Shout Outs

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Clint Broden had a client charged in federal court for failure to register as a sex offender in the Northern District of Texas based upon an Illinois Child Pornography conviction. The case was dismissed on the eve of trial through a motion in limine based on the argument that the Illinois child pornography law had a broader mens rea element (should have known child was under 18) than the federal law (knew child was under 18). Because the Illinois statute “swept more broadly” than the federal SORNA statute, Broden argued that the Illinois could not form the basis of a federal failure to register charge and therefore was inadmissible at trial and need to be excluded in limine. Without the admissibility of that conviction, the government had to dismiss the case because it was the only basis for the federal failure to register charge. Congratulations, Clint!

Congratulations to Heather Barbieri, who got a NOT GUILTY on false allegations of continuous sexual assault of a child, last week in Collin county. Amazing work, Heather!

Mark Griffith received a verdict of NOT GUILTY on a DWI case. His client’s blood test was suppressed prior to trial. After a full investigation and a two day jury trial, “Sweet Justice” was served. Congratulations, Mark!

The Court of Criminal Appeals unanimously decided Ex Parte Clinton Lee Young, No. WR-65,137-05 (unpublished) granting a new trial on September 22, 2021. Young had been on death row since 2003, and had three previous writs failed. The Los Angeles Federal Defenders, Capital Habeas Unit, took on the case and found records that the district judges had paid Assistant District Attorney Ralph Petty $16,000 for working for the judges on Young’s case, while drawing a salary from the District Attorney’s office. The DA self-recused and a neighboring County’s DA was appointed to represent the State. Allison Clayton was enlisted to assist with FOIA requests and other investigation of Midland County records. Ultimately, Petty double-dipped repeatedly, getting paid by several judges as their “law clerk”, from around 2000-2016, on top of a base annual salary of about $151,950. At least $262,650, in addition to his salary, was paid by the judges. Petty retired in lieu of State Bar discipline. In response to discovery efforts, Petty asserted his Fifth Amendment rights. This throws into doubt the validity of about 450 convictions in Midland County. TCDLA has filed Complaints with the State Commission on Judicial Conduct, reporting record facts on all the offending judges. Outstanding job to Allison Clayton, and all who contributed!

Kudos to T.W. Davidson, who represented a client on trial for murder in Cherokee county. After a nine day trial and six hour jury deliberation, they received a NOT GUILTY verdict. Great work, T.W.!

Shout-Out to Mark Thiessen, Amanda Culbertson, and Kacie Penman, who were able to achieve a NOT GUILTY on a .146 suppressed breath test DWI case. They were able to prove that the 15 minute required observation period for the breath testing was violated by the arresting officer by checking the DPS computer logs. Kudos to all!


Staff Highlights: TCDLA’s Seminar Associate

Desirae Esquivel

Title: Seminar Associate
Native State: Texas
Zodiac Sign: Libra
Favorite Color: Lime Green
Loves: to be creative
Interesting Fact: She cannot wink, snap or whistle.

Desirae Esquivel has six years of service industry experience and has been a bookkeeper for over two years. At TCDLA, she prepares registration forms, agendas and evaluations. She also applies for the CLE credit and maintains the online CLE. In her spare time, she likes to draw, paint, craft and sew. In addition, she volunteers at dog adoption events and enjoys the great outdoors.

TCDLA
TCDLA
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Shout Outs

Kudos to Houston assistant PD Nicolas Hughes and colleague Sarah Wood for their work challenging testimony on bloodstain pattern evidence and gunshot residue. Sarah filed a complaint with the Texas Forensic Science Commission, stemming from testimony in a cold case, Nicolas says: “Christopher Duncan with HPD testified regarding bloodstains, and reasoned that because there was a single positive blood result, then all the other spots he felt were part of the same ‘stain pattern’ must have also been blood as well.
 “Dr. William Davis testified about gunshot residue statistics, misapplying a study about finding GSR on hands in this case.
 “The Texas FSC concluded that there were severe problems with both areas of testimony. The Texas FSC concluded that there are foundational problems with BPA and will require that BPA analysis be performed under accreditation standards after May 2019. The Texas FSC also concluded that GSR experts should not be applying statistical tools to support their conclusions.“
 As Nicolas concludes: “I don’t think enough credit can be given to Sarah Wood to raising this important issue and challenging junk science and misapplied science. Not all our victories happen in Court. “
 Excellent work, Sarah and Nicolas, in the fight for justice.

