Shout Outs


Shout out to Drew Willey of Galveston, written up in the New York Times after a judge allegedly took away some of his indigent clients and refused to appoint him new ones because he “worked too hard.” His offense? The judge said he was “the only attorney” who routinely asked for a paid investigator, complaining that cases resulting in guilty pleas should generally take more than three hours of work. The Times article pointed out that though few cases go to trial, the length of the sentence offered in a plea bargain can hinge on the prosecution’s case, and a thorough evaluation of the evidence can put defense lawyers in a stronger negotiating position. In a criminal justice system that sees four out of five cases falling to court-appointed lawyers or public defenders, this all too often leads to bogus plea-bargain agreements and over-incarceration. In the case in question, Drew’s hiring of an investigator to check out police inconsistencies led to a reduction in the state’s offer. The judge sliced the amount allowed for this investigator, later approved by another judge. Drew next heads to federal court, where Charlie Gerstein of the Civil Rights Corps, a D.C. nonprofit, filed suit to illustrate a “phenomenon that pervades the entire legal system.” Keep on fighting, Drew. You have a lot of support for the cause here in Texas. The Times article, which contains some pertinent statistics, can be found here:

Allison Clayton of Lubbock sends along this shout out: “I wanted to take a moment to brag on some outstanding work by one of our own. Roger Nichols [of Austin] took a case pro bono for Edward Ates, an Innocence Project of Texas client. Twenty years ago, Mr. Ates was sentenced to life for a murder that I at least believe he did not commit. Ed was up for parole a few months ago. As many of you can attest, release on parole for a lifer who has ‘only’ served 20 years is rarely a serious possibility. Most reviews that I have seen in such cases involve a rubber stamp and the word ‘denied.’ I knew if Ed was going to have any chance, he would need a bona fide parole lawyer. Many attorneys would have turned down a pro bono case with little likelihood of success. But not Roger. He patiently listened to me make my case, and then he actually agreed to help with Ed’s parole (which is more a testament to his character than my power of persuasion).
 “And here’s the kicker—Roger (working for free on a difficult case) did an incredible job. I don’t know the legal jujitsu of parole practice, but whatever it is, he must certainly be a master of it. We just found out earlier today that Ed’s parole has been approved. When Ed went in, his wife was 5 months pregnant with their son. Thanks to Roger, Ed will get to enjoy the summer with his son and his wife (who has stood by his side for the last 20 years) before his son starts college.
 Roger is an example of the best of us. He used his skill to make a real difference for Ed and his family—for no reason other than he believed it was the right thing to do. Congratulations, Roger, and thank you!”
 We would be remiss if we did not also include this shout out from Allison’s Facebook page: “[T]he lion’s share of the work in Ed’s case is done through the Texas Tech School of Law’s Innocence Clinic. Clinic students have put in an incredible amount of time working through Ed’s case and finding and fighting for evidence we believe proves Ed’s innocence. Janet Judith Moreno, Kristen Gavigan, Chris Nisttahuz, Ryley T. Bennett, Ashleigh Hammer, Rudy Moisiuc, Mercedes Janne’ Torres, and Brandon King. Our Clinic thrives because we have the support of incredible people, professors, and administrators: Dean Jack Nowlin, Patrick S. Metze, and Darby Dickerson. And of course, the backbone of all we do is the Innocence Project of Texas and our Executive Director Michael Ware.“
 That says it all, other than this from Lubbock’s Sarah Gunter: “[N]one of this, NOT ONE BIT of it, would have happened without you, Allison. You are amazing, a God-send to so many, and I am immensely proud to call you my friend. Many, many congratulations to you and your team.“ Whew.

