Lydia Clay-Jackson

Lydia Clay-Jackson, the 2012-2013 TCDLA President, has been a member since being licensed in 1985. Her primary office is in Conroe, but you may often see her in most East Texas courts. She was board certified in Criminal Law in 1996 and has tried everything from traffic tickets to capital murder. Lydia is past president of the Montgomery County Criminal Defense Bar Association, as well as past chair of Lone Star Legal Aid, presently serving on its Executive Committee. She is a member of the SBOT Criminal Justice Section and a former member of the SBOT Committee for the Poor in Criminal Matters. She has presented at seminars for SBOT, various local bar associations, and TCDLA and CDLP. She is a SBOT FELLOW as well as a TCDLEI Fellow and Super Fellow and a Life Time Member of NACDL. She serves actively as one of the Deans of the Texas Criminal Trial College.

President’s Message: A Tip of the Hat – By Lydia Clay-Jackson

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It has been a pleasure.

Being President of our great Association has been a grand life experience and one of my greatest personal pleasures. I may not bleed TCDLA, as does Randy Wilson, but my heart is truly with our Association and each one of its members.

Gerry Goldstein started me on this saga, David Biers and Edward Mallet mentored me through my baby lawyer stages. Scrappy Holmes, Tim Evans, and Bill White found a place in TCTC where my skills could truly serve our Association. Betty Blackwell and Cynthia Orr forged and paved a path that was a joy to travel. Richard Anderson and Ron Gorenson’s lectures on ethics have been, and yet remain, my personal compass’ true North. These women and men are just a few TCDLA members who deserve my gratitude.

I am most pleased that through the tireless efforts of our lobbyists (Allen Place, David Gonzalez, Kristen Etter), our Legislative Committee (Mark Daniel, Susan Johnston), and our new President, Bobby Mims, we do not have reciprocal discovery. These men and women tried hard to get the Texas Legislature to understand the differences between Brady violations and pretrial discovery. When next you see these individuals, give them a big “thank you.” They did our Association proud.

I will continue my efforts in getting the SBOT to put meaning in Brady violations. Stan Schneider and Craig Jett are working on this issue with TBLS. When these men work on an issue together, failure is not an option. We should be pleased that Buck Files helped SBOT understand that there is no such thing as a “little” Brady violation. The manner in which he illustrated this absurd phrase was indeed most poignant: “A little Brady violation…  Oh, that must be a violation where the person only is wrongly imprisoned for 5 years instead of 28 years.”

It has been a grand pleasure to work with TCDLA’s home office staff. Joseph has assembled one of the most congenial, helpful group of young men and women who are dedicated to the cause of making the lives of TCDLA members easier and more productive. When next you are in Austin, take the time to drop by the home office; you will be treated like visiting royalty. A grand thing about this group of people is that they earnestly consider members’ suggestions about improving services.

It has been my pleasure to work with the women and men of TCDLA who have selflessly given of their time and talents for the benefit of their colleagues. Gary Trichter and Robert Fickman’s organization of the annual reading of the Declaration of Independence should inspire us all to action on behalf of TCDLA. When we ask, “What can I do to help TCDLA,” we truly embody the spirit of TCDLA. We are indeed an Association dedicated to helping one another in this ever-constant struggle to protect and ensure individual rights. There is a place in TCDLA for your unique talents. All you need do is ask, “Where can I serve.” I ought to know.

Good verdicts to you.

The Hat Lady

President’s Message: Hats Off… – By Lydia Clay-Jackson

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When next you see Allen Place, David Gonzalez, Kristin Etter, Mark Daniel, Sharon Johnson, and Bobby Mims, give them a big THANK YOU. These criminal defense lawyers were extremely effective in maintaining the balance in our courtrooms. Their work with the legislators and their aides proved to be most fruitful. Every one of these individuals worked tirelessly on our association’s behalf, and thus, finally, for the residents of Texas. Primarily because of their effort we’ll not have reciprocal discovery come from this session of the Texas Legislature. However, for the next two years, we must earnestly work to educate our legislators on the differences between “Brady” and “Discovery.”

I would like to thank those members who took to heart President Kennedy’s challenge and asked what they could do for our association. I sincerely hope the TCDLA committee chairs I steered you to were helpful. It is most heartening to have members who want to volunteer their skills to “just help” other members. Our organization is fortunate to have so many truly altruistic members.

I would like to thank the staff at our association’s headquarters; they are doing a wonderful job in keeping us moving forward, from seminar arrangements to fulfilling the different committee needs.

