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Court Appointed Attorneys are “Cop Out” Attorneys

In my fifty plus years of practicing criminal defense, I have heard the above title more times than I can count. And, to a certain extent, I agree, for several reasons. Let me begin by explaining that in State appointments, the attorney is faced with very marginal, and in many instances, well below adequate compensation for the time required in representing a court appointed client, due to the fees that are allowed by the judges and county commissioners. This is especially true in the smaller and more rural counties.  What is striking in this resolve is that the judges make their normal salaries for their work, the prosecutors make their normal salaries for their efforts, the bailiffs make their normal salaries for their employment, the court reporters make their normal salaries plus payment for their work on appeals, and the law enforcement officers make their normal salaries for their investigation and testimony. However, the defense attorney is required to perform his or her duties with substandard compensation, limited sources of funding, and often having said compensation/funding reduced by the judge when the case is disposed by trial or plea regardless of the amount of time an attorney has had to put into his representation.  Often times the court appointed attorney does not put the time and effort that should be devoted to a particular case, as a result of overhead costs, family expense, and in today’s society, repayment of student loans. However, I have seen some court appointed attorneys who “padded their vouchers,” others who do not even set up files, others who try to convince their client to plead guilty to keep from going to trial, and some who have no business proceeding to a jury trial due to lack of experience or fear of jury trials. This is not to say all court appointed attorneys fall into these categories. I have known many very fine and competent court appointed attorneys who are without any of these faults. I am writing this article to provide attorneys, who accept court appointments (State or Federal) with practical tips that will aid in practice and dispel the title of this article. I would encourage you as a defender of the “citizen accused,” to at least try them out.

State Appointments

  1. Go and see your new client in custody or have the client come to your office if they are on bond. In this regard, I suggest that you do so at times when it does not take away from your “paying clients” (i.e., on your way home at the end of the day; on your way to the office in early morning; on weekends, when it is less crowded, or at vacancies during your office hours).
  2. If you are unable to meet with your client in person, quickly send a letter to the client telling them when you will be there to visit or setting an appointment in your office at a “lax time”. Try not use “Zoom” or “phone” – you need to see your client in person and let them see you. You need to make your visit personal.
  3. At the initial visit, advise your client of the following:
    1. You are appointed but not to worry, you will do your best for them;
    2. You will go over the discovery with the client after you receive same and review it with the client. Also, explain that under Art. 39.14, you are unable to provide the client with copies of the discovery, but you can make sure they see all discovery, whether in custody or in your office;
    3. Explain the “attorney client privilege,” advising the client that you cannot discuss the case with anyone other than the client without written permission granted by the client;
    4. Have a good interview form to get the basics, and a brief description of the facts and advise the client that you will get more facts from them after you review the discovery;
    5. Make sure to get information about and contact information for your client’s family, employers, and possible witnesses. Let your client know that you are interested in taking care of them as your client, so this information may be helpful later;
    6. Advise your client of the particular charge(s) brought and the range of punishment facing the client. Back this up with a letter to your client, advising them of the charge(s) faced and the range of punishment for each charge;
    7. Inform the client that you do not accept collect phone calls from the jail due to the likelihood of the conversation being recorded. As a matter of fact, I routinely inform the client that I never use jail phones during visitation. I have, on several occasions, had something come up during representation that was discussed “privately” on a jail phone;
    8. Make sure to take the time to build trust between you and your client using your personality to instill assurance;
    9. Explain to the client that your staff will not discuss the case with a client or members of the client’s family. Explain that the client should only discuss the case with you or when you are present;
    10. Advise your client, if in custody, that you do not have time to come out to the jail “to hold their hand” and to see how they are doing. Explain that doing so would take away from the time that you need to spend on the case. If the client needs to talk to you about something, tell them to have a family member or friend call and let you know the client needs to talk to you and you will be out as soon as you can. I also usually take a postage paid envelope or two addressed to me and leave with the client, so the client can send me a message if necessary;
    11. If the client is not in custody advise the client to keep in touch with you about changes in reference to address, phone number, employment, or new charges filed that you may not be aware of, to ask you questions, and let you know about any new evidence that the client may discover;
    12. Let the client know that you care about them and the outcome of their case, using your own method of doing so;
    13. Advise your client that they will be sent copies of every document filed in the case and follow through by sending it to them (mail from an attorney is a “status symbol” with inmates. And, other inmates will often tell your client, “I don’t get these from my court appointed attorney, and I only see my attorney when I get to court”). If the client is not in custody, send them to their mailing address or email address;
    14. I also recommend that in the first visit you express the seriousness of the offense and that you do not have a “magic wand” to make everything go away. Explain that criminal cases are based on facts. An attorney cannot change facts, but in some instances the attorney can manipulate these facts to benefit the client but you are not in a position yet to make an evaluation of what the ultimate result may be at this time. Also, explain that you may or may not be able to manipulate them (i.e., you may be limited to damage control);
    15. Explain that after you review the discovery, and investigate the facts provided by both your client and the prosecution, you should be able to advise them on what options are available. Advise the client that they will have to make a decision on what option they decide to take. As long as a client is willing to accept the risks involved in any option, you are ready, willing, and able to give your very best to try to make it happen. But facts are facts, and the client’s criminal history always plays a part in the ultimate result in the client’s case so be sure to explain any risks that there may be.
  1. When you get a copy of the indictment or complaint and information make sure to send a copy of the same to your client and tell them to make sure that these papers, along with any other papers you send the client, are important and the client should keep them;
  2. Another situation that will help you offset your time is to file a motion for appointment of an investigator. The investigator can perform many tasks for you. If you prepare your motion properly most judges will allow you some funds to do so. If you need more funding, file a motion for it. In this regard, make sure your client knows you have hired an investigator and introduce them to your client;
  3. While your client is sitting in jail waiting for things to happen, or out on bond, I suggest that you use a form letter, and advise them either the present status of the case OR inform the client that you are still working on the case but have nothing of any importance to tell them at this time. I recommend that you do this at least once per month;
  4. Review the discovery as quickly as you can. It’s often very difficult for me to do it during the day at the office, so I do it early in the morning or after 5 p.m. when not faced with the interruptions by phone, secretaries, or “drop-in clients”. Take notes, highlight important issues while reviewing, and keep them in your file;
  5. As quickly as possible, meet with the prosecutor and get a recommendation for a plea. I have learned there is a lot of psychology involved in dealing with prosecutors, so you have to know how to deal with a particular district attorney or their assistant. Often times, the first offer is just a starting place with your client’s case. Tell the prosecutor that you will present it to your client but don’t know how your client will respond as you just started on this case. Don’t put all your cards on the table at this point;
  6. After reviewing the discovery, getting the facts, witnesses for the client’s defense, and going over the discovery with the client, including the criminal history, then give the offer to your client, and back it up with a letter confirming that this is the “present offer” and advise the client that you will continue to negotiate if they so desire. Then the psychology aspect comes in. You have to know your prosecutor and how to negotiate at this point. Only lay your “cards” out as a last resort, and even then, be very careful using intimation rather than hard facts, which can give the prosecutor time to prepare and fix any problems;
  7. Do not overlook preparing for “punishment”. So many times, in my past 50 plus years of practice, there was no way to win the battle over guilt and innocence. However, I have been able to win the war with community supervision or a much lower sentence than the plea-offer. Too often, lawyers focus just on guilt or innocence and put punishment on the back burner. Prosecutors generally do not focus on punishment, and you can use that to your advantage. Even to the point, don’t advise the prosecution or the court until after the indictment or complaint and information are read before the jury or judge, that you are entering a “guilty” plea and going to the jury or the court only for punishment. There are two advantages to doing this: (1) The prosecution still has to put on evidence to meet their burden of proof. But, it often times shortens or softens the facts, and (2) you are ready with your case in chief, “punishment”. If your client wants a trial, as long as they are willing to accept the risks, which you must set out for the client, you will have to go to trial and explain you will do your very best, but don’t expect a miracle. In this situation, always back your client’s decision up with a correspondence confirming their decision and setting out the risks involved. When a final offer is made, and your client accepts or rejects same you should confirm this in correspondence to your client stating the offer, their acceptance and/or rejection and if rejected, make sure you point out the risks to the client in this correspondence;
  8. You should also check the jail records to see if there are any “detainers” from other counties, states, parole, probation, and even Federal detainers as they have to be taken into consideration in your negotiations even to the point of contacting the prosecuting authority to find out what they are going to do and possibly even convince them make them go away and dismiss if your client is going to receive time or probation elsewhere;
  9. JAIL CHAINS: I am very opposed to this court dictated “docket clearing practice”. Too often, especially in misdemeanors, your clients will have detainers, parole violations, or pending felonies that could be affected by a conviction in misdemeanor court on any one or more of the aforementioned pending matters. The Courts want to reduce their docket and are not concerned with those other matters not in their court which generally affect your client adversely. It is not “justice.” I call it “house cleaning” by the Court. Your responsibility is to the client, not to the Court. I refuse to be a part of this process. You must look at all aspects. It is unfair to your client and the system to plead a client for time or probation if it will have a detrimental effect on another case facing them. You should not worry about the Judge not liking it at this point. Your client is more important than the court’s crowded docket;
  10. I also suggest in entering a plea, that you get your plea papers before the date the plea is going to be taken by the Court. Don’t go over this paperwork in the hall on the date of the plea hearing if possible. You should take the papers to your client, and go over each detail with them. I always have my client initial each item we discuss in “red ink” and have them sign each document in “red ink”. The judges love it, because no one else does this and you have proof that it was covered at the time it was signed.

These are just a few suggestions that will assist you in your client relationship and the Court and rebut the public’s concept of “court appointed attorneys are cop out attorneys.”  You are documenting your services and communicating with your client. In many instances, the family and your client will aid in establishing trust in you, too.  I have even had clients at the plea hearing thank the Court for appointing me to represent them. I have found that when you do these things, it will result in future referrals from the client and their family and friends. The compensation paid for your services will be offset by your efforts for the client and satisfaction that you have done your very best.

A final “caveat,” if you are afraid of a jury trial, or if you are worried about making a particular judge angry, don’t take court appointments. You are an advocate for your client, and you have a duty to them. You should not worry that if you make a judge angry you will not get more appointments. Your responsibility is to your client, not to the judge.

Federal Appointments

The foregoing also applies in most Federal court appointments. Many attorneys express a fear or hesitation in taking Federal appointments. Those fears and reservations are not well founded. There is a learning curve, but it is not difficult and through the “CJA” there is unlimited assistance from the Public Defenders Offices as well as webinars, forms, and manuals available to you. In addition, the fees paid by Federal appointments far surpass those paid for State appointments. You will be paid at an hourly rate for your time and reimbursed for expenses at a reasonable rate. Talk with other attorneys who take Federal appointments including the Public Defenders. They are especially helpful. You have to get “acclimated” to Federal practice. It is not difficult but it can actually be profitable. Your voucher is kept online, and when you complete your representation, you literally punch a few buttons and submit your voucher to the Court. It is rare that a Federal Judge cuts your fees, and the Federal judge will almost never will cut your reasonable expenses, even postage. In non-capital cases in the Northern and Western Districts where I practice, the budget amounts have a limit which exceeds for services $10,000.00 on a case not including expenses. In revocations of “supervised release” the budget limit is approximately $2,500.00. If you are not taking Federal appointments, they are definitely worth considering.

For those of you who do accept Federal appointments, here are some additional tips which I believe will assist you:

  1. Unlike in state court, “jail chains” do not apply. Often, in Federal appointments your client is not in the same city or town as your office. You will have to travel to visit your client. The initial visit should be “in person”. You have to instill trust with you by the client. I have heard numerous complaints by clients that the only time they are able to visit in person with their attorney is at the courthouse. The rest of the time is by phone or “Zoom”. You need to be “face to face” for both you and your client, and be able to make eye contact with them;
  2. Obviously, you can’t go to the jury for punishment in a Federal case. However, you should start working on punishment from the very beginning by getting information from your client on family, friends, employers, religion, and the community in which your client lives;
  3. In that regard, it has been my experience that you have to deal with U.S. Probation Officers who compose the Presentence Report (PSR). I got a form from one Pretrial Release Officer, which is very helpful in representing the client. One would think that the officers would be fair and even in the report. This is generally not true. Most of the time the “bad” is emphasized and the “good” is merely mentioned, or the report says information requested “No reply”. Remember, they get their information from the Government, and all relevant conduct is used in computing the “Base Offense Level” to increase the “guidelines”. The officers will go to great lengths to emphasize the bad conduct and the “ghost dope” when they can. I have also found on more than one occasion when the PSR reveals “No reply”, that the person, employer, or character reference were never contacted. I always recommend filing objections to the PSR when any of this occurs;
  4. Another matter along these same lines has to do with what I call “character letters” and also psychological or psychiatric evaluations. The officers will tell you that these will not be attached to the PSR. When I respond to the PSR I object and attach them as exhibits that the Court should take into consideration. Additionally, I always file a Sentencing Memorandum and again attach them as Exhibits knowing that at least I have provided them for the Court and his “briefing clerk” to consider;
  5. Always prepare your client for the PSR interview. I do this by requesting the PSR Interview Form from the Probation Officer well before the interview. I then take it to my client and we fill it out as best we can. I then forward the form to the Probation Officer before the interview. There are three reasons to do this: (1) it shortens the interview because the Probation Officer just has to fill in the blanks (2) you learn many things when filling it out which may be useful, and (3) you are giving a preview to your client of the interview and instructing the client on when and how to respond to the questions posed by the Probation Officer;
  6. THE PSR INTERVIEW: Always advise the Probation Officer that you want and will be physically present at the time of the interview. Don’t just be in on a “3-way call”. You need to be present and follow along with the form you have helped your client fill out. This too, will make your client trust you even more, and you are controlling the interview, not the Probation Officer;
  7. I have found that the Judges in Federal Court (U.S. Magistrates and U.S. District Court Judges) for the most part appreciate the time and effort that you put into a case. In my personal experience, I have even been complimented by some judges for my efforts in the case by the Court.
  8. In the Northern and Western Districts where I practice, we are allowed $900.00 for an expert or an investigator without first gaining permission of the Court. If additional funds are needed, you can apply “ex parte” for additional funds for an investigator or expert by filling out the proper CJA form, articulating the need, the cost, and the name of the expert or investigator. I have never been turned down by the Court. This should be utilized by you. It can reduce the amount of time or travel that you have to spend “behind the windshield” or waiting at the jail. And the judges appreciate the “cost saving”. Take your investigator with you to visit your client, introduce them, and explain that they now have two people working on the case and the client should treat them as if it were you in their dealings;
  9. Document all your meetings, discussions, and communications with the prosecutors, the courtroom deputies, the holding facilities, and the Court and place that document in your file. This is easily done through emails, correspondence, and documenting your voucher;
  10. Discovery in Federal cases is often lengthy and detailed. I have had several cases with more than 1TB of printed data, videos, photographs, recordings, etc. I presently have a case that involves 5 six-inch binders plus flash drives of videos, photos, and recordings. You have a duty to go through it all. I suggest that you do so outside of office hours, and take notes. It can be tedious and time consuming, but in order to properly represent your client you need to have all the knowledge available concerning your client. Be sure to charge for your time on the voucher;
  11. Keep a good working relationship and communication with the Courtroom Deputy. These individuals can save you time and expense. Always thank them for their assistance whether in person or by email. They are quite busy, but I have found that they understand matters such as conflicts in scheduling, appointments, and general assistance. I have even sent letters to their supervisors telling how much I appreciate their hard work and assistance. You would be amazed at the cooperation and consideration you can achieve by doing so;

I could go on and on with several other matters but I consider most of the foregoing are interchangeable between Federal and State appointments. The bottom line here is that you have an obligation to represent your client to the best of your ability. If you are not comfortable trying cases in federal court, then get some experience by sitting second chair. You need to see the prosecution you will be facing in the courtroom, the judge in the courtroom, and the particular way that voir dire is conducted by that particular Court. If you were a coach of a football or baseball team you would want to know how the opposing team members perform. The same concept should be followed if you are proceeding to trial whether before a jury or the bench and whether in state or federal court. Talk to other attorneys who practice before that Court, ask questions and insight of them to help you prepare for the trial. Scouting in such a manner has proven invaluable to assist me in preparing for trial.

