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The ‘New’ DWI: Deferred or Trial?

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

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

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

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

While Intoxicated;

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

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

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

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

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

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

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

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

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

Food for Thought: Semantics and the Presumption of Innocence

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

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

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

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

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

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

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

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

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

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

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

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

Diligent Participation Credit

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

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

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

A Diary of Declaration Readings

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

-Laurie Key, Lubbock

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

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

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

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

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

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

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

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

-Robb Fickman, Houston

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

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

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

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

“I still get goosebumps,” she said.

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

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

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

-The Athens Review

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

-Brent McQueen, Sulphur Springs

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

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

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

-ShelbyCountyToday.com

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

-Plainview Herald

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

EverythingLubbock.com

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

-Dustin Nimz, Wichita Falls

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

-Brent McQueen, Sulphur Springs

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

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

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

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

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

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

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

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

-KBTX-TV, Bryan

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

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

“The public is invited,” organizers stated.

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

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

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

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

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

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

-The Marshall News-Messenger

Miles: 250

Courthouses: 5

Speeding tickets: 1

Happy Birthday, America!

#tcdlastrong

-Michelle Ochoa, Beeville

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

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

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

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

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

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

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

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

-Chuck Lanehart, Lubbock

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

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

-Big Bend Sentinel

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

-Ken Mingledorff, Houston

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

 – Bradley Hargis, Austin

Revolving Door: Treatment vs Incarceration

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

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

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

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

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

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

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

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

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

Juveniles & Forensics: When the Wait is Worth It

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

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

Forensic Analysis Timeline

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

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

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

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

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

Setting Realistic Expectations

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

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

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

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

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

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

Assessing the Client’s Interest in the Forensic Delay

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

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

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

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

Memories of TCDLA’s First President

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

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

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

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

“No, sir” said I, ready to resign.

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

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

 

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

 

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

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

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

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

 

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

 

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

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

 

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

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

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

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

 

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

“There’re plenty of blind lawyers.”

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

 

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

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

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

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

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

 

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

 

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

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

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

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

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

 

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

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

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

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

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

 

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

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

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

 

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

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

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

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

 

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

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

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

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

 

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

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

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

 

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

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

 

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

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

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

 

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

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

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

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

 

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

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

 

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

 

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

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

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

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

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

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

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

 

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

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

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

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

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

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

 

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

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

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

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

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

At which point, without objection from the government–

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

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

Race: Where was the keyhole?

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

Race: Where was the keyhole?

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

50 Year Member Pieces

Expressing Gratitude

Abner Burnett

The TRLA public defender division has grown from two offices in two counties when I first started with the organization in 2008 to 5 offices serving 14 counties.  It has a sturdy foundation and supremely committed team members, as you may know from having worked with some of them. Nevertheless, I consider it still a fledgling operation. There is plenty of room, need, and opportunity for an incoming director to aspirationally lead the division’s development. 

A public defender program operating as part of a large nonprofit legal aid organization is a model that has served rural communities in South Texas well. As a wraparound provider of legal representation, TRLA’s public defender division has both often succeeded and occasionally struggled. We hope to find a pragmatic visionary that will:

  1. further the development of the division and
  2. strengthen ties to local, regional, and national colleagues in the work of criminal defense practice. 

We will be considering applications from both inside and outside of the organization.

TCDLA has always been a strong supporter of our group. You have always been helpfully responsive when I have checked in. If you know or think of someone that you believe might be a good fit for this position, please feel free to mention it to them and give them my contact information.

Good Will

Jeremy Rosenthal

It was a lonely feeling…even in a jammed courtroom…being at counsel table next to a guy in ankle shackles. His Salvation Army coat and pants I bought him the night before were the nicest things he owned. He was sweating and hadn’t slept or showered in 2 nights. He smelled like the jail – a foul combination of a low-end hospital and high school cafeteria.

The jailer, with his hands on his hips, insisted on hulking feet away from his prisoner for the entire trial “because it’s Judge’s policy.” The judge, the prosecutor, and even the bailiff were so very nice to me — that is, until I began telling them all “no.” Maybe that’s why I wasn’t invited back for coffee any longer in the docket room?

I was scared. Scared I wasn’t up to the challenge, scared I could get in trouble with these people, too, for making them angry, scared maybe I actually live in a country like Myanmar or North Korea where the good guys in uniforms make up the rules as they go along – but above all – I was scared that maybe I was the one who had it all wrong.

Then I went to Laredo, Tyler, Victoria, Waco and all the other places around Texas where I saw an army of lawyers facing identical challenges and conquering these fears every single day. I know I’m not alone. Happy 50th Birthday, TCDLA. You are more critical to everyday liberty, freedom, and the American way of life than you could ever know!

A Labor of Love

Robb Fickman

I have been a criminal defense lawyer for 38 years. For most of that time I have been a member of TCDLA. In 2010, HCCLA started reading the Declaration of Independence in front of the Harris County Criminal Courthouse. We were protesting the abusive judges inside our courthouse.  We all liked the Reading, so it became a local tradition. Not long after that I was having lunch with my friend Gary Trichter. Gary said he liked the Reading and he wondered if it was something that I might want to take state-wide. I liked Gary’s suggestion, so I started encouraging lawyers around the state to create their own local Readings. Pretty soon after that TCDLA agreed to pitch in and help me organize the Readings. In 2016, I arbitrarily decided that we should have a Reading in all 254 counties in Texas. I  put together a group of volunteers from all around the state, and we all pitched in to get an organized Reading in every county in the State. We referred to the group of volunteers as F-Troop. The members of F-troop were: Robert Fickman of Houston, Chuck Lanehart of Lubbock, Kerri Anderson-Donica of Corsicana, Tip Hargrove of San Angelo, David Schulman of Austin, Mary Conn of Houston, Michelle Ochoa of Beeville, Mary Beth Harrell of Killeen, Jim Darnell of El Paso, Jeff Blackburn of Amarillo, Sheldon Weisfeld of Brownsville, Dustin Nimz of Wichita Falls, and Tammy Schmidt Keener of Fredericksburg. During that year we managed to get a Reading in every county in the State. Starting that year, Chuck Lanehart has been my state-wide co-chair. The Readings are a labor of love, and I am proud that TCDLA has adopted this tradition.

 

TCDLA Love

Mark Thiessen

TCDLA is the best thing that ever happened to me because it introduced me to my wife. I was speaking at Prairie Dog in Lubbock. I’d seen her walking around the seminar and knew that I was in big trouble. I couldn’t stop harassing her at the member’s party that Friday night. I remember being quite charming/borderline irresistible. She only remembers that I kept talking about a limo suburban that I had just bought. We drank and laughed a lot. She left and I was smitten. I asked Frank Sellers to give me her phone number because I had some legal questions that I needed to ask her. He reluctantly obliged. Over the next few months, we kept running into each other at TCDLA seminars. Our friendship blossomed into love and the rest is history. TCDLA introduced me to the love of my life, my trial partner, my law firm partner, my best friend, my safety blanket… my everything. We are a TCDLA Strong family.

Thank you, George

Buck Files

On a Saturday night in 2003, Jane Doe stoned two of her children to death and seriously injured a third because she believed that it was God’s will for her to do this. On Monday, after being appointed to represent Jane, I had a meeting with her at the jail. She told me that she knew I was to be her lawyer because she had seen a male deer – a buck – in the pasture as she was waiting for the ambulance to come to her home.

That evening, Dr. Wade French, a licensed professional counselor, interviewed Jane and then called to tell me that we had an insanity defense. On Tuesday morning, I called George Parnham who was urging an insanity defense on behalf of Andrea Yates, a mother who had drowned her children in a bathtub. Although he did not know me from Bim Gump, Mr. Parnham patiently took me through an orientation on the practical aspects of the insanity defense and told me to call Dr. Phillip Resnick, a forensic psychiatrist who is recognized nationally as an authority on infanticide.

After that, it was all downhill. Dr. Resnick agreed to work with me. The Court approved my Ake motion requesting that he be appointed and that his fees be paid. Dr. Resnick came to Tyler and did a recorded interview with Jane and agreed with Dr. French’s conclusion. When the State’s psychiatrists and the court’s psychiatrist interviewed Jane, they would have found her to be sane but for Dr. Resnick’s recorded interview. All testified that Jane met the Texas standard for insanity and a jury returned verdicts of not guilty by reason of insanity in each of her cases.

If Mr. Parnham had not taken the time to answer my call, Jane would be just another inmate in a Texas prison. But that’s what TCDLA is all about — being there to help each other and sharing our knowledge and wisdom with our brothers and sisters. Like the Musketeers of old, we should be all for one and one for all.

Persistence Pays Off

Terri Zimmermann

I represented a female active duty service member charged with using drugs. The unit’s urinalysis program manager made a number of mistakes, including sending a male into the bathroom as the “observer,” telling people not to disclose medications they were taking because “they could address it later if their test was positive,” and leaving urine samples in a desk drawer in an unlocked office for a week before sending them to the lab. When I went to his office to interview him, the door was wide open, but he was not there; I used my phone to take pictures of the office, including the open drawer containing other samples. At the hearing on my Motion to Suppress, I asked that witness about the security of the samples. As expected, he testified he always kept samples in a locked drawer and never left his office unlocked when he wasn’t there. You should have seen his face when I handed him the photos, one by one, and asked him whether they accurately depicted his office — and urine samples. But wait, there’s more…During a recess I called my other witnesses (who were going to testify telephonically) to tell them we were almost ready for them. Several expressed reluctance to testify, despite their enthusiasm the previous week. When I asked what caused their change of heart, they said the prosecutor had just interviewed them and asked whether they really were willing to “stick their necks out” for my client. I took a legal pad and quickly hand-wrote a Motion to Dismiss for Prosecutorial Misconduct (interfering with my access to witnesses). The judge called the lawyers into his chambers. The inexperienced prosecutor, lip quivering but obviously a Seinfeld fan, asked, “Should I not have done that?” We continued with the hearing but the next week the case was dismissed.

How I Almost Went to Jail: The Story Behind the Case of In Re McCann

Patrick F. McCann

Like most good criminal defense stories, this one starts in a bar. Specifically, the Char Bar at 305 Travis in Houston, in the upstairs portion. I was having a drink with the mitigation specialist from the Albert Turner case, who was taking over the direct appeal on that capital murder. Mr. Turner had been sentenced to death. There was still a pending issue of his competency, even after trial. It had been raised in the motion for new trial and as an abatement issue by this very talented lawyer, who eventually went on to become a district court judge.

