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Said & Done

Said & Done

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Kudos

Kudos to Harris County Chief Public Defender Alexander Bunin, who was presented with the Champion of Public Defense Award by the National Association of Criminal Defense Lawyers (NACDL) at its 59th Annual Meeting in Palm Beach, FL, in August. The Champion of Public Defense Award recognizes an individual for exceptional efforts in making positive changes to a local, county, state, or national public defense system. The award is nothing new to Alex, who served 12 years as the Federal Public Defender in Northern New York—where he received the New York City Bar Association’s Thurgood Marshall Award. In 2010, he was appointed to be the first Chief Public Defender for Harris County, TX, which prior to his arrival did not have a state public defender office. Alex received the 2012 Torch of Liberty Award from the Harris Country Criminal Lawyers Association for his work in public defense. One more feather in his cap for a lifetime fighting for justice.

Congratulations to appellate attorney and listserve docent Michael Mowla on his recent win in the CCA. Michael’s client, a member of a prominent Dallas family involved in litigation against his father in federal court over management of a trust, was indicted in 2011 for mortgage fraud. Client believed father was disgruntled over the outcome of the federal trust litigation and was seeking revenge through the Dallas County DA’s office. As “luck” would have it, there were questions about big bucks donated to DA’s reelection campaign. After a messy melee in the courts, admirably documented in Michael’s analysis (available here: http://tinyurl.com/hgx9kjq), the CCA stepped in and reversed and remanded. Listserve kudos noted that Michael had provided “an excellent analysis of prosecutorial vindictiveness and misconduct.” Way to go, Michael, for once again showing how it’s done.

Justin Underwood of El Paso and co-counsel Thomas Carter recently heard the big NG on a murder trial in the 384th District Court. D, an 18-year-old who was days away from moving to San Antonio to attend art school, has spent the last 3 years in jail, charged with the murder of a former 15-year-old girlfriend. After a week-long trial, the jury took 2 hours to return the verdict. Of particular note is Justin’s quote to the El Paso Times about D’s family: “We have gotten to know each other over the last three years to the point where they’re like family to us. This is not just a job for us. This is real and this is what we do every single day. Defense lawyers, not just Mr. (Tommy) Carter and I, we fight for the people when the government comes after them full bore. We fight for the individual who says, ‘Hey, I didn’t do this. You’ve got to help me.’ ” That’s what it’s all about. Good job, guys.

Former president Sam Bassett had a motion to suppress granted in County Court in Austin with a novel set of facts. Defendant had a one-car accident under I-35 after a night of drinking—no other car involved and no one else with him. He sees a tow truck, flags it down, and is in the process of having the car towed when an officer, responding to a dispatch about the accident, stops the tow truck with client as passenger (car already fully loaded). Officer tried to justify the stop, stating that tow trucks are prohibited from soliciting jobs without being called. Sam notes that there was no evidence that this had happened. Further justifications from officer: Dispatch reported the accident, officer was reasonable in responding, and it was 1 a.m., a time when a lot of drivers are intoxicated. The winning argument apparently was that a driver has no obligation to immediately contact police about an accident when no damage to property, no injuries, and no other persons involved. Judge granted motion based upon insufficient grounds for the stop. All in a day’s work, eh Sam?

John Hunter Smith of Sherman got a big NG on a doubly enhanced felony DWI in Grayson County. John Hunter represented an illegal resident of the United States on a DWI 3rd or more—enhanced to a second-degree felony. To complicate matters, an interpreter was needed. John Hunter notes that the proposed jury panel looked like participants at a Trump rally. A great deal of time was used in addressing jurors’ biases based on ethnicity. John Hunter says that one of the jurors said that once they determined the verdict, they took great pride in not considering his ethnicity and his prior DWIs. Kudos, John Hunter, for the win in a tough case.

Working pro bono on a student pot bust, George Roland of Denton successfully got a motion to suppress granted. The police officer had received a tip the accused was growing pot in his apartment. Police went to the apartment, smelled the odor of fresh marijuana at the door, and heard walking in the apartment. When the accused answered the door, the police pushed past him and did a “protective sweep,” finding a room full of college students getting high and a closet full of marijuana plants. George argued the UNT officer illegally entered the apartment without a warrant and without exigent circumstances. The judge agreed, finding no exigent circumstances and saying the cop should have just gotten a warrant. Kudos, George, on a job well done.

