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How to Leverage Client Management Software as a Criminal Practitioner

“Law practice management software is too expensive.”

“I’m getting by just fine without it.”

“My practice is too small to justify using law practice management software.”

“I’m just not tech‑savvy.”

“I don’t want to have to learn a new system or software.”

These are just some of the reasons fellow criminal defense practitioners have given me as to why they are not using software to help organize their practices, communicate with their clients, and save their files.

I have spent countless hours talking to all the leading law practice management software companies to know that there is no “perfect” piece of software out there ‑ at least not yet. Despite that, in this article, I hope to lay out the reasons why you should consider using law practice management software.

I define Law Practice Management Software (LPMS) as a “unitary cloud-based platform that allows lawyers to manage their cases, clients, and practices while providing a secure method for communication, billing, and file storage.” Some software providers offer more, but none worthy of your consideration can do or be less than that.

Let’s break down my definition and take a look at how each of these essential components can assist you in your practice.

Cloud-based Programs

First, any software you are considering in 2022 and beyond should be cloud‑based. This means instead of storing files and data locally on your computer, or on an in‑office server, your data is stored in “the cloud.” So, does the cloud mean a server somewhere else? Not quite. When it comes to storage for LPMS data, most software developers are going to host your data securely and redundantly through data storage services provided by companies like Google and Amazon. Your data will be encrypted both at rest and while being transmitted through the cloud. This data is not located on a single server and is instead duplicated over several instances at various locations. This has several advantages. First and foremost, you won’t have a single point of failure or possible data loss. Second, you have greater protection against threats like ransomware. Third, you will have access to your data from anywhere ‑ the office, home, on the road, or even on vacation. Fourth, your data will be quickly accessible regardless of where you or your client is accessing the data from.

Unitary

Rather than cobbling together solutions for various problems, an LMPS ideally offers the platform as the single solution to a number of problems. I highly recommend that as you are looking for an LPMS, you look for one that not only has the features outlined in this article, but also does so natively. In other words, an LPMS that was built from the ground up to offer these features is going to be superior to one that requires multiple log‑ins or has been pieced together by a company who purchased other smaller companies to add features, rather than coding the new features themselves.

Manage Your Cases

Law Practice Management Software allows you to manage everything about a case. An LPMS can track your leads so you know which ones convert to clients and which ones you need to follow up on or close out. Once a lead has been converted to a case, the electronic case file stored in the LPMS becomes the repository for everything about the case. You can build out contacts related to the case ‑ the client, family members, billing contacts, witnesses, the list goes on. It becomes the place to make case notes and updates, which you can access anywhere from any device that has an internet browser and connection.

Communicate with a Client

As criminal practitioners, we have all been there. You’re reviewing a phone dump and you come across attorney‑client communications ‑ emails to and from an attorney or even text messages. More than attorneys in other practice areas, we have clients who may one day end up with devices that are in police custody. The benefit of using an LPMS for communication is the written messages you send are never stored on a local device, such as a cell phone, laptop, or desktop computer. It’s exactly the same as checking your bank account through a browser window. When you log in securely, the information is always there and available for you to access, but the information is unavailable after the browser is closed or the logged‑in session ends.

Communicating through the LMPS also provides the advantage of having every written communication at your fingertips, even years later. Have you ever tried to answer a grievance or claim of ineffective assistance of counsel years after you resolved a case? Imagine how much easier your response would have been if you had been using an LMPS that stores all of your messages, text messages, and letters in a single place. How about the client who asks you the same question over and over ‑ wouldn’t it be easier to point to the specific date and time or thread where that answer can be found? For the client who wants to claim that you failed to tell them something, having a unified location for every secure message, text message, and email means there’s a much greater likelihood you have documentation of everything you told the client.

The ease of communication doesn’t just apply to the client. If you want to share non‑privileged information with a non‑client (like mom who wants to know when the next court setting is), doing so is a breeze through an LPMS.

Streamline Billing

Whether most of your cases are billed on a flat fee or an hourly basis, it helps to have contemporaneous and accurate time records. An LMPS allows you to easily create invoices for flat fee cases, send them for payment, with or with a payment plan, and then track time even though the client (or court) is not being invoiced for the time entries. In this scenario, the time‑keeping function is insurance against any future claims of ineffective assistance, or an allegation that you didn’t earn your flat fee, or a request for a full or partial refund. In cases that are billed by the hour, the advantage of a centralized time‑keeping system that can be converted to an invoice to a client with the click of a button is obvious. Using an LPMS means you can also get paid faster. You can set up payment plans, accept payments online, and send invoices that can be paid online from any device your client is on.

Storing Files

An LPMS also provides a secure location to save evidence. It is a great place to drop all of the discovery from the state. You control what a client has access to, and the default permission setting is that uploads are not shared with clients. This means you can safely upload discovery to store it for yourself. There are a number of advantages to this feature. First, you can access your discovery from anywhere. Second, you are no longer relying on the vagaries of the State’s discovery portal or being tied down by a hard copy of evidence. Third, you will have access to discovery even after the case is over, whether or not the State retains the evidence.

What does the future hold?

I’ve spent countless hours talking to the major software vendors in the LPMS arena. For all the features that are available today, the future landscape is going to be truly remarkable. I know this because I am actively working on bringing the next generation of LMPS to fruition. Here’s what the future holds:

True Automation

Current LPMS offerings allow some basic automation functions such as the ability to create a specific task list in a case based on the case type. True automation is much more robust. Users have the ability to set up a series of actions ‑ sending secure messages, texts, emails, and setting up future events, etc. This ability to automate certain functions means you can send clients updates periodically even when nothing has changed. These touch‑points make a meaningful difference to clients who otherwise feel forgotten as the wheels of justice turn slowly.

Advanced Document Assembly

Any LPMS will give you the ability to create documents by merging known data fields. Advanced LPMS offerings allow for logical document creation, meaning the software can use conditional fields to create documents that require little to no further revision. For example, instead of having five versions of an engagement letter, you could have a single engagement letter template where you can select “hourly” or “flat fee,” the hourly rate or flat fee, “pre‑trial” or “trial” the gender of the addressee, and generate a tailored document with the click of a button. You can also create appropriate pre‑trial motions by making selections related to the nature of the case, the age of the alleged victim, and the types of evidence associated with a case.

KPI Tracking

KPIs stand for “Key Performance Indicators” that measure performance over a period. These KPIs are data points that give insight into how your business and employees are performing. Tracking data and understanding KPIs allow you to have focus and clarity about the state of the firm, measure progress, make decisions objectively, and make adjustments quickly. Leveraging the data kept within the LPMS allows you to create meaningful reports that tell you everything ‑ from how much you have in accounts receivable and the likelihood of collection to the percentage of your cases that are set on the trial docket. As you are looking for an LPMS, you should consider the quality of KPI reports the system is capable of producing. For example, you should easily be able to see the numbers of hours billed by case type and associate. You’ll quickly be able to identify your least and most profitable practice areas and adjust your advertising ac‑ cordingly. You can also track the source of every lead to see what existing advertising efforts are most successful.

Optical Character Recognition of All Uploads

A modern LPMS will automatically recognize the text in all the documents you upload, including the documents in discovery. This creates a powerful tool to search through voluminous discovery. Imagine the ability to search through all your files quickly to locate an officer who just got added to a Brady list.

It can be hard to contemplate adopting new software.

You debate whether it is worth the investment in time and money. The reality is that in 2022, we have to adapt to meet the demands of modern technology and our clients’ expectations. In doing so, we can create efficiencies revolutionizing how we practice law. Most LMPS offerings range from $50 to $150 per month per user. You will make that amount back in a single day through the implementation of such efficiencies. But there’s more to this than just saving money. Consider the peace of mind that comes with a greater work‑life balance ‑ something that is possible when every aspect of your firm is running more efficiently.

Understanding Bitcoin in Criminal Defense Cases

Whether counsel is defending a tax evasion case involving Bitcoin, or a case where Bitcoin was the currency allegedly used to buy or sell illegal goods or services, or Bitcoin was involved in allegations of money laundering, or the client allegedly committed a street robbery involving cash and Bitcoin, there is nothing mysterious about Bitcoin. Although there are a few prosecutors left who still think that Bitcoin is inherently criminal, the real‑world use of Bitcoin readily proves otherwise. Bitcoin can be confusing as a concept and in real world use, but it doesn’t have to be.

