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The Beginning of Lawyer-Assistance Programs

“My name’s Rick and I’m an alcoholic.” These words were the key to my first involvement with the Texas Lawyers Assistance Program, TLAP. By the time I said them at a TLAP function, I had become used to doing so at Alcoholics Anonymous meetings in and around Lubbock. I had a lawyer friend, though, who knew there were a group of lawyers in Texas who did what they could to support one another’s recovery and to help colleagues deal with the stress of the practice of law in pro-social ways in order to avoid the need for a program of recovery. Mike B. told me about a convention in Austin that combined training for TLAP volunteers, of which I was unaware, and meetings for Lawyers Concerned for Lawyers, a group very loosely related to TLAP but not part of the State Bar, who were in recovery from mental illnesses, alcoholism, addiction to substances, and suicidal ideation.

Those of you who know me know I felt right at home immediately! As it turned out, Mike wasn’t able to make it to the convention, so I was on my own to a greater or lesser degree. I met people there who had histories like mine and who were living lives happy, joyous and free, even in the practice of law. In fact, even if they weren’t practicing law right then due to grievance issues. I met people who had been disbarred and earned their way back into the profession, people who had voluntarily left the profession but kept active in the recovery of other lawyers, and those who weren’t sure whether or where they might fit in.

At the first convention, there were yoga classes in the morning, AA-type meetings of LCL members throughout the day, and speaker meetings a couple times a day. There was also training designed to help us help our brothers and sisters who struggled with the issues that got us there. This was the first time I realized what Quinn Bracket, a truly venerable Lubbock lawyer, had done for me a little over a year before. He knew what I needed to do and who I needed to know in order to survive the death spiral I had put my law practice into. He had a patience and depth of understanding that I had only seen in a counselor whom I had paid for years to listen to me lie to her about my issues. Quinn was a stabilizing force in Lubbock for many lawyers who were trying to lose their way.

The Texas Lawyers’ Assistance Program (TLAP) has been an active program of the State Bar since 1989. Chris Ritter is the third director to head up the program. What follows is Chris’ compilation of the history of TLAP, edited for length.

Early Years

A flurry of articles and research in the late 1980s and early 1990s documented the secret that some already knew: the high incidence of substance abuse and mental health disorders in the legal profession. While generally accepted figures at that time estimated that 10 to 11 percent of the general population in this country suffered from the disease of substance dependence, surveys in Arizona, Washington, and Maryland indicated that the illness affected 15 to 18 percent of lawyers. A study by the Johns Hopkins University School of Medicine in 1990 found that, of all the professions surveyed, lawyers had the highest rate of clinical depression. A 1992 study by the National Institute for Occupational Safety and Health indicated that male lawyers in the United States were twice as likely to commit suicide than men in the general population. Unfortunately, many involved with lawyer assistance programs across the country anecdotally echoed that fact: suicide among lawyers was all too common.

Establishment of Lawyer Assistance Programs

Lawyer assistance programs in some form or another have been around for a long time. Many states report that independent, grassroots lawyers-concerned-for-lawyers groups have been  operating discretely and effectively for 20 years. Grounded in the principles of service work and anonymity from Alcoholics Anonymous and other 12-step programs, these programs fashioned responses to the crisis of lawyers and colleagues in trouble with alcohol and drugs. TLAP credits the lawyer-support groups in Dallas and Houston as two of the longest-running grassroots organizations in the state. Both groups report a history of meetings dating back to the early 1980s. No doubt there were other such support groups in existence throughout the state.

In 1989, as part of the national movement toward instituting employee- and peer-assistance programs, the State Bar of Texas institutionalized outreach to lawyers by creating and funding TLAP. Mindful that the goal of the organization was to provide a safe and confidential place for lawyers to seek help for addiction and other disorders, TLAP was authorized as the approved peer-assistance program for lawyers in Texas; as such, it benefits from the statutory confidentiality and immunity protections afforded peer-assistance programs under the Texas Health and Safety Code. Texas was one of a handful of similar formal programs in the nation. In 1988, when the American Bar Association (ABA) created the Commission on Impaired Attorneys (it was renamed the Commission on Lawyer Assistance Programs in 1996), there were only four states that had formal statewide lawyer-assistance programs. Today, all 50 states, the Canadian provinces, and Great Britain have comprehensive assistance programs, most with paid directors and staff.

At their core, lawyer-assistance programs seek to provide outreach, support, peer assistance, and confidentiality for communications and information relating to actions taken by staff, volunteers, and participating lawyers, judges, and law students. Separation from the discipline authority for lawyers was identified as an early prerequisite for many lawyer-assistance programs and the Texas program was no exception. Agreements between the Texas disciplinary system and TLAP were hammered out long ago: TLAP staff and volunteers remain independent of the disciplinary process and do not advocate for or against a lawyer who finds him or herself in that system. The discipline system, in turn, respects and appreciates the confidentiality of all communications and actions of TLAP.

Attorney-Discipline Issues

The issue of alcoholism, drug addiction, and mental health disorders within the legal profession gets the most attention when juxtaposed against and within the disciplinary system. In 1987, as lawyer peer-assistance programs were being put in place in different jurisdictions across the United States, controversy raged over whether alcoholism was a disease or simply a character flaw. In the midst of these arguments came a U.S. Court of Appeals for the District of Columbia decision, In re Kersey, 520 A.2d 321 (1987), which stated that a lawyer’s alcoholism could be considered in mitigation for disciplinary offenses. This was a watershed moment for all concerned as it was estimated at the time that a majority of attorney-discipline cases involved alcoholism or substance dependency. Balancing the system’s need to protect the public, deter future unethical conduct, and maintain the integrity of the profession with the need to acknowledge and address the underlying causes of the conduct became the fulcrum on which the decisions of courts and disciplinary systems would rest. Eventually, an acknowledgment of the scope and the validity of the issues required that all jurisdictions take some measure to help with the identification, treatment, and disposition of cases involving impairment.

The disciplinary system in Texas was particularly responsive to developments in the understanding of alcoholism and the addiction process and the fact that they comprised illnesses and not moral failings. In 1992, the State Bar of Texas provided that an attorney’s demonstration of his or her good-faith recovery from these disorders may be considered as a mitigating factor when imposing sanctions for disciplinary adjudications. The disciplinary system in Texas also established a unique avenue for disposition of cases involving impairment that rose to the level of a disability. Monitoring, diversion, and education became the watchwords for this time period and the development of the Texas Professionalism Enhancement Program and, more recently, the Client Attorney Assistance Program further demonstrate the state bar’s commitment to the human issues underlying the rules violations in disciplinary cases.

The Future of Lawyer-Assistance Programs

The nature of lawyer-assistance programs is changing. The 2002 ABA Commission on Lawyer Assistance Programs survey of lawyer-assistance programs indicates that a majority of  lawyer-assistance programs have moved to provide outreach services for lawyers with mental health issues as well as the traditional outreach to those dealing with alcohol, drugs, or other addictions.

Texas has been at the forefront of this challenge. Since the mid 1990s, TLAP has offered its services to lawyers, judges, and law students who are challenged by mental health and substance abuse disorders. TLAP statistics indicate that once TLAP advertised that its outreach included mental health issues, the number of these cases increased to a 50/50 split between substance abuse disorders and mental health concerns. Today, a lawyer with complex, poly-substance abuse and mental health disorders is more the norm than the exception. While the number of cases increases yearly, pure addiction cases and pure mental health cases make up a smaller portion of the TLAP caseload. The response remains the same: crisis assistance and counseling, education, peer assistance, intervention, referral, and outreach.

If the future holds anything, it holds the promise of continued success, collaboration, and innovation. Here are a few noteworthy developments:

  • The ABA has adopted a 2004 Model Lawyer Assistance Program that speaks to the issues of concern: addictions, mental health disorders, and quality-of-life issues.
  • More and more lawyer assistance programs are being asked to directly monitor lawyers or develop monitor programs for law firms, disciplinary systems, and boards of law examiners.
  • The State Bar of California has produced an innovative outreach system that, in the words of Deputy Trial Counsel for the State Bar of California Cydney Batchelor, “has produced astonishing changes in the lawyers’ professional and personal lives.”
  • In 2003, the ABA Standing Committee on Ethics and Professional Responsibility issued two ethics opinions regarding a lawyer’s duty to report the misconduct of another lawyer and in doing so recognized the assistance of lawyer-assistance programs throughout the United States.
  • The ABA National Legal Malpractice Conference has developed and presented a series of seminars related to law firms and impaired lawyers.

Until very recently, I attended the TLAP/LCL Convention every summer, only missing because of conflicting responsibilities. Until my last child moved out of the house, the kids accompanied me on the trip each year. It was a great way for me to celebrate recovery, share it and a trip with my children, and enjoy the friends I’d made among whom I trudge the road to happy destiny. Maybe the single most personally changing thing that ever happened to me at these celebrations was meeting and getting to know Kelly Pace at depth. He was committed to the cause of TLAP and LCL, serving on both the State Bar Committee and the LCL Board of Directors. His example of a lawyer with a busy trial practice and the associated stresses and strains who stays above the fray with an eye always open for the colleague who is in need challenges me and informs me today. Kelly was honored with the Ralph Mock Award, the highest award given by TLAP and LCL, signifying incredible service to recovering lawyers for significant periods of time, and I now have the honor of serving on the State Bar Committee for Lawyers Assistance and the Board of Directors for LCL. I hope to share with others what Kelly and many at TLAP and LCL have freely given me.

Lubbock’s LCL group hosts a hybrid meeting each Friday during lunch. Our fearless leader, Bob N., has arranged for us to use a state bar conference line to include call-ins with those of us who can meet in person at his office. It is a weekly home for eight to 12 practicing lawyers, law students, and lawyers working to earn their licenses back, who share their experiences, strength, and hope with one another. There are very real reasons to be proud of our state bar, its Lawyers Assistance Program, and the grassroots LCL groups around the state!

The Impact of Criminal (Mis)Behavior on Country Music

Before country music lost its soul and moved to the suburbs, there existed a sub-genre of country music consisting of “prison songs” based on a myriad of bad decisions primarily having to do with whiskey, drugs, and women. These songs convey the pathos, hopelessness, and what Merle Haggard has called “the mental Hell that is jail.” There is an unbreakable bond between criminal misbehavior and “real” country music.

Johnny Cash and Merle Haggard are the most well-known of prison song troubadours, but before Cash and Haggard there was Vernon Dalhart, who took his name from two towns in Texas. In 1925, he recorded one of the most enduring prison tracks, “The Prisoner’s Song.”

I’ll be carried to the new jail tomorrow
Leaving my poor darling all alone
With the cold prison bars all around me
And my head on a pillow of stone.1

Jimmie Rogers, the man many consider the father of country music, wrote his version of the traditional folk song “He’s in the Jailhouse Now” in 1928. A cautionary tale to a friend, the song was most famously covered by Webb Pierce in the 1950s.

