Kudos to caped crusader Keith Hampton for his yeoman’s work on the strange case of Dan and Fran Keller, convicted in 1992 for performing satanic rituals on children and freed after 21 years in prison. Keith spent years working pro bono and collecting information attacking their convictions, arguing that the Kellers were the victims of a “satanic panic” in the 1990s, leading to wild-eyed stories of babies sacrificed, blood-laced Kool-Aid, and flights to Mexico for children to be sexually assaulted by military officials (yet returned before parents picked them up in the afternoon). A key witness in the case at the time, a young doctor with little experience examining young children for abuse, testified he found two tears and a fissure in the girl’s hymen—but recanted several years later, acknowledging that he’d learned at a medical seminar that these were in fact normal variations in pediatric genitalia. The CCA tossed the convictions but declined to declare the Kellers actually innocent. But in June, nearly two years later, the new Travis County district attorney formally dismissed the case against the Kellers. This ruling makes them eligible for compensation from the state of Texas for the 21 years they spent in prison. Way to go, Keith, for persevering on this long, strange trip.
Shout out to listserve laureate Michael Mowla for this post on reciprocal discovery: “If any of you are in state court in trial or during pretrial hearings and a judge orders you to turn over any part of your work-product or results of your investigation that does not relate to what must be disclosed regarding experts under Tex. Code Crim. Proc. Art. 39.14(b) for “inspection,” “in-camera review,” or as a form of “reciprocal” discovery, make sure you challenge the ruling. Washington, 856 S.W.2d 184 (Tex. Crim. App. 1993), is still good law, and reciprocal discovery is NOT allowed in Texas. Last week, a Dallas Muni Court judge ordered Manny Haddad (great lawyer in Dallas for those of you who don’t know him) to turn over 7 videos he obtained through his investigation over to the court so that the court and prosecutor can “review” for an “evidentiary ruling.” It is Manny’s right alone whether he wants to use one, two, all, or none of the videos during trial. The state (and court) are not entitled to view any videos, documents, recordings, or other work-product or results of a defense attorney’s investigation until the defense attorney deems it fit to produce the evidence during trial. Manny did the right thing and reached out to me, so we obtained a good result today from the TCCA. The petition for writ of mandamus and the order staying the proceedings are [available on the listserve]. Make sure you fight rulings like this. Today one judge may enter a ruling like this without a challenge, and tomorrow 10 will do the same.”
Shout out to Emily Detoto and co-counsel Paul Morgan of Houston for a recent big victory in a shaken-baby case. In 2015, she filed and successfully prosecuted a motion for a new trial for her client, who had pleaded guilty to shaking his child, causing traumatic brain injury, and was sentenced to 15 years in prison. He was released from prison and his case set for trial. Dr. Rebecca Girardet testified for the State, but a jury rejected her testimony and found D not guilty. As Emily says, “Do not plead those cases.” Way to go, team.
Michael J. Crawford sends along word of a major win for associate Cedric Johnson: a big NG in his first jury trial. D faced 25 years to life in prison, charged with assault FV choking—with two prior felonies and a trip to the pen—with a companion CPS case (though D did nothing to lose child except allegation by wife of choking). Cedric handled case from start to finish, with Michael sitting second chair to assist.
DA offered 3 years in the pen, D turned it down even though enhanceable to habitual. Client offered probation Friday before trial, rejected even though the state actually filed enhancement (lesser included charge of Class A Assault). Cedric and Michael tag-teamed during trial, where it came out wife was on meth. After three days, jury took two hours to return a verdict: not guilty on both charges.
“Cedric saved the client’s life,” Michael says. “I’m super proud of Cedric on his victory in the first jury trial he sat first chair. He handled himself very professionally even though every other question he asked was objected to. Cedric has been with the office for one year now and is a great asset and comrade in the daily battle for justice.” Congrats, Cedric, on your first big one—with many more to come.
Kudos to Charles Blevins of Lubbock for fighting the good fight. D, accused of a felony enhanced 25 to life, was on video “confessing” to his crime. Charles, assigned his case in July 2015, tried for nearly two years to resolve the case without him doing the time. Prosecutor wouldn’t budge, so he told them to set it for trial: He’d stipulate to all the evidence, and they could have a bench trial. Prosecutor then called and said they’d offer time served on an LIO Attempted. Charles went straight to his house and told D, and for him, it was a no-brainer—don’t take the risk. During the plea D cried and thanked him profusely for fighting for him. Charles said, “It reminds me that no matter the circumstances, everybody deserves someone to fight for them. One of my biggest peeves is when I visit with a client and they say no attorney has ever fought for them.” A long battle, but worth the effort, Charles. Way to go.
A shout out to John Raley, a partner in Raley & Bowick in Houston, who received the Clarence Darrow Award from the Harris County Democratic Lawyers Association during a June event at the Hotel ZaZa. Raley and the Innocence Project represented Michael Morton, who was wrongfully convicted of his wife’s murder and imprisoned for 25 years. Morton was exonerated in 2012.
A shout out is also in order for the defense team of Tom Mills, Liz Rogers, Mary Stillinger, Sherry Bunn, Robert Perez, and Luis Islas on a Federal Public Corruption case in El Paso. In the Western District of Texas, District Judge David Briones declared a mistrial after repeated issues with discovery/Brady non-production by federal prosecutors. Judge Briones acted after prosecutors and FBI agents turned over documents to defense lawyers more than two weeks after the trial had started, the third time in less than a week key evidence was turned over to the defense team during the trial.
Tracy Cluck sends a shout out for fellow member Chris Hesse of Amarillo for a big win on a DWI jury trial with a 0.195 blood draw—and a client who submitted to SFSTs. D was pulled over for allegedly running into some cones put up at an accident scene. During pretrial discovery, officer testified he recorded the SFSTs, but an IT officer testified no recording was found. In trial, Chris focused on the blood draw (when tech stated she never, ever made a transfer mistake) and the batch data and raw data chromatogram reports.
Chris argued that D was forced to give up his right not to testify because the State refused to turn over the video. D testified that he violated no traffic laws, and that he did well on the SFSTs. The State argued the old “fill in the gaps” and “use your common sense,” argument, which Chris notes is code for “please lower our burden, and ‘assume’ what the facts would have shown.” Jury came back in 20 minutes with the big NG.
Editor Sarah Roland sends a shout out to TCDLA Director John Hunter Smith, who earned a NG verdict on a bail-jumping case out of Grayson County with the odds stacked against him. John Hunter says D had advised ADA that he wanted to go to trial on his felony drug case (before John Hunter became involved). On the day of his trial, D didn’t show—mistakenly showing up a week later. ADA indicted on bond-jumping as leverage on the drug case, offering to dismiss it for a plea on the drugs. D declined, saying they’d see him in the courthouse.
A big shout out to Judge Brian Quinn, Chief Justice of the Seventh Court of Appeals, and the Texas Judicial Foundation, which provided judge scholarships for the Rusty Duncan seminar this year—utilizing a donation from the Greater Houston Foundation.