What is crypto‑currency, and specifically what is Bitcoin? Why is it worth anything at all, never mind that it was worth upwards of $50,000 per bitcoin within the past couple of months, and is still over $36,000 per bitcoin? In this article, we’ll discuss Bitcoin the network, as well as bitcoin, the crypto‑currency, what bitcoins are, and why they have value. We’ll also discuss the ways that Bitcoin intersects the real world, how that translates into criminal cases, and how criminal defense attorneys will likely encounter bitcoins. Finally, we’ll discuss how recent legislation, and an uptick of enforcement by the IRS over “massive under‑reporting of income” from Bitcoin transactions, among other concerns, will likely mean that lawyers see Bitcoin involved in many more criminal defense cases in the future. This article will not be a technical treatise on the blockchain and public ledger, but rather a nuts‑and‑bolts discussion of crypto‑currency. This article is also not tax advice, nor is it investment advice, and nothing herein should be considered as such.

Bitcoin is crypto‑currency, meaning that it is a digital store of value in which encryption techniques are used to regulate the generation of “coins” as well as to verify the transfer of funds, operating independently of a central bank, and without the involvement of any government in the issuance of the currency. Bitcoin is actually two separate and distinct things. Bitcoin the network is a decentralized peer‑to‑peer (P2P) payment network that doesn’t require a third party, such a bank, to hold or transfer virtual currency. While Bitcoin is a network, bitcoins are individual units of virtual currency that may be “mined,” purchased, traded for goods and services, purchased with or exchanged for fiat currency (U.S. dollars, for example), and also held as an investment. (Bitcoin referring to the network is capitalized; bitcoins, referring to coins held as currency, is not capitalized.)

Bitcoins are stored in a “virtual wallet,” and one user can send bitcoins to another user by using their “public key,” much like anyone who has a bank account number can deposit money into that account. Users can also transfer bitcoins using a program on a smart phone with QR codes, and transfer value with a single click. Users may print their virtual wallets as a backup, or have them stored on their computer, which then makes them vulnerable to theft, as well as seizure by law enforcement.

The U.S. Government has had a little trouble defining Bitcoin for the purposes of regulation; Bitcoin was essentially unregulated from its inception in 2009, until 2013 or so, as regulators began to grapple with it. The Anti‑Money Laundering and Corporate Transparency Act of 2020 defines all crypto‑currencies and digital currencies as “value that substitutes for currency or funds” and thus is considered legal tender by FinCEN. Meanwhile, the SEC says Bitcoin is a security, and the CFTC (Commodities Futures Trading Commission) says Bitcoin is a commodity. The IRS currently defines Bitcoin as property, but is hinting that their definition might soon more closely track that of FinCEN, so that Bitcoin wallet accounts would fall under the IRS’ FBAR (Foreign Bank and Financial Accounts) rules for the purposes of reporting and taxation. This is relevant, because the IRS has identified many Bitcoin owners who are U.S. taxpayers, as we’ll discuss later.

There are other crypto‑currencies in addition to Bitcoin, these include Ethereum, Dogecoin (pronounced doggie coin), Litecoin and hundreds of others; each hopes to be the next Bitcoin, creating their own equivalent of the “Bitcoin Billionaire.” There are also digital currencies that are not crypto‑currencies, such as the SandDollar, a digital currency issued by the government of the Bahamas, which is directly tied to the Bahamian dollar. Many other governments, including Australia, are looking into issuing digital currencies, as it solves several problems created by the production and circulation of cash, especially in rural areas.

So why is Bitcoin worth anything at all, and why in the world would each bitcoin be worth $50,000 or more? The answer is the same as the answer to the question “Why is the U.S. dollar worth anything?” – the answer is: the Network Effect. The U.S. first abandoned the gold standard in 1933, out of efforts to pull the U.S. out of the Great Depression. The price of gold was artificially held at $35 an ounce until 1971, when President Nixon announced that the U.S. would no longer convert gold to dollars at a fixed value. Thus, the U.S. dollar is only worth more than the paper it’s printed on because people deem it to have value – that’s the Network Effect. Bitcoins have value because people deem them to have value. The value of Bitcoin shot up from a few dollars to over $50,000 in a few short years, buoyed recently by huge corporate investments.

We all already use virtual currency every day. The bank doesn’t have a box of cash stored in their vault with your name on it; the bank stores the value of your account in little zeroes and ones in a computer. When you use your credit or debit card, wire transfer funds, or even write a check, that value is exchanged digitally between your bank and the merchant’s bank. The majority of people in the U.S. don’t even carry cash anymore, and with the advent of the COVID‑19 pandemic and concerns over passing around objects that might carry the virus, using cash has become even less popular.

In some ways, though, Bitcoin is like cash – once stolen, it’s gone forever, transactions cannot be reversed or retrieved, and there are no fraud protections. Cash is fairly anonymous in that it is difficult to trace to a particular individual. Cash has been favored by criminal enterprise for all of these reasons, so it makes sense that those individuals with criminal intent would seize on Bitcoin for some of these same reasons.

In other ways Bitcoin is like a credit or debit card. Transactions take place in the virtual world, the exchange may be managed by a 3rd party for a fee, value can be easily transferred around, payments can be made using a phone app or virtual wallet, and cash can be deposited or withdrawn using a Bitcoin ATM.

The volatility of Bitcoin makes it act like a stock, and is one thing that dramatically differentiates it from government‑backed fiat currency, like the U.S. dollar. Like a stock, people purchase Bitcoin for speculation on its future value. In fact, certain companies like MicroStrategy ($MSTR) have invested so heavily in Bitcoin that people are buying that stock as a proxy for directly investing in Bitcoin, thus essentially turning MicroStrategy into a Bitcoin mutual fund. Tesla ($TSLA) has invested heavily as well, recently reporting $100 million dollars, or nearly a quarter of its profits directly attributable to their purchase and sale of Bitcoin. The market capitalization of Bitcoin is over $1 trillion dollars, so it’s not going away anytime soon, regardless of definition or regulation.

Even though Bitcoin shares some attributes with cash, credit cards, and stocks, it is also completely unique, like nothing before it. Bitcoin can be “mined” by individuals or corporations, who essentially do the work of the peer‑to‑peer network by solving cryptography problems in exchange for bitcoins (or fractions of bitcoins). Also unique to Bitcoin is the online ledger, which makes the details of each and every Bitcoin transaction available to anyone, anytime, anywhere. In fact, anyone can watch transactions happening live at https://www.blockchain.com/explorer. Bitcoin can be stored in networked wallets, with Coinbase being the largest wallet provider, or offline in a printed paper wallet (that if lost, is irretrievably gone).

Now that we know what Bitcoin is, and why it has value, where is criminal defense counsel likely to see Bitcoin in criminal defense cases? Bitcoin is involved in crimes from the extremely low‑tech, to the extremely high‑tech, and everywhere in between. Bitcoin robberies are occurring in all major cities, and are spreading to rural areas as well. Those who wish to buy or sell Bitcoins can do so from 3rd parties, but those are treated like money service businesses (MSB’s) for the purposes of regulation, and those 3rd parties now perform due diligence on their customers, similar to opening a bank account. Thus, if someone wants to buy Bitcoin with cash, they can reach out to those individuals who wish to sell Bitcoin, via websites which match buyers and sellers, who set their own exchange rate. The most popular of these services is https://localbitcoins.com/buy-bitcoins-online/us/united-states/cash-deposit/. The problem with carrying large amounts of cash to meet a stranger is, or should be, obvious, and it’s no surprise that sometime those buyers instead become robbery victims, losing their cash, and sometimes their bitcoin, as well.

Bitcoin has also been used to buy and sell illegal drugs, child pornography, murder‑for‑hire, and has been a preferred medium of exchange for alleged criminals via Dark Web websites like the Silk Road. Some of these crimes are identified via software and research of the public ledger, but most are solved due to the intersection between Bitcoin in the virtual world and the physical world. Drugs can be bought via the Dark Web with Bitcoin, but the drugs have to be physically shipped and delivered to customers in the real world. Once law enforcement discovers the FedEx account used for the drug deliveries, all the customer’s and seller’s information become readily accessible to investigators, in one convenient place.

