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President's Message - Page 9

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.

President’s Message: My Last President’s Column: The Real Story Behind the Star Spangled Banner – By J. Gary Trichter

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As I reflect on the events of the last two years, I must say first what a privilege it has been to be your President. I have not been humbled by the the honor, but rather, inspired by it. The Presidency and Providence have taught me much about others and about being human. My term has been no more and no less of a success than those that preceded me—we all build on the accomplishments of those who came first just as those who follow will build on what we have done.

On the plus side, the Association and I were blessed with an outstanding Executive Director and Assistant Executive Director, Joseph Martinez and Melissa Schank, as well as an outstanding home office staff. The Association and I also had the wisdom of an excellent Executive Committee: Lydia Clay-Jackson, Bobby Mims, Emmett Harris, Sam Bassett, John Convery, Scrappy Holmes, Stan Schneider, John Ackerman, Troy McKinney, George Scharmen, Mike McCollum, and Greg Westfall. In regard to the coming years, I attest to you that all that your officers are righteous people who I know to have your best interest at heart, and that I have no fear of passing on power to them. That said, however, they can not run this Association without your consent, trust, confidence, and participation—please step up and give it to them! Lydia will be a great President if you will help her help you!

Another plus for me was working with Court of Criminal Appeals Judge Barbara Hervey on our grant issues and State Bar President Buck Files on State Bar issues. Both of these good people deserve our thanks and support for their volunteer efforts to enhance our educational opportunities. Together, they have silently added a great measure of professional advancement to TCDLA.

On the negative side, I have but one disappointment, and that is simply that the one-year President’s term flew by. Notwithstanding, the year was filled with lots of activity and accomplishment. One such accomplishment was the initiation of inspirational readers at the beginning of our board meetings. Some moved us to tears while others taught us about courage we could immediately bring into the courtroom. As a lover of our American History, I strongly believe that “We the People,” as a Nation, can find more that binds us together than that which separates us if we simply do not forget our history. To this end, our reading of the Declaration of Independence ought be embraced by you all this July 3rd and a special thanks given to board member Robb Fickman for his leadership in this good will patriotic endeavor.

Let me now end with what I hope will be an inspirational story about “The Star Spangled Banner”—maybe one that will motivate you all to sing its words the next time you hear it or to have more courage in court. I have always been bothered that so many don’t sing our national anthem, and surmised that even though the words tell a story of a battle, that more needs to be told of September 12–14, 1814, in Chesapeake Bay. And so:

The War of 1812, sometimes called “the Second War of Independence,” was the only one where the United States was invaded by a foreign power. We declared war against Great Britain because it regularly kidnapped American sailors and disrupted American trade by blockade. In April 1814, England’s war with France ended at Waterloo with Lord Wellington’s crack troops, led by Major General Robert Ross, decisively defeating Napoleon. This resulted in those same crack troops, “Wellington’s Invincibles,” and General Ross being redeployed against our country. It came at a bad time because we were loosing the war; Chicago, Detroit, and much of the states of Maine and New York were under British control while the Indians, supplied with British arms, were waging war on the Western frontiers. Massachusetts was even sponsoring a plan to secede from the United States so it could pursue a separate peace with England.

Landing near the capital, the British not only marched on Washington, D.C., but also sacked and burned it after defeating an American army twice its size. President James Madison, “the Father of our Bill of Rights,” barely escaped with his wife, Dolly. It was Dolly who refused to leave until she could rescue priceless historical treasures—e.g., a portrait of President Washington.

Notwithstanding that our Capitol had been taken, it was not a military target of any real consequence. That honor fell to nearby Baltimore, Maryland, which was the third-largest city. This was a great seaport because of Chesapeake Bay; it was a large center of commerce of the young nation. Take Baltimore and the United States might fall, so thought the British!

Accordingly, the British plan was to attack and capture Baltimore, which had openly declared itself hostile to England. It was also to punish the city, nicknamed a “nest of pirates” because its schooners had retaliated against the British by seizing its ships and cargoes. Indeed, the Baltimore fleet was responsible for 30 percent of all British ships captured. The plan was to do so by land and by sea. Here, the invading navy, commanded by Admiral Alexander Cochrane, was composed of troop transports, supply ships, and 16 warships, including bomb-ketches: ships that fired mortars. These were superior weapons that allowed the dropping of 11-inch and 13-inch bombshells on targets two miles away with near perfect precision. The bombs were launched with one-pound bags of powder. Interestingly, each bomb had a timing fuse that, depending on its length, would explode the instant it hit its target (if perfect length), after hitting the target (if too long), or would burst in air (if too short). The British rockets had a range of one and three quarters mile.