At the most recent hearing, the trial court, Judge Brady Elliott presiding, had ordered me to turn over Mr. Turner’s file to the newly appointed writ lawyer, James Rytting. The trial court had always believed Mr. Turner to be competent. If this was so, Mr. Turner’s last instructions to me, which were specifically NOT to turn over the files to anyone appointed by the state of Texas, should have been followed. As our mitigation specialist said “You know, this guy has only a few things left in his life he gets to decide now. One of them is what his lawyer should do.”

At that moment, in walked our mutual friend and colleague, Casie Gotro, a gifted lawyer with a keen mind. She heard us tell our tale of woe [Should we give the writ lawyer our file, or not? Who decides?] and drew a long drag on her cigarette. She blew out the smoke and then decisively said, “Amy is right, they are wrong. You need a lawyer. I will be your lawyer, but I will need drinks.” She nodded pointedly at her near empty glass, and I put in an order promptly. She said, “We will file one of those mandamoo things to stop this.” “You mean mandamus?” I asked.  She patted my large head and said “No more thinking for you. That is my job now.”

So, Casie filed a mandamoo petition and a writ of prohibition request with the Court of Criminal Appeals. The day came for my compliance with the judge’s order, and I told him I would respectfully refuse. He told me to report to his bailiff on Friday by close of business. I did, and as I was taking off my belt and putting my wallet in the bailiff’s hands, Casie rushed in with a stay order from the CCA and a briefing schedule for her petition. She was so confident she actually just stood on the petition, and she won, or rather Mr. Turner did.  The CCA decided that the file belongs to the client and absent a finding of incompetence, those instructions were to be followed by the lawyer, even if they might cause the client difficulty. I luckily did not have to go to jail, and I owe that to my friends who encouraged me to stand my ground and helped me defend it.

It is good to have friends who are smarter than you.

We are the Voice of the Powerless

Shane Phelps

After 20 years as a prosecutor, I went into private practice as a criminal defense attorney.  I had some apprehension about making the jump to the other side. In my first felony jury trial as a defense attorney, I was appointed to represent an undocumented immigrant from Venezuela who did not speak English. I met him for the first time, through an interpreter, in the hallway outside the courtroom. He was shackled with his hands cuffed in front of him. As soon as the interpreter explained who I was, my new client grabbed my hands and, through tears, cried, “Please help me; I didn’t do this.” It was clear to me that he felt powerless, helpless, and alone.  He was charged with indecency with a child by contact and when I went through the discovery, I began to believe that he was, in fact, not guilty. No pressure. We picked a jury and tried the case. At the end of deliberations in the guilt/innocence phase of the trial, the judge asked the presiding juror to deliver the verdict of the jury. My client, throughout the trial, wore headphones so that the interpreter could interpret for him what was going on. The presiding juror, facing my client, announced the verdict: “not guilty.” I looked at my client and he appeared confused.  The interpreter told me, “He doesn’t understand.”  I looked at my client and told him, simply, “You’re free.” When it registered with him, he broke down in tears; and so did I. I knew at that time that I had found my life’s work. We are the voice of the powerless. I have been a proud member of TCDLA ever since.

Stearnes vs. Clinton

Chuck Lanehart

If not for TCDLA, four innocent young men may have perished by lethal injection.

In 1987, I was appointed to represent Wayne Stearnes, a young man accused of capital murder. Three other young men faced the death penalty in the same high-profile, drug-related triple-murder case.

My co-counsel, Carlton McLarty, drew the wrath of the DA for interviewing the government’s star eyewitness at her invitation at her home. An hour into the interview, an assistant DA appeared at the residence with police and ended the meeting.

We immediately filed a motion to depose the witness. At the hearing, the DA alleged Carlton violated his rule that defense counsel must “request permission to speak to State’s witnesses.” The judge agreed, ruling Carlton and I lacked experience to represent Stearnes.

The judge fired us!

Stearnes stood defiantly and addressed the court, “I ain’t gonna stand for no shit like this!” The judge responded, “You keep a civil tongue or I will have you up for something besides capital murder!”

That night, 30-plus members of the Lubbock Criminal Defense Lawyers Association gathered to discuss ways to right this intolerable wrong. They passed the hat to fly LCDLA envoys to Austin the next day.

In Austin, LCDLA President Mark Hall and I met with TCDLA Strike Force volunteers. A plan was hatched to file a writ of mandamus. Austin lawyer David Botsford and Lubbock lawyer Ralph H. Brock valiantly litigated the writ with amicus support from NACDL and the NAACP Legal Defense Fund.

In a landmark 1989 opinion, the Texas Court of Criminal Appeals unanimously granted mandamus relief. Carlton and I were reinstated, the judge was disqualified, and Stearnes was soon acquitted at trial. Counsel for the three co-defendants built on our work, and their clients were eventually cleared.

Stearnes vs. Clinton has since been cited more than 100 times in support of a defendant’s right to counsel.

TCDLA Experience

Warren Wolf

I was preparing for my appearance at the U.S. Supreme Court. On a conference call with the likes of Prof. Tony Amsterdam (who argued Furman v. Georgia), Seth Waxman (former U.S. Solicitor General), Dick Burr (national Habeas Assistance Training resource attorney and Bud Ritenour (TCDLA member and co-counsel), I thought we needed to attract Amici to support our case.

I contacted Lisa Wayne (the president of NACDL, who Gerry Goldstein invited to speak at a previous Rusty and I met her then). Lisa put me in touch with Barbara Bergman about an Amicus from NACDL. The State was going to make this a national issue and argue our success would open up a Pandora’s Box across the country.

The consensus of that conference was to keep it local. We decided to try and get an Amicus from the State Bar of Texas. The then current President of the state bar was Buck Files. Our Buck Files, member of TCDLA, the author of the Federal Corner whose picture I saw every month in our Voice magazine. I volunteered to contact Buck.

I had met Buck the previous year when he was running for State Bar President. He came to a TCDLA board meeting; I was on the board that year. He went around the room. He shook my hand and asked me for my vote.

Well, Buck took my call, and I told him our situation. He was able to get the State Bar to pass a resolution approving the writing an Amicus brief. That brief supported our position.

During oral argument Justice Kennedy (who became the 5th and deciding vote) referenced the State Bar brief several times. Justice Breyer cited to the State Bar brief in the majority opinion.

I believe the Amicus brief by the State Bar was crucial in winning the case. But for TCDLA, I would not have met Buck Files. Knowing Buck gave us access to the State Bar of Texas and obtaining that Amicus.

Thank you Buck, and thank you TCDLA.

 

The Legacy of Kelly vs. State

Bob Gill

I was a prosecutor back in the late ‘80’s when DNA identification testing first made its way into courtrooms. I was one of the trial prosecutors on the State v. Barry Dean Kelly who we prosecuted for murder. Kelly was convicted and became the first forensic DNA case to make its way through the appellate courts. Eventually, the case set the standard for the admission of novel scientific evidence as Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992). While the DNA identification testimony was not actually very important in the trial of the Kelly case, it has become a lynchpin of current criminal law litigation.

We knew at the time of the trial that we were on the cutting edge of DNA forensics and put a great deal of effort into ensuring that the DNA evidence would be admitted, and then stand up on appeal. We knew at the time that the technology would be a great tool for law enforcement and prosecution. We also understood that DNA would benefit any accused who was excluded as a potential donor of the DNA in question. What we did not foresee was the extent to which DNA would be used post-trial to exonerate those who had been and would be convicted of offenses that they did not commit. One of the greatest achievements of the technology has been to exonerate hundreds of inmates across the country and state who would have had no other means of proving their innocence to the level required during the postconviction writ process. 

After DNA identification testimony was accepted by the court, DNA labs began to spring up around the state. Kelly paved the way for the use of this powerful science in the courts. DNA evidence and testimony have now become very commonplace in our courts.

Joe David Childress

Jani Maselli Wood

My first client at my first real legal job.  Back then it was Inmate Legal Services – I was a prison lawyer in 1996. By the time I met Joe David, he was old. He was serving 25 years for a failure to stop and render aid. He had been sentenced as a habitual defender based upon his life sentences from an early career as a cat burglar in the 1940s.

He had some smart trial lawyers (Ken McLean and Mac Secrest) that challenged those 1940s convictions. Prior to Gideon, Harris County defendants were given “stand-by” counsel to waive their rights to a jury trial. Calling upon local lawyer John Cutler, licensed in 1947, he expertly explained the practice for the record. But the Texas appellate courts were A-OK with those Gideon violations.

So, Joe David filed a pro se federal writ. He lost. I was assigned to his unit and he wrote and asked me to handle his Fifth Circuit appeal. My first federal appeal; Joe David told me what law to argue.

And we won. The United States Court of Appeals reversed his sentence because the enhancements violated his Sixth Amendment right to counsel. I was ecstatic driving to the Goree unit to tell him. Joe David and I laughed and made plans. As he walked away, I yelled – “You be good Joe David.”  He raised his fists in the air and said, “They haven’t broken me yet.”

But in actuality – he was broken. And he died before he was released. I showed up at the funeral home with some grocery store flowers. Joe David was laid out on a table; I rested the flowers on the floor beside him.

I was alone.  The funeral director came to me as I wept. He said, “Are you family?  And I told him “Yes.  I’m his lawyer.”

Family

Soloman Monroe

I must admit I was skeptical when I first joined TCDLA. As a brand-new lawyer I was unable to envision how I could ever benefit from such a massive organization or make an impact on such experienced attorneys, some of whom had been practicing longer than I had been alive. Simply put, I was intimidated, fearful, and overwhelmed. As I have come to learn, however, TCDLA is not some massive organization. We are a family.

Sure, at first glance we may appear separated and scattered in our own sections of the state, left to fight our battles alone. But the truth is, we may be on our own, but we are never alone.

We work together for our clients and for ourselves. We educate and instruct each other so we can reach new heights. We fight and bicker but rush to defend each other when attacked. We celebrate the victories and give comfort for the losses. We are there for one another in an emergency, or just there to share a drink.