I would like to thank you in advance for mentioning to your TCDLA district board member that you have not yet had the pleasure of reading their article in the Voice, but certainly are looking forward to it. I would like to thank all those board members who have fulfilled their responsibility by submitting their articles.

Good verdicts to you all,

The Hat Lady

President’s Message: Say It Loud – By Lydia Clay-Jackson

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Say It Loud: “I am a Criminal Defense Lawyer and I am proud.” This month we celebrate the 50th anniversary of the United States Supreme Court decision in Gideon v. Wainwright, 372 U.S. 335 (1963). The Court found that what we do is a fundamental right of the Accused, a right that is essential to a fair trial. The Justices found, “Lawyers in criminal courts are necessities, not luxuries” (id. at 344).

In the years since Gideon was decided, states have developed ingenious ways of carrying out the law. Texas has statewide public defender systems, court-appointed counsels, and hybrids of the two. Regardless of the state’s system of administration of indigent defense, money—not the representation of the Accused—is always the foremost stated concern.

About fifteen years back, the SBOT committee for Services to the Poor in Criminal Matters, under the leadership of Allen Butcher, commissioned a study through the University of Texas at Arlington to collect empirical data regarding legal services to the poor. Michael Moore, PhD, supervised the study and data collection. Dr. Moore’s report back to the committee recognized that fees paid to court-appointed counsel should take into account the lawyer’s overhead. Further, that fees should take into account the duty and time of lawyers to investigate the case before advising their clients, so as to provide effective assistance of counsel.

State Senator Ellis acknowledged the importance of Dr. Moore’s study, and courageously recognized some years back that Texas should honestly give more than just lip service to the principals enumerated in Gideon. Through the senator’s tireless efforts, we have the Indigent Defense Act. James Bethke and his staff of the Task Force on Indigent Defense more than ably administer this Act. The focus of the Act and the Task Force is effective and due process–oriented legal service to the indigent Accused. This focus is not only morally correct but also mandated by our Texas and United States Constitutions.

All Texas counties, through their county commissioners and judges, hold the responsibility of implementing the Indigent Defense Act for legal services. These “public servants” elected to serve the residents of their respective counties must realistically balance the needs, of the residents, with the finances available. We as Criminal Defense lawyers know and appreciate this balancing act. Nonetheless, the practice of having criminal defense lawyers financially subsidize the counties is just wrong.

Justice Hugo Black, at the conclusion of the argument on Gideon, publically acknowledged the country’s indebtedness to those lawyers who represent the indigent Accused. The Justice reflected on his experience as a county prosecutor, revealing that states spend vast amounts of money on hiring prosecutors and police. “Black wanted to make the courtroom battle a fair fight” (May It Please the Court, Irons and Guitton, The New Press 1993).

Counties who have “flat fees,” “$150 pleas,” “$30 per hour fee for experts” (who, by the way, generally have lowered their usual fee), and the like are thumbing their nose at Gideon and the efforts of the United States Supreme Court to ensure a fair fight. When sued in their official capacities, county commissioners and judges, I am more than positive, retain their lawyers, at county expense, and those lawyers are not subsidizing the counties. Equal Protection under the law, guaranteeing that all men are created equal, is not just a phrase; it is a cornerstone of our legal system. Flat fees and the other like perversions in no way guarantee a fair courtroom battle; instead, they give the accused a paper shield to ward away the State’s AK-47 ammunition.

What flat fees and the other like perversions do not take into account is that Criminal Defense lawyers represent human beings. These clients are as different from one another as those people who have not been accused of a crime. Take for example a young man who at 17 acts as flag man for a drag race (in two different counties), and he is arrested both times. He goes to “jail docket,” both times, where the judge, in both cases, gives him his three options: 1) retain your own lawyer; 2) represent yourself, but understand the DA is not your lawyer; or 3) ask for a court-appointed lawyer. He is 17, he does not want his grandmother to know he spent a night in jail, and he just wants and needs to get out. His grandmother brought him up to tell the truth, so he pleads guilty, both times, for time served.

When he turns 19, he moves to a different county, where he becomes the sole, stable bread earner for his family of two younger siblings and their elderly grandmother. His drag-racing buddies feel sorry for him and agree to pay him to act as flag man again. He does, he gets busted, and imagine his dismay when he finds out he is being charged with a state jail felony! Thanks to Gideon he gets a court-appointed lawyer who takes his TIME and diligently performs his duty. The Criminal Defense lawyer takes the time to get the records from the other two counties and negotiates with the prosecutor for a most favorable disposition that did not result in probation fees or a conviction. The Criminal Defense lawyer also took the time to help his client get his license reinstated from the prior misdemeanor convictions. The client was not even aware of his license suspension, as DPS does not use certified mail. The resolution of this case took more than 26 hours, and the lawyer would only receive a flat fee of $400 or even $150! You do the math. It just is not right. Nevertheless, who cares—the lawyer is court-appointed and the client is poor. WE CARE, the client’s grandmother cares, and, most assuredly, TCDLA cares.