On the other hand, the Baltimore city fathers, anticipating a possible attack, in the summer of 1813 readied an existing military emplacement that guarded both the city and the port. A large entrenchment was dug along the city outskirts, gunboat barges were built, the militia drilled, and improvements were made to brick star-shaped Fort McHenry: mounting a battery of 32-pound cannons with a range of a mile and and a half at the bay edge, cannon at Patapsco River, making hot-shot furnaces, and quartering a force of 1000 soldiers commanded by Major George Armistead.

It was during this same period, Major Armistead commissioned Mary Pickersgill to make two flags for the fort—a garrison flag 30 x 42 feet and a flag for inclement weather, a storm flag, 17 x 25 feet. Each flag was to have 15 stars and 15 broad stripes. The flag task was completed in seven weeks at a cost of $405.90 for the large flag and $168.54 for the smaller one, a sum that was more than most Baltimoreans made in a year.

On the morning of September 12, the British landed 5,000-plus troops at North Point and marched to attack the city. Arriving at Hampstead Hill, they found their path blocked by 12,000 determined American Militia. This was not an unexpected find for the invaders because it had been planned for their navy to subdue Fort McHenry, then to sail into the harbor and commence firing on Baltimore, causing panic and, hopefully, a retreat of the American forces. Accordingly, the invading army just waited on their navy to fulfill their plan. Regrettably for General Ross, while awaiting the bombardment, an American sharpshooter shot him right off his white horse, causing a great loss of morale.

With the first light of the 13th, about 6:30 a.m., the British fleet opened fire on Fort McHenry. The battle commenced in a heavy rainstorm, which caused the fort to fly its smaller bad-weather flag. Armistead’s cannon, being too light to reach the warships anchored two miles away, were useless and rendered the garrison totally defenseless, absent the ships moving closer. For the next 25 hours, warships continuously rained rockets, shells, and bombs on the fort—some 1,800 rockets were launched at Armistead and his 1,000 brave defenders—which is over one bomb, shell, or rocket per minute. Hour after hour, the American force took shelter and watched and waited. Many took shelter at the outside back walls of the fort as 186-pound bombs and rockets fell into the walls. At night, the rockets and exploding bombs lit up the sky and smoke obscured the fort in a dark cloud. Rockets whisked through air and burst into flames on impact.The sound was deafening and never stopped during the attack, and yet, the defensive force endured and endured. This was all happening while under the waving storm flag—sometimes visible and sometimes not.

Weeks before, as the British were leaving Washington in flames, they seized Dr. William Beanes as it was charged he was responsible for the arrests of British soldiers leaving the capital. He was imprisoned on a British warship. This doctor was important enough that President Madison sent a 35-year-old lawyer and poet, Frances Scott Key, and Col. John S. Skinner to negotiate a prisoner of war release. The two sailed out to the British fleet on September 3rd and were successful in obtaining Dr. Beanes’ release—except, because of what they saw and heard about the British war plans, all three Americans were detained on board an enemy sloop, at least until after the city had fallen.

Hour after hour during the day the three Americans watched in frustration as they witnessed the power of the British fleet assaulting their homeland. All night, they watched the mortars lob in bombs, their lit fuses leaving a trail of sparks. They also saw rockets and explosions light up the sky—and on occasion, when the smoke was thinned by the wind, they saw the fort’s storm flag defiantly flying above the defenders. The cannon, mortar, and rocket fire noise made it impossible to sleep.

And then, at 7:30 a.m. on September 14, the bombardment stopped. Key, Skinner, and Beanes knew of the British plan to attack Baltimore by land, too, and feared the worst—they had no way of knowing the truth. They had no way of knowing that the British fleet had run out of ammunition, that Ross had been killed, and that the British army advance had stalled. And then during the misty and drizzly dawn, they saw it! No, they did not see the storm flag; they saw the much larger garrison flag waving defiantly as the British fleet readied to sail off. Armistead had ordered it raised when he realized the battle had been won. His troops celebrated the victory by firing guns and playing “Yankee Doodle Dandy.” Proudly waving, the large stars and bars were visible from eight miles away—visible to the three Americans, Key, Skinner, and Beanes, who were overcome with joy.