It’s been a busy summer for Patty (Tress) Morris. In August, she, Scott Palmer, and Rebekah Perlstein received a not guilty on an injury to a child case from 2013. She notes that the first battle won was when Scott and Bekah filed a Motion to Quash the first indictment, forcing the state to elect a specific means—i.e., with the defendant’s hands. A hard battle with D having to face an intransigent doctor, the team successfully neutralized him and receive a just verdict.
 In September, Patty and J. Kem Carlson received an NG on two indictments for Sexual Assault. This was certainly an odd case: adult sexual assault with a 68-year-old client with no prior criminal history. He maintained his innocence throughout. The jury agreed with Patty and Kem on both indictments.
 Kudos, Patty and team, for all your hard work.

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Kudos

James Horton and Nathan Miller scored a big NG in an embezzlement trial, State v. Steve Thomas, in Denton County. Thomas, along with two other defendants, was charged with a first-degree felony. He was alleged to have taken a client’s money for insurance policies, not purchasing said policies and not segregating the funds properly as required by law. Horton and Miller were able to show a complicated conspiracy between the other two co-defendants to defraud Thomas. Thomas was shown a set of books that showed false profits and was kept out of the day-to-day business. Consequently, he was not aware that the trust money for the insurance policies was not being properly used and segregated. Kudos, guys, on a job well done.

Kudos to Jeff Blackburn of Amarillo, recognized by the State Bar Association with the Michael K. Moore Award for Excellence in Research or Writing in the area of Indigent Criminal Defense. Jeff, partner Ryan Patrick Brown, and assistant Andrew Boyd produced a report, “Too Much Money, Too Little Justice: The Potter County Misdemeanor System,” studying the effectiveness and costs of the county’s misdemeanor courts. The report looked at Potter County’s class A and B misdemeanors in 2012 and concluded that the costs of arresting and jailing these offenders far outweighed the benefits to society. As noted in the study, the county would benefit from pretrial release practices such as ticketing low-level marijuana offenders, the so-called “cite and release” prevalent elsewhere. Congratulations, guys, on the recognition for your good work.

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Kudos

Congratulations to Tracy Cluck of Austin on his PDR win. In December of last year, Tracy filed a PDR alleging four points of error. One of the points of error was that the 13th COA failed to address a properly raised and briefed point of sufficiency of the evidence to support a conviction for one of the two felony convictions. Tracy filed a Motion for Rehearing and Reconsideration en banc at the 13th to address the fact that the 13th failed to address the sufficiency of the evidence. The 13th denied his Motion for Rehearing and Reconsideration. The CCA denied Tracy’s PDR in April, and he filed a Motion for Rehearing and Reconsideration En Banc at the end of April. In his Motion for Rehearing, he stated verbatim and with emphasis: “Appellant specifically points out to this honorable court, that a properly raised and briefed point of error has never been reviewed, discussed, or even acknowledged, by an appellate court.” The CCA finally granted Tracy’s PDR after he knocked on their door twice. Seems the second time is a charm. Tracy was court-appointed from the very beginning on this case. Kudos, Tracy, on a job well done.

Congratulations to Betty Blackwell of Austin, former TCDLA president, who has been awarded the Warren Burnett Award by the Texas Bar for her decades of commitment to indigent defense, culminating in her outstanding leadership as chair of the Capital Area Private Defender Service board. Named for late legendary Texas lawyer Warren Burnett, the award recognizes Betty’s contributions to improving the quality of criminal legal representation for indigents in Texas. The award honors either an individual or organization for work in the courtroom, legislature, or in the public arena. Kudos, Betty, for a lifetime spent fighting the good fight.

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TCDLA Associate Director Courtney Stamper passed along some information that, he says, “may sound a little simple but it created some issues for the State in a trial I was in last week.” He said to make sure prosecution has a proper chain of custody for a gun, and that the document trail is in good shape. In a case he recently worked, the gun’s serial number wasn’t in the report, and the document purporting to be the chain of custody was really just an evidence receipt, and was not provided in discovery. The State then didn’t have it at the time they tried to enter the gun. They came back the next day with the evidence “receipt,” and it contained scratch outs, multiple fonts, etc. So when they tried to enter it, Courtney and co-counsel Chad Hughes insisted that the evidence receipt the State was relying on had to be admitted as well. The State objected (“we had already covered the issues with the document in a hearing outside the presence of the jury, so the State knew what was coming if the receipt came into evidence”). Consequently, our heroes were able to make some hay with the document that was produced to them in the middle of trial. According to what jurors noted afterwards, their Not Guilty verdict was in large part related to documentary gaps in the State’s case. Congratulations, guys, on a job well done.

