As a young lawyer, I did not know Frank. I never watched him in trial. I never spent a great deal of time with him before he became a judge. He was a name that I knew. A name that commanded respect. A name that I admired.
As a young lawyer in the 1970s, I heard stories about the great lawyers; Percy Foreman, Racehorse Haynes, Warren Burnett, Charley Tessmer and Frank Maloney. All great orators. They provided the foundation for the practice of criminal law in Texas. Tenacity, thoroughness and preparation were words typically association with them. I wanted to be like them.
In the late 1980s I remember hearing that Frank was running for the Court of Criminal Appeals. When he won, the Court immediately became a better place for the criminal lawyer to practice. For Frank brought his vast experience as a lawyer, who at times was both a prosecutor and defense lawyer. His experience was unique. The people of Texas were truly served by his unique experiences as a trial lawyer. Justice was not blind to Frank Maloney.
While he served on the Court, I appeared before him several times. I had to prepare differently for Frank because I knew that he would be an active judge. That being, a judge who would question the weaknesses of my position and challenge me on the law and facts.
Unfortunately, he was not re‑elected. And that became a blessing for me because I was afforded the opportunity to try a case before him as he served as a visiting judge, after he left the Court in 1997.
In late 1996, the Fifth Circuit upheld the reversal of the conviction and death sentence of Ricardo Aldape Guerra, who had been convicted of killing a Houston Police officer in 1982, and remanded the case for a new trial. After the November 1996 election, the trial judge announced that he had made arrangements for the assignment of Ricardo’s case to a visiting judge, but would not tell us who was being assigned until after the first of the year. Even though United States District Court Judge Ken Hoyt found that the prosecutors had engaged in misconduct that undermined the in‑court identification of all the State’s witnesses, the State demanded a new trial.
Shortly after the first of the year, Scott Atlas and I received a copy of the order assigning Frank as the judge presiding over Ricardo’s retrial. I remember cheering and telling Scott how lucky we were. A judge that I knew could read, write, and understand the English language. I explained to Scott that Frank was someone who would be fair and who would listen.
We filed our motion to suppress the in‑court identifications with Judge Hoyt’s and the Fifth Circuit decisions attached. A hearing was promptly set. The abuse of the witnesses by the prosecutors and police became evident. We did not learn the impact of the testimony presented until we received Frank’s findings, in which all of the in‑court identifications of Ricardo as the shooter of a police officer were suppressed. In April 1997, Harris County prosecutor dismissed the capital murder charges.
Justice was served.
After that experience with Frank, our relationship changed. He became my friend and mentor. He was still someone I admired but now I got to cherish his friendship and wisdom.
In 2007 Frank, Roy Berrera, and Racehorse turned 80 years old. As an organization we wanted to celebrate their accomplishments and contributions. We decided to record their stories. So began the oral history of criminal law that can be found on our website. Being our first President, Frank also was one of the first stories that was memorialized. In that recording Frank’s recounted his experiences for us to cherish and pay tribute by watching.