In representing the poor, Criminal Defense lawyers, both private and public defenders, attend CLE at their own expense and without per diem. They frequently make a conscious decision to guarantee resources needed to defend their client, using their own money. Counties seemingly have adopted this practice as a matter of course and fact. My goodness, organizations who adopt a “mile” of Texas highway receive acknowledgment by signage on the highway! Not seeing beer cans on the shoulders of Texas highways seemingly is more important that what happens in the courtrooms of Texas.

Most county commissioners are not lawyers, but the judges who make the decisions regarding payment for court-appointed fees are. The foundation under those black robes is a license to practice law, just like the license held by the lawyers doing court-appointed work. Every one who holds a law license is a full brother or sister to all those who hold a law license. We are all equal siblings to the practice of law. None of us should use the power given us to demean members of our family, just because we can. (It makes us dysfunctional.) If we truly desire to have the public respect our judicial system, we must show respect to all those who work within the system. It bears repeating: “Lawyers in criminal courts are necessities, not luxuries.”

Criminal Defense lawyers, whether we accept court appointments, work for public defender organizations, or take only retain cases, deserve support and gratitude in the same regard as those men and women who serve in the Armed Forces. We all make knowing sacrifices to defend what is right and true about our American sense of justice. Some fight with bullets, others with words, but all fight valiantly for all residents of this country. Criminal Defense lawyers fight for the protection of all residents of this country, not only by the words of the law, but by its spirit as well. Criminal Defense Lawyers who accept court appointments and those who choose to work with public defender offices do so knowing the fee and salary they are making in no way compare to a retain fee. And they should not, as the clients represented are indigent—POOR. The representation of the poor is very important if we are to fulfill our “oath” as lawyers. Having Criminal Defense lawyers subsidize the system in which they work is just as wrong has having our fellow Americans in uniform purchase the equipment they need.

“A lawyer’s time and advice, are his stock and trade.”

—President Abraham Lincoln

Good Verdicts to you all,
The Hat Lady

President’s Message: Moving the Docket – By Lydia Clay-Jackson

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I would like to thank publicly our SBOT President, Buck Files, for making a demonstrative effort to include ALL lawyers in policymaking decisions for the Bar.

As TCDLA President, I join with all TCDLA members in taking pride seeing the names of its members listed prominently on the rosters of SBOT committees. The filling of these positions by our SBOT President has finally given criminal defense lawyers a seat at the big “table.” I am thankful for this demonstration of respect for criminal defense lawyers. Thank you, President Files.

In response to inquiries on our Young Lawyers/Law Student listserve, this article is written.

Graduating from law school when all state post-graduate schools were 4 dollars a credit hour and 40 dollars an hour for out-of-state students perhaps shades one’s understanding. Today, post-graduates may be burdened with school loans the size of a home mortgage—without the home. Regardless, when a person passes the bar and takes a job with a district attorney’s office, they are charged by law “not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.” CCP Art 2.01.

Think, if you will, of those perversions of justice called “Jail Dockets.” Here, those who find themselves charged with various misdemeanors are gathered to be coerced, by circumstance, to take “timed served” offers. Even more illustrative are those “today only offers”: The defense lawyer is hard pressed to illustrate to the client that more time to investigate may serve to dem­on­strate their innocence, or at least, whether they may be culpable of a lesser offense. Both these examples of perversions of justice are initiated, with impunity, by those who are bound by law to seek justice, not merely convictions. Willingly initiating these practices, to “move the docket,” may be the excuse to justify the actions, but honestly, it is merely an illustration of blindly following an easy way to keep a paycheck. Under such circumstances clients coerced to make quality of life decisions rightfully lose respect for the justice system.

How is it that these practices are not seen as the legal example of “the Emperor’s New Clothes”? There is not a shred of justice in these practices. Yet as glaring as these injustices are, we hear not a word from those who make law. Instead, we, the stalwart defenders of our fundamental rights, are accountable when these practices backfire. As criminal defense lawyers forced to participate in this perfidy, we must nonetheless relay all offers to our clients. In spite of this, we do all we can to protect those who have entrusted their liberty and lives into our skills.