I had a friend named Campbell
Who liked to drink, gamble and ramble,
Well I told him once or twice
To quit playing cards and shooting dice
He’s in the jailhouse now.2

Hank Williams, Sr., was the first superstar of country music. While a master of heartbroken misery, Williams recorded few or no prison songs except “A Picture from Life’s Other Side.”

Just a picture from life’s other side
Someone has fell by the way
A life has gone out with the tide
That might have been happy someday.3

Among the most enduring of prison songs is “The Long Black Veil,” with the most famous version sung by Corsicana native Lefty Frizzell. (Corsicana is also the birthplace of Billy Joe Shaver, who was successfully defended by Dick DeGuerin in an aggravated assault trial in Waco a few years back. “I’m A Wacko from Waco” is a song Billie Joe wrote about his Waco experience.)

Frizzell’s “Veil” has been covered by well over 100 artists and continues to be the leading exponent of the tearjerker ballad of a man betrayed by a faithless woman.

Now the judge said son, what is your alibi
If you were somewhere else, then you won’t have to die
But I said not a word, although it meant my life,
Cause I’d been laying in the arms of my best friend’s wife.
Now the scaffold is high and eternity near
She stood there in the crowd and shed not one tear
But some sometimes at night, when the cold wind blows
In a long black veil, she cries o’er my bones.4

No discussion of prison songs would be complete without inclusion of the real deal—the late, great Johnny Paycheck. He had an arrest record ranging from aggravated assault to murder and knew much more than the average rap star about spending time in prison. Paycheck died penniless in 2003, his headstone having been paid for by country music legend George Jones.

Paycheck weighs in with the haunting and hair-raising “Pardon Me, I’ve Got Someone to Kill.”

I know you’ll excuse me if I say goodnight
I’ve got a promise to fulfill
Thank you for listening to my troubles
Pardon me, I’ve got someone to kill.
I warned him not to try and take her from me
He laughed and said if I can, you know I will
So tonight when they get home I’ll be waiting
Pardon me, I’ve got someone to kill.5

You know his life just took a wrong turn, perhaps because—as Paycheck advises in another song—he failed to “Stay off the Cocaine Train.”

Yeah, the old white train costs a lot to ride
And it’ll damn sure forevermore please your brain
Take a little advice, stay away from the cocaine train.6

While on the subject of drugs and their effect on prison songs, “Cocaine Blues,” written by T.J. “Red” Arnall and recorded by Johnny Cash on Live at San Quentin in 1969, is perhaps one of the prime examples of drug abuse and bad behavior.

Early one morning while making my rounds
I took a shot of cocaine and I shot my woman down
I went back home and I went to bed
And stuck that lovin’ .44 beneath my head
Early next morning I picked up my gun
I took a shot of cocaine and away I run
I made a good run but I ran too slow
They caught up with me down in Juárez, Mexico.

Of course, they drag our hero back home, where he is held by 12 honest men and of course, as with many jury trials, it does not work out so well.

In about five minutes in walked a man
Holding the verdict in his right hand
The verdict said in the first degree
I shouted lordy, lordy have mercy on me
The judge he smiled as he picked up his pen
99 years in that San Quentin pen
99 years there beneath that ground
I can’t forget the day I shot that bad bitch down.
Come on you rounders and listen to me
Lay off that whiskey and let that cocaine be.7

Cash had many jail songs—a lot of good ones—but in my opinion the best of the best is a short, relatively obscure song called “The Wall,” which tells the story of a prisoner who spends his time trying to figure a way to escape and finally tries to escape from the walls of prison.

Well a year’s gone by since he made his try
And I can still recall
How hard he tried and the way he died
But he never made that wall
He never made that wall
There’s never been a man who shook this can
But I know the man that tried
The newspapers said it was a jailbreak plan
But I know it was suicide,
I know it was suicide.8

The late Porter Waggoner, a genuine country music legend, and a true aficionado of the flashy clothes known as “nudie Suits,” had a couple of really nice prison songs, such as “The Green, Green Grass of Home” and “The Cold Hard Facts of Life,” which is the story of a man who comes home from out of town early, stops to buy a bottle of champagne for his wife, and ends up inadvertently following his wife’s lover, also buying party supplies at the liquor store.

I left the store two steps behind the stranger
From there to my house his car stayed in sight
But it wasn’t till he turned into my drive that I learned
I was witnessing the cold hard facts of life.
I drove around the block till I was dizzy
Each time the noise came louder from within
And then I saw the bottle there beside me
And I drank a fifth of courage and walked in
Lord, you should’ve seen their frantic faces
They screamed and cried, please put away that knife
I guess I’ll go to hell or I’ll rot here in this cell
But who taught who the cold hard facts of life.9

Flatt and Scruggs, though primarily bluegrass artists, penned a wonderful song called “99 Years is Almost for Life,” which tells a story of not only bad choices but betrayal by both his woman and the presiding judge.

The courtroom was crowded the judge waited there
My mother was crying when I left my chair
The sentence were sharpful it cut like a knife
For ninety ninety-nine years boy is almost for life
I dreamed of the whistle I heard the bells ring
My sweetheart was coming some good news to bring
I knew that she loved me and that she’d be true
She said she would save me I’m guilty as you
She went for a pardon or else for parole
I know she’ll come back for she’s part of my soul
If she ever fails me I’d be mighty blue

(NOW, WAIT FOR IT.)

I just got a letter from Nashville town
And after I read it, my spirit broke down
It said that my sweetheart and the judge would be wed
And here in this jailhouse I wish I was dead.
No matter how right folks a man he may be
Bad company will sent him to prison like me
So take a good woman and make her your wife
For ninety-nine years boy is almost for life.10

Stonewall Jackson (his real name—no kidding) tells the sad, sad story of a man imprisoned for killing his best friend after a long night of drinking in “Life to Go.”

I went one night where the lights were bright just to see what I could see
I met up with an old friend who just thought the world of me
Well he bought me drinks and he took me to every honky tonk in town
But words were said and now he’s dead I just had to bring him down
Well it’s its been a long, long time now, since I’ve heard from my wife
I know I’d be there with her yet if I hadn’t used the knife
Well I’ll bet that little girl of mine don’t realize or know
That I’ve been here 18 years, and still have life to go
Yes I still have life to go.11

It is impossible to pick only one prison song from the repertoire of Merle Haggard. Haggard, who was in the audience when Cash played San Quentin, was doing time for a burglary of an open cafe. (I kid you not, look it up.) Haggard wrote some of the most iconic prison songs of all time, including “Branded Man,” “I’m A Lonesome Fugitive,” and “Mama Tried.” However, perhaps the most poignant of all his prison songs is “Sing Me Back Home,” which pays homage to a condemned prisoner’s last wish.

The warden led a prisoner, down the hallway to his doom
And I stood up, like all the rest to say goodbye.
And I hear him tell the warden, just before he left my cell
Let my guitar playing friend do my last request
Won’t you sing me back home, to the place I used to be
Make those old memories come alive
Sing me back home where I can hear my mama sing
Sing me back home before I die.12

While prison songs date back to the ‘50s, ‘60s and ‘70s, some notable exceptions to the trend away from real country (defined as “when you play a country record backwards, you get back your dog, your wife, and your trailer”) still exist.

Steve Earle, a passionate anti-death penalty advocate, penned a song for the movie Dead Man Walking, which portrays prison from another side, the guards working at Ellis Unit One, death row in Texas for many years. In “Ellis Unit One,” Earle vividly illustrates the effect death row has on one of the guards working there.

Well I’ve seen’ em fight like lions, boys
I’ve seen ’em go like lambs
And I’ve helped to drag ’em when they could not stand
And I’ve heard their mama’s cryin’, when they heard that big door slam
And I’ve seen the victim’s family holdin’ hands
Last night I dreamed that I woke up with straps across my chest
And something cold and black pullin’ through my lungs
And even Jesus couldn’t save me though I know he did his best
But he don’t live on Ellis Unit One.13

Marty Stuart, a man many consider the savior of traditional country music as well as having the coolest hair in country music, gives a 21st-century shout-out to Haggard in “Branded” and shows the cold, hard fact that a man never truly pays for his crime.

Well I’m branded, wherever I go
Trying to outrun a bad story everybody seems to know
Might as well be wearing a ball and chain
Cause everywhere I travel I see my picture
With a number by my name.14

Last but certainly not least, relative newcomer and another savior of traditional country music Jamey Johnson spins his cautionary tale of drug abuse in “The High Cost of Living.”

My whole life went through my head, layin’ in that motel bed
Watchin’ as the cops kicked in the door
I had a job and a piece of land, my sweet wife was my best friend
But I traded that for cocaine and a whore.
With my new found sobriety, I’ve got the time to sit and think
Of all the things I had, and threw away
This prison is much colder than
The one that I was locked up in just yesterday
My life is just an old routine, every day the same damn thing
Hell I can’t even tell if I’m alive
I tell you, the high cost of livin’
Ain’t nothin’ like the cost of livin’ high.15

Country music is not everyone’s cup of tea, but I feel all of us who defend the citizen accused, the sick and imprisoned, can relate to some extent to the songs listed here. There are many among us who can personally relate to the effects of alcohol and substance abuse on our lives.

I suggest listening to good old-fashioned country music to reflect on your duties and to cure what ails you. If that does not work, the Texas Lawyer’s Assistance Program is a wonderful program that has helped many of us in the trenches.

Competency Hearings

Overview

            Hearings on the competency of a defendant are rare creatures – in part, because a finding of incompetency is not one where either party suffers some loss of position or defeat. If a defendant is found incompetent there is a mandatory commitment for restoration, unless the examiner has opined, and the court found, that the person is unlikely to be restored in the foreseeable future. Such commitments do add some delay to the proceedings which are stayed until the person is restored or, if not restored, is subject to the options of Tex. Code Crim. Proc art. 46B.084(e) or (f), i.e. civil commitment by the criminal court or dismissal. But in the vast number of cases (75%+) a competency evaluation results in a finding of competency. And, if found incompetent, some 84% (in Texas) are restored after commitment for restoration treatment services. Further, a significant number are restored after a period of intensive psychiatric services.

            However, occasionally – and even then more often, in a high-profile case – a finding of incompetency is opposed, by one party or the other, and a hearing ensues. In the following we will explore this issue in greater detail.

Issue:  Basics

            It is fundamental that a person is incompetent to stand trial if they lack either sufficient present ability to consult with their attorney with a reasonable degree of rational understanding; or a rational and factual knowledge of the proceedings against them. Tex. Code Crim. Proc. art. 46B.003(a) (hereinafter, CCP art.xx).

            Competency is presumed until proved incompetent by a preponderance of the evidence. CCP art. 46B.003(b).

            The two-prong competency standard was established by Dusky v. United States, 362 US 402 (1960) and codified in the CCP. Further, Godinez v. Moran, 509 US 389 (1993) holds that the standard for competency is the same at all stages of the proceedings and applies at all stages of the proceedings.