I may have been too naïve to see it when I first joined. But I am forever grateful to share these experiences with the TCDLA family.

We All Need TCDLA on Our Team

David Botsford

Back in the dark ages — the 1970s to the 1990s — TCDLA was a must less structured organization than it is today. This was particularly true in the amicus and strike force arenas, as the types of guidelines and protocols relied upon today had not yet been enacted. While the goals of both of these committees were identical — helping our members –. Those goals continue to this day, but the efforts of these two committees prior to the advent of the internet were mostly overlooked.

In fact, these two committees, acting more or less as one, have contributed greatly to Texas’ jurisprudence. Stearnes v. Clinton, 708 S.W.2d 216 (CCA 1989), Stotts v. Wisser, 894 S.W.2d 366 (CCA 1998) and Buntion v. Harmon, 827 S.W.2d 945 (1992), established the proposition that appointed counsel cannot be “unappointed” and “kicked off” a case — prior to trial or on appeal — at the whim of the judge or in response to a prosecutorial suggestion that defense counsel’s advocacy is making their jobs more difficult. If you have not read these cases, you should.

These committees also worked together in the “Range Wars” — stemming out of Lubbock and Amarillo — and reinforced the proposition that TCDLA will not stand idly by while our members are assaulted by overzealous prosecutors. Indeed, an amazing opinion by U.S. District Judge Mary Lou Robinson — to the effect that a civil RICO lawsuit filed by representatives of TCDLA (and others) against two elected District Attorneys (and other members of law enforcement) could and should proceed — essentially established the proposition that TCDLA will rise to the occasion and take necessary and appropriate steps when prosecutors and law enforcement corruptly go after innocent defendants and their dedicated counsel.

So too, in the arena of criminal contempt, TCDLA has long stood with its members and has gone above and beyond to protect us all. For instance, in February 1989, George Roland was called to the witness stand by the State in order to allow the State to make a supplemental record in a capital case against Robert Excell White. George proudly and properly asserted attorney-client and work product privileges, refusing to answer the questions. The judge ignored the privilege, held him in contempt, refused to set a bond, and ordered George to report to the Collin County jail no later than 5:00 p.m. that same day. TCDLA was able to file original writs with the COA and the CCA that same day and obtained George’s release that same evening at approximately 6:15 p.m. via an order from the CCA (after the Dallas COA had denied relief). The following day, the process repeated itself as to David Haynes, George’s co-counsel on the capital case. The CCA subsequently set aside all 13 of the contempts entered against George and David.

Even earlier than George and David’s experience, NACDL member Robert Glass was held in contempt for his cross-examination of a snitch during a federal trial in Louisiana. After Glass received the two word verdict, the U.S. District Judge held him in contempt. At Robert’s request, TCDLA filed an amicus, coordinating with NACDL, to support Robert’s appeal of his contempt conviction to the Fifth Circuit. TCDLA’s amicus significantly helped carry the day for Robert with the Fifth Circuit and the unpublished opinion (which I’ve cited on any number of occasions) established that respectful but aggressive cross-examination of a snitch — insinuating that the snitch is trying to curry favor with the prosecution and his sentencing judge — is not contumacious.

Lessons to be learned and followed: Always have TCDLA on your team, as the best offense is a great defense and TCDLA will provide you with that defense. Renew your membership, pay your dues and benefit from the countless ways that TCDLA makes your life easier and your profession more rewarding.

Seemingly Hiding in Plain View

William Wilder

What TCDLA means to me: As a younger lawyer and  even now,   several warriors have   given me invaluable advice and ideas.  Now, in my later years, I offer advice to younger criminal defense lawyers. I am a much better advocate for my clients because of fellow warriors, the Digest and invaluable and timely articles in Voice. I thank God for all of your service, and the countless accused are no doubt grateful.

A DWI Victory: I used to be a county attorney in Edna, Jackson County, Texas. After that, I moved to Bay City, and a man from Ganado (small town in Jackson County) employed me on a DWI. I favor taking county or state highway employees on juries, and we had one. I knew the DPS officer, and that he would testify he did not know much about the breath test, and could be easily cross-examined on this point. The client was a 240-pound salesman who was trying to make a sale to a young man, who had his wife present, that evening in Victoria,  25 miles  away. I engaged a math professor to testify who looked like Santa Claus and was  quite believable. He performed an algebraic equation to show the amount of beer that a 240-pound man would need to drink in order to exceed 0.10 (the percentage of intoxication then). The DA was a math minor and asked my math professor no questions on cross. I engaged a pathologist from nearby Bay City to testify about blood alcohol. He was running late, had an airplane, and flew 45 1 miles to our airport. (The word in town was that Wilder had done hired a big shot doctor from Houston to testify. I never denied it).  The client had taken the couple out for a big buffet dinner, and I had pictures of what they ate. The client drove them all over Victoria after dinner in his Corvette because they had never been in one. Then, during the trial, I asked her if she had a little secret for the jury, and she replied “I am pregnant with our first child”. The customer’s lovely blonde wife (and her husband) testified about my client’s driving them around Victoria, and he had no trouble driving.  In addition, he had driven the 25 mile stretch from Victoria to Edna with no problems. Guess what, not guilty. When talking to the jurors, which included the highway department employee, I asked what the main turning point was to find him innocent, and the highway employee replied, “I know that highway and overpass quite well, and when the DPS officer testified he was parked just over the rise I knew he was lying because there was no room for him to be there!”. So much for my Perry Mason presentation.

Worth the Wait

Heather Barbieri

From the beginning, TCDLA had my heart.  I remember going to my first Rusty Duncan Seminar, and how the staff made me feel so welcome.  Soon after, I started attending the board meetings and, after a couple of unsuccessful attempts, was voted onto the Associate Board.  I was truly honored to be selected. 

TCDLA is not only a prestigious organization, it is a bona fide community.  The moment I realized this was when I found myself trying my first federal trial in Tyler, Texas–alone.  But that isolated feeling quickly subsided as fellow TCDLA brethren and icons, Bobby Mims and Kelly Pace came to my aid.  They took time from their busy schedules to come to my trial, and guide me every step of the way—and they did it because they cared about a scared young TCDLA member who was in the trenches.  That’s when I knew being a member of TCDLA meant I was part of a very special family. 

From that point on, I committed myself to TCDLA, and have reaped the countless benefits of this extraordinary organization.  And if there’s one thing I’ve learned it’s that we gain tremendous rewards when we simply choose to serve TCDLA and its members.

With infinite gratitude, Heather Barbieri

Why TCDLA is Important to Me

Amanda Hernandez

Being involved with TCDLA is by far one of my favorite parts of practicing criminal defense. I continue to learn so much from attending and speaking at seminars and have met friends and mentors that I will never forget. One of my favorite TCDLA memories so far was watching Dick DeGuerin speak at Rusty Duncan in 2016 regarding the Robert Durst case and why we do what we do. Hearing him talk about winning a “losing” case was inspiring and something I always try to remember when I face a challenging case. Attending Trial College and Round Top were also some of my favorite TCDLA experiences that helped me grow as a lawyer and as a person. Recently being selected as an associate editor for the VOICE was also very exciting! The VOICE has always made me feel connected with my colleagues all over the state and I am grateful to have the opportunity to contribute to something so valuable to our membership. I’ll always be grateful to TCDLA and can’t wait to make even more memories through the organization.

TCDLA Teaches You to Win!

Tip Hargrove

Do we actually learn anything at TCDLA seminars that can really help us?

Damn straight we do.

Years ago, as a somewhat experienced lawyer who still needed help, I was appointed on a case involving the death of an infant. The DA had a reputation for ignoring the rules, and the rural Judge tended to let him get away with it. Not long before I was appointed, I had attended a TCDLA seminar. One of the boring looking topics was something to the effect of how to use Pre-Trial Motions to our advantage. The speaker kept emphasizing “get a ruling, get a ruling. Without a ruling your motion is worthless”.

Co-counsel and I filed all the usual motions and, just as the speaker suggested, we included with every filing an order granting the motion. When each motion specifically requesting Discovery was ruled upon, we always requested a ruling and a signed copy of the order.

Trial rolls around a year later. Over and over the DA would offer an exhibit, we would rise, pull out the specific order related to the exhibit and say “Judge on X date you signed an order saying the DA had to provide us that evidence. The exhibit just offered was not provided.” “Objection sustained” again and again.

Finally, at a dramatic moment, the DA was about certain photos that were very damaging to our defense as they documented supposed bruises. I stood, order in hand. Before I could even open my mouth, the DA slammed the photos on the table, yelled “Never Mind!” and sat down in a huff. (Yes, by then the jury was snickering.) After five days in court and two hours of deliberations, the sweet words of NOT GUILTY were read. NOT GUILTY thanks to TCDLA!

Tip Hargrove San Angelo lead counsel, Tom Davidson San Angelo co-counsel.

Grateful

Nicole DeBorde Hochglaube

TCDLA is such a gift!  I have been grateful over the years for the many friendships I have made with some of the most amazing lawyers and human beings on the planet. Wherever your case may take you, there is a TCDLA staff member who can help and a member at the ready, to support you and your client. Whether you need someone to lend them their ear about a case, the practice, a great day or a bad one, you will find one in this amazing group. I have been so fortunate to have had the opportunity to see TCDLA’s Strike Force in action up close.  At a moment’s notice, when a lawyer finds herself in the cross hairs of a court’s ire for zealous advocacy as necessitated by the defense function, the most talented lawyers in the area drop everything to appear on that lawyer’s behalf.  Our members from across the state always stand at the ready without hesitation to offer their substantial knowledge and talent, even when they do not have an abundance to time to spare.  We have had the busiest lawyers take our Strike Force calls for help from the hallway during trial and from the airport between gates.  What an extraordinary thing. I cannot imagine a more wonderful group to have by my side through thick and thin – and the war stories we get to hear along the way are the cherry on top! Thank you for your wisdom and friendship!

Inspiring

Laurie Key

TCDLA, her staff and members, have inspired me both personally and professionally. My first experience with TCDLA was at the 2003 Rusty Duncan Seminar. Bill Wischkaemper, my mentor and “boss”, invited me to the ‘big-wig’ dinner in the wine cellar at Paesano’s. I sat at a table with the Who’s Who of TCDLA. I was inspired. Inspired by their presence. Inspired by their stories. Inspired to break through that (plexi)glass ceiling of mostly all male leadership. I learned one valuable lesson that night: good wine is expensive.