Bitcoin is pseudonymous, which is to say it is almost but not quite anonymous. Bitcoin physically touches the real‑world individual and their identity via email, credit card transactions, shipment of goods, and delivery of services. Very few alleged criminals have the discipline to keep their Bitcoin transactions completely anonymous, and it inevitably can be traced back to them. Even one single usage in the real world irrevocably links the individual to the public blockchain, where all their other transactions become traceable to each other, and to that individual. Federal agencies have technology and consultants who are quite adept at tracing Bitcoin ownership and usage to individuals, as well as having the ability to determine which users are U.S. citizens. This ability be‑ comes important in tax cases involving Bitcoin.

The IRS has served a series of John Doe Summons on the largest wallet holding companies, and has done so for several years in a row. Thus, the IRS now knows the identity and value held by many, if not most, U.S. citizens who have Bitcoin valued at over $20,000. The IRS recently sent “soft” letters to individual taxpayers who were identified in the summons. The letter suggests that the taxpayer might want to restate their taxes for prior years, since they evidently forgot to mention the Bitcoin. Anyone receiving that letter who failed to restate their taxes to include taxable Bitcoin transactions should anticipate hearing from the IRS in the near future, and should plan on seeing that letter as an exhibit at trial.

Software, consultants, and John Doe summonses aside, many Bitcoin cases involve more old‑school investigation than anyone in law enforcement might wish to admit.  The operator of the Silk Road drug website was only successfully prosecuted because while he sat in a public library using the internet, one FBI agent distracted him and another agent literally grabbed his computer off the table and ran away with it, while it was open and turned on. Bitcoin frequently becomes involved in a criminal defense case as an artifact of an investigation into real world crime, rather than being the starting point for an investigation. The Silk Road case is USA v. Ross William Ulbicht aka: Dread Pirate Roberts (Southern District of NY 14‑CR‑68 (KBF) July 9, 2014).

A few lawyers accept Bitcoin for payment of services in a flat‑fee case or for services already rendered; but even fewer will consider accepting Bitcoin into a retainer account. Dealing with bitcoins and IOLTA accounting is problematic, at best. There are also concerns that Bitcoin paid to defense attorneys will be clawed‑back by the government if the Bitcoin is determined to be the proceeds of ill‑gotten gain. As with all payments where claw‑back is a concern, attorneys should consider getting assurance that the prosecutor has no plans to go after fees, or have a forensic accountant evaluate the funds as legitimate source income prior to accepting them.

Bitcoin isn’t difficult to understand or use, as we have seen. However, criminal defense counsel may find it helpful to hire a consulting or testifying expert in Bitcoin cases, to help counsel with the understanding of the case or to assist the defense team in educating the judge and jury about Bitcoin. Bitcoin has a stigma in the minds of some jurors and judges, and an expert may be able to help to dispel that notion. Ultimately, Bitcoin is just another currency, and its involvement in a criminal defense cases is not that much different than any other currency allegedly involved in a crime.

The Case to Repeal § 12.42(f) of the Texas Penal Code

I first became acquainted with §12.42(f) of the Texas Penal Code1 when I reviewed an indictment with a repeat offender paragraph. As I read the repeater paragraph, I could not believe the State could enhance an adult charge by using a juvenile case. I went to the code and saw this provision became effective January 1, 1996. Why should this law be permitted to exist?

Juvenile law is rooted in civil law. The Texas Juvenile Justice Code is found in Title 3 of the Texas Family Code. Despite its civil roots, due process protections have been extended to juveniles by the United States Supreme Court over the years. In Kent, the Supreme Court deter‑ mined that children in juvenile proceedings “should not be denied procedural rights given to adult criminal defendants merely because juvenile proceedings are characterized as civil.” Hidalgo v. State, 983 S.W.2d 746, 750 (Tex. Crim. App. 1999) (quoting Kent v. United States, 383 U.S. 541 (1966)).

Furthermore, in In re Gault, 387 U.S. 1 (1967), the Supreme Court held that the Fourteenth Amendment’s Due Process clause applied to juvenile proceedings “entitling children to notice of charges, defense counsel, the privilege against self‑incrimination, confrontation of and cross examination of witnesses.” Hidalgo at 750–51 (quoting In re Gault at 49); see also In re Gault at 13 (“[N] either the Fourteenth Amendment nor the Bill of Rights is for adults alone.”).

The Supreme Court has also determined that, as opposed to adults, children under eighteen (18) years of age lack maturity, have “an underdeveloped sense of responsibility,” and are “more vulnerable or susceptible to negative influences and outside pressures, including peer pressure.” Roper v. Simmons, 543 U.S. 551, 569 (2005).. In the Roper majority opinion, Justice Kennedy further noted that “|t]hese qualities often result in impetuous and ill‑considered actions and decisions” by a child. Id. (quoting Johnson v. Texas, 509 U.S. 350, 367 (1993)). Moreover, the Court explained that children “have less control, or less experience with control, over their own environment” and their character is not as well formed as that of an adult. Id. Their personality traits are “more transitory, less fixed.” Id. at 570. Based on these differences, the Court found suspect any conclusion that a child falls among the worst offenders because a child’s “irresponsible conduct is [simply] not as morally reprehensible as that of an adult.” ld. at 570; see also Thompson v. Oklahoma, 487 U.S. 815, 835 (1988) (“[T]he Court has already endorsed the proposition that less culpability should attach to a crime committed by a juvenile than to a comparable crime committed by an adult . . . [i]nexperience, less education, and less intelligence make the teenager less able to evaluate the consequences of . . . her conduct while at the same time . . . she is much more apt to be motivated by mere motion or peer pressure than as an adult.”).

Furthermore, because proceedings in juvenile court are quasi-criminal in nature, they are subject to numerous due process restrictions mirroring those at play in an adult criminal trial. In re A.J.S., 442 S.W.3d 562, 565 (Tex. App.- EI Paso 2014, no pet.); see also In re M.A.F., 966 S.W.2d 448, 450 (Tex. 1998); Smith v. Rankin, 661 S.W.2d 152, 153 (Tex. App.- Houston [1st Dist.] 1983). A child “is guaranteed the same constitutional rights as an adult in a criminal proceeding because a juvenile‑delinquency proceeding seeks to deprive [him] of his liberty.” State v. C.J.F., 183 S.W.3d 841, 847 (Tex. App.- Houston [1st Dist.] 2005, pet. denied); see also Matter Of, M.S., 940 S.W.2d 789, 790 (Tex. App.- Austin 1997) (“A juvenile proceeding, which may deprive a child of his liberty for a number of years, is comparable in seriousness to a criminal prosecution [F]or that reason, many of the due process protections applicable to criminal proceedings apply also to juvenile proceedings, such as the right to appeal and the right to assistance of counsel.”); see, e.g., Tex. Fam. Code §§ 51.10, 56.01.

