William Harris

Bill Harris is a board-certified specialist in criminal law who has handled trials and appeals as a solo practitioner in Fort Worth since 1984. From 1981-84 he practiced with Burleson, Pate & Gibson in Dallas; prior to that he was an Assistant Criminal District Attorney in Tarrant County (1976-1981). A former member of the TCDLA Board, Bill is immediate past president of TCDLA and also formerly served as president of the Tarrant County Criminal Defense Lawyers Association. Bill received his bachelor’s degree from the University of Texas in 1972 and his law degree from the UT law school in 1976. A frequent lecturer on criminal law, he has been a defense attorney for 29 years.

Legislative Gleanings – Early Returns – By Bill Harris

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The legislature is rumored to still be in session. Our team of legislative specialists continues to monitor several bills and to support those that are important to the people we represent.

Although several committees could hear bills related to criminal law and procedure, most bills are referred to the Criminal Jurisprudence Committee. Representative Abel He­rrero, D-Corpus Christi, has been appointed to chair Criminal Jurisprudence, just as he was in 2013. Chairman Herrero is a veteran legislator, and although he is a civil attorney, he has shown great temperance and fairness in his handling of this committee. Traditionally, this committee hears more bills than any other committee and is known for working late into the night.

On the Senate side, Lt. Governor Dan Patrick appointed Senator John Whitmire, D-Houston, to once again chair the Criminal Justice Committee. Senator Whitmire has over 40 years’ experience in the Texas Legislature as a House and Senate member. Currently, Senator Whitmire is the Dean of the Senate and has chaired this committee for over 20 years. This is an appointment for which we should be grateful.

Good news on the Michael Morton Act. Robert Kepple of TDCAA told Patricia Cummings and several others that there was no plan on the prosecution side to amend Article 39.14 during this session. While nothing is set in stone at this point, it does not appear that the prosecutors’ organization will urge any changes in the law this year.

Michael Morton himself was at the Capitol recently supporting changes in Chapter 64 of the Code of Criminal Procedure. This is the chapter relating to DNA testing on prior convictions. Senator Ellis has introduced a bill at the urging of the New York Innocence Project to make it easier for a person convicted of a crime to seek DNA testing of evidence.

We continue to hope for improvements to the expunction process.

Legislative Gleanings – The 2015 Legislative Session – By Bill Harris

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A new legislative session is beginning. The composition of the legislature is much changed from the last several sessions. For better or worse, this means our lobbying efforts on behalf of the concept of justice and due process is as important as ever.

Patricia Cummings and Allen Place will head up our efforts with the able assistance of David Gonzalez and Kristen Etter. It is important that we conduct our efforts in the legislature in a manner that maximizes our effectiveness and enhances our credibility with the legislators and their staff. In furtherance of that effort, we would like to ask all of you to give generously of your time when called upon by these four people to do so.

The four people managing our lobbying efforts will probably call upon you to do two things:

1.   Lend your advice on areas that are the subject of legislation in areas where you are recognized as having expertise or special experience. If you feel you should be on that list, by all means send them an email, but please refrain from calling them unsolicited because their time is going to be very, very limited. Legislative committee hearings occur simultaneously and often run long into the night. Our lobbyists are going to be very, very busy.

2.   If asked to do so, lend your voice as a witness before a legislative committee. I suggest that you do so only when asked, because our effectiveness depends in part on the coordination of our efforts.

In past legislative years many of our members have appeared at the legislature to testify without coordinating their appearance with our legislative team. Of course, every citizen has the right to do this, but please consider this: Lobbying the legislature is a very complex process. Much goes on behind the scenes of which you are not aware. Often strategies are not public because making them public defeats them. Imagine trying a complex white-collar crime case and having an inexperienced lawyer intervene in the midst of the trial to “help” you with your defense. All of us are trial lawyers. Lobbying is a very different beast.

It is going to be a very interesting year. We have a great team leading our efforts. Let us all help them, not hinder them. If you want to communicate with them, please email them. If they need to visit with you on the phone, they will call you. Please take their calls when they do and support their efforts.

President’s Message: Our Roles in the System – By William Harris

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It is odd that the final column in this series, due to procrastination, gets written after I am no longer president of TCDLA. In it I would like to address what I see as a change in the character of the system since I first began practicing law. I started in 1976 as a prosecutor in Tim Curry’s office in Fort Worth. For five years I prosecuted traffic appeals, then misdemeanors, and finally felonies. Then I left the District Attorney’s office and became a defense attorney. I have worked as a criminal defense attorney now for thirty years, defending everything from misdemeanors to capital murder.

When I began practice there were five felony courts in Tarrant County. At least two of the judges on the felony bench had been in the district attorney’s office, and all had spent time in private practice before assuming the bench. One of them, Judge Byron Matthews, is a member of the TCDLA Hall of Fame for his work as a defense attorney before he took the bench.