Moving the docket is only one of the inane reasons for these practices. Undoubtedly, the docket will move just as quickly with just a bit more effort and “thought” on the part of those charged by law to seek justice. Would not statements such as, “I will dismiss this because the complainant cannot be found,” or, “I will dismiss this because the video, which the officer wrote in his report stated he showed the accused committing the offense, cannot be found,” move the dockets just as quickly? Intellectual honesty, a bit of time and “thought,” on the part of those charged by law to seek justice, not conviction, will go a long way in re-establishing respect in our system.

To the young criminal defense lawyer: Do not compound these half-baked perversions by violating your Professional Responsibility. Ask the prosecutors if their offers were made because of “policy,” and if so how, ask how justice is served in this particular case. Note their responses in your file. Do not bring your client before the bench to reveal your communications with words such as, “Did I tell you that the DA’s offer was ‘x’ and that I thought with investigation the case might be dismissed or the charge could be ‘y.’” Did you get your client’s permission to put your discussions on the record, or did you simply say YOU wanted to put it on the record? All you need do is get your client to sign off on your drafted written waiver of the contents of your discussion. Then place the document in your file. We must give concerted thought on how to bring about meaningful change. Change will come by documentation not anecdotal recollection.

We are not unlike Kermit and his green color; it is not easy being a criminal defense lawyer, but we would rather not be anything else.

Rarely do we find men who willingly engage in hard, solid thinking. There is an almost universal quest for easy answers and half-baked solutions. Nothing pains some people more than having to think.

—Martin Luther King Jr.

Good verdicts to you all.
The Hat Lady

President’s Message: You Just Have to Come – By Lydia Clay-Jackson

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Wow, if you have not attended one of the seminars that our organization has presented, you have missed something special. TCDLA and CDLP seminar course directors are fantastic, and we should all give them a rousing round of applause for the work they have performed in providing quality education to criminal defense lawyers throughout the state. You owe it to yourself, to your client, and to our profession to attend at least two of our seminars. Thanks to the financial responsibility of Texas Criminal Defense Lawyers Education Institute (TCDLEI), there are, once again, scholarships available for TCDLA seminars.

Before there was mandatory CLE, there were TCDLA seminars. We should take honest pride in the fact that TCDLA and CDLP seminars have lead the way in educating criminal defense lawyers, not only statewide but nationally as well. Our organization has always had the education of criminal defense lawyers as one of its cornerstones. I have yet to hear, at a TCDLA seminar, “I am only here because I need the hours.” I have heard, “This course is worth the week out of my practice,” when referring to the Texas Criminal Trial College. I have heard some TCDLA seminar participants remark that because of a particular topic or speaker they were going to rework an argument or trial theory.

Standing around the coffee bar at seminar breaks, one is able to overhear criminal defense lawyers helping other criminal defense lawyers, by sharing experiences. This, perhaps, after the speakers and course materials, is the third best thing about our seminars. We are eager to help one another.

Personally attending our seminars is important, but our organization understands that sometimes you just cannot work it into your schedule. Your organization has responded to this fact by making available to you the course material in digital format and by developing online seminars that may be viewed from your computer. The Technology committee of TCDLA is in the process of getting a video and audio library, of selected topics from seminars, organized so that access to the material is user friendly. If you are called upon to help in this endeavor or if you desire to volunteer your help, please do so.

A course director for one of our seminars is responsible for seeking out members of our organization to speak at the seminar. They are responsible for developing the speaker topics, as well as keeping on top of the speakers to get the written material in to headquarters. Since July of 2012 the following women and men have graciously accepted the responsibility of course director. Just as that old television commercial said, “We are so proud of our product we put our name on it.” TCDLA is so very proud of their course directors, we put their names on the course announcements.

CDLP: Winning Trial Tactics (S. Padre Island)
Jeanette Kinard, Bobby Lerma, Mark Snodgrass,
& Sheldon Weisfeld

CDLP: Trainer for Trainers (S. Padre Island)
Sarah Roland & Lydia Clay-Jackson

CDLP: Innocence Work for the Real Lawyer (Austin)
Jeff Blackburn, Sarah Roland, & Gary Udashen

CDLP: Primer for Court Appointments (Austin)
Betty Blackwell & Judge Herb Evans

CDLP: Assaultive and Homicide Offenses (San Antonio)
Jorge Aristotelidis (co-sponsored w/ SACDLA)

