President's Message - Page 3

On August 6, 2020, a Travis County Justice of the Peace named Nicholas Chu took a perilous stride down an icy constitutional declivity when he announced — in a press release! — his plan to preside over the nation’s first “binding” criminal jury trial via videoconference. (Or, at least as binding as any other Class “C” misdemeanor in a court with no reporter and in which the defendant has the right of appeal de novo.)

But still.

The accused would be tried for the offense of Speeding in a Construction Zone. Importantly, for reasons only the defense attorney can explain (which he did, of course, to the press), the defendant consented to this ill-advised experiment. So did the prosecutor. Most notably so did the Office of Court Administration — the government agency charged with approving all Texas trials during the pandemic until October 1, 2020.

The “Zoom trial” took place on August 11, 2020. It was beset with technical glitches ranging from muted audio and choppy video, to venire members being excused because they couldn’t login, to an empaneled juror being excused because his screen froze. (Good thing they had an alternate.) But while some of the technical challenges in Zoom trials can be addressed with public education and faster, more reliable internet connections, what can’t be fixed are the constitutional violations that arise from the denial of an accused’s rights to effective assistance of counsel and confronting the witnesses and evidence against him.

In but one example, the jurors who served in the speeding ticket trial were unable to observe the body language (or what the United States Supreme Court has called “demeanor”) of the police officer who testified. Maryland v. Craig, 497 U.S. 836, 837 (1990). In a trial of greater consequence — for example, when an accused is facing jail or prison time — a person’s liberty cannot be left to the best guesswork of jurors who can’t see anything more than a two-dimensional view of a witness’ face. Every experienced cross-examiner can tell you about trials won and lost because jurors observed a key witness physically “squirming on the stand.” Additionally, the accused and her lawyers in the speeding ticket case couldn’t see the body language of the jurors. Oftentimes that’s crucial in knowing whether a message is getting through to them. (For whatever it’s worth, prosecutors usually sit closest to the jury. Losing their ability to study jurors up close would be a major blow.) Two-dimensional Zoom faces and an inability of jurors, lawyers and the accused to fully observe demeanor are a poor substitute for some of the cherished constitutional rights that Americans have fought and died for on battlefields all over the world.

In the speeding ticket trial, as YouTube viewers stared into jurors’ homes, took note of their eclectic furnishings and hoped no children would come strolling by, Judge Chu prepared to read the verdict. He paused for what seemed like a long time. It turned out that the defense attorney was somehow locked out of the virtual trial and in a different Zoom “room” (which is probably the technological equivalent of getting trapped in a courthouse restroom). Eventually, Judge Chu pronounced that the defendant had been found not guilty of the charge or Speeding in a Construction Zone, but guilty of the lesser charge of speeding. At least we can be confident the jurors didn’t reach a split verdict because they wanted to beat the traffic home.

The true danger in Class “C” Zoom trials is not that speeding defendants will get clobbered in greater numbers (although, that’s part of it). It’s that there really are some appealing characteristics in virtual trials. They are cheaper, require less security, save jurors and witnesses from having to show up at the courthouse and probably move trial dockets faster because there are fewer continuances. It is these attractive features that may one day convince judges to lobby for virtual Class “C” misdemeanor trials without consent of the parties. Then, of course, some public officials will wonder why we can’t just have Zoom trials in all misdemeanor cases. Perhaps Classes “A” and “B” misdemeanor Zoom trials will start as consent only. But then judges may complain — as they did in convincing the Texas Supreme Court to abandon the consent-of-the-parties clause from its Emergency Orders governing trials during the pandemic — that litigants shouldn’t get to decide whether, when and how to go to trial. Only judges should.

Judge Chu’s Zoom trial is exactly how slippery slopes begin. A delicate first step, followed by another, and then an irreversible momentum toward a really bad policy for accused citizens and everyone connected to the Texas criminal justice system.

When something is cheap and easy it eventually becomes irresistible to those in power. We are absolutely kidding ourselves if we believe that Zoom trials will never happen without consent of the parties or that they won’t be seriously considered in criminal cases punishable by jail or prison.

Mark my words on this.

Only one group of people seem anxious to re-open courthouses and start criminal trials again. It isn’t us, and it isn’t prosecutors. In conversations with elected District Attorneys all over the state, I have learned that prosecutors don’t want to risk their health, the safety of their communities, or having convictions overturned due to constitutional violations. 

The public isn’t banging down courthouse doors, either. Many prospective jurors are struggling with health concerns, unemployment, and the possibility that schools might partially or fully close this fall. Not to mention a growing unease as COVID-19 numbers bounce back and forth between disturbing and alarming.