Of course, seeing the star spangled banner and knowing the British had lost, Key was irresistibly inspired to write down what he felt and he did so on an envelope. Armistead lost only 4 defenders and had 24 wounded. The British only had one ship hit and only one sailor was wounded.

Key wrote a four-stanza poem telling the story of the battle, which told of the pride of a brave, free, and God-loving people that call this country home. In it he told a story of the pride of a country whose motto is “In God is our trust,” and of a people who would not only unite to fight for freedom, but also to keep it. Key called the poem “The Defence of Fort McHenry.” Put to the British melody of “Anacreon in Heaven,” the poem became our national anthem in 1931. Many of us know the words of the first stanza because it is the one we regularly hear, but the other three complete the battle as witnessed by Key.

The garrison flag is now on display at the Smithsonian Institution’s National Museum of American History. Sadly, the fate of the storm flag is not known.

As Americans, we have had many inspirational documents, events, and leaders to excite our patriotic spirit: the Declaration of Independence, the Gettysburg Address, and Thomas Jefferson just to name a few. An inspired person is a stronger person. An inspired association is a powerful association. An inspired association of lawyers is battle weapon for freedom and justice. TCDLA is that weapon! Together, we police the police. Together, we are the check and the balance on the conscious of the our country. Together, we are guardians of our Bill of Rights! That said, I have been inspired by so many of you. Ours is an Association of heroes. It has been my blessing to be your leader during my terms of office. For this, I thank you!

J. Gary Trichter
Your President

Oh, say can you see by the dawn’s early light
What so proudly we hailed at the twilight’s last gleaming?
Whose broad stripes and bright stars thru the perilous fight,
O’er the ramparts we watched were so gallantly streaming?
And the rocket’s red glare, the bombs bursting in air,
Gave proof through the night that our flag was still there.
Oh, say does that star-spangled banner yet wave
O’er the land of the free and the home of the brave?

On the shore, dimly seen through the mists of the deep,
Where the foe’s haughty host in dread silence reposes,
What is that which the breeze, o’er the towering steep,
As it fitfully blows, half conceals, half discloses?
Now it catches the gleam of the morning’s first beam,
In full glory reflected now shines in the stream:
’Tis the star-spangled banner! Oh long may it wave
O’er the land of the free and the home of the brave!

And where is that band who so vauntingly swore
That the havoc of war and the battle’s confusion,
A home and a country should leave us no more!
Their blood has washed out their foul footsteps’ pollution.
No refuge could save the hireling and slave
From the terror of flight, or the gloom of the grave:
And the star-spangled banner in triumph doth wave
O’er the land of the free and the home of the brave!

Oh! thus be it ever, when freemen shall stand
Between their loved home and the war’s desolation!
Blest with victory and peace, may the heav’n rescued land
Praise the Power that hath made and preserved us a nation.
Then conquer we must, when our cause it is just,
And this be our motto: “In God is our trust.”
And the star-spangled banner in triumph shall wave

O’er the land of the free and the home of the brave!

President’s Message: The 58: Being a Board Member Is a Lot More Than Just Showing Up at Meetings! – By J. Gary Trichter

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SCRAPPYISM from the recent Napa seminar: “TCDLA was built on relationships between friends who were also fine lawyers. Those relationships were forged by those who understood that it was the time together that was the most important component in building a strong association. Indeed, time together after the seminar was just as important as time spent in the seminar—maybe more important in the grand scheme of things! Time spent on trips together transcended those fine lawyers into brothers and sisters.”

As per bylaw Article VII, Sec. 1, (a) the board of directors has the responsibility “to manage the business and affairs” of our Association. Our board consists “of the elected officers of the Association, the past presidents of the Association, the editor of the Voice for the Defense, forty-two (42) directors, and sixteen (16) associate directors. Each past president of the Association is a member of the Board of Directors. . . .” Past presidents, the editor of the Voice, and officers aside, the remaining board is made up of the 42 board members and 16 associate members (the 58). Any officer or director, as per Sec. 6 of Article VII, can be removed for failure to attend two consecutive meetings.