            The issue of competency may be raised by either party or the court on its own motion. CCP art. 46B.004. No longer is a “bona fide doubt” about the competency of the defendant required as a predicate to raise the issue (CCP, art. 46B.004(c-1)); rather, some evidence from any source is sufficient to raise the issue.

            Court-ordered examiners in competency matters may either be psychiatric physicians or psychologists, qualified by board certification, training, and experience.

Procedure:  Obtain an Examiner

            If there is a suggestion of incompetency from any credible source, and the court agrees after an informal inquiry (note that the court may not weigh the evidence, e.g. some evidence of competency vs. some evidence of incompetency, but must order an examination if  there is more than a scintilla of evidence suggestive of incompetency. See Boyett v. State, 545 S.W.3rd 556, 563-64 (Tex. Crim. App. 2018)), the first issue that arises is the choice of an examiner. And by “choice” I do not mean whether to choose a psychiatrist or psychologist since either may statutorily conduct such evaluations. There are occasions when a psychiatric physician, carefully selected, is a helpful choice. I have in mind a case wherein a demented man had murdered his brother and I recommended a psychiatric physician who is nationally known in traumatic brain injury. He conducted the examination and appended a copy of the radiographic image of a large tumor about the size of a ping-pong ball which was clearly visible even to any non-physician viewing the image. As well, he opined that the defendant likely had but a relatively short period in which to live. Both sides agreed upon a dismissal.

            But barring such phenomena, either a psychologist or psychiatric physician can conduct the examination. More important, is the examiner’s knowledge of forensic examinations, and history of having conducted the same, as well as the capacity to handle himself or herself as an expert witness.

            Relatedly, is issue of whether to request an ex parte examination or move for an examiner who is also court-appointed but who would supply the same information to the court and both parties. In Harris County we have a county unit, under the aegis of the courts, that conducts such examinations – at far less expense that would be incurred should the court authorize an ex parte examiner.  To be sure, in an extremely high-profile case, it may be desirable to seek or retain an outside examiner, with national prominence, though this is more relevant to sanity than competency.

Procedure:  Obtain an Order for Competency Evaluation

            The court likely has preferred forms; if not, appended is a generic order for obtaining a competency evaluation. Note that a court’s refusal to grant such a motion is reviewed under an abuse of discretion standard. Timmons v. State, 510 S.W.3d 713, 718 (Tex. App. – El Paso 2016 no pet.). Further, the issue of competency can be raised at any point in the proceedings.  CCP, art. 46B.005.

            Important, however, is that appeals from competency proceedings, and orders issuing therefrom, are interlocutory. “The trial court’s order of competency to stand trial is not a final, appealable judgment.” Lowe v. State, 999 S.W.2d 537, 537 (Tex. App.—Houston [14th Dist.] 1999, no pet.). Neither the state nor the defense is entitled to appeal the decision of the trial court viz. competency. CCP, art. 46B.011.

            Failure to raise the issue of competency could result in an ineffective assistance claim. For example, in Burt v. Uchtman,  422 F.3d 557, 568 (7th Cir. 2005), the Seventh Circuit Court of Appeals found that counsel was ineffective in assisting a defendant in a capital murder case for failing to raise the issue of the defendant’s mental health status by requesting a competency evaluation. At his trial, Burt  originally plead “not guilty” but then changed his plea to “guilty” despite the advice of his attorneys. His attorneys stated that they spoke with him and advised him against pleading guilty but that he insisted on doing it anyway. The defendant, Burt, was subsequently sentenced to death for the murders of two men. The court found that defense counsel’s action in allowing their defendant to plead guilty without first requesting a competency hearing made counsel ineffective because counsel had notice of the defendant’s mental health status. See lengthy discussion in Covarrubias, Rebecca J. Comment: Lives In Defense Counsel’s Hands: The Problems And Responsibilities Of Defense Counsel Representing Mentally Ill Or Mentally Retarded Capital Defendants, 11 Scholar 413.

            Finally, on the topic of the order, ensure that the order is filed and that the court renders a finding thereupon – as Harris County has discovered cases wherein a case was dismissed and the dismissal states that the defendant was found incompetent with no trial record or note, nor report documenting such!

Contesting a Finding of Incompetency:  Request a Hearing

            There are two circumstances wherein competency findings are contested: (a) When the defendant is found incompetent and the state believes the person is competent; and (b) When the defendant is found competent and the defense believes the person is incompetent. Unless it does not matter to the defense, the better procedure is one wherein the state seeks an opinion, which gives the defense the option of either agreeing or disagreeing. It is a little more difficult when the opinion arises from one’s own witness!

            Note that no hearing is required unless you so request one. CCP, art. 46B.005(c).  As well, you are entitled to jury trial upon request. See CCP, art. 46B.051, see also, Thornhill v. State, 910 S.W.2d 653 (Tex. App—Fort Worth 1995 no pet.).  And while the decision of the jury must be unanimous (CCP, art. 46B.052), the standard of evidence to prove incompetence is a preponderance of the evidence. CCP, art. 46B.003(b). Note, however, that should the defendant be found incompetent, he remains in a state exhibiting an unvacated adjudication of competency, until found competent by a court of competent jurisdiction (or allowed to plead on a subsequent matter, which, as a matter of law effectuates restoration). See Manning v. State, 730 S.W.2d 744 (Tex. Crim. App. 1987).

            Though perhaps more appropriate under the topic of witness testimony, it is important that the examiner not comment upon the weight of the evidence. For example, if asked, “Doctor, do you have an opinion as to whether the defendant is incompetent to a preponderance of the evidence?”, the examiner should respond:  “I have an opinion as to the defendant’s competency, but it is the task of the trier of fact to a determine whether the weight of the evidence meets a preponderance standard.” Then, when asked, the examiner may continue to list the statutory elements in support of his/her opinion.

Issue of Presumption of Competency

            Ordinarily, the defendant is presumed to be competent until proven incompetent by a preponderance of the evidence. CCP art. 46B.103. However, the foregoing presumption is not true when a defendant was previously found incompetent and not restored or opined unlikely to be restored in the foreseeable future. In this circumstance, the defendant is in the state of what has been determined to be an “unvacated state of incompetence.” The controlling case which describes in great detail this circumstance and consequences related thereunto, is Manning v. State, 730 S.W.2d 744 (Tex. Crim. App. 1987). Manning holds that when a defendant is in an unvacated state of incompetence – and there has been no intervening plea in a subsequent matter which would restore the person as a matter of law – then there is a presumption shift, and equally important, a burden shift. That is, the person is presumed to be incompetent in all subsequent matters, unless or until, restored. And, in such a circumstance, the State has the burden to prove that the defendant is now competent – to a beyond a reasonable doubt standard.

            The foregoing would also necessitate a rather different competency examination; for the defendant is presumed incompetent so that the examiner, therefore, is not looking for evidence of incompetency – as is most commonly the starting point. Rather, the examiner is seeking to marshal as much evidence as may exist which would tend to support competency. And because any credible information of incompetency, more than a scintilla, would but establish the defendant’s continued incompetency, a conclusion that the defendant is competent is a difficult standard to meet.

            The implication of the foregoing is that a specially crafted motion/order for evaluation of competency in Manning cases is necessary.

Pre-trial Motions

            Because the court and the State may not be aware of CCP art. 46B.007, it may be helpful simply to file a notice to the State that the defense intends to proceed pursuant to the requirements of CCP art. 46B.007. Namely, that neither a statement made by the defendant during examination or at trial – nor testimony by an expert on that statement or evidence resulting from that statement – may be used in any subsequent criminal proceeding, other than at the competency trial, or unless the defendant has first introduced any evidence, statement, or testimony into evidence at the proceeding. As well, because a competency hearing is separate and apart from the trial on the crime with which the defendant is charged, “the purpose of a separate hearing is to allow a determination uncluttered by evidence of the offense itself.” Basham v. State, 608 S.W.2d 677, 679 (Tex. Crim. App. 1980). And because the guilt of the defendant is not at issue, introducing evidence as to the nature and details of the alleged offense is improper. Lasiter v. State, 283 S.W.3d (Tex. App. – Beaumont, 2009, pet. ref’d In re Lasiter, 2009 Tex. Crim. App. LEXIS 1154 (Tex. Crim. App., Aug. 19, 2009).

            Given the foregoing, a Motion in Limine should be filed prohibiting introduction of, or reference to, information concerning the underlying charge. Because not every reference to the underlying offense is prejudicial, it must be argued in the motion that “the evidence of the offense presented to the competency jury must be of such a nature as to deny the accused a fair and impartial determination of his competency.” Brandon v. State, 599 S.W.2d 547, 580 (Tex. Crim. App. 1979), vacated on other grounds, 453 U.S. 902 (1981). And, to preserve error, objection must be timely made should the State violate the motion/order.

Voir Dire

            There are three issues – requiring some exploration with veniremen – which need to be communicated to a jury.  The first issue is eliminating any misconception that a determination of competency or incompetence has any relation to exculpating the defendant. The average person would not distinguish between insanity and incompetency and likely entertain the false belief that should the defendant be found incompetent the person may be exculpated.  The second issue is with the period of time the person will be in restoration treatment and the likelihood of restoration, e.g., in Texas, approximately 84% of all defendants sent for restoration are restored within the time frame available to the court. The third issue is to ensure that veniremen are aware of the purpose of restoration, especially the necessity to ensure that a defendant has both a rational and factual knowledge of the proceedings against them. It is an issue of fundamental rights afforded defendants in the American judicial system.

            The foregoing issues can be raised in conversation with the members of the jury panel, but any violations must be met with strenuous objection during the hearing itself. For example, Brandon v. State, 599 S.W.2d 567 (Tex. Crim. App. 1979) was reversed because the prosecutor was found by the court to have repeatedly uttered erroneous and prejudicial comments (which) have no place in a dispassionate resolution of the question (of competency). The prosecutor had stated that incompetency was a way of securing release without court action and the court found his statements to be an “irrelevant diatribe.”

Qualifying the Expert Witness

            While lay witnesses can comment about a defendant’s behavior, it is an inappropriate reliance upon lay testimony when opposing counsel suggests that a defendant is competent because the person has been observed to engage in any specific behaviors, e.g., read a newspaper, fill out a commissary request (or grievance), etc.  Moreover, it would be equally inappropriate, were the suggestion made that because a defendant has been adjudicated incapacitated (i.e. has a guardian), the person is not competent. See discussion in Koehler v. State, 830 S.W.2d 665 (Tex. App. – San Antonio 1992). I recall many years ago when an ADA asked a jailer if the defendant read a newspaper, and the answer was “yes.” However, I had observed the same event and noted that the defendant (an elderly man) held the paper upside down, and could not reasonably be said to be “reading” the newspaper but merely engaging in a task familiar to him and in which he had engaged every morning! The upshot is that the weight of the testimony will fall on the examiner (or examiners if there is more than one). The Rules of Evidence apply. CCP art. 46B.008.