TCDLA: Top Gun DWI (Austin)
Grant Scheiner & Danny Easterling

TCDLA: Strike Force Training (Conference Call)
Reagan Wynn & Gary Udashen

CDLP: Gideon’s Trumpet (Abilene)
Jenny Henley, Randy Wilson, & Sarah Roland

TCDLA: Juvenile Law (Galveston)
Kameron Johnson

TCDLA: Appellate Law (Galveston)
Brian Wice

TCDLA: Drug Law (Galveston)
Bobby Lerma

CDLP: Gideon’s Trumpet (Georgetown)
John Convery, Robert Phillips, Bennie Ray,
& Sarah Roland

CDLP: Indigent Defense (El Paso)
Janet Burnett, Greg Velasquez, & Rick Wardroup

CDLP: Capital Case Litigators Initiative (Houston)
Carlos Garcia & Rick Wardroup

CDLP: Innocence Clinic (Dallas)
Jeff Blackburn & Gary Udashen

CDLP: 10th Annual Forensics (Dallas)
Larry Renner, E. X. Martin, Carlos Garcia,
& Rick Wardroup

CDLP: Criminal Law: Trends and Updates (Laredo)
George Altgelt

CDLP: Gideon’s Trumpet (Sugarland)
Derick Smith & Patrick McCann

CDLP: Jim Greenfield Memorial Nuts’n’Bolts (San Antonio)
Jay Norton (co-sponsored w/ SACDLA)

TCDLA: Stuart Kinard Advanced DWI (San Antonio)
Gary Trichter, Troy McKinney, & Doug Murphy

TCDLA: Defending Those Accused of Sexual Assault (Houston)
Stanley Schneider

CDLP: Hal Jackson Memorial Jolly Roger
Nathan Miller & John Ross

Our course directors would not be successful without the wonderful help from headquarters staff. These men and women have dedicated their professional life into making us a top-notch organization—and better lawyers. Anyone who has attended one of our seminars knows how very helpful the staff is, and moreover, they do not see helping us as “going out of their way.” No task asked of them goes uncompleted. We surely owe them a sincere THANK YOU. Joseph, you and your team are (to use Tony the Tiger’s word) “GR-R-R-EAT!”

I am looking forward to seeing you at the next seminar.

The Hat Lady

President’s Message: On the Shoulders of Giants – By Lydia Clay-Jackson

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Edmund Burke (1729–1797) wrote, “Those who don’t know history are destined to repeat it.” Burke was a British statesman and philosopher, and generally known as the philosophical founder of modern political conservatism. There are many spin-offs of his famous quote, but the premise behind them all is sound.

A young lawyer came up to me in the courthouse and said he read my article and wondered why Gideon was so important: “Everybody knows poor people have to have a lawyer.” Although his comment was shocking, it did cause me to reflect on how commonplace it has become to take the efforts of others as a “given.”

How did you become a criminal defense lawyer? Some of our number may answer, “I was forced into it because of tort reform.” Others may answer, “My civil firm had layoffs.” Still others may answer, “There was no other field in which I wanted to practice.” It makes no difference the reason because we are all in this together.

Our history as criminal defense lawyers is one of blood, sweat, and cursing. Do you know about the contribution of William Garrow, a British barrister? He started our adversarial court system. More important, he introduced the phrase “presumed innocent unless proven guilty,” insisting that accusers and their evidence be thoroughly tested in court. Do you know the history of John Adams’ defense of British soldiers? What about Gladys Root’s relentless defense of those accused of child sex crimes? Closer to home (and history), do you know about the court battle between Richard Haynes and Ernie Ernest? One of the characteristics these lawyers have in common is the uncompromising way they had in defending the accused (regardless of the character, or purse, of the accused). Every one of these defense lawyers found honor in standing as the trumpet for their client, regardless of the outcome of the lawsuit.

Every one of these criminal defense lawyers has paved a path for us to follow. A path that has fewer ruts because of what they did before us. Because of criminal defense lawyers like these, we have fewer “wheels” to invent.

Being a TCDLA member, you know that means more than just showing up for court. You know it means at times biting your tongue when the judge looks at you and asks if you have any authority “for that”—most often, “that” being your request for relief or information from the government/state that will help ensure a level playing field. When all you really want to blurt out is, “Judge, we are at the presumption of innocence phase and the burden is solely on the government/state to detail how giving the accused what is asked for is not in the interest of justice.” Alternatively, that other phrase that is thought but not spoken: “Judge, we want you to grant us the presumption of innocence advantage that you will tell the jury we have.”