The above brings into question: “What exactly is the 58’s responsibility beyond that of showing up for at least two consecutive meetings absent a good-cause excuse”? “Yes,” it is taken for granted that the responsibility includes “to manage the business and affairs” of our Association, but that raises a second question: “How?”

As your president, I assure you that it is not my intention to ruffle anyone’s feathers with my remarks herein. Rather, my purpose is to invite the 58 to further participation by trying to better define a director’s role. I also offer this column to those who aspire to serve on the board as a means by which they will know what responsibilities they are committing themselves to in being an elected or appointed board member. And so, I offer the following for your consideration. In my mind, I believe being a board member:

1.  is having an ongoing positive attitude, commitment, and desire to be involved in the business and affairs of TCDLA, and to be informed as to what that business is and what those affairs are;

2.  is reviewing online minutes of the last board meeting prior to attending the next meeting;

3.  is reviewing the online board agenda and being ready to discuss those topics before the next meeting;

4.  is writing and submitting a quality article for publication consideration in the Voice;

5.  is volunteering to speak at our TCDLA/CDLP seminars;

6.  is volunteering to be a course director for our TCDLA/CDLP seminars;

7.  is attending and supporting TCDLA /CDLP seminars (of course, only if time and finances permit);

8.  is volunteering to participate on committees and actually contribute in a meaningful way to them;

9.  is supporting your officers and executive committee and getting to know them better;

10.  is supporting your Voice editors (Greg Westfall and Jani Maselli, and SDR editors Kathleen Nacozy, Tim Crooks, and Chris Cheatham) and getting to know them better;

11.  is supporting our senior lobbyist Allen Place and lobbyists Kristin Etter and David Gonzalez and getting to know them better;

12.  is representing our members in your district and trying to help them or in alerting the home office or strike force of their need to get involved;

13.  is interacting with and supporting our TCDLA affiliate or­ganizations;

14.  is taking time to think about ideas that, if implemented, may improve our Association and submitting those ideas to your executive committee and/or home staff. It is also understanding that your officers and staff do think that your ideas are important even though they might not be adopted;

15.  is soliciting non-member lawyers to join our Association;

16.  is participating not only on our board listserve, but also on our membership listserve. Offering online help to our membership is an easy way to serve them;

17.  is reading, reviewing, and responding to information sent you by the home office—i.e., surveys and informed voting requests;

18.  is having a working knowledge of our bylaws;

19.  is supporting TCDLEI in its mission to help TCDLA;

20.  is being a credit to TCDLA and a leader in the criminal jus­tice system;

21.  is making FRIENDS within TCDLA and helping our Association to be a strong voice for freedom and liberty; and,

22. is remembering the Texas Criminal Trial College motto, “Friends don’t let friends try their case alone”—and trying to be available if asked for help.

Of course, the above is not an all-inclusive list of a director’s responsibilities but only a sampling. Some of you may be wondering why your president dedicated his column to this topic, and that would be a fair question. Part of the answer lies in recently requested board evaluation of our executive director. In this regard, recall that every two years the board is requested to complete a questionnaire that asks how our executive director and staff have been doing their jobs. Here, it is noteworthy that even though the evaluations received were a near unanimous vote of glowing confidence in our executive director and our staff, only about a third of the 92-member board responded.

Another part of the answer comes from the fact that our CLE members trip to Napa, California, was not very well supported—even though the trip was outstanding and reasonably priced. Those who did attend rated the CLE and activities exceedingly high, had fun with old and new friends, and learned a lot about the practice of law.

Another part of the answer comes from the fact that even though every board member received three free TCDLA memberships to give out, we did not get new members from each board member. The answer also comes from the fact that the Voice has not received articles from a majority of the board. Of course, the reasons could go on and on, but they are not necessary as the point has been made.

Accordingly, I ask you 58, as well as those of you who want to join their honorable ranks, to compare the suggested responsibilities above to the contributions you have made. If in doing so, you conclude you have done a pretty good job, then I thank you on behalf of our membership. If, however, that is not the case, then I ask you to consider the immortal words of the late President of the United States, John F. Kennedy: “Ask not what your country can do for you. Ask what you can do for your country?”