Conclusion

I firmly believe that if you are going to take court appointments you should be ready, willing, and able to go to trial if that’s what your client wants. Advise your client of the risks involved, and if the client persists, it is their liberty that is at risk. In my experience, I have been involved in representing clients, I have tried cases that were absolute losers, and had so advised my client prior to trial. I have documented this for post-conviction attacks. Every once in a while, “you catch lightening in a jar” and win one or even get a lesser sentence than was involved in the plea offer. These kind of cases allow you to think outside the box and try new approaches or arguments which makes the trial exciting to you and your client. I actually got a two-word verdict in a Possession of Methamphetamine case involving a client who had more than 50 prior arrests. My motto is:  “I try to treat a client the way I would want to be treated were I the client and not the attorney.”

Juvenile Certifications: Post-Moon and Thomas, where are we?

One of the most important undertakings for a criminal defense lawyer is to fight to keep a juvenile client in the juvenile system. See Miller v. Alabama, 567 U.S. 460, 471 (2012). This article addresses the question of where juvenile certification stands post-Moon and post-Thomas.

I. Background

On June 16, 1944, the State of South Carolina executed fourteen-year-old George Stinney, Jr., in the electric chair. Tragically, he was too short for the electrodes to reach his head, so he had to sit on books. Stinney was tried as an adult because, prior to the 1950s and 1960s, there were no laws on how to handle a murder trial for a juvenile in South Carolina.

Although Texas had reform schools in the nineteenth century, a juvenile justice system started to develop around 1949 with the funding of the precursor to the Texas Department of Juvenile Justice. Juvenile law became widespread across the country in the 1960s. In 1973, the Legislature passed the Family Code with what we now call the Juvenile Justice Code. Further, for nearly all of the history of juvenile justice in Texas, the Court of Criminal Appeals has exercised final jurisdiction.

II. Basics

Generally, jurisdiction exists to prosecute a juvenile under the Juvenile Justice Code if the child is alleged to have “engaged in delinquent conduct.” Normally, the child is between the ages of nine and seventeen at the time of the offense.

III. Certifications: The Beginning, Kent v. United States

The aim of this article is not to provide the history of Juvenile Law in Texas but is, instead, a look at the current position of juvenile certifications beginning with the 1966 Supreme Court decision Kent v. United States, 383 U.S. 541 (1966). As set out by the Supreme Court, Kent, who was already on probation for burglary, was arrested and charged with breaking into a home in Washington, D.C., stealing a wallet, and raping the homeowner. Id. at 543. The police had used fingerprints to identify the then sixteen-year-old Kent. Id. The provision for the juvenile court to waive jurisdiction read:

If a child sixteen years of age or older is charged with an offense which would amount to a felony in the case of an adult, or any child charged with an offense which if committed by an adult is punishable by death or life imprisonment, the judge may, after full investigation, waive jurisdiction and order such child held for trial under the regular procedure of the court which would have jurisdiction of such offense if committed by an adult; or such other court may exercise the powers conferred upon the juvenile court in this subchapter in conducting and disposing of such cases.

Id. at 547-548 .

Kent’s lawyer filed a motion for a hearing on the question of waiver of Juvenile Court jurisdiction with an affidavit of a psychiatrist certifying that Kent ‘is a victim of severe psychopathology’ and recommending hospitalization for psychiatric observation. Kent’s lawyer also requested access to the Social Service file relating to Kent during his probation period, and which would be available to the Juvenile Court judge in considering the question whether it should retain or waive jurisdiction. The Juvenile Court did not rule on these motions, did not conduct a hearing, and did not confer with Kent, his parents, or his counsel. Id. at 545.

Instead, the Juvenile Court entered an order reciting that a full investigation had been completed, waived jurisdiction, and allowed Kent to be tried as an adult. Id. at 550. There were no findings or reasons for the wavier listed in the order. After his trial, the court sentenced Kent to serve five to 15 years on each count as to which he was found guilty, or a total of 30 to 90 years in prison (the jury convicted Kent on six counts of burglary and acquitted him of rape). Id.

The Supreme Court determined there was not a sufficient investigation prior to the juvenile court waiver of jurisdiction. Kent did not receive a hearing, access to counsel, or access to his record prior to the waiver. The Court remanded the case to the district court to determine whether the waiver was proper. Because Kent was 21 years old at the time of this decision, the juvenile court no longer had jurisdiction if the waiver was proper.

The Supreme Court reasoned: The statute gives the Juvenile Court a substantial degree of discretion as to the factual considerations to be evaluated, the weight to be given them and the conclusion to be reached. It does not confer upon the Juvenile Court a license for arbitrary procedure. The statute does not permit the Juvenile Court to determine in isolation and without the participation or any representation of the child the ‘critically important’ question whether a child will be deprived of the special protections and provisions of the Juvenile Court Act. It does not authorize the Juvenile Court, in total disregard of a motion for hearing filed by counsel, and without any hearing or statement or reasons, to decide—as in this case—that the child will be taken from the Receiving Home for Children and transferred to jail along with adults, and that he will be exposed to the possibility of a death sentence instead of treatment for a maximum, in Kent’s case, of five years, until he is 21.

Id. at 553-554.

The Supreme Court further explained: Meaningful review requires that the reviewing court should review. It should not be remitted to assumptions. It must have before it a statement of the reasons motivating the waiver including, of course, a statement of the relevant facts. It may not ‘assume’ that there are adequate reasons, nor may it merely assume that ‘full investigation’ has been made. Accordingly, we hold that it is incumbent upon the Juvenile Court to accompany its waiver order with a statement of the reasons or considerations therefor. We do not read the statute as requiring that this statement must be formal or that it should necessarily include conventional findings of fact. But the statement should be sufficient to demonstrate that the statutory requirement of ‘full investigation’ has been met; and that the question has received the careful consideration of the Juvenile Court; and it must set forth the basis for the order with sufficient specificity to permit meaningful review.

Id. at 561.

To this day, Kent remains the cornerstone of juvenile certifications. However, its meaning and requirements are the subjects of meaningful dispute in Texas courts.

IV. Juvenile Certification in Texas Until 2021

A. Juvenile Justice Code and Moon The post-Kent process of developing procedures and standards to certify a juvenile was troublesome and uneven, but came to relative equilibrium in December 2014 with Moon v. State, 451 S.W.3d 28 (Tex. Crim. App. 2014) (overruled by Ex parte Thomas, 623 S.W.3d 370 (Tex. Crim. App. 2021), reh’g denied (June 23, 2021)). Moon addressed to Sections 54.02(f) and 54.02(h) of the Family Code, which provide the general guidelines a certifying court should consider in evaluating whether to certify a juvenile.

        Section  54.02(f) requires the court to consider the following factors when making a determination about certification:

(1) whether the alleged offense was against person or property, with greater weight in favor of transfer given to offenses against the person;

(2) sophistication and maturity of the child;

(3) the record and previous history of the child; and

(4) the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedure, services, and facilities currently available to the juvenile court. See Tex. Fam. Code § 54.02(f).

If the juvenile court waives jurisdiction, section 54.02(h) requires a juvenile court to “state specifically in the order its reasons for waiver and certify its action, including the written order and findings of the court . . .” See Tex. Fam. Code § 54.02(h).

In Moon, the Court of Criminal Appeals held that in evaluating a transfer order, an appellate court reviews specific findings of fact regarding statutory transfer factors under traditional sufficiency of the evidence review but then reviews the ultimate waiver decision under an abuse of discretion standard. Importantly, they further ruled that when conducting a review of the sufficiency of the evidence to establish the facts relevant to the statutory transfer factors and any other relevant historical facts, the appellate court must limit its review to the facts that the juvenile court expressly relied upon. Moon, 451 S.W.3d at 49-50. The Moon Court reasoned that the Legislature meant for juvenile courts should “show their work” when certifying a juvenile as an adult.

Then, in 2015, the Legislature divested the Court of Criminal Appeals of jurisdiction over juvenile cases and entrusted final jurisdiction with the Texas Supreme Court. See Act of May 12, 2015, 84th Leg., R.S., ch. 74 § 3, 2015 Tex. Gen. Laws 1065, 1065–66. Most recently in 2021, the Court of Criminal Appeals expressly overruled Moon calling it “unworkable” and stating “[n]either the statute’s text nor the Supreme Court’s holding in Kent” required a court to “show its work.” Ex parte Thomas, 623 S.W.3d at 382.

V. Where are we now?

Ex parte Thomas was a writ case brought for a certification entered before Moon. The Applicant argued “the order waiving juvenile jurisdiction did not contain factually-supported, case-specific findings, it was invalid, and thus the district court never acquired jurisdiction.” Ex parte Thomas, 623 S.W.3d at 372–73. But because Thomas was a writ case and Thomas was simply denied relief, Thomas did not need to “fill the space” left when the court vacated Moon.

In the absence of Moon, defendants are left with Kent and the Juvenile Justice Code. As mentioned above, Section 54.02(f) sets out the broad parameters of what the certifying court must consider and Section 54.02(h) provides the certifying court must “state specifically in the [certifying] order its reasons for waiver and certify its action, including the written order and findings of the court . . .” See Tex. Fam. Code § 54.02.

The question that remains, however, is what must a trial court do to comply with Section 54.02(h)? Generally, the State reads Section 54.02(h) to mean the certifying court must only list the factors weighing in favor of certification. This argument comes from the language the court must state “specifically in the order its reasons for waiver and certify its action.” (emphasis added). For the State, the word “for” generally means factors weighing in favor of certification. But for the defense, Section 54.02(h) and the word “for” mean the certifying court must explain its reasons for certifying the juvenile, including evaluating factors that weigh against certification. This specific question is before the Texas Supreme Court right now in In re J.R. (docket no, 21-0446) and In re A.K. (docket no. 21-0511). As of the date of this writing, the Supreme Court ordered the State to file a response in In re J.R., which was filed by the State and replied to by the Petitioner. Concerning In re A.K., the Petition for review was denied and a Motion for Rehearing has been filed.

VI. In re J.R.

In re J.R. is the author’s case out of the Fifth Court of Appeals in Dallas. In re J.R., 05-20-00920-CV, 2021 WL 777090, at *1 (Tex. App.—Dallas Mar. 1, 2021). The appellant lost. But in losing, the appellant secured a three-judge dissent from the denial of the motion for en banc reconsideration. In re J.R., 05-20-00920-CV, 2021 WL 1976460, at *1 (Tex. App.—Dallas May 18, 2021, no pet. h.).

The court issued J.R. before the Court of Criminal Appeals overturned Moon and the appellant filed for en banc reconsideration after Thomas. In light of Thomas, the dissenting justices on the Dallas Court of Appeals asked to hear In re J.R. en banc.

Justice Schenck, on behalf of the three-dissenting justices, dissented to ask the Texas Supreme Court how, with the end of Moon, intermediate-appellate courts should “acquit themselves of the serious task laid out before them in an appeal [that challenges the sufficiency of the evidence for a certification].” Id. at *2.

Initially, it is essential to recognize in a sufficiency review of a decision to certify a juvenile, an appellant court is limited to a review of the facts/evidence/conclusions the juvenile court expressly relied on in its transfer order. In re S.G.R., 496 S.W.3d at 239.

For Justice Schenck, the problem is how an intermediate-appellate court should conduct a sufficiency review under City of Keller (the defining civil case on sufficiency review). Id. at *5. Under City of Keller, the reviewing court must look to all of the evidence to decide whether it supports the verdict. City of Keller v. Wilson, 168 S.W.3d 802, 811 (Tex. 2005). Justice Schenck contrasted the reasoning from Thomas with the review of a low-damages-car-accident case. In re J.R., 2021 WL 1976460, at *7. He asked why a party in a low-damages-car-accident case would be entitled to a review of all of the evidence, but a defendant in a juvenile certification would only be entitled to a review of the factors weighing in favor of certification? Id. He concluded “the better practice would seem to be to provide a broad review on direct appeal allowing the reviewing court to insist on a record that affords a meaningful appellate review and requiring the juvenile court to explain how it got to the conclusion it did, not just cite the facts in support of its ultimate determination.” Id. at *9.

Justice Schenck’s question asking what belongs in a statement of reasons under Section 54.02(h), is a question we expect the Texas Supreme Court to answer soon.

VII. So What Now?

An attorney facing a certification hearing should proceed as he or she always would, by presenting evidence that weighs against certification. If, however, the certifying court rules in favor of the state, certifies the juvenile, and does not list the factors that weigh against certification, then the attorney should object in writing and secure an order. The objection would be to specifically list the factors supporting certification on the basis this precludes an adequate review on appeal.

VIII. Conclusion

The law on juvenile certifications is uncertain. This uncertainty, however, can create opportunities for you and for your clients. The Texas Supreme Court is not likely to resolve this issue for at least a calendar year. During that time you should have leverage to use an appeal of a certification without reasons for and against certification as a tool to secure a good plea agreement for an appropriate client.

The ‘New’ DWI: Deferred or Trial?

Criminal convictions can be damaging. The type of offense [DWI, possession of a controlled substance, theft, aggravated sexual assault of a child, etc.] and a person’s status [teacher, truck driver, self-employed, etc.] will dictate just how hard a conviction will ‘hurt’. It could mean the difference between no substantial change in personal status vs. divorce, job loss, skid row, and contemplation of suicide. 

Accordingly, the Texas Legislature enacted in the Texas Penal Code ranges of punishment for each conviction classification. Further, depending on the facts and issues of the particular case, skilled defense lawyers may be able to negotiate offense/sentence reductions, modifications, and lesser included offenses for a case rather than a possible harsh original offense and attendant sentence.

One such possibility is deferred community supervision or probation. With deferred, no actual judgement or conviction is recorded thereby making either expungement or non-disclosure available. Such benefit is now available for DWI, but how much of a benefit is it, really? Finally, after a long hiatus, since 1984, deferred adjudication probation is once again available to those accused of DWI. HB 3582 provides the ‘opportunity’ to plead to deferred adjudication, thereby avoiding a ‘conviction’ upon successful completion of the probation. Since the DWI law in Texas was partially amended on September 1, 2019, I have noticed quite a few DWI cases pleading to deferred adjudication. However, there are conditions attached. An accused may not receive deferred if he or she has:

  • Any prior DWI or other delineated conviction (school zone enhancement, sexual offenses, etc.);
  • State Jail Felony DWI (child passenger younger than fifteen years of age);
  • Flying While Intoxicated;
  • Assembling or Operating an Amusement Ride

While Intoxicated;

  • Intoxication Assault;
  • Intoxication Manslaughter;
  • Holds a commercial driver’s license or permit;
  • An alcohol concentration of 0.15 or more; or
  • Other statutorily delineated restrictions to obtaining deferred.
[I would refer you to Frank Sellers and Mark Thiessen’s article on the subject in the November 2019 Voice, entitled “2019’s Need-to-Know Changes to DWI Law” for a further explanation on the changes.]