Thus, as criminal defense lawyers, we come to court prepared with our arguments and authority seeking to have not only the letter of the law, but the spirit as well, serve our clients. We do this as criminal defense lawyers because we really believe that the presumption of innocence is not a legal fiction. Can you imagine how effective we would be if we did not believe in this fundamental principal of law and continuously argue this point?

Do you remember burning the midnight oil researching a point of law or an issue you were to argue? Do you further remember the frustration you felt when you found that all the law was against you? I do. I had Professor Hippard for criminal procedure, and he told the class when you find yourself in such a position, all you have left is to “whine, whimper and snarf—you may not get the relief, but make the record anyway.” Therefore, we as defense lawyers make the record, and lawyers not unlike J. David Niehaus are able to change the law. David Niehaus was the defense lawyer who argued the case in Batson v. Kentucky, 476 U.S. 79 (1986). Niehaus’ success would have been far more difficult if defense lawyers had not kept arguing the point.

Many county commissioners, and unfortunately some judges, ask the same question as that aforementioned young lawyer. They do not blink (or give a thank you) when the defense is borne by the defense attorney (especially financially), in the guise of “flat fees.” However, to give a short answer to that young lawyer—and I believe Abe Fortes said it best when he argued Clarence Gideon’s case before the Supreme Court—“Even Clarence Darrow knew he needed a lawyer when he was charged with jury tampering.”

As always, Good Verdicts to you all.

-The Hat Lady

President’s Message: Invictus – By Lydia Clay-Jackson

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Out of the night that covers me,
Black as the Pit from pole to pole,
I thank whatever gods may be
For my unconquerable soul.

In the fell clutch of circumstance
I have not winced nor cried aloud.
Under the bludgeonings of chance
My head is bloody, but unbowed.

Beyond this place of wrath and tears
Looms but the Horror of the shade,
And yet the menace of the years
Finds, and shall find, me unafraid.

It matters not how strait the gate,
How charged with punishments the scroll.
I am the master of my fate:
I am the captain of my soul.

—William Ernest Henley

The back-story of this poem is one of a man who believed in thinking and acting “outside the box” as it applied to medical science of the time. Henley had a leg amputated and instead of letting doctors amputate his second leg, researched and studied a new and emerging science and allowed Joseph Lister to treat him. Henley wrote INVICTUS not only to describe the pain he endured after his amputation but also to aid in his mental recovery.

I had to memorize this poem in the sixth grade and next remember hearing it during “hell week” in college. The words of the poem came back to me a decade or so later as I was preparing for a trial. I was surely not “unafraid” because of the issues in the case. The words of the poem helped me to focus. I walked into trial feeling like a trial lawyer because of Henley’s words; I walked out of that trial as a trial lawyer because of the words I used.

We as Texas Criminal Defense Lawyers are a justifiably ego­tistic lot. We go into courtrooms every day upholding the sacrifices, principals, and ideals of all those who fought, and fight, for all of our fundamental principals of law. It matters not the “horrors” of the political agendas of the different prosecuting offices; our job description never changes, and we are the “captains” of the barriers to injustice. What we do every day affects the quality of everyone’s life.

Good verdicts to you all.

President’s Message: “Selling Out” – By Lydia Clay-Jackson

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Our voices carry a heavy responsibility, as well as a solemn duty. We are the “VOICE” for the defense. The words we speak have lasting effect—not only on our present clients but also for those who will come after. As wordsmiths, we are successful by the manner in which we use our words.

My bar card was yet warm from the printing press when I was appointed to represent a young man on an MRP. Speaking with him, back in the holdover, I overheard another lawyer speaking with his client. He had a look on his face, one I have often seen him wear to this day, and he said, “Do you think I am going to sell you out like one of those court-appointed lawyers?”

His tone, loud enough for all in the holdover including my client to hear, made me pause. Did the lawyer really mean that only court-appointed lawyers would “sell out” their clients? It has not been my experience that only clients with court-appointed lawyers receive offers they do not like. All of us at one time have had to relay to our clients information they did not want to hear. Were we “selling them out”?

Implying to a client that court-appointed lawyers perform in a subpar manner does all of us an injustice. This is true whether one only represents those appointed by the courts, or whether one has never once accepted an appointment from a judge. A good criminal defense lawyer has no need to demean another lawyer to illustrate a point or gain an advantage.

Also, demeaning a client to a prosecutor by our words—i.e., “My client is a numbskull”; “My client is an idiot”; “Don’t blame me because I represent the idiot”—will not enhance our position in negotiations or in securing other clients. Prosecutors speak to one another and often use the words we speak about our clients to describe us.