For the 58, your country is TCDLA and it needs your commitment, participation, and loyalty to remain productive and strong! As your president, I not only pledge my commitment to you and the membership to do our best to make TCDLA productive and strong, but also that your officers, executive director, and staff also make that same pledge! In closing, remember that the business and affairs of your Association are a constant, and that they are YOUR business and affairs. Let’s help each other better serve one another. Be involved, get involved, stay involved!

J. Gary Trichter
Your President and proud to serve you

President’s Message: TCDLA Is There for Us All – By J. Gary Trichter

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We criminal defense lawyers are citizen soldiers who have been sworn to uphold the Constitutions of Texas and the United States. Our oath and duty demand that we render both ethical and professional assistance of counsel. It is not enough that we provide competent help, but rather, we must provide effective help. Further, it is not enough that we provide effective assistance of counsel in most of our cases because our oath promise compels us to be effective in every case—no exceptions!

My 31 years of defense work have taught me that effectiveness only comes from putting in the necessary hours to learn the facts, law, science, and skills before you go to an evidentiary hearing or trial. In cowboy vernacular, it takes a lot of wet blankets if you want to ride a horse right!

Recently, at one of our seminars, I observed that many defenders there were unaware of the applicable DWI law and science relating to breath and blood testing cases. Indeed, it appeared that important and basic subjects—such as the DPS “Standard Operating Guidelines for Technical Supervisors” ( revised 4/18/2011); the repeal of Section 221.9, Texas Administrative Code (7/14/2011, relating to proficiency certification for Standardized Field Sobriety Testing) ; the scientific meaning of the phrase “uncertainty of measurement” (see Voice for the Defense, 5/2011); and ISO 17025 ( International Organization for Standardization guidelines/rules relating to general Requirements for the Competence of testing and calibration laboratories)—were not known). Also, it was noted that many were not up to speed on devices regularly used in blood testing prosecutions such as a pipette, an auto diluter, and the gas chromatograph. Understanding and acknowledging their deficiencies, these defenders rallied to gain the necessary education to make them effective—they made me proud of their thirst for knowledge and their desire to ride right.

Every time a defense lawyer enters a courtroom, that defender engages in a battle for justice not just for that particular client, but also for all defendants everywhere. Of import is the fact that there can be no promise of justice absent the defense lawyer. Our forefathers understood that having only a judge and prosecutor were insufficient measures to ensure fundamental freedom. Indeed, it was recognition of this truth that the guarantee of assistance of counsel was affirmatively written into the Sixth Amendment as a reserved freedom.

That said, every time a defense lawyer enters a courtroom, that defender must carry the responsibility and resolve that the sacrifices made by our military in protecting our freedom and liberty were not made in vain. We constitutional defense warriors have the privilege and honor to carry on their unfinished business of protecting rights and to dedicate our work to those brave service heroes who gave their all that we might remain a free people. We must have the same courage on our battlefields as they had in theirs if we are to hold true to our mission and oath.

We cannot accomplish this goal without first obtaining the necessary educational ammunition. Enter TCDLA! Your Association is a force and tool for freedom. It is your force and your tool! As an Association, it benefits each of you by multiplying your voice by more than three thousand times. As an Association, we promise each other that we need not stand alone, just as we promise our clients that they need not stand alone. As a tool, TCDLA is there to make available the very best legal education for you. Part of your duty is to seize upon that educational opportunity and to support TCDLA as it supports you.

There is a great task remaining before us, and its completion requires an ongoing alliance between each of us and our Association. That task is to promote and defend fundamental notions of fairness and justice. And so, let us strive together to remind the judges, prosecutors, and, most importantly, the citizens that ours is and must be a government of the people, by the people, and for the people! In Proverbs 18:21, NIV, it is written that “[t]he tongue has the power of life and death. . . .” We must be that tongue, that voice, that spirit of freedom and loudly declare that we, individually and collectively, will not falter in our duty! I am blessed to be amongst you!

J. Gary Trichter
Your President

President’s Message: Seminars Do Not Grow on Trees – By J. Gary Trichter

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The days of being a generalist in criminal law are long gone. Today, to be effective and professional, the criminal defense practitioner must at least know immigration law, many aspects of forensic science and appellate law. Keeping up with case and statutory law, we lawyers have a never ending ethical duty to stay current. Enter TCDLA!

