Judge Wayne Patrick Priest

Judge Wayne Patrick “Pat” Priest was a founding director of TCDLA. He received his JD from St. Mary’s University, where he served as an adjunct professor of Criminal Law, Criminal Procedure, and Trial Advocacy at its School of Law from 1979 through 1999. He has been on the bench since November 1980. As the senior District Judge of Bexar County in semi-retired status, he is called upon to preside over some big cases—including the Tom DeLay campaign finance trial, among others.

Mental Illness and Criminal Defense

Twice during my years practicing law, situations arose in other parts of the country, and were reported nationwide, in which it became public knowledge that a lawyer representing someone accused of abduction and murder knew quite literally where the body could be found and did not disclose it.

The public reaction in each case was to decry the insensitivity and lack of common decency of a lawyer who could do such a thing. Even lawyers—some academicians and those whose own practices do not involve dirtying their hands with representing the criminally accused—were heard to express a sense of outrage. Nearly everybody wanted the bar association to “do something,” and the entire affair was taken as just one more example of lawyers acting contrary to the public good.

In fact, in each case, the lawyer involved was upholding one of the highest traditions of the bar—the attorney-client privilege. Unfortunately, the importance of that privilege is not easily grasped by one untrained in the law or inexperienced in our adversarial system of justice. Please understand: These were dead bodies that these attorneys were not disclosing the location of. A lawyer who knows, from his client or any other source, the whereabouts of a person who has been abducted and is still alive has an ethical duty to save that life, if he can, by revealing the whereabouts or whatever lawful means may be necessary. That is because the attorney-client privilege is intended as a shield, and not a sword, and does not extend to future illegal conduct of the client or avoidable future adverse consequences of his past acts.

The attorney-client privilege in no way authorizes the lawyer to become a criminal along with his client. It simply demands that the lawyer zealously guard a client’s confidences about past bad acts.

I believe that the attorney-client privilege is logically inherent in our adversarial system of justice. Let me explain what I mean by that.

Our system presumes that each side of the docket will be represented by a skilled courtroom lawyer making every effort to advance that lawyer’s side of the case (by so marshaling the evidence and his argument as to place the client’s case in the best possible light), while similarly employing his best skill to depreciate the value of the other side’s case—and that the jury (or judge, if a jury is waived) is thereby better enabled to ferret out what the truth may be and where justice lies.

The successful operation of such a system requires that the client repose absolute trust in the advocate, who must know all that the client can tell him of the case in order to effectively represent him. On the other hand, few clients—whether civil or criminal—could be expected to “level” with their attorney if they could not be assured of the confidentiality of the communication—that, in fact, the attorney not only could not be made to betray their confidence but could in fact be forced not to do so. It is from these considerations that the attorney-client privilege springs.

Criminal defendants, in particular, would obtain little benefit from having counsel if their communications with counsel could be coercively obtained by agents of the State. A lawyer holds his clients’ confidences much like a trustee holds his money. Just as the money in the hands of the trustee belongs to the client, so the right to allow or disallow disclosure of matters told the lawyer in confidence belongs to the client. The system won’t work any other way. The lawyer has no right—absolutely none—to waive the attorney-client privilege, even when the lawyer’s professional judgment says that the client would be better served by disclosure or the private judgment of the lawyer suggests that prudence (or decency or propriety) demands disclosure. If it were otherwise, then the privilege would belong to the lawyer and not the client.

I got a call one day from an older couple whom I had known for years. Their son was in jail, charged with the murder of his wife. They had been unable to see him, and really knew nothing about the situation, other than what was in the newspapers.

I never read crime stories in the newspapers (unless my name is in them, of course), primarily because I spend most of my waking hours involved in one criminal case or another and see no reason to add to that based on what the city editor thinks should be on page one today.

I turned to the newspaper and found that the story was the headline story, and the matters set forth in the newspaper alone raised immediate questions regarding the sanity of whoever had committed the act. To relate the matters set forth in the newspaper would be tantamount to identifying the client; suffice it to say that the circumstances surrounding the killing and the finding of the body were bizarre in the extreme.

I went to jail to see the man, whom I knew slightly. I was met in the attorney visiting room by the most clearly mentally ill person I had ever interviewed. He did not appear to know me, and was unable to maintain a conversation on the subjects of his being in jail and what involvement he had had, if any, in the death of his wife.

He communicated a number of things to me on that trip to the jail, while in that state, that made his lack of any grasp what­soever of reality perfectly obvious. What he said to me, however, I cannot say, for reasons which will appear shortly.

I called his parents and sat down with them for a talk. I explained that the man I had seen at the jail was pretty clearly incompetent to stand trial, and might very well have been legally insane at the time the crime was committed. In order to be competent to stand trial on an allegation of criminal conduct, a defendant must have a rational, as well as factual, understanding of the charges against him and of the proceeding. In addition, he must be able to communicate with his attorney with a reasonable degree of rational understanding so that they may prepare his defense. This young man was clearly incompetent, on all counts. Whether he had been insane at the time of commission of the offense was, however, a much more problematic question. For legal insanity, the test at that time in Texas, was whether, at the time of commission of the offense, as a result of mental disease or defect, the defendant was incapable of distinguishing right from wrong—or, if he could distinguish, was unable to conform his conduct to the requirements of the law he allegedly violated.

I knew he was at least a bubble and a half off plumb when I interviewed him, but that was several days after the woman had been killed, and I had no way of knowing whether his mental state caused the killing or the realization of the enormity of the act had brought about the break with reality (if in fact he had committed the act).

They were, I knew, people of modest means, and completely unable to fund the extensive legal and psychiatric problems facing their son. I explained that even if I gave them a substantial break on my fee, or even waived it altogether, they were still going to be unable to bear the other costs that would be attendant to defending their son on a psychiatric basis.

I explained that they had no legal obligation to do so, and that if their son was unable to afford to retain counsel he would be entitled to court-appointed counsel—who could in turn petition the court to have their son evaluated and treated by the county psychiatrist, a retired military doctor I knew to be quite competent.

After that, I had no involvement in the case (other than conveying deposits to his inmate account for toothpaste and the like for his parents) for well over a year. He obtained counsel, and a hearing was had on the issue of his competency to stand trial. He was found incompetent and committed to the State Hospital at Rusk, Texas.

When he returned from Rusk, declared competent to stand trial, his lawyer called me to determine my availability as a witness on the question of his alleged insanity at the time of the offense. I had no direct knowledge, of course, but the lawyer hoped my evidence about his condition when I saw him might help the psychiatrists determine his mental state at the earlier time.

I said that I would help, of course. I just asked him to verify that the defendant was willing to waive the attorney-client privilege so I could tell the jury what he had said to me, and not just my general impressions of his mental state. The lawyer promised to talk with him about that. The next time I heard from the lawyer, he informed me that the defendant would not waive the attorney-client privilege and did not want me to reveal what he had said. The lawyer assured me that he had explained repeatedly how much it would detract from my testimony if I had to answer that I could not reveal what he had said due to the attorney-client privilege. The defendant had remained adamant.

I wondered, frankly, whether the defendant was really competent to stand trial and if he had made such a decision. I asked the lawyer if I could talk to his client directly to see if I could make the man understand the problem. He readily agreed.

The man I saw was a far cry from the one I had seen in jail months earlier. He was clearly “oriented times four,” as the psy­chia­trists say, clearly in command of all his faculties. He listened patiently to what I had to say, told me he understood that the decision might hurt him, but insisted that I maintain his confidences.

I testified and did the best I could to convey how deranged I found the man to be, but I could virtually see the jurors dismiss my testimony out of hand when, on cross-examination, to the prosecutor’s question as to what he had said that made me feel as I did, I could only answer that I was unable to say due to attorney-client privilege.

The jury found against him on the insanity defense, convicted the defendant, and gave him a long sentence. “Stone walls do not a prison make,” said Richard Lovelace, “nor iron bars a cage.” I don’t know to this day why he insisted upon maintaining the privilege, but the call was his. I still don’t see how we could have it any other way.

The Importance of the Presumption of Innocence

Although Sam had been taken into custody well before noon, it was after six o’clock by the time his wife, Muriel, arrived at my office with Sam’s dad.

It had been after three o’clock before he completed the booking process and was allowed a phone call. He hadn’t wanted to worry Muriel and had tried to call his dad, but wasn’t able to reach him. By the time he convinced the guard to allow him another phone call it was nearly four.

He’d told Muriel not to worry, that it was all a big mistake, but of course she was very upset to hear that Sam was in jail. By the time she got to my office, her face was red and tear-stained.

She hadn’t known what to do, and it had taken her nearly an hour to find Sam’s father, Ben Minor; then he’d called the only lawyer he knew, a family lawyer who referred him to me. It was nearly 5:30 by the time the lawyer called me, asking me to wait for Ben and Muriel to come to my office. All they knew when they got there was that Sam had been charged with some sort of theft from the United States mail, and was in the County Jail. They were sure there was some mistake, because Sam just wasn’t the kind of man to do a thing like that.

There was nothing new about this scenario, of course. The families of most young men who find themselves afoul of the law begin by believing there has been some sort of mistake.

Unfortunately, however, it usually turns out that the mistake has been made by the one who finds himself in jail. By calling the booking desk at the jail, I was able to verify that he was, indeed, charged with mail theft, and bail had been set by the Federal magistrate at $200,000. Due to the hour, I was not able to learn anything more from official sources, all of whom had shut down for the day. I explained what little I could under the circumstances to Ben and Muriel, and promised to call them as soon as I’d had a chance to talk with Sam.

I went straight from the office to the jail. They brought Sam down from the Federal floor to the attorney conference room. I introduced myself, told him about his wife and father coming to see me and explained that I was there to do what I could to be of help.

He told me straight off that he had no idea why he was in jail, and that, like his wife and father, he was sure there had been some mistake made.

He was employed as an airline freight handler. He met all the flights for his airline, and picked up all the air freight and mail cargo. He would deliver the mail to the post office en route to the airline freight terminal from the flight line.

He’d met all the flights that morning, from the time his shift began at 5:00 a.m. until he’d been called into the boss’ office about ten o’clock.

He could sense that something was wrong when the boss walked out of the office as he walked in, leaving him alone with two men in suits.

They asked if he was Sam Minor and, when he said that he was, introduced themselves as agents of the Federal Bureau of Investigation. They told him that they were investigating a theft from the United States mail.

He was about to tell them he’d be happy to help in any way he could when one of them cut him short, advising him that he was a suspect in the matter.

Sam had reacted incredulously, and the degree of his disbelief multiplied when the man began reading him his Miranda warnings: “You have the right to remain silent,” etc.

They then told him that a shipment consisting of two bread loaf–size wooden boxes containing solid gold jewelry had arrived via air mail that morning, but that only one of the two boxes had reached the post office.

They knew that only he had had access to the gold, knew from his boss that he had been at work all morning, and demanded to know where he had stashed the stolen gold.

Sam had insisted that he knew nothing about the missing gold. He remembered the two wooden boxes, he said, precisely because they were wooden; wooden boxes were unusual if for no other reason than that they added so much to the weight and thus the added cost of air mail postage. He’d had no idea they contained gold, he said, but was sure he had delivered both to the post office.