            While it may be simple to qualify the expert solely on the basis of CCP art. 46B.022, i.e., qualified to conduct evaluations by board certification or training, and continuing education, it may be necessary to be more specific, cf. the following:

**************

  1. In cause number ____________, the State of Texas v. ________________, we call Dr. ________________.
  2. Dr. please state your name and occupation for the court.
  3. In what state or states are you licensed to practice (medicine or psychology)?
  4. Are you board eligible or board certified? In what specialty, and by which board? (The American Board of Psychiatry and Neurology, the American Board of Professional Psychology)
  5. Your honor, the Defense is requesting that the State stipulate as to the qualifications of this physician as a specialist in the field of medicine and psychiatry, (or psychology).
  6. (If counsel for the State does not stipulate, qualify the witness.)
    1. Doctor, where did you attend medical school (or graduate school)?
    2. Did you graduate?
    3. What degrees do you possess?
    4. Describe the area of post-graduate education?
    5. What was the duration of your residency or other post-graduate training?
    6. In the years subsequent to completing your post-graduate training or residency, have you held any medical school or other faculty appointments?  At what faculty rank?
    7. Are you board eligible or board certified?
    8. What are the requirements for board certification by the American Board of Psychiatry and Neurology (or by the American Board of Professional Psychology)? 
    9. Describe any publications if you have any.
    10. How long have you been in practice?
    11. Have you examined defendants similar to xxxxx in the past?
    12. Have you testified in proceedings similar to this in the past? On a few, or many, occasions?
    13. Your honor, the Defense offers Dr. xxxxx as an expert in the field of medicine and psychiatry (or psychology).
  1. Dr., tell the court if you are acquainted with the defendant here today.
  2. What is your relationship with _____________________?
  3. When did you examine ____________?
  4. How much time did you spend face-to-face with the defendant?
  5. How much time did you spend in review of records, or conversations with other sources of information?
  6. To a reasonable degree of medical (or psychological) probability, have you arrived at a diagnosis concerning the patient’s  current medical or mental health condition?
  7. What is that diagnosis? 
  8. Dr., please explain in laymen’s terms the diagnosis of _____________________.
  9. Dr. what does it mean to say that a person is not competent to stand trial?
  10. And do you have an opinion as to whether the defendant is incompetent to stand trial in this case?
  11. Dr., is the mere fact that a defendant has a mental condition, in and of itself, sufficient for you to opine that the person is not competent to stand trial?
  12. Are you aware that there are statutory issues which must be addressed in any evaluation of competency?
  13. What are those issues? (CCP art. 46B.024 and .025)
    1. Has a rational understanding of charges and potential consequences
    2. Capacity to disclose to counsel pertinent facts, events and state of mind
    3. Capacity to engage in reasoned choice of legal strategies and options
    4. Understands adversarial nature of criminal proceedings
    5. Has ability to exhibit appropriate courtroom behavior
    6. There is evidence to support that the defendant is a person with mental illness or an intellectual disability
    7. The identified condition has lasted, or is expected to last, continuously for at least one year
    8. The identified condition has impaired, or is impairing, the defendant’s capacity to engage counsel in a reasonable and rational manner
    9. Whether the defendant has been taking psychoactive or other medication, and whether the medication is necessary to effectuate or maintain the defendant’s competency
    10. The effect, if any, of the medication on the defendant’s appearance, demeanor, or ability to participate in the proceedings.
  1. Did you explain to the defendant the purpose of the examination and the limitation on the rules of confidentiality as appertaining to the examination, as well as who would receive your report?
  2. What treatment alternatives are you recommending for this defendant and why?
  3. Could this defendant be safely treated on an outpatient basis? Why or why not?
  4. Is the defendant medication compliant? If not, has an application for forced medications been filed?
  5. Describe the facts upon which you based your opinion.   
  6. In your medical opinion, based upon your observations and your medical training, what medications, if any, constitute the proper course of treatment and are indicated for this defendant?
  7. To what facility are you recommending the patient be committed?
  8. Your honor, I would like to pass this witness subject to possible recall if I may…

****************

                The foregoing should not be construed as an exhaustive list of queries for direct examination of an expert in a competency hearing; however, it may provide some directions for further inquiry, if needed.

Special Populations

                Two populations deserve specific attention in any anticipated competency hearing: (1) persons with an intellectual developmental disorder (IDD), and pro se defendants. The American Association on Intellectual and Developmental Disabilities defines an IDD as a disability arising before the age of eighteen (18), characterized by significant limitations both in intellectual functioning and adaptive behavior. The former term was “mental retardation.” See The Diagnostic and Statistical Manual of Mental Disorders – 5 (DSM-5), published by the American Psychiatric Association.

                Covarrubias, supra, argues, however, that IDD clients often conceal their deficits by a “cloak of competency.” They may not mention that they are unable to read or handle simple calculations and often work in menial jobs that do not require higher level cognitive skills. Moreover, many are not so obviously impaired that counsel – or a jury – would readily identify them as exhibiting a significant deficit in adaptive functioning. The author cites a 2007 Texas case, Hunter v. State, Hunter v. State, 243 S.W.3d 664 (Tex. Crim. App. 2007) where  the testifying psychologist explained how the defendant wore a cloak of competency to mask his symptoms of mental retardation and hide his deficits in adaptive and intellectual functioning. The psychologist pointed out that as part of the defendant’s cloak of competency, the defendant denied ever attending special education classes. The defendant also told the psychologist that “he had learned to use a computer in prison, but he actually had taken only a basic keyboarding class,” and had stated that he could “fix things at home” when in reality all he would do is tighten a loose doorknob!

            The moral is that any evidence from any credible source that the defendant might be incompetent should trigger an evaluation.

            The second special category are pro se defendants, who – in Texas – are often “sovereign citizens”, and whose preoccupations conceal highly crystallized and fixed delusions, such that representation is quite difficult. Such cases should also trigger a Faretta hearing (Faretta v. California, 422 U.S. 806 (1977)) so that the court may determine if the defendant is capable of defending himself.

Restoration Commitments

            In the event the trier of fact concludes that the defendant is incompetent, restoration commitments are mandatory unless the defendant is opined, and found, not likely to be restored in the “foreseeable future.”  Note that although there is no statutory definition of “foreseeable future”, in practical terms this means the period of time available to the court in these matters, i.e., a restoration commitment of sixty days plus a possible sixty-day extension for misdemeanants; or one hundred twenty days with a possible sixty-day extension for felony cases. A review of all the options, inpatient, jail-based and outpatient restoration are beyond the scope of this brief article, though each has statutory requisites, cf. Art. 46B.

            One may remember, as well, that the court is statutorily required to present to the restoration facility or program a host of materials, including a copy of the defendant’s criminal history.  See CCP Art. 46B.076(a)(5).

            In addition, because defendants often wait for extended periods on restoration beds, it is important to be aware of the forced medication statutes which apply to persons during the pendency of a finding of incompetency and transfer to a restoration program or facility.

Summary

            In the foregoing brief article, we have reviewed many – but by no means all – of the issues which arise in competency hearings, as well as tips for representation in these cases, e.g., Motions in Limine, direct or cross examination of experts, the standard of evidence, and the fact that restoration commitments are mandatory. Should further questions arise, please feel free to contact the author.

An Artifact of Times Long Gone

Sometimes when you look through a pile of old papers, you find a jewel hidden under them. COVID-19 boredom put me on a spring-cleaning spree at the office, and what turned up but the “MINIMUM FEE SCHEDULE-CRIMINAL CASES” for Travis County dated October 17, 1969. A fine old lawyer gave it to me back in 1978. The contents of this pamphlet are both hilarious and hard to believe. Can you imagine, in today’s world, a county bar association publishing a minimum fee schedule?

I am not a Travis County lawyer, but Betty Blackwell, our beloved past president, is. Betty has written a short summary of the characters involved in the production of the pamphlet back in 1969. Two of them are our own Frank Maloney and Robert Jones, the first and 14th presidents of TCDLA, respectively. In this difficult time for our country and our profession, we hope you enjoy what follows.

The MINIMUM FEE SCHEDULE put out by the Travis County Bar Association was sold for the exorbitant sum of $1. It was intended to let the local bar know what to charge, and it also included an interesting list of offenses. Back then TCDLA didn’t exist to publish code books, so local groups had to assume that role. How far we have come in providing access to resources for lawyers is astounding.

Take a look at the minimums for retained cases and prepare to be amazed: A jury trial for murder with “m” – meaning malice – was $1,500. Hourly rate was $40. And apparently Travis County was the sex-crime center of the world. Of the 11 felonies listed with suggested fees, six of them were sex related. Shame, Travis County, shame! And look at the difference in the fee for rape at $1,000 and sodomy at $1,250. I don’t have the nerve to attempt to explain that.

Appellate specialists, be prepared to go broke. A brief and argument before the CCA was $1,000. You could expect to get the lavish sum of $1,500 if it was a capital case. If Mowla wasn’t already bald, he surely would get that way with these fees!

Now to pleas: A felony plea fee was $250. Considering what some counties have paid in very recent years for court appointments, that is not bad. Obviously, some counties have come a long way to go in regard to fees, while others apparently are currently using a copy of the pamphlet for a guide.

The Penal Code has never been a great source of pleasure for us, but let’s have some fun using what is in the pamphlet. Some of the offenses listed and the punishments associated with them will definitely make you scratch your head: Fornication was a misdemeanor with $50 the minimum fine – no jail time. On the other hand, running a bawdy house would get you a $200 fine and 20 days in jail for each day the bawdy house was open. I suppose wise advice was not to fornicate in a bawdy house. There was no harassment statute but sending an anonymous letter could get you a $25-$1,000 fine and one to 12 months in the county pokey.

Today we deal with gang violence all the time. It was better for the client back then. The fine for firing into a car was a minimum of $5. But the gang members had better not throw a stench bomb because that was a felony punished by $25-$5,000 and/or one to 25 years in the pen! And then there was castration at five to 25 years in the big house. Disfiguring was only two to five years. I guess you had to think twice about what body part to disfigure.

For those inclined to be a Casanova, beware: Seduction was a two-to-10-year felony. But then wife desertion was only a misdemeanor with up to two years in the county jail. The smart move was to marry anyone you seduced. How that conflicts with fornication was probably a bar exam question. If it wasn’t, it should have been. And finally, in this day of deadly viruses and social distancing, we close with a crime that we are all told to commit every day–wearing a mask in public would get you up to a $500 fine and 12 months in jail.

Tip Hargrove, San Angelo

The producers of the pamphlet included Robert Jones, Dain Whitworth, Paul T. Holt, Wallace Shropshire, Herman Gotcher, Jr., Frank Maloney, Forrest Troutman, and Jon Coffee.

