice that are filed every session. We will be both advocating for positive reforms and battling against efforts to dilute constitutional and statutory protections afforded our clients to protect against wrongful convictions and fundamental injustice.

DNA mixture issues have been at the forefront during the first half of 2016. An update is in order, but first some background. While some in the forensic community have raised this issue for years, it got widespread attention in May 2015, when the FBI notified labs across the country of discrepancies discovered in the interpretation of DNA mixture cases—those in which multiple contributors may be present. Acting quickly thereafter, the Texas Forensic Science Commission (TFSC) assembled a panel of experts to review lab procedures to determine if they were meeting scientifically accepted standards, and notified the entire criminal justice community that results in DNA mixture cases might be inaccurate.

TFSC reviewed standard operating procedures from labs across the state. The results were that in some jurisdictions, the procedures were utterly deficient and unreliable. After reviewing the procedures at the Austin Police Department crime lab, for example, TFSC found issues affecting the accuracy of the analyses at every stage of the testing process. There were issues including contamination, improperly calibrated instruments, incorrect interpretations of results, incompetent analysts, and more. The lab’s accreditation has since been withdrawn, the head of the lab fired, and the lab closed indefinitely.

In the wake of these discoveries and others across the state, TFSC and the Texas Indigent Defense Commission (TIDC) jointly created the Texas DNA Mixture Review Project (“Project”). The Project has received requests from more than 900 persons in 120 counties who have been convicted in cases involving DNA mixture evidence.

The Project is being tasked to review those cases to determine whether improperly calculated DNA mixture evidence may have undermined a conviction. The six attorneys staffing the Project have requested recalculation in at least 50 of the cases after careful review. More than 30 counties have sent out notices on cases affected by their respective district attorney’s offices, while other requests come from public notices and law library postings about this ongoing forensic issue. Some of the larger counties are still sending notices to individuals across the state whose convictions might have been affected by this problem. TIDC continues to award grant funding so that clients with this issue can be screened and identified. In December, there will be a State Bar CLE offered on criminal writs in Austin.

TCDLA has supported the Project and will continue to update our members on this important collaborative effort to help review thousands of cases from all over Texas. While no exonerations have taken place yet, we will not stop until these cases are all given a full and thorough review.

TFSC hosted a DNA mixture training seminar recently in San Antonio. One of TCDLA’s experts on this issue, Pat McCann of Houston, reports that the seminar was a good mix of science and practical issues for lawyers handling cases with DNA mixture evidence.  While not directed to DNA mixture cases, the Court of Criminal Appeals hosted a post-conviction seminar that will also help ensure that clients with this issue get adequate appellate review of their cases.

This is an issue that may require years of vigilant work by TCDLA and our members. Together, and with the help of TFSC and TIDC, we will work to identify cases in which innocent people might have been convicted due to unreliable DNA mixture evidence. We will discover those cases in which justice was not served, no matter how long it takes.

I was thinking about what I wanted to convey to you in my president’s message as I watched the Olympics wrapping up in Rio. Like most of you, I was enthralled by the games. As the athletes’ nervous anticipation turned into joy or heartbreak, one thing stood out most vividly to me. It wasn’t just the recognition of the athletes’ skill, training, and commitment or the sheer wonderment of so many countries setting aside their differences and coming together. It wasn’t solely about who won the gold or who fell short. Instead, I was captivated by the patriotism. Track athletes wrapped in the American flag. Fans dressed up in the red, white, and blue teeming with USA pride. The tears that flowed as our anthem echoed to the crowd. I was astonished at the demonstration of incredible athleticism, but more so, I was struck by the celebration of American. Thoughts of our work crept into my mind as I watched what was, at its heart, a celebration of the thing we Americans covet the most—Freedom.

I thought of the amazing work that TCDLA is doing to protect the freedom of those caught up in the criminal justice system. Not only do we individually protect freedom every day in our representation of our clients; TCDLA is also engaged in activities designed to improve justice in broad, systemic ways, including our Innocence Trainings and our role on the Texas Forensic Science Commission. Coincidentally, TCDLA’s annual Innocence Training in Austin started on the same day as the Olympics. It was another extremely successful CLE program that exemplifies both TCDLA’s contribution to the overall improvement in criminal justice, resulting in the exoneration of the wrongly convicted, and our role in training our members how to fight for and demand that each client is treated fairly. I was inspired by the case of Richard Miles, ex parte Miles, 359 SW.3 647 (2012 Tex.Crim.Pro), and the actual innocence opinion of Court of Criminal Appeal’s Judge Barbara Hervey, demonstrating the commitment of Texas to protect the freedom of the innocent.

Simultaneously, our work on the Texas Forensic Science Commission came to my mind. As you know, TCDLA has had an active part in establishing standards to stop the use of “junk science” in Texas courtrooms. After defense attorneys among us uncovered systematic flaws in the handling and analysis of forensic science, the commission was formed and has proven to be a powerful force in developing procedures for licensing forensic analysts, among other things, aimed at protecting the freedom of the innocent. It is time for TCDLA to recommend another member to the commission to replace Bobby Lerma, as his term is over. I thank Bobby for his service and am excited for another member to be our voice—the only defense voice in this important venue. We have submitted the names of ten amazingly qualified and committed members to the governor, who will select one to serve.

TCDLA was also asked to contribute to a report that will serve as a national model for creating similar forensic science commissions, and therefore improve the quality of justice, in other states. We were specifically asked to provide a brief statement about our role on the Texas Forensic Science Commission, hopefully to encourage other states to give their defense Bar a seat at the table.