While the availability of deferred for certain DWI’s may seem to ‘wipe’ the accused’s record of a conviction, HB 3582 also amended Texas Penal Code Section 49.09(g) and added language: “[f]or purposes of this section, a person is considered to have been convicted of an offense under Section 49.04 or 49.06 if the person was placed on deferred adjudication community supervision for the offense under Article 42A.102, Code of Criminal Procedure.” So, even a deferred adjudicated first DWI can be used to enhance a subsequent arrest for DWI to a greater category! The deferred status only ‘hides’ the ‘conviction’ from most civil eyes, such as employers, etc., but not all agencies, such as certain professionals and law enforcement. So, if there is any benefit in deferred, it is minimal, at best.

After explaining these issues in detail to clients, I have found not all clients are very keen on deferred. They still must complete a term of probation with all the attendant ‘fallout’ of monthly visits to a probation officer, fines, court costs, classes, victim impact panels, etc. Additionally, a plea to deferred also sets them up for a possible future DWI being enhanced to a greater degree. So, what could be an alternative? 

As with any case, if the facts (videos, police reports, TCOLE records) are favorable, a trial may be the choice remedy. ‘Not Guilty’ is always a favorable outcome since the accused’s record will be clean (after the arrest is expunged) resulting in no stigma from a conviction and no consequences of a sentence.

However, with a ‘Guilty’ verdict, the accused would likely receive a sentence very close to that which would have been received on a plea, depending on the jurisdiction, prosecutor, and/or judge. If none of the above restrictions to a deferred is a factor, in certain situations, the guilty verdict can be non-disclosed. (TEX. GOV’T CODE §§411.0726, 411.0731, 411.0736)

A guilty verdict followed by a non-disclosure would have exactly the same result as a deferred plea, but the attempt at trial has given the accused a chance of a Not Guilty disposition.

To be eligible for non-disclosure, the accused must have been convicted for an offense under Penal Code §49.04 (Driving While Intoxicated) or §49.06 (Boating While Intoxicated), except for the BAC >0.15 enhancement of §49.04(d) or received deferred adjudication for any offense under Penal Code §§49.04 or 49.06. The accused must successfully complete his sentence, including payment of all fines, costs, and any restitution imposed. He or she must not have received any prior convictions or deferred adjudication for any other offense other than a fine-only traffic offense. The accused must also show that the issuance of the order is in the best interest of justice. Additionally, there must not have been an affirmative finding in the underlying case that it is not in the best interest of justice that the accused receive an order of non-disclosure (CCP 42A.105(f)).

An important caveat to abandoning deferred and proceeding to trial is a serious consideration to a breath or blood level which could be negotiated with the prosecutor, and the DPS ‘superfine’ which is an entirely different subject of study.  Apart from negotiation during a plea process, a guilty conviction after trial could lock in the superfine. A possible remedy could be afforded by court-ordered sentencing rather than jury-ordered. Such tactics must be considered on a case-by-case basis.

In summary, deferred adjudication for a qualified DWI or BWI is a better choice than that before September 1, 2019. But, if the accused’s BAC is not greater than 0.15 on a first DWI or BWI, with no prior criminal history (and none of the other restrictions recited above), a trial may be the much better choice since the eventual outcome is either the same conditions as a plea to deferred or even better, a Not Guilty.

Food for Thought: Semantics and the Presumption of Innocence

Proof lies on him who asserts, not on him who denies.
– Code of Justinian (22.3.2)

It  has long been held that a person accused of a crime is presumed innocent. In 1895, the United States Supreme Court in Coffin v. United States stated that, “the principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law…”1

However, the presumption of innocence is much older than 1895. The idea that the prosecution must prove an accused guilty and that the accused has no burden to prove his innocence began in the Roman times. One of the first instances that it was written was in the Code of Justinian, which stated:

“Let all accusers understand that they are not to prefer charges unless they can be proven by proper witnesses or by conclusive documents, or by circumstantial evidence which amounts to indubitable proof and is clearer than day” – Book IV, Title 19 (emphasis added).

It was not until 1797 that the phrase “innocent until proven guilty” was coined.

So how and why did it go from “unless” in the Digest of Justinian to “until?” And does it matter? We do not yet have the answer to our first question, and we spent some time looking, but as to the second question: yes, we believe it does matter.

The word “until” means “up to the time that” or “up to such time as,” while “unless” means “except on the condition that” or “under any other circumstance then.” “Until” presumes that a condition will be met, while “unless” does not make any presumption at all. Unless is a precondition.

While it may seem inconsequential to delineate the differences between the words “until” and “unless,” especially because the phrase “guilty until proven innocent” is so engrained in our society, it is interesting to note and to consider that Texas specifically uses the word “unless” in the definition of presumption of innocence:

“All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt.”2

Did the Texas Legislature mean to use the word “unless?” Or was it a typo or some sort of oversight? Curious, we looked at 15 other states. Out of those 15, only one used the word “unless” like Texas does.3 It seems to us that using the word “unless” in the Texas definition of presumption of innocence was a deliberate choice.

Whatever the reason, the Texas Code of Criminal Procedure defines presumption of innocence using the word “unless,” and perhaps we as criminal defense attorneys ought to as well. “Until” creates an intrinsic bias against our clients. When we use the word “until,” we tell the jury it is going to happen: the state will prove its case against our client and overcome the presumption of innocence. And why would we give the state even the slightest advantage, when they already have so much in their favor?

Maybe it is time to give the old 1797 phrase a makeover and bring it back to its roots by saying “innocent unless proven guilty” to our clients, our courts, and perhaps most importantly, our juries.

Diligent Participation Credit

Neither parole nor “good time” credit is available to defendants serving State Jail prison sentences. During the 82nd Legislative Session, a bill addressing “diligent participation” was introduced and passed into law. The bill presents the possibility for inmates serving State Jail sentences to receive additional credit towards their sentence. The sentence had to be served day for day prior to September, 2011. There are several restrictions when determining the eligibility for diligent participation. Any and all time credit awarded by the Trial Court is considered “a privilege and not a right” meaning it is purely discretionary. Tex.CodeCrim.Proc.Art. 42A.559(h). With respect to how much credit one might receive, it may not exceed “one-fifth of the amount of time the defendant is originally required to serve in the facility” or 20 percent of the sentence. Id.

The judgment must reflect whether the court finds defendant is “presumptively entitled to diligent participation credit”. Tex.CodeCrim.Proc.Art. 42.0199. The determination of whether an individual is presumptively entitled is required on the face of the Judgment. Id. If the court makes an affirmative finding and the Defendant has not been subject to disciplinarily action while in the State Jail facility then the award of credit for eligible diligent participation credit is mandatory. Tex.CodeCrim.Proc. Art. 42A.559(f). 

If defendant is not presumptively entitled to diligent participation credit then a report containing records of specific day counts of participation in “educational, vocational, treatment, or work program(s)” is sent to the court. Tex.CodeCrim.Proc.Art. § 42A.559(g). A presumptively eligible defendant subject to disciplinary action while in the state jail facility loses presumptive status. Their records are forwarded in a similar manner to individuals not found to be presumptively entitled. According to the Texas Department of Criminal Justice web page on the matter, if the Trial Court does not award credit, “the offender will serve their full sentence.” Time where an inmate has either completed or is making successful progress towards completing an educational, vocational or treatment program, or is actively involved in a work program qualifies as “diligent participation”. Tex.CodeCrim.Pro.Art. 42A.559(a). The purpose of this statute is to incentivize participation in available programs for State Jail inmates.

A Diary of Declaration Readings

Declaration reading in Gail, Borden County, Texas, USA. Population 231. There may not be much to this one-jail-cell-town out on the Caprock of West Texas – except a great sense of American pride. The entire courthouse staff (yes, all six) showed up to support the reading today!

-Laurie Key, Lubbock

My Dad, Philip Fickman, despised tyrants and bullies. Perhaps that is because most of our family was murdered in the pogroms.

My Dad loved this country and the freedoms we are all guaranteed. He always made July 4th a fun celebration for my brothers and me. Annually, my Dad and the other young fathers on the block put on a large, joyous, and probably illegal, fireworks display in the middle of our street.

When I became a dad, I always hosted a big barbeque on July 4th. Everybody was eager to eat, but before we ate I had my young sons, Sam and Daniel, read aloud the first and last paragraphs of the Declaration of Independence. I wanted them to understand the meaning of this holiday.

By 2010, many members of the Harris County judiciary were acting as if they were King George III. They were stepping all over the rights of our clients. Like our Founders, the Harris County Criminal Lawyers Association had finally suffered enough of this tyranny.

So, in 2010, before we headed out to our family barbeques and fireworks,  members of HCCLA staged a symbolic protest against our local tyrannical judges by reading the Declaration of Independence on the courthouse steps. We sought no permission. That would be akin to our Founding Fathers asking the king for permission to declare independence.

I told my sons about our readings and about how it all started in our backyard with them. They liked it and they were supportive. For several years, Sam, who has a film degree, has edited TCDLA Declaration reading videos.

This year, Sam and Daniel were in town. I invited them to join us in the reading.

Watching my sons read the Declaration of Independence was something I will always treasure. In strong, resolute voices, they joined me and my colleagues in open defiance of tyranny. These readings are not about my family or how we celebrated the 4th of July. These readings are about all our families and our communal rejection of tyranny inside and outside of the courthouse.

-Robb Fickman, Houston

The Henderson County Bar Association gathered on the courthouse steps Friday to read the Declaration of Independence. Congress signed the unanimous declaration of the united thirteen colonies of America on July 4, 1776. It is the foundation for this country.

As the words rang out over the square, flags waving, the voices of speakers bounced back in echoes from the other buildings confirming the eloquent and courageous words of freedom and independence:

“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 . . .”

A crowd gathered on the lawn to hear the words that still ring true today. Shana Stein Faulhaber, local event organizer, said the words move her to this day every time she reads or hears it.

“I still get goosebumps,” she said.

Although she is new to the area, she has quickly jumped in and embraced community involvement.

Zane Faulhaber closed the ceremony by playing the “Star Spangled Banner” on electric guitar.

The practice was originally started by a group of criminal defense attorneys and has quickly grown to a state-wide event.

-The Athens Review

Following our first reading in Hopkins County, we hit the road to read in Delta (Cooper) and Rains (Emory) counties. We then joined up with Mac Cobb to read the Declaration of Independence in Morris (Daingerfield), Marion (Jefferson), and Cass (Linden) counties. Six counties, lots of miles, a few mispronounced words, but high spirits.

-Brent McQueen, Sulphur Springs

Shelby County criminal defense lawyers Deck Jones, Jeff Adams, April Prince, and Stephen Shires gathered at the front of the Historic Shelby County Courthouse July 2, 2021, to give a ceremonial reading of the Declaration of Independence and the Bill of Rights.

The Texas Criminal Defense Lawyers Association has encouraged this annual event since 2016 across the state of Texas.

An audience gathered in front of the courthouse to hear the lawyers recite the Declaration of Independence and the Bill of Rights. Although a heavy rain moved in on the event, the lawyers pushed through until they completed their task.

-ShelbyCountyToday.com

A handful of citizens came out Friday at noon to the Hale County Courthouse as county lawyers conducted their annual reading of the Declaration of Independence as part of the Fourth of July holiday celebration. This was the eighth annual reading of the Declaration, a tradition started in Plainview in 2013. The reading is an event put on annually by the Texas Criminal Defense Lawyers Association. Mayor Charles Starnes was among the nine readers during Friday afternoon’s reading.

-Plainview Herald

A long-standing tradition for South Plains lawyers kicked off Independence Day celebrations with a reading of the Declaration of Independence reminding us of all the Fourth of July isn’t just for cookouts and fireworks. It’s a time to celebrate the official beginning of our country.

EverythingLubbock.com

It was a great day for the readings in Archer, Baylor, Knox, Foard, and Wilbarger Counties. Thanks to Robb Fickman and Chuck Lanehart for helping with this tradition and my dear friends Scott Stillson and Todd Greenwood of Wichita Falls for the fun road trip.

-Dustin Nimz, Wichita Falls

Reading of the Declaration of Independence in Bowie County (Texarkana, Texas) and Miller County Texarkana, Arkansas) simultaneously in front of the Federal Courthouse with Mac Cobb and Jeff Harrelson.

-Brent McQueen, Sulphur Springs

Freedom and the liberties that come with it were celebrated ahead of the 4th of July holiday on Friday when attorneys recited the Declaration of Independence and the Bill of Rights in front of the Brazos County courthouse.

The annual tradition is celebrated across more than 150 Texas counties. Locally, the event is organized by the Brazos County Defense Lawyers Association.

Local criminal defense attorney Shane Phelps helped organize the event. He says the time for complacency about freedoms in the United States and Texas is over. Phelps says citizens need to appreciate why we celebrate this holiday and understand and exercise our rights.

“We stop every year to celebrate the 4th of July, but sometimes we don’t really appreciate what it’s all about. This is an effort to try and remind people of the sacrifice that was made by our founders so that we can enjoy the freedoms we do,” said Phelps. “So before we get started on our parties and our barbecues and boating, it’s a good thing to hear the words of the founders in the Declaration and the Bill of Rights, so that we understand and appreciate as we enter this festive holiday weekend just how important those rights are to Americans in Texas.”

Phelps says it’s up to everyone, including attorneys, to help protect the rights of American citizens.

“Criminal defense attorneys are champions of liberty. We step into the courts of Texas every single day, and we defend these rights. We remind jurors and judges of the Fourth Amendment, the Fifth Amendment, the Sixth Amendment, all of those rights that guarantee freedom to citizens,” said Phelps. “An important message and important part of that is to understand that if you don’t know what your rights are and if you don’t exercise them, then when you really do need them, they’re just not going to be there.”

Cameron Reynolds, president of the Brazos County Defense Lawyers Association, says knowing your rights and freedoms is crucial, and more people should take the time to read the constitution and Bill of Rights. Reynolds says those documents are more than just words on paper.

“I’ve been doing this defense work for the better part of 25 years. I’ve represented judges, police officers, doctors, lawyers, and I can tell you it’s a lot different when something’s happening to them,” said Reynolds. “It doesn’t mean that much until something happens to you or your family. Then you realize, man, I really need this. I need these rights to mean something.”

-KBTX-TV, Bryan

To commemorate the Fourth of July holiday, the Harrison County Criminal Defense Lawyers Association will host the group’s ninth annual public reading of the Declaration of Independence, this Friday, July 2.

The event will begin at 11:30 a.m., in front of the working 1963-model Harrison County Courthouse, located at 200 West Houston St, and not at the historic courthouse.

“The public is invited,” organizers stated.

Those who want to participate remotely can watch the live broadcasting on KMHT radio’s Facebook page.

“This is the ninth annual reading in front of the Harrison County courthouse,” organizers said. “Your local defense bar is committed to protecting and ensuring by rule of law the individual rights guaranteed by the Texas and Federal Constitutions in criminal cases.”

The local defense lawyers will be joining other defense lawyers across Texas and the United States as they recite the Declaration of Independence.

In honor of the nation’s freedom, lawyers across the state pause for a few moments of the designated day to read the Declaration in front of Texas county courthouses, and anywhere globally that a Texas attorney is.

“Since 2010, Texas criminal defense lawyers have gathered on courthouse steps across the state early each July to publicly read the Declaration of Independence,” the Texas Criminal Defense Lawyers Association’s website, www.tcdla.com, states. “The tradition—unlike any other in the nation — is supported by members of the Texas Criminal Defense Lawyers Association.”