They simply were not buying that story, though, and a short time later advised Sam that he was under arrest (I later learned that another agent had by that time secured a warrant for Sam’s arrest). He’d been taken to jail, where the things I’ve already described had taken place.

Sam seemed particularly worried about Muriel, and how she was taking his arrest. He explained that she was 3½ months pregnant and had been having a difficult time of it. He was really worried that his arrest was going to cause her additional problems.

I didn’t know what to believe. I was just meeting Sam, knew nothing about him, and had no idea just what the government “had” on him.

He had just given me a motive, however. He had a pretty young pregnant wife who was having a troubled (translate “expensive”) pregnancy and was working in a relatively low-paying job with rather limited future prospects. Many a man has stolen for less cause.

I explained that I would get in touch with the United States Attorney’s office the next day to see what I could learn about the case. He said he’d be all right overnight, just tell Muriel and his dad not to be worried about him. I then realized just how little he understood of the situation he was in.

“You’re likely to be here a good deal longer than overnight,” I told him. Making a $200,000 bond would cost about $20,000, perhaps more, and neither he nor his father could afford any such sum.

Getting the bail reduced was going to require a hearing before the Federal Magistrate, and local rules entitled the U.S. Attorney to five working days’ notice before any such hearing could be held.

I was hopeful that we could arrange a more reasonable bail at such a hearing, but pointed out that five working days was a full week, and he was likely to be in jail at least that long.

It was at that point—when the only one he’d talked to all day who was trying to help him told him that he was about to spend at least a week in jail—that the enormity of the situation really completely sank in.

Tears welled up in his eyes as he protested: “But Mr. Priest, I swear to you, I’m not guilty. I don’t know nothing about that gold.”

I promised to come back the next day, after talking to the U.S. Attorney, and tell him what I’d learned.

I went home, called Muriel, and gave her and Ben a report, explained that I’d see the prosecutor the next day, and promised to get back with them after doing so.

The next morning I called the U.S. Attorney’s office and was advised that the case had been assigned to Ray Jahn, an experienced AUSA (Assistant United States Attorney) with whom I had previously dealt on a number of occasions. Ray was a good prosecutor—tough but fair. Unfortunately, on that particular morning he was out of the office—he’d gone to Austin on something or the other.

I left word for Ray that I would be representing Sam, and asked that he call me as soon as he got back in town. He in fact got back with me later that morning from Austin.

“Pat,” he said, “I understand that you represent that kid, Sam Minor.”

I acknowledged that I did, and thanked him for calling. “I’ll tell you what,” he said. “I’m feeling like Santa Claus. Just tell him that if he’ll give the gold back I’ll let him have pretrial diversion.”

That was very good news. Ray was giving the young man a chance to walk away from this entire matter—without a prosecution, not merely without a conviction. All he had to do was tell where the gold was and he’d be “on the ground” by nightfall, with no other obligation than to attend three or four lectures on the general subject of Thou Shalt Not Steal.

“Thanks, Ray. I’ll go talk with him right away,” I said, “but I’ve gotta tell you, so far he’s telling me he knows nothing about it.”

“Right,” said Ray, “knows nothing about it. Well, just tell him this offer’s only good for 24 hours.”

I wasn’t able to get back to the jail to see Sam until after 5:00 that day (Perry Mason is absolutely the only lawyer there is who handles only one case at a time). I must’ve had a big smile on my face there in the conference room, though, as I could see Sam’s face light up when he saw mine, clearly sensing that I had good news.

“Sam,” I said, “you are a lucky devil! The prosecutor’s willing to let you off with pretrial diversion if you’ll just return the gold.”

He didn’t understand what I was talking about, he said, and would I explain what I meant?

I explained what pretrial diversion meant, that he’d just have to go to three or four counseling classes and the entire matter would be dropped. All we had to do was tell the FBI where the gold was.

Sam sat there for a good long while with his head bowed, obviously letting what I had told him sink in and giving it thought.

At last, his head came up and his eyes met mine. Once again, I could see that his eyes were brimming with tears, and his voice was choked as he spoke.

“Let me see if I understand what you’re telling me. If I stole the gold and would tell where it was, I could get out of jail today, is that right?”

I acknowledged that it was.

“But,” he continued, “if I didn’t steal the gold and don’t know where it is, I’ll be in here for at least another week, may not get out then if you can’t get the bail reduced enough, and I’ll have to pay you a bunch of money to prove I’m not guilty. Is that right?”

It didn’t seem like the time to explain that the prosecutor had the burden of proving his guilt, so I just agreed that he was pretty close to right.

“Mr. Priest, I swear to God—I don’t know nothing about that gold! I didn’t steal it!”

I left him sitting there, head down, choking back the tears. I went on home and called Muriel and explained the day’s developments. She cried a little on the phone, but thanked me for calling. I promised to keep her advised.

The next day I called Ray Jahn and advised him of developments. He said it was too bad we couldn’t work it out and he’d see me at the bond hearing. I had a conference with Muriel and Ben a couple of days later explaining what we’d need to prove at the bond hearing, which had been set for the next week. I also went by the jail to see Sam again to explain to him what would be involved.

Otherwise, I spent most of the time until the day of the hearing working on other cases for other clients. On the day of the hearing, Ben and Muriel met me at my office and we walked over to the Federal Courthouse. At the entrance, we submitted to the humiliating but mandatory search of Muriel’s purse and my briefcase, walked through the metal detectors, and took the elevator to the magistrate’s floor.

As we got off the elevator, an FBI agent, who had obviously been waiting for us, walked rapidly over to where we were. “Mr. Priest?” he asked. “May I speak with you in private, sir?”

I agreed, of course, anticipating that he wanted to convey some further offer the government was prepared to extend to Sam.

After we had walked a few feet down the hall, he stopped, turned to me, and said: “Mr. Priest, I’m afraid there has been a serious mistake made. An employee of the post office confessed this morning that it was he who took the gold shipment. All charges against Mr. Minor are being dropped. Please extend our sincere apologies to him and to his family.”

I was flabbergasted, and more than a little embarrassed, for as he spoke those words I realized that I had no more given my client the presumption of innocence than had the FBI, and that I was as surprised as they that someone else had confessed.

I try to remind myself of Sam’s case from time to time. I’ve been a judge for most of the time since I represented Sam, and this case has helped me remember the presumption of innocence and its important role in keeping our system fair. Let’s hope none of us ever forgets.

The Ballad of Baldo Cortez and ‘Lefty’

Lawyers realize the kind of personal physical courage required to see a good cop through a night-watch shift in a crime-infested neighborhood where few sympathize with the job he must do. Even more, they fully appreciate the kind of moral fiber required to keep a cop straight despite the lack of public support and the many pressures to “cut corners.” Most lawyers suspect they don’t have the moxie it takes to be a good cop—the truth is that few people do.

Policemen, for their part, soon learn which lawyers are so closely allied with their clients’ activities as to become criminals themselves, and which are the professionals they ought to be. They appreciate the distinction better than most, and respect a lawyer who plays it straight down the middle, representing his clients zealously but with integrity. Many cops admire the way a lawyer makes his way with his wits and secretly wish they’d pursued their education a little further, so they could wear the suits and ask the questions in court.

Acknowledging the foregoing, it is particularly challenging for a lawyer who undertakes the defense of a person charged with killing, or attempting to kill, a police officer. I participated in three such cases as a defense lawyer. In two of the cases, the officer was killed; in the third, he was merely wounded. In all three cases, the officer involved was a good cop, courageously doing his duty. In that case, the defendant was deservedly acquitted.

Benito Mata had been called to a west side bar to see if he could do something with his brother, Baldemar, who had gotten very drunk and was waving a pistol around and generally terrorizing the place.

Baldemar had always been more than a little different, and was notorious for his behavior when in his cups. He dreamed of himself as some sort of modern Gregorio Cortez. Cortez had led a huge posse of Gonzales County deputies and Texas Rangers on an extended chase all over South Texas and Northern Mexico after killing the sheriff in Gonzales County. The circumstances under which the killing occurred, during an apparently unjustified assault upon the Cortez home (coupled with Gregorio’s success in eluding the posse), had made Cortez a Mexican-American folk hero.

That had all occurred in the ’30s, when the relationships between the Rangers (called Los Rinches in Spanish) and the Mexican-American people could hardly have been worse. Though those relationships are better now, and had improved even by the ’70s, memories were long, and the “Ballad of Gregorio Cortez” could still be found on the jukebox in many a South Texas cantina.

Baldemar (Baldo to those who knew him) quite simply—when drunk—dreamed of dying in a hail of bullets in a shootout with the police—and of the cantinas of San Antonio and South Texas reverberating in 3/4 time with the strains of the “Ballad of Baldemar Mata.” Strangely, considering Baldo’s bizarre obsession with this idea, when drunk, he never presented any particular problem to the police when he was sober. On this occasion, however, he was very, very drunk and armed with a .32 revolver. That’s why the bartender called Benito and unfortunately the police.

When Benito got to the bar, he found Baldo sitting at a table in a back corner nursing a beer. The .32 was on the table in front of him. He caught sight of Benito walking toward the table, knew Benito was going to try to stop him, and didn’t want to be stopped. He picked up the .32, pointed it at his brother, and ordered him to get out of his way. The cops were going to be coming, he said, and Benito was blocking the light.

Que haces, Baldo?” Benito said, “What are you doing?”

No sabes que ellos se van a matarle? Don’t you know that they are going to kill you if you keep this up?”

About that time, Baldo saw an officer approaching the bar. He hoisted himself to his feet and began to stagger forward. He brushed the smaller Benito aside and stumbled toward the door, pistol in hand. He got to the door before the officer did, and having the advantage of the cover of near darkness, squeezed off a round before the officer ever saw him.

He hit the officer in the thigh, knocking him to the ground. The officer began to pull himself back to cover behind his patrol car, and Baldo came out of the bar to follow him. Benito came out of the bar and grabbed Baldo, trying to drag him away. Baldo kept trying to brush him aside, so that he could get to the wounded officer to shoot him again. Just about at that moment, a cover officer arrived. Seeing his brother officer down and bleeding and Baldo stalking him with his arm outstretched holding a .32, he drew his service revolver, aimed, and fired. The bullet caught Baldo right between the eyes, killing him instantly.

When Benito ran towards his already-dead brother, his actions were misinterpreted; the officers thought he was going for Baldo’s gun to continue the exchange. The gun was kicked out of the way and Benito was tackled and quickly handcuffed. Benito’s earlier action, in trying to drag Baldo away, was also understandably misinterpreted as an attempt to help Baldo escape.

All of this led to Benito’s arrest, indictment for attempted capital murder for what the police believed to be his efforts to help his brother assault the officer, and eventual trial. At the trial, witnesses from inside the bar testified to Benito’s efforts to disarm Baldo and take him home before the police arrived. Benito testified that he was trying to drag Baldo away to keep him from shooting the officer again.

The jury found him not guilty.

I have never had trouble understanding the police not wanting to hear Benito’s protestations of his innocence—particularly when they were interspersed with tears for his dead brother. I don’t think Benito did, either.

If the Ballad of Baldo Cortez has been written, I’ve never heard it.

Jury Trials—Is It Witch Science?

