Said & Done

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Kudos

Stephen Hamilton, Kelly and Caroline Clark, and Melissa Salazar got a “not guilty” on a Manslaughter case in Lubbock County. The State made no offer in the case. Client was a caregiver at the Lubbock State School. While trying to prevent a resident from hurting himself and others, D used some restraint, but there’s a “no restraint” order in place at the State School. Client was charged with man­slaughter. Lubbock Medical Examiner originally made several preliminary findings of no foul play. After extreme political pressure on the DA, final autopsy report classified the death as a homicide. Defense position was the death was an accident, not manslaughter. Jury trial lasted five days, and judge gave both lesser included of Criminally Negligent Homicide and a defensive instruction. Jury found client not guilty on all charges. It was a good day in Lubbock.

Rusty and Sarah Gunter tried an injury to a child case before visiting judge James Rex. Their client was enhanced twice, having gone to prison for aggravated assault and aggravated robbery. The State offered 35 years on a plea. Testimony was that client and girlfriend got into an argument because the girlfriend wouldn’t return the money given her for deposit on a rental house. Evidence showed that client hit girlfriend while they were in the hallway of a small apartment. Girlfriend’s 10-year-old granddaughter jumped to her side and told client to quit hitting her. Client then hit the girl in the mouth, sending her flying back into the guest room with busted lips and a chipped tooth. Client then left. State offered 15 and client rejected. The jury indicated that they were deadlocked at 6–6. Judge told the jury to give it one more shot. State offered 10, client countered with 5. State said that they would rather retry the case. Jury came back 30 minutes later with the two-word verdict. Apparently the jury wasn’t convinced that client acted knowingly (after asking for a note with better delineation as to what constituted “knowingly”). Intent is what the Gunters emphasized during closing argument. The Gunters also really hit on the jurors bill of rights in voir dire.

June 2011 Complete Issue – PDF Download

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Features

20 | Still Crazy After All These Years – Rusty Duncan photos
26 | Proving Self-Defense: Gunshot Wound Analysis in Crime Scene Reconstruction – By Louis L. Akin
32 | Change to Pretrial Diversion Policy Could Lead to Deportation – By César Cuauhtémoc García Hernández & Carlos Moctezuma García
34 | First Blood – By Sara Stapleton Reeves
44 | Defendant’s Motion for Appointment of Expert to Perform a Neuropsychological Examination on Defendant – By Mark D. Griffith

Columns
8 | President’s Message
10 | Executive Director’s Perspective
12 | Editor’s Comment
14 | Federal Corner
18 | Said & Done

Departments
5 | TCDLA Member Benefits
6 | Staff Directory
7 | CLE Seminars and Events
36 | Significant Decisions Report

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.

Executive Director’s Perspective: A Rusty Recap – By Joseph A. Martinez

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A very special thanks to our course directors, Bob Hinton (Dallas), Lance Evans (Fort Worth), and Grant Scheiner (Houston) for this year’s 24th Annual Rusty Duncan Advanced Criminal Law Course held in San Antonio June 9–11. These three lawyers have spent many hours over the last year preparing for this year’s major production. Thanks to their dedication and effort, we had 805 attendees. Thanks to our 32 speakers who spoke at this year’s event.

Thanks to Harold Danford and Clay Steadman, our golf tournament directors. Thanks to the TCDLA board members who helped “meet and greet and direct” attendees. Thanks to Gerry and Christine Goldstein for opening their beautiful King William home to 600-plus people and hosting the 24th Annual Pachanga Party. Thanks to all the TCDLA staff who worked steadfast on this event, especially Melissa Schank, our Assistant Executive Director. Special thanks to our TCDLA members who attended the 24th annual Rusty Duncan Advanced Criminal Law Course. You are the reason this event is so special—and the largest criminal defense CLE.

Congratulation to all the award winners at Rusty Duncan: Hall of Fame inductees Charles Butts (San Antonio) and R. F. “Buck” Files (Tyler), president-elect of the State Bar of Texas; Lawyer of Year Award recipients Katherine Scardino (Houston), Vivian King (Houston), and Shirley Baccus-Lobel (Dallas); and the new Charles Butts Pro Bono Lawyer of the Year Award recipients Tim Evans (Fort Worth) and David A. Pearson (Fort Worth).