Texas courts have also recognized that children are different from adult criminal defendants and warrant additional protections. See In re Hall, 286 S.W.3d 925, 927 (Tex. 2009) (“The Legislature enacted the Juvenile Justice Code as a separate system for the prosecution, adjudication, sentencing, and detention of juvenile offenders to protect the public and provide for the wholesome moral, mental, and physical development of delinquent children. This separate system often provides enhanced procedural protections to juvenile offenders, who, be‑ cause of youth, ordinarily lack the mental and emotional maturity needed to maintain an adequate defense.”); Henderson v. State, 962 S.W.2d 544, 562 (Tex. Crim. App. 1997) (“[The] state has a legitimate, and in fact compelling, interest in protecting the well‑being of its children… Children are deemed to warrant protection because of their inexperience, lack of social and intellectual development, innocence, and vulnerability.”); Lanes v. State, 767 S.W.2d 789, 791–800 (Tex. Crim. App. 1989) (providing historical discussion of juvenile justice policy and noting “rehabilitation and child protection remain as the pervasive and uniform themes of the Texas juvenile system”); In re S.G.R., 496 S.W.3d 235, 238 (Tex. App.- Houston [1st Dist.] 2016, no pet.) (“Children ordinarily are not subject to criminal proceedings like adults.”); Matter of J.G., 905 S.W.2d 676, 680 (Tex. App.- Texarkana 1995), writ denied, 916 S.W.2d 949 (Tex. 1995) (“[A] juvenile is not similarly situated to an adult    [T]he juvenile justice system is arranged with a special emphasis on the welfare of the child   ”); Matter of E.Q., 839 S.W.2d 144, 145-146 (Tex. App.- Austin 1992, no writ) (“The [S]tate has an interest in providing for the care, protection, and development of its children . . . The civil juvenile justice system was established in part to insulate minors from the harshness of criminal prosecutions, to promote rehabilitation over punishment, and to eliminate the taint of criminal conviction after incarceration by characterizing such actions as delinquent rather than criminal.”); see also Tex. Fam. Code § 51.01 (establishing purposes of Texas’ Juvenile Justice Code, including “provid[ing] treatment, training, and rehabilitation that emphasizes the accountability and responsibility of both the parent and the child for the child’s conduct” and “provid[ing] for the care, the protection, and the wholesome moral, mental, and physical development of children coming within its provisions”). Thus, “[t]he transfer of a [child] from juvenile court to criminal court for prosecution as an adult should be regarded as the exception, not the rule; the operative principle is that, whenever feasible, children and adolescents below a certain age should be protected and rehabilitated rather than subjected to the harshness of the criminal system[.]” Moon v. State, 451 S.W.3d 28, 36 (Tex. Crim. App. 2014) (overruled by Ex parte Thomas, 623 S.W.3d 370 (Tex. Crim. App. 2021), reh’g denied (June 23, 2021)); see also Lanes at 796 (“The Texas juvenile system . . . seeks to avoid the taint of criminality in order to prevent recidivism and promote rehabilitation. The best method of avoiding attachment of a criminal taint is keeping the child completely out of the [criminal] system.”).

If we want to keep children out of the criminal justice system, why do we use a juvenile restorative process at Texas Juvenile Justice Department [TJJD] as an adult punishment factor? As a matter of course, I never agree to send a child to TJJD because of this unspoken collateral consequence. If the legislature truly believes that its juvenile system should not be attached to the criminal system, then § 12.42(f) of the Texas Penal Code should be repealed.

How Incarceration Affects Eligibility for VA Disability Benefits and Using the Information in Sentencing

The Bureau of Justice Statistics reports there are approximately 107,400 Veterans in state or federal prison. Following release, these Veterans are at increased risk of homelessness, suicide and death by drug overdose – that’s why it’s vital to reconnect Veterans to VA (“Veteran’s Affairs”) care and benefits to which they are entitled, post-incarceration.”1

Almost all criminal defense attorneys represent clients that are Veterans, but many are not familiar with the potential impact of criminal convictions on U.S. Department of Veterans Affairs (VA) benefits. In addition, many criminal defense attorneys have not considered how to present the impact of some criminal convictions on a Veteran’s VA benefits to assist the court in deciding on an appropriate sentence. Finally, many criminal defense attorneys have wanted to obtain copies of their client’s military service records or VA records but did not know how to go about getting the records. The purpose of this article is to provide a brief primer on assisting a Veteran client facing these issues.

Many Veterans are receiving some type of benefits from the VA. These benefits can include VA disability compensation for service‑connected conditions, pension for non‑service‑connected conditions, educational benefits, and health care benefits. This article primarily focuses on VA disability compensation and pension for non‑service‑connected conditions, and to a lesser extent on educational benefits.

VA service‑connected disability compensation is a monthly monetary benefit for Veterans with a current medical condition that is “at least as likely as not” linked to their military service.2 It is not “means tested” (the income of the Veteran does not matter). For 2022, it can range from $152 a month for a 10% rating to $3,456 per month for a 100% rating.3 Additional amounts may be paid monthly for spouses, children, disabled children, and for various special monthly compensation issues that may apply to the Veteran.4

Some Veterans may qualify for non‑service‑connected pension, which is a monthly benefit for low‑in‑ come wartime Veterans who are totally and permanently disabled or elderly.5 The term “VA pension” benefits are not retirement benefits, but a needs based program for Veterans with war‑time service who are either totally disabled or over age 65. Non‑service‑connected pension is means‑tested. The rates are based on the difference between the Veteran’s countable income and a rate set by Congress.6

VA disability compensation payments are limited if a Veteran is convicted of a felony and imprisoned for more than 60 days.7 A felony is defined as “any offense punishable by death or imprisonment for a term exceeding one year, unless specifically categorized as a misdemeanor under the law of the prosecuting jurisdiction.”8 The VA General Counsel has opined that a felony conviction resulting in a sentence of “community control with conditions” does not amount to “incarceration.”9 The sixty‑first day is determined as sixty‑one days after guilt is pronounced by a judge or jury and the Veteran is incarcerated in a penal institution because of the determination of guilt.10

The limit on the payment of VA disability compensation benefits to a Veteran that is incarcerated does not actually lower the Veteran’s service‑connected disability rating level. It is only the amount of the monthly disability compensation payment to the Veteran that changes. If a Veteran is convicted of a felony and imprisoned for more than 60 days, and the Veteran is rated 20% or more by the VA they are limited to receiving a 10% disability payment instead of their actual awarded disability compensation rating. Veterans whose disability rating is 10% receive a reduction by one‑half. For example, if a Veteran is receiving a 100% VA disability compensation rating ($3,456 per month) is convicted of a felony and imprisoned for more than 60 days, his VA disability compensation would be limited to 10% ($152 per month) on the 61st day in confinement. For that Veteran, each twelve months of confinement after the 61st day of confinement following a felony conviction would result in a loss of VA disability compensation of $39,648 ($3,456 per month for 100% ‑ $152 for 10% = $3,304 x 12 months = $39,648 per 12 months). If the court is considering an appropriate sentence, the potential loss of VA disability compensation benefits to the Veteran and his family should be factored into the sentencing equation. The Veteran and their family will suffer a significant financial loss if the Veteran is convicted of felony and sentenced to more than 60 days in jail. In our example, the Veteran and his family would have financial loss of VA disability compensation benefits that would be almost $40,000 per year.

After a Veteran is released from prison, disability compensation payments may be reinstated based on the severity of the service‑connected disabilities at the time. Also, VA disability compensation payments are not reduced for Veterans participating in work release programs, residing in halfway house (including residential re‑entry centers), or under community control. These types of alternative sentences should be proposed by the defense attorney and considered by the court to enable the Veteran to serve their sentence but also for the Veteran and their family to continue to receive VA disability compensation.

Veterans should be made aware the if they fail to notify the VA of their incarceration beyond 60 days, not only will the VA eventually stop the payment of VA disability compensation but will commence to recoup the overpayment.11

The rules for VA non‑service‑connected pension are slightly different. Unlike disability compensation, the VA completely halts or stops VA pension payments to incarcerated Veterans.12 VA pension benefits are stopped for any type of conviction (felony or misdemeanor) that results in incarceration.13 Veterans receiving VA pension will have pension payments terminated on the 61st day after imprisonment for any type of conviction.

The VA does have a process where all or part of these VA disability compensation benefits that are not paid to an incarcerated Veteran may be apportioned to a Veteran’s spouse, children, or dependent parents based upon their need.14 Likewise for pension benefits, those benefits may be apportioned to family members.15 VA apportionment is not automatic. Like most VA benefits, the Veteran and their family must apply for the benefit on VA Form 21‑0788.16

Incarceration also impacts the ability to receive some VA educational benefits. Veterans that are incarcerated for convictions that are not felonies can receive their full monthly VA educational benefits for which they would normally be entitled. Veterans that are convicted of a felony, but residing in a hallway house, residential re‑entry center, or participating in work‑release program can also receive the full VA educational benefits for which they would normally be entitled to received. Veterans that are incarcerated for a felony conviction cannot receive the monthly VA educational living subsistence allowance but can be paid by the VA for the costs of tuition, fees, books, and supplies if they are not receiving payment for these items from another Federal, state, or local program.17

When a Veteran is facing sentencing, it is important to make the court aware of the potential benefits that could be lost from a conviction and confinement over 60 days. For these Veterans, a sentencing case may be crafted to present information and evidence to the court on the impact of certain sentences on VA benefits.  In preparing for sentencing, the Defense Attorney should obtain various documents from the Veteran that will be helpful to present to the court. This includes a copy of the Veteran’s discharge paperwork, known as a DD214.18 The Veteran can download a VA Benefit Summary Letter. This is also called a VA award letter which shows the Veteran’s VA disability rating and the amount they are receiving each month from the VA.19 Current VA disability compensation rates can be found online and be used to show the court the difference in the Veteran’s benefit if he was limited to a 10% rating due to confinement beyond 60 days.20 The VA provides a Fact Sheet on incarcerated Veterans that can be used to explain to the court the impact of a conviction and confinement over 60 days.21 In summary, present evidence and educate the court on the financial impact on the Veteran per month or per year based upon the loss of VA disability compensation or pension. A sentence of ten years or more could result in almost half a million dollars in loss VA benefits. If possible, argue for a sentence that is less than 60 days confinement or includes work release to allow the Veteran and their family to continue to receive VA benefits at their regular scheduled rate.