The event has been carried on locally, in Marshall, since 2012.

-The Marshall News-Messenger

Miles: 250

Courthouses: 5

Speeding tickets: 1

Happy Birthday, America!

#tcdlastrong

-Michelle Ochoa, Beeville

After I participated in the wonderful, colorful,  inspirational 11th annual Lubbock Criminal defense Lawyers Declaration reading the morning of July 2, I changed into my snazzy US flag shirt in honor of my great friend, the late David Hazlewood, who never missed an LCDLA Declaration reading and always wore is lag shirt. Then  it the road for the Texas  Hill  country, companionless, in my beat-up Chevy Tahoe. Along the way, I read the Declaration  of Independence in Post, Sweetwater, Coleman, Brady, and Llano.

Unfortunately, I forgot my own advice and did not forewarn the citizenry to witness my oratory until I was five miles outside of Post. I phoned my buddy Ted Weems, the Garza County Attorney, but he was out. His assistant promised to come downstairs with the County Judge, his secretary, and maybe others to hear my presentation.

I guess the assistant was like me—forgetful—and no one from inside the courthouse appeared. A random young lady happened to wander up the courthouse steps, and she enthusiastically took my photo,  but she did not stick around to hear my rendition of the Declaration.

In Sweetwater, another young lady—wearing a US flag scarf—firmly refused to photograph me and hurried away as if I were a leper. So, I took my first snapshot self-portrait—known as a “selfie”—with my trusty cell phone camera.

The friendly Justice of the Peace court coordinator was my only audience in Coleman, and she graciously agreed to take my picture.

The courthouse in Brady was closed. With no assemblage, I delivered the most eloquent recitation of the Declaration heard anywhere ever, and there is no evidence to the contrary. Having mastered the art of the selfie, I snapped away, shuddering at my semblance.

When I arrived at the beautiful Llano County Courthouse, I was confronted with driving rain, so I ducked into the quaint gazebo on the courthouse square and read the Great Document. I did the selfie thing again: I hope it was my last.

What a hoot! Six counties, 304 miles, and three selfies. God Bless America!

-Chuck Lanehart, Lubbock

Over in Marathon, there was a Dog and Pony Show parade Saturday morning with  Brewster County Sheriff Ronnie Dodson leading participants through downtown. There was also a chili cook-off, dancing under the stars, and fireworks.

Marfa was mostly quiet over the weekend but famed criminal defense lawyer Dick DeGuerin continued his tradition of reading the Declaration of Independence aloud to a gathered crowd in front of the Presidio County Courthouse.

-Big Bend Sentinel

Judy and I  have read the Declaration in ten countries, including Russia twice on our travels as United Methodist missionaries. Here we are in Prague, only a few feet from a Jewish internment camp from Hitler’s death squads. It gave us a great sense of pride to be free and standing over so many who were gassed and horribly mistreated. So many people from foreign countries came up to us and simply said, “Yah! Yah!” Meaning yes to the end of tyranny and injustice!

-Ken Mingledorff, Houston

Travis County attorneys and TCDLA staff gathered outside of the Blackwell-Thurman Criminal Courthouse in Austin for our annual Declaration of independence reading. While this year’s reading didn’t feature our usual donut and coffee reception, we were pleased to keep the tradition alive, even during a pandemic. In the rare in-person gathering, the Austin Criminal Defense Lawyers Association members were pleased to see their colleagues and participate in this meaningful reminder of our shared passion for defending our community.

 – Bradley Hargis, Austin

Revolving Door: Treatment vs Incarceration

For far too many years our country has been suffering at the hands of our own policies. The laws that govern our actions regarding addiction and individuals battling a substance use disorder in our legal system are outdated and counterproductive. Now is the time for a change. We have experienced dramatic gains in our abilities to treat addiction. Research has proven that (a) incarceration has not produced our desired outcomes, and (b) treatment can make a positive change. Addiction as a brain disease has been scientifically proven, therefore we must not put off the inevitable any longer. It is a disease that is both progressive and ultimately fatal. Our government spends billions of dollars annually primarily focused on drug interdiction to combat a problem that, instead, should be fought at the base level of demand which is the individual’s need for a substance.

In choosing to treat the disease of addiction instead of demanding incarceration, we would greatly counter the negative impact that addiction places on our families, communities, and society. The bottom line is we need to do something different than sticking to the status quo, which is complaining and blaming when outcomes do not change. Appropriate treatment is an option that is the catalyst for many in recreating their lives and helping them become accountable for the actions that resulted in their involvement in the legal system in the first place. Research has shown that court-ordered treatment has been used effectively, especially with drug monitoring and close surveillance within a clinical environment. One cannot deny that placing clients in the appropriate level of treatment has made a positive impact on many people. However, we, as a nation, continue to apply outdated and unsuccessful methods while at the same time maintaining our claims that we take a special interest in offering the best care/outcomes for those who suffer.

Considering the foregoing, how can we best work with and offer assistance to the clients that we serve who often find themselves drowning in the consequences and grips of addiction? Is it not time for our judicial system to partner in the responsibility of treating a disease with medical and addiction treatment professionals? As a treatment professional, I do see some similarities between the work that I do and that of an individual’s attorney. In my experience of working with attorneys, I believe that we both have an ethical duty to advocate for both the individual, as well as, the opportunity to receive services specifically designed to address the addiction that so often is the main contributing factor behind their legal issues. The outward symptoms of this disease are legion and like no other. They can be neighbor’s jewelry being stolen, children being removed from the home by child protective services, or local businesses being burglarized.

Attorneys are positioned in a unique and much-needed way to help their clients that are dealing with substance use. There is no doubt that people dealing with legal issues put a lot of faith and trust into what their attorneys have to say. In many instances, families and friends have spent a lot of time and energy trying to get their loved one to see the reality and seriousness of their substance use and the resulting consequences. Honestly, for many of us in recovery, family members are the hardest to help. We know that addiction impacts the family unit as a whole and the whole unit suffers. Attorneys and others on the outside of the consequences and emotional attachments are better equipped to view the realities and deliver hard truths. I know several people in recovery today that due to the actions of their attorneys, were afforded the opportunity to receive appropriate services versus another stay in a county jail or prison.

Because attorneys are uniquely positioned and may often provide an angle of leverage that no other can, it allows them to be an integral part of addressing the actual problem of addiction, instead of the symptoms only. This is where the real change happens! Some helpful actions for the attorney to take when creating this change are as follows:

  • Clinical Assessments – Because each client has their own set of circumstances and will be at different stages in their addiction, clinical assessments will provide a sound starting point for creating their individualized treatment plan. These clinical assessments can be performed by local therapists, social workers, government agencies, or treatment professionals.
  • SUD (Substance Use Disorder) Focused Mitigation Packets – Creating an outline of information to be collected on each client, including but not limited to, (a) the bio/psycho/social history of the accused to identify past traumas and mental health issues; highlighting any verbal, physical or sexual abuse, (b) a genealogical report to notate family history of addiction, (c) interviewing family members and peers regarding how client’s SUD has progressed, (d) identify appropriate SUD and mental health experts to testify on the client’s behalf, and (e) documentation of past treatment history and both judicial and incarceration records. This will assist in creating the personal story of the accused.
  • Individualized Treatment Plans – Building working relationships with professionals from all levels of care is paramount. Depending on the clinical assessment outcome, the client may simply need a contact from the local recovery community and a list of twelve-step meetings in the area. However, others may need to work with individual counselors or therapists specializing in addiction, trauma, mental health, etc., or be admitted to a facility for detox, residential, and an intensive outpatient program in conjunction with sober living options, sober companions, or life coaches.
  • Advocate for the local specialty courts as an option.
  • Client’s Family Dynamics – Due to the ripple effect of addiction, it is also known as a family disease. Some family members may struggle with their own addictions, such as co-dependency. The family member who is the greatest enabler of the client is also the one that could destroy their case due to their inability to make tough decisions where the client is concerned.

There is no question as to which direction is the most ethical and beneficial for each and every American. It would be a massive undertaking to find an individual that has not been impacted in some way personally by addiction. We must continually ask ourselves, which policy, incarceration or treatment, would we prefer if it was our loved one? Addiction does not discriminate; we are all eligible in some respect. Hope is generated today in the fact that addiction is absolutely treatable, and a life of recovery is possible. When appropriate representation is teamed with appropriate clinical services, lives are transformed.

International Overdose Awareness Day…
is the world’s largest annual campaign to end overdose,
remember without stigma those who have died,
and acknowledge the grief of the family and friends left behind.

Time to Remember. Time to Act.
August 31st.

Juveniles & Forensics: When the Wait is Worth It

Juvenile criminal court works at warp speed utilizing days and weeks instead of months and years. This is especially true with serious cases that, in the adult system, may take a year or two from the date of offense to trial. In juvenile courts, the length of time between arrest and adjudication, even in the most serious of cases, can be less than 4 months. This shortened time makes sense when looking at the courts as a rehabilitative system that provides services to a child as quickly as possible; as well as the limited jurisdiction, until age 19, that the Juvenile Court has. However, this short timetable is a major obstacle in determining the path of a case and properly preparing a defense if the case will be contested. The problematic nature of the abbreviated pending case life is especially egregious when forensic evidence is involved.

Forensic crime laboratories tend to work on 4-9 month backlogs as a matter of course. Some forensic disciplines involving highly specialized analysis, like complex DNA, can take upwards of 18 months to process. Even simple controlled substance and dangerous drug analysis can be several months from lab submission to the final report. A juvenile case with a resolution of six to nine months of total supervision and no collateral consequences could be completed before any laboratory analysis reaches the court. With these two disparate timelines, it becomes even more imperative that the attorney be able to determine a reasonable timeline for the evidence to be available, understand the expected outcomes of forensic analysis, and then decide whether the forensic examination delay is to the client’s benefit.

Forensic Analysis Timeline

Forensic analysis all begins the same way: with the submission of possible evidence to experts for their analysis. For some items, the lab receives the evidence within hours of the alleged offense by a crime scene technician who collects the evidence and submits it to a laboratory. For controlled substances, this may be a Police Department evidence technician mailing or dropping off evidence on a weekly or even monthly basis. For technology and data, this introduction of evidence occurs after a search warrant or subpoena is signed and the data is provided to the technical expert. The first consideration for an attorney regarding the expected timeline is the discovery that has been provided by the State. This can be enhanced through further advanced discovery requested through your discovery motion practice. This advanced discovery should include all documents relating to the cause at issue, including the laboratory submission sheets, the chain of custody, any correspondence with laboratory or technical experts, and photographs of the evidence itself. This discovery will show the exact date and time that the evidence entered the forensic analysis channels.

The second step is to use the historical knowledge of the specific laboratory or expert who has accepted the evidence. Every lab will have some differences in its backlog and evidence handling, but most labs follow the same general analytical procedures. The time needed to conduct analysis is inconsistent with the laboratory’s actual case output time. In the best-case scenario, in which a lab had no backlog and no administrative hurdles or issues, the following are the timelines from evidence submission to final report release (the timeline within parentheses is the current average turnaround time for Texas labs):

  • Controlled Substance: 1 day (3-6 months)
  • Toxicology: 1 day (4-8 months)
  • Latent Prints: 1 day (3-6 months)
  • DNA: 5 days (9-18 months)
  • Digital Media Analysis: 1 day (1-3 months)

These timelines vary greatly from lab to lab and region to region. As an example, Houston Forensic Science Center is currently working on a 10-day controlled substance turn-around time, while the TX DPS Laboratory in Garland is at 9 months (227 days) for the same analysis. In other instances, digital media analysis is sometimes handled by investigators and “experts” from within District Attorney Offices and Police Departments for faster turnaround once the data is received.

The final issue that may alter or extend the timeline is the complexity of the analysis. This information can be gleaned from discussions with the client, as well as the nature of the offense. Clients typically know if an item was passed around and will have a mixture of DNA or if it was wiped clean. Clients typically know if the drug was a standard street drug or if it was a new designer drug that would require additional testing. Clients typically know if they have an Instagram/Snapchat/Facebook profile that contains hundreds of messages, or on the other hand if it has tens of thousands of messages.

Setting Realistic Expectations

The forensic laboratory is limited by the quality of the evidence it receives, the protocols and instrumentation available, and agreements with local prosecuting agencies. Lab analysts are bound by scientific principles while working in a high throughput environment in which getting the best result is secondary to getting the most reports sent out and evidence submissions closed. High throughput forensic laboratories are more similar to the McDonald’s business model of maximizing the number of customers with adequate quality than they are to a fine dining establishment in which there is time and money available to focus on the absolute best quality, using the most cutting-edge techniques, for a small number of customers. This analogy is especially evident with DNA analysis. When a box of items comes in for DNA analysis, the first step is not to sample all the items to ensure that all the possible DNA contributors are identified. Rather, the laboratory looks at the agreement it has with the submitting agency to determine if the nature of the offense even qualifies that item for analysis. If it does qualify, then a single item, maybe two or three, is selected for initial screening for biological material. This screening can be as simple as visually analyzing the item for hairs, stains, and other possible biological material. Many, if not most, of items collected are never scientifically analyzed or even inspected; instead, they are merely inventoried. If the initial screening results in biological material that may be relevant to the case, then those screening samples proceed for actual scientific analysis using instruments. When the standard protocols and analysis result in a weak or incomplete DNA profile, then a secondary analysis may be done on a small subset of cases to better identify those DNA profiles present. However, most cases end laboratory analysis at this point with less than specific results. Although there are significantly more sensitive and accurate instrumentation and protocols used around the country in DNA analysis, those practices are rarely, if ever, used in a forensic DNA laboratory. This is because the lab does not focus on getting the single most accurate result on one specific case since it may hamper the throughput, increase the cost, and cause a longer turnaround time on hundreds of other cases. This is the exact reason why only a fraction of the collected evidence will be screened, only a fraction of that screened evidence will be analyzed, and only a fraction of that analyzed evidence results in complete DNA profiles.

Understanding clearly what the laboratory will find or not find is paramount in deciding if it is prudent to wait for the forensic analysis report. Reaching out to an expert in the forensic field of the case is a great way to set this realistic expectation. If there is a firearm found in the grass a month after an alleged incident being sent in for fingerprints, that will probably not lead to harmful evidence against the client. If that same firearm was recovered immediately after being pulled from the client’s waistband and thrown to the ground and was submitted for DNA analysis, then the likelihood of additional harmful evidence against the client being in a forensic report is much higher. A few rules of thumb to start the calculation are:

  • The longer someone holds and touches something, the more likely he/she will be transferring DNA to the item
  • The more people that touch an item, the lower the likelihood that the client’s DNA will be singled out
  • Latent prints are much more likely to be probative if found on a smooth, clean, dry surface
  • Toxicology tends to be one of the most accurate overall analyses
  • Common Controlled Substances are very accurately identified; dilutions/mixtures do not matter
  • Digital media (i.e. Cloud, Snapchat, Instagram, phone dumps) have vast amounts of information that can create very specific timelines of communication, location, and identity

Using these rules of thumb, an attorney can have productive conversations with the client to determine whether the lab report will benefit in negotiation or trial preparation; or conversely, if the case would result in a more beneficial ending should the case be adjudicated before the lab report being issued. The client can provide that worst-case scenario regarding the incident with directed questioning that allows the attorney to understand the type and quality of forensic evidence left behind. Begin by asking questions like: where did you place your hand? What did your finger touch? Where did you dispose of the soda can? Did you ejaculate, and if so, where? Where did specific items come from? Who else may have contacted said items?