I’m incredibly proud to serve as TCDLA’s president. This organization and its members do amazing and noble work to make the concepts of fairness and freedom a reality—a reality that will continue to represent who we are as Americans. So, the next time you hear the national anthem, or see a USA athlete waving a flag, I hope you will feel proud of the individual work that you do and proud to be part of an organization that strives to promote justice for everyone.

As I write this I’m still in the honeymoon phase of my TCDLA presidency. I’m on the beach at The Pearl resort on South Padre Island, with friends and family, attending our TCDLA Members Trip. This even includes our CDLP seminar—Upholding Justice One Client at a Time—the Board of Directors orientation for TCDLA, the Criminal Defense Lawyers Project (CDLP), and our foundation, the Texas Criminal Defense Lawyers Education Institute (TCDLEI). It’s a reunion with TCDLA family and friends I have known for years, and an opportunity to meet newer members of TCDLA and their families.

The weather this week on South Padre Island has been perfect. The beach BBQ at Beach Access #5 the best ever, thanks to Bill Trantham, Bobby Lerma, and volunteers. Thank you all! Susan Kelly towed her Hobie Cat catamaran sailboat here from Waco for the event so that Don Flanary and I could pretend to be sailors and pirates. Our TCDLA staff, Melissa Schank, Mari Flores, Craig Hattersley, have all done an incredible job and deserve a huge thank you for making this beach event shine.

I’m looking forward to the sand castle–building class we have scheduled later today. Playing in the sand and the feeling of sand on my feet and between my toes is one of those connection experiences for me, connecting me with childhood, family, friends, and life. After dinner at Louie’s Backyard tonight, there will be a fireworks display over the Laguna Madre, and my President’s Fiesta dinner and Conjunto dance party is set for Saturday evening on the hotel patio overlooking the beach.

TCDLA members have an impromptu and occasionally extensive “happy hour” at the hotel bar here in the evening. Members unwind and share their professional and personal experiences—it’s a storyteller’s master class! Shots of Fireball rule, but you are welcome to participate even if you’re drinking sparkling water.

I treasure this SPI event because it’s so rewarding to seminar and socialize with our TCDLA members and their families, especially the children. Over the years at our SPI seminar I have met toddlers, met them again as grammar and high school students, and again on summer break from college. Today is Friday. My daughter will arrive soon from Austin to spend the weekend with Mom and Dad and TCDLA members she has known since she could walk. I’m thrilled that she is looking forward to the visit.

If you missed SPI this year, plan ahead now and join us at the beach next year! We are also sponsoring another great opportunity for continuing legal education and family fun on the President’s Trip, a cruise on Royal Caribbean’s Liberty of the Seas leaving Galveston on February 12 for seven days, with stops in Jamaica, Grand Cayman, and Cozumel. The cruise is surprisingly affordable, especially when you consider there will be 10 hours of outstanding continuing legal education. Bring the family. Invite friends. Leave the cold behind and join us on this TCDLA cruise adventure.

I am excited and humbled to take the reins of leadership as President of TCDLA—thanks to Sam Bassett for a great year! We are the statewide criminal defense lawyers’ professional association in the State of Texas. We are 3,100 members strong. We are the voice for the defense in both word and deed. I thank each and every one of you for your membership, and for your support for our TCDLA.

Thanks to Rob Fickman and his F Troop team, our project to have criminal defense lawyers read the Declaration of Independence on or about the 4th of July in every county in Texas will happen. I’m going to participate, and hope you will too. I have been watching and marginally participating in the tremendous effort and energy Mr. Fickman and company have expended to make this event happen.

After we are done fussing at King George again, I’d like this effort to read the Declaration of Independence in every county to become a springboard for a TCDLA membership drive—in every county throughout the state. Every member, sign up at least one new member this year. Start now. Sign up as many new members of TCDLA as possible. Volunteer to help with the membership drive!

If you are financially able, buy a TCDLA membership for a new criminal defense lawyer. TCDLA membership is a great gift to give a young lawyer. Membership gives a criminal defense lawyer the support of our organization, access to substantive law and practical articles in our Voice for the Defense magazine, Strike Force support, the incredibly useful TCDLA smartphone app, and discounts from our participating merchants.

TCDLA membership benefits also include and support our top-notch group of lobbyists. The Legislature will be in session this year! Our TCDLA Legislative Committee Chair Bill Harris, Chief Lobbyist Alan Place, and new General Counsel Andrea Keilen have been meeting with TCDLA leadership and other criminal justice groups to plan our offense and de­fense strategies to protect the Constitution, individual rights, and due process of law. We need the attention, support, and effort of every TCDLA member in the legislative process. Step up—volunteer to help in any way you can. If you are able to donate funds to support our legislative efforts, please do so now.

TCDLA has a hard-working lean staff at our home office led by Executive Director Joseph Martinez, Assistant Executive Director Melissa Schank, and Controller Mari Flores. Over the course of next year our TCDLA staff will travel throughout the state putting on some 48 continuing legal education and training seminars, some for TCDLA and others through our grant from the Texas Court of Criminal Appeals to provide training for defense lawyers in Texas engaged in defense of indigent clients. In addition to this Herculean effort, our TCDLA staff undertakes all the many administrative tasks necessary to manage our association. I thank them for their commitment to TCDLA, and hope you will thank them too!

Our CLE presentations and the committee work of TCDLA, the long-term and short-fuse projects of our standing and ad hoc committees, all depend on member volunteers. These efforts present TCDLA and its members with the opportunity to be leaders in criminal defense, to be the voice of the criminal defense community in Texas. Join us in these efforts. Volunteer to serve on a TCDLA committee.

Let’s have another great year!