It is not even the Texas Supreme Court, whose emergency orders regarding criminal matters reveal a granular misunderstanding of the differences between civil and criminal practice. 

It is Texas trial judges.

True, there are many judges who recognize that the health and constitutional perils of jury trials during the pandemic far outweigh the benefit of appearing to get back to normal. If you see judges and their staffs postponing cases, waiving court appearances and otherwise acting responsibly, be sure to thank them. Good judges and staffs don’t get nearly enough positive feedback when they do the right thing.  

But there is a rather large, vocal group of trial judges who are misreading their constituents and apparently have an inflated sense of self. Here is a harsh truth for them: Most voters don’t know who you are. 

If you were to walk the voting line on Election Day and ask people to name three judges in their area, most couldn’t do it. Further, if you were to ask voters about the size of a particular judge’s trial docket, most people would have no idea what you were talking about. Too many judges are disconnected from what the public wants or even knows about them. 

Perhaps most troubling is the false narrative that some judges are spreading to justify restarting trials. They claim it’s because their dockets are full of people — especially those languishing in jail — who are demanding trials because they want to have “their day in court.” With exceptions, that is mostly baloney. Prosecutors and defense attorneys agree that criminal cases tend to get weaker, not stronger, with the passage of time. 

But if judges are pushing pandemic trials out of genuine concern for the speedy trial rights of the accused, there is a simple solution. Grant every defense request for a jury trial continuance during the pandemic. Lawyers with clients who really want a fast trial won’t ask for postponements. Also, if a defendant is bondable but trapped in jail due to a high bond or the unconstitutional GA-13 Order from Gov. Greg Abbott, reduce the bond and let the person out.  

If there is a County or District Court judge anywhere in Texas who disagrees with what I’ve written and wants to talk about it, feel free to call my Houston office or the TCDLA home office at 512-478-2514 and ask for my cell number. Text me. 

But to any judge who pushes forward with a pandemic jury trial over a defense lawyer’s objection: If something goes wrong, you will own this. You have the power to avoid disaster, and your constituents look to you for leadership.

On June 22, 2020, I will be sworn in as the 50th President of the Texas Criminal Defense Lawyers Association (TCDLA). Joining me in service to TCDLA will be 59 board members and officers from across the state. This will include 10 newly elected leaders. I am certainly biased, but I believe this is the most talented, eclectic, and motivated group of lawyers we have ever assembled to lead TCDLA. We will need every ounce of their contributions, as this is perhaps the most challenging period in our history.

In order to better serve our members, TCDLA must be unwavering when it comes to the following: When a person in power openly attacks or undermines the Texas or Federal Constitutions, as they relate to the rights of the accused, we must respond quickly and effectively. When one of our members is placed in an untenable situation simply for doing his or her job, we must shield that member with the protection of our Strike Force and 3,300 members in every corner of Texas. We must advocate for laws that will ameliorate the inherent unfairness in our state’s criminal justice system. And we must look for new and creative ways to improve the lives and law practices of our members.

Those who know me, know that I have a strong interest in using technology to enhance the practice of law. I hope that you will see some changes in the coming months that will re-affirm why you became a member of TCDLA. If you like what you see, please let me, your 59 other leaders, and TCDLA staff know. If you have an idea for a new service that you think our fellow members might enjoy, please let us know that, too. I have asked our staff in Austin to provide my cell number and email address to any member, upon request. Text me.

I value your membership and commitment to TCDLA. I ask that you stay a loyal member for at least the next 12 months and see what we can do for you. TCDLA needs you now more than ever. I hope to persuade you that you need us, too. Thank you, dear colleagues.

-Grant Scheiner

On March 27, 2020, my life was forever changed with the birth – in the midst of COVID-19 – of Brooks Alan Donica.  Of course, he is the most beautiful, perfect child God ever placed on the earth.  It was a dazzling spot during one of the most frightening, crazy periods in history.  I’ve included a FEW pictures because I want you to just see that I am not making this up – he is truly perfect!

Speaking of COVID-19 (must I????) – There are so many people who have stepped up for TCDLA to make a real difference for our members.  The foremost, of course, is our COVID-19 Task Force Chair Clay Steadman.  Clay is organized, smart, creative, tenacious, loyal and just quite simply amazing.  Our organizational approach to this virus has been brilliant because of Clay’s leadership.  We formed a task force with vice chairs Jeep Darnell, Nicole DeBorde Hochglaube, and John Hunter Smith, that had a team member in every TCDLA district ready to handle any issue that needed to be addressed.