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Kudos

Kudos to Bradley L. Clark of Fort Worth, who was recently elected to membership in the Fellows of the Texas Bar Foundation. Fellows of the Foundation are selected for their “outstanding professional achievements and their demonstrated commitment to the improvement of the justice system throughout the state.” Selection as a Fellow of the Texas Bar Foundation is restricted to members of the State Bar of Texas. Each year only one-third of one percent of State Bar members are invited to become Fellow. They are nominated by nominating committees in 17 Texas districts. Congratulations, Bradley.

Kudos to Constance Luedicke and Michael Guerra of Corpus Christi, who recently obtained a directed verdict of acquittal in an aggravated sexual assault of a child case in Jim Wells County (Alice). The court ruled, upon motion by defense, that the government did not present a prima facie showing for the case to proceed to the jury. Way to go, guys.

Send your kudos, katcalls, and/or letters to Editor Sarah Roland at or Craig Hattersley at .

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When we extended kudos to TCDLA members recently certified in criminal law by the Board of Legal Specialization, we missed one: Steven J. Lieberman of Houston. Sorry, Steven, and congratulations.

Randy Brooks of Denton recently got a NOT GUILTY on a .24 blood-test DWI case. A witness testified that his client was swerving all over the highway, and that his client had bloodshot eyes (seen from the officer’s body camera). Randy successfully mounted a disconnect defense, attacking the labs in the right way, and the jury told him afterwards that his client’s eyes looked bloodshot throughout the trial (he had been in custody the whole time, so no, he wasn’t showing up drunk to court). Way to go Randy!

John C. Rentz of Denton heard some good news after a grueling trial. Client was charged with 4 counts of Indecency with Child under 14 by contact, with 2 alleged victims (allegations of under-the-clothes breast and genital touching for each child). Court allowed a 38.37 extraneous under-14 victim to testify to “attempted indecency by contact.” Client, the step-grandfather of the alleged victims (cousins), was alleged to have done the touching at his home while he and the children were watching movies with his wife (their grandmother) in the room. A week-long trial featured a Morton Act discovery violation: John learned they were going to offer a recording of a 1.5-minute portion of a 2-hour conversation between the grandmother and mothers of the victims. The recording, given to prosecution 6 months earlier by the family, had never been turned over. Judge, in excluding the audio and any testimony regarding the conversation, also commented that she believed that discovery of impeachment evidence goes to any witness, not just those sponsored by the State. Jury took 5 hours and came back not guilty on the 2 counts for one victim and hung on the other two counts. John is currently waiting to see if there will be a retrial on remaining counts. Good work, John, on a tough case.

Clay Conrad and Paul Looney report that the McLennan County Grand Jury in Waco failed to indict their clients and 37 more in the notorious Twin Peaks case. Neither the state nor the grand jury requested the cases should be continued and therefore they have been released from bond with no charges pending. Clay noted: “The case ended just the way we thought it would . . . The cases have all ended with a whimper, dismissed because there were no facts justifying the charges against them.” The grand jury’s term expired without an order extending the prosecution, so the cases were dismissed. Kudos to Clay and Paul for their part in the fight against the peculiar circumstances in Waco.

On February 29 and March 1, 2016, Patty Tress and Lisa Fox busted two jury panels in Dallas County in the 195th District Court on a Sexual Assault of a Child and Child pornography cases. The panel that was busted on February 29 had 77 panel members, and only 22 were left after for-cause strikes, so Judge Tinsley called a mistrial. On March 1, the panel of 77 was again busted, leaving only 16 after for-cause strikes. So Judge Tinsely called another mistrial. Stay tuned to see if they can ever get a jury in July!

Kudos to Denton-area attorneys for responding to our new editor’s call for kudos. Details are sketchy at this point, but the following enjoyed recent courtroom success: David Wacker got a Not Guilty on a four-count aggravated assault indictment, and George Roland also on an assault case. And definitely worth a mention, Earl Dobson and Susan Piel got the big NG on a cold case murder trial in Denton—on a 30-year-old case. The case involved a murder in 1983, when a victim was found with 35 stab wounds in a Denton hotel. In 2013, the national crime database linked D with fingerprints and then DNA to items at the scene and in the car used to leave the scene. D testified that it was self-defense, based on an attempted sexual assault. After four days, Earl and Susan heard the good news. Congratulations all around.