Throughout the last 18 years, I have been inspired by the women of TCDLA. Prior to my joining, TCDLA had exactly 1 female president. We have had 3 since and have 2 more women on the current officer chain. What an absolute inspiration all of these women have been to me, and I have to believe they have inspired countless others. #mytribe

TCLDA staff. Wow! Year after year, these guys pull off the unimaginable. Their support of each of us inspires me to greater heights each and every day.

Cheers to you, TCDLA, and the next 50 years of inspiring others to be their best!

Fifty by Fifty

Kameron Johnson

News story. Deputy shoots unarmed woman several times in the street. My first thoughts were here we go again another unarmed African American shot by police. Despite the recent and ongoing social unrest regarding police misconduct I continued to think that police reform has been more of a current trend instead of an era of systemic change.  Has the movement been more entertainment or true reform?  Then the story gave a name of the woman shot.

Twenty-five years ago, I was a young public defender with the Travis County Juvenile Public Defender.  Our office was small but had been in existence for twenty-five years when we got the call that the Travis County District Attorney was prosecuting an eleven year old child for Capital Murder. Although the Juvenile Public Defender was established in 1971 as the first public defender office in the country dedicated solely to the representation of youth the office was understaffed and underfunded. Indigent defense in Texas was experiencing the same problems as the rest of the country in that it was woefully underfunded. Going against the vast resources of the State of Texas the case was tried in a community that was polarized and divided on the issue of juvenile justice. During the mid and late 1990s terms such as “super predators” “crack babies” and “if they do adult crimes, they should get adult time” persisted. The case of L. M. was no different. The elected District Attorney was quoted in the major Austin newspaper as calling an 11 year old child a “monster” and was committed to “prosecuting her to the fullest extent.”

Twenty-five years ago, I did not have time to stop and think that I was trying a case that would arguably be one of the biggest cases in Texas history. I did not know then that this case would have  coverage in the national and international media as well as have several documentaries made. What I did know was that I had an innocent child who needed help.

During the middle of the trial I was held in contempt of court.  While I was preparing for another fight with the judge two attorneys who I had never met came running into the courtroom sweating and without introducing themselves just said “what happened.?”  Next both just put their hands on my shoulder and said, “we got this.” Those two attorneys were from the TCDLA Strike Force.  At the time I did not know or had even heard of TCDLA.  After about one hour they both emerged from the judge’s chambers smiling and joking with the judge. I do not know what happened or what was said but I had my contempt hearing vacated and continued the trial.  The Juvenile Public Defender received an acquittal on all the murder charges during that trial and after a three-year battle which included making new law which would have an effect on both juvenile and indigent defense cases alike, all charges against that child were dismissed.

I joined TCDLA after my experience with that Capital Murder trial and have been a member ever since. This year marks my twenty-fifth year with the Juvenile Public Defender. We are celebrating our fifty year anniversary as an office along with TCDLA’s fifty year anniversary. Happy 50th birthday Juvenile Public Defender and TCDLA. Fifty years of seeking justice!

TCDLA: More than a Mere Membership

Susan Kelly

It was a dark and stormy night. Well, maybe not stormy, but definitely dark when I was sitting in my car in the parking lot of Bed, Bath & Beyond, answering a call from someone named Lydia Clay-Jackson.

“What can I do for you?”

“I am TCDLA Vice President and want you to serve on the nominating committee for next year’s board of directors.”

“Me? Seriously?”

It was 2011. I had been a TCDLA dues-paying member since 1998 when I quit life as a prosecutor and hung out the proverbial shingle. I loved being a lawyer, and I especially loved being a criminal defense lawyer.  But truthfully, I had not benefitted from, nor seriously been involved with TCDLA until Lydia’s call. I remember the meeting was set on a cold December Saturday at the Crowne Plaza Hotel in downtown Houston. This meeting occurred right in the middle of a knock-down, drag-out, 18-count Aggravated Sexual Assault jury trial that I was battling alongside my husband and co-counsel back in Waco.  The jury deliberations recessed that Friday and were to resume on Monday. Having to drive to Houston at the crack of dawn, I did not immediately read the article in the Waco newspaper describing our agonizing trial. When I finally arrived, I remember looking around the large meeting room at all these strange, intimidating faces and feeling incompetent to play a significant role in determining the leadership of this prestigious organization. But soon, the uneasiness settled, and I found those around me to be warm, smart, funny, and genuine.

After that one December meeting, I became immersed in the TCDLA machine: serving on committees, speaking at events, teaching at trial college, becoming a board member, dodging writing VOICE articles, and enjoying a camaraderie with true friends who were struggling with the same professional issues as I was…and some of the same types of personal issues as well.  I cannot begin to name drop all my TCDLA family members who have been there for me… from answering courtroom life-line calls, to saving me from the sea after a rogue wave devoured and then spewed out my law partnership and marriage into a zillion pieces. And after that, when I would sink back into the abyss, those same people were there, reeling me back, pushing me on, reminding me of my worth as a lawyer-and as a human being. All of this helped to restore my confidence in taking my name back, rebuilding my practice, and zealously serving my clients with pride. I could go on and on, but I am way outside my word limit.  If you want to know more about my specific TCDLA experiences after Lydia’s phone call, this story is to be continued. Such adventures to share!! So, for now, all I can say is, if you get the call to step up to more than mere membership, you might consider not only the impact you could have on others, but the impact it could have on you.

On January 1 of this year, Governor Abbott appointed Susan to serve as the 54th District Judge in McLennan County which exclusively handles criminal cases.

50 Years of Past Presidents

Hon. Frank Maloney 1971-1972
C. Anthony Friloux, Jr. * 1972-1973
Phil Burleson* 1973-1974
George E. Gilkerson* 1974-1975

C. David Evans* 1975-1976
Weldon Holcomb* 1976-1977
Emmett Colvin* 1977-1978
George F. Luquette* 1978-1979

Vincent Perini, President 1979-1980

“This Is a War Story and Homage to Emmett Colvin, One of Dallas’s Great Criminal Defense Lawyers and Seventh President of TCDLA”

In the first decade after the Death Penalty was re-established in Texas in the 1970s, I was appointed (with David Loving), to represent Howie Ray Robinson, a young 22-year-old black man with no significant criminal history, who had been looking for trouble one summer night and found it in a South Dallas bar in the person of an experienced old criminal from out-of-state who offered him, and another sucker, Ernest Benjamin Smith, a chance to make some quick money. The author of this enterprise had a substantial criminal history. He had a car and pistols and proposed that the three of them stick up a convenience store – in this case, a Schepp’s Dairy, where the night clerk, also marked by fate, was an ex-con with a pistol under the counter.

Their fearless leader drove to the convenience store, gave Howie Ray and Smith each a pistol and sent them in –- alone — to rob the store at gunpoint. The tough old clerk behind the counter reached for his gun. Smith tried shooting but said his gun jammed and he yelled, “Shoot him, Howie!” Howie complied. They cleaned out the cash register and fled out to their waiting sponsor in his car with the engine running. The old clerk died.

The older criminal, who had planned the fateful episode, was arrested in his car in possession of the two pistols. His prior criminal experience served him well. He cut a deal with Dallas Chief Assistant District Attorney, Doug Mulder, for identifying and testifying against the two hapless recruits whom he had directed and armed. Mulder offered him a sweet reward for his cooperation, but as a condition, insisted that he pass a polygraph test.

At trial, the older man testified against Robinson, as he had already against Robinson’s accomplice, Smith (who had been convicted and sentenced to death). On cross-examination, the very favorable plea bargain between the witness and the First assistant DA was admissible to impeach the witness, who had everything to gain by performing well for his sponsor. But the assistant D.A., in turn, insisted he be permitted to offer evidence in rebuttal that the witness had “passed” a polygraph test. The judge, Richard Mays, who would become one of Dallas County’s great criminal district judges, at that time was very new to the job. Although refusing my objection to the admissibility of the polygraph, he made it clear how much he hoped I would not cross-examine the witness on that point.

I had been in trials for almost ten years, but never in a capital case. I was tormented that the polygraph testimony would foreordain a guilty verdict. So that night, I needed a mentor. And I was a member of the nation’s very first state association of criminal defense lawyers. I sought help from one of its leaders, Emmett Colvin, whom I called at home.  Emmett did not hesitate: “Damn the torpedoes; full speed ahead!”

The next day the clever old crook testified. I impeached him with his very favorable plea bargain, and the judge admitted evidence of the polygraph test. Robinson was convicted and sentenced to death.

Epilogue: Robinson’s conviction was reversed on appeal because of the polygraph. (The Co-Defendant Smith’s conviction was reversed by the U.S. Supreme Court because of the testimony of “Dr. Death” – Dr. James Grigson.) Robinson was tried again –- twice –- ably represented by Ed Gray. Neither conviction stuck. The State agreed to a plea bargain. In those days before Life Without Parole or “3G” offenses, Robinson soon paroled. One day as he assumed his bench, the Hon. Richard Mays gazed out at the expectant faces before him in the courtroom. In the back, standing, one looked familiar. “Howie?” It was Robinson, come to pay his respects to the man who had sentenced him to death three times.

Robert Jones 1980-1981
Charles M. McDonald* 1981-1982
Clifford W. Brown* 1982-1983
Thomas Gilbert Sharpe Jr. * 1983-1984
Clifton “Scrappy” Holmes* 1984-1985
Louis Dugas Jr.* 1985-1986

Knox Jones 1986-1987
Charles D. Butts* 1987-1988
Edward Mallett, 1988-1989
James Bobo, 1989-1990
Tim Evans, 1990-1991

Richard Anderson, President 1991-1992

As a puppy lawyer I remember in 1974 V Perini dragging me to join this new organization, TCDLA.  The next year he coerced me in to writing the Ethics outline for the first SBOT Advanced Criminal Law Course for Phil Burleson’s speech.  Both opened doors for which I will be forever indebted.