Many of the Americans living in the Southwest are, of course, of Mexican descent. Though many families have lived in the United States for several generations, there is a continual influx of new immigrants from Mexico. As a result, many cultural phenomena brought from Mexico continue to thrive in the barrios (neighborhoods) of the Southwest. This is as true in San Antonio as anywhere else in the region. These cultural phe­nomena affect the food we eat, the music we listen to, the customs we adhere to, and, in their most important manifestation, what we believe.

The curanderos, for example, are believed to possess magical powers and special knowledge of plants and herbs, with the power to do great good or great evil according to the way in which they are mixed or prepared. This tradition is as much alive in San Antonio as in the villages of Mexico whence it sprang.

The attitude toward curanderos is a curious mixture of awe, fear, and ambivalence. The “hip” educated side of us knows intellectually that they do not possess magical powers, but our hearts simultaneously fear that perhaps our heads just don’t understand.

We’ve all heard the stories from the old folks of how some unbeliever such as ourselves has been cursed and lived to rue the error of his ways, brought under the power of a voodoo-like spell.

I once had a robbery by assault with firearms case (aggravated robbery now) in which a curandera played a very important role—as a juror. She had come to court dressed completely in black and wearing a shawl over her head, and we had all simply assumed her to be a widow, wearing black to honor the memory of her deceased husband. That practice still exists among some families of Mexican descent, and women dressed like she was are still a fairly common sight around here.

We later learned that she was wearing black as part of a spell she was in the process of casting. However, the jurors didn’t know that until they were in the jury room, and neither the judge nor the lawyers became aware of that fact until after the jury had been dismissed (without a verdict having been reached) as being hopelessly deadlocked.

At that time, we learned that the jury had very quickly found itself divided 11–1 in favor of conviction, and that the lady in black was the lone holdout for acquittal. So far as the jury could gather, her basis for voting Not Guilty was a combination of her special ability to perceive the truth and the State’s failure to produce the gun with which the robbery had been committed.

Now, a skeptic could be forgiven for concluding that the lady’s ability to perceive the truth was no better than yours or mine, and I won’t comment about that.

What I will tell you is that the State’s inability to produce the gun was legally and logically irrelevant. That an armed robbery had occurred, and that the unfortunate victim had been severely pistol-whipped by the perpetrator of the robbery, had not been contested. The defense was, quite simply, that somebody else had committed the crime and not the defendant on trial. (This is sometimes referred to as the “SODDI” defense—“some other dude did it.”)

The defendant, a young black man without a job, who simply “hung out” on the streets, had been unable to produce a meaningful alibi—such young men never are. Their days are all ill-defined amalgams of time spent on various street corners, in miscellaneous pool halls, and on basketball courts around the neighborhood, and all that time is spent with others very much like themselves.

Typically, they have no idea where they were last Thursday at 4 o’clock in the afternoon, or who they were with. If they could remember, the guys who were with them can’t, and if they can, nobody believes their testimony anyway, because they too are unemployed black youths who just “hang out.”

Our defense had been very straightforwardly based on the defendant’s chin. He had the most unusual chin I have ever seen, in that it was split by a cleft so deep that it actually appeared that he had sustained a serious injury. Although the victim, who had been badly injured, could and should be forgiven by a jury for not remembering every detail of his assailant’s appearance, we thought the defendant’s chin to be so unusual that anyone accosted by him would have mentioned his chin.

The victim had made no mention of his assailant’s chin and couldn’t remember anything memorable about it even when I specifically asked about his assailant’s chin (while the defendant blocked his chin with his hand).

He had nevertheless insisted that the defendant was his assailant, and 11 of the jurors had believed him.

When the twelfth juror explained her “reasoning,” so far as I could tell from talking with the other jurors later, they had broken into three groups. The largest group thought the woman was crazy and there would be no reasoning with her. A couple apparently became about half-convinced that the absence of the handgun was important, and a couple were either concerned that perhaps she did possess special powers to perceive the truth, or that crossing her might end up getting them cursed. Whatever the basis, there could be no question but that jury was hopelessly deadlocked.

The case was tried again and upon essentially the same evidence the second jury was also unable to agree upon a verdict. This time the split was 10–2 for Not Guilty, so the State dismissed the case rather than try it a third time.

This case troubled me at the time I was handling it, and continues to trouble me as I try to interpret what it tells us about our jury system.

After 24 jurors had heard the evidence in the case, 13 thought the defendant was guilty and 11 thought he was not guilty. However, 11 of the 13 who thought he was guilty sat on the first jury, and if only one vote had changed he would have been found guilty. If found guilty, he was facing up to a life sentence. He thus quite literally was one vote away from spending a very long time in the penitentiary, but ended up being freed.

On the other hand, if the first jury had voted 10–2 for acquittal, as the second jury did, the case would probably have been dismissed by the prosecution at that point, and there would have been no second trial.

The defendant, being poor and charged with a very serious offense, was unable to post bail, and thus had been in continuous custody from the time of his arrest until after the second trial. In all, he spent about eight months in custody on an offense that was ultimately dismissed.

Whoever committed this offense richly deserved a long prison sentence. If the defendant was the culprit, he got off very, very lightly, the undeserving beneficiary of a noteworthy chin and an unobservant victim.

On the other hand, if the defendant was in fact innocent, our system held him in confinement for eight months for nothing, and he has been greatly wronged. Moreover, whoever actually committed the offense got away with it.

As a practical matter, once a victim has committed himself to identifying one person as the perpetrator of the offense, there is no way a successful prosecution of anyone else could occur.

What we learn from this case, ultimately, is that our system—like all others—is fallible, and that injustice is bound to occur in any fallible system.

The system became fallible, by the way, in the year 1215. No, not because of the Magna Carta, although that is the year that the English nobility extracted that charter from King John. Rather, it was because of Pope Innocent III’s Fourth Lateran Council, which also occurred that year.

Trials in England, until that time, had been by battle or by ordeal. Knights and nobility would settle their matters in the lists, on the Field of Honor, by the lance.

Lesser folk would be bound and thrown into the lake, to see if they sank; if they did not, they were clearly being rejected by the water, were thus plainly guilty, and were promptly hanged. If they sank, they were accepted by the water and thus plainly innocent, and if they were lucky, they were pulled from the water before they drowned.

There were other trials by ordeal. Some would be required to walk barefoot across a bed of coals, others to grasp a hot poker in their bare hand. In each case, guilt or innocence would be determined by the extent of injury and the rapidity and extent of recovery.

It was also true that the nobility began to use mercenaries (what were then called “champions”) to defend their honor with lance and sword.

What made all this infallible was the participation by priests of the church, who would invoke the presence and judgment of the Almighty in these various proceedings to insure that Right would Prevail and Truth be Upheld. These were the days, you will recall, when second and third sons, being denied all right of inheritance by the law of primogeniture, had to make their ways as best they could, either as knights errant or clergymen.

Occasionally, a clergyman could be found who might be persuaded (upon payment of a proper indulgence) of the justice of one’s cause. Perhaps, despite appearances to the contrary, the water did accept one; mayhap, the scarring from the poker, severe to the untrained eye, reflected God’s judgment of innocence to the eye made more perceptive by study of things sacred and the secret beneficence of the purse.

Enter Innocent III, with his narrow-minded Continental point of view. Thenceforth, he decreed following the Fourth Lateran Council, priests of the church shall not participate in those godless rituals known only to the barbarous English and called trials by battle and by ordeal.

The English—and we, the progeny of their legal system—have been fallible ever since.

The 10,000-Year Capital Case

I met the late Clarence Williams in 1972, when we were both involved as court-appointed lawyers for a defendant who was charged with the murder of a police officer.

The experience of working together in the case could not be described as particularly pleasurable, not only because of the nature of the charge, but also because the defendant was a little hard to work with, to say the least. He apparently believed his lawyers were in cahoots with the State, and we were showered with contumely by him (as Everett Dirksen might have said) as often as were the judge and the prosecutors.

A window to the judge’s office was broken as a result of a struggle between the accused and the bailiffs. For a time, the defendant was gagged. At the end of the trial, after the jury convicted the client, the judge, upset that the Texas capital punishment scheme had just been thrown out by the United States Supreme Court, sentenced the defendant to 10,000 years (an event that made Ripley’s “Believe it or Not”).

The judge later thought better of the sentence and reduced it to a more lenient 1,000 years. Some wags said the defendant got 100 years for what he had done and 900 years for breaking the judge’s window; either way, the final sentence was a full millennium.

All of which simply explains how I got involved in the defense of Arnold Madison.

One night in July 1975, an attractive young nurse named Bridget Ann Kelly, called Meg by her friends, was abducted from the parking lot of the Audie Murphy Veterans Hospital as she left after completing a shift about midnight.

There were bloodstains on the parking lot, and an old Buick was spotted driving away from that location in the parking lot. Two hospital employees, a lab technician, and a security guard said they got a good look at the driver of that car, and later identified Arnold Madison, a custodian at a local neighborhood center, as being that person. They also noted the license plate on the car, so that police were able to trace the ownership to Arnold Madison’s stepfather, whom they awakened before 3:00 a.m. He explained that he had sold the car to his stepson, and led the police to where Arnold Madison lived.

There at Arnold Madison’s house was the described Buick, and there were bloodstains in the rear seat area. After the police gained entry into the house, moreover, they found a pair of bloody pants soaking in a pail in the bathtub. A pair of men’s shoes from inside the house were shown to have human blood on them. Most damning of all were the wallet and its contents, which were in a garbage can just outside the door, partially burned and still smoldering but bearing numerous cards and the driver’s license belonging to Meg Kelly.

Of Miss Kelly, however, there was no sign.

Arnold Madison was taken to the San Antonio police station, where he told officers he had loaned his car and a pair of pants to another young man that evening, a guy named Edwin Taylor, or something like Taylor, whom he knew as “Smokey.” He said that Smokey had returned the car a couple of hours earlier, along with the pants, which he said he had thrown up on. Smokey had put the pants in the bucket in the bathtub at his request, Madison said.

Madison denied all knowledge of Miss Kelly’s disappearance, though the lieutenant in charge of homicide would later testify that he did tell him “You’ll never find the body.” (Curiously, though, that remark was not repeated by the lieutenant to his homicide officers or his superiors, and it did not appear in any report.) Neither the police nor either of two juries who heard Madison’s story believed it, but he was absolutely consistent from the first time he told it to the last.

As we all eventually learned to our horror, Miss Kelly had been stabbed several times and left, naked and in shock, to lie in the hot South Texas sun for four days before she was found. When found, however, to the immense relief and joy of the entire community, she was alive.

What is more, she was sufficiently lucid to be able to choose to be taken to the Methodist Hospital, rather than to the Bexar County Hospital, where trauma victims were normally taken, because she had several friends working at the county hospital she didn’t want to see her in her condition.

Every day of the four days Miss Kelly lay in the field (which, incidentally, was within a mile of the Veterans Hospital where she’d been abducted), citizens’ search parties were out combing the brush.

In the beginning, just a few were searching, but by the time she was found hundreds of people were looking for her. The entire community was caught up in her disappearance, and thus it was that everyone went to bed that night feeling a little better about the world because she had been found.

The next morning, however, the joy was replaced with a profound sense of loss, when we discovered that the combined effects of injuries, exposure, and shock had resulted in the death of Miss Kelly while we slept overnight.