Tony Vitz sends along a big shout out to Houston’s Carmen Roe and Nathan Mays. “After a mistrial (hung jury), they kept fighting for Ricardo in another trial a couple weeks ago. Ricardo was shot by a young police officer “with an infatuation with guns and Brad Thor novels,” and of course, Ricardo was charged with the first-degree felony offense of Aggravated Assault on a Public Servant. The state’s initial offer was 15 years in prison and, after the mistrial, made a straight probation offer that would have been tempting for most lawyers. Carmen and Nathan refused the offer and trusted the jury to see what they knew to be true and they won. The State requested a misdemeanor charge of deadly conduct be included for the jury’s consideration because they knew they had already been beaten. The State knew their only hope was for the jury to make a compromise and go with the lesser misdemeanor offense. The jury acquitted Ricardo of the first-degree felony charge and found him guilty of the misdemeanor offense, and he received probation. Carmen and Nathan stood up and got justice for a good man.” Congratulations, counselors, on a job well done.

Shout out to Justin Underwood of El Paso for a big win in the case of a client charged with murder. D, a 68-year-old man, shot 46-year-old twice in the face with .22-caliber handgun. D, who gave statement to police indicating that deceased had beat him up in the past over money, said victim accosted him that night, wanting money and threatening him with a beating if he didn’t cough up. D retrieved weapon from his house and walked out to the sidewalk in front. D told the victim to leave, but instead he lunged at D— to hit him “like he did before.” Witnesses from the neighborhood confirmed that the deceased routinely intimidated and threatened elderly residents for money. Final determination? D used deadly force to protect himself. Way to go, Justin, for another just verdict.

Kudos to our ethics editor and chair of our Ethics Committee, Robert Pelton of Houston—this time from the ethics attorney of the State Bar of Texas, Ellen Pitluk: “Congratulations on your no bill today! Also, thank you for asking your group of TCDLA attorneys if I may be part of your ethics advisory email group. As I mentioned, my goal is to make sure our Texas-licensed attorneys have the best advice in these difficult situations. Consequently, I appreciate that you are resource. I am grateful, too, that you are willing to share your monthly column with me and to see if an associate TCDLA membership is available for a noncriminal defense lawyer. . . Thanks again for your help with dead bodies and bullet-riddled apartment doors.“ Way to go, Robert, and thanks to Ellen for her kind words.

Kudos to Richard Gladden of Denton for an NG on a 2nd DWI. Richard was able to persuade the trial judge to adhere to his prior practice of treating the prior DWI conviction allegation as an “enhancement” not an element. Judge seemed concerned with the prospect of a massive onslaught of habeas petitions filed by the thousands of adversely affected defendants who would have been acquitted for a Class A—under the 14th court’s decision in Oliva—due to insufficient evidence of the prior during the guilt phase of their trials. By asserting the prior as an enhancement, Richard necessarily waived any point on appeal concerning sufficiency to support the Class A. But having listened to the oral argument in the TCCA, he was only concerned that they would rule there was “harmless error,” which in his opinion would be the more radical result. Another win for TCDLA’s 2016 Lawyer of the Year. Good work, Richard.

Ex-prez Bobby Mims sends along this shout out: to Mark Bennett for a recent win in appeals: “The case that [Mark] argued was out of my law firm in Tyler. My associate Mishae Boren put the case together for this appeal, and Mark Bennett brilliantly briefed and argued it to the 12th Court of Appeals in Tyler. The justices were very well prepared, and Mark’s arguments and the clarity of the law clearly impressed the Court. What many may not know is that Mark testified against this statute before the House Criminal Justice Committee and warned the committee that their statute was unconstitutional. They voted it out and it was passed into law.  I think this is the second time that Mark has taken this law down as unconstitutional.” Congratulations to all.

Kudos to Bill Mason of Cleburne for his NG in an April trial on Failure to Register as a Sex Offender. D, whose felony convictions included a 1999 rape in Pennsylvania, moved to Texas in 2012 and reported to the Ft. Worth sex-registration office. In May last year, D and father fought when D wrecked dad’s car—who angrily called cops and said D was actually living for 6 months in Johnson City. D, who was homeless and occasionally staying at a Ft. Worth shelter, faced 2 to 20 in TDC. At trial, dad testified that he was just angry and wanted son arrested, that he would just come to his house to do chores for him and wash clothes. Jury did the right thing and acquitted. Justice was served, Bill. Good work.

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