I have yet to see in the many cast images of Themis a human bone. She stands with her foot upon a snake that lies upon a book. The snake, by analogy, represents evil and injustice, the book represents the written law of man. She is our proud symbol, not because of who she conquers but what she conquers. Her sword and words bring about the demise of the snake.

By the use of our words, we make our reputations. Whether the words are spoken by a retained lawyer, a public defender, or a court-appointed lawyer makes no difference in the end. We all rejoice with one another over two-word verdicts. When this happens we do not put disclaimers on the lawyer by making snide remarks saying, “That retained lawyer really pulled it off,” or, “That court-appointed lawyer/public defender lucked out.” Why then do we act so differently when a lawyer gets a one-word kick. Comments such as, “Was he court appointed?” or, “What did you expect, he was court appointed,” have a most disparaging ring when every trial lawyer in our Association has received a one-word kick.

We celebrate the case that put TEETH into the Sixth Amendment, Gideon v. Wainwright, 372 U.S. 335 (1963). We understand, appreciate, and applaud the rightness of the decision. We know that it was Abe Fortes who argued the case. Abe Fortes was court appointed. Thus, with this acknowledgment be aware: “It’s a good idea to keep your words soft and sweet because you never know when you’ll have to eat them” (The Half-Wit and Wisdom of Alfred E. Neuman).

Oh, by the way: My client walked out of jail that night, free. The other lawyer’s client did not.

Good verdicts to you all. Your Hat Lady.

President’s Message: A Message to Members – By Lydia Clay-Jackson

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Thank you so much for this awesome honor. The 41 intelligent lawyers who have come before me have all left our organization better than when they took the oath, and I intend to follow their example. Our association is not “broken,” so I will not be “fixin’” anything! I will only make it more responsive to the needs of those who promote justice and the common good.

I tip my hat to Gary Trichter; he has done a fantastic job as president of our association. The path he has left me is well lighted, for which I am most grateful. His effort to unify our associations has been most fruitful. He has solidified our relationship with the CCA to such an extent that our financial health looks solid. Additionally, we now own our home. Thank you so much, Gary. You and Heidi may take a well-deserved bow.

I took the formal oath as a lawyer on the University of Texas campus. When I was walking out, there were many organizations and SBOT sections seeking to obtain membership from the “baby lawyers.” There was one table supervised by a middle-aged woman, and she pointedly caught my eye and beckoned me over. She asked if I was going to practice criminal law, and when I told her I was, she said I could not do my job well if I did not belong to the Texas Criminal Defense Lawyers Association. She told me that the association had the best seminars, the best trial lawyers, and the best help for lawyers. She said members of the association make it a point to watch each other’s backs. I joined that day and found she told the truth.

I do plan to enhance the resources we have to aid criminal defense lawyers in performing their duties and obligations. I believe with all my heart that we, individually and as an organization, stand between the government and its zealous representatives. So long as there is a TCDLA, no criminal defense lawyer will ever stand alone.

I see our association taking the initiative in Brady reform, with our legislature and the State Bar. Further, I see us calling to account those prosecutors who seek to pollute juries in direct violation of the Rules of Professional Conduct—specifically, Rule 3.06(c).

If you discover a needed resource that would enhance your abilities, you are obliged to bring that to the attention of the Board for consideration. Nine chances out of ten, there is another lawyer who is experiencing the same need.

The committees of TCDLA will earnestly endeavor to be responsive to the needs of the membership—as well as to other criminal defense lawyers.

We all will also make a concerted effort to increase our membership. It is a remarkable accomplishment that we have become the largest state criminal defense association in the country.

I earnestly anticipate that our relationship with TCDLEI will be financially more advantageous to our members. As LEI is no longer in the property owner business, I believe that monies will again begin to flow for scholarships and other educational investments.

On a somber note, we as the elected leaders of our association must make it a point to watch out for the mental health of our colleagues. One suicide, one colleague abusing alcohol or drugs, one colleague not fulfilling his legal duties, is one too many. I am very proud to say that TCDLA has the resources to address these problems within our number. We must individually be on guard, and help one another when we even suspect such a problem is developing. One gets over embarrassment far faster than grief.

I am available to each of you, as well as to our membership in general, to entertain your suggestions and concerns regarding the effective management of our association. Just as all my predecessors, I believe that a free exchange of ideas only enhances our membership. All you have to do is ask me for my cell number.