Up to that point, I was simply another citizen, first concerned about the missing nurse, then elated when she was found, and finally saddened when her death was reported. My friend Clarence Williams, however, had become involved very early on, when the family of Arnold Madison asked him to go to the jail and talk to Arnold Madison, to find out whether he knew where the young woman was and, if so, to see if he would say where she could be found.

During the next several days, Arnold Madison was placed in a series of lineups, viewed by several women who had been the victims of sexual assault. Judge Jim Barlow had been contacted by the police, and had directed Clarence to be present at those lineups, to safeguard the defendant’s rights (and thereby make any identification made a proper and legally admissible identification at any ensuing trial). Clarence explained to Judge Barlow that he had not been retained to represent Madison, but by the family, merely to talk to him. Further, it was perfectly obvious that Madison was in a great deal of trouble, and neither he nor his family had the wherewithal to retain Clarence (or any other lawyer) in a case of this magnitude.

Judge Barlow’s view was that at least Clarence knew Madison and could talk with him, and thereupon appointed Clarence to represent the young man. Clarence spent the next several days running back and forth between his office and the police station lineup room.

Clarence was a good lawyer, but he was a general practice lawyer, and he knew Arnold Madison needed a criminal lawyer associated with the defense. Remembering our common experience three years earlier, he thought of me.

He secured Judge Barlow’s agreement to appoint another lawyer and came to see me. He was very straightforward about it; he was willing to remain on the case and to do everything he could to be of assistance, but he wanted me to take the lead.

I was, of course, flattered, but not excited at the prospect of handling a case that looked so open and shut for the prosecution. I liked Clarence, though, and greatly respected Judge Barlow, before whom I had appeared on a number of occasions. (He later became a very good friend.) I agreed to become involved.

We tried the case on a change of venue in Corpus Christi. Once the case was transferred there, one of Texas’ finest criminal defense lawyers, Doug Tinker, joined the defense team.

Trying the case with Doug was a learning experience, because he was one of the quickest and most inventive lawyers I have come to know. His skills and whatever Clarence and I brought to the case were not enough, however, and the jury both found Arnold Madison guilty and assessed the death penalty.

The death penalty procedures enacted by the Texas Legislature in 1973 are still largely intact. When the Madison case was tried in the spring of 1976, though, there were a lot of unanswered questions about it.

In particular, the statutes regarding the selection of jurors in capital cases raised a number of questions—which took several years to be ironed out on a case-by-case basis by the Texas Court of Criminal Appeals.

Due to error in the jury selection process and the error of a prosecutor in improperly commenting on Madison’s pretrial silence, the first trial was reversed.

A change of venue was likewise had for the second trial, this time to Houston. A Houston judge sat, and Clarence and I were alone for the defense. A conviction was again had and the death penalty again assessed.

Under the procedures in effect in Texas until September 1, 1981, the complete record of the trial was prepared for an ap­peal and then filed with the trial judge, who had an opportunity to grant a new trial rather than send the case forward to the Court of Criminal Appeals, if convinced that reversible error had occurred.

I went on the bench in November 1980, and David Chapman wrote the brief that resulted in the trial judge from the second trial granting a new trial, without forwarding the record to the Court of Criminal Appeals, on August 31, 1981, the last day Texas law permitted him to do so.

A third trial was held in Brownsville. The only participant in that trial who had been in the first trial was Bill Harris, an assistant district attorney who had been fourth “chair” (i.e., fourth from the lead prosecutor) in the first trial and second chair in the second trial, and who was lead prosecutor for the third and final trial.

This time the case stood up on appeal, including an appeal to the United States Supreme Court. In 1988, 13 years after the death of Meg Kelly, Arnold Madison was executed.

The police never believed Arnold Madison’s story about loaning his car and his trousers to ‘Smokey” that night, and neither did the jury in either of his first two trials. His lawyers in the third trial decided not to put him on the witness stand.

During jury selection for the first trial, a nurse at the University of Texas Health Science Center in San Antonio was abducted, dragged to a cellar-like area under the hospital, stabbed, raped, and left tied up, presumably to die. She was discovered within hours, however, and though severely traumatized, lived to identify her attacker.

His name was Edwin Tyler, and he worked at the Health Science Center as a custodian.

The Health Science Center is just up the street from the Audie Murphy Hospital. We subpoenaed Tyler to the first Madison trial, and though he was not called to testify (both sides being afraid of what his testimony might be), Tyler indicated he had never been known as Smokey and did not know Arnold Madison.

Arnold Madison, on the other hand, identified him as the self-same man to whom he had loaned his pants on the night of Miss Kelly’s abduction.

The Long Hot Summer—Dilley Style

Careful observers of the criminal justice scene in my part of the world note that Federal prosecutors file and pursue a lot more conspiracy prosecutions than do their State court counterparts. Many assume, I believe, that this is because conspiracy prosecutions require special investigative talents found only in the Justice Department and the various Federal investigative agencies.

“It ain’t so.”

A Texas prosecutor cannot convict anyone on the uncorroborated testimony of an accomplice; Federal prosecutors can. That’s the difference.

The rule followed in Federal Court allows a jury to convict solely on the testimony of a person who was himself a part of the criminal enterprise—if the jury believes the testimony. The jury is instructed that they should weigh such testimony very carefully, but they may believe it and base their verdict on the accomplice testimony alone. In a Texas court, on the other hand, the jury is instructed that it may not convict on the testimony of an accomplice, standing alone. They must find that there is other, additional evidence independent of the testimony of any accomplice that tends to connect the defendant to the commission of the offense.

The Federal court rule assumes that the jury will be able to sort it out, while the State rule emphasizes the fact that a good liar could not only shift his own blame to his associates, but could also involve entirely innocent persons for reasons of his own.

The Federal rule better enables the prosecutor to ferret out crime, while the State rule better protects innocent citizens from criminals who would implicate them in order to gain some advantage for themselves.

In another story published in the Voice for the Defense, a situation in which a murderer and the man who hired him to commit the murder were able to obtain substantial benefits to themselves by offering testimony implicating jail guards in the killing is described in detail. That case exemplifies what is wrong with the Federal rule, in my opinion.

The occasional case in which only an accomplice knows of a criminal’s complicity in a serious crime illustrates what’s wrong with the State rule.

The State rule ends up requiring better police work than the Federal one. The State law enforcement officer who wants to prosecute a criminal conspiracy must penetrate the circle of criminal confidants with a non-criminal witness who will not require corroboration. A DEA agent who can turn one member of a drug cartel, or an FBI agent who can turn one member of a computer fraud conspiracy or an interstate auto theft ring, can obtain indictments, and the U.S. Attorney can obtain convictions, on the testimony of that one witness. Moreover, once the prosecutor is able to prove that any overt act was committed in furtherance of the alleged conspiracy, all statements in furtherance of the conspiracy alleged to have been made by any member of the conspiracy become admissible against all other alleged conspirators, as an exception to the hearsay rule. (The overt act can be as simple as making a phone call, and need not in itself involve illegality.)

The State prosecutor—who must get past the threshold requirement of showing that there was a conspiracy and the defendant was part of it in order to take advantage of this rule—must do so with non-accomplice testimony.

I have dilated a bit on the subject of corroboration of accomplices so that you can more readily understand why a Texas peace officer would have done what my client did in the case I’m about to describe.

Without further ado, then, the story of Will Flowers.

Milt Musgrave spent some of the ’50s, virtually all of the ’60s, and a good portion of the ’70s in California prisons. I lost track of him after the trial I’m about to describe and can’t tell you how he spent his time since (though both of us could guess with a high degree of probable accuracy). He drifted into Dilley, Texas, a dusty little Texas town just south of San Antonio, one day in the late ’70s. He was headed to Mexico, but came up about 100 miles short because he ran out of bus fare.

He hung around Dilley looking for some sort of work. He made no bones about having just been paroled, and told everybody he just wanted to pick up a little money and get back on the bus as soon as possible.

Now, Dilley didn’t have any other parolees in residence, much less ones from California, so Milt became a focal point of every local conversation within two or three hours. Dilley had a three-man police force, and the Frio County Sheriff was up the road a piece in Pearsall, so the constable, Will Flowers, and his brother-in-law, the highway patrolman, played no small part in the maintenance of law and order in and around Dilley. Musgrave came to Will Flowers’ attention within an hour of his arrival.

A constable’s jurisdiction covers the same geographical area as a justice of the peace (usually no more than one quarter of a county), and his primary function is serving papers for proceedings in the justice court. He is a peace officer, however, and in areas like Dilley, where the policeman’s authority ends at the city limits and the deputy sheriff may be 30 minutes or more away, the constable plays a significant role in maintaining the peace.

Will Flowers had an abiding interest in law enforcement. Not only had he obtained a two-year degree in law enforcement studies at Uvalde Junior College; he now taught a course in that same curriculum. He took being a lawman very seriously. When he heard about Musgrave, he decided he’d better go have a talk with him, just to feel him out and see what he was up to. It couldn’t hurt.

Will didn’t wear a uniform, and his boots and Stetson wouldn’t have told Musgrave anything, since every other man in town was dressed pretty much the same way. It’s not hard to guess that his eyes must have been drawn to the six-pointed star Will displayed prominently on his shirt pocket. The two men looked each over carefully, mentally circling and sniffing like two dogs on first meeting.

Finally, Will spoke: “What brings you to Dilley? Anything I can do for you?”

Musgrave told him how he’d run out of bus fare and was just looking for temporary work to earn enough to catch the first available bus on to Mexico.

“I don’t mean to stay, officer. I’ll be on my way just as soon as I can find a few hours work and earn the money to keep traveling.”

What Will Flowers should have done was to buy Milt Musgrave a $2.00 hamburger and a $6.00 bus ticket to Piedras Negras, across the river from Eagle Pass. What he actually did was to help him find a two-bit job for the next day and a four-bit room for the night and then take him home for some home cooking.

At supper that night, Will’s Martha was a little peeved at him and more than a little afraid of Milt Musgrave, particularly when his entire conversation consisted of recounting his prison experiences over the last 20 years and more. She was shocked to learn that her “guest” had spent 21 of the previous 23 years as a guest of the California state prison system.

Will, for his part, was absolutely fascinated by Musgrave. That’s why he’d brought him home. He’d studied about guys like Milt Musgrave, of course, but he’d never had a chance to get to know one up close like this.

Musgrave was a magical storyteller, and kept both his hosts on the edge of their seats as he recounted his prison experiences all evening, until well past midnight.

By the time Will drove him into town (Will and Martha lived in a mobile home on a little acreage outside town), Milt and Will were talking about how wasted Milt’s life to that point had been, and how he’d really like to find a little place like Dilley to settle down and live a normal life.

The job Will found him lasted for several days, and on each of those days he picked up Musgrave and took him home to supper. Martha came not to mind, as Musgrave had a never-ending supply of stories, and both she and her husband had become interested in helping him turn his life around and become a productive citizen.

One evening while Martha was washing the dishes and the two men were alone, Musgrave (whose favorite pastime was saying things for the shock value) told Will that the local bank was just a little crackerbox, and that he, or any other experienced robber, could knock it over and get away clean. Will didn’t like even discussing the subject, and worried, fleetingly, that Musgrave might be considering doing just that. He just laughed it off, though, and changed the subject.