Your Association’s primary duties have been and are to make it easier for you to not only keep up with the law, but also to improve trial skills and techniques. By the end of 2011, TCDLA and CDLP will have put on 46 seminars, totaling 63,119 CLE hours, having taught approximately 5,756 lawyers. Indeed, our Association is the third-busiest CLE provider in Texas with only the State Bar (#1) and the University of Texas (#2) doing more. It is my belief that we are the number one provider in criminal law.

The time and effort the home staff, your brother and sister VOLUNTEER course directors and speakers put in to making our seminars successes is, in terms of dollars, invaluable. Think of the many and varied CLE programs that have been available to you. Our CLE ranges from Capital Murder, to voir dire, to trial skills, to DWI, to forensics, to federal law, to immigration, to eyewitness identification, to innocence, to appellate law, etc.? For me, as a DWI specialist, I have to keep up on physics, spectrometry, chromatography, physiology, anatomy, optomology, nuerology, pharmacology, toxicology, chemistry, biology, and statistics. I also need to have a thorough knowledge of Doppler Radar and Lidar, breath testing devices, and the gas chromatograph. Fortunately, our Association provides our DWI practitioners all of the above practice areas in very cost-effective seminars at numerous convenient locations. Equal quality convenient seminars are available to our other criminal law disciplines, too.

Our seminar aim is to identify needed and new educational topics and then to bring them to you. We also strive to do this in our Voice, both in the magazine and online. Your TCDLA is always looking for motivated VOLUNTEERS to help us help you. That said, if you have a desire to present on a topic at one of our seminars , then I invite you to contact Joseph Martinez, our executive director, and tell him of your interest. He will put you in touch with one of our course directors for you to further explore your interest. Further, if you have an interest in writing an article, a column, or a blog for the Voice, then I encourage you to contact our editor, Greg Westfall.

As your president, I ask you to consider being more involved in TCDLA—after all, it is YOUR ASSOCIATION. Consider speaking or writing for us. On the flip side, I ask that you make a special effort to thank and appreciate YOUR VOLUNTEER course directors, speakers, and writers for their past and continuing contributions and generosity. On the topic of recognizing good work and VOLUNTEERS, our SDR editors, Kathleen Nacozy, Tim Crooks, and Chris Cheatham, also need to be thanked for their regular case updates. Note, too, their user-friendly change (or soon to be changed) SDR format.

In closing, please remember that our seminars do not grow on trees. Absent our highly professional home staff and the generosity of your brother and sister VOLUNTEERS, your TCDLA cannot continue to provide you with the quality products you need. And so, take a minute to say “thank you!” They will appreciate more than you know.

J. Gary Trichter
Your President

President’s Message: Our TCDLA Minutemen and Minutewomen – By J. Gary Trichter

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It was on April 19, 1775, at places called Lexington and Concord, a shot was heard around the world that changed it forever. It was then and there that ordinary citizens, but not so ordinary men, chose to openly defy an unjust government by standing in defense of others. Having been forewarned by Paul Revere and Billy Dawes of the British Army’s plan to seize their arms and munitions, select members of the colonial partisan militia immediately responded as a strike force to stop the Red Coat advance. These patriots, who were both highly mobile and quick to deploy, were the “minutemen.”

TCDLA has its minutemen and minutewomen, too. They are our volunteer Strike Force, and just like the colonial minutemen, they have and will unselfishly interrupt their personal lives and promptly come to the aid of a TCDLA member in just need. Your TCDLA Force members have pre-committed to respond to an unjust threat to any of our membership.

Recently, our minutemen and minutewomen responded to requests for help against government threats to members in Beaumont and San Antonio. Our Strike Force leader, Mike Heiskell, authorized Houston committee members Joanne Musick and Robb Fickman to make Amicus appearances in Beaumont Municipal Court, where prosecutors were wrongly demanding contempt sanctions against one of our own. Joanne and Robb rearranged their schedules so they could be present at the scheduled contempt hearing. Being great lawyers, they spent many hours doing legal and factual research and in writing a brief in opposition to the government’s position. In the end, our Beaumont member’s request to have TCDLA stand with him was not only answered “yes”; but also the Strike Force carried the day as the court denied the government’s request for sanctions.