Regarding digital media, many times the attorney can complete their own analysis of the evidence at issue by reviewing the client’s cloud and social media accounts with his/her consent. A clear understanding of whether there are or are not harmful posts and communications can dictate the path of the case, even before the subpoena returns are done.

The final issue when setting expectations is staying relevant on the legal factors affecting forensic science. This was seen in 2015 when the FBI notified laboratories that their population statistics were in error for the previous 15 years, and most laboratories either slowed or stopped DNA analysis for a while. More recently, the passage of Texas House Bill 1325 legalizing hemp has led to almost no forensic laboratory in the State able to differentiate legal hemp from illegal marijuana.

Assessing the Client’s Interest in the Forensic Delay

Ultimately, the delay in forensic analysis can be positive when dealing with the Juvenile Court’s short timetable. If the attorney has looked at the reasonable timeline and set realistic expectations for the forensic analysis outcomes, they can decide if the results will be beneficial or harmful to the case. If they will be beneficial, then it is an easy calculus: does the time waiting for those results outweigh the delayed result of the case? In serious cases, this answer is typically a clear yes; this is because a lower charge, less incarceration/supervision, or a sealable criminal record are worth a few months extra on pretrial conditions of release. However, in less serious cases, that wait for forensic analysis, even analysis in the client’s favor, may prolong the juvenile’s time in the court system given the multitude of deferred prosecutions and non-plea options available. With these cases, the threat of a harmful lab report for the State may be enough to negotiate a slightly better result.

The more complicated issues emerge when the forensic analysis is expected to result in a harmful final report for the client. In these cases, there is a decision to be made: to move fast or move slow. To resolve quickly, the attorney can utilize the delay in forensic analysis and push the court to an exclusion of evidence if it is completed by the time of the contest. Many juvenile courts would prefer to hold contested hearings as quickly as possible, even without all the evidence available. If the State is not in agreement to exclude the evidence, then there is the option of stipulations and agreements to what is known or expected to be known. These could range from simple pretrial agreements that no party will mention that forensic evidence was even collected (removing any issue of positive or negative inference of what that delayed analysis would have shown), to stipulations that items were collected but no analysis was completed on them and no inferences to be made. An additional option for moving fast is to utilize the months-long delay in the forensic analysis as a bargaining chip if the case will be resolved outside of contest. Many juvenile prosecutors are more willing to negotiate when the alternative is a months-long delay and drawn-out technical proceedings.

If the plan is to move slowly, then there needs to be an intent to fully and completely litigate the scientific issues that a harmful forensic laboratory report can bring forward. If the intention is to wait for the completed analysis, the attorney must begin the discovery process of the full laboratory case file, a background of all analysts and technicians, as well as build an understanding of the scientific principles at hand. Having an expert review the analysis places additional pressure on the Prosecutor to also learn the science, protocols, and laboratory issues at hand. If the analysis includes anything but the most routine established analysis, then there is the possibility to push for evidentiary hearings and Daubert hearings. Depending on the case and the age of the client, this may be a positive resolution for the case if the clock runs out, leaving little to no jurisdiction over the client regardless of the case outcome. Finally, it is important to remember that if the forensic analysis makes it to contest, the client still retains the clear right to confront the analyst who did this specific analysis. (Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009); Bullcoming v. New Mexico, 564 U.S. 647 (2011)).  These confrontation clause issues are especially important for those attorneys practicing in rural areas that may require the State to fly in experts from Austin, Houston, or Dallas, depending on where the analysis was completed. Ultimately, a choice to move slowly on a case with delayed forensic analysis could add months or even a year to the path of the case, but the results can be substantial, even with an unfavorable lab report.

Jurors may see forensic science as the gold standard of evidence, but the extensive delay in completing that forensic analysis can be utilized for your juvenile client’s benefit regularly. It is vital for an attorney to know the expected timeline, realistic laboratory outcomes, and then maximize the options even though months and years of scientific delay do not fit the weeks and months of Juvenile Court focus on the client.

Memories of TCDLA’s First President

March 10th, 2020 -This is a Veteran’s Day story. When I was a young guy just out of law school, I went to work as an assistant district attorney for Les Proctor here in Travis County, Texas.

One of the first cases I tried before a jury along with John Allen, first assistant, who became ill during the trial and had to be put to bed, resulted in a loss. Proctor was furious and called me into his office. He asked for an explanation, and I had none. He stated to me that the reason the case was lost was because, “You look funny.”

I had been shot up in Korea, and my facial countenance was not the best in the West.

“I want you to wear one of your medals as an explanation,” he said.

“No, sir” said I, ready to resign.

Bob Smith, chief trial attorney, joined in: “Next case we’ll try it together and I’ll wear one of mine.”

Proctor ordered it, and after a lot of discussion, I agreed. So, Bob and I wearing a medal button in our suit lapels, tried an enhanced theft case before a jury, and we promptly lost. Proctor, being a veteran Marine, Smith being veteran Air Force, and I were then in agreement that medals were not the answer and I went on looking funny… probably should have become a personal injury lawyer.

 

March 19th, 2020 -Another story about the sleepy town-city Austin, Texas, in the late 1950s. Mostly university, government, and stores along Congress Ave. and East 6th St. But with three whore houses nestled in the South Congress area – one of them run by herself, the great Mrs. Hattie Valdez. The population of Austin as time moved forward increased as did its moral and religious awareness and pressure was brought through various grand juries to do justice and padlock them. Proctor, the DA, assigned this to me, and I promptly did justice through injunctive action, closing them down. During this operation, I learned that Hattie operated several houses throughout the state and treated her girls who rode the circuit as her daughters. When I later became an assistant attorney general, public pressure, then at its zenith, demanded the attorney general take action and close down the whore houses throughout the state. This really fell within the jurisdiction of the various district and county Attorneys, but for some reason most of them were reluctant to do so. So, armed with the Texas Rangers in the various venues, I charged. Reenter Hattie Valdez. On the day I was to appear in district court in one of the east central counties, to padlock one of her houses, I received a phone call from Hattie asking if she could bum a ride with me to the county since she was to appear in court. She said that we would only have to make one stop to pick up the linens in the house to be padlocked, and that is another story…

 

March 20th, 2020 -The Criminal Bar of Austin Travis County in the middle ‘50s was relatively small – Paul Holt, Perry Jones, Roy Martin, Bill Yelderman, Vic Rogers, John Brady, Wright Stubbs, Arthur Mitchel, Jack Darrouzette, and a few others. The civil lawyers, with rare exception, seldom ventured into the criminal courts. There were only three district courts: 53rd, 98th, and 126th. Judge Jack Roberts, a prior DA, presided over the 126th. Charles Betts the 98th and J. Harris Gardner the 53rd. The  defense lawyer seldom won a jury case. The great Warren Court decisions Miranda, Escobedo, Mapp, Malloy v. Hogan, Murphy v. Waterfront, and Massiah had yet to be decided. The poor defense lawyer went into battle blind, no discovery, not entitled to see his client’s confession or rap sheet. Such was the case when Roy Martin, one of the better lawyers in the system, appeared before Judge Roberts and a jury defending some poor devil charged with the inglorious offense of theft of edible meat (a chicken) carrying a possible punishment of two years to life if convicted.

Now, Roy was not known for his quiet demeanor nor his acceptance of what he considered to be an out-and-out deception by others. When he talked to you in what he considered a normal voice, he could be heard for at least 200 feet around him. Thus was the case when a police officer was testifying for the state. Roy’s client had insisted and again told Roy that he had no prior police arrest record except for minor traffic cases. A defendant’s prior arrest record, unless he took the stand and testified or put his character in issue, was not admissible before the jury. Roy, when it was time for cross examination, said “Now, Officer, you know my client has no criminal record. You have the police report on that. Read it if you will.”

The officer looked astounded, and putting on his glasses began reading, “Theft, theft, burglary, theft, burglary.”

Roy turned to his client and said in what he assumed was a whisper, but could be heard in the next courtroom, “You son of a bitch.”

 

March 24th, 2020 -Just before the 1900s, there were more Sheltons in Travis and Williamson Counties than most large families. Born to that clan were Polk, Emmett, and Earl Shelton who, according to Emmet, became lawyers for their own protection. Practicing law in the 1950’s, Polk was known for his success in the criminal and domestic Courts, Emmet was a leader in Texas politics, and Earl was the scholar. In 1956, the district attorney’s office along with the grand jury room, the jury dormitory, and the court library were on the fifth floor of the Travis County Courthouse. The courthouse, built in the 1930’s, was crowded, and my office (cubicle) was open and abutted the library where Earl kind of lived, researching the law and regaling me with the most interesting stories of the practice of law by the Shelton family in early Texas. Being a Yankee, and new to Texas – having been here for only the last seven years – I could not get enough of his colorful and educational stories. I remember him saying, “Back in the old days , when the Shelton’s were so numerous you couldn’t count them and some you weren’t even sure you were related to, one was falsely accused and convicted in Williamson County of some type of offense despite the efforts of a distant Shelton lawyer. On the day of the hanging, about 50 well-armed Shelton men arrived on horseback and presented themselves before the gallows outside the Williamson County Courthouse. The hanging was called off, the defendant was freed, and justice was done. I told Earl he should write a book, but he never did. Emmet, however, presented me with about 10 tapes recording much of his experiences in Texas politics, particularly those involving the state and county conventions during the Shivers and Daniel years, but that is another Texas lawyer story…

 

March 25th, 2020 -There were not any woman lawyers in the district attorney’s office until very late in the 20th century. In fact, there were very few woman lawyers in Travis County. I recall that in one of our courts in 1960, a female lawyer appeared at docket call wearing long pants and was summarily ordered by the judge to leave the court until she properly dressed. However, this did not mean that women did not have influence or make substantial contributions to the running of the Travis County District Attorney’s Office. In 1956, there were four male Assistant DAs and one female secretary. All of the lawyers worked weekends and late hours. Proctor, the DA, was a bachelor, the rest of us had families and it was hard to be absent husbands and parents. This was particularly true on change-of-venue cases since we had jurisdiction to prosecute state officers and were called upon to try cases in counties far away from Austin. Finally, in 1958, we went from four assistants to six and four female secretaries.

I say secretaries but the first to be hired was an Austin debutant member of the Junior League, beautiful and single and very proper. She had much influence on the selection of the other three ladies Proctor hired. All debutants, all Junior League, all UT graduates with varying degrees from art to history, all beautiful and proper and, as it became evident, all dedicated to the success of the Office of District Attorney. They were in effect better at running the office than we were. But this was not to last. One of them became a successful lawyer, married an astrophysicist, and traveled all over the world where he lectured in various colleges on mathematics. One married a renowned Hollywood actor who excelled in his profession and is still doing so. One married a lawyer who played a great part in changing world affairs in Washington, and one married a young man who with her became an outstanding entrepreneur. All four of them at different times effected the decisional process of the DA’s office, but that’ another lawyer story…

 

March 27th, 2020 – As a Massachusetts Yankee, Korean War transplant, then a University of Texas undergraduate and law school alumnus exposed to quiet sophisticated beautiful Austin in the 1950’s, I soon learned that there was a strong belief in Austin that Sam Houston was right that Texas should not have seceded from the union in the 1860s. Most of the people who lived in Austin in the ‘50s were born there or at least in Texas and had a strong pride in the fact that they were Americans, and most certainly Texans. The strength of that pride was evident in how they lived, governed, and interacted with each other…which brings me to the law of the west or maybe of East Texas as it existed in some counties in the 1960s. Texas was governed by the 1925 Penal Code. This was not to change until the Supreme Court decisions, the amendments to the procedural code in the ‘60s, and the enactment of a completely new penal code in 1974. In 1962, the Billy Sol Estes Case was tried on-change-of venue from Pecos County several hundred miles away to Smith County (Tyler).

The prosecutors were R.B. McGowan, district attorney of Pecos, and Weldon Holcomb, district attorney of Smith County. I was there as chief of law enforcement division assistant attorney general assisting them. John and Hume Cofer of Austin were defending. The case ultimately became the seminal case before the U.S. Supreme Court on television in the courtroom. Estes was charged in a three-count indictment under the 1925 Penal Code with various types of theft involving anhydrous ammonium tanks and financial institutions, a simple and boring prosecution complicated by the intrusion of multiple television cameras, coaxial cables, and shotgun mikes in the Smith County courtroom, which of course brought forth numerous objections by the defense. John Cofer: “Your Honor, we object. These cameras along with their created pre-trial publicity violate the defendant’s rights to a fair trial guaranteed to him by the Sixth and Fourteenth amendments to the Constitution of the United States.”

The judge: “Overruled….We are trying this case under the Texas Constitution, not the United States Constitution.”

Whoops, the Supreme Court of the United State agreed of course with the Cofers. And the law of the west (or east) did not prevail. I should have agreed  with the Cofers, but when asked by the judge what the state’s position was, I said cowardly, “Whatever the court desires” – words of infamy to be regretted throughout my lawyer career but that’ s another Texas lawyer story…

 

March 28th, 2020 – I wish that I could say, like many of my friends, that I had since childhood always wanted to be a lawyer. Fact is, my wish was to be a soldier but my service in the Korean War made this impossible, and when the Army kicked me out, I began searching for another profession. The doctors at Brooke Army Hospital advised me against becoming a doctor, saying that if I lost the remaining eye, I would not be able to even diagnose measles. They suggested the law.

“There’re plenty of blind lawyers.”

At that time, although I was a captain and close to five years in the Army, I was still only a high school graduate. The lawyers I knew about in Worcester were highly respected and well-educated people. While on leave in Worcester, waiting for severance, I told my dad I didn’t think I was smart enough to be a lawyer. He suggested I visit with Judge Meagher, a newly appointed superior court judge and a family friend. The judge was very kind and invited me to sit in and watch one of the great Boston lawyers, Paul Smith, defend three armed-robbery defendants to be tried in his court the following day.

This was in 1951 supposedly in advanced Massachusetts. I arrived, and after sitting at the back of this very large majestic courtroom, saw the three defendants – young 17-year-olds – handcuffed sitting in a cage in the middle of the courtroom. The jury had previously been picked, the opening statements were made, and the district attorney began questioning his first witness, a big police sergeant. sitting in the witness chair. At some point during the cross examination of the officer, things got hot, and before anyone knew what was happening, Mr. Smith picked up a chair and threw it at the witness. The courtroom was cleared, and I found out later that all three defendants were acquitted. This obviously had some effect on my decision to become a lawyer and to be licensed not only in Texas but also in Massachusetts.

Years later, Paul and I became good friends through our association in NACDL and in trying a case in the Commonwealth of Massachusetts but that’s another lawyer story…

March 28th, 2020 – One of the great things about Texas is its politics, particularly as it relates to prosecutorial or judicial office. You don’t need the permission of any political machine or appointive authority, you just announce, pay the filing fee, and run in the primary of one of the two political parties. You of course have to have the legal qualifications to do so. In 1961, Les Proctor decided not to seek re-election as District Attorney of Travis County but instead to run for attorney general. Tom Blackwell, then county attorney, immediately announced for the office of district attorney, leaving the office of county attorney up for grabs.