Within the past year, the U.S. Court of Appeals for the Federal Circuit addressed the issue of whether a Veteran being held in a State Hospital was in confinement for purposes of 38 U.S.C § 5313(c), which limits the payment of VA disability compensation to persons that are incarcerated for a conviction of a felony. In Philbrook v. McDonough, _F.3d_, No. 2020‑2233 (October 8, 2021)22, the Veteran was remanded to the custody of the Oregon State Hospital. Initially, the VA, the Board of Veterans Appeals, and the Court of Appeals for Veterans Claims found that the Veteran was “incarcerated” in a “correctional facility” per the statutory language prohibiting an award of VA disability compensation. The Federal Circuit held that the plain language of 38 U.S.C § 5313(c) did not apply to the Veteran’s confinement in a “mental institution”. It held the Veteran was not confined to a “penal institutional or correctional facility.” The court held that a “correctional facility” cannot encompass a hospital that treats civil patients, and a hospital cannot be a correctional facility for some patients and not others.  The Court held that the Veteran was not barred from receiving VA disability compensation.

In representing a Veteran, it is often helpful to obtain various documents about their military service, military service treatment records, VA medical records, and VA claims records. Below are some useful links to obtain these documents.

The Veteran’s Official Military Personnel File can be requested online at https://www.archives.gov/veterans/military‑service‑records or by submitting a Standard Form 180 to the National Personnel Records Center.23

The Veteran’s military service treatment records can be obtained by submitting a DD Form 2870 to the military treatment facility that provided the medical services.24 If the Veteran received Alcohol and Drug Treatment you need to specifically request those records. Each service has a separate form for those specific records. For the Army, it is DA Form 5018‑R.25

The Veteran’s VA medical records can be obtained from each VA Medical Center seen by the Veteran at no cost, usually within a few weeks. If the Veteran was seen by various VA medical centers, a request needs to be submitted to each one. The records can be requested by the Veteran, or the attorney can request with written consent of the Veteran. The Veteran can request his own records by using VA Form 10‑5345a.26 The Veteran’s attorney can request the medical records with the Veteran’s consent using VA Form 10‑5345.27

The Veteran’s complete VA Claims File can be obtained by using VA Form 3288.28 However, be aware that due to shutdowns during COVID‑19, requests for VA Claims Files were backlogged. If the VA Claims File is needed, submit the request as soon as possible.

Finally, when requesting records from the military services and the VA, be aware that they will not recognize a state court subpoena unless it is signed by a Judge. As a general rule, the military services and the VA will not produce employee witnesses or experts unless the subpoena has been processed through the VA Office of General Counsel.29 However, the VA can provide business records affidavit if requested for VA medical records.

In conclusion, by being familiar with the basic rules that impact VA benefits, the Defense Attorney can properly advise their client about the potential impact of a criminal conviction on those benefits. By factoring in the potential impact of a criminal conviction on VA benefits and presenting the information to the court during sentencing, the Defense Attorney can possibly obtain a more favorable sentencing result for the Veteran.

A Tribute to Frank Maloney

On July 5, 2022, Frank Maloney passed at the age of 94. I was so very fortunate to have been able to speak with him on July 4, after he returned from the hospital to his house on Cape Cod. Frank’s two children, Catherine and Ed, had kept me in the loop about his very recent illness and hospital stay, and I will be eternally grateful to them both for doing so and affording me one last chance to tell Frank how I felt about him. Frank’s funeral mass was held on July 15, and I was one of his pallbearers, followed by his burial in the State Law Cemetery in Austin (along with a 21 gun salute by the 1st US Army Airborne). Catherine and Ed invited me to speak to the crowd, which included Presiding Judge Sharon Keller and Judges Keasler, Yeary, and Richardson of the Court of Criminal Appeals. During the TCDLA zoom to honor Frank, Betty Blackwell allowed me to share the essence of my grave‑side comments with those on our TCDLA Zoom. This is what I said (more or less).

I speak today about the finest person I have ever known, bar none.

I met Frank in late 1978/early 1979, when I was but a “baby lawyer” practicing with Emmett Colvin in Dallas (having completed a one year clerkship with Judge Truman Roberts at the Court of Criminal Appeals).

Frank and Emmett were representing one of Frank’s former students, a civil attorney, who, along with others, had been indicted for RICO. This multi‑defendant RICO case should have been indicted as an antitrust bid‑rigging case, which would have been a “lay‑down,” but a creative AUSA chose to indict it under RICO.

Frank spent days and days in our office in Dallas, examining and pontificating on the indictment and the RICO statute. The statute was relatively new and devoid of much case law guidance. Frank’s theories and courtroom performance (coupled with Emmett’s unique insights) resulted in a hung jury after a multi‑week trial, not merely for our client, but for all of the co‑defendants who went to trial.

I was able to see and learn that Frank was charismatic, charming, compassionate and a true gentleman: in part by the manner in which he treated everyone inside and outside of the courtroom. Respect, courtesy and proper decorum were ingrained in him. In fact, in almost 45 years of knowing Frank, I never heard him swear word or curse, even during the height of his drinking days.

I was able to see and learn that Frank was brilliant: a student of the law, quick, insightful and creative in his thinking.

I was able to see and learn that Frank was dedicated and tenacious: working from the early morning until midnight and beyond.

I was able to see and learn that Frank was ethical and honest, never stretching the limited precedent past the point of logical extension and always citing contrary authority out of his duty of candor to Judge Sarah Hughes. I also learned that Frank was not musically talented and could not carry a tune. Unlike Emmett, who once sang to the jury during a final argument and had a beautiful voice, Frank was not one to even croon. But after the hung jury, while I drove Frank and Emmett from bar to bar to celebrate (as was the custom at the time), the twosome sat in the back seat of Emmett’s Cadillac singing the old Kingston Trio version of a song I remember as “They’re Rioting in Africa.”1

Needless to say, Frank’s effort to follow the tune only distracted from Emmett’s beautiful voice and abundant musical talent.

In the early 1980s, when Emmett initially retired to become Dean of National Criminal Defense College (then situated in Houston) and we dissolved our partnership, Frank offered me a job with his firm in Austin. I jumped at the chance to return to Austin. For the better part of the 1980s, I got to work for him and with him (and the other wonderful attorneys at his firm).

During that time frame, I got to see and learn a great deal more. One case which we tried together was in Edinburg, down in the Valley. During the trial, one of Frank’s former clients, former state senator Diamond Jim Bates joined Frank for dinner at the beautiful Echo Motel (a motel which, at that the time, made Motel 6 look like the Ritz Carlton). Frank insisted I join them for dinner, which lasted long into the evening. Frank, at this time, was still an avid consumer of liquor and a smoker. After 3 or 4 double vodkas’, dinner, smokes and a host of old war stories traded between Diamond Jim and Frank (what a lesson in Texas history, although it might have been slightly less than 100% factually accurate), I escorted Frank back to his room. The next morning, when I thought Frank would be comatose, he conducted what I remember and consider to be one of the best cross‑examinations of any key witness for the government I have ever witnessed. How and why: he had prepared for weeks, knew exactly how he was going to conduct his cross, and knocked it out of the park. Simply mind‑boggling to me, even if he had not consumed those double vodkas the previous evening. The jury acquitted, in no small measure due to his sterling cross‑examination of this key witness. But those where different times.