Special appreciation to Sue Benner for her design for the 40-year celebration. TCDLA sold 100-plus T-shirts and over 30 prints. You can still order a print today—call the TCDLA office.

Please save the date to join us at the 25th Annual Rusty Duncan Advanced Criminal Law Course, June 7–9, 2012. Our course directors will be Troy McKinney, Stephanie Stevens, and Doug Murphy, with our associate course directors Sharon Curtis, Sarah Roland, and Marjorie Bachman.

The following actions were taken at the TCDLA Board Meeting on Friday, June 10, 2011:

  • There was discussion regarding the proposed changes to the TCDLA bylaws. A majority by show of hands chose to have a paper ballot. The proposed changes were split into 11 sections. All of the proposed changes were defeated.
  • Motion was made by Mark Daniels, seconded by Clay Conrad, to let the TCDLA membership know of the vote count for each section. Motion carried.
  • Motion made by Craig Jett, seconded by Carole Powell, to send an order form to TCLDA members informing members that the 2011–2012 TCDLA Membership Directory will be sent to them by CD at no cost. The directory will be available online at the TCDLA website. The spiral-bound printed directory will be available at a cost of $20. Members must order no later than 8/1/11 to receive their copy the first week of September 2011.

The following actions were taken at the Annual Membership Meeting held on Saturday, June 11, 2011:

  • Bill Harris proposed an amendment accepted by Gary Trichter to amend the proposed bylaw as follows:

    ARTICLE VII—BOARD OF DIRECTORS

    Sec. 2. Executive Committee. The Executive Committee shall consist of the officers of the Association, the editor of the Voice for the Defense, two members of the board of directors, and the two past presidents appointed by the President. Motion made by Bill Harris and seconded by Kelly Pace. Motion failed on a 78–54 vote.

  • A motion was made by Gary Trichter, seconded by Terrance Russell, to table the remaining proposed bylaws for the Bylaws Committee to review. The motion carried on an 81–41 vote.
  • Motion made by Stan Schneider, seconded by Ron Goranson, to approve the Nominating Committee slate of officers for 2011–2012. Motion carried.
  • Motion made by Bob Hinton and seconded by Nicole DeBorde to approve the Nominating Committee slate of new and reappointed board members, motion carried.
  • Grant Scheiner announced TCDLA has a new free Droid app for TCDLA members for accessing the criminal codes. Please go to the TCDLA website for more information.

Please join us for a summer of fun and CLE.

July 14–15South Padre Island, Trial Tactics: The Art of War

Aug. 10Houston, NHTSA SFST Overview

Aug. 11–12Houston, 9th Annual Top Gun DWI, co-sponsored with Harris County Criminal Lawyers Association

Aug. 11–12Austin, “Innocence Work” in the Real World for Real Lawyers: A Practical Seminar on Representing the Innocent After Conviction

Aug. 18Sugar Land, Trial Tactics: The Art of War

Aug. 25Austin, Innocence Lost: How & Why Investigations Go Wrong

Aug. 26Corpus Christi, Trial Tactics: The Art of War

Good verdicts to all.

Editor’s Comment: Why I Do What I Do (A Work in Progress) – By Greg Westfall

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You know you’ve been around a while when you get tapped to give the “Why We Do What We Do” speech. It would seem that once a criminal defense lawyer achieves the right mix of experience and age, he or she gets that figured out. Maybe. I don’t pretend to have it completely figured out yet, but I have been thinking about it lately.

I have a confession to make—I hate going into the jail. It’s not that I have some kind of irrational belief that if I go in I won’t be able to get out. It’s just that it is such a massive logistical pain in the butt. In Tarrant County, you can go from front door to face to face with your client in about 10 minutes, if all goes right. But rarely does all go right. I have sat for 45 minutes in a holdover waiting for a client who never comes. I’ve been sent to wrong floors. Your chances of falling into these black holes increase dramatically within an hour before and an hour after shift changes. You also have to worry about “feeding time” and the occasional lockdown. Anyway, you get the picture.