I remember lean years when the hat was passed at Board meetings to keep the organization financially going.  I remember recruiting new members by going to their office with Tim Evans and Rusty Duncan to get them to sign up. It was always easier to get them to write a check when Jim Bobo went along and blocked any avenue of escape. I remember marveling at Board meetings of the eloquence of a young Gerry Goldstein.

I remember the strategic work by Scrappy Holmes and Frank Maloney to wrestle away the responsibility of educating the criminal defense bar from the SBOT and placing it in the hands of CDLP, ensuring quality CLE for years to come.

I remember attending as a student, rooming with Chuck Miller, the first Huntsville Trial Advocacy course.

I remember, perhaps as not distinctly, the President’s Parties at the Saint Anthony Hotel with the TCDLA Advanced Criminal Law Course ( now Rusty Duncan ), dancing the night away to Rotel and the Hot Tomatoes, then 50 of us showing up a Mi Tierras at 1:30 in the morning for breakfast margaritas. Unfortunately, I don’t remember much from those annual meetings that very same morning.

Mostly I remember how my affiliation with TCDLA, the organization and its members, shaped my legal career and forged lasting friendships.

Gerald Goldstein 1992-1993
David Bires 1993-1994
Ronald Goranson 1994-1995

Bill Wischkaemper, President 1995-1996

One of the best war stories occurred when I was serving on the TCDLA Strike Force. One of our fellow attorneys was subpoenaed to the Grand Jury to produce some photos that allegedly were taken in the Jones County Jail. It seems that some of the prisoners had become friendly with the jailers, and the jailers would let the prisoners out to party from time to time. There was a festive party on New Year’s Eve which possibly involved alcohol, women and marijuana. My client asserted her attorney-client privilege and refused to produce the photos, if there were any. She was held in contempt of court, which was ultimately dismissed. It seems that Anson at one time had an ordinance against dancing which was voided by the ACLU. Texas Monthly had in their Bum Steer Awards the following: There ain’t no dancin’ in Anson, but there’s tail in the jail.

I’ve always been honored to be on the Strike Force as many years ago I had to use their services. My client’s airplane crashed with some illegal substances on board. He called the person he had loaned the plane to and (unfortunately) used his phone credit card to make the phone call. I later got a subpoena for the Federal Grand Jury in Albuquerque to discuss the conversation I had with the person who had borrowed the plane. The Strike Force came to my aid, and the subpoena was quashed and I did not have to testify.

TCDLA has had a major impact on my professional career. My best friends are fellow members. This camaraderie has had a monumental effect on both my professional and personal lives, and I am truly grateful for it.

David Botsford 1996-1997
E. G. Morris 1997-1998
Kent Schaffer  1998-1999

 Michael Heiskell, President 1999-2000

“Reflections on My TCDLA Membership”

My introduction to TCDLA came courtesy of the legendary Tim Evans in 1983 as he was one of the defense counsel in a fraud case I was prosecuting  in U.S. District Judge Robert Porter’s court in Dallas. At the time I was seriously planning to leave my post as an Assistant United States Attorney to enter private practice with two other civil AUSA’s and set up shop in Fort Worth. Tim extolled the virtues of Fort Worth, and being a member of TCDLA, in his usual convincing style. How right he was! It was one of my very best moves, professionally and personally. He also proved it by skillfully walking his client out of the federal courthouse with a “Not Guilty” label on his forehead.

Tim’s guidance on this did not end with simple words during the course of  that trial.  He backed it  up by not only his introductions of me to the Tarrant County crowd of defense lawyers, prosecutors and judges, but  he made sure that I got my application in and encouraged me to sign up for  the  seminars and to  attend the meetings of the  Association.  As a result, I ingratiated myself with TCDLA members and leadership so that I could squeeze every benefit offered and plagiarize every tidbit of trial skill that I could to improve my practice. Along the way, dear, long lasting friendships developed that I continue to cherish. The CLE seminar trips were greatly anticipated and the resulting “Happy Hour” discourse was incomparable-as was the  downing of the “refreshments”. Eventually, I was convinced to  make an effort to  get on the  “officer chain” in order to  work my way up as President  of  this well respected, august body.  I did so with the support of  my dear friends  and colleagues, and ended up wielding the presidential gavel in 1999.  It  was the  turn of the century and I was the  first African American to  hold that gavel. I gleefully accepted the challenge and discharged my duties to the best of my abilities. Since those heady times, I continue to stay as active as I can because my love for this Association will never abate. Not only has my practice thrived as a result, but I became a better person due to  the  authentic and generous relationships that developed with my many TCDLA friends. Long live TCDLA!

Robert Hinton 2000-2001

Betty Blackwell, President 2001-2002

TCDLA was incredibly welcoming 41 years ago when I was licensed to practice law.  Three years earlier, I had been told by none other than Roy Minton that I shouldn’t go to law school because no one was going to hire a woman lawyer.  He was not being unkind, only truly concerned for my future as he was a dear friend of my family even before I was born.  When I decided to open my own office in Austin, TCDLA came in person and asked me to join.  Then shortly after that they asked me to join the board of directors. At my first meeting Weldon Holcomb directed me to a room full of ladies, saying that the Friends of TCDLA were meeting next door.  I soon realized that he didn’t know I was an attorney or that I was on the board.  Much to his embarrassment, Scrappy Holmes and I corrected him. Weldon always made a point of enthusiastically greeting me at each board meeting after that. 

Scrappy decided that if anything was happening in Austin, I need to go as the TCDLA representative.  This opened a huge number of doors for me to see the inner workings of the Legislature, the Governor’s office, the State Bar of Texas and the Court of Criminal Appeals.

In the last 50 years, TCDLA has had made a tremendous impact on the criminal justice system in Texas and my life.

Mark Daniel, President 2002-2003

TCDLA is more than merely an organization. It is a living breathing organism. TCDLA is unquestionably the strongest and most passionate criminal defense association in America.

I joined TCDLA in 1985. I look back over the years and marvel at how my career and my practice have been enriched. I am truly a TCDLA beneficiary.

I have had the privilege of traveling to every corner of this wonderful state and meeting criminal defense lawyers I would have never known but for TCDLA. I have  had the undeniable privilege of trying cases with great lawyers I would have never known but for TCDLA.

I have attended what is  far and away the finest criminal law CLE programs in America. I have learned from others. I have come to understand that seasoned and experienced criminal defense lawyers are the most generous people on earth with the next generation. All a younger member has to do is simply ask. I have stolen ideas from other members of TCDLA and incorporated them into my practice and cases.

I have watched while TCDLA leadership battled valiantly against overreaching legislation, something no individual practitioner could ever hope to  do on their own .I have watched while TCDLA lawyers sprint to stand beside a member who has stumbled into the wrath of an oppressive judge. I have always enjoyed the concept that the individual criminal defense practitioner enjoys the never ending support of this organization and its 3,000+ members.  Because of TCDLA, an individual criminal defense practitioner never stands alone or practices by himself.

Finally, I have been privileged to have the opportunity to give back to the upcoming generation and share with them the lessons I have learned from my experiences. It is an honor to try and make things a little better for those that follow. There is no greater privilege and TCDLA provides the ideal forum.

That is what TCDLA is to me. I am truly blessed.

Cynthia Orr, President 2003-2004

There are many cases past and present that are important to all of us. Each case presents an opportunity to improve the state and federal criminal justice processes. Here are a few folks might recall. Representing Michael Morton resulted in relevance- based discovery in Texas.  Michael taught us about his irrepressible human spirit. He served 24 years and 7 months for a crime he did not commit; yet when he was released, he saw through significant reform in our justice system. He cared about consequences for wrongly hidden exculpatory information.  And so, he also saw through the prosecution and incarceration of the prosecutor who hid that evidence in his case. Hannah Overton also decided to provide service to those who are subject wrongful imprisonment.  After her exoneration, she worked to provide a reentry home for women to reintegrate into society and has even established a re-entry home for women in Mexico who are deported after their release. She continues to advocate for humane conditions in women’s prisons and provides faith-based services to incarcerated women.  In the Cameron Todd Willingham case, Texas executed an innocent man. We continue to fight for the restoration of his good name for his family. I hope the knowledge that our system is imperfect and often is shamefully inadequate will lead us to conclude that we must abolish death as a penalty in Texas. Our imperfect criminal justice system should not meet out irremediable punishment. All of the cases where we continue to strive for exoneration of the innocent and for fair and just results for those accused of crime improve justice and ensure that the Texas and US Constitutions remain living and meaningful. TCDLA promotes these ideals and provides places where we can gather, hone our skills, and stand with each other in the effort.

Daniel Hurley, President 2004-2005

“The Ralph Erdman Debacle”

In 1992, a Lubbock Police Detective, Bill Hubbard, hired me to represent him in an indictment for Falsifying Government Documents.  A very long story condensed, Hubbard had pissed off two West Texas District Attorneys for criticizing “their” medical examiner, Ralph Erdman, who they controlled hook, line and sinker.

Hubbard and partner, officer Pat Kelly, testified in a capital murder hearing in Amarillo, after being subpoenaed by famous Atlanta Capital defender Millard Farmer, that Erdman was a fraud and a cheat and should not be trusted.  Farmer was indicted in Randall county by DA Randy Sherrod for witness tampering and Hubbard and Kelly were indicted in Lubbock by DA Travis Ware for false documents.

Bill Wischkaemper suggested I let Gerry Goldstein take over Hubbard’s case.  I was hurt (it was my career case) but soon came to realize that Goldstein could probably do the job.  They allowed me to come along and carry a briefcase for them.  Captain Goldstein put together a team that included Racehorse Haynes, Cynthia Orr, Chicago Lawyer, Jed  Stone, and the wealthiest law firm in the world, Skadden Arps, for the 1983 Civil rights side.

Judge Mary Lou Robinson summoned us to Amarillo to tell us she would give us a few hours to present our suit to enjoin the prosecution of the aforementioned accused.  An injunction to stop criminal prosecution had been granted two previous times in the U.S. prior to our case.  Captain Goldstein and his team said no problem, we got this, “Hold my beer.”

We began the hearing in an Amarillo winter blizzard that would make Eskimos shiver.  Our two-hour hearing lasted four days.  About one month later Judge Robinson found that the plaintiffs had presented “substantial evidence” that the two DAs had unlawfully and unconstitutionally charged Farmer, Hubbard, and Kelly for exercising 1st Amendment rights and Farmer for exercising his 5th and 6th Amendment duties.