Robert Jones, the chair of the committee, is a past president of TCDLA. He brought John Boston on as executive director of TCDLA. Robert personally went around to every criminal defense office in Austin asking that we all join TCDLA. In 1984 he was elected, with no opposition, to a criminal district court bench in Travis County and eight years later he was defeated for re-election and then served as a visiting judge for some time.

Dain Whitworth had been in the district attorney’s office before leaving to join the staff of the Texas District and County Attorney’s association. He and John Boston were great friends and for many years, they were the lobbying team at the legislature on all criminal law matters.  They usually agreed on more issues than they disagreed upon. He moved to the coast of Texas and has a small practice there.

Paul T. Holt was a legend in Austin. He has the largest criminal defense practice here for many, many years.  He never hired more attorneys, only more secretaries, at one time carrying three full-time secretaries on his staff.  He would open his office on Saturday morning to do free wills for any police officer. He was the great advertizer before it was legal, handing out glow-in-the-dark key chains with his name and phone number and always the phrase “To a good friend from Paul T. Holt”. My favorite story of Mr. Holt is that during his prime trial years, he had a card file on every person who ever served on a jury in Travis County and how they voted. It gave him an incredible advantage when it came to trials and every opponent knew it.

Wallace Shrosphire had been the county attorney of Travis County and then went into private civil practice as his wife Doris Shrosphire became the long-serving county clerk of Travis County.

Herman Gotcher, Jr., had been a legal aid lawyer before being hired as an assitant district attorney where he made his name as “Maddog Gotcher.” He was vicious in the courtroom and tried a string of drug cases, winning many long prison sentences in the early 1960s, until the criminal defense firm of Minton and Burton came into existance. Charlie Burton was the brillant mind behind that lawfirm with Roy being the  flamboyant one. But it took the two of them to finally start getting some acquittals in drugs cases in the late ‘60s and early ‘70s, to change the DA’s view of those cases.

Frank Maloney was the first president of TCDLA.  He practiced law for many, many years in Austin. The saying in Austin during that time was, “If you are innocent, hire Maloney; if you are guilty, hire Minton and Burton.”  Those offices were the two most prominent criminal defense firms in the state at the time. Frank went onto the Court of Criminal Appeals and upon forced retirement, he taught law at the University of Texas law school before finally completely retiring.

Betty Blackwell, Austin

Many thanks to those wise souls who, in 1969, gave us something we can laugh at in 2020. Keep safe and certainly hope to see you IN PERSON soon.

Memories of TCDLA’s 1st President (Part II)

This is a continuation of “Memories of TCDLA’s 1st President” published in the May 2020 issue of Voice for the Defense. Click here to read the first installment.

April 15, 2020

Knox Jones of the McAllen-Brownsville, Texas, area was not a nationally known lawyer in the ‘70s , but he was famous here in Texas because, first, a very famous case bears his name; In re Knox Jones ex rel grand jury v. U.S.; secondly, he was a past president of TCDLA; and lastly, he was a very good lawyer. Like Racehorse Haynes, he knew how to put things into perspective and had a sense of humor that kept you laughing. But what happened was no laughing matter. This story is about Knox and the other four lawyers colorfully called the “Laredo Five”– five lawyers who went to jail rather than name their clients.

The United States Attorney for the Southern District of Texas was seeking to stem the transportation of marijuana from Mexico and decided that instead of prosecuting the transporters (“mules”) who were being represented by Knox and the other four lawyers individually, he would go after the people who were sending the transporters across the border, collectively known as “Mr. Big,” an idea supported by Judge Connolly and the federal grand jury. But how would they do it? The mules were under indictment and individually represented by the five lawyers. Because of the complexity of the operation, the mules had no knowledge of who was or how many were “Mr. Big.”

Subpoenas were issued for the five lawyers. They each appeared before the grand jury and were asked who “Mr. Big” was and who was paying their legal fees They each refused to answer. They were threatened with contempt. They refused to answer. They were threatened with conspiracy indictments and they refused on Fifth Amendment grounds. Subsequently, they were cited for contempt and ordered to appear before Judge Connolly. Enter me. Representing all of them, I argued that the subject was protected under the Professional Proscription Rule and the Evidence Privileged Rule. Judge Connolly held them in contempt and ordered them jailed. I moved that they be released on their own recognizance, but that request was refused. I moved for an expedited appeal. That was also refused. I asked if we could repair to his Chambers to call Judge Brown, the chief justice of the 5th Circuit in New Orleans. This we did and after a short heated phone conversation, Judge Brown ordered my clients’ immediate release.

The 5th Circuit arguments were not easy, but in a unanimous opinion authored by Judge Homer Thornberry, the court held that the identity of a client paying a legal fee even for others was privileged. Unfortunately, several years later this rule was qualified in the case of Pavlick, in an opinion written by Judge Reavley. When hearing of this, Knox commented: “Does this mean we don’t get to go to Paris?”

PS: Of the four lawyers, one became US attorney for the Southern District of Texas, one became a very famous international lawyer, one became a state district judge, and another became a multi-millionaire personal-injury lawyer. Over the years, I tried several federal jury cases in the valley, including a federal conspiracy-to-commit-kidnappings-with-intent-to-murder case charging a district attorney, and, as always, I utilized my friend Knox Jones as co-counsel. Knox passed away several years ago at a very young age.

April 16, 2020

To conservatively describe Austin as it was in the ‘60s, it was a mess. The Civil Rights Movement, the Vietnam War, racism, drugs, all produced a war-like attitude, particularly in the University of Texas area. The collective attitude among the students was almost like it was them against the rest of the city, while the police, who were not yet trained to handle it, were caught in the middle.

Chief Beverly Laws and Assistant Chief George Phiffer, both reasonable men, were faced with daily demonstrations by students, which, in some instances, amounted to riots. The drug arrests by the APD, DEA, and DPS added to the turmoil. Property damage was extensive; all of which cast a black shadow over tranquil Austin and brought suffering to the families of those involved and to the participants. It also brought about a new and better-trained criminal defense bar. Faced with numerous arrests of participants engaged in all kinds of crimes that were not the usual street crimes that they were used to defending, the lawyers were forced to rise to the occasion. Fortunately, the Supreme Court had handed down numerous Bill of Rights decisions in the early ‘60s which helped protect errant students from being convicted of crimes that were sometimes overcharged by police and prosecutors.

The police, in thwarting what they believed to be unlawful behavior which sometimes got out of hand, used force resulting in severe injury to the participants and even the occasional police officer. The law at that time provided that force against an officer engaged in lawful conduct constituted aggravated assault punishable as a misdemeanor up to one year in the county jail, a fine, or both. Needless to say, there were a lot of aggravated assault cases filed. Which brings us to the Weedon Gasoline Station demonstration on the “drag” in front of the university.

Don Weedon was denounced as a racist by a group of students because he refused to sell gasoline to blacks, refused to hire them, and in fact was accused of mistreating them when they were on his property. These sentiments produced a demonstration of several students, which escalated into more than a hundred students moving onto the station property, resulting in police activity and multiple aggravated-assault charges. GC, a young black girl, a straight-A student, and a member of several honor societies, who happened to be among the demonstrators, was manhandled by a police officer who ended up with a scratch on his arm and who, based on department policy, filed an aggravated-assault complaint against her. At her trial, the state asked for jail time to make an example of her for the edification of the university. With several university professors testifying as to her character, the jury rejected the aggravated-assault charge, settled on disturbance of the peace, and fined her $25.

That same year in a march against the Vietnam War, a severe confrontation occurred with more than a hundred police officers lined up on the north side of East 19th Street (now Martin Luther King Boulevard) and what seemed like the entire student body on the other side. Jeff Friedman, student body president and who would later become mayor of Austin, ran to the center, conversed with Chief Phiffer, and together caused the crowd to disperse. The students, prior to dispersing, had marched up Congress Avenue, through the capitol, and forced the police to back all the way to East 19th Street. Had the confrontation unfolded as everyone expected, there was no question that the police would have used force to prevent further progress. In addition to the above activities, drug use and the resulting arrests, peaceful Austin was not the same. This, however, would pass.

April 16, 2020

It is a compliment to the bar that there are so many women engaged in the practice of law today. Just a few short years ago, if you ran into a woman lawyer, it was an untold experience and hard for some lawyers to accept. Even today it is an experience that some have difficulty accepting. Travis County, for instance, has more women judges than male judges. The district attorney is a woman. One highly successful lawyer told me he was happier in a male-dominated federal practice, and felt Travis County was averse to him because woman lawyers had taken over.

When I was in law school in the ‘50s, there were three women students. One of them, Pat Hines, was a member of the Order of the Coif, the highest honor a person could receive as a student of law. In the ‘60s, I knew of only two women judges in Texas: Mary Lou Robinson, a state district judge who became the first woman federal judge in Texas, and Sarah Hughes, who also became a federal judge. Both women served as district judges in the Northern District of Texas. In the ‘60s, ‘70s, and ‘80s, women became more active in the fields of law and politics, resulting in more women becoming lawyers and Judges.

My law firm had grown and in the ‘70s had one woman lawyer in the civil division and two women law students as research assistants. I had two lawyers, both men, working for me in the criminal division, but we needed an additional lawyer. A good number of law-school students who were about to graduate applied for the position, mostly men and a few women, and after interviewing them, I hired the one I considered the most qualified, Mary Noel Golder. She was perfect for the job, she was a fighter, a brilliant student, and became an excellent trial lawyer. So much so that it was difficult to keep her at the firm. She assisted me in several cases around the state and I relied on her. Unfortunately for me, she was too good to remain my associate. I wanted to make her a partner, but it would have disrupted the order of promotion in the civil divisions, so I lost her to a firm in San Angelo, where she became a very rich and outstanding partner.

Her replacement was Mrs. Belinda Wright, who was also a fighter and brilliant lawyer. I relied heavily on her for her appellate work both in state and in and federal courts. In a murder case out of Perryton, Belinda handled an appeal before the Amarillo Court of Appeals. This Court had the reputation of regularly ruling for the state. The district attorney himself handled the appeal for the state. At oral arguments, the court concluded the arguments and invited Belinda and the district attorney into chambers for coffee to continue discussion and argument about the case, which she won. At a much later time, when I was on the Court of Criminal Appeals, one of the judges who had heard Belinda argue told me the justices had found it necessary for them to hear additional argument by the state because they were so impressed with Belinda’s brief and argument and were ready to rule for her, thus the invitation for coffee.

At another time, in a case in federal court where the jury, after long deliberation, had convicted my client, it became necessary to question the individual jurors and to obtain affidavits from them on jury misconduct, if any there was. Belinda undertook the investigation and the affidavits clearly showed jury misconduct. During arguments on the motion for new trial,  the judge became enraged and accused us of jury tampering. She stood right up to him and, with slight help, he backed down and said that he did not mean to state that. When I was elected to the Court of Criminal Appeals, after much pleading by me, I took Belinda along as my research assistant. I think she was much more influential on the court than I was. 