And let’s talk about three individuals who stepped up under the leadership of the indomitable Betty Blackwell (GA-13 chair): Allison Clayton, Jeep Darnell, and Kyle Therrian.  They drafted responses regarding our GA-13 efforts that were simply intellectually over the head of almost anybody.  Truly three brilliant legal minds who have spent hundreds of hours making sure the rights of our neediest clients were being addressed. They continue to find ways to help our members meet the needs of our clients AND our members.

Take a look at the list of folks who stepped up to serve on our COVID-19 Task Force and ALL the resources available on the TCDLA website.  Each of these individuals is a HERO.  They have given when it was hard and they’ve cared about others when we were all really afraid for ourselves personally.  I’ve never been prouder of TCDLA.

I hope we are close to being set free to enjoy being back together at Rusty Duncan; I will REJOICE if that happens.  If it does not, we will have live streaming available (even if it does happen, that will be an option), so make sure you are signed up for Rusty Duncan.  I hope it will be our coming out party of the century!

I know it’s been a tough couple of months.  I pray it is almost a memory. I hope you never take one single breath for granted; and when life gives you the choice to sit it out or dance, I hope you’ll dance! 

Finally, thank you for the privilege, the honor, the joy of being your President.  Tears run down my face as I write this.  I love TCDLA – which is all of you.  My life is richer, more fulfilled and forever changed because I received the gift of serving all of you. God IS good!  In the words of Dr. Seuss –  “Don’t cry because it’s over, smile because it happened.”

Ah, COVID-19, how you’ve changed our lives. I had just opined that my presidency was on the downhill side and there had been smooth sailing throughout the year. And then God smiled. At TCDLA, our first concern was for the safety of our staff and our membership – our physical, mental, psychological, and financial safety. Just scary times. I pray that by the time you read this, we are on the downhill side of this terrible virus and life as we know it has resumed.

On a happy note: I have my first grandbaby due March 27, so I am hopeful that by the time this reaches our readership, I have had the opportunity to love on my precious Brooks Alan Donica and begin the process of making him the most spoiled boy in the entire universe.

Look, I wish we had a magic pill and could make this easy for everyone. I pray you’ve found some of the resources we have shared with our membership to be helpful. We have had incredible help from so many of our members – those who have reached out with resources and with plain old words of encouragement for each other. That is what TCDLA is all about – caring for others; whether it’s an inmate confined to a jail cell, or staff, or each other. We have a chance to learn just how incredible our “tribe” is when we are faced with such a potentially life-changing situation. Keep being there for each other and utilizing ALL our available resources. You matter. You ALL matter.

“We take photos as a return ticket to a moment otherwise gone.”

-Anonymous

This month I want to share a few photos to allow those of you who were not lucky enough to be with the 98 of us who traveled via Royal Caribbean to… well… to the Caribbean! An amazing time was had by all. From beautiful beaches to fine dining to a Hush Party, we didn’t miss a second of fun!  Two of our members even came in first and second in the ship’s sexiest man contest! I hope you enjoy the photos. TCDLA is truly my family and I can’t wait for our next adventure. Hope everyone plans to join President-Elect Grant Scheiner for his President’s Trip next February to D.C., where we will be sworn in before the U.S. Supreme Court. When we are together, great times follow!

As I put pen to paper, it is a cold January day. The saving grace is that I know in just a few days we will be sailing the ocean blue with so many of my favorite people in the universe on my TCDLA President’s Cruise! We will have great CLE, beautiful beaches, and incredible fun!

To make today even better, I attended a 7:00 a.m. Navarro College Martin Luther King Jr. Breakfast. The keynote speaker was none other than our former board member Audrey Moorehead! Audrey now serves as a Dallas County Criminal Court Judge, and she was as amazing as ever. She reminded everyone about the complete relevance of MLK even today and implored them to be a part of civic responsibility—vote, give back, be your best! An incredible (and of course hilarious) presentation from an even more incredible woman!

Speaking of Navarro College—everyone is already obsessed with our junior college of late, thanks to Netflix’s “Cheer” series about the Navarro College cheer program. If you have haven’t watched it—DO! You all know how much I love to share my hometown with everyone, and this is a great example of good things happening in smallish towns across our country!

TCDLA has some extremely good CLE in the near future! DON’T MISS IT! Our Criminal Defense Lawyers Project Chair Laurie Key has forced us to suffer through CLE at the Lajitas Golf Resort on February 28 so we can spend time with our incredible West Texas lawyers. Should be so much fun and educational as well. Then Anatomy of a Trial will be in Austin March 5th & 6th. This is going to be so very good: Our course directors are Betty Blackwell and Clay Steadman, and NOTHING they do is less than stellar! Check out the agenda on our website and make plans to be there.