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Kudos

Kudos to TCDLA members recently certified in criminal law by the Board of Legal Specialization: Jonathan Hyatt (Longview), Justin Nimz (Wichita Falls), Richard Oliver (Houston), and Jed Silverman (Houston). Congratulations, fellow warriors.

San Antonio defense attorneys John Economidy, Donald Flanary Jr., and James Price emerged Friday, January 15, 2016, from the 290th District Court with the dismissal of two capital murder indictments against their client in a triple murder case. On the eve of an anticipated marathon suppression hearing, prosecutors agreed to dismiss the capital charges. In return, the client entered an Alford plea to a single count of a 38-count indictment for third-degree felony offense of possession of child pornography and received a 10-year sentence. Congratulations, gentlemen, on a job well done.

Kudos also to Bill Mason of Cleburne, who in December heard the two-word verdict in Johnson County on a five-count Indecency with a Child by Contact. A 15-year-old complainant testified to sexual contact by her 25-year-old uncle on two different occasions in 2012. Testimony showed D’s semen DNA in the complainant’s pajama pants. Turns out, the ex-girlfriend had worn the same pants for a tryst the next day—hence the presence of D’s DNA. Congratulations, Bill, on a job well done.

Texas criminal defense lawyers in general—and TCDLA members in particular—are due a big congratulations for their part in 54 exonerations statewide last year, ensuring that innocent people don’t remain in prison. Across the country, a record 149 prisoners were exonerated in 2015, more than a third in Texas, with exonerees spending an average of 14½ years in prison for crimes they didn’t commit. The rapid increase of exonerations has led the largest urban areas in Texas to create conviction integrity units—including Harris, Bexar, Travis, and Tarrant counties. Dallas County was the first in the nation to establish such a unit, with a familiar face to TCDLA in charge— former TCDLA General Counsel Patricia Cummings, now the Special Fields Bureau Chief of the Conviction Integrity Unit (CIU) of the Dallas County District Attorney’s Office.

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November 18, 2015, was a red-letter day for the Herr­mann & Weaver law firm of Amarillo. TCDLA member Walt Weaver notched an NG in Carson County on a bust of 52 pounds of meth. Seems his Kentucky client bought a car at an online auction, and during transportation from California to Kentucky, he was stopped for a trailer violation. Client consented to a search, and a lengthy search revealed nothing. The right rear tire, however, contained 52 pounds of meth and 3.62 pounds of heroin. D reported that he never touched the vehicle, and that the car was loaded onto the trailer by a frontloader at the auction lot. The police did not fingerprint the car, the tire, the wheel, or the drug packaging because . . . they just don’t do that. Jury kicked it after four hours of deliberation.

 Meanwhile, partner Paul Herrmann heard the two-word verdict on a Sexual Assault of a Child case in Amarillo. D had a problem with a 15-year-old child who kept running away and had a sexual relationship with her 18-year-old boyfriend. D called the cop assigned the runaway issue and self-reported that child was now accusing him of sex­ual assault in retaliation for keeping her away from boyfriend. D is nevertheless arrested without any additional investigation. Forty days after outcry, Forensic Interview and SANE completed on child. Jury took an hour to end it.
 Kudos, guys, for a job well done. All in a day’s work, eh?

Danny Easterling sent along congrats on the listserve to Stan Schneider and Casie Gotro for a big win in district court. District Judge Stacey Bond ruled that D should not have to suffer through double jeopardy because of a pattern of misdeeds by prosecutors and ruled that charges against him be dismissed. The judge said prosecutors with Harris County District Attorney’s Office intentionally forced a mistrial because the doctor was going to be found not guilty. Double jeopardy habeas relief followed the mistrial of a two-week sex assault of a child case where the defendant was a physician. Judge Bond hammered the prosecutor for her conduct in her findings and found the prosecutor deliberately goaded Stan into moving for a mistrial during final argument in the face of an impending acquittal. As Danny remarked, “Stan and Casie did a great job, and kudos to Judge Bond on her brave and independent ruling.”