However, the subject came up again and again in their conversation over the next few days, and it became plain to Flowers that Musgrave actually wanted to rob the local bank. Musgrave mentioned knowing “some boys in Chicago” who could help rob that two-bit bank and be gone before sleepy little Dilley knew what hit her.

Musgrave would later testify in Federal Court that he began to believe that Will Flowers wanted to rob his hometown bank with the help of Musgrave, and that he found it scandalous (I’m not making this up) because the constable had a lovely wife and everything going for him.

To teach Will a lesson, he said, he contacted the FBI in San Antonio at that point. He explained the situation as he saw it, and it was agreed that he would tell the constable that his Chicago connection would be calling and they could talk about knocking over the bank.

Pursuant to that scheme, an FBI officer called Will Flowers on the phone, pretending to be “Chicago,” to see if he could get the young officer to make any incriminating statements on the telephone.

A simple code was devised and relayed through Musgrave, whereby language common to the local oil-and-gas industry could be used to discuss robbing the bank while ostensibly discussing drilling a well.

Two taped telephone conversations ensued, in each of which the young constable could be heard quite clearly discussing (via the prearranged code words) robbing the Dilley bank. The constable’s assigned duty was to start a brush fire south and west of town that would divert not only all law enforcement but virtually all able-bodied men in the area away from town during the robbery.

Chicago would go in and com­mit the actual robbery, while Musgrave manned the getaway car. They would drive north and east out of Dilley and meet up with Flowers on a dirt road and give him his share of the take.

In order to assure synchronization of efforts, the conspirators were to meet at a restaurant/motel outside Pearsall on the way to San Antonio. Flowers was instructed to bring a roll of electrical tape, which the robber would use to tie up the employees in the bank before making his getaway.

At the appointed hour on the selected day, something on the order of a dozen or so FBI agents and Captain John Wood of the Texas Rangers were hiding in vans outside the restaurant when Flowers drove up. Will parked in the agreed place and, trying to be nonchalant, waited for Musgrave and Chicago.

On a prearranged signal, Captain Wood, located in a van on Flowers’ blind side, lifted his lanky frame out of the van and quickly approached the driver’s side of Will’s car, drawing his .357 magnum just before reaching the driver’s door.

“You’re under arrest,” said Captain Wood. “Keep your hands in sight and step out of that car.”

“Wait a minute,”  said Constable Will Flowers. “This is my bust!”

There was a trial in Federal Court in San Antonio. He testified, and several local law enforcement officers confirmed his testimony that local officers just don’t think in terms of conspiracy prosecutions.

Will was going to follow Musgrave and Chicago to town and arrest them when Chicago entered the bank. The jury, thankfully, believed his testimony.

Several other things were almost as interesting as the trial itself. Captain Wood of the Rangers told us, for example, that in his entire career (which was a long and distinguished one), this was the only case in which he was involved that went to trial and resulted in a not guilty verdict. That says more than a little about the quality of his investigative work.

Immediately after the trial, an FBI agent who had been very much involved in putting the case together for the government and had personally taken custody of Will Flower’s service revolver when he was arrested, demonstrated a great deal of class when he walked up to Will outside the Federal courthouse, handed him his sidearm and holster, and said: “Here, officer. This belongs to you.”

The single most interesting moments came in cross-examination of Musgrave at the trial.

Will Flowers had originally approached Nick Rothe, a damned good criminal defense lawyer and my good friend, about representing him. Because Nick did not practice in Federal court at that time, he referred the client to me.

As a result, Musgrave knew his name, but not mine. He began calling Nick every time he was in his cups (Musgrave, not Nick, but that’s another story) to talk about the case. Nick, of course, taped the conversations.

We thus went to trial armed not only with the seven best words ever spoken by a defendant who had just been arrested, but with transcripts of a couple of hours of taped conversations with Milt Musgrave.

In those tapes, Musgrave claimed to have killed two men in the California penitentiary and beaten both raps by claiming to be a victim of psychomotor epilepsy and hence not responsible for his actions. He said he’d represented himself in court and was so quick a study that he had been called “brilliant in the courtroom.”

The tapes were entertaining, and demonstrated Musgrave at his most gregarious. Most entertaining from my perspective was the opportunity the transcripts gave me to ask 42 straight questions concerning devastatingly damaging admissions made by the witness—to which the witness’ unwavering response was “I have no present recollection.”

Misdemeanor Murder!

Average Americans think of murder as the cold-blooded crime among all crimes, and the one that mandates sending the offender away for a long, long time.

They are partly right; some murders are planned in detail and committed in cold-eyed pursuance of the object of the planning. People who commit that sort of crime are truly dangerous people and, what’s more, can be counted on to commit murder or other serious criminal activity the very next time the opportunity presents itself. These people do need to be locked up and have the key thrown away.

The truth is, however, such murders are rare outside organized crime. Drug dealers and others who get up every day and go out and commit crime as part of an ongoing enterprise dispatch one another with cold premeditation on a regular basis, but most murders occur in the heat of passion, with no planning whatsoever.

The rate of recidivism among murderers of this type is among the lowest for any type of crime; they kill once, in a fit of passion, and are otherwise near-model citizens for the rest of their lives.

These murders tend to involve a murderer and victim who know one another and are the culmination, in many cases, of long-standing “bad blood” between them. Alcohol seems almost invariably to be involved.

Around San Antonio, this kind of murder seems to take place in two primary locations—neighborhood bars and birthday parties at someone’s home. Both kinds of cases present real nightmares for the police.

In the bar shootings, the basic problem is that nobody will acknowledge having seen anything.

There may be 40 people in the bar, but each will claim to have been in the men’s room when the shooting came down, notwithstanding the men’s room is a four foot by seven foot one-holer.

In these cases, though those involved in the shooting—the shooter and the shootee—may have known one another, the others in the bar don’t know either one, don’t care, and don’t want to get involved.

It’s not unheard of for the bartender to drag the body out in the street and swear the shooting took place out there, secure in the knowledge that all the patrons will either scatter before the police get there or swear they were in the bathroom when it happened. The bartender’s motive? To keep his job. Too much violence in a place will get the liquor license lifted.

In the birthday party shootings, the problem can be just the opposite. Though the party was in every room of the house, the front yard and the back yard and spilled over into the neighbor’s yards on both sides, everybody will claim to have seen just what happened. In these cases virtually everyone at the party was a friend of either the victim or the shooter.

There usually are several people who actually see what happens, simply because so many people are present. However, after “getting your laundry back” on several of these cases, you begin to realize that there are always two stories being told after the event, one by the friends of the deceased (making it a cold-blooded murder) and one by the friends of the accused (making it a clear-cut case of self-defense).

The friends of the victim never saw the gun/knife/tire tool (fill in the blank) in the victim’s hand, while the friends of the defendant invariably did. If no such object is found by the police, it is because it didn’t exist (say decedent’s friends) or because unnamed friends of the deceased carried it away (defendant’s friends).

In all events, the deceased most assuredly accompanied a very clear assaultive gesture (the “hip pocket move,” which made it appear he was going for a weapon, or the like) with strong language conveying a clear intent to engage in assaultive behavior, according to approximately one-half of the witnesses.

These birthday parties and bar shootings have over the years begun to be called “misdemeanor murders” by some people in the system. It is not because such murders are viewed as not being serious, but because of the frequent outcome of such cases when they are tried to a jury.

Whereas the seasoned prosecutor or defense lawyer will have heard a substantially similar story on several prior occasions, this will be the one and only time the average juror will.

Not surprisingly, when confronted with a similar number of witnesses on each side, all with approximately equal credibility, telling stories which are absolutely inconsistent, jurors are not quite sure who or what they should believe. Often as not, they will resolve their dilemma by holding against the defendant on his self-defense theory (thus convicting the defendant) and then assessing a low punishment (thereby crediting him and his witnesses with some degree of credibility, as well).

This combination of serious crime and low punishment explain the denotation “misdemeanor murder,” perhaps, but they don’t really justify the term’s connotation of a not-very-serious murder. For that reason, and because I know the term is misunderstood by those outside the system, I avoid using it. Besides, “barroom shooting” and “birthday party shooting” convey the same impressions to system insiders without shocking everybody else.

When I was a rather young lawyer, it was my good fortune to “second chair” (i.e., sit behind and assist) a first-rate lawyer, the late Charlie Butts. (Charlie’s beautiful wife, Shirley, is now a retired appellate judge, and she called him Charles, but he’ll always been Charlie to me.)

Charlie, in a long and illustrious career, had been First Assistant District Attorney in a couple of counties, a crackerjack personal injury lawyer, and, more to the point here, one of the best criminal defense lawyers in the state.

Our facts were very similar to what I have described, except that two separate altercations were involved.

In the first altercation, which took place while our client was at home, minding his own business, his brother was set upon by several at the party, with the now-deceased as the instigator and chief antagonist, and the brother’s leg was broken.

When this story got to our client, in the language then applicable to the law of self-defense, he armed himself with a .410 shotgun (with which to defend himself in the event of an unprovoked attack upon him) and went to “seek a peaceable explanation.” (No. None of this jibes with current law.)

The deceased was shot in the living room at a distance of less than 10 feet. Predictably, there were more witnesses than would fit in the room, and they were divided, unfavorably to the defense, with about one-third who saw the deceased lunge for the defendant with a broken beer bottle and two-thirds who swore that never occurred.

Tom Even (also no longer with us, demonstrating again my advancing years) was still in law school at the time, and was signed up for a clinic-style course that allowed him to obtain credit for assisting in the investigation of criminal cases. He signed on, too.

I had spent the last three of four years in law school (I went part time, at night) working as an independent claims adjuster, and fancied myself as something of an investigator. I was delighted to have Tom on board, not only for the independent investigation he would do, but also because that meant I could participate directly in the investigation without ending up by disqualifying myself as a lawyer on the case (since he could be called, rather than me).

We did rather a lot of investigation, but the really significant investigation centered around a 15-year-old named Elvira.

Elvira had given a statement to the police that indicated our client had shot the deceased without provocation. The statement was short, however, and we were interviewing all the witnesses, favorable and unfavorable, so we could evaluate their credibility for ourselves. Further, since Elvira’s statement was quite short, we wanted to flesh her story out a bit.

After a couple of trips to her home without locating her, we were advised by another of the witnesses that she had been picked up for some sort of offense and was in the Juvenile Detention Center.

We contacted her there and learned that she was willing to speak with us. We spoke with her probation officer, who agreed to be present at our interview, both to see to it that the girl was not over-reached and so that she, the probation officer, could hear the story too, as Elvira had up to that time refused to talk to her about the murder case (which, after all, was unrelated to her own more recent problem and detention).

We began by assuring Elvira several times that we weren’t asking her to say anything in particular, that we simply wanted her to tell us the truth, whatever the truth might be, whether it hurt our client or not. She said she understood.

We then asked her to simply tell us in her own words what had happened, explaining that if we had questions we would interrupt or ask them after she was finished. She agreed, and began to tell us her story.

To our surprise, she was telling very much the same version of the events as had been given to us by our client.

I interrupted after she gave us the basic story, explaining that I had read the statement she had given to the police, and that I knew that what she had told them was very different from what she was telling us—that she had pretty much described an unprovoked shooting in her statement to the police.