I’m thankful for each of you, and I can promise I am ready for spring. Keep fighting the good fight! You are a blessing to me, to your clients, and to each other.

I admit it—I am a summer person. I LOVE the sunshine and the warm weather. Then it gets close to Christmas and I quit complaining about the cold! What a great time of year—spending time with family and friends and celebrating (for me) the birth of Christ!

 I LOVE trying to find the perfect gift for those I love! Don’t you love receiving Christmas cards from people far and near showing their precious families?

This year I hope you will find time to do something for someone who is less fortunate than you, or reach out to someone who might be especially lonely during the holiday season. Sometimes a person just needs to feel needed and valued, or even noticed. Be the outstretched hand to that person you know. Help your city’s social programs feed families who have to make hard choices this time of year.

I hope this Christmas ushers in an incredible 2020 for all of you! Please let me know of anything I or TCDLA can do for you to make the holiday season better for you or someone you know—or how we can help you in 2020.

Merry Christmas & Happy New Year!

Listening to Larry Pozner speak about cross-examination is a rare, rare treat. TCDLA (through CDLP) and HCCLA brought him to Houston to share a day of incredible training regarding cross.

His book, Cross-Examination: Science and Techniques, written with Roger Dodd, has had an incredible impact on how I conduct cross. It will change how you try cases. The “chapter method” alone is worth the price of the book. The book is now in its third edition. I’m a lucky girl because I had the pleasure of having Larry sign my first edition. Carmen Roe referred to either me or my book as a “dinosaur.” I’m sure she meant the book, as it is a 1993 edition and even has a “pocket part” supplement (remember those in our Black’s Statutes?).

The bottom line is TCDLA provides us with so many opportunities to be better at what we do. It’s incredibly important to our clients that we ARE the best we can be. Lives of our clients and their families are forever changed by being thrust into the criminal justice system. We can be a part of making that a little less daunting, a little less painful, a little less flat out terrifying. And we do that by being the best prepared, most confidant attorney in the courtroom. A huge part of what we do in trial is cross-examination. I strongly recommend the above book to all of you—I even had and listened to CDs of Larry Pozner in my car (I’m not sure I have a CD player in my car anymore). Tip Hargrove lent me his Pozner CDs, so I know this method of cross is alive and well in West Texas!

Next month, I hope to share some info about the survey in which we asked you to participate regarding TCDLA. Some interesting info has been gleaned and will help us be all we can be for you, our membership.

This month, we will celebrate Thanksgiving. Be sure you let people know you are thankful for them. Maybe a staff member, a court coordinator, a fair prosecutor (oxymoron?), a citizen accused who trusts you. I know I am thankful for ALL of you and hope to see you at the Sexual Assault seminar and board activities in Dallas the first weekend in December!

We had an incredible time in Austin for our Voir Dire seminar and board meetings! Under the leadership of Sam Bassett, Carmen Roe and John Hunter Smith, we created a fresh seminar format that involved breakout groups, demonstrations of effective voir dire and had our participants conduct voir dire! We are constantly striving to find new, innovative ways to offer our TCDLA lawyers to better represent the citizen accused. This was a great example of that, and I hope all our lawyer attendees and presenters left with a few more arrows in their quivers!

This year, we are focusing on mental health—ours as well as the mental health of our clients. Keep following the website, the Voice, and the listserve to learn of exciting opportunities for having an impact on your client’s signals regarding problems—whether it is addiction, depression, or any other condition that affects his or her ability to avoid legal problems. We need to also be mindful of our own issues affecting mental health. We continue to see our friends and colleagues in the legal community deciding to end their lives rather than dealing with the struggles. Lawyers are 3.6 times more likely to suffer from depression than nonlawyers, according to the American Psychological Association. Substance abuse rates within the legal profession are also much higher than for the general population. Clinical depression and substance abuse are highly correlated with suicide rates. The legal industry has the 11th-highest incidence of suicide among professions. I’d guess that number may be even higher for those of us who represent people who face not just the loss of money in a lawsuit, but also the reality of prison and the loss of everything and everyone they love.

Bottom line—be good to each other. Reach out to that lawyer who seems to be struggling or hurting or drowning in depression or drugs or alcohol. Be sensitive and make sure you’re also taking care of yourself. We will be offering some great opportunities to learn how to be better, healthier, financially stable lawyers.

You guys are all so important to me, and I thank God almost daily for the friendships and collegiality and sound legal advice I’ve gleaned because of so many of you. Can’t wait to see many of you at upcoming seminars—and of COURSE at our Sexual Assault seminar (commanded by the likes of Heather Barbieri and Jeff Kearney) and board meeting in Dallas in December!

Fall is in the air! Enjoy!