Said & Done



Kudos to board member and DWI Resources Chair Mark Thiessen for walking the walk. Mark first tried a 0.16 breath test case in Houston where the client was pulled over for speeding, looked normal on the SFSTs, but was still arrested. Mark says Ray McMains was able to come in and show the jury that the Intoxilyzer was only working within a 61% confidence interval for its calibration. The next day Mark drove to Tarrant County and picked a jury with local counsel Tom Dusty Hill on a 0.14 blood test trial. He says the DA asked, “Why were we even trying it?” because the client showed so poorly on the SFSTs. A lesson to the jury on how meticulous and unfair the SFSTs were, followed by a suppression of the blood test due to a missing nurse, and the jury kicked it. Mark then returned to Houston and picked a jury in a DWI case where the client was passed out on railroad tracks. The jury acquitted after the client testified about his sleeping disorder. Not yet finished, Mark got a fourth case—a .17 breath test case—dismissed when he crossed the HGN about the 15-minute waiting period and the temperature of the simulator solution and drew a blank. The judge suppressed the breath test. So in the space of two weeks, Mark scored four acquittals—a good week for the defense.

Complementary kudos out of Houston last month: In a hard-fought Aggravated Sexual Assault case, Asha Reddi got her client 17 years on a lesser included charge of Sexual Assault (the State had offered 30 years). Asha lauded Grant Scheiner for his help: “I should have listened to Grant and struck a juror that he had suggested. He ended up being the foreman. Would have gotten an even better result.” Grant, in turn, returned the compliment: “Asha, you did an excellent job! It was a joy to watch you work and throw your heart into this difficult case. Considering the circumstances of the case and the client’s history, I would have thought 17 years was a pipe dream!” Kudos to both for their efforts.

Dan Hurley and Frank Sellers traveled to Howard County for a murder trial with what appeared to be a tough jury, which included three prison guards and a military policeman. The D, described by one witness as a “corn-fed white boy,” had been drinking at a bar most of the day, and around midnight decided to go meet up with an acquaintance he had met only one time. The acquaintance invited D over to a friend’s house, but when he arrived, there were four people on a dark front porch. As he approached, D asked which one he had met. Met with hostility, D retreated to his truck, chased by one telling him among many other things that he was going to kill him. Fearing that the others were also closing in, D pulled out his “varmint gun” from the backseat of his truck. D fired one shot and struck victim in the chest. The jury took just over three hours to decide it was self-defense. Good work, guys, in a tough venue.

Kudos to TCDLA capital-assistance attorney Rick War­droup for his yeoman’s work on the Capital Case Litigators Initiative, which ran concurrently with the Capital Trial/Mental Health seminar in San Antonio February 9–11. Over 12½ hours of lecture and 10½ hours of small group breakout sessions, 13 trial teams with active death penalty cases pending participated. Each team was made up of two attorneys, a fact investigator, and a mitigation specialist, working with faculty from Mexico City, Philadelphia (PA), Athens (GA), Columbia (SC), Durham (NC), Indianapolis (IN), and Columbus (OH), in addition to some of the best capital litigators from around Texas. Two or three teams shared each breakout room with three faculty members so the teams got the benefit of new sets of eyes and ears brainstorming their cases. A job well done on an excellent program.

Kudos to TCDLA strike-force member Stanley Schneider, who, along with Nicole DeBorde and Casie Gotro, has sought to intervene in the sanctioning of Houston attorney and UH professor David Dow, following a firestorm of member protest on the TCDLA listserve. A number of the protests were tendered by members who had been taught by Professor Dow. The contempt order suspends him from practicing before the CCA for one year because he ostensibly filed a motion to stay an execution late. As noted by the Schaffer law firm, expressing member outrage: “I have never seen a prosecutor barred from practicing before a court for repeatedly failing to timely file a brief—which happens, in my experience, with great frequency. Sanctioning a defense lawyer in this manner appears to be retaliatory and personal. The CCA needs to understand that they cannot kill our clients unless we willingly participate in the process. Why should we do so when the CCA treats one of our most experienced death penalty litigators in this manner?”
 Judge Alcala filed a notable dissenting opinion from the denial of rehearing: “Dow’s pleadings were filed on October 21, 2014, by 6:30 p.m., and the defendant was executed on schedule on October 28 after 6:00 p.m. Using a period of 24 hours per day as the calculable unit of time, Dow’s pleadings were thirty minutes late under the plain language of this rule. Under the plain language of the rule itself, therefore, I would not hold Dow in contempt for filing pleadings only thirty minutes late under circumstances in which this Court still had essentially seven days to consider the pleadings.”

Scholarships & Judge Stipends for Rusty Duncan

The Texas Court of Criminal Appeals is providing a limited number of travel stipends for judges to attend TCDLA’s 28th Annual Rusty Duncan Advanced Criminal Law Course June 18–20, 2015. TCDLA has been advised that judges can request reimbursement for their travel expenses (including transportation, meals, and lodging)—not to exceed $500. Tuition is waived for USB, and a book is available for additional charge. The host hotel is the Hyatt Regency. A room block has been set aside for judges at the government rate. The link to apply for scholarships is available on our website, Judges may use this link to apply:

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