All of my research assistants and the several briefing assistants over the six-year period were women. One of the best, Valarie Eiben Strauss, was hired by me as a research assistant and is still at the court. My daughter believes that I was rightly prejudiced by each assistant’s abilities and hardworking principles. I think she is right.

PS: All of the men I had working for me were also excellent. They had to be–there was too much feminine competition.

April 19, 2020:

The University of Texas Law School in the ‘50s was perhaps ranked higher among law schools than today, with only about 100 accredited law schools nationwide. Today, there are more than 300 accredited law schools in the nation, with UT ranked 13th. Harvard , Yale, Stanford, NYU, University of Chicago, Northwestern, and Virginia have always been ranked as the highest. The high ranking of Texas in the ‘50s is explainable for the following reasons: It was recognized as the law school to attend in the southwest; there were a declining number of persons studying law in the ‘50s; and, most importantly, its faculty. Dean Page Keaton attracted outstanding people to teach at Texas. He was a nationally recognized authority in tort law, had an unparalleled mind, and held the respect and adoration of the student body and faculty.

Charles T. McCormick was a faculty member at the time and he was also the leading authority in evidence. His books were the primary textbooks on evidence used in every law school in the country and he was cited in most court opinions faced with evidence questions.

Additionally, Dean Leon Green, a past dean of Northwestern Law School, was the national authority on tort law, particularly on proximate cause. George Stumberg, also among the professors, was the leading authority on conflict of laws and criminal law, and just so happened to be my mentor. Judge John Stayton, the leading authority on procedural law, was among those who called UT Law home. Joe Sneed , a leading authority on contract law who later became Dean of Stanford Law School, also taught at UT.

Millard Rudd, Joe Witherspoon, Gus Hodges, and numerous others–too many to name–added to the list of prestigious professors who taught at Texas. There were many applicants to teach there. Some erroneously felt it was a place to start, most correctly felt it was the place to be. The student body numbered about 300. If your grade-point average was in the low 80s or high 70s, you were a star.

Having said all of this, I can truthfully say that because of my antics, I was lucky to graduate. My friends in law school were mostly veterans of the Korean War. We tended to be skeptical, we enjoyed life sometimes too much, particularly so at the Split Rail or Schultz’s Beer Garden. So we were not the best of students, at least in subjects that, although required, we did not enjoy.

Chauncey Depew Leake was the only one of us who successfully raised his average after the first year, the first year being four- or six-hour courses and pretty well setting your average. I think this was Chauncey’s way of pleasing his father, who was the dean of the medical school in Galveston. After we four, by some miracle, passed the bar exam before we graduated, I suffered a detached retina and in the middle of my last semester had to return to Brooke Army Hospital in San Antonio.

Since I was confined to bed, and wanted to graduate from law school, I arranged for readers. Dean Keaton and the professors of four of my classes , in an arrangement with troop information at Brooke, allowed me to take finals courses from the hospital and my answers were returned to the law school for grading. I did well in legal medicine and legislation, but was unable to take the finals in commercial law and Texas land titles. I returned to the law school but did not enroll.

The dean let me sit in in those courses in the summer semester and to take the finals, whereupon I passed, graduated, and went to work for the Travis County District Attorney. But, before that, at the University of Texas Medical Center, during that summer when I was not officially enrolled , an incident occurred that almost caused Jack Proctor, who was associate dean of the law school, to do more than just lecture me. But that is an another almost-lawyer story.

PS: What is even more of a story, I taught at the law school as an adjunct professor teaching the four-hour course in criminal law and a course in federal substantive criminal law from 1962 through the ‘80s and then once again in the 2000s. I even draw a small pension.

Memorial Day 2020: Honoring TCDLA and HCCLA Veterans

If you think that you are having a bad day because your TV or phone or computer is not working, then get in your car and go to the nearest VA hospital and see real problems. People bitch and complain and gossip about bullshit all the time. In the hospital you will see men and women of the “Greatest Generation” suffering and coping with things most people can not comprehend. When my family members joined the Army in WWII, they signed up for the duration of the war, not for two or three years. They went over the pond as my uncle used to say and did not come back for over four years. When lawyer Richard “Racehorse” Haynes was dodging bullets on Iwo Jima, he was just trying to stay alive. My Abilene friend William Ervin Sims, who recently died at age 92, carried a BAR, a Browning automatic rifle, weighing 16 pounds up the hills of Iwo Jima. Those two men and many others fought 35 days without rest and managed to survive.

Memorial Day has traditionally been a day of observance for the men and women who died in the sacrifice of the cause they were fighting for. This day is different from Veterans Day in that Veteran’s Day is set aside to honor all veterans. Since many in the WWII and Korean War generation are growing older, I felt it incumbent on me to honor all veterans by putting forth a short statement honoring those both living and dead who have served this great country.

One good friend and veteran Victor Blaine went away several years ago and I know he would approve of me writing this article now. John Saur is another Houston lawyer who froze for months when in Korea serving his country. When I asked him about the article, he was happy and said anyone who was worried about the date could come see him and he would have a surprise for them that he brought back in his duffel bag from Korea. John Saur was in the middle of the fighting and came back, finished college and law school, and has been a lawyer almost 50 years.

Memorial Day is a federal holiday originally enacted to honor fallen Union soldiers after the Civil War. It was originally known as Decoration Day. Decorating the graves of their fallen soldiers was commonplace by Confederates even before the Civil War had ended, by southern ladies of Richmond and southern schoolchildren. The catastrophic number of dead soldiers from North and South alike meant that burial and memorialization was very important after the war. Townspeople, mostly the women, buried the dead and decorated graves during the war. The oldest national cemetery was created in 1862. After Abraham Lincoln’s death, many events to commemorate the war began. The first such event was in Charleston, South Carolina, on May 1, 1865. Union soldiers who died there were buried in unmarked graves. Freed slaves knew of this and decided to honor these soldiers. They cleaned up and landscaped the burial ground. On that day, nearly 10,000 people gathered to honor the dead and 3,000 schoolchildren and others brought flowers to lay on the burial field. Historians said this was the first Memorial Day. African-Americans invented Memorial Day in Charleston. Black Americans freed from slavery brought flowers and sang songs about the war. Speeches on Memorial Day were a time for veterans, politicians, and ministers to commemorate the war. People of all religious beliefs joined together and the point was made that immigrant soldiers had become true Americans because they had shed so much blood in battle. By 1870, much of the anger was gone and speeches praised the brave soldiers of blue and gray.

By 1950, the theme of Memorial Day was to uphold freedom in the world. Today, Memorial Day extends to honor all Americans who have died in all wars.

Tennessee was a divided state during the Civil War. Some of the families that served in the Union Army had family members joining the Confederates. My maternal great-grandfather Abraham George Washington Cox and great-great-grandfather Abraham Cox enlisted with the Confederate Army on the same day. Abraham George Washington Cox was 15 and his father Abraham was 51. They served in the Tennessee Calvary. After the war, Abraham George Washington Cox rode a mule from Tennessee to Cooke County, Texas, got married, and had 12 children and named them after Confederate heroes. My grandfather was named Robert E. Lee Cox. Abraham George Washington established the Mt. Zion School Church, and Cemetery. Each year in May, our family meets there to attend “Graveyard Working” like the old customs that started Memorial Day. My paternal great-great-grandfather Joseph Washington Mathis fought with the 1st Alabama Infantry. He was captured at Island Tennessee on 4/8/1862, escaped capture at Port Hudson, Louisiana on 7/9/1863, and was captured again in Nashville, Tennessee, on 12/16/1864. He was held prisoner until the end of war. His children came to Jones County, Texas, in 1899.

My son, who coincidentally was born on July 4, called me from the recruiting station when he turned 17. He said the recruiter would not let him join without my permission and would not let him be a military police officer. I got the recruiter on the phone and he laughed and said you will have to get permission from the Pentagon. I was in Ted Poe’s court that morning and told him. He, himself a veteran, made some phone calls and at four p.m. that day a major at the recruiting station said, “Please don’t make any more phone calls. Meet me here at five p.m. and your son will be sworn in.” My son went to the U.S. Army and was trained at Fort Anniston, Alabama, as a military police officer. He served there and got out but was recalled after 9/11. He served again and left the Army as an E-5 with an honorable discharge.

In Flanders fields the poppies blow
Between the crosses, row on row,
That mark our place; and in the sky
The larks, still bravely singing, fly
Scarce heard amid the guns below.

We are the Dead. Short days ago
We lived, felt dawn, saw sunset glow,
Loved and were loved, and now we lie,
In Flanders fields.

Take up our quarrel with the foe:
To you from failing hands we throw
The torch; be yours to hold it high.
If ye break faith with us who die
We shall not sleep, though poppies grow
In Flanders fields.

– John McCrae

We cherish too, the poppy red
That grows on fields where valor led,
It seems to signal to the skies
That blood of heroes never dies…

– Moina Michael

We all complain about high taxes, traffic, bad government, bad judges, bad prosecutors, bad presidents, and bad everything. The list of things we complain about is long. In America we have the right to complain. Try that in some foreign country and your life will be ended. We live in a free country where opportunity exists for all people. People from all over the world want to come to the United States of America. Members of TCDLA and HCCLA and their family members who have served, or are serving, will be listed at the end of this article. They all need to be recognized for their sacrifices, be it large or small. Some of us were in the military reserve and some were in the middle of battle and saw their comrades dying around them.

Some were brave men who did extraordinary things in battle to fight for our country. One member at a recent seminar in Plano said, “I was only in the Naval Reserve.” I reminded him of the phrase by John Milton, “Those also serve who stand and wait.” Even those who were, or are standing in wait, are serving. As we have seen from recent history, many of those who were standing and waiting were called to active duty and sent to foreign lands to serve and fight if needed. Many of those who were standing and waiting went overseas and never came back.

The problems facing veterans have gained some attention and in many counties there is now a Veteran’s Court They recognize that veterans have special needs. Too many times, when representing a veteran, I try to point out to the prosecutor that this person served our country and may have suffered some disability or some change that affected the veteran’s behavior. Too often I have heard the prosecutor say, “Well, everybody has some kind of excuse.” No, I point out everybody did not go through what the veteran did. This attitude prevails in every court room across the state. Most of these people never served in anything, not even Cub Scouts. Few judges in the Harris County courts were in the military. The exceptions are Judge Mike McSpadden, Judge Jim Wallace, Judge Marc Carter, and Judge Ruben Guerrero.

As lawyers representing veterans, we need to get the military records and prepare a mitigation motion or motion to dismiss the case. We need to be vigilant in our fight for the veteran client. If there is a Veteran’s Court, try to get the case transferred there. If there is no Veteran’s Court, then try to get other veterans to help you do your best for the client. Get all the people from the VFW or American Legion to come to court and see what happens. Even bring the members of the veteran’s motorcycle clubs, the Patriot Guard, and Rolling Thunder. Go to military.com to get a list of veteran groups. If the veteran has alcohol or dug problem, bring the AA or NA group too. It has proven to be very effective.