I had been prosecuting and doing the so-called Lord’s work, away from home, all over the state and now I felt it was time to reap the harvest. But should I leave this cushiony $13,000-a-year job with the attorney general? Two hours before the deadline, I filed in the Democratic Party primary for the office of county attorney. Three others had already filed: CJ Taylor, a highly respected Austin assistant city attorney, Frank Hoagland, a wealthy well-known private lawyer, and Wally Shropshire, ex-FBI now a lawyer in private practice. Two of us ended in a runoff, Wally and myself. It was obvious from the start that I was the underdog, an outsider. All of the liberal coalitions endorsed Wally. I had the newspaper endorsement and some of West Austin. Wally’s slogan was, “We don’t need anybody from Boston telling us who to prosecute in Austin.” He had two other powers going for him: his lovely wife Doris Shropshire, a true hard-working campaigner, who several years later was elected to the office of county clerk; and his beautiful 10-year-old son who appeared on TV with his dad, saying, “I want to help,” and playing his guitar singing, “Oh where have all the flowers gone.” The election was over before it began. “Where have all the votes gone?” For every two votes that I got, Wally got three. So began Frank Maloney, Attorney at Law – $50 a month office on the sixth floor of the Capital National Bank Building in Austin. I did not know it then but losing that election was the best thing that could have happened to me . Here I was, in 1962, the Warren Supreme Court, and a broke lawyer, but that’s another lawyer story…

PS: Proctor, having made his reputation by prosecuting many state officials, was beaten by past speaker of the house Waggoner Carr and Austin lawyer Tom Reaveley. Carr won in the runoff and Reaveley later became a 5th Circuit federal judge. Proctor became a member of the new Austin law firm of Proctor, Maloney, and Fullerton.

March 29th, 2020 – It is embarrassing and hurtful remembering those times when super ego controlled your life.

Such was the time when I appeared as an assistant DA against a classmate who did not practice criminal law and who was appointed to defend a man charged with theft of an auto enhanced in the charge with two prior felony theft convictions, making a life sentence mandatory if convicted. I will not name my classmate as he wants to forget that he ever appeared as a defense lawyer in a criminal case. He was one of the cleverest men I ever knew and became a great Texas philanthropist, leaving millions to a Texas town and to the college in that area many years later. This was his first trial in any court and about my 10th as a prosecutor. During the voir dire of the jury panel, he told them about the defendant’s two prior convictions. This was a surprise, because the jury was not allowed to know about those priors unless the defendant was convicted by them of the primary offense and only then at the punishment phase of the trial. Both the judge and I thought my classmate had made a terrible mistake and the judge cautioned him and asked if he wanted a mistrial. No, he wanted to continue. After selection of the jury during recess, I immediately offered a plea deal of 10 years waiving the enhancement count. I was afraid any conviction would be overturned on Sixth Amendment grounds, inadequate counsel. No deal, he said.

The evidence produced by me clearly and without question showed that the defendant stole the 1960 Ford in a wealthy neighborhood in north Austin and wrapped it around a tree near the courthouse where he was then arrested. Adding insult to injury, he testified that the reason he stole the car was that he was late reporting to his parole officer on the day of his arrest. There was no evidence to support this assertion by the defense, other than the fact that he was late for his appointment by a month. After the case was received by the jury, my classmate and I left the court and went downstairs to Nellies for a cup of coffee. Before she could take our order, the court bailiff appeared and advised that the jury had reached a verdict and the judge was waiting for us. I felt sorry for my classmate and tried to comfort him, telling him he should not take this to heart.

A verdict after 10 minutes. Unheard of. They couldn’t have even selected a foreman in that time. We arrived back in court, the sheriff brought the defendant in, and the jury was seated and asked by the court if they had reached a verdict. “We have, Your Honor,” and handed the verdict form to the bailiff to be delivered to the judge. After the judge had studied the verdict form, he handed it to the bailiff to be redelivered to the foreman. “The defendant will please rise. The foreman will read the verdict.”

The foreman stood and with a commanding voice read: “We the jury find the defendant…NOT GUILTY.”

 

March 30th, 2020 – The general public of Texas and elsewhere, those who consider themselves in the know, feel that the Attorney General of Texas is in control of all of the district attorneys, the prosecutors, and has criminal jurisdiction throughout the state, i.e., a super, super DA. Nothing could be further from the truth. In fact, the AG has no criminal jurisdiction, and absolutely no control of the district attorneys. Why this is a belief is explained by perhaps a comparison with the federal AG office and its control over the United States attorneys. The fact is that the people of Texas have a strong belief in local government, without any interference or control by Austin. Enter Will Wilson, a powerful, courageous, successful prior district attorney of Dallas County in the late ‘40s, a Supreme Court of Texas Justice in the ‘50s, and soon to be Attorney General of Texas in the late ‘50s and early ‘60s. Seeking the office of attorney general, he ran on the platform that he could curb crime and punish criminals severely. He was elected overwhelmingly. The situation involving crime in Texas had changed, effected by the Vietnam War, the use of drugs by young people, the sexual revolution, and other forces, all of which brought about a change of living and views of many Texans and the rest of the country. Wilson headed an AG office of over 100 lawyers but few were trained in the field of criminal law.

His office was organized to advise and represent the various divisions of state government and take on the massive job of condemnation for highway growth. The condemnation lawyers comprised most of his office. Without criminal jurisdiction, all he could do was offer assistance to the various district attorneys around the state but with what? He had a division which he inherited from his predecessor euphemistically called the criminal division. It had one chief, Riley Fletcher, a competent prior district attorney who had in his division seven lawyers, none of whom had ever been in criminal court and all of who had worked as house counsel in various state offices like game and fish, liquor control, comptroller’s office, etc.

Wilson’s first assistant strongly disagreed with his boss on the duties of the attorney general, Leonard Passmore, a remarkable lawyer in all phases of law, politically knowledgeable, savvy about the ways of Texans, a rural Texan along with Byron Fullerton, the number-two man in the AG’s office and another rural Texan, both with uncommon good sense, placated their boss and convinced him to relieve poor overworked Riley Fletcher and assign him elsewhere, thus allowing the office to do its job as the legal representative of state agencies. For a short time at least. But too much was happening and Wilson felt he was needed rightly or wrongly to get involved. Billy Saul Estes, deviational drilling in the East Texas field, gambling and the slot machine, Maceo Brothers in Galveston, removal of the sheriff and prosecution in Jefferson County, investigation of the District Attorney of Bexar County. Enter Frank Maloney from the Travis County District Attorney’s Office, newly appointed assistant attorney general and now super new chief of the law enforcement division. But…that’s another story, or many other stories, about lawyers in Texas…

 

March 30th, 2020 – There existed some highly respected lawyers in Austin in the ‘50s. The law firms were small and excelled in the various fields of civil law. Perhaps the most powerful politically was the Clark Thomas firm. Mr. Ed, as he was referred to, was Lyndon B. Johnson’s mentor and lawyer from the time L.B.J. was elected representative of the 10th Congressional District in the ‘40s all the way through L.B.J.’s presidency. There were other law firms in Austin, excellent ones representing clients from all over the world, but none of the big law firms from Houston. Rumor had it that Mr. Ed just wouldn’t allow it, but that was the civil law bar.

The criminal bar was another animal altogether, barely getting by in some instances, but independent – one or two small firms, but usually in competition with each other for the few clients who needed representation in the courts. Paul Holt and Perry Jones had the majority of cases, half of them non-paying clients. You might say they were, along with the other criminal bar members, the unofficial public defenders long before Gideon v. Wainwright. In the ‘50s, only the poor were prosecuted for the property crimes and the drug offenses, i.e., “only the poor, the minorities, committed crimes.”

The Vietnam War, university student disruptions, youthful drug use, LSD, speed, marihuana, the sexual revolution – all of this changed the practice of criminal law. The criminal lawyer became a desirable commodity, the better ones sought after by disappointed parents of their offspring.

And the court system changed, too. Additional courts were created throughout the state; Travis County received a new criminal district court, relieving the three district courts of their criminal jurisdiction . The judge, his Honor Mace B. Thurman.

As crime increased, the criminal bar exponentially increased. The new firm of Proctor, Maloney, and Fullerton always ready to “inherit the wind,” reaped the harvest primarily because of its “vast experience.” Ah, that is another lawyer story…

 

March 31st, 2020 There were some great district attorneys of Travis County over the years, all different from each other, influenced by the law of the time, the assets they had, the people they served, and the political desires of the community. Some were more effective or less effective than others in different requirements of the office. The ones most familiar to me are people I had dealings with during my practice. Governor Dan Moody, who as district attorney of both Travis and Williamson Counties, convicted and cleared the state of the Ku Klux Klan, is probably the most famous. My dealings with him came long after when I was third chair as assistant DA and he was defending the son of a person who had been of great help to him as a young lawyer. This was a rare thing for him at an advanced time in his career as a prominent civil lawyer. He was impressive even then in the courtroom.

Jack Roberts, later a district judge and then a federal district judge, gave me hell every time he could while I was working for Proctor and then again when I was in private practice before him in federal court. Proctor respected him and valued his advice. There is a story about him that when he was the district attorney prosecuting in the old two-story-high ceiling 126th District Courtroom on the west side of the courthouse, he timed his closing arguments before the jury to be at around three p.m. just as the sun came through the upper window, spotlighting him. He would intone, “Give this jury a sign, oh Lord.” Both he and Paul Holt served together as Army investigators arresting deserters and draft dodgers during the war.

I really know very little about Bob Long. Les Proctor defeated him in a hotly contested race. I do know that Sam Kimberlain, an ex-Marine and fine lawyer, was one of his assistants and thought very highly of him.

I suspect that I probably am prejudiced about Proctor. He hired me right out of law school and taught me how to practice law ethically and correctly. His belief was that each case depended on fact and law and its disposition should be governed by that and not personality. He believed that if a prosecutor followed the law, he could not be correctly criticized. He tolerated no infraction of the law by his people; if that occurred, it brought about immediate dismissal, no excuse. He was highly respected and often honored by the district attorneys around the state. In my 60 years of practice, I know of very few who could approach his excellence as a lawyer.

Robert O Smith. What can I say. I cut my teeth as a defense lawyer against him, defending numerous kids, drug cases, killings, defendants charged with multiple student killings, politicians, Muslims, and numerous others. He was a Proctor clone, honest, efficient, and fair…one of the best.

Tom Blackwell was the last of the full time in-court prosecutors. He was tough and had some pretty good assistant DAs – people like Phill Nelson and others. Ronnie Earl, Emile Limberg, the first woman district attorney, and Margaret Moore each presented Travis County with new and different directions. The office became metropolitan in size. Victims’ rights became a serious factor, and more emphasis on office administration rather than court room ability, but that is another lawyer story…

 

March 31st, 2020 – I graduated from law school in 1956. I was not a great student but passed the bar exam along with two of my friends taking it as a preparation for the future exam, thinking we would not come close to passing since we still had a semester left in law school. Because of this fortunate event, I was able to volunteer time to the Travis County District Attorney’s Office during my senior year, which ultimately led to my being hired at graduation. Which brings me to the question, “What happened to a law school graduate in the ‘50s? How did he start off and try to become successful?”

First, not all graduates of law schools want to become lawyers; my classmate Chauncey Depew Leake was one person who had come to law school from Wall Street and wanted to return there, which he did, making his millions in venture capital. Secondly, those who did become lawyers, if their grades were in the top 10 percent, went to the large law firms and if they put in enough billable hours, made partner and ultimately retired rich like several of my classmates. Some of my classmates went to work for the state and never left. Some, like another classmate Harry McPherson, went to Washington, became a senior adviser to the president, wrote a book, and ultimately became successful in a Washington practice. But the majority of us in 1956 went home and hoped for the best as sole practitioners or with another lawyer in some type of law.

I think it was as it is today. Unfortunately, law school graduates, even after passing the bar, are not really capable to act as lawyers. We learn from casebooks and texts how to think like lawyers and some have some experience, but are we ready? Some states like New Jersey require a one-year internship before you can do lawyering on your own.

It was not until 1977, in Bates v. St Bar of Arizona that the Supreme Court of the United States held the prohibition against advertising by lawyers was unconstitutional. So, in 1950, how did the sole practitioner in criminal law get proficient and attract clients?

There was never any type of law that I wanted to practice except criminal law. I was told that in order to learn, I should become a prosecutor; make my mistakes on the state’s time, not while defending some poor devil. I learned that a legitimate way to advertise was to run in an election for a lawyer’s job. Charlie Tessmer, a successful criminal lawyer in Dallas, told me to lecture on law wherever and whenever I could and to write papers and a book, which I did. The best thing though was teaching at the University of Texas as an adjunct professor from 1962 to l980, the required 4-hour course initially until my practice would not allow me the time and then a seminar every other semester on state or federal criminal law. This was really fortuitous, because in the early ‘60s, the Earl Warren Supreme Court began a new era in the field of constitutional criminal law with its decisions on the Fourth, Fifth, Sixth and Fourteenth Amendments a subject that had to be taught in the law schools and was very important in the defense of criminal cases, particularly in search and seizure and confession cases. Soon, I was overwhelmed with new cases since I was teaching the subject.

An additional method of getting known was difficult and time-consuming – becoming active in state, local, or specialized bar work, interacting with your fellow lawyers. This I did by reluctantly becoming president of the Texas Criminal Defense Lawyers Association in 1971 and happily becoming president of the National Association of Criminal Lawyers in the late ‘80s. Referrals from other lawyers is an important source of clients.

Of course, this was all good, but to put food on the table, you had to try cases and have some type of success in the courtroom. Some of my classmates became great trial lawyers, also some of the great trial lawyers in Texas – Percy Foreman, Warren Burnett, Richard Racehorse Haynes, Emmet Colvin were all sole practitioners. But that is another lawyer story…hopefully about someone else…

PS: No one gets to be successful in this field without a hell of a lot of help from others and sometimes we hog the credit…

 

APRIL 1st, 2020 – It seems like I should be driving my 1993 Jeep out of my garage at Cape Cod today as I did last year. My sailboat Defiance is already back in the water at its mooring ready to sail the seas of Nantucket Sound. At age 92 I can have these happy-day thoughts, hoping that there will be more soon, yet realizing that we are now experiencing a different world presenting severe challenges and heartbreaking events.

There was a minister, Carl Marney, in Austin who had a TV show in the ‘60s called These Things Too Will Soon Pass. He often lectured to the police during their training; some believed him, some were not too happy and more cynical about the future.

Those were happy times in Austin in the ‘50s; before the turmoil of the ‘60s; before the horrors of the Vietnam War, the riots and marches of students, the strong counter measures against them by the police and authorities, the War on Drugs, and young people being caught up in all of this.

The City of Austin, with more pedestrians than automobiles parading along the “drag,” presented kind of an undisturbed laconic atmosphere with a kind and considerate people a happy place to practice law. On the downside, there were underlying race problems, but they had yet to be exposed. The Civil Rights movements, Jack and Bobby Kennedy, Martin Luther King, were to bring us to new horizons in the ‘60s. But in the ‘50s, the Korean War, the Cold War seemed to be problems not of too much concern and like Miss Scarlet , “We’ll think about that tomorrow.”

In the district attorney’s office, outside of a few murders on the east side, some small pot possessions, and a few misdirected politicians, our biggest problems seemed to be out-of-wedlock pregnancies and child support complaints. The out-of-wedlock pregnancy seduction complaints usually were solved by grand jury marriages where the grieving mother of her pregnant daughter complained to the district attorney, who then presented the matter to the grand jury who subpoenaed the miscreant offender, gave him a choice of prosecution for seduction or marriage, and then marched him and the new bride-to-be to the justice of the peace, who waived the license and performed the short version marriage ceremony (free of charge). Being very Catholic about this, because I was the designee to present these cases to the grand jury, the secretaries in the office soon dubbed me “Marrying Sam.” Child Support was a different matter and because the law at that time put jurisdiction enforcement of failure to pay crimes in the various district attorneys’ offices along with maintaining the collection trust fund, it consumed much of the time and efforts of the office. It was a political nightmare, but that’s another lawyer story…

 

APRIL 1st, 2020 – “Yesterday is dead and gone and tomorrow’s out of sight, and it’s sad to be alone. Help me make it through the night.” Kris Kristopher’s wonderful song, “Help Me Make It Through the Night.”