Once outside, you dutifully make your bill for your time, which will surely get cut. For me, the only predictable thing about the whole experience is that I’ll soon be repeating it.

Then there’s the issue of not just defending your clients, but defending your profession (a/k/a answering the “Have you ever represented someone you knew was guilty” question). Both my wife and I started out in civil law, but both of us were in criminal law inside of a year—I was a criminal defense lawyer, she was a prosecutor. It was a long time ago. We were at some kind of a family gathering and a relative (one of mine) approached us and first spoke to me:

So, are you still defending criminals?

Yep.

Then he turned to my wife.

[Broad smile and twinkle in his eye] So tell me about some of your cases!

I then stood there and basically listened to an episode of Law and Order as he excitedly asked about every “criminal” she had sent up the river. Ultimately, he turned back to me and asked, “What do you think is going to happen to OJ?” “I hope he walks,” I said. He looked horrified. I guess I got the last laugh on that one.

Over time, my answer to the “Have you ever represented someone who you knew was guilty” question has gotten shorter and shorter, until now I just say “yes” or “no” depending on my mood.

I have friends who are doctors. Never heard one of them suspiciously asked, “Have you ever treated someone who you knew was sick?” In fact, it seems that none of my non-criminal-defense-lawyer friends ever gets confronted with this perceived moral liability.

So why do we do this again?

Last week I had a 19-year-old kid who, right now, is a total screw-up. He is one of those who I got a fantastic result for on an earlier case and within a year had three new misdemeanor cases—one of which was a stupid theft case. Of course, what he really has is a bad drug problem. I got his mom hooked up with an addiction specialist and he got a bed open at a treatment center. I had recommended to his mom that he stay in jail until treatment just so he couldn’t screw up anymore. Once the bed came open, I ran in to plead him (his cases were in no way triable) so he could get to treatment. Credit for time served on the non-theft cases, dismiss the theft case, right? Not much reason to hang a crime of moral turpitude around a 19-year-old kid’s neck, is there? Not so fast. The prosecutor insisted that he take a conviction on the theft case. I couldn’t do that. But he’s going to treatment! We can make it so he doesn’t have to do this again! Too bad. The office policy is a conviction for a theft case and, as I was informed, “My policies are more important than your client.”

I once saw John Hardin—a great lawyer and human being—give the “Why We Do What We Do” speech and his ultimate conclusion was simple: “We do what we do because we are who we are.” To this day, that’s the best answer I’ve ever heard. In any event it’s the only one that explains why the thought of an arbitrary policy being more important than a 19-year-old kid’s future made me want to vomit. We took a deferred.

Federal Corner: Don’t Let Your Client Drive the Bus Over the Cliff – By F. R. Buck Files Jr.

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On February 26, 2010, United States District Judge Barbara Lynn of the United States District Court for the Northern District of Texas sentenced Don Hill, a former mayor pro-tem of the City of Dallas, to 216 months confinement after a jury had convicted him of the offenses of conspiracy to commit bribery, bribery, conspiracy to commit extortion, extortion, conspiracy to commit deprivation of honest services, and conspiracy to commit money laundering.

Anyone who had followed this case in The Dallas Morning News or seen the television coverage of Hill’s case could not have been surprised by the outcome. What makes this case a little out of the ordinary is that Hill led his lawyer down the primrose path to a contempt citation.

Waldo Snerd represented Hill throughout the investigation and the trial of his case. Hill and Snerd were mentioned in 155 articles appearing in The Dallas Morning News, and there was significant footage of the two of them on the evening news broadcasts of the television stations in the Dallas-Fort Worth metroplex.

Well before the beginning of trial, Judge Lynn entered a gag order which included the following paragraphs:

2. 
No person covered by this order shall make any statement to members of any television, radio, newspaper, magazine, internet (including, but not limited to, bloggers), or other media organization about this case, other than matters of public record, that could interfere with a fair trial or otherwise prejudice Defendants, the Government, or the administration of justice. . . .