And when Judge Truman Roberts retired from the Court of Criminal Appeals, Frank brought Truman over to his firm to be “of counsel.” Again, I was privy to war stories traded back and forth between Truman and Frank: a tremendous learning experience to be sure.

“...Frank taught me and hundreds, if not thousands of others countless lessons and inspired us to always do our very, very best for our clients.”

I was so very fortunate that Frank took me under his wing (as had Emmett and Truman, who I had clerked for) and taught me so very much about what it means to be a man and a lawyer. For over 40 years, even after I had left his firm, Frank taught me and hundreds, if not thousands of others countless lessons and inspired us to always do our very, very best for our clients.

We all admire Frank. We all respect Frank. And most importantly, we all love Frank as a friend, a colleague, a mentor, an attorney, a judge, a truly great Texan and a truly great American. The good Lord threw the mold away after he created Frank.

Frank was a man whose very essence compelled our respect, a lawyer’s lawyer to be sure. A man of principle, unmatched by anyone; a man of character, unmatched by anyone; and a man of integrity, unmatched by anyone. He dedicated his life to helping people and setting the example, whether as a prosecutor, an assistant attorney general, a defense attorney, a professor at UT School of Law, a judge on the Court of Criminal Appeals, or as a visiting judge.

I can think of no one in the history of TCDLA who has done so much for the profession as did Frank, and I say that with nothing but love, respect, and admiration for all of our Past Presidents, Hall of Fame members, and countless others who have also given so very, very much to TCDLA, the criminal justice system, and the people they have represented.

For over 50 plus years, Frank was actively helping people through his craft: the practice of law and his respect and love for the rule of law, coupled with the art of being a genuine human being in the truest sense of the word. A lifetime doing the right thing, respecting other peoples’ thoughts, other peoples’ religious beliefs, and the principles that this country and Texas were founded upon. Over 50 years of picking juries, trying cases, writing opinions, teaching others, and seeking justice.

On the stage of life, Frank did it all (except singing) with grace, dignity, conviction, and great prowess, both inside and outside of the courtroom. He was one of the best, if not the best, all round lawyers I have ever had the pleasure and honor of working with. A true legend, our first president, a member of the Hall of Fame (introduced that day by his good friend Racehorse Haynes), a former president of NACDL, and the author of some of the most meaningful opinions the CCA ever handled down.

And last, but certainly not least, he was the recipient of the Purple Heart, the Silver Star, and 2 Bronze Stars for his service to our country during the Korean conflict. I am honored that he befriended me, mentored me, and taught me so very, very much about the practice of law, but most importantly, for teaching me how to be a better person on a daily basis. He was an inspiration to us all, I am sure! He will be missed, but never, ever forgotten.

Tribute to Past President Frank Maloney

Frank Maloney was our organization. He was the consummate lawyer, an indefatigable student of the law, and a righteous and enlightened judge of our State’s highest criminal court. More importantly he was a mentor to many of us for over half a century. As a young lawyer in the early 1970s he introduced me to TCDLA and NACDL. He was instrumental in my service on the faculty at UT Law.

I had the great privilege of sharing courtrooms and the pleasure of more than a few bar rooms with Frank. Ever the elder statesman of our profession, Frank attracted eager young advocates to classrooms and courtrooms, sharing his unique blend of vigorous, forceful advocacy, always delivered with collegiality and respect. With his gentlemanly “old school” manner, coupled with an unequaled and encyclopedic knowledge and command of the courtroom, he shaped the law and our profession for us to follow ever after. RIP Frank Maloney.

How do you pay tribute to a legend?

As a young lawyer, I did not know Frank. I never watched him in trial. I never spent a great deal of time with him before he became a judge. He was a name that I knew. A name that commanded respect. A name that I admired.

As a young lawyer in the 1970s, I heard stories about the great lawyers; Percy Foreman, Racehorse Haynes, Warren Burnett, Charley Tessmer and Frank Maloney. All great orators. They provided the foundation for the practice of criminal law in Texas. Tenacity, thoroughness and preparation were words typically association with them. I wanted to be like them.

In the late 1980s I remember hearing that Frank was running for the Court of Criminal Appeals. When he won, the Court immediately became a better place for the criminal lawyer to practice. For Frank brought his vast experience as a lawyer, who at times was both a prosecutor and defense lawyer. His experience was unique. The people of Texas were truly served by his unique experiences as a trial lawyer. Justice was not blind to Frank Maloney.

While he served on the Court, I appeared before him several times. I had to prepare differently for Frank because I knew that he would be an active judge. That being, a judge who would question the weaknesses of my position and challenge me on the law and facts.

Unfortunately, he was not re‑elected. And that became a blessing for me because I was afforded the opportunity to try a case before him as he served as a visiting judge, after he left the Court in 1997.

In late 1996, the Fifth Circuit upheld the reversal of the conviction and death sentence of Ricardo Aldape Guerra, who had been convicted of killing a Houston Police officer in 1982, and remanded the case for a new trial. After the November 1996 election, the trial judge announced that he had made arrangements for the assignment of Ricardo’s case to a visiting judge, but would not tell us who was being assigned until after the first of the year. Even though United States District Court Judge Ken Hoyt found that the prosecutors had engaged in misconduct that undermined the in‑court identification of all the State’s witnesses, the State demanded a new trial.

Shortly after the first of the year, Scott Atlas and I received a copy of the order assigning Frank as the judge presiding over Ricardo’s retrial. I remember cheering and telling Scott how lucky we were. A judge that I knew could read, write, and understand the English language. I explained to Scott that Frank was someone who would be fair and who would listen.

We filed our motion to suppress the in‑court identifications with Judge Hoyt’s and the Fifth Circuit decisions attached. A hearing was promptly set. The abuse of the witnesses by the prosecutors and police became evident. We did not learn the impact of the testimony presented until we received Frank’s findings, in which all of the in‑court identifications of Ricardo as the shooter of a police officer were suppressed. In April 1997, Harris County prosecutor dismissed the capital murder charges.

Justice was served.

After that experience with Frank, our relationship changed. He became my friend and mentor. He was still someone I admired but now I got to cherish his friendship and wisdom.

In 2007 Frank, Roy Berrera, and Racehorse turned 80 years old. As an organization we wanted to celebrate their accomplishments and contributions. We decided to record their stories. So began the oral history of criminal law that can be found on our website. Being our first President, Frank also was one of the first stories that was memorialized. In that recording Frank’s recounted his experiences for us to cherish and pay tribute by watching.

Memories of TCDLA’s First President

This article was originally published in the July 2021 issue of the Voice.

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.

Fighting the TSA and Getting Off with a Warning

Background:

I was court‑appointed to represent a non‑citizen who will be referred to by the pseudonym Mr. Juan Pérez on the State criminal charge of Criminal Trespass upon the Austin Bergstrom International Airport (ABIA) grounds.

Mr. Pérez immigrated to the U.S. from El Salvador. He lived in Arizona with his mother, but had moved to Austin, Texas. Upon contact with his mother, Ms. Juana Pérez, I discovered that she had received a letter written in English with an emboldened title which read “SENSITIVE SECURITY INFORMATION” on U.S. Department of Homeland Security ABIA (AUS) letterhead. Neither Mr. Pérez nor his mother spoke or read in English. This document was a formal notice of a “Letter of Investigation” with an Enforcement Investigative Report (“EIR”) case number stating that the TSA was investigating alleged violations by Mr. Pérez of the Transportation Security Regulations (TSR), in Title 49 Code of Federal Regulations (CFR) §1540.105(a)(1) and §1540.105(a)(2). The letter further stated that said violations are subject to a Civil Penalty of up to $13,910.00 per each violation. There was no mention that a written “Warning” could be issued in place of a fine.

The Law – Alleged Violations of the TSR:

Transportation, 49 C.F.R. §1540.105: Security Responsibilities of Employees and Other Persons

  1. No person may:
    1. Tamper or interfere with, compromise, mod‑ ify, attempt to circumvent or cause a person to tam‑ per or interfere with, compromise, modify or at‑ tempt to circumvent any security system, measure or procedure implemented under this subchapter. Transportation, 49 C.F.R. §1540.105 (2008) https://ecfr.gov/current/title‑49/subtitle‑B/chapter‑XII/subchapter‑C/part‑1540#p‑1540.105(a)(1).
    2. Enter, or be present within, a secured area, AOA (Air Operations Area), SIDA (Security Identification Display Areas) or sterile area without complying with the systems or procedures being applied to control access to or presence or movement in, such areas. Transportation, 49 C.F.R. §1540.105 (2008) https://www.ecfr.gov/current/title‑49/subtitle‑B/chapter‑XII/subchapter‑C/part‑1540#p‑1540.105(a)(2).