Notch another big win for listserve lodestar Michael Mowla on a convoluted case on remand from the CCA in the 204th District Court. The State was attempting to reinstate four indictments against D the trial court had dismissed with prejudice, in a case involving a dispute over a $50 million fee. D sought to have them quashed due to three types of alleged prosecutorial misconduct—lack of a disinterested prosecutor, vindictive prosecution, and selective prosecution. In a scathing concurring opinion, Justice David Schenck battered the State’s case: “A prosecutor proceeding to take a case before a grand jury where the objective facts would indicate an undue influence casting a shadow over his judgment and that would otherwise not be pursued cannot be adequately remedied by simply observing the fact and starting over as if it had not happened. Without some form of meaningful remedy, there would be no meaningful check on the very weighty institutional concerns that undergird Massey Coal and the right to due process that would otherwise be reduced to a hollow form of words.”
 He also added, “[T]he trial judge had ample evidence on which to base her decision to dismiss with prejudice on either a finding of egregious misconduct by the district attorney or a finding that but for his misconduct no case would have been brought.”
 The entire opinion is worth a read, rife as it is with details about prosecutorial misconduct and assorted skullduggery. It can be found here: https://law.justia.com/cases/texas/fifth-court-of-appeals/2018/05-13-00424-cr-1.html.
 Of note as well is the fact that the DA in question here lost a bid for reelection and will no longer haunt the halls of justice. Congratulations, Michael, for walking the walk on another big case.

Seth Sutton of Waco sent along a shout out to his brothers in arms: “Today, my partner Jason Milam and our associate Stephen Yip received a NOT GUILTY on both counts (assault family violence and interference with an emergency phone call) of a hard-fought trial. I think what makes me so incredibly proud is that not only was this an appointed case, but the defendant had also been stuck in jail and already had the time served. Many lawyers would have convinced such a client to simply take a deal to get the thing over with. But to Jason and Steven, every client and every case matters. Nice work, guys!”
 And Jason returned the favor in another case: “Seth Andrew Sutton did a great job in negotiating a plea deal for our client in which a felony would be pled down to a misdemeanor for time served. This is an incredible result as our client lives in another state and would just do a walk-through at jail after court and catch a flight home tomorrow. I handled the announcement and plea today and was able to confirm out-of-state credit that got him to time served.” Congratulations to our Waco warriors for jobs well done.

Kudos to Team Thiessen of Houston for a righteous verdict in a recent case. The circumstances of this case require further explication. From Mark: “2½ years ago our client ran over a man and then took off. It all started when she double-parked in her apartment complex roundabout. When she came out the owners (daughter and father) of the car began yelling at her. As she attempted to leave around the circle, the father flanked her and tried to block her from leaving. Little did he know that our client suffered from serious PTSD against men from being kidnapped and forced into sex slavery—and the FBI had to kidnap her back out. There were no burn-out marks, he sustained no cuts or injuries to his legs. Our accident reconstructionist opined he was run over at around 5 mph. All the evidence suggested he jumped out in front of her. The State and father alleged she stopped, said move out of the way, and then just ran over him. He was a very fit man with a lot of room to the left or right to move. He didn’t and was very seriously injured (52 days in a coma, $1M in medical bills). However, she left the scene of the accident, did not return, and never called 911. We fought the aggravated assault with a deadly weapon charge from the beginning. But then they filed failure to stop and render aid (FSRA)—very smart, because the client did not stop and render aid. The Agg Aslt was dismissed and the client plead guilty to FSRA. We went to the jury for punishment because the State wanted her to do 10 years in prison.
 “We had a very smart jury that listened to all of the evidence. The jury agreed that prison was not the right punishment for this particular set of facts. They gave our client probation. The Judge was very fair in trial and assessed no jail time. Our client returns home to her 3 sons and has a chance to rebuild her life. Tears were shed, and we were happy to save this poor young lady from prison.
 “Thank you to the just jury and their ability to see through the State’s attempt to punish her for injuries that were not her fault. I hope they forever remember the day they gave a young lady a second chance at life. And thank you to the Judge for running a fair trial.“
 Not all wins result in the big NG, but this outcome certainly deserves a shout out to Mark and Taly.

Ethics Committee Chair Robert Pelton sends a shout out to committee member Ray Fuchs and Joel Perez of San Antonio for their work on a capital murder trial of a man charged in the shooting and stabbing deaths of two people after an argument over cigarettes. Despite D’s DNA found on the murder weapon, the jury deliberated for 13 hours over two days but were unable to reach a verdict, hanging 6–6. Congratulations, guys, for outstanding work on a tough case.

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TCDLA

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