Men and women have given their lives to protect and defend the laws we have sworn to uphold. We cannot let them down when we are protecting those laws in the courtroom by acting in any way that diminishes their sacrifices, as well as those by their families.

Each of us has talents that will, when employed, lend themselves to the enhancement of our association. I therefore ask each of you to use those efforts to allow the paraphrased words of Reverend Sykes to become a reality: “Stand. There goes a TCDLA lawyer.”

Thank you for this honor, and now let’s get to work.

President’s Message: Outside the Box – By Lydia Clay-Jackson

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Your electing me TCDLA’s President is truly a humbling experience. Thank you so much for the honor you have bestowed upon me. My TCDLA certificate, a document I am very proud of, bears the names of Louis Dugas Jr. as President, and J. A. Bobo as Secretary. When I received my membership certificate, I never thought that one day I would affix my name, to these certificates, as President of this august body of steadfast Defenders of the Rights of those accused or convicted of criminal actions.

I was born the second of five children and reared in New Mexico. Growing up without highway speed limits and vistas that were obstructed only by snow-covered mountain peaks, I learned to think and act “outside the box.” Much to my parents guarded admiration! I was sent to Cottey College, a women’s college in Nevada, Missouri, to give me some life perspective. Next came the University of Texas at Arlington, which was my wakeup call to reality. According to my parents, I had been on a two-year vacation, and an endless college life was not a career choice available to me.

After college work was also very educational. Work at TBPP, Wisconsin Bureau of Correction, and Montana Corrections Aftercare lead me to Bates College of Law (now University of Houston Law School). My first year there saw my Property Professor giving me career advice: “Law is not for you.” Challenge accepted, I opened my practice in ’85 in Conroe, Texas, after doing a demographic study and determining I would be the only Black American lawyer between Houston and Dallas going up either Hwy 59 or I-45. I would have the added bonus of going “against” the traffic every morning. What an intelligent decision! I was board certified in Criminal Law in ’96.

Dwight Jackson—not Clay-Jackson—and I have been married since ’76, and he is retired. I have 162 hats and have worn a hat to court every day since 1989.

There are so many things I would like to accomplish as your President, but members of the Texas Legislature will convene in six months and they will need ALL of our concerted efforts to keep them on the track of justice and fairness. In this spirit, I am asking that if you know a member of the 83rd Texas Legislature, regardless of which side of the aisle they may sit, please inform our lobbyist Allen Pace or our Legislative Committee Chair Mark Daniels (our 32nd president). With your help, the vote they cast may inure to our benefit and thus to the benefit of all in our Texas courtrooms.

I am sure the part of the state where I have a large part of my practice is not unlike yours. Regrettably, some of the men and women who put their lives on the line, in order to allow us to do what we do, find themselves in need of our services. Their life experiences may have played a part in their current circumstances. To this end, I have asked Captains Terri Zimmermann and Michael Gross to co-chair our new Veteran Affairs committee. This committee will be a great resource—if not in giving alternatives to criminal dispositions, then in understanding our clients better and in presenting effective theories in their cases.

I have asked our Northern Federal District Public Defender, Richard Anderson (also our 21stpresident), to chair the Former Presidents Committee. These remarkable women and men, who laid the foundation upon which I stand, will have as one of their committee responsibilities to find outside monies for scholarships and seminar enhancement. (How many times have you heard or said, “Bring back the cookies”?) Additionally, because they were so good at it during their tenures, they will also use their charm and persuasive abilities to find more and new benefits for TCDLA. My goodness, with institutional history going back into the early ’70s, this committee just cannot miss. In fact, you might recall that Randy Wilson (our 35th president) was responsible for getting Southwest Airlines to give us discounts; I have full confidence that he will again work his charm.

You as members of TCDLA may only be as effective as the information you have. To this end, you will be able to view online the Board agenda one month before the meeting—just as you will be able to read the minutes afterwards. The agenda will wet your curiosity about attending the meetings, and the minutes will allow you to know just how hard your Board members and officers are all working on your behalf.

I remember the “frying pan” commercial, but I am better in that I have asked our five other officers, and they have each graciously agreed, to be the ex-officio members of certain       committees. I believe this organizational format will lend itself to being most beneficial to us all.

      We shall have a wonderful year by remembering to:

Live a balanced life—
 Learn some and think some
  And draw and paint and sign and dance
   And play and work everyday some.
    Take a nap every afternoon.
     
And when a colleague goes into that Court arena
      Stick with them and be aware of wonder.

—Some license taken, from R. Fulghum, All I
Really Need to Know I Learned in Kindergarten

Good Verdicts to you all.