She readily acknowledged that she had given a very different statement to the police, but explained that she had done so because the friends of the deceased, who had given similar statements, had told her that she’d better tell the story that way or they would hurt her.

We pressed again and again for the truth. The probation officer emphasized the importance of her being truthful. She stuck by her guns; it was self-defense, and she had only told the other story initially out of fear of the state’s witnesses.

I even explained to her that giving two statements under oath, both of which cannot be true, is a misdemeanor, and the prosecutor doesn’t even have to prove which statement is false. If he can prove which statement is false, it’s a felony. She still stuck by her guns.

The beauty of this situation was this: When the prosecutor tried to impeach Elvira with her prior statement, she would have a response that not only explained away her prior statement in terms of her own credibility but which blew all the prosecution witnesses out of the water.

It’s one of the very few times I can remember being in a position of looking forward to having a witness questioned about a prior inconsistent statement by the other side. The case went to trial several weeks later. The prosecution witnesses told it pretty much like they had told it to the police.

Charlie Butts had made some mileage on cross-examination, but when the State rested, the case looked pretty much like an assassination in response to the assault that broke the defendant’s brother’s leg. The deceased may not have looked too good to the jury, since he had led a gang assault on the brother, but at least the brother had not been killed.

Two or three witnesses in to our side of the case, Charlie announced that our next witness would be Elvira. The bailiff headed to the witness room to get her, but I knew she was out in the hall with the probation officer, so I went in that direction to get her.

When I got outside, I found myself confronted with a probation officer who was extremely distraught.

“What’s the matter,” I asked. “Isn’t she willing to testify now?”

“That’s not it,” she said. “She’s changed her story again. Now she says that what she told the police was the truth and what she told you was a lie.”

Elvira stared at the floor, refusing to even look at me, much less respond to my questions, and I knew that what the probation officer was saying was true.

I confess; I panicked. Elvira was to have been our star witness, and now she said she had been lying to us.

A jumble of different issues crashed together in my brain. A lawyer can’t call a witness he knows is lying. . . . You can’t claim surprise if a witness has told you before going on the witness stand that’s what he’s going to say. . . . But wait, she was going to tell what she says is the truth. . . . But, that story hurts us. . . . What the hell is the truth in this case, anyway?

I remembered that the jury was waiting with some anticipation for Elvira to take the witness stand. I scurried back into the courtroom and up to Charlie Butts.

“Charlie,” I tried to whisper but practically shouted in his ear. “She changed her story. She now says that she lied to us and what she told the police is the truth.”

Charlie paused, turned his head slowly toward my ear, and whispered in his very West Texas drawl: “Don’t let the jury see that you’re upset. We’ll just go on with another witness. Have a seat and calm down.”

With that, Charlie called the next witness.

We called our one-third who told it our way, and the defendant himself testified pretty well, but we just didn’t have the horses; the jury convicted the client. At punishment, Charlie delivered an argument that I swear had the judge’s eyes glistening, much less the jury’s.

Ten years, they said, but several of them told Charlie later that they had wanted to grant probation, but just couldn’t muster the votes.

Misdemeanor murder, birthday party shooting, call it what you will. This (then) young lawyer learned a lot about lawyering sitting behind Charlie Butts in this trial. He should have charged me a bundle for the lessons.

Tribal Wars & Jail House Suicide

What Apache Medellin originally wanted was Necho Solis’ left eye. He wanted to make a ring out of it. It took some time to for his fellow gang members to convince him that it was going to be very hard to sell Necho’s death as a suicide if his left eye was missing.

Necho was in the Bexar County Jail at the time, along with Gato Mendares and some other friends of Apache. The difference was that Gato and the others were mostly awaiting trial for drug offenses, while Necho was awaiting trial for the murder of Apache’s sister. She had been murdered by a single shot through her left eye.

The Fernandez gang was probably the largest in operation in the area at the time, in the mid 1970s. Fred Carrasco had been sent to the pen and subsequently died of gunshot wounds received in an attempted breakout. Mando Fernandez was in the pen, and Apache was in charge in Mando’s absence.

Apache was, of course, well known to the police department, and everybody knew that Necho was accused of murdering his sister. That’s why Necho’s death had to look like a suicide, and why, presumably, Apache was willing to forego the original ocular jewelry he had at first sought. The scheme they finally hit upon—to strangle Necho and then hang him from a steel rod in the shower room, so the guards would take it for a suicide—was doomed from the start.

The jail guards might very well have been fooled, but the characteristic fracture of the hyoid bone, which is the inevitable result of manual strangulation, would be a dead giveaway to any competent pathologist.

And so it was accomplished, one dark afternoon. While four other inmates each held an arm or a leg, Gato Mendares strangled him until he was dead. In case you’re wondering, and for my own purposes even if you are not, that is an event which takes several minutes. There is as much of a struggle as the circumstances permit, lasting perhaps as long as a minute before unconsciousness occurs.

Unconsciousness is no indicator of death, however, and if the strangulation stops at that point the victim will almost certainly survive. No, the pressure must be maintained well after unconsciousness occurs. After perhaps another minute, the victim’s body will begin to convulse violently, and quite involuntarily—this is the result of spasms occurring within the dying brain, as a result of oxygen deprivation. If pressure is maintained through the end of the convulsions, it’s probably long enough, but to be absolutely sure it is best to continue for another minute or so, to be sure that you produce a corpse and not merely a brain-dead vegetable.

I have been as graphic as this because I don’t want the point to be missed that Necho Solis was brutally murdered by Gato Mendares, at the request of Apache Medellin. The reason I don’t want this point to be missed is because, at the subsequent trial of Sgt. Ramon Alarcan and Captain James O’Brien of the Sheriff’s Department for violating Necho Solis’ civil rights, the government’s star witnesses—both by then in the Federal Witness Protection Program—were the self-same Apache Medellin and Gato Mendares.

It was my privilege to represent Ramon Alarcan in those proceedings. Let me begin by saying that a jury of his peers found him not guilty of violating Necho Solis’ civil rights, not guilty of conspiring to do so, and not guilty of obstruction of justice.

In fact, the only defendant convicted in the case was one who was shown to have been holding down one of Necho’s legs while Gato Mendares choked the life out of him.

The Justice Department in the 1970s was aggressively pursuing complaints against state and local police authorities for violating the civil rights of citizens. We were not completely removed at that time from the era of the white sheet and burning cross (indeed, traces continue to this day), and I believe that aggressively pursuing such complaints was and is entirely appropriate policy. However, any time a prosecutor sets out to aggressively pursue any sort of unlawful conduct, rather than simply proceed on matters brought to him by law enforcement agencies, there is a danger of an excess of zeal and a loss of sight of the forest while examining the trees under a microscope.

From the undeniable facts that Necho Solis was murdered by fellow inmates in the Bexar County Jail and that, at that particular time even more than usually, a lot of drugs seemed to be getting into the jail—particularly to friends of Medellin and Mendares—the thesis was born that this could only be so with the complicity of one or more jail guards. While this thesis certainly merited inquiry, it was the building of the government’s case upon the wholly noncredible Mr. Medellin and Mr. Mendares and very little else which I believe betrayed an excess of zeal.

Certain women known to be friendly to both Medellin and Mendares were suspected of having acted as drug couriers, delivering drugs—heroin, mostly—to Mendares and others in the jail when they came to visit inmates.

After the death of Necho Solis, it came to be suspected that the drug deliveries and the murder were interconnected. That particular suspicion proved to be true; Mendares testified Medellin sent him drugs via women couriers, as well as giving assurances Mendares’ family would be taken care of while he was “away,” in exchange for Mendares killing Necho Solis.

An investigation was begun at the jail, and guards and inmates were interviewed.

Jail guards, at the low end of the law enforcement prestige scale in terms of education, pay, and benefits, and even level of intelligence required, are scared to death of FBI agents, who are at the other end of the scale on all counts. They had heard about other local law enforcement people who had been prosecuted for civil rights violations, and had heard it was better not to talk to the FBI. On the other hand, they sure weren’t comfortable about seeming to “take the fifth” when they hadn’t done anything.

Ramon Alarcan was the shift sergeant on the evening shift, when most of the visitation took place—and hence when most of the drugs were smuggled into the jail. Most of the young men and women jail guards looked to Ramon for advice—on a lot of things, and in particular on how they should handle themselves when questioned by the FBI. Ramon counseled them to tell the truth, but to volunteer nothing and to say no more than they had to.

While most of the young guards took that as advice given for their benefit, to keep them from getting involved in something that was over their heads, two interpreted the remarks as being instructions to keep their mouths shut. It was this perception by these two (of 30 or 40) that resulted in Ramon—and only Ramon—being named in a third count of the indictment, alleging obstruction of justice. The investigation took months, during which all of the jail employees involved in prisoner visitation or who worked under Sgt. Alarcan or Captain O’Brien were interviewed. Then many of the same jail employees were called before the Federal Grand Jury.

The case didn’t really get off the ground, though, until deals were made with Medellin and Mendares. After their deals were struck, indictment swiftly followed.

Indictment resulted in suspension, of course, without pay. Enter Felipe Alarcan, Richard’s brother, who is better known as “P.L.” P.L. had been married, but was not married at this time, and the most important people in the world to P. L. were Ramon, his wife, and kids. P.L. helped Ramon get set up in the taxicab business, driving his own cab, while the case was pending trial; I don’t know what they’d have done without him.

The case was prosecuted by lawyers from the Civil Rights Enforcement Division in Washington. The office of the local United States Attorney offered assistance, but everything except for logistical help was declined. That, in my opinion, was a serious mistake, since the Washington lawyers simply didn’t know how to talk to a San Antonio jury—even if they’d had a case.

Although those who had assisted Mendares in strangling Necho Solis were indicted, along with a couple of women who were alleged to have carried heroin into the jails, the real targets were Sgt. Alarcan and Captain O’Brien.

As a matter of fact, a civil rights prosecution of this sort could not be brought against private citizens without alleging that they were in cahoots with one or more law enforcement officials, as the civil rights violation occurs only if what is done is done by persons acting ‘under color of State law”—i.e., exercising some dominion and control arising out of their employment as state or local peace officers.

Only one of the alleged drug couriers, one of the stranglers, and the two deputy sheriffs went to trial together. The other stranglers, who had already been convicted in State court for the murder of Necho Solis, plead guilty to violating his civil rights.

I won’t recite the details of the trial, but I’ve got to mention the testimony of Medellin and Mendares as to why they had become government witnesses. It had nothing to do, of course, with their having been placed in the witness protection program and given new identities, rather than spending the rest of their lives in the penitentiary, as each so richly deserved. No, Medellin was testifying for the government, he said, because he had “found God” and “had to get things straight with the man upstairs.” Mendares was doing so for the same reason he had killed Solis in the first place—out of a deep and consuming concern for the welfare of his family!

As I said earlier, the jury acquitted Capt. O’Brien on both counts and Sgt. Alarcan on all three counts. Anybody who was in the courtroom to watch the amazement on their faces as Medellin and Mendares testified first about what they had done and then about how and why they had done it and, finally, about their motivation for testifying, was in no way surprised by the verdicts.

I’ve heard a lot of prosecutors over the years arguing the necessity of “making deals” to obtain critical testimony, and there is no question but that it is necessary. Since the Devil is not found in Heaven, a deal to get the Devil has to be “made in Hell,” no doubt about it.