The San Antonio Strike Force matter was a more serious abuse of governmental power. There, the district attorney’s office offended both justice and our member. The short story is that the State executed a search warrant for records in a white-collar prosecution and seized boxes and boxes of documents. It also left and/or abandoned boxes and boxes of records deemed of no value to the prosecution. Our member retained the discarded records and very effectively utilized them in cross-examination of the government’s witnesses during the jury trial. Indeed, so effective was the impeachment that the prosecutors there asked the trial judge to order defense counsel to give them the records—that court denied the request. Not dismayed, the State then presented a disingenuous search warrant affidavit to another judge and received authorization to seize our lawyer’s trial file. The affiant alleged our member was a co-conspirator in the very case being tried, and was not forthcoming about the trial court judge’s previous denial of their records request. Shockingly, the State executed the warrant during the jury trial and took our member’s file.

Again, a request for Strike Force assistance was made and granted. This time your minutewomen was Cynthia Orr, another great lawyer and past president of both TCDLA and NACDL. She immediately began her factual and legal investigation and put together an outstanding Amicus brief. Along with legendary Gerry Goldstein, also past president of TCDLA and NACDL and who was Amicus for NACDL, Cynthia assembled a dream team of defense experts (past president of the National District Attorney’s Association, law professor, nationally noted lawyers). Another of our members, Michael Gross, was there as Amicus for the San Antonio Criminal Defense Lawyers Association (SACDLA). Interestingly, the motion for mistrial/new trial hearing was not a short one but went on for days. Indeed, it was continued and not yet scheduled when this article needed to be sent in to our editor for publication. That said, having watched part of the hearing and knowing the sand that these minutemen and minutewoman have, I predict that the great wrong done by the government will be corrected.

And so, our Strike Force members, like the original colonial minutemen, are real life HEROES! They are our HEROES! They have already volunteered to be ready in a minute to stop their work to help you! Do you know who they all are? Take a minute to look them up in the Voice or on line so you can thank them for their generosity and dedication to you—and to justice. Let them know you appreciate them! Remember, our STRIKE FORCE means you will never have to stand alone!

J. Gary Trichter
Your President

President’s Message: Being a Defense Lawyer: Taking the Constitutional High Road—Winning Is Not Everything – By J. Gary Trichter

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“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

With these words, John Adams, Dr. Benjamin Franklin, Roger Livingston, Roger Sherman, Robert R. Livingston, and Thomas Jefferson set the stage in our Declaration of Independence for the Bill of Rights and our job as criminal defense lawyers. Two of those inalienable Rights, and maybe the two most important in the Bill of Rights, are the Sixth Amendment’s rights to “an impartial jury . . . and to have the Assistance of Counsel for his defense.” Of the two, it is the right to counsel that is arguably the most important because it is that one which protects all of the others.

The role of defense counsel was best summed up in Justice White’s concurring opinion, joined by Justices Harlan and Stewart, in the landmark 1967 case of United States v. Wade. There, the concurring Justices said:

Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe, but more often than not, defense counsel will cross examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which, in many instances, has little, if any, relation to the search for the truth.

Interestingly and importantly, the defense lawyer has no ethical obligation to win the client’s case. Absent having an innocent client, the good, or even great, defense lawyer knows not to put winning the case as the exclusive priority. Rather, the lawyer’s ethical and constitutional focus must be on protecting the client’s right to a fair trial. Like it is said in sports, it’s not whether you win or lose, but how you play the game. For the defense lawyer, it must not be all about winning, but how the justice system played—was the trial fair?

My 31 years as a criminal defense lawyer have taught me that far too many prosecutors and defense lawyers (and judges) unthinkingly get caught up in the competiveness of our adversary system. Sadly, they are of the wrong mindset: “It is all about the win.” Such thinking does a grave disservice to our justice system and to lawyers and judges who perpetuate it because the mindset ought to be “it is all about system working correctly and being fair.”