4. 
Parties may discuss, without elaboration or any kind of characterization, information contained in the public record; scheduling information; and any discussion or order by the Court that is a matter of public record. [Emphasis added.]

Four days before the beginning of Hill’s trial, both Hill and Snerd participated in a tele­vision interview that Hill’s public relations representative had arranged. Gary Reaves, a reporter for WFAA-TV, asked Hill, “If you’re not guilty, why do you think you’re getting prosecuted?” Hill responded:

And what I’ve said, and I’ve expressed it several times, is that we can now look in hindsight and see that local Democratic officials were targeted by the FBI and the Justice Department under our last president, Mr. Bush, so that now we can look back and see a clear statistical and anecdoctal body of evidence that shows that that was what was happening. So I respect the role that the government plays in investigating [ ] wrongdoing or alleged wrongdoing, I don’t think I can walk away from the fact that I fit the pattern that was exhibited by this Bush Justice Department of being a local Democrat, being on the rise, and being told by an agent when he first meets me that my political career is over with. I think, in part, I’m here because I was targeted . . . The jury will have to look at the evidence and the facts and what people say from the witness stand, and that won’t deal with very much, if anything, about local Democrats or politics, it will just deal with whether Don Hill and Sheila Hill did anything that was wrong and improper. And I can sit here with a certainty, looking at you right now and say to you that we didn’t. And I am convinced that we’re going to be exonerated. [Emphasis added.]

Snerd was then asked by Reaves, “What do you think about [Hill’s] claim that this whole prosecution is politically motivated?” Snerd answered:

Well, that’s—that’s been the claim since the beginning. That’s been a claim of several people around the country. I can’t—I can’t particularly speak to that, because I don’t know. But I know that there are several people who have made the claim and then there’s been several people who have shown that during the Bush Administration that Democrats were targeted. [Emphasis added.]

Judge Lynn was not favorably impressed when she learned of Hill’s and Snerd’s comments. She ordered Hill and Snerd, their counsel, and the public relations representative for Hill to appear before her and gave notice to them that she was citing them for criminal contempt. After the conclusion of the criminal case, Judge Lynn presided over a one-day bench trial on the contempt charges. During the hearing, Hill did not testify. Jackson did—and found himself being questioned sharply by Judge Lynn; e.g., “What in the world was going on with you that prevented you from crying foul when you realized that he [Hill] violated the terms of the interview?” and, “What was the source of your optimism that what happened in the interview wouldn’t violate the terms of my order?”

Hill and Snerd were each found guilty of criminal contempt. Hill was sentenced to 30 days imprisonment and Snerd to a $5,000 fine and a 120-day suspension from receiving any new criminal appointments in the Northern District of Texas. Both Hill and Snerd appealed Judge Lynn’s sentence, with each challenging the sufficiency of the evidence.

Last month, the United States Court of Appeals for the Fifth Circuit affirmed Judge Lynn’s sentences. United States v. Hill, ___ F.3d ___, 2011 WL 1207522 (5th Cir. 2011) [Not Selected for Publication] [Panel: Circuit Judges King, Davis, and Southwick. Per Curiam]

The opinion of the Court included the following:

A criminal contempt conviction under 18 U.S.C. § 401(3) requires proof beyond a reasonable doubt that there was “(1) a reasonably specific order; (2) violation of the order; and (3) the willful intent to violate the order.” United States v. Allen, 587 F.3d 246, 255 (5th Cir.2009) (citation omitted).

[Specificity of the Order]

The district court relied on precedents addressing restraints on out-of-court statements challenged as First Amendment violations. We agree with the district court that those cases offer the best guidance for determining whether the gag order was reasonably specific.

***

There is no dispute that the phrase “without elaboration or characterization of any kind” modifies the word “discuss.” Although “discuss” may not have been the most apt word to use, it did not redact “out” from “without elab­o­ra­tion.”