The problem was that in this case, the government had made deals with the devils themselves in order to try to convict decent, honest Ramon Alarcan and James O’Brien, against each of whom there was virtually no other evidence. Ramon Alarcan never went back to the sheriff’s office. He had always loved being a peace officer, and was a darned good one. The loss was ours.

The Kibitzer Case

Perhaps the most unusual appearance as attorney of record in a case I ever experienced occurred in a case in which the government had already rested its case before I became involved.

Gerry Goldstein, a San Antonio criminal defense lawyer who has now established a national reputation and who had al­ready established a regional reputation at the time, was representing a South Texas banker who was something of an operator, having arranged to obtain controlling interest of several different banks in a very short period of time. Gerry was also representing his wife, who was not involved in the banking business, but who had signed (because of Texas’ Community Property laws) certain documents that were important to the prosecution of her husband, thereby causing the Grand Jury to name her as a codefendant in three counts of the many-count indictment against her husband and two of the bank officers.

Since she clearly had no actual involvement in the banking operations of her husband, it had been anticipated that when the government concluded its case in chief, the judge would grant an instructed verdict of Not Guilty as to the wife. To everyone’s chagrin but to the particular chagrin of the banker’s wife, that did not occur.

At that point, though the relationship between husband and wife continued to be just fine, the specter of a conflict of in­terest raised its head.

While the wife did not wish to injure her husband, who was already in enough difficulty, she certainly didn’t want to go down with him if he did go down, since she had nothing to do with the banking machinations that resulted in the indictment.

The husband, too, though profoundly interested in his own defense, wanted to see to it that his wife was exonerated, whatever happened to him.

Thus, after several days of trial, none of which I had seen and none of the issues of which I really understood, I was asked at this juncture to undertake the separate representation of the wife.

I was acquainted with the issues in the case and the evidence relevant to the defense of the wife over a weekend, by Gerry and a young lawyer who was working with him.

There was a substantial potential prejudice to both my client and her husband if it was suddenly announced to the jury in mid-trial that I was now representing the wife. We certainly couldn’t tell them why I was now entering the case, and we couldn’t afford to invite their speculation. After some discussion, therefore, it was agreed that I would sit in on the trial and would suggest any necessary questions to be asked of the witnesses for the benefit of my client, and Gerry would ask them. Only if a situation arose in which the wife’s lawyer was duty bound to ask a question that would be contrary to the interests of the husband would I step forward, announce my status as wife’s lawyer, and ask the appropriate questions.

Further, I would not argue the case unless an argument adverse to husband’s interest needed to be made on behalf of the wife.

I don’t think either lawyer or either client was entirely satisfied with this arrangement, but it was the best we could make of a difficult situation.

For the next several days, while the defendants put on their case, I sat at the defense table between Gerry and my client, listening very carefully to the testimony and conferring periodically with one or the other of them. To his very great credit, Gerry was able not only to bear in mind the separate interests of the woman who was now my client, but was able to ask every question and raise every issue necessary to her defense without ever jeopardizing his own client. Nevertheless, our mutual discomfort continued.

It was particularly hard for us to jointly decide that Gerry would argue for both defendants; but it was finally agreed that she would be served no better by separate argument by me in her behalf than by Gerry periodically noting that, whatever husband’s involvement was, it was perfectly clear that wife was not involved, and that when she signed documents she did so as an accommodation to her husband, not really understanding the transactions involved.

Gerry argued the case very well on behalf of husband and wife—well enough, in fact, that the jury acquitted the husband on a large number of counts, though convicting on some. I breathed easier than I had since becoming involved, moreover, when I heard the magic words “Not Guilty” pronounced as to each of the counts against the wife.

In retrospect, it is strange to realize that some of the most anxious moments I ever spent in a courtroom were spent sitting beside a lovely lady and trying to look intelligent while Gerry Goldstein got her acquitted.

Note: In the March issue of Voice for the Defense, Judge Priest’s article, “A Lesson in Double Jeopardy,” was inadvertently truncated by a problem in file translation. We regret the error: The responsible employee has been properly flogged and the story reconstituted in its entirety and uploaded as the new online version. It may now be viewed beginning on page 37 at this link: http://www.voiceforthedefenseonline.com/newsletters/2016/Mar2016.pdf.

The Star Expert in the Pre-Columbian Artifacts Affair

The Pre-Columbian Artifacts case had already been tried and appealed once before I ever became involved in it. The Defendants had all been convicted, both of transporting the artifacts in international and interstate commerce and of conspiring to do so. The Fifth Circuit had sent the case back to Judge John H. Wood of the United States District Court for the Western District of Texas for retrial, because of an error in his instructions to the jury on the Mexican law concerning “National Monuments” in the first trial.

My client, a young man from Tennessee who was the beneficiary of a trust fund that had been exhausted by the time of the retrial, was unable to afford counsel to represent him this second time around. Judge Wood appointed me to represent him. With two exceptions, all the others were represented by the attorney who represented them in the first trial and appeal. One of those had not been arrested at the time of the first trial, and the other had decided to represent himself the second time around. As it turned out, the defendant who was not involved in the first trial was also not involved in the second, as he was found to be incompetent to stand trial. Before that determination was made, though, his (also court-appointed) attorney, Tom Sharp, was of invaluable assistance to those defendants and their attorneys who did go to trial, because of his devotion to duty and attention to detail.

Tom (since, tragically, dead in his early fifties of a brain tumor), with his outstanding preparation on the law and the facts and, in particular, his work in locating an expert on Mexican law to assist defense counsel and testify at the trial, convinced me forever that a good trial lawyer, properly motivated by a sense of responsibility to the client and the court, can handle whatever case comes his way.

The defendants in the case were all very normal people—with no prior involvement with the law—who steadfastly maintained their innocence of any wrongdoing. The government’s evidence began with the fact that it had been brought to the attention of the FBI that a group of people had a quantity of terra cotta pre-Columbian artifacts on display at a motel in San Antonio. An employee of the Mexican government working at the San Antonio branch of the Universidad Nacional Autonomico de Mexico (UNAM) had been to the motel and seen the display and contacted the FBI immediately thereafter, concerned as to how such an extensive display could be in private hands, given the then current state of the Mexican Law.

It was the position of the Republic of Mexico, as fully expounded by government lawyers associated with the Instituto Nacional de Antropologia e Historia (INA) in Mexico City, that Mexico had over 40 years earlier declared national ownership of all pre-Cortesian artifacts not already in private ownership and possession. (Mexico dates such artifacts with reference to the arrival of Hernan Cortes in 1512, and not Columbus’ arrival in the New World in 1492. Given the virtual irrelevance of Columbus to Mexican history and the central position occupied by Cortes, the approach seems more than reasonable.)

By other enactments, the Mexican government representatives testified, the exportation of such items from Mexico without the express permission of the Mexican Government was outlawed—and permission had never been granted to anyone other than museums and universities to export them. The law was designed, they made very clear, to preserve the national patrimony of Mexico, and to prevent the looting of ancient ruins and burial grounds.

The American government, for its part, took the position that transporting these items across the USA–Mexico border, in view of the status of Mexican law, constituted theft. Thus, said the Justice Department, transporting the items in international or interstate commerce constituted a violation of the National Stolen Property Act, which prohibits so transporting stolen property.

To avoid clogging the Federal Courts with small cases, Congress set a minimum value of $5,000 on stolen property before the case could be heard in Federal Court. To prove the property was worth at least that much, the prosecution had lined up an internationally recognized archaeological expert on pre-Columbian artifacts, who assured that the value of these artifacts far exceeded that minimum value, and in fact exceeded $100,000.

The artifacts had been brought to San Antonio by an aging California widower, who had no luck in selling any significant amount of the items before he had to return to California. By the time he left, he had struck up a relationship with a San Antonio salesman, and the salesman had convinced him that he’d have a better chance of selling them if he left the artifacts in San Antonio, where, the salesman assured him, he’d be able to find buyers.

The artifacts were left in San Antonio, and the salesman in turn got a Houston woman (who had once lived in Central America and knew something about artifacts), the young man from Tennessee (who had a few dollars to spend in flying himself and the salesman around the country with samples, trying to interest buyers), and the salesman’s own wife (who answered their home phone when calls were made by the FBI) involved with the artifacts. All were subsequently indicted.

When the FBI was called by the employee of UNAM, a phone call was made to the salesman in San Antonio, under the pretext of an interest in purchasing all the artifacts and any additional artifacts that he might be able to come up with. The salesman, not wanting to lose a “live one,” gave assurances, not only of the quality of the goods on hand, but of his ability to deliver all the caller might require in the future.

It was agreed that a display of the artifacts would be arranged in a different San Antonio motel, where salesman and caller would meet several days later. At this point it was necessary for the Houston and Tennessee defendants to become involved, for their knowledge of artifacts and ability to finance the showing, respectively. They came to San Antonio, rented a suite of rooms, and set up a display of the artifacts.

When the meeting came about, there were again discussions of the ability of the sellers to deliver additional quantities to buyers, who by this time were representing themselves to be with “The Syndicate,” interested in cornering the American and European markets for pre-Columbian objects. Undaunted, salesman assured buyers that there were “Indians digging up graves” even as they spoke, and sellers could meet any future demands for further artifacts.

It was and is the position of all the defendants in the case that there were in fact no Indians and no possibility of further artifacts becoming available, that the salesman was simply engaging in “puff talk.”

As we were preparing for the second trial, it seemed clear that we were going to have to defend with technical defenses, as the defendants had tried unsuccessfully to convince the jury, in the first trial, that all the talk with the undercover FBI agents was just talk, and had rather obviously not been believed.

Therefore, we began to view the case from the point of view of defending based on a differing interpretation of Mexican law—as well as from the point of view of contesting the authenticity and the alleged Mexican provenience of the artifacts.

If Mexico had not declared na­tional ownership of the artifacts so clearly as was being asserted, then importation of Mexican artifacts would not necessarily constitute a theft under Mexican law. Moreover, if the artifacts could not be proved to have come from Mexico, then Mexican law would be irrelevant; pre-Cortesian artifacts of a nature somewhat similar to the majority of the artifacts in our case could be found in Honduras, Belize, and Guatemala, if not elsewhere in Central America.

Of course, if the items were not pre-Cortesian the entire prosecution would fail.

It was in the area of finding us an expert on the Mexican law of “monuments,” as ruins and grave sites are called in Mexican law, that Tom Sharp did such yeoman service. He found us a bright and energetic Mexico City lawyer who had studied both in Mexico and the United States, held advanced degrees in international law, and had served for a time as a law professor in a California law school. He confirmed our impression of the Mexican law of monuments, namely that the laws were contradictory and somewhat convoluted, and that one simply could not engage in the dogmatic assertion that a clear declaration of national ownership of such property had been made.

My attempts to deal with the other issues (the authenticity of the artifacts and their Mexican provenance) I will now set forth in some detail.

During the several years that passed from the time the defendants in this case were first charged until the denial of their writs of certiorari to the United States Supreme Court after the second appeal, dealers and collectors of pre-Columbian artifacts and museums all over the country maintained a very active interest in the case. The opinion was widely (though not universally) held by such people that the defendants in the case were scapegoats.