We settled the civil rights claims after all criminal charges were dropped for about $300,000.00.

It’s hard for me to believe that it has been 40 years since I first got to hold Gerry Goldstein’s briefcase.  I will cherish that memory to my grave.

Randy Wilson, President 2005-2006

After over 50 years of combat in the trenches defending the “citizen accused”, I can state without reservation that TCDLA and TCDLEI have been the major contributors to my career. As a Past President and former Chair of TCDLEI, and member of the faculty of the Tim Evans Criminal Trial College for over 28 years, I have had the privilege of meeting, working with, and for not only the “big names” in criminal defense, but also watching the young lawyers grow into competent and devoted criminal defense attorneys.  I have been fortunate to contribute in a small way by my involvement with the two organizations. The young attorneys now are our hope for the future.  We should advise, mentor, and assist them as well encourage them to become more involved with our two organizations.  We should encourage non members to join.  I feel privileged to have been not only an officer but also a member of  TCDLA and TCDLEI and to thank those that have supported me through the years with their advice and counsel.  I composed the following many years ago and thought it might be appropriate to share with our members.

The Advocate

With head held high
Armed with wit and knowledge
He attempts to aid
His fellow man.
With little appreciation
From his peers
He continues his battle
Against intolerance
Injustice, and the unscrupulous
He often sacrifices his own
Goals and desires
To protect his client from such.
His beleaguered figure
Oft marred from previous battles,
Nonetheless, ever-striving to
Protect his client
From the injustices set against
His clients.
His weapons,
The word, his wit and preparation
Always armed,
Ever ready,
For the defense of the citizen accused.

-Randy Wilson

Robert Lerma, President 2006-2007

Craig Jett, President 2007-2008

“The Banditos Defense Team”

In 1983 the Banditos Motorcycle Club and the Banshees Motorcycle Club were rival motorcycle clubs in Texas. The Banditos were considered a “national” motorcycle club with chapters in many parts of the United States, including Texas. The Banshees were considered a regional club with chapters in Texas, Oklahoma and Louisiana.1

On April 30, 1983, members of both clubs attended drag races at a track in Porter, outside of Houston. An altercation between members of the clubs occurred resulting in several Banditos being shot, and one killed. On July 5, 1983, explosive devices were set off at the residences of two members of the Banshees in the Dallas area. Fortunately, no one was seriously hurt. Almost five years later, on March 31, 1988, a federal grand jury returned an indictment charging twenty-three members of the Banditos with conspiracy to make explosive devices that were to be used to retaliate against members of the Banshees. Some of the accused were national officers of the Banditos and others were members of the Texas chapter. The accused Banditos had nick-names like Stepmother, Stubbs, Frio, Sarge, King Crabs, Sir Spanky, Dirty Ed, Crash, Kawasaki John and Pee Wee. The defendants hired or had appointed defense lawyers from Lubbock, Ft. Worth, Dallas, Longview, Tyler and Houston. Some of the lawyers received Harley-Davidson motorcycles for their fees. The defense team included TCDLA presidents-to- be Tim Evans, Bob Hinton, Kent Schaffer, Ron Goranson, Bill Wischkaemper, Richard Anderson, Mark Daniels and Craig Jett; future TCDLA Hall of Fame member George Milner II; future Dallas Bar President Barry Sorrells; and future United States District Judge John Hannah.

On November 7, 1988 the case was called to trial before the Hon. Jerry Buchmeyer, who was well known for his sense of humor. A task force of federal and state law-enforcement had gathered evidence based on information provided by cooperating former Banditos. Many of the defendants were arrested wearing their “colors”, which ended up hanging in the office of the prosecutor. Eight defendants plead guilty prior to trial. Two of those agreed to testify for the government. At trial half of the courtroom was packed with fifteen Bandito defendants and their fifteen lawyers. The cross-examination of one of one of the cooperating Bandito witnesses included a graphic description of his killing of a man in a bar. During cross- examination of a Banshee witness, Kent Schaffer produced a very large photograph of the Banshee that was taken during the altercation at the race track, with his arm extended and something metallic in his hand, which he agreed was not a “Coors Lite can.” It appeared that Kent had solved the murder of the deceased Bandito. At the conclusion of the cross-examination, all of the Banditos gathered around Kent to congratulate him. Kent suggested that his performance might qualify him for membership in the Banditos. The Banditos hesitated, and then explained to Kent that membership in the Banditos required doing something sexual in front of the members. Kent responded, “I just butt—-ed a Banshee, isn’t that good enough?” It wasn’t.

After three and a half weeks of trial the government rested. The defendants made a Rule 29 motion for an instructed verdict contending that the government had not proved that the defendants had the deliberate, knowing and specific intent to join the conspiracy and accomplice its purpose. Rather than suffering an instructed verdict, the government filed a motion to dismiss the indictment, with prejudice, as to six defendants. The motion was granted. Two of the defendants were acquitted by the jury. The remaining seven defendants were convicted. One of those defendants was allowed to stay out of jail on bond during his appeal because the judge knew there was Bruton error, which required, and resulted in, reversal of that conviction. He was not retried.

One of the Banditos, DJ, was a skilled illustrator, and made drawings throughout the trial. Judge Buchmeyer noticed and took an interest in the drawings. The judge was later presented with copies of the illustrations. There was also a t- shirt for the Banditos Defense Team, designed by Sue Benner (wife of this author), a photo of which accompanies this article. We heard later that one of Judge Buchmeyer’s law clerks rode a motorcycle into a restaurant where the judge was having breakfast.

The Banditos trial was a great experience for the defense lawyers, young and not so young. We learned how to cooperate, and the value of cooperation among defense lawyers and defendants. We learned to appreciate and learn from our co- counsel. We learned how to look after the interests of our client and at the same time, not to harm other defendants, which benefitted all of the defendants. We started, or cemented, long personal and professional relationships that we value to this day. The  spirit of what we learned started with TCDLA, and I believe continues as TCDLA continues.

H.F. Rick Hagen, President 2008-2009

When I first started practicing criminal law, over thirty years ago, there was virtually no discovery.  Prosecutors could operate with a closed file.  What I called “bedtime story discovery” was common.  The prosecutor could read you the file, or a portion of it, but was not required to give you a copy.  Defense lawyers did not get police reports or witness statements until the trial started, after the witness testified, with the jury watching.

The most significant change in criminal law the last fifty years is the Michael Morton Act.  During my term as TCDLA President in 2009, I was a strong advocate for discovery reform.  At that time, I advocated for reciprocal discovery.  I honestly believed we would never be allowed access to the prosecution’s file without giving something up ourselves.  The leadership of TCDLA after my tenure proved I was wrong.

Another significant change is how society views law enforcement.  Not too long ago a significant percentage of the population would blindly accept that law enforcement could do no wrong.  Eyebrows were raised when wrongful convictions were occasional.  The eyes of society are wide open now that wrongful convictions are common.

Law enforcement abuses seem to make headlines on a weekly basis.  Our law enforcement officers must be better trained, especially in how to deal with a person in a mental health crisis, and regarding the use of force.  TCDLA must continue to advocate for the protection of individual freedom and reform. 

I have been fortunate during my career and enjoyed my fair share of acquittals and favorable punishment outcomes.   I will never forget Rusty Duncan telling me that if I wanted to have any kind of success practicing criminal law that I had to join TCDLA.  Growing up my heroes were cowboys.  Today, my heroes are members of TCDLA.

Stanley Schneider, President 2009-2010

“Racehorse Haynes and the Levenworth Art Colony”

In 1980, after the Cullen Davis trials, Richard “Racehorse” Haynes was the most famous lawyer in America. Imagine my excitement when he invited me to work on a federal bank robbery case in Spokane, Washington representing Bubba because Bubba wanted me to be Haynes’ “go-fer”. I will never forget my first meeting with Bubba and Haynes. As I was ushered into Haynes office, Bubba proudly pointed to a painting on the wall and telling me that he painted it while in prison for a bank burglary when Haynes had first been his lawyer. Little did I realize the significance of that painting. Bubba surrendered to authorities and was promptly released from custody as Haynes argued to a federal magistrate that Bubba was not a robber but a burglar. I traveled to Spokane to meet the prosecutor and began our investigation. We learned that a guy named Joe, after a grant of immunity, told law enforcement that Bubba and a guy named Sunny flew to the Northwest where they stole cars and robbed the three banks in three different cities. After the robberies, they would hike into the surrounding mountain wildernesses to hide. According to Joe, after a few days, he would pick them up and drive them to an airport for their return to Houston. The story seems feasible because Joe, Sunny and Bubba spent a number of years together in a federal prison. An FBI agent called the three men members of the Levenworth Art Colony because of their hobby in prison.

When he heard the details of the informant’s deal, Haynes proclaimed Bubba’s innocence because of Bubba’s health would have prevented him from hiding in the woods. Haynes instructed Bubba to search his personal and business

records for evidence that he was in Houston when the robberies occurred. Bubba presented us with witnesses and documents proving that on the day of Spokane robbery, he had moved his mother by ambulance from a nursing home in Galveston to a nursing home in Deer Park. There were documents relating to his movements in Houston for the dates of the other robberies. Except for being in jail, Haynes could not have been presented with more perfect alibi defenses. We filed the required notice of alibi which listed the identity of our witnesses and presented the supporting documentation. The witnesses were quickly interviewed by the FBI. A couple of weeks later, the prosecutor called. He said that the judge wanted to know if video depositions were taken of the alibi witnesses, could we try the case the three days before Thanksgiving. I remember laughing and saying something like: Haynes is going to cross each of your three snitches for three days a piece and the trial is going to last three weeks. The call quickly ended. The following week I was notified that the charges were dismissed. The dismissals seemed hollow because I wanted to try the case with Haynes. And, I also thought there were facts missing from the story… Little did I know. Years later, I learned the backstory. The members of the Levenworth Art Colony had carefully crafted a scheme involving four men not three. The success of their plan depended on three things:

  1. Bubba’s relationship with Haynes;
  2. Bubba’s iron clad alibis; and
  3. Racehorse Haynes was the greatest trial lawyer in America.

The four men knew that if successful, no one would be convicted. And the plan worked.