The defendants’ contention that the order is unclear is further weakened by their failure to suggest any changes to the district court after being given a draft of the order for review. The gag order was reasonably specific.

[Violation of the Order]

We now turn to whether there was a violation of the district court’s order. We need not agree that every statement identified by the district court violated the order.

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The district court found that Hill’s earlier motion to dismiss the indictment because of selective prosecution did not use the phrase or concept of “clear statistical and anecdoctal body of evidence,” nor did that appear in other pleadings. The court held that the assertion there was proof of government bias exceeded the public record and threatened the fairness of the trial.

We agree that Hill’s statement violated the gag order. Hill did not limit his comments to the general claim that Democrats were being targeted for prosecution by the Bush Administration, which would have been permissible because those claims were included in Hill’s publicly-filed selective prosecution motion. Claiming there was statistical and anecdoctal evidence supporting his claim, though, exceeded the public record. That statement had the potential to impede efforts to impanel an impartial jury.

After Hill completed his interview, Snerd then was asked a number of questions by Reaves. The district court held that Snerd’s answers to three of the questions violated the gag order. We consider only one of the answers. The question posed by Reaves was “What do you think about [Hill’s] claim that this whole prosecution is politically motivated?”

***

The district court concluded, “Snerd did not purport to quote from Hill’s overruled Motion to Dismiss [for Selective Prosecution], but contended that the prosecution was politically motivated, and implied it was connected to a larger scheme by the Bush Administration.” The statements, the court insisted, “could have prejudiced the venire and interfered with a fair trial. . . .”

[T]he statement also goes beyond what had been filed in the case because Snerd stated that it had been “shown” the Bush Administration was targeting Democrats. That transforms the allegations in the motion into a statement of fact, clearly an elaboration that was potentially prejudicial to the jury pool. This violation might fairly be seen as less egregious than those of Hill, but it was a violation nonetheless.

[Intent to Violate the Order]

Hill and Snerd contend that the government failed to prove they acted with the requisite intent to violate the gag order. The intent element of criminal contempt requires “a willful, contumacious or reckless state of mind.” In re Hipp, 895 F.2d at 1509. Behavior that amounts to a “reckless disregard for the administration of justice[,]” as opposed to negligent behavior, is a sufficient basis on which to find contempt. See Dominique v. Ga. Gulf Corp., 81 F.3d 155, 1996 WL 101416, at *6 (5th Cir.1996) (unpublished).

There was evidence to support that the defendants had the intent to violate the gag order. Hill’s public relations consultant, Carter, arranged the interview with Reaves some time before the gag order was entered. Although ground rules were established that purportedly prohibited Reaves from asking questions about the case, Carter, a non-lawyer who had never seen a copy of the gag order, was responsible for relaying the rules from memory to Reaves before the interview took place. Neither Hill nor Snerd confirmed or mentioned the rules to Reaves before the interview.

Snerd testified that he had not had sufficient time to study the order because he had been busy with another trial. Despite his admitted lack of preparation, he still neglected to bring a copy of the gag order to the interview. Hill, also an attorney, did not have a copy of the order.

Although the defendants’ mere participation in the interview four days before trial did not violate the gag order, they should have proceeded cautiously with their answers. They did not. A couple questions into the interview, Hill was asked an open-ended question by Reaves; specifically, if Hill were not guilty, why was he being prosecuted? Hill, aware the gag order’s purpose was to protect the impartiality of the jury pool, responded that he was being selectively prosecuted due to political and racial motivations. The government contends that it was reckless for Hill to interject the allegations of selective prosecution into the interview. The government argues that the district court denied Hill’s motion to dismiss for selective prosecution, and therefore that issue would never be before the jury. Hill’s response, the government insists, was intended to taint the jury pool.

Snerd testified at the contempt trial that he became uncomfortable with the interview questions and Hill’s answers almost immediately. He was most concerned about Hill’s comments on selective prosecution, yet he too expounded on the very subject when questioned later by Reaves. Snerd admitted that at no point did he stop the interview or ask for a break to retrieve and review a copy of the gag order. After the interview, Snerd was concerned that Hill’s answers violated the order, but neither he nor Hill requested that Reaves not broadcast the interview or gave any indication that the interview may have violated the gag order.