 Accordingly, curators and dealers were usu­ally not merely willing but eager to talk with counsel about the case—so long as it was off the record. Nobody wanted to be identified by the government as being friendly to the defense, lest too close a look be taken at collections in which they had an interest.

All the lawyers tried to find us an expert, but none succeeded, and we went to trial without one.

I had been surprised when I learned that the government expert’s opinion was based entirely on his experience and his having “eyeballed” the artifacts. That kind of evidence certainly had been deemed insufficient in other types of cases (imagine a drug case without a chemical analysis of the substance involved, or a police officer’s testimony that a red stain was blood without serological work), and I thought the jury would like to have something more concrete.

I had done some reading on the subject (I took a back seat to no one, when originally appointed to this case, in my thorough ignorance of pre-Columbian artifacts and the law concerning the same) and learned a little bit about where these objects may be found. As I learned at the public library, carbon dating techniques do not work with terra cotta objects, as they contain no organic material. There were, however, two scientific techniques that had been used in this area; one was the technique, already known to me in other types of cases, of neutron activation analysis. There were, so far as I could determine, only two labs in the country capable of neutron activation analysis at that time—but one of those labs was that of the Federal Bureau of Investigation! The other technique, much less expensive and somewhat more readily available, was called thermoluminescent dosimetry.

The FBI had used neither technique, and the government was asking their peers to find these defendants guilty. I was prepared to argue to the jury, without having subjected the material to either of two scientific tests, either of which could have established the age of the articles beyond cavil, leaving only the provenience at issue.

By the time the case came to trial, Tom Sharp’s client had been declared incompetent to stand trial, so we didn’t have Tom with us at the trial. We did have the Mexican legal expert Tom had lined up, however, and he testified very straightforwardly and, I thought, advantageously to the defense.

Early in the trial we made some good points, I thought. The FBI had used a Houston mortgage-loan man who apparently just liked to play cops and robbers as the contact point with the defendants. It was he that told the salesman he was with “The Syndicate” and was out to control the American and European markets in pre-Columbian art.

He had done a great deal of this sort of “play acting” in earlier cases with the FBI, to the extent that he had acquired something of a reputation in the Houston area for being a bit flaky. Just for grins, as they say, I asked him on cross-examination if he was familiar with his own reputation for truth and veracity; when he said that he was, I asked whether the reputation was good or bad. He said “about fifty-fifty”!

Further, while sticking to his guns that his eyeball identification was as reliable as any identification that could be made on the authenticity of the objects, the government’s artifacts expert did admit that both of the scientific methods could have been employed and would have given scientific evidence on the issue.

About the second night we were in trial, I returned to the office and discovered a telephone message. The caller identified himself as an archaeologist from an eastern university, on sabbatical and teaching at the Defense Language School at Lackland Air Force Base in San Antonio. He felt that my client and the other defendants were being made scapegoats, and wanted to know if he could be of help. He left a San Antonio phone number. This sounded, of course, like the expert witness we had been looking for, the deus ex machina who was going to deliver us from the hands of the Philistines.

I called at once, and reached him. After verifying that my secretary had gotten it right—that he was incensed at what was being done to my client and the others and wanted to help—I began trying to set up a time and place to meet with him.

We met at the appointed hour, and I began to size him up. He was an ordinary-looking sort of fellow, apparently in his late thirties or early forties, and began immediately to ask questions—like whether the artifacts had been analyzed with thermoluminescence or neutron activation. Warming to him, I enthusiastically explained that such testing had not in fact been done. He was shocked, and allowed as how he would never venture to offer the opinion that a particular artifact was authentic unless such testing was done.

Talking further, he explained that his interest in anthropology had caused him to go on after obtaining his bachelor’s degree to obtain two master’s degrees (one in Spanish but the other in linguistics, a branch of anthropology) and his PhD in archaeology, the last from the University of Nebraska.

Enthralled, I told him that I was court-appointed in the case, as were all other defense counsel for this second trial, and I was unsure how much of an expert witness fee would be payable, as these things were usually settled via motion prior to trial. He assured me that money was not his motivation, and I assured him that I would try to get him paid what the government’s expert was being paid.

We agreed that he would appear at the Federal Courthouse the following morning, when I would announce to the Court his entry into the case as the defense artifacts expert and make arrangements for him to inspect the artifacts, in the courthouse vault while the trial continued.

I had explained to our newfound archaeologist that I understood he would much prefer scientific testing, but that at this late date we were going to have to rely on his eyeball opinion. The next morning he appeared at the courthouse as agreed, where he was introduced to the Court and arrangements were made to let him inspect the artifacts. He spent the entire day doing so.

That night, I met with him for a preliminary report to determine whether he was going to be able to help us. I couldn’t have been happier with what I heard. Many pieces, he said, were of doubtful authenticity and certainly could not be said beyond a reasonable doubt to be pre-Columbian. A number of pieces appeared to be authentic, but were the sorts of pieces that could be found in various parts of Mesoamerica, and certainly could not be said beyond a reasonable doubt to be of Mexican provenience. Finally, those pieces that were clearly authentic and clearly Mexican were undistinguished pieces of limited value, and clearly were not worth the $5,000 necessary to support this National Stolen Property Act prosecution.

The next morning, I advised the Court and the prosecutors that the defense at last had its long-sought artifacts expert, and that, in due course, he would be testifying.

In due course, he did, and in response to my questions he supported the defense position manfully, on every issue. I took him step by step through his testimony, refuting the evidence of the government’s expert point by point. “Please explain the technique known as thermoluminescent dosimetry, doctor” and “Why isn’t it possible to know the exact provenance, doctor” were the order of the day.

At the close of my direct examination of him, a very pleased and self-satisfied lawyer took his seat to await eagerly the prosecutor’s best efforts at shaking the witness’ testimony.

The cross-examination began on what seemed a particularly weak note.

“Now, let’s see, doctor. Just exactly how many hours of archaeology were involved in your studies for the bachelor’s degree?”

“Oh, not many, I guess. In fact, as I think about it, I probably took just one three-hour introductory anthropology course.” (Big deal, I thought—who cares how many hours he took towards his bachelor’s. I mean, after all, the man has his PhD.)

“And then, doctor,” the prosecutor continued, “one of your master’s degrees was in Spanish, was it not? A modern language, not in any way connected with linguistics or any other branch of anthropology, much less archaeology?”

“Yes, that’s true,” the witness replied. (Another big deal, I thought—let’s get on with the relevant portions of his education.)

“But you then went on to obtain your master’s in linguistics, didn’t you doctor, and that is legitimately part of the field of anthropology, though not specifically archaeology, isn’t it?”

“Yes,” he replied, smiling condescendingly. “I did, and it is.”

“Now, you’ve said you obtained your PhD in archaeology at the University of Nebraska, isn’t that correct?”

“Yes, that’s right.”

“And what year was that, doctor?”


“Now, then, doctor, can you explain to me why the registrar of the graduate school at the University of Nebraska has no rec­ord of the Doctor of Philosophy degree having been awarded to anyone by your name, in 1975 or any other year?”

(Long pause by the witness. Collective inward groan by all defendants and their counsel.)

“Well, actually, it’s an ABD.”

“An ABD,” the prosecutor inquired. “Perhaps you can explain to the members of the jury what an ABD is?”

“All but dissertation,” the witness muttered. (You sorry son of a bitch, I thought. May you be struck by lightning where you sit.)

“Well then, I guess it’s not doctor; it’s mister, isn’t it?”

“Yes,” said the witness. (No, thought defense counsel, it’s mud.)

“Well then, mister, let me move along to something else.”

With that, the prosecutor pulled from his briefcase a textbook. I don’t remember the correct name of either the book or its author, but the colloquy with the witness went something like this:

“Are you familiar with the name of Joaquin Tall?” (we’ll say, for my lack of memory of a better name).

“Yes, I am,” mister witness replied.

“And could you tell the ladies and gentlemen of the jury who Joaquin Tall is?” the prosecutor asked, ever so gently.

“Why, he is one of the best known authorities on the pre-Columbian artifacts of Mesoamerica in the entire world,” the now ever-so-helpful witness replied.

“And are you familiar with his book Diggin’ Up Bones ’n’ Stuff in Mesoamerica [again, I don’t remember the proper name]?” the prosecutor queried.

“Why, yes I am. It’s one of the most authoritative works in print on the subject,” said Mr. ABD.

“I’d like to read a brief passage from the preface, if I may. Please listen as I do so, as I’ll have some questions about it after I’ve read it.”

The prosecutor then read perhaps a page from the preface, which was directed to professionals in archaeology and art history. After making a basic point, the author moved on to a specific example.

It seems he had, on one occasion, gone to an archaeological site with the director of Mexico’s INA. They came across a scene where a “rough quadrilateral” had been marked off by four sticks stuck into the ground, presumably marking a dig.

There, within the quadrilateral, were an “archaeologist” (the prosecutor indicated the quote marks by raising both hands with the first two fingers of each hand extended) and two Indians. One Indian was holding a paper sack, and the other had a large shovel. The Indian with the shovel would periodically, on command of the “archaeologist” (hands aloft, two fingers extended again), stick the shovel into the ground and come up with a shovelful of earth.

The “archaeologist” (yes, fingers up) would rake through the shovel full of earth “with the same sort of trowel that one might find in the hand of any English lady gardener on a balmy summer afternoon” and, if he found anything, place it in the sack held by the other Indian.

With that, the prosecutor stopped reading and raised his head. “Mister witness,” he said. “Can you tell us who that ‘archaeologist’ [the damned fingers are now wagging like semaphores at the end of each hand] might have been?”

“Me,” he replied.

Not “no, I can’t,” not “I don’t know,” not even “it was me, but I have an explanation.” Just two little letters, one little word: “Me.”

Now, of course, the jury didn’t want to hear about non-Mexican provenience; they were totally unconcerned about thermoluminescent dosimetry. What they wanted to know was where did the defense get this witness? Did they know he was a fraud? Can we believe anything that comes from the defense table?

All I could think of to do on redirect examination was to ask him if he had told me he had the PhD degree (“Yes”), and would he please step down.

I thus hold what I believe to be the North American record for having an “expert” witness crammed down one’s throat. A lawyer doesn’t get to set a lot of records, so I guess I’ll take some solace in that.

The irony of the situation is that the testimony did make sense and would have been admissible even without the claim of a PhD. Of course, swallowing the reference in Joaquin Tall’s preface would have been a little tough, but there is simply no surviving an irrefutable demonstration that a witness has lied.

The defendants were again convicted. I really believe that had I obeyed the age-old admonition to “beware of Greeks bearing gifts” and never put the witness on the stand, it might have been otherwise.

The Fifth Circuit reversed the substantive count, holding that the Mexican law of national monuments was such an “arcane thicket” that convicting any American of transporting artifacts would violate the United States Constitution’s guarantee of due process to those accused of criminal conduct.

However, based on the salesman’s “puff talk,” they further held that there was evidence upon which the jury could permissibly conclude that the group was prepared to break the Mexican law—whatever it might be—and thus the conspiracy conviction was upheld.

I’ll bet the salesman still thinks he could have sold the jury if only that lawyer hadn’t put that phony “expert” on the stand.

The hell of it is—and this hurts to admit—he might be right.