Civil Penalties:

§ 1503.401 Maximum Penalty Amounts: Transportation, 49 CFR §1503.401 (2009) https://www.ecfr.gov/current/title‑49/subtitle‑B/chapter‑XII/subchapter‑A/part‑1503/subpart‑E/section‑1503.401#p‑1503.401(a).

The Civil Penalties are subject to the Enforcement Sanction Guidance Table https://www.tsa.gov/sites/default/files/enforcement_sanction_guidance_policy.pdf.

Warning Notices and Letters of Correction:

§ 1503.301 Warning Notices and Letter of Correction: Transportation, 49 CFR §1503.301 (2009) https://www.ecfr.gov/current/title‑49/subtitle‑B/chapter‑XII/subchapter‑A/part‑1503/subpart‑D/section‑1503.301.

Working The Case:

The client interview revealed that he had had some sort of psychotic break. He did not appear to be competent to stand trial. I sought an expert for the competency evaluation through our private Managed Assigned Counsel organization rather than the CCP Article 46B Court Appointed Expert route. Mr. Pérez was found incompetent to stand trial but likely to regain competency with treatment in a competency restoration program.

Discovery on the Criminal Trespass case revealed that Mr. Pérez had caused the ABIA Airport runway to be shut down for several hours. On consecutive days, Mr. Pérez is alleged to have attempted to circumvent a security system, measure, or procedure at the ABIA by gaining unauthorized access to the secured area of the airport. Then the following day, he is alleged to have gained unauthorized access to the Air Operations Area (AOA) of the ABIA.

The TSA “Letter of Investigation” was offering Mr. Pérez the opportunity to submit in writing his side of the story regarding the allegations within 20 days from the date of the letter. This writing was to be submitted to the Transportation Security Inspector for the ABIA. However, the letter was written in English and was sent to Mr. Pérez’ Mother in Arizona. TSA at the ABIA did not have the required documents or paperwork in Spanish. At this point, I realized that in addition to my usual duties and obligations as a criminal court‑appointed attorney, I was going to handle this TSA Civil Violation matter for my client on a pro bono basis. Fortunately, I’m fluent in Spanish and can interpret and translate for Mr. Pérez.

Ms. Pérez (mother) received the TSA letter around the 1st of the month. I became aware of said letter on the 16th of the month. The due date was four days away on the 20th of the month. I located contact information for the Transportation Security Inspector at the ABIA. After three detailed voicemails over two days, the Inspector returned my call late on a Friday night. I Introduced myself. I explained that Mr. Pérez had not received the TSA letter as it was sent to his mother in Arizona. I further in‑ formed the inspector of the language barrier and that I would be writing and presenting Mr. Pérez’ response. I further requested an extension of time. The Inspector responded that my request would be presented to the Assistant Federal Security Director.

The next day I was informed that the Director granted my request. I now had until the 30th of the month to submit the letter of response.

After completing discovery and investigation in the related criminal case, I did a quick review of the DSM‑5 (5th Edition of the Diagnostic and Statistical Manual of Mental Disorders). Mr. Pérez’ mental health status, the language barrier, including the fact that TSA had Mr. Pérez sign a Criminal Trespass Notice that he could not read or understand because it was written in English and no official interpreter was provided to properly trans‑ late was key to obtaining a “Warning” rather than a Civil Penalty from TSA. I sat down and began to write. The following is based upon the actual statement that I wrote to TSA on Mr. Pérez’ behalf:

The Statement to TSA: Statement on Behalf of Mr. Juan Pérez
Re: Letter of Investigation Case No.: EIR 2021 AUS0000

I was court‑appointed to represent Mr. Juan Pérez on the related State criminal charge of Criminal Trespass upon the Austin Bergstrom International Airport (ABIA) grounds. Said charge is alleged to have occurred on 00/00/21 .

I am writing this statement on Mr. Pérez’ behalf because he does not speak, read or write English. In addition, he is currently incarcerated in the Travis County Correctional Complex on the charge referenced‑above and on a Writ of Attachment for transportation to a State Hospital for competency restoration. Mr. Pérez was found Incompetent to Stand Trial on 00/00/21 per Competency Evaluation.

Mr. Pérez suffers from a delusional disorder that, to my knowledge, had not been formally diagnosed or treated until this incident. Delusional disorder is defined in the 5th Edition of the Diagnostic and Statistical Manual of Mental Disorders, DSM‑5, section 297.1 (F22). It is a psychotic disorder in which the patient has delusions, i.e., thoughts and beliefs that have no basis in reality. He is currently prescribed and taking psychotropic medication. I spoke to the forensic psychologist yesterday who reports that Mr. Pérez’ symptoms appear to be intensifying which necessitates a change in medication. The diagnosis has changed to Schizophrenia Unspecified, defined in the DSM‑5 section 298.9, which is a psychotic disorder manifested by delusions and a rift in perception of reality.

Mr. Pérez moved to Austin from Arizona to live with a cousin. The cousin asked Mr. Pérez to return to Arizona due to Mr. Pérez’ erratic mental health behavior. On the day of arrest, Mr. Pérez was at an HEB grocery store in Austin. He claimed he had been at the bus station and walked to the HEB. He said that a large group of people were following him and threatening to kill him. He made his way to the HEB parking lot and was asking customers for help because people were after him. The police responded. Mr. Pérez continued to point out customers and particular vehicles that were after him. The Austin Police Department (APD) placed Mr. Pérez on a Police Officer Emergency Detention (POED) due to his paranoid behavior. Sadly, he was later released. In my opinion, APD should have deployed their CIT (Crisis Intervention Team) officers who are trained to handle situations like Mr. Pérez’, i.e., mental health crisis and make appropriate referrals for treatment, e.g., possibly held on an Order of Protective Custody (OPC) in the Austin State Hospital where he would receive psychiatric treatment.

Mr. Pérez contacted his mother in Arizona. She arranged to meet her son at the airport to fly him back home to Arizona. She arranged an Uber ride for him to ABIA. Mr. Pérez claims that the Uber driver was threatening him and kicked him out of the Uber car near the perimeter fencing/gate area by the Air and Terminal Operations. He said that he jumped the fence into ABIA property. Mr. Pérez says he was approached by ABIA officials and detained. He was told to sign some papers that were in English (Criminal Trespass Notice). He did not understand what he was signing. Adding to his confusion, he was allowed to stay at ABIA by the same ABIA officials to wait for his mother to fly in the next day.

Mr. Pérez began feeling paranoid. Somehow, he ended up outside of the fenced ABIA AOA (Air Operations Area) area and fell asleep. The next morning, he panicked because he thought he had missed his mother’s arrival. He climbed the fence in an effort to try to reach the terminal as soon as he could to search for his Mother. As an immigrant from El Salvador, he does not read English. He did not know that he was in an unauthorized area. He was experiencing delusions as well. He claims that people started chasing him so he climbed the fence to leave the airport property. He was eventually detained just outside ABIA property and arrested by APD officers for Criminal Trespass.

It should be noted that APD Investigator, John Doe #1234, tried to interview Mr. Pérez. However, Investigator Doe stated that Mr. Pérez was too agitated and erratic. He stated that Mr. Pérez thought that the officers were taking him away to kill him. He further stated that Mr. Pérez was trying to get to the terminal to meet his Mother. Investigator Doe was unable to have a coherent conversation with Mr. Pérez. Investigator Doe stated that he requested that the jail have Mr. Pérez evaluated for paranoia and thoughts that police officers were going to kill him.

Based upon the foregoing and in the interest of justice, I respectfully request that Mr. Pérez be issued a “Warning” rather than a Civil Penalty. He is obviously mentally ill due to his delusional disorder which appears to be worsening. He intended no harm to anyone or to ABIA. He is an immigrant who may know a few phrases in English. However, he neither speaks, reads or writes in English. In my many years of representing Spanish speaking non‑citizens, it is my impression that law enforcement often mistakenly assume that these immigrants comprehend English just because they can speak a few phrases in English. This assumption is wrong and often leads to mistreatment and illegal detention/arrest of non‑citizens for violations of laws, warning signs and failure to comply with verbal commands of Law Enforcement. In reality, the language barrier is to blame.