The defendants’ conduct evinced a willful, or at the very least reckless, disregard for the district court’s gag order, the need for a fair trial by an impartial jury, and the fair administration of justice.

My Thoughts

Without being critical of anyone who has a contrary view, my rule—for 33 years—has been never to comment on a pending case. I well remember giving a “background comment” to a reporter who had assured me that his story was not going to run until after a RICO case had concluded. Unfortunately, the story was published on a Saturday, and the federal judge in whose court I was practicing had the entire weekend to become more and more displeased. On the following Monday, he posed the question, “Would you rather practice law in my court or in the newspaper?” After pondering the question, I chose the first option. That was my last such comment.

Rule 3.07 [Trial Publicity] of the Texas Disciplinary Rules of Professional Conduct sets out the prohibition against inappropriate pretrial publicity.

In the course of representing a client, a lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicatory proceeding. A lawyer shall not counsel or assist another person to make such a statement.

Ellen Pitluck, an ethics attorney for the State Bar of Texas, told me that there are no ethics opinions under this rule and that the Board of Disciplinary Appeals (BODA) has not considered a complaint under this rule.

In retrospect, Mr. Snerd would probably have preferred—if the choice had been his—to have faced a panel of a grievance committee rather than the wrath of a federal judge.

Buck Files, a charter member of TCDLA, practices in Tyler, Texas, with the law firm Bain, Files, Jarrett, Bain & Harrison, PC.

Said & Done

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Kudos

Victor Amador of Lewisville was victorious when the 2nd COA ordered the 16th Judicial District Court in Denton to dismiss a murder case against his client due to the violation of the Interstate Agreement on Detainers Act. Victor filed a motion to quash the 2008 indictment, the 16th court denied it, so he filed a Writ of Prohibition and Mandamus. The COA ruled in his favor, and the defendant walked out of the Denton County Jail on April 8, 2011. Nice work, Victor.

Corpus Christi members had a May to remember: Constance Luedicke and Michelle Ochoa heard the two-word verdict 22 times in a possession of child pornography case in the 105th District Court in Nueces County. On the same day, Jimmy Granberry heard the “not guilty” returned in an assault case in County Court at Law #2 in Nueces County. Way to go, Corpons.

Fort Worth member Bob Ford scored a major victory for Chelsea Richardson, the first woman in Tarrant County to be sentenced to death. After a four-year appellate battle, Bob secured an agreement with the DA’s office that the former prosecutor on her case withheld evidence, and that she should get a new punishment hearing—and a life sentence. Richardson and two others were found guilty of the slayings of her boyfriend’s parents at their home in Mansfield in 2003. If District Judge Steven Herod, who was appointed to hear the appeal, agrees with their conclusions, he will make a recommendation to the Texas Court of Criminal Appeals. If the appellate court agrees, both sides then plan to enter into an agreement, and Richardson will receive a life sentence. A long, tough fight, Bob. Way to hang.

Two Trial College grads—Leslie Starr Barrows (2010) and Dean Miyazono (2011)—heard the two-word verdict in a DWI 2nd with a portable breath test of .175 in Tarrant County Criminal Court No. 7. Good work, y’all. You make us proud. Tarrant County prosecutors have had their hands full there recently: 4 not-guilty verdicts in that court in the past 2 weeks!