I am not necessarily a gregarious person, and I enjoy being alone…sometimes. This period of hibernation is presenting me with a lot of time to be alone and in order to get through it, I have decided to drag up some of my memories of old lawyer friends or stories about them, with the hope that neither they nor their estates will bring suit against me.

Percy Foreman: One of the best with national stature, impressive. In a crowded room, all 6’4” of him, with his huge head, would command the attention of all. Proctor and I were retained by the wife and the brothers of a cardiovascular surgeon from Boston who was in Austin to become a partner in the practice of surgery with an Austin surgeon. Apparently, the Boston doctor became violent and suffered a nervous breakdown upon arriving in Austin.

I arranged to have him arrested on a sheriff ’s warrant and conveyed to the Austin State Hospital for examination. Under the law at that time, if two psychiatrists certified he was mentally ill and a danger to himself or others, he could be detained for treatment. However, absent consent he was entitled to a jury trial in county court within seven days. On the day of trial, in walked Percy Foreman with two beautiful women, one on each arm. The case went on for three weeks before a jury and County Judge Watson, who was not a lawyer. That produced a strange situation: The lawyers would make evidentiary objections and then decide between themselves how to rule. The jury found that the doctor was mentally ill but not dangerous to himself or others. The case produced national press and a picture of Percy and myself in the New York Times, where Percy is calling me the dumbest lawyer in the country. A week after the trial, Percy called me on the phone asking me to please get the good doctor out of his office where he had been camped since his release. Percy and I tried several cases after that on referrals to and from each other. I was always impressed by his abilities.

Other great lawyers: Richard Racehorse Haynes, Warren Burnett, and many more who I tried cases with, but that’s another lawyer story…

 

APRIL 2ND, 2020 – The poor prosecutors in Texas and elsewhere during the ‘60s and early ‘70s had it tough. Not only did the Supreme Court unload on them with the decisions of Mapp, Miranda, Escobedo, et al, but the Fred Erisman State Bar committee successfully got the legislature to enact a new code of criminal procedure, which encompassed all of the case law of the Supreme Court and more. In the late ‘60s, they had had enough. The Keaton Committee was eagerly preparing a penal code based on the very liberal MPC of the American Law Institute as Florida, Indiana, New York, and California had already enacted, and that coupled with drug use and the rise in crime throughout the state, brought forth a cry of pain and injury by the various district attorneys and their need for help.

The district and county attorney’s association, the sheriff’s association, and other state and local law enforcement groups massed together to form a powerful lobby and as a thunderous herd descended upon an already citizen-plagued legislature swamping them with draconian-type law enforcement legislation. Enter the about-to-be-newly-formed Texas Criminal Defense Lawyers Association, organized in Dallas during the State Bar Association Convention in 1971 through the efforts of Tony Friloux of Houston and Phil Burleson of Dallas, both of whom had a large group of followers at this hastily called organizational meeting at the Dallas Petroleum Club and both of whom felt rightly that he should be president. Since most of the outstanding criminal law lawyers of the state were there, you could say the place was overloaded with egos all with their own ideas and strongly backing either Friloux of Houston or Burleson of Dallas. Soon both came to the realization that neither could be president at that time and they wanted the association to exist, so they agreed that they should elect an interim president now, Friloux becoming president the next year in Houston, and Burleson assuming the presidency the following year at the bar convention in Dallas. But who should we vote in as president now? We all looked about the room in search of the most innocuous person….Ah, Frank Maloney. No, said I. I was already saddled with too much. The trial of a state senator scheduled next month, the trial of the speaker of the house the following month, and other trials piling up. Yes, you will, said Emmet Colvin, Tony Friloux, and Phil Burleson, and my overwhelming ego said yes. Wow, to be a president of something. I went back to Austin, expecting the association dues to start, hired a young Harvard Law graduate Bill Reed to be executive director, rented an office in the Brown Building for him, and I resumed practicing law. The association became a great success with over 300 dues-paying highly selected lawyers in the first year. More about this later and the hard-working lawyer presidents who followed…

PS: The association was not meant to be a good-old-boys’ group as NACDL was at that time, nor was its purpose just to protect against draconian enactments. This was part of it, but its purpose was also education through seminars, helping each other in practice, amicus assistance, and interaction with each other throughout the state. Its first board drafted bylaws and the corporate charter to be filed with the secretary of state. The board membership was composed of a who’s who of predominant lawyers throughout the state: Foreman, Haynes, Colvin, Tessmer, Semaan, Burleson, and Friloux just to name a few.

 

APRIL 2ND, 2020 – There are times when it is complete agony in the trial of a case because of the counsel representing a co-defendant, but there are also times when it is a joy, not only because of their astute handling of the matter at hand, but because of their affability. Several lawyers whose personality provided that joy and who I tried cases with come to mind, but the one who stands out above all the rest is Richard “Racehorse” Haynes. I say this because I was forced to share the same motel suite with him in Abilene for a month defending the speaker of the house and two others on an accusation of conspiracy to accept a bribe, which had been transferred on change-of-venue motion by the state from Austin (the so called “Sharps Town Case”).

The case resulted in convictions, but probation and subsequently dismissals. The case was highly publicized both before during and after the trial. The state’s theory was that Frank Sharp had arranged for loans to the speaker, the lieutenant governor, and the governor from the Sharps Town Bank (loans that were not to be repaid), so that they could buy stock in National Bankers Life Insurance Co. at a low rate, a corporation he owned, and he did this in order to get legislation increasing the amount of the insured capacity of his bank. Neither the governor nor the lieutenant governor were indicted, there was never any legislation introduced in the senate, and the governor never agreed to the purchase of the stock. Had the case been tried in Travis County, and if a fair jury was acquired, it might have resulted in an acquittal, but not in Abilene.

The real issue was whether there was an agreement that the loans were not to be repaid. There was no credible proof offered of this or whether Sharp convinced them that the value of stock would increase as it was doing and that the legislation was sound. (In later years, the legislation sought was enacted and became law.) The case required the lawyers being in close contact. One morning at breakfast, I was disturbed by a suggestion of tactics by counsel of one of the co-defendants and proceeded to criticize him. This prompted Richard to say, “Kindly old professor, you take yourself too seriously.” Words and advice I try but seldom am successful in remembering. Haynes was memorable. He kept me laughing each morning and night and probably sane. After the trial, we spent a couple of days crying over the conviction, sailing on my boat and getting drunk. Richard and I shared the lead in the case. This was a mistake. It should have been Haynes all the way. But I had just won the Senator Bates case before a jury in Corpus Christi and had convinced myself that I was “hot stuff.”

PS: We lawyers could tell numerous laughable stories about “Race.” He was one of the most successful trial lawyers of his day and until his recent death…

 

APRIL 3RD, 2020 – Warren Burnett was the epitome of a defiant tiger, a smart one at that. Emmett Colvin, who knew him well, said the guy was born with a book and always had one in his hand thereafter. He was born and raised in Virginia, moved to Texas where he became rich in Midland-Odessa practicing primarily personal injury law, but – and here is what made him the lawyer to go to – he never turned away from a just cause regardless of the money, the strength of the opposition, or the belief that it just couldn’t be won. The problems of the ‘60s and ‘70s, the underdog student activists, the Vietnam War, the fight against what he believed to be a top-heavy state bar unfair and uninterested in activist endeavors of the bar for improvements in the law for the poor, the under privileged, this is what made him famous. Where there was a rebellious meeting to correct a wrong, Warren would be there. He never took a note during trial but was totally ready for his cross examination of witnesses, which was always brilliant.

My first but not last contact with Warren was at the San Antonio Bar Convention or rather outside of the building where it was being held where Warren, at about age 40, was leading a riotously large group of law students who were demonstrating against the state bar on the commons before the Alamo. It was quite a show reminiscent of the great Texas struggle for independence. In the ‘70s I had tried to get him to be more active in the TCDLA production of the new penal code but he said he was too busy in his practice and would probably dislike it anyway. He was right in some ways because, among other things, the 1974 code did away with the requirement of strict construction of its meaning. The legislature in 1970 had rejected the Keaton Committee Code, thus allowing more participation by the prosecutors in the new version enacted as the 1974 Code. Warren never forgave me for this, blaming that “academic Maloney” for this grievous error.

Tony Friloux referred a case to me that he felt needed multiple counsel, finally convincing Burnett to join the defense, allowing Friloux to withdraw. Trying a case with Warren was an experience, a surprise every minute. Warren and I, together with Gerry Goldstein, a well-known San Antonio attorney who represented one of the conspirators, were together for several weeks in federal court before newly appointed federal Judge William Sessions. The case involved several murders in Mexico, fraud, and a so-called “soldier of fortune,” a government witness. The jury had a strange but attractive woman as one of its members and she kept pulling her skirt above her knees during the time Warren was cross examining the “soldier of fortune.” This and other conduct by her caused the foreman to seek audience with Judge William Sessions who, with our consent, offered to excuse her. Warren objected and so she was retained, fortunately or unfortunately depending on how you looked at it. During their deliberations, EMS appeared: Apparently, she had broken the foreman’s finger. The jury convicted Goldstein’s client but hung on our client 11 to 1 for conviction. We were told it was the attractive woman who was the holdout for acquittal all because she could never convict a client of that “handsome Warren Burnett.” Sessions was furious with us and ordered the case to the Waco division to be retried the following Monday…

PS: I was then fired by the wife of the defendant for reasons left unsaid, but Sessions would not release me until Warren, who was intentionally late, finally appeared, having flown in his own piper cub through a snowstorm, and resumed the defense. The case after a one-day trial resulted in a conviction and a sentence of what amounted to life.

 

APRIL 4TH, 2020 – Several months ago, I attended the funeral of one of the better judges who had served on the Texas Court of Criminal Appeals, our Supreme Court for criminal matters. Although we had never been close colleagues on the court, I respected him not only for his keen mind but for his ability to be correct in his decisions. Many of the people who spoke at his funeral remembered him as a strong law enforcement attorney in the prosecutorial division of the attorney general’s office helping various district attorneys around the state. He had been a district attorney before going to the attorney general’s office and before being elected to the court some 12 years before. I was struck by these comments and, in my feelings for him, wanted to correct the impression that was being, what I thought, erroneously given but I didn’t speak and I am thankful I did not disturb those thoughts of the people who spoke as they did. I think they would have misunderstood how hard it is for a judge, as it was for Judge Charles Campbell, to do what all judges have to do, and some never do, and that is put their disciplines of the past on a shelf in order to become impartial and this is particularly true of discretionary review judges, the judges on all supreme courts of each state, and the Supreme Court of the United States.

Judges wrestle with this problem on most of the review cases that come before them because in those cases they are forced to choose between conflicting case law or no case law at all. Judge Campbell and I were from different recent disciplines, and I valued his views and quite often he convinced me to change my view as I caused him to change his. This made us both better in what we did. An example of my respect for him is evidenced by his authorship of Kelly v. State, a case that changed the whole law on the admissibility or lack thereof of so-called expert testimony. True, it was fostered by two Supreme Court decisions, but there was need to also reinterpret a Texas statute and enlarge on the Supreme Court mandates. Judge Campbell showed by that opinion and other opinions by him what a true judge is. He was impartial and correct. I have other stories about judges, but that’s for the future…

PS: President Nixon coined the phrase, “We want judges who will follow the law, not make it.” If every certiorari Judge, every discretionary review judge followed that mandate, few if any reviews would be granted, and there would be no interpretation of conflict or of non-existent law, every issue needed to be decided would remain undecided or sent back to the executive branch, or legislative (congress) branch, contrary to Marbury v. Maddison or McCullough v. Md., leading to the destruction of the separation of powers doctrine. It would be an interesting question of which would grasp the power first; a tug of war between the legislative and executive branches of government…

 

APRIL 4TH, 2020 – Every Friday night at a local bistro in Dallas County, two famous lawyers would hold court and entertain an enraptured audience of lawyers eager to soak up the wisdom of these two while imbibing in a touch of the bitters. Charlie Tessmer and Emmet Colvin were the two and deserving of this admiration would be an understatement of their abilities and successes both in state and federal Court. (As an aside, in my opinion, if either had defended Jack Ruby, Ruby probably would have been acquitted.) Emmet, from Arkansas, first came in contact with Charlie when Emmet was an assistant district attorney for Henry Wade of Dallas County. Wade set the paradigm for zealous prosecution throughout the State of Texas. His office had promulgated several rules for successful prosecution that were removed because they violated every rule of due process you could think of, particularly in jury selection. Although Emmet and Wade remained friends, he soon realized that heavy prosecution was not his bag and that he should resume defending in federal court. Charlie and Emmet formed a partnership with Charlie handling state defense, and Emmet federal, and were soon accomplishing outstanding professional and ethical work that was recognized by others. After several years though, the partnership dissolved in a friendly way with each continuing their successful practice – in state for Charlie and federal court for Emmett. He felt he was overly successful, until, he said, “The Feds discovered the law of conspiracy.”

In the ‘60s and early ‘70s, Emmet and I and our families developed a strong relationship that would go on until his death in Fairfax, Virginia, where he had retired. He should have received more recognition for helping TCDLA get going because he was instrumental in helping Phil Burleson in its organization in Dallas. It was there that we began our association in helping each other in the trial of several federal cases including the first RICO conspiracy case tried in Texas. That case involved a kickback scheme with purchases of IBM equipment by Southwestern Bell. Along with employees of Bell, several lawyers and two ex-FBI agents were indicted and all tried in one gigantic trial before Sarah Hughes, the famous judge who had sworn in L.B.J. as president directly after Jack Kennedy’s assassination in Dallas. Judge Hughes was not a happy camper and treated the defense lawyers, her clerk, and the jury harshly, at one point holding a juror in contempt for being late. At the time of trial, a young lawyer, David Botsford, was in the employ of Emmet and played an important part in the trial. We represented a lawyer who previously had been a law student of mine who had unwittingly been caught up in the scheme. Suffice it to say our client, primarily due to the efforts of Emmet and David, was acquitted. Several side events: Besides the heavy drinking at the Playboy Club, which kept us sane, there was an event which involved the good Judge Sarah who, along with Emmett (between marriages), was a bachelor. One morning, halfway during the trial, Judge Hughes scheduled an in-chambers conference for the following day at eight a.m. At the conference, she announced with a twinkle in her eye, “Emmet, today is bachelor’s day.” The conference then ended without any other business as does this story but with many to follow about the great Emmet Colvin…

 

APRIL 5TH, 2020 – In 1982, a jury in Washington, D.C., under D.C. law as opposed to federal law, found John Hinckley not guilty by reason of insanity of the attempted assassination of President Ronald Reagan. The District of Columbia law contained a volitional incapacity test as opposed to a pure right and wrong test on the issue. The verdict of the jury created a national outrage resulting in hearings before the United States Senate Judiciary Committee where the jurors in that case were subpoenaed to testify and various so-called experts on the insanity law and me also testified on some 10 bills offered to modify or do away with the insanity defense, I guess because I had tried several insanity defense cases or because I had published as an adjunct professor on the issue, or because NACDL asked me to, but probably because my ego insisted that I do so. I appeared representing NACDL. At any rate, having written out my opening statement, I traveled to Washington at my own expense, I testified before Senators Spector, Heflin, and Thurmond. During my testimony, I was interrupted by a quorum call, asked if I should wait, was told by Senator Heflin, “Sure if you want to flap your lips some more?” The only positive thing that I liked about my testimony was that I gave them hell for subpoenaing the jurors and questioning them on their verdict. What a waste of time.