William Harris, President 2010-2011

The True Meaning of TCDLA”

We were asked to write of an example of the meaningful moments of out TCDLA experience. I do not think so much of what has been contributed to my skills as an attorney, although much has, but rather of the friendship and the feel of family that comes from actively belonging to this great organization.

In January of 2019, my wife, Ann Abbe, suffered a massive stroke. In June she was in a long-term acute care hospital in Fort Worth. She seemed stable so I traveled down to San Antonio for the Rusty Duncan.  My first day was interrupted by a call from the hospital that she had been moved back to intensive care. I rushed back and it was obvious that she was failing.  Two days later she died surrounded by family.

The service was on Thursday of the following week.  At the visitation on Wednesday evening, I arrived to be greeted by four of my friends from Lubbock, who had driven straight through to attend the visitation that evening. At 8:00 p.m. they climbed back in the car and drove back to Lubbock. There were many others from my TCDLA family who attended that evening or who were present for the funeral the next day. However, I single these out because they came the farthest to support me. I cannot express how much I appreciate the support of all of my TCDLA family.

We do a lot to educate lawyers, support them when they are unfairly attacked, and try to influence the powers that be in ways that promote the welfare of our clients.  We are not the most popular of lawyers and the law is not the most popular of professions. But like a good family, despite some disputes, we support each other.  That, I believe, is TCDLA’S greatest contribution to our members.

 

Gary Trichter, President 2011-2012

“Reflections as a Cowboy Lawyer”

As I reflect upon TCDLA’s 50th Anniversary, I also reflect both upon my own 41 years in the practice of criminal defense law and my approximately 50 years in the criminal justice system.  There have been many changes in that system since I have been involved in it, some good & some bad, and for the most part, I have witnessed that TCDLA’s involvement has brought about many good changes.  However, just like in our government, where we need to be forever vigilant in protecting constitutional rights, we must also be forever vigilant in protecting both the primary mission, defending the accused, and in protecting the membership of our organization.  In particular, I see the greatest danger to TCDLA as not being from some outside threat, but rather, from an inside threat!  That threat has already raised its evil head in our organization and has firmly planted its roots within.  In many ways, I think a great number of our membership have forgotten that the ultimate purpose of a defense lawyer is not just to win cases, but rather, to see that both constitutional rights and that the spirit of the law are protected.   In my view, our criminal justice system is also under attack, and it too, needs to be protected.  If the criminal justice system fails, then we fail with it.  Our law cannot have a blind eye that protects and/or shields certain favored persons from prosecution.  If we, as a country, lose our respect and belief in our justice system, then we are on the road to destruction.  We as lawyers have to inspire non-lawyers that the rule of law is important and that it needs to be respected.  To this end, I see that the “cancel culture” has become embedded in our organization.  It is also my observation that there is a movement that very openly attacks lawyers who dare to take an opposite view of political circumstances.   Here, the danger is that such a culture chills open and needed debate.  We must always have patience and an open mind to consider dissent.  Typically, I see and hear this where political movements are championed by past & present leaders within this organization and dissenters and minority voices are belittled. Our dissenters must always be treated with dignity, due process, and regard.

WE, as Champions of Liberty, must never become like those who say, “do as I say and not as I do”.  Each of our members deserve to have a free and open forum for open debate.  We owe that to each other!  That debate, however, needs to be focused and limited on our missions as defense lawyers.  Unless that happens, we will cease to be Protectors of Liberty, and sadly, we will become robbers of it. 

On another note, in order to protect the ultimate mission of our organization, we must continue to recognize that there is strength in numbers.  It is only by being united in purpose that we can have a voice that will be heard!   Here, so that our combined voices do not become muffled, we must limit our outcry to those causes that advance our system of justice and protect the role of the criminal defense lawyer.  This brings me to my final thought on TCDLA’s secondary mission, and that is to continually upgrade the skills, knowledge, and advocacy of each defense lawyer.  To that end, TDCLA has been incredibly successful in its mission to be a teaching organization.  Through its teaching, mentorship, and inspirational leadership, TCDLA has not only done much to protect the rights of so many individual defendants, but more importantly, it has proven that by protecting a single individual, that we can protect everyone else. That is what we teach and that is how we should live!  It is that mindset and practice that allows us to protect our family, our friends, our neighbors, and both the guilty and the innocent from tyranny.  To that end, it has been one of the greatest honors of my life to be member of this organization and to have played, and to continue to play, a part of TCDLA’s teaching legacy and continuing mission of protecting inalienable rights.

 

Lydia Clay-Jackson, President 2012-2013

“Remembrances”

It was May nineteen hundred and eighty-five, I was in the UT arena along with other new “gold card” members, to be officially sworn in as members of the State Bar of Texas. The only thing I remember about the event is what happened as I was leaving the arena. In that long ago time, when face to face conversation was the rule and not the exception, and when a law degree could be earned at four dollars a credit hour, the State Bar invited all bar sections and state-wide bar organizations to have a booth at the formal swearing in ceremonies.

It was a bright and sunny day, and not a dark and stormy night, I passed by a booth with a tall grey haired man and short grey haired lady. Let’s call them John and Lillian. Lillian called me over and my career as a criminal defense lawyer was started. John spoke with me about the greatest thing in criminal justice – TCDLA. He said it was an organization of criminal defense lawyers who were working daily to make a difference in the lives of those who had been charged with a criminal offense. If I wanted to make a difference, he said, in criminal law then I had to join TCDLA. Lillian’s pitch was a bit more down to earth for a new lawyer, she said TCDLA had scholarships that would pay the tuition and travel to TCDLA seminars. It was the personal touch of John and Lillian that made me signed up on the spot and have not looked back.

I received scholarships and attended the seminars and started to stay over for the TCDLA board meetings. I got hooked and started to recruit other new lawyers. Undoubtedly the only TCDLA bill-board larger than mine was Randy Wilson’s. Sure, I had to re-introduce myself to the same people, a couple of times, but in the end it was worth it. I joined committees and I was placed on committees. I made a concerted effort to encouraged (and yes badgered) others lawyers I would see, to join TCDLA, not only for their benefit but for the benefit of their clients.

Now in 2021 I am honored to say that I have served TCDLA as one of its Past Presidents, (thank you KAD for the pen I wear it with pride). I am pleased with the many accomplishments of our organizations. I yet personally go up to lawyers in the courtroom and ask if I can be of assistance. I always finish with “ by the way are you a member of TCDLA”?

I have written this remembrance to lend you my experience. We members of TCDLA have many common goals. I truly believe the foremost goal is to be the best advocate for the Accused that we are capable of being. Our face-to-face contact with one another is one way important way we may reach this goal. Our willingness to go above and beyond to help our fellow Defense Lawyers makes each one of us grand warriors. We must not hesitate, when we see a fellow warrior in need, to personally step us and offer whatever assistance we have in our arsenal. It is this personal touch that allows us , as an organization, to be unbeatable.

The Tim Evans Texas Criminal Trial College has as its adopted motto, “Courage is being scared to death but saddling up anyway”. Let us all make a concerted effort to honestly speak (not text, not email nor any of the other ways of avoiding personal contact) with one another and always be there to lend a helping hand. We will all be better for it.

Bobby Mims, President 2013-2014 and Melinda Carroll

“Restorative Justice”

We were appointed at the last minute to assist on a high-profile death case in Smith County. The Judge had denied contract lawyers a delay. She told them to choose from the death penalty list a 3rd chair. The crime drew national attention from CNN, ABC, and Fox since a black man was charged with kidnapping, raping, and murdering a white woman. We started getting death threats and expected the KKK to show up. We were under tremendous pressure, so we decided to put pressure on the Judge.

Melinda Carroll contacted the “Big Three” Wischkamper, Niland, and Byington. TCDLA’s listserve was livid. Botsford and Recer volunteered to help brief and file a Writ of Mandamus. President Wilson issued a press release charging that a Tyler Judge was forcing a hasty death penalty trial on a young Marine war veteran. 

During voir dire, we Batson Challenged every DA strike on a minority. The Judge denied each. The New York Times called the Judge to comment on why she was forcing a Marine to trial when the lawyers were unprepared. We flipped the drama triangle, and the defendant became the victim with the Judge, the villain. Finally, the Judge suggested the parties settle.  She then ordered the DA voir dire notes sealed for the record and carried our Batson motions.

The DA offered to waive death if the family consented and the defendant told the family what happened.  He agreed.  Scary stuff for defense lawyers! We learned that they had sued Walmart.  I called their lawyers, saying if my client waived the 5th, they could depose him, but I needed their clients to agree.

We all met under armed guard for 8-hours. He told them what happened and why. He put in the details and showed remorse. Mom asked if some man did that to his daughter, what would he want. He said he would want them to die. The mom then said that because we are all God’s children, she forgave him. Incredibly, Mom stood and hugged him.

He was sentenced to stacked life sentences. The family recovered a seven-figure sum from Walmart.

We learned later that it was Restorative Justice we obtained.  We did not know it since we were “winging it.”

Emmett Harris 2014-2015

 

Samuel Bassett, President 2015-2016

I tried two consecutive jury trials in Alpine, Texas (Brewster County) in the late 1990s for a businessman falsely accused of sexually and physically assaulting his young children. I’ll never forget the experience because I was young (in my early 30s) with a small firm and in a “foreign land” of far West Texas. The case arose out of a custody dispute so we were able to take depositions and unravel the State’s cases before trial. It was fun deposing the CPS caseworker on the case for six (6) hours, with all of her records in my possession. We set up shop at the Ramada Inn the week prior to trial and worked very hard to prepare. The trial was going really well for us and the District Attorney was noticeably frustrated, not having realized how much information we had developed in the civil case. During closing arguments, the District Attorney gathered a bunch of uniformed law enforcement personnel in the courtroom and I wondered why. As my client was declared “not guilty” and we hugged, he was immediately arrested and charged with a new charge of physically abusing his children. He spent the next two days in the Brewster County Jail. Once released, we went to Juarez to celebrate our victory and to begin to prepare for the second trial. The State had the same problems with their second case given our extensive discovery efforts. After I filed a motion to recuse the District Attorney for the second trial, a visiting prosecutor and a new judge (Former D.A. Royal Hart) tried the second case and the jury deliberated less than an hour finding my client not guilty. We again went to Juarez for a couple of days with a much more hearty celebration. An interesting post script – my client obtained primary custody of these same children a few months following the second criminal trial.