Pat McLain got the best of all possible kudos, this from a client: “Mr. McLain guided me through the hardest part of my life. I had spent almost five years in the Marine Corps when I received false allegations of illegal drug use (positive urinalysis). . . . Got retained in the USMC and will be discharged honorably next week; I very highly doubt I would have achieved this outcome if not for the expertise and experience of Mr. McLain. . . Hiring Mr. Mclain was the smartest decision I ever made because my career is priceless to me. He saved my GI bill (which is worth $100,000 alone), my security clearance, and the prestige of having served honorably.” Sounds like a ringing endorsement, Pat. Congratulations.

Kudos to Richard Gladden of Denton for his work taking on all small Texas communities (5,000 and under) who have passed sex offender residence restrictions that are even more limiting than the state law, restricting where sex offenders can live. As Bill Habern noted in his praise of Richard: “These cities failed to notice that there is an AG opinion indicating these communities have no authority to pass such limitations. Richard Gladden with the assistance of Texas Voices gave notice to 46 small communities they needed to revoke their ordinances or face a lawsuit. Slowly these communities seem to be realizing Richard meant business, and are changing their ordinances.”
 Bill also notes that Mary Sue Molnare, the force behind the Texas Voices sex offender family support group, has been instrumental, seeing to the funding of expenses of Richard’s pro bono efforts statewide. Bill and Richard have in the past taken on a couple federal civil rights cases, and Mary Sue attended every one.
 All three are deserving of the respect of the association for their continued efforts in behalf of a group often beat up in society. Keep up the fight, Richard.

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Board Member Carmen Roe of Houston convinced a grand jury to “no bill” her 25-to-Life client stopped for speeding—and found in possession of 7 bags of cocaine, 1 bag of marijuana, and 2 bottles of pills. Turns out, officers deleted the video of the stop, 3 bags were found positive at the scene but negative at the lab, and the arresting officer never filed a supplemental report. Kudos, Carmen, on a job well done.

DWI Committee Chair and Board Member Mark Thiessen notched a string of court victories in October. The first involved an attractive young Cuban woman pulled over while attempting to lose a Porsche and a Mustang full of guys catcalling her. Her limited understanding of English in regards to DWI law led to her being manhandled at the station, despite her protestations that she didn’t understand and wanted a lawyer. An officer admitted they had a Spanish form in the room and a tape player that reads information in Spanish for them, but he allowed that he didn’t have to use them. They subsequently strapped her down and drew blood. The jury also didn’t believe the state’s analyst when she stated she never makes a mistake and ruled for D (who came by herself from Cuba at 18 with no family and worked her way up into banking). D was in tears throughout the trial, as her immigration status was in jeopardy.
 The second case revolved around a messy divorce case wherein the complainant ultimately asked the DA to dismiss and refused to show up to testify. The case, which jeopardized the medical license of D, only proceeded be­cause one DA wanted it to, despite the protestations of others. Mark notes that Judge Bill Harmon granted a directed verdict in the case, bringing it to a halt, after which jurors expressed their anger that the State would even waste taxpayer money on such a case. Mark expressed gratitude to Judge Harmon for his action in the situation.
 The third case involved a veteran of Desert Storm charged with Unlawful Restraint—product again of a “passionate” relationship with a girlfriend. Complainant called the DA’s office and requested the charges be dropped, and met with them in person eight days later to reiterate, even signing an affidavit of non-prosecution. She then only wanted to testify against him after she saw him with another woman, but on the stand her story kept changing and the jury didn’t buy in. All in all, a good month, Mark. Congratulations on your success fighting for justice.

Dispatches

I just got the September 2015 Voice and read about Charlie Butts passing.

In the dim, distant past (1972) I was first assistant district attorney for Bell County. There was a murder case which arose in a dispute over the accused being cheated by the deceased and a companion in a pool game.

Charlie represented the defendant. I did not know Charlie as I had been practicing in El Paso County. He was a formidable opponent and a hell of a nice guy.

During his final argument, Charlie had a poster board, and he said he had spent most of the night before on the floor of the bathroom in his motel writing out all of the points that raised reasonable doubt. The jury found his client guilty of Murder without Malice and gave him three years. This is not note­worthy except for the background to show Charlie Butts was a class act.

The trial judge, who had just been defeated in the primary, berated the jury over the verdict. He basically said he was glad he would no longer preside over trials where jurors were weak. (This may not be exact—it has been a long time.)

Charlie had the judge’s words transcribed by the court reporter. He then wrote a letter to the editor of the local newspaper praising the jury for their hard work and fair verdict. He quoted the judge’s words to the jury, but was very professional and did not directly criticize the judge.

I considered Charlie a friend and he will be missed.

James Kreimeyer

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