One of the changes that has occurred during the thirty-five years of my practice is that it is much more common for lawyers to assume the bench directly from the prosecutor’s office without ever defending a person accused of crime. I know a number of judges with such a history who are fair and impartial, everything a judge is supposed to be. I know others who are not.

A judge’s role is different from that of the advocates who appear before them. It is a judge’s duty to be fair and even-handed. To treat all the litigants with respect. To scrupulously keep his or her thumb off the scale. It is not their job to be an extra prosecutor anymore than it is their job to be an additional defense attorney. The latter rarely occurs in Texas because our judiciary is elected. Think of watching your favorite baseball team play an opponent when the opposing team supplies all of the umpires.

One thing that all sides can agree on is that the electorate is generally not well informed about the criminal justice system, its philosophy and how it works. Thus, it is often common for candidates for the bench to tout their life-long role as a prosecutor as a superior qualification to sit as a judge. This is good politics, but it is bad for the judiciary and bad for the criminal justice system as a whole. It encourages the electorate to view the judge as a super prosecutor.

Having been both a prosecutor and a defense attorney, it is my experience that I did not completely understand the role of the defense attorney until I became one. I didn’t really appreciate the power a prosecutor has until I became a defense attorney. None of this is to say that there are not excellent and honorable prosecutors, defense attorneys, and judges who understand their place in the system and perform their role with sensitivity and understanding. But it is also true that there are many in all three roles who do not.

If you want to be a judge, whether you are a defense attorney or a prosecutor, fine. But recognize that when you become a judge your role in the system changes profoundly. You owe it to the system, the country, the state, and the people to think about that role and strive to make the change. I do not claim to understand all of the pressures and nuances that go into serving on the bench; I have never done so. But I can tell when a judge is not treating the defense in the same manner they treat the prosecution. I am sure there are instances in which the opposite is true, although I think it is less common because it is less politically efficacious.

I do not think that we should think that having close friends in a role you have never filled is the same as filling that role. I do think you should consider the perspective of the judges before you criticize them and understand that their purpose and perspective is not the same as yours. I also think that judges should remember the roles of the advocates and respect both sides. While, at the same time recalling that their role now is different. They are not to be advocates. Their job is to be . . . judges.

President’s Message: We Ought to Be Ashamed – By William Harris

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On May 3, 2011, the State of Texas executed Cary Kerr from Fort Worth. Brad Levenson and his staff at the newly created Office of Capital Writs (OCW) made a valiant attempt to get the Court of Criminal Appeals and the Supreme Court to halt the execution and consider fully mitigation evidence developed by OCW after Mr. Kerr’s state habeas counsel failed to do so in the original state proceeding. Brad and his staff performed to the highest standards of our profession. We should all be proud of their work.

What we should be ashamed of is the holding of the Supreme Court and the lower courts following its lead: that an indigent capital defendant has no constitutional right to the effective assistance of counsel on the post-conviction review of his case. Post-conviction review of trials in which a death penalty is imposed is required by the United States Constitution. It is beyond question that every defendant tried in our criminal courts for non-petty offenses is entitled to competent, effective assistance of counsel as a matter of constitutional right. In cases where the death penalty is imposed, we require that new counsel review the process for constitutional error, including the effectiveness of trial and direct appeal counsel. Yet the Court blithely says there is no right to effective, competent performance by the lawyer performing that post-conviction review.

I have read the legal reasoning behind this rule, and I think it faulty. If the constitutional adequacy of the process at the trial and on appeal is subject to review, the attorney assigned to perform that review should also be required to do a competent job of it. If not, it allows for the cynical appointment of attorneys who have demonstrated poor performance in the habeas review process by courts who wish to protect convictions and death sentences. It means that the taxpayer is paying substantial sums of money for work that is little more than a sham. It means we cannot be certain that our criminal justice system functions as it should when we call upon it to impose the most severe punishment possible. Most importantly, how do we look to the rest of the world when the criminal justice system—which we like to call the best—says at the highest level that a condemned person is not entitled to competent counsel in every stage of the process?

I have devoted thirty-five years of my life to working in this system. I know its strengths and I know its weaknesses. I know it can always be improved. As long as we, as a society, say that we honor justice, that justice should be served, we cannot accept a rule that says that ineffectiveness of defense counsel at any stage of the proceeding, particularly when that counsel is assigned by the very government seeking to execute the condemned, is constitutional. We ought to be ashamed.

President’s Message: Our Cheese Is on the Move – By William Harris

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Some of you may be familiar with a small book that was very popular in corporate circles ten years or so ago called Who Moved My Cheese, written by Spencer Johnson. The thesis of the book is that change is inevitable and constant. As soon as we get things the way we are comfortable with them, they change. We must therefore spend our lifetimes making changes to accommodate the changes in our lives and circumstances.