This case taught me the value in handling concurrent civil or family law litigation when there is a parallel criminal action. From that point forward, much of my practice has been devoted to criminal allegations arising out of family law cases. However, I’ve never again had back to back not guilty verdicts in two first degree felony trials with the same client. I’ll never forget that experience.

John Convery, President 2016-2017

A few random thoughts for the 50th. When I joined TCDLA over 30 years ago we were both pretty young. I was finding my way as a brand new lawyer.  TCDLA was finding its way as a young association.  I was simply overjoyed to socialize with criminal defense lawyers and be schooled by legends. I still am. TCDLA was pretty happy in its little house office in Austin. Executive Director John Boston operated on a shoestring budget, with TCDLA ever eager to swell its ranks with new members. Year after year my TCDLA colleagues schooled and encouraged me in the art of criminal defense through education and training programs.  I amassed a ton of paper TCDLA CLE course materials and subject manuals on my bookshelves. I purchased TCDLA check lists, cheat sheets, inspirational t-shirts, and waited eagerly for each delivery of the next issue of our exceptional magazine – Voice for the Defense. I still do.

Through the wonder of technology, vision, and the dogged determination of individual members (Grant Scheiner), TCDLA now provides me with the digital wizardry of its website, listserve and cell phone app.  Through these tools I access a vast library of information not imagined by me as a young lawyer. Members and the TCDLA organization have become more professional, better organized. From the TCDLA building in Austin, with a decent budget, we grew and thrived with Executive Director Joseph Martinez, and now flourish under CEO Melissa Schank, super CFO Mari Flores, and staff.  A once rag tag group of member Legislative lobbyists has morphed into a professional group (Keith Hampton, Alan Place) now led by Alan and Shea Place.  In increasingly divisive and difficult times TCDLA serves as the voice of Texas criminal defense lawyers.

I have socialized and partied with TCDLA friends for over 30 years. I have no plans to stop.   

David Earl Moore , President 2017-2018

“Heroes”

When I first joined 30 years ago at the cajoling of Odis Hill and Scrappy, I did so in part like many of us because of what TCDLA could do for me, in the form of outstanding CLE combined with all the other terrific benefits that come with membership. But, I think that I primarily joined to be part of the tribe.  I wanted to be around other lawyers that were walking the same pathway that I was on, folks that understood. I wanted to meet and get to know the great lawyers I had always heard of, many of them among those TCDLA founding members who met at that hotel in Dallas 50 years ago to conceptualize and create our organization. I hoped that TCDLA would give me an avenue to rub shoulders with them and to be a part of something that those individuals, my lawyer heroes, our predecessors, had formed.

Through the years I was certainly blessed to be able to meet many of those legendary giants.  I also have had the good fortune to make many of my very best and lasting friendships through TCDLA. But, at an early point, the collegiality aspect became secondary as I began to become involved in the critical work that TCDLA does. I have always been cognizant that our actions as criminal defense lawyers have an immense impact on people’s lives, one case, one client at a time.  However, TCDLA gave me the opportunity to make a difference beyond my immediate horizon.  Coach Mike Krzyzewski (Coach K), one of the greatest coaches in the history of sports, said it this way, “People want to be part of a team.  They want to be part of something bigger than themselves.  They want to be in a situation where they feel they are doing something for the greater good.”

TCDLA affords each of us an avenue to make that kind of difference.  Can you imagine the absolute chasm that would exist in criminal justice in Texas without TCDLA’s involvement?  From training and educating lawyers, to our legislative efforts, to standing up for our individual brother and sister members through Strike Force, and in other countless ways, I do not know where we would be, where I would be, without TCDLA.

Cornel West said, “I have always felt called to serve, to empower and ennoble as many people as I could – teaching, truth-telling, exposing lies, bearing witness, and being willing to live for something bigger than yourself.”  If you feel that kind of call, then TCDLA is the home for you.  To be sure, you will certainly be rewarded from the bounty of benefits that you personally receive from your dues, but to really get the blessing of what TCDLA is, roll up your sleeves and take part.

I am proud to have been a small part in the cog of what we do, of what we stand for.  I realize that my tiny contribution is but a drop in the ocean, but the ocean is made up in total of individual drops of water like mine. By ourselves, we may not influence much, but collectively we are formidable.

I came to TCDLA in part to meet people like the TCDLA Founding Fathers. Then I had the great fortune to participate with later torch bearers like Goldstein, Anderson, Botsford, Blackwell, Schneider, Evans, Hurley, and Heiskell et al.  And, based upon the character, devotion, and drive of younger folks who have actively taken up the banner, TCDLA is very much in good stead as we now pass the baton to a younger generation.

When I have crossed over and am no longer here, I want my children and my grandchildren to know what I stood for.  I want them to know that I was a proud member of TCDLA, and that I loved this organization.  My feelings for our group are reflected by the words of Major Richard Winters who commanded Easy Company during World War II. When he was asked years later by his grandson if he had been a hero in the war, Winters replied, “No, but I served in the company of heroes.”

Lord knows that there are storm clouds on the horizon as our constitutional protections are under constant threat.  I believe personally that the Rule of Law itself is endangered.  Come join in this company and be a part of the greatest group of criminal defense lawyers in the world.  I hope for society’s sake that TCDLA will still be a beacon for justice in another 50 years.  And, in the words of General Dwight Eisenhower, issued on the morning of June 6, 1944, on D-Day, “Let us beseech the blessings of Almighty God upon this great and noble undertaking.”

Mark Snodgrass 2018-2019

 

Kerri Anderson Donica, President 2019-2020

I’ve been a proud member of TCDLA since 1987. There are so many adventures I’ve had over all those years with TCDLA that are best kept between the adventurers. You know what they say – what happens with TCDLA stays with TCDLA! Most of the best friends I have in the world arose from my relationship with this organization.  We share war stories, we call each other for advice about cases, the law, our families, our love life. We vacation together, we share our joys and our heartbreaks.

As I think back over the past 34 years during which I’ve been involved with TCDLA, perhaps the most significant was 2019-20 during which I served as our President. We were seriously ROCKING along until March 2020. I’d told Melissa Schank that I could not believe what an easy, harmonious year we’d had. I mean NOTHING had rocked the boat… Then God smiled and COVID-19 hit. And the world (and the courts) locked down. We learned how to say ZOOM and wear masks and shelter at home. It was terrifying. Even more terrifying for our clients – many of whom are locked up and had no idea when we could ever get them the heck out of jail or how we could conclude any of our clients’ cases.

Together, we formed the COVID-19 task force. With Melissa’s help, we selected some of the finest leaders and legal minds to assist our members and their clients wade through this uncharted territory. New leaders were born – or at least recognized (Clay Steadman was my fearless point man and NEVER disappointed. Allison Clayton, Jeep Darnell, Kyle Therrian… brainiac rock stars).

The bottom line – we old(ish) guys and gals were able to see that the future of our much loved family/organization is safe and will continue to rise to even new heights.

I will forever be thankful for TCDLA and the memories I cherish – and plan to continue making! Thank you, TCDLA! I’ve loved you for ALMOST 50 years!


Honoring Our Veteran Lawyers 50+ Years Before the Bar

Sam D. Adamo
Paul F. Anderson
Gordon V. Armstrong
Shirley Baccus-Lobel
Cecil W. Bain
Richard Edward Banks
Robert T. Baskett
Jim Sharon Bearden Sr.
David R. Bires
Kenneth E. Blassingame
Stephen E. Blythe
Bill Booth
Paul Brauchle
Alan Brown
Stan Brown
Michael J. Brown
Jim Burnham
Robert Marcus Cady Sr.
Charles Campion
J. A. Canales
Harold L. Comer
Richard Johnson Corbitt III
Dennis R. Croman
Jerald D. Crow
Jackson Qlo Crum
Dick DeGuerin
Gary F. Dennison
Danny V. Dent
Blake C. Erskine
Tim Evans
Wallace T. Ferguson
F. R. “Buck” Files Jr.
Louis J. Fohn
Paul L. Fourt Sr.
Errol N. Friedman
G. Rudolph Garza Jr.
Michael R. Gibson
Victor H. Gillespie
Smith E. Gilley
Gustavo E. Gonzales
Ronald L. Goranson
Dan Green
Lealand W. Greene
Frank Hale
Lynn P. Hardaway
Emmett Harris
Joseph C. Hawthorn
Tom M. Henderson
R. Charles Hoelscher
William M. House Jr.
Guy W. Hull II
Lynn Reed Ingalsbe
Frank H. Jackson
Tim James
Elizabeth C. Jandt
Paul G. Kratzig
James H. Kreimeyer Jr.
James Lane
Ken D. Lipscombe
Edward A. Mallett
Robert A. Markowitz
Edgar A. Mason
Richard Mayhan
Tom S. McCorkle
Dan R. McCormack
Wayne Meissner
Ebb B. Mobley
Charles G. Morton Jr.
Stephen M. Orr
Juan “Sunny” Palacios Jr.
Douglas H. Parks
George J. Parnham
Robert Pelton
John F. Pettit
Jimmy Phillips Jr.
John M. Pinckney III
Robert A. Price IV
Tom L. Ragland
Robert E. Richardson Jr.
Grady L. Roberts Jr.
Allen C. Rudy Jr.
Ted L. Sansom
Larry  Sauer
Eloy Sepulveda
Polk Shelton
Monte Sherrod
Don C. Smith
Buddy Richard Stevens
Jack V. Strickland
Larry B. Sullivant
Ronald L. Sutton
Alex R. Tandy
Bill  Trantham
Theodore F. Trigg
John Trube
Robert A. Valdez
John W. Warner
Sheldon Weisfeld
Phillip Westergren
Charles F. Wetherbee
Norman True Whitlow
Dain P. Whitworth
William K. Wilder
Randy Wilson

Recognizing Members Who’ve Belonged to TCDLA for 50 Years

Cecil Bain
Roy Barrera Sr.
Alan Brown
Dick DeGuerin
F. R. “Buck” Files Jr.
Michael Gibson
Frank Maloney
James M. Morris
George J. Parnham
Vincent Walker Perini
Jimmy Phillips Jr.
Theodore Trigg