Famous wartime quotes:

“A good battle plan that you can act on today can be better than a perfect one tomorrow.”
-General George Patton

“Freedom is the right to be wrong, not the right to do wrong.”
-John Riefenbaker

“Never trust a private with a loaded weapon, or an officer with a map and compass.”
-A Murphy’s Law of Combat

“You don’t win a war by dying for your country. You win a war by making the other son-of-a-bitch die for his.”
-General George Patton

Richard Grenier said, as George Orwell pointed out, “People sleep peaceably in their beds at night only because rough men stand ready to do violence on their behalf.”

The following members of TCDLA or HCCLA (or their family members or investigators) served in the military and we honor them all:

*Reiffert Riley Evans
*Alan Schein
Richard “Racehorse” Haynes
Robert Scardino, Sr.
John Saur
Andrew Lannie
Victor Blaine
G. Wesley Urquhart
John Urquhart
Lucio Martinez
Bobby Mims
Bernie Trichter
Herman “Hymie” Trichter
Lucille Trichter
Albert Fickman
Philip Fickman
Albert Schein
Max NewDelman
Jack Zimmermann
Terri Zimmermann
Kyle Sampson
Abraham Cox
Abraham George Washington Cox
Ernest L. Pelton
Wilmer M. Pelton
Joe L Pelton
Robert C. Pelton
Robert O. Pelton
Joseph Washington Mathis
BF Harless
WD Harless
Cullen Harless
SL Hardcastle
Charles Hardcastle
Norman Harless
Robert W. Kelly
Jack Kelly
Marcel Kelly
Charles Dirnbauer
Mark Dirnbauer
Katie Dirnbauer
Rod Schuh
Rod Schuh, Jr.
Will Gray
John Morgan
Warren Burnett
Buck Files
Jim Brown
Rodney Williams
Pat Williams
Dr. Phillip Lewis
Maricia Brooks
Max Scott
Stan Weinberg
William Flynn
Mike McCollum
Charles Wetherbee
Terence Russell
Jesus Garza
Don Davidson
Charles Mabry
Richard Mabry
Zachary Curtis
Steven Green
Dorsie Ray Green
James Matthew Ratekin
Matthew Brent Ratekin
Donald Hoover
Don Bailey
John Hunter Smith
Eliseo Morin
Charles Easterling
Bill Torrey
Frederick Ullrich
Dale Ullrich
Louis Ullrich
Michael Finger
John David Leggington
Harry Belden
Louie Greco
Raymond Zimmerman
Charles W. Tessmer
George Miner Jr.
Bill Torrey
Louis Greco
Lorton E. Trent
Oscar Trent
Olen Poole
Max Basket
Bill Baskett
Arthur Leslie Kagan
Harry Belden
Gerald Rogen
Jesse Pruett
Max Scott
James Story Sr.
James Story II
Santiago Salinas
Tom Berg
Tom Moran
Pat McCann
Bennie Ray
Mark Vinson
Tony Chavez
John Patrick Callahan
David Patrick Callahan
Donald Hoover
Don Bailey
John Hunter Smith
Eliseo Morin
George E. Renneburg
Jeffrey Brashear
Steven Green
Lanhon Odom
John M. Economidy
Byron G, Economidy
John “Bud” Ritenour
Larry Sauer
Forrest Penney
Frederick Forlano
Daniel Moreno
Abel Palomo
Michael Moreno
Joseph Moreno
Randi Ray
Steve Green
Jeusu JD Garza
Jerry Parr
Jefferson Moore
Leonard Martinez
Stephen Ferraro
John Convery
Julie Hasdorff
Benjamin Thomas Hudson Jr.
Ebb Mobley
Louis Akin
Sergio Tristan
John Youngblood
Charles Wetherbee
Dr. William Flynn
Alfred Dane
Alvie Dane
Charles Russell
Terence Russell
David Randall
Tanner Yeats
Herman “Hank” Lankford
Robert Harold Jackson
Arlan J Broussard
Richard Trevathan
Jim Skelton
George Parnham
James Barlow
David Black
J.C. Castillo
Logan Dietz
Ralph L. Gonzalez
Connie Williams
Hal Hudson
Guy Womack
Charles W. Lanehart
Matthew Daniel
Lonzo McDonald
Patrick McDonald
Warren McDonald
Ron McLaurin
Herbert Wolf
Theodore A. (Tip) Hargrove, III
Buddy Balagia
Travis E. Kitchens
Zachary A. Garcia
Jeff King
Patrick McLain
Cullen Elrod
DeSean Jones
Joe Varela
Bob Heath
Hank Johnson
David Zimmerman
Todd Lehn
Thomas Kelton Kennedy
David G. Ritchie, Jr
Anne K. Ritchie
Bobby Mims
Bob Estrada
Edward Mallett
Mike Peters
U.S. Army Special Forces.  1969–1970
Joseph Connors, USMC
Virgil Poe
Ted Poe
Mac Cobb
Danny Morris
Neil Elliott
Ron McCoy
Jim Jordan
Kirk Holder
Rocky Hood
Mike Latimer
Mike Murphy
Richard Valdez
Donnie Martin
Portis Wooley
Don Wooley
Mike McCoy
Joe Haralson

*Killed in Action

This article is dedicated to my high school friends, Frank Dunlevy and Robert Paul Robbins, both of whom served in the 101st Airborne Division; and Jack Zimmermann, U.S. Marines; Joseph Connors; Bobby Mims; Lazaro Iziguire, 82nd Airborne; my brother, Joe Pelton, who graduated from Army Infantry Officer candidate school at age 19; and my son, Robert C. Pelton, who served as a military police officer in Enduring Freedom.

How to Fix a Blood Warrant Scandal

If you haven’t seen the Netflix docuseries How to Fix a Drug Scandal, stop what you are doing.  Go invest four hours of your life.  Prepare to be blown away.  Director, Erin Lee Carr, explores how far government employees (attorneys, judges, and lab personnel) are willing to go to prevent mass decriminalization.  While the cases in the docuseries involved two drug lab analysts compromising drug testing in Massachusetts, a similar battle is raging in Texas involving blood labs and the way blood warrants are written.  Since the Court of Criminal Appeals landmark decision in Martinez, which declared that the seizure of one’s blood and the subsequent testing of one’s blood are two distinct searches under the Fourth Amendment, various Courts of Appeal are trying to distinguish the language to avoid suppressing blood results in Driving While Intoxicated (DWI) related cases and accidents.  The fix is in, and courts seem more concerned with protecting convictions than following the law.  Until our courts force the government to follow basic Fourth Amendment Law, the fix may be in, but the problem remains.

Massachusetts’ Scandal

In 2013, Massachusetts State Police arrested 35-year old Amherst crime lab chemist, Sonja Farak, for tampering with evidence: and that was only the beginning.1  Over time and once Farak had been given immunity, details emerged that Farak had been in fact using the drugs that she was tasked with testing—for nearly a decade.  The scope of Farak’s addiction and the number of people convicted as a result of her drug testing came to light despite repeated efforts to hide the scope of Farak’s wrongdoing.2  The docuseries How to Fix a Drug Scandal examines the lengths to which some actors in the criminal justice system will go to protect convictions, cover up a scandal, and affect 35,000 lives in the process.

Farak was not the only one.  Just six months before Farak’s arrest, another Massachusetts lab chemist, Annie Dookhan, was caught dry labbing her results.3  Dry labbing is simply plucking a result out of thin air and reporting it—without ever testing a sample.  Dookhan’s work affected thousands of cases.  Whereas Farak was literally high for most of her Amherst lab career, she actually tested the samples.  Dookhan, on the other hand, lied about testing every sample.4

Together, Farak and Dookhan were responsible for compromising over 35,000 drug cases which helped land thousands of people in prison.5

But in April 2017, 21,587 cases were dismissed because of Dookhan’s involvement, according to Bustle.6  In 2019, the Boston Globe reported that over 24,000 charges from around 16,000 cases were dismissed due to Farak’s involvement.7

Texas’ Growing Scandal

When analyzing the atrocities that occurred in Massachusetts and the nature of the scandal, one realizes the limitless potential for abuse by lab employees with little or no oversight.8  It starts with the police who are tasked with getting crime off the streets.  Any evidence collected should be analyzed and reported by an independent lab.  An independent lab is critical for accurate, reliable and credible results since it is such powerful evidence.  As we know, all labs make mistakes. However, very few labs or analysts will ever admit making mistakes.9  The accused then hires a criminal defense attorney to essentially audit the lab results and ensure that any search and seizure was in accordance with the Constitution.  Ultimately, the trial judge should then act as “Gate Keeper,” refusing evidence when the testing does not clearly and convincingly show reliable, accurate results.

As Massachusetts showed us, the desire to keep convictions and prevent a scandal far outweigh following the law, being open and honest with juries about all of the issues, and requiring proper policy and procedure checks and balances.  When a mistake is made, Judges should encourage dissemination of all faulty evidence and demand corrective action.  But in reality, Massachusetts fought tooth and nail to keep the public at large—and those affected and on trial—in the dark about the evidence at the heart of the scandal.

These lab issues are not unique to Massachusetts.  Already in Texas, private chemist Amanda Culbertson discovered dry labbing (28 of 32 people in a sample batch run) by Texas Department of Public Safety crime lab El Paso analyst Ana Romero.  Culbertson found Romero had essentially copied and pasted the data from one subject to another.  And those electronic data files were “magically erased.”  In two complaints, Culbertson reported her findings to the Texas Forensic Science Commission (TFSC), which investigated the claim.10  The TFSC found evidence Romero may have dry labbed or may just have been negligent for the lab not to have procedural safeguards in place protect against dry labbing.11

The TFSC abandoned the 28 blood tests and enacted preventative measures but never talked to Romero.12  To date, Romero has not been charged or properly investigated and granted immunity to disclose how far her dry labbing goes back to determine how many cases were truly affected over her tenure in the crime laboratory. 

Just like Massachusetts and any science lab run by human beings, Texas has crime lab evidence issues.  The next wave to fix a blood warrant scandal is making its way through the judiciary—fighting the mass suppression of results and failure to demand narrowly drawn warrants and searches of the “informational dimension” of blood evidence.