TCDLA’s cheese, and indeed the cheese of the defense bar and criminal justice system, is moving. For several years we have been one of the beneficiaries of a large grant of state funds that we have used to educate criminal defense lawyers. We have been very conscientious about getting the most out of these dollars and trying to educate as many lawyers as possible. Several aspects of that grant are in the process of changing.

First, it looks likely that the funding for the grant, which has previously been held separate from the general fund, is going to be moved into the general fund. That means the money (generated by court fees) will be available for uses other than educating the participants in the criminal justice system. Second, the Court of Criminal Appeals, which administers the grant, has changed some of the rules governing how the funds are allowed to be used. Third, these are hard economic times.

TCDLA is effected by these times just as everyone is. We are endeavoring to find ways to make our budget leaner and more efficient without sacrificing our goals of promoting justice and educating the criminal defense bar toward that end. This will inevitably mean that some things our members have been used to for many years may need to be done differently. We will be looking to do more for our members via the Internet and related electronic technology that is more efficient and substantially cheaper than paper publications. I believe this will allow us to maintain—even improve—the quality of our services while cutting the costs.

On a larger scope, I suspect that when the legislature adjourns we will all find that our cheese has been moved in a myriad of ways. Funding for indigent defense, a necessity but never a popular expenditure with the public, is bound to be effected. I do not think the effect will be positive. Private clients will expect more for less money from their attorneys and, as we have already seen, become willing to accept the cheaper lawyer as better than no lawyer or a lawyer they do not perceive they can afford.

Please be open minded as we try to make changes at TCDLA to accommodate the economics of this new day. Please support the officers and the board with constructive criticism as we look to find our moving cheese. While you are at it, remember that your personal professional cheese has probably also been moved.

President’s Message: Elected Officials Should Govern, Not Rule – By William Harris

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Statement by Chief Justice Wallace B. Jefferson on Proposed
Disciplinary Rules Amendments’ Defeat

The Court is grateful to the many lawyers who contributed their time and wisdom to proposing revisions to the Texas Disciplinary Rules of Professional Conduct. The current rules are outdated, and must be amended to account for changes in the practice and in the law that have occurred since the bar last adopted comprehensive revisions 21 years ago. We intend to ask the Bar’s Board of Directors to make prompt recommendations about a timeline for future proceedings relating to the rules. In the meantime, the Court will consider what action, if any, may be necessary to carry out its responsibility to maintain standards of professional conduct that protect our justice system and the people it serves.

From the Supreme Court website

Recently, the State Bar’s referendum on the proposed changes to the Rules of Professional Conduct were resoundingly defeated by the lawyers voting. The statement above was Chief Justice Jefferson’s response to the defeat of the proposed rules changes in the referendum.

I do not know what motivated all the lawyers who voted no, but the Executive Committee of the Texas Criminal Defense Lawyers Association recommended a “no” vote to its members. For criminal defense lawyers, it seemed that the main issues related to the way we charge fees, the circumstances under which we may withdraw from representation for non-payment of fees, and weakening of the protections of confidentiality of client information. There were many who had philosophical issues with the State Bar’s open advocacy for passage of the rules changes. Finally, many of us questioned the need for the massive rewriting of rules that seem to most of us to be working well. In other words, this seemed a solution in search of a problem.

Criminal defense practice is markedly different from civil practice. Particularly from the representation of wealthy individuals or business entities. Those types of clients are most comfortable with hourly billing. They budget for it and are sophisticated purchasers of legal services. They expect to have routine legal expenses and only want to pay for the time necessary to address those needs. The person charged with a crime has a large problem that they want resolved for an acceptable fee. They are not accustomed to routinely using a lawyer’s services. They want to know how much it will cost to secure representation to resolve that problem. They regard hourly billing as the opening of a vein with no specified limit. They prefer fixed fees for services.

The criminal defense attorney often finds that getting paid for services is a struggle. It is almost universally our experience that fees not collected in advance will simply go unpaid. As an old lawyer explained to me years ago, if you win their case the client feels he or she should not have to pay because they were not guilty. If you lose, you are not worth the cost because you did not achieve the result the client wanted. Finally, of course, if you lose and the client goes to prison . . . well, the pay rate is pretty low there. It is essential to the function of a practice that the lawyer be able to pay staff and maintain his or her office as well as make an income. We rightly distinguish the obligations of a profession from a business, but it is still the way we make a living.

These rules are perceived by the vast majority of criminal defense attorneys as fatally flawed. We assumed that the submission of the rules to the membership of the State Bar was in­tended to be a meaningful exercise, and that the Court and the State Bar would honor the result. It is our hope that rather than imposing the rules by fiat, we might open a new dialogue about why changes are needed and what those changes should be. TCDLA stands ready to participate in this process if the Court and the State Bar will allow us to do so. In a democracy, votes should matter. In the best tradition of democratic governance, officials should govern, not merely rule.