With an innocent client, it is morally just and expected that the defense lawyer would want the client to be exonerated. With the guilty client, however, is it right to have the same want? There is no black-and-white answer to this question for all situations or clients. For example, in some circumstances, a conviction’s label, punishment and/or collateral consequences can yield too great an injustice for it to be just. In other circumstances, the client may already be truly repentant and rehabilitated so that justice does not require a conviction. But yet, in other circumstances, where a client is actually guilty and then found guilty, if there was a fair trial, defense counsel ought to be satisfied and proud that justice was done. In this last example, if the trial was fair, then both the criminal justice system and defense counsel win. Indeed, when this happens, society and America wins. Clearly, there is no glory in freeing the guilty but there is great honor in standing up and defending that person’s right to a fair trial.

I am a diehard history buff. Our American History has been and is important to me. In my view, the 2.5 million U.S. Soldiers who died or were wounded protecting our country since its birth ought to have an everlasting value that can and should be related to what we do. I believe these honored military men and women have consecrated our rights with their blood, making those rights sacred and in need of unceasing protection. Being a good defense lawyer is hard and demanding work. It takes a special vision, a lot of courage, and heightened constitutional understanding to properly do our job. The responsibility of protecting the rights of another is awesome. Without a doubt, done right and for the right reasons, being a defense lawyer is a most honorable profession. Like the soldier, our mission is pure and patriotic when we battle for others, and not for ourselves.

And so, I say to you as your president that your fundamental duty is not to the truth, nor is to win a “not guilty” for your client, but rather, it is to police the government to make sure constitutional rights are honored, respected, and protected – as much for the guilty as for the innocent. I am proud to be part of this Association because the members of this group are the true spirit and champions of fairness and justice. Absent you constitutional fighters, there would be no constitution! Thank you for your courage and patriotism.

—J. Gary Trichter
Your TCDLA President

President’s Message: What’s It Like to Be the TCDLA President? – By J. Gary Trichter

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I am the 41st President of TCDLA. As your president, I have both an awesome responsibility and a great honor. The presidential responsibility I speak of is not only to the membership, but also to the presidents that preceded me.

Like me, all the previous presidents have been volunteers. Like me, all previous presidents have had a desire to leave the Association at the end of their term in a better position than they found it. Notwithstanding, the work of the president today is far more time consuming, and different, then it was 40, 30, 20, 10, or 5 years ago. We are now an Association of near 3200 members and have a full-time home staff of 10.

Being president, it is not uncommon for me to spend 15–20 hours per week on TCDLA business. Every day there are emails, letters, and phone calls to receive and to make. Frequent interaction with Joseph Martinez, our Executive Director, and Melissa Schank, our Assistant Executive Director, is also challenging. Topics range from staffing issues, various committee matters, CDLP, NACDL, NCDD, other affiliates, multiple TCDLA seminar topics, numerous budgets, tax documents, grant administration, judicial complaints, the Voice, TCDLEI, strike force help requests, and the weekly fire or two that we did not see coming.

Moreover, in addition to the working with our staff, I regularly speak with State Bar President-Elect Buck Files on State Bar matters, with the Honorable Judge Barbara Hervey of the Texas Court of Criminal Appeals (or with her staff) on grant issues, and with your other officers, the Executive Committee (all volunteers), and numerous committee representatives (all volunteers).

Here, as an aside, I want to note that your officers today are much more proactive than those of the past. Specifically, each officer actually shares in the volunteer workload of running this Association. For example, all serve on the other committees and all have accepted delegated responsibility from me. Your President-Elect, Lydia Clay-Jackson, is in the loop in almost every decision I make. This is a teaching process that Stan Schneider initiated with Bill Harris and that Bill carried on with me. Bobby Mims, our 1st Vice President, has been very active with grant matters and affiliates. Emmett Harris, 2nd Vice President, and Sam Bassett, Treasurer, have been working on budget reviews, and John Convery, on corresponding and going green.

And so, having a real-life everyday appreciation of the work, effort, and time it takes to be your president, I ask you to remember the 40 trailblazers that preceded me, your other officers, committee chairs, and seminar course directors, and to honor them. Please join me in thanking them for their great personal sacrifice and for their devotion to TCDLA. Absent their efforts, TCDLA would not be the best state criminal defense bar or association in the country. That said, I thank you for your trust and confidence in allowing me to be your president. I will do my best and always “cowboy up” for you!

—J. Gary Trichter
Your President