Keith and Cynthia Hampton of Austin won a mandamus in the Court of Criminal Appeals June 15th. The case involved the disqualification by the trial court of Bob Phillips, the defendants’ retained counsel, for a perceived conflict of interest because of his former representation of a witness who was expected to testify for the state, but who had nothing to do with the defendants’ case. In re Bowen v. Carnes, __S.W.3d__ (Tex.Crim.App. Nos. 76,519 & 76,520, delivered June 15, 2011). The case is important because it not only reinforces the defendant’s 6th Amendment right to chosen counsel, but, because the CCA, after observing that the trial court made no record on whether there was a conflict, disabuses the state and trial court of the notion that counsel can be removed merely because of how his representation may appear to the public: “[B]efore the mere appearance of unfairness may be allowed to defeat the Sixth Amendment presumption in favor of retained counsel, it must be accompanied at least by some serious potential for conflict. Here, the respondent allowed his concern about the public’s perception of fairness, without more, to override the relators’ own perception that the best way they could assure fairness for themselves was to be ‘defended by the counsel [they] believe[d] to be best.’ [] Such a concern, untethered to a finding of an actual or serious potential for conflict of interest, cannot suffice to overcome the . . . presumption [in favor of retained counsel].” The Court also rejected the state’s argument that appeal was an adequate remedy: “Requiring an accused to go through the ordeal of trial and appeal before he can pursue his remedy on appeal is a waste of public resources that can serve only to compel him unduly to reveal his evidence and trial strategy to the State.” Congratulations, Keith and Cynthia, on a great win!

The TCDLA Droid App Is Here

The new Android app for codes is now available in the App Market. Thanks once again go out to Grant Scheiner, Chair of the Computer & Technology Section of the State Bar of Texas, for his efforts seeing this created.

TCDLA warrior Stan Brown, who has practiced law in Abilene since 1972, will be honored in July as the first recipient of the Warren Burnett Award by the Legal Services to the Poor in Criminal Matters Committee of the State Bar of Texas. Jeff Blackburn, chairman of the committee presenting the award, told Greg Kendall-Ball of the Abilene Reporter-News: “Stan is the perfect example of a totally unsung hero who has been doing the right thing—because it’s the right thing—for decades, often with little or no reward. He’s absolutely following in the footsteps of Warren Burnett.”

Jeff said that Brown was the perfect recipient of this award, named in honor of Warren Burnett, an Odessa lawyer who, Blackburn said, “made as big a mark and cut as big a swath through the legal profession as any lawyer Texas has produced.”

For nearly 40 years, Stan has been handling court-appointed criminal cases in Taylor County and the surrounding area. A member of TCDLA since 1974, Stan earned a political science degree from UT then graduated from the University of Texas School of Law in 1969. For the past two years, he’s mostly been appointed to work on appeals cases. “That’s my way of slowing down a little bit,” he says.

Fallen Heroes: Anthony Nicholas

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TCDLA Hall of Fame Member Anthony Nicholas passed away on May 7, 2011. Raised in Austin, Anthony was a Navy veteran of World War II. After receiving his law degree from the UT Law School, Anthony served as a prosecutor in Bexar County, beginning in 1951. In 1957, Anthony and Roy Barrera Sr. formed a partnership that lasted more than 50 years—the oldest unchanged legal partnership in San Antonio and possibly in the State of Texas. A charter member of TCDLA, he was a member of the ABA, NACDL, SABA, and SACDL (where he served on the original Board of Directors and was named Director Emeritus), among many others. A member of the original Board of Directors of the Texas Board of Legal Specialization, Anthony served as director for eight years. He has been listed in Martindale-Hubbell with “AV” rating since the mid-1960s—under preeminent lawyers in 1996. He has been named in The Best Lawyers in America in criminal law since its inception in 1987. He is survived by his loving wife of 18 years, B. A. Nicholas, and sons Michael and Drue.

May 2011 Complete Issue – PDF Download

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Features

18 | Slate of Candidates and Proposed Changes to the TCDLA Bylaws
20 | FAQs About 46B Competency – By Jeanette Kinard
26 | A History Mystery: Who Shot J. W.? – By Chuck Lanehart
44 | Defendant’s Written Objection to Admissibility of Extraneous Offenses, Request for Procedural Determination by Trial Court with Findings of Fact and Conclusions of Law, and for Limiting Instruction – By Jim Lane & David Richards

Columns
8 | President’s Message
9 | Executive Director’s Perspective
10 | Editor’s Comment
12 | Federal Corner
16 | Said & Done

Departments
5 | TCDLA Member Benefits
6 | Staff Directory
7 | CLE Seminars and Events
35 | Significant Decisions Report

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.

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