Judges Fighting Martinez

Martinez requires the government to obtain an additional search warrant to authorize the testing and analysis of blood separate from seizing the blood for medical purposes.13  After a traffic accident, Martinez was taken to the hospital where medical personnel drew his blood for medical purposes.14  Martinez voluntarily left the hospital after informing nurses he could not afford any tests.15  Subsequently, upon the State’s presentation of a grand jury subpoena, the hospital released Martinez’s blood to a Department of Public Safety agent; the State sent the blood to a crime laboratory for testing.16 Martinez moved to suppress the blood test results, and the trial court granted the motion.17  Affirming the trial court, the Court of Criminal Appeals held “there is a Fourth Amendment privacy interest in blood that has already been drawn for medical purposes.”18  Martinez had a subjective expectation of privacy in his blood drawn for medical purposes, and the State’s warrantless testing of the blood “was a Fourth Amendment search separate and apart from the [initial] seizure of the blood by the State.”19  Because no exception to the warrant requirement applied, the State was require to obtain a warrant before testing Martinez’s blood.20

Some trial courts are properly suppressing blood in accordance with the Fourth Amendment and Martinez—finding that a blood warrant was obtained to draw the subject’s blood (seizure), but a subsequent search warrant for the testing and analysis (searching) was never obtained.21  However, various Courts of Appeal are refusing to follow Martinez and are narrowly construing the facts in order to avoid proper suppression.22  In CriderHyland, and Staton, the courts mistakenly relied on the fact that in Martinez the blood was drawn by a hospital for medical purposes.23

How to Prevent a Scandal

It may seem like a rhetorical question, but how can the Judicial Branch (Judges) and the Executive Branch (State attorneys) remain distinct to prevent this growing scandal?  

  1. Seize the Blood Legally

There are really only three ways that the people of Texas can have their blood drawn legally.  The first is by consent.  But consent to a blood draw must be freely and voluntarily given.24   Or they are unconscious and have deemed to consent via Texas’s Implied Consent statute.25  The second way is that a hospital is allowed to draw someone’s blood for medical purposes and not at the direction of the police.  HIPAA governs and protects the person’s privacy.  But the State may then go get a grand jury subpoena and ask for the person’s records or evidence.26  This is what happened in Martinez—the State used a grand jury subpoena for evidence obtained for medical purposes.27  And third, as is custom around Texas, a Judge signs a blood warrant to draw the blood from the person and authorizes a variety of people to help in that extraction. 

The Court of Criminal Appeals already acknowledged there are two distinct triggering events implicating Fourth Amendment protection: 1) the initial extraction of the blood from the arm, and 2) the subsequent search of the “informational dimension” of the blood.28

Various Courts of Appeal are fighting Martinez and using the hospital draw as the distinguishing factor.  However, no one is arguing that a valid blood draw warrant doesn’t grant the police agency authority to properly seize the blood from the arm. Martinez’s blood was drawn in a valid manner just as a valid blood draw warrant would allow.  What’s missing is the subsequent authority or power to violate a person’s Fourth Amendment privacy concerns and conduct a search on the information contained within the blood.

  1. Search the Blood Legally

Blood draws and warrants really began to be the normal policy and procedure around 12 years ago.  Since that time, many counties are able to get blood warrants 24 hours a day, seven days a week.  And somewhere about 7 years ago, the State began drafting form affidavits for blood warrants and form blood warrants for judges or magistrates to sign.  These forms were undoubtedly written to make the State more efficient and reduce the number of mistakes that could invalidate a warrant.  But, importantly, these pre-Martinez form warrants only authorized an extraction of blood—not subsequent testing. 

Remember, if properly drawn in a grey top tube as required by Texas DPS procedure, these tubes should contain a preservative and an anti-coagulant and be properly refrigerated.  Numerous State analysts testify that the blood was properly drawn, stored and available to the defense to retest at any time.  If that’s the case, what is stopping the State from retesting the blood with a proper search warrant?  

  1. No Common-Sense Exception to the Fourth Amendment

The Crider and Staton courts boldly claim “common sense dictates that blood drawn for a specific purpose will be analyzed for that purpose and no other.”29  But a neutral, detached magistrate’s “common sense” reading all depends on what the affiant-officer is qualified to opine about.  Most blood warrant affidavits are signed by an officer who was certified only in Standard Field Sobriety Tests, which are exclusive to determining intoxication by alcohol.  Most of these affidavits only show signs of alcohol intoxication and ultimately opine only alcohol as the intoxicating substance.  And then, the results come back under the legal limit, or it involves a death or serious injury and the State then tests the blood for drugs or medications.

What if the officer is not a Drug Recognition Expert? What qualifications does he possess even to speculate on what substance the person is intoxicated?  And did he conduct an examination?  The magistrate or judge signing the warrant must first determine the scope of the search based on the facts and qualifications of the officer swearing to the information in the affidavit.

While the Courts of Appeals suggest using “common sense” in order to determine what the State of Texas will want to search for, they obviously underestimate the zeal of the State of Texas and overlook the constitutional purpose behind the Fourth Amendment.  

Our current practice violates the most fundamental tenant of Fourth Amendment law—preventing the government from conducting limitless, general searches.30  Presumptions should be in favor of citizens, not the government.  Drafting warrants to cover these situations is nothing new, and courts should not worry about testing other seized evidence: “Because biological evidence is sui generis, this practice need not be replicated under circumstances when the object of the warrant is nonbiological[.]”31  The State can, moreover, streamline the process by drafting a single warrant properly tailored to authorize both drawing and testing.  Professor LaFave’s treatise explains:

When a magistrate is faced with a petition for a search warrant attempting to seize biological evidence (such as blood) from a criminal suspect, the warrant that issues should explicitly incorporate the scope of testing authorized on that sample. To obviate the general warrant problem, such restrictions need to be narrowly tailored in light of the supporting affidavit of probable cause presented.32

The State routinely searches for alcohol, medication, and/or illegal drugs on their own request all without a warrant specifically allowing the search.  The State must be required to rewrite the pre-Martinez warrants to expressly authorize what the blood is to be searched for, using what type of analysis, and for what length of time, just like a warrant to search a house, which contains less sensitive information than a person’s blood.

Easy Fix to Prevent a Scandal

It’s now in the hands of the Court of Criminal Appeals. Some trial courts have followed Martinez by properly suppressing evidence, but various courts have tried to distinguish or interpret the intentions of the Court of Criminal Appeals in Martinez to avoid suppression.  What if the State of Texas just did it right?  The State has been relying on pre-Martinez forms to get what are now insufficient blood warrants.  First, the State should be required to rewrite all the blood warrant forms to accurately reflect Martinez.  This would require specifically stating the blood is to be tested and analyzed, how it will be analyzed, for what substances and within what period of time.  Second, for all current cases with this outdated paperwork, the State needs to go get a new warrant and retest all of their samples.

Yes, Martinez may require more paperwork.  It is not busy work, though.  Justice favors protecting our Constitutional rights more than potentially suppressing blood, reopening cases, and decriminalizing some people.  Massachusetts learned the hard way by trying to cover up a drug lab scandal.  Texas is in the midst of a blood warrant scandal.  The Courts can remain unbiased and detached and not feel any guilt by trying to cover up the State’s outdated paperwork or desire not to back log the crime labs.  Let’s not trample our Fourth Amendment to prevent suppression of illegally searched evidence.  Get the State to do their job and not aid in covering up this injustice.

* The authors would like to thank Dustin Hoffman, Law Clerk at Westfall Sellers and 2020 Texas A&M School of Law J.D. Candidate, for helping write this paper.

General Information on Immigration Issues During the COVID-19 Pandemic

Is Immigration and Customs Enforcement (ICE) still enforcing immigration holds and moving detainees into ICE custody?

Yes. ICE is still enforcing all current immigration holds. There is currently no direct relief due to the COVID-19 pandemic. However, in March ICE identified over 550 detainees over 60 years of age or pregnant but only released 160 individuals after a lengthy evaluation of their immigration histories, criminal records, potential threat to public safety, flight risk, and national security concerns.

All new detainees will be screened upon entering the facilities and those who meet the CDC’s criteria for epidemiologic risk of exposure to COVID-19. ICE Health Service Corp. (IHSC) will isolate detainees with fever and/or respiratory symptoms to observe them for a specified time period.

Please call an immigration attorney for more information and refer to ICE March 27, 2020, memo (below Resource #1) for further details.

Is Immigration Court still proceeding with removal hearings?

Yes–on a limited basis. All immigration courts located in detention facilities are open and adjudicating removal proceedings. To enter the detention courtrooms, persons will be screened by answering a questionnaire about travel, health, and other various indicators of exposure to COVID-19, as well as having his/her temperature taken. Additional safety measures, such as eyeglasses, mask, and gloves may be provided or required. Please check with the local facility in your area and refer to ICE April 10, 2020 response (below Resource #2) for further details.

 **In Houston, the Conroe facility is conducting telephonic hearings with the approval of the court on a limited basis.

Non-detained hearings, status dockets, and USCIS fingerprinting, swearing ceremonies, and field office visits will be suspended until further notice. Please call an immigration attorney for more information and refer to USCIS Response site (below Resource #3) for further details.

Is ICE still accepting bonds?

Yes. ICE will limit the acceptance of bonds to locations with “bond windows” or other appropriate barriers. Only the individual appearing to post the bonds will be permitted to enter the office. Please contact your local immigration court for further details or call an immigration attorney for more information and refer to ICE Guidance to COVID-19 site (below Resource #4) for further details.

Is ICE allowing visitations of persons in detention facilities?

Yes–to legal representatives. Detention facilities are working on video or teleconference options for lawyers but will allow person-to-person contact if declared essential by the legal representative.

No to family or social visitors. ICE has suspended social in-person visitation until further notice. ICE is “requesting” detention facilities to utilize teleconferencing, video visitation (e.g., Skype, Facetime), email, and/or tablets, with extended hours where possible. Detention facilities should identify indigent detainees to be afforded the same telephone access and related privileges as other detainees. Each facility must ensure all detainees are able to make calls to the ICE-provided list of free legal service providers and consulates at no charge to the detainee or the receiving party, and that indigent detainees may request a call to immediate family or others in personal or family emergencies or on an as-needed basis to maintain community ties. A detainee is considered “indigent” if he/she has less than $15 in his/her account for 10 days.

Please call an immigration attorney for more information and refer to ICE March 27, 2020 memo (below Resource #1) for further details.

RESOURCES:

1)  Memorandum to ALL DETENTION WARDENS on COVID-19 Action Plan, Revision I, (March 27, 2020)

2)  ICE COVID-19 PANDEMIC RESPONSE REQUIREMENTS (April 10, 2020)

3)  USCIS Response to COVID-19

4)  ICE Guidance to COVID-19 website

Memories of TCDLA’s 1st President

March 10, 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 19, 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 20, 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, and126th. 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 24, 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 Sheltons 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 25, 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 woman 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 woman 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 woman 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 27, 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 28, 2019

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 28, 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 29, 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 30, 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 30, 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 31, 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 31, 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 1, 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 turmoils 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 1, 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 2, 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 attorneys association, the sheriffs 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 2, 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 3, 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 witnesses. 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 4, 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 4, 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, Virgnia, 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 5, 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 6, 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 and Perry and 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 8, 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 Cavalary, 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 9, 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 Mc Cormick. 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.
In 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 12, 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 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 theCivil 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 12, 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 14, 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 cros-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 as leading law octogenarians…

To be continued.