Moreover, Mr. Pérez is indigent as evidenced by the fact that I am court‑appointed to represent him. This indicates that Mr. Pérez was vetted by the State Court and deemed to be indigent. Therefore, paying the costly TSA Civil Penalty will be impossible.

Conclusion:

The day after this statement was tendered to the Inspector, he informed us that the case file would be submitted to the General Attorney for TSA. The General Attorney would decide how to proceed. According to the Inspector we could expect a decision in a few weeks. However, four days later, we received an email with an attachment that stated a recitation of the allegations and the following:

WARNING NOTICE RE: Case No.: 2021AUS0000

“In view of the circumstances in this case and the Letter of Response from the Attorney at Law Suzanne M. Spencer on your behalf, received on the 30th day of the month of 2021, we have elected to send you this Warning Notice rather than seek a Civil Penalty. The Warning Notice is now a matter of record and part of your compliance history. A Warning Notice is not a formal adjudication or a legal finding of the matter and, therefore, there are no rights to appeal this Notice.”

“A repeat incident of this type would be an extremely serious matter and would call for a more severe sanction which may include the assessment of a Civil Penalty.”

By this time, Mr. Pérez had regained competency as evidenced by an Order of Restoration signed by the County Court at Law Presiding Judge. Mr. Pérez’ mother arranged a trip to Austin to collect her son and fly him back to Arizona. Mr. Pérez was cleared by TSA for air travel. In addition, the Criminal Trespass case was dismissed in the interests of justice. Mr. Pérez was very grateful and happy with the resolution of these matters. My work here was done.

Op-Ed: Finding my Voice as a Female Criminal Defense Attorney

Recently I was thrilled to be asked to be a faculty member at the TCDLA trial college. Paul Tu, a brilliant lawyer and I were both asked to do demonstrations of a closing argument on the same case. We purposely chose different styles to show the students. Paul’s argument was logical and methodical, it attacked the evidence and how it did not meet the standard of beyond a reasonable doubt. My argument was more emotional, I spoke of a young woman who had worked hard for all her success and status, but when accused of a crime was not given the benefit of the doubt or an opportunity to be heard. When I was finished speaking, I was approached by three young female students. All three female attendees had the same question for me. How do you speak strongly and passionately, yet still be effective as a female attorney without being perceived as the emotional woman in the courtroom?

Their questions have stuck in my head and when I was asked to write an article on women’s issues in our profession, I began to think of how I could answer female defense attorneys who have this concern.

My own journey as a lawyer started out with me doing all I could to be unnoticed as a female. Right out of law school the only requirement for the suits I bought was that they looked professional. Nothing too girly, no pretty pastels, only dark blue and black, and nothing that would indicate I had curves of any kind. The skirts were to my knees or I wore pants. I did my makeup subtly, and I put my hair back in a ponytail. My nails were always subtle colors, my earrings small pearls or diamonds, nothing dangling, nothing distracting.

When I moved to Corpus Christi, TX about twelve years ago, I began taking court appointments. I was new in a small town and excited to learn. I remember paying special attention to my appearance and trying not look too feminine when I went to the jail or was in court. Mostly, I wanted to be seen as a lawyer.

I was lucky to receive the mentorship and friendship of two well established male lawyers with great reputations who took me under their wings. I learned so much from them but did not know how to navigate the one big difference. I did not know what to do with my femininity. Should I embrace it or hide it? Early on in my career, I had heard one prosecutor nicknamed me “Legal Barbie.” I was upset by the nickname because it labeled me and took away my worth in the courtroom as an advocate. No one would be worried about going to trial against “Legal Barbie” and how would any client feel comfortable with their case in my hands. I spent hours correcting myself. I did not want to appear too emotional, yet not overly rational to be perceived as cold. I wanted to be aggressive, but not too aggressive. If I was angry about a case, I couldn’t appear too angry. However, if I appeared too calm I could be perceived as not caring.

Recently the subject of my femininity as a defense lawyer was challenged again. I was speaking at a CLE on the topic of: Sexual Assault Cases in the Post Me‑Too Movement Era. I knew that the topic itself would be controversial, but I wanted to explore it, as I have many of these cases pending and think we need to address the situation. I spoke as a criminal defense lawyer, not as an advocate for feminism. I began my talk asking the audience, how many men in here feel comfortable telling a woman in the workplace she looks pretty? Many said they did not. I then asked, how many of you think twice before offering to carry a woman’s belongings, opening her doors, etc.? Many did. The point of my questions was to show how we are now unsure of rules in the face of changing times. What we once believed was polite or mannerly may now be considered offensive or suggestive. I told the crowd that I like being complimented and called pretty. It’s true, I do. I like to be feminine. I wear dresses. I spend time on my appearance, and it matters to me. Others do take offense to such things, and I think with our current juries we have to discuss these issues and address them head on to be effective lawyers. We have to be open and willing to deal with the uncomfortableness of not knowing what is acceptable, yet still emphasize the burden of proof has not changed despite changing attitudes.

After I spoke, I was leaving the CLE to check out of my room and an older woman approached me. She said that my talk had offended her. Once I decided to let go of my ego, I listened to what she had to say. She was sitting with another woman about my age who said she was not offended. I found their contrasting opinions to my talk interesting.

The older lawyer said that she did not think women should be called pretty in the workplace. She said she would be offended by that. She explained that she used to go to NOW meetings as a young woman and she fought to be heard, respected and valued, not for her gender, but for her mind. She told me the story of a being a young lawyer and a judge had taken her into chambers and “stuck his tongue down her throat.” She stated that some young female lawyers today offend her by their behavior and appearances. She does not think women should post photos of themselves online in bikinis or suggestive outfits and expect to be respected as attorneys. She told me the story of her being in trial once and the prosecutor against her was wearing a low‑cut revealing blouse and she told the prosecutor to go change. Apparently, the prosecutor listened and returned from the bathroom with her shirt turned around.

The younger female attorney and I were shocked by her statements. Isn’t the point of the feminist movement not to criticize and judge other women’s choices? That all women can do whatever they want because we have that freedom? I explained to her we were grateful for her fight but isn’t the goal of the fight for the freedom to do what we wanted? Couldn’t we now wear pants, wear a dress, stay home, go to work… be however we feel most comfortable? She disagreed with the statement and felt that those behaviors were setting the woman’s movement back.

I left the CLE and while I was driving home, I thought about her words. I didn’t want to disrespect the struggle she went through but didn’t agree that telling other women to not be feminine if they chose to was the answer either. I still don’t have answers for this debate, but her words have stuck in my head.

These recent events, both at the Trial College and speaking at the CLE, had me thinking again about my how my voice as a female lawyer would be perceived. When the younger lawyers asked me how I found my own way, I answered them as truthfully as possible. I told the students that one day I just stopped caring. I got so angry about what was happening constantly to my clients, about the injustices and inequities in the system, that I just eventually stopped worrying about myself or how I was perceived. My evolution has caused me to see myself as a tool to tell my client’s story. My mentor, Jimmy Granberry, taught me this lesson a long time ago when I was worried before a trial, he said, “It’s not about you… get over yourself.” I now say those words to myself before every trial. It helps me to not think about my ego, or my fears and doubts but to concentrate on my client. Once I got over myself, I became effective.

These recent events have made me think more and more about all the women who came before me and all those who will come after me. I do not believe I can tell a female how to own her power in the courtroom, how feminine to be or what not to do. However, I do believe we have gifts to do some things very effectively, like cross examine other women and children as only a woman can do. I believe we have a strength that I cannot describe in words when we own who we are, in whatever form we come in. It is my hope that my own evolution will reassure some young woman out there who struggles like I did. My advice is simple and not much different than that of my male mentor. I just had to discover it on a different journey ‑ it’s not about you, it’s not about your appearance, it’s not about what you wear or how emotional you are, it’s about telling the story. Embrace yourself, in whatever form you come in, and focus on using yourself as the unique tool that you are.

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