Jerry Gold of Cleveland, Ohio, a past president of NACDL, and an attorney of national repute, a guy who I traveled with all over Europe in the ‘80s, along with some great lawyers on a people-to-people tour, was the legal hero in a book written about the “Mad Murderess of Shaker Heights” by one William L. Tabac because Jerry successfully defended her on an insanity defense. The case was in 1965 and Ohio law was much like the D.C. law was in 1982, but different from Texas law. All three laws encompassed a test dealing with right or wrong but D.C. and Ohio had the volitional incapacity test also. The book was not published until 2018, but Jerry’s accomplishments were widely known. He rather than I should have been the guy testifying. I considered myself an expert on the insanity defense, being the designated authority in the DA’s office in the ‘50s, and having never lost a case involving that defense. The reason was that all defendants who were considered insane by the state psychiatrist were by agreement found insane. No Texas lawyer including myself knew how to try an insanity defense case at that time.

However, when I became a defense lawyer and having observed others in the ‘60s, I utilized the insanity defense in every case I could, in all capital cases, and even in a federal conspiracy-to-kidnap case and several others. I can say that unfortunately none of my defendants were found insane , but none of them were executed all because the evidence offered on the insanity issue explained what made them tick and as my good friend Racehorse Haynes would teach, “You gotta humanize the defendant.”

 

APRIL 6TH, 2020 – Every middle-size town has at least one or more lawyers who are so universally liked, politically active, and extremely able , that they can occasionally push the envelope in their desire to help their clients, with conduct not particularly important or necessary, or which does not matter anyway…or is just plain laughable. To be this kind of lawyer , and have a successful practice, you’ve got to be loved and respected, but more importantly, you have to be just damn good. Such was Roy Q. Minton of Austin. A fighter pilot during the Korean War, he attended and graduated from the University of Texas Law School in 1961, spent a year with his friend Charlie Burton as an assistant DA in the Travis County District Attorney’s Office, working for Tom Blackwell, and ultimately was recognized as having outstanding abilities by Perry Jones , leading to the formation of the Austin firm of Jones Minton and Burton in 1963.

Anyone who is charged with a crime wants a lawyer who believes in them , a lawyer who will fight for them and win. Perry Jones was that type of lawyer, as were Minton and Burton . Together they had a large and successful practice representing people from all environs charged with every type of crime, creating a very large following. As the years went by, the young lawyers involved in criminal law, anxious to emulate them in the practice, would gather in “the little red brick school house,” as their office at 1000 Guadalupe was called, for a beer or two on Friday evenings after court to gather pearls of wisdom from Roy and Charlie. Since the firm of Proctor Maloney and Fullerton was also engaged in the practice of law at that time , Roy and I became vocal competitors. As Roy would much later say, we had a love-hate relationship. I think, and I am sure Roy would agree , it probably was more hate than love. I knew Roy was a fighter and we sometimes ended up with each other’s clients fostering the belief that the two firms were at each other’s throats. It is also true that each time Roy had a speaking engagement, he would spend an inordinate amount of time saying something about Frank Maloney, but what was not known was that there was some cooperation and one or two referrals between us. There are a lot of stories that are told about Roy; he was the type of lawyer by his actions or imagined actions stories followed and were memorialized. But here is one true story.

He could pick a jury and convince them about as well as any lawyer I ever knew.

PS: Roy is at home today with his lovely wife Barbara, having taken early retirement. His firm with Sam Bassett, Perry, David Minton, along with others are there in the “little red brick schoolhouse” at 1000 Guadalupe still as active and productive as though Roy was still at the helm…

 

APRIL 8TH, 2020 – This is a difficult time for families, a season usually culminating in the happiness of Easter Sunday, and without the fear of this Easter week. I am reminded of how the military celebrates all of the various religious holidays for those who are on post or in combat areas and of how conscientious the military is in protecting and fostering those religious beliefs. This is a soldier story about a 23-year-old lieutenant who graduated West Point in 1948 and also of a Catholic Chaplin, and their friend, another lieutenant…all of whom had been in Japan in the 1st cavalry for a year just preceding the invasion of South Korea, and who were then sent to Korea in June of 1950 to defend at the Nactong River defense line.

Just before that, in April or May at Camp Drake, Japan, the Easter and Passover season was celebrated by each company of the Regiment, 7th cavalry, with Protestant, Catholic, and Jewish services, followed by wonderful feasts in greatly decorated mess halls. The young lieutenant and the Chaplin had, for several months, been carrying on a dialogue about religion, the lieutenant not necessarily being convinced and seriously doubting his own faith. This doubt was to change two months after being in Korea. But the young lieutenant, wanting to believe, was killed while leading his unit during an assault. His body had to be abandoned, leaving him the only casualty there. The Chaplin insisted that the lieutenant’s body be recovered. Three volunteers and the lieutenant’s friend went up into the hills and recovered his body. The Chaplin and friend then took the lieutenant to grave registration a few miles away in Teague. At that time in Teague, at the top of a hill was a beautiful and serene-looking Catholic church whose pastor was Korean and could only converse with the Chaplin in Latin. They agreed and the church bells rang, the people came, and Charles Frederick McGee, class of 1948, on that afternoon, had his Catholic mass.

 

APRIL 9TH, 2020 – When as now I have an inordinate amount of time to sit at my favorite place and think back on the events that channeled the direction of my life in the legal world, my thoughts are of the people who I owe so much to. Lawyers, nonlawyers, assistants, and others. The people I worked with in my profession. In the district attorney’s office, Les Proctor, Bob Smith, Bob Towery, David McAngus, Phil Sanders, Jo Betsy Llewallen, Carol Corley, Ann Swenson. Neilyn Griggs Maloney. In the attorney general’s office, Will Wilson, Lenorad Passmore, Harry Nass, and Byron Fullerton. In private practice, Mary Ann Barton, Gwen Montgomery, Rose Snyder, Ken Houp, David Botsford, Phil Nelson, David Reynolds, John Yaeger, Belinda Wright, Mary Golder Robinson, Sarah Wolk, Tom Black, Doug Hearne, Jack Stayton, Charlie Babb, Neilyn Griggs Maloney, Phil Joseph. At the Court of Criminal Appeals, Judges Sam Clinton, Charles Campbell, Marvin Teague, John Onion, Leon Douglas, Charlie Baird, Morris Overstreet, Truman Roberts, Mike McCormick. Assistants there Carolyn Denero, Belinda Wright, and of course Valarie Strauss. (The research attorneys of all the judges) At the law school, Dean Page Keaton, Professors George Stumberg, Fred Cohen, Corwin Johnson, Millard Rudd, Joe Witherspoon, T.J. Gibson, Bob Dawson, Dean Charlotte. I n professional organizations, TCDLA: Bill Reed, Phil Burleson, Tony Friloux, Jo Keagan, Richard Haynes, Warren Burnett, Emmet Colvin; NACDL: Paul Smith, Morris Schenka, Al Kriger, Mike Bender, Terry McCarthy, Bruce Lyons, Emmett Colvin (help in everything I did). There most certainly were others but these fill my thoughts when I venture in to my legal world activities. There are stories that could fill several books about them and help I received from each one of them…

 

APRIL 12TH, 2020 – I want to say something about judges. First of all, not all judges have the same job. Some are “trial judges” and some are “appellate” or “ Supreme Court Justices (discretionary review)”. Secondly, not all are elected in either partisan or nonpartisan elections; most in this country are appointed by various methods by the governors or in the federal system by the president confirmed by the Senate.

Thirdly, being a judge does not mean that we are fungible. Fourthly, a basic tenant of any judiciary is its independence from political pressures. Is there a problem in Texas? Are we getting the best judges? Are elections the best method of selection? With the exception of municipal judges, Texas elects all of its judges statewide and locally but with obvious problems. This long history has produced the factual ammunition mandating change. Over the years, several state bar committees headed by the various chief justices of this state , composed not only of lawyers but including journalists , business people, academicians, and members of other professions, have recommended a different method of selection.

Bills have been introduced in the legislature but all have been defeated primarily because of special interest groups. A common belief is that it would not be democratic if we didn’t elect our judiciary. But most, including lawyers who should know, do not have the slightest idea who they are voting for either in the primary or the general election. How many of us can name one judge of the nine-member Supreme Court or the nine-member Court of Criminal Appeals or of the 14 Courts of Appeals , or of any of the trial courts, county or district ? Campaigns cost money, TV, communication media, traveling in this huge state; where does it come from?

Mostly from lawyers. The public is shaken as they should be by this. It almost sounds like bribery. In the general election, people vote for judges by their party. History shows us that by this method, we have elected some terrible judges and it takes four or six years to get rid of them if we ever do. What is the solution? At the very least, take us out of partisan elections. If we have to be elected, let us run as independents. We cannot endorse a party platform, we have no business saying we can. The justices of the Supreme Court, the Court of Criminal Appeals, and the intermediate appellate courts should be appointed by the governor from a council recommended number of the best, confirmed by the Senate, who will then run against themselves after six years, i.e., “Should X be retained”

The trial judges, since they would be running in county local elections and therefore screened and known, could run as independents and, if elected, after four years run against themselves, i.e., “Should X be retained?” If no, then a new election is held. The above is the recommended solution of the various research committees and is utilized by many states. It is not a perfect solution, but it is better than what we have.

I ran for an open seat on the nine-member Court of Criminal Appeals in the Democratic primary, runoff, and against a Republican judge from Dallas in the general election in 1989. I was elected to a six-year term. At that time, Texas was a Democrat-oriented state as it had been since the Civil War. This changed so that in 1996 when I ran, against my better judgment and the advice of others including my friend Ann Richards, for re-election and as the only in-office statewide Democrat, I along with most Democrats suffered ignominious defeat by the Republican takeover of the state. (I was endorsed by every newspaper in the state except the Lubbock Avalanche Journal, had a 10-to-1 vote in the bar poll, and even some Republican help. I campaigned all over the state. My Republican opponent never left his office, did not campaign, did nothing except announce as a Republican.)

PS: I have to admit that after my defeat, I was not too unhappy. I sat as a visiting Judge in most of the 14 Courts of Appeals for a couple of years by assignment of the Supreme Court, and then by assignment to the various trial courts in Dallas, Houston, San Antonio, El Paso, Austin, etc., all very enjoyable. During this time, I continued to teach at the law school and was of-counsel to a great Houston-Dallas-Austin law firm that allowed me to do this, retiring in 2012. The Republican Party during those years captured the judiciary. If you wanted to be a judge, you ran against a Democrat. The Republicans elected several people who became embarrassments to them and fought hard to get rid of them with partial success in the next election cycle. Conversely in some Democrat areas where appointments were made of excellent Republican judges , they were defeated in the next election cycle because they were Republicans. I wish that I could add a little humor to this, but there is nothing funny about an inadequate method of selecting the third branch of government.

 

APRIL 12TH, 2020 – Another story about Percy Foreman. When oil controlled rough and tough Houston, and the authorities were trying, in some instances illegally, to put a lid on the crime rate, the best lawyer in the state was Percy Foreman and he ruled the roost.

Recognized throughout the country for his flamboyant behavior and success before juries, he was literally hated by every law enforcement agency within the state including the Texas Rangers. Particularly the Texas Rangers. And he had a mutual feeling for them and did everything he could to defeat their efforts. Houston was a boom town in the ‘50s and ‘60s and geographically was spreading out all over the place. The newly built Glen McCarthy Shamrock Hotel seemed to attract celebrities and Percy quite often was seen having breakfast in its beautiful dining room because at that time he held possession of a suite of rooms there.

The rangers during one of their important statewide investigations suspected Percy of having secreted evidence of one of his clients, who was the subject of their investigation, in his suite of rooms. Three of the rangers went to his suite, pounded on his door, and tried to gain entrance.

“No search warrant, entrance denied!” roared Percy.

This was before Mapp v. Ohio and the rangers were not accustomed to being denied. In fact, the sound of their boots brought fear to the hearts of their suspects. The rangers stood in the doorway perplexed. Percy turned his back to them, dropped his pants, and mooned them, whereupon one of the rangers hit Percy, breaking his nose. The press took pictures of Percy with an exaggerated splint and bandaged nose with captions: “Foreman fights rangers on illegal search.”

A million dollars’ worth of publicity on the fight against tyranny, claimed Percy to his acquaintances…

 

APRIL 14TH, 2020 – Another story about Racehorse Haynes. Although I have no empirical proof, most of the lawyers in the field of criminal law do not like to appear in federal court as opposed to appearing in state court. The reasons vary: The federal system is too hard, too formal, too complex in law and procedure, too nonnegotiable. The overriding reasons: too powerful and not controllable.

The American Bar Association has as one of its stated purposes the job of educating its members in the field of federal practice, no easy job. The ABA, at one of its annual meetings, created a program where four different lawyers out of the presence of each other conducted a live cross-examination of a federal tax agent in a mock federal tax-evasion case , Agent Tadowitz from Baltimore. The judge presiding over the seminar was Judge James Nowlin, Western District of Texas. The U.S. attorney from Chicago representing the government. The four attorneys cross- examining individually: one from Washington, one from San Francisco, Bob Richie from Tennessee, and Albert Krieger from New York and Miami. I was the moderator. Richie and Krieger were outstanding , the other two were adequate but not stars. It was then that I realized I should have invited the greatest cross-examiner of all time to participate: Richard Racehorse Haynes…

Sometime in the ‘70s, Race was defending some poor citizen charged with a federal crime in Judge John Singleton’s federal district court in Houston. He had agreed to defend this person at the request of Jim Kronzer, one of the leading trial lawyers in Houston and a close personal friend of both Judge Singleton and Race. The case ended in a rare conviction for Race and he requested that I handle the appeal, so I got to read the record and from Kronzer got the rest of the story. Each successful cross-examiner has his or her own method of emphasis in cross-examination depending on a myriad of factors.

Race’s method was detail, detail, and detail regardless of the case. He was usually successful in getting what he wanted from the witness, particularly in state court, but this case was before a jury in Judge Singleton’s federal court. During his cross of the principle government witness, an FBI agent, concerning the agent’s entry into the defendant’s home , the agent having testified on direct that there was a key in the door, the following occurred:

Race: You say you had a key.
Agent: Yes.
Race: What did you do with the key?
Agent: I put it into the keyhole in the lock.
Race: Where was keyhole?
Agent: In the door.
Race: Was there a knob on the door?
Agent: Yes.
Race: Was the keyhole above the knob?
Agent: How do I know? I don’t know.
Race: Was the keyhole below the knob?

At which point, without objection from the government–

Judge Singleton: Stop, enough is enough. Move on.
Race: Where was the keyhole?

Judge Singleton excused the jury, held Race in contempt, and stated he would assess the proper punishment at the end of the day. The jury was then brought back and Race resumed his cross examination.

Race: Where was the keyhole?

The judge excused the jury, ordered the Marshall to take Race into custody, and instructed Race that trial would resume the following day and that a night in jail would do him good. The following morning, resuming his cross-examination–

Race: Where was the keyhole?

The trial somehow went to verdict with Race spending three nights in jail and with Kronzer appealing to Judge Singleton to release Race at the end of the trial, which the judge agreed to do, providing Race apologize to the court. Race never did apologize until a chance meeting in front of the Rice Hotel months later. There were other ramifications, but Race’s view was he didn’t like federal court anyway. The fact of the matter is that Race was very, very successful in federal court and always victorious. He and Judge Singleton much later became fast friends and were honored together.

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