Shout Outs


A big shout out to Randy Schaffer of Houston, at whose behest the State Bar of Texas is pursuing disciplinary action against a former Harris County assistant district attorney—who allegedly struck deals with three jailhouse informants in exchange for testimony in a capital murder trial without notifying the defense. Before the 2010 trial, in which D received a life sentence, Randy had made a pretrial request for all exculpatory evidence, including any consideration given to witnesses in exchange for their testimony. Last year, a state district judge, noting the absence of strong DNA evidence, ordered a new trial for D after finding that the ADA failed to disclose her deals with witnesses in return for their testimony that they heard D confess to the killings. The State Bar petition, filed in district court, alleges that the ADA agreed to make favorable recommendations in the sentencing of two jailhouse informants and the parole hearing of a third in return for their testimony. The petition alleges, “When the witnesses were questioned about any agreements made with prosecution, they each testified that they had not been promised anything in return for their testimony,” and also that the ADA “failed to correct the false testimony.” Randy filed a grievance last year and was joined in September by the Bar. Congratulations, Randy, on fighting to redress this all-too-common wrong.

Robb Fickman sends a shout out to David Adler of Bellaire, who convinced a Federal District Judge to over­turn his client’s state court life sentence for murder. Judge agreed with David that a court-appointed attorney provided ineffective assistance to D, who has served 19 years. In a case that smacked of self-defense, D’s original attorney didn’t request an LIO of manslaughter or negligent homicide. The Victoria County DA has 180 days to decide if they will retry. Great work, David!

TCDLA Board Member Danny Easterling sends along a shout out to Kathryn Kase of Houston and the entire Texas Defender Service team—who won a Writ in the SCOTUS to save a D’s life. After D spent 20 years on death row and went through several appeals, the U.S. Supreme Court earlier this year granted him a new sentencing hearing because of testimony from an expert who told jurors that he was more likely to be dangerous in the future because he is black. A creative plea agreement for a life sentence on the Capital Murder and two new 60-year sentences for Attempted Murder was completed, heading off another trial. Danny adds, “Incredible work was done on this.” Kudos to Kathryn and all at TDS for their work.

Allison Clayton sends along a shout out for a recent win: “I am beyond thrilled to announce that today the Court of Criminal Appeals set aside the wrongful conviction of IPTX and TTU Innocence Clinic client Jesse Griffith. Almost 15 years ago, Jesse was wrongly convicted of felony-grade theft—the only conviction on Jesse’s record and yet one that has followed him in his personal and professional life ever since. Today, that wrongful conviction was undone, and Jesse can at long last move on. This win is because of the outstanding work of clinic students Ashleigh Hammer, Brandon King, Rudy Moisiuc, and Mercedes Janné Torres. Patrick S. Metze, thank you as always for your guidance, leadership, and support in bringing the TTU Innocence Clinic in house and making it ever better.” Congratulations, team, on a job well done.

Patty Tress and Gregg Long of Denton recently received a Not Guilty on a Failure to Register as a Sex Offender case, a short trial but very hard fought on a few issues. Patty and Gregg were able to keep out of guilt/innocence any mention of the prior Failure to Register conviction for their client, who was facing a potential punishment range of 15–99 or life. They were also able to argue to keep the state from making the case 25–99 or life. The state’s case rested on the word on one very unreliable witness and the defense was able to prove she was unreliable. Further, the defense showed the lack of investigation done by the Dallas Police Department SOAP unit. The jury saw justice that needed to be done in this case and gave D his life back. Congratulations, team, on a good win.

Congratulations to Phil Baker of La Grange for a righteous win on a DWI case in Washington County. D was returning to his home in Georgetown, Texas, after attending his brother’s wedding in Florida. D, a 43-year-old with no priors, had a CDL and had driven a cement mixer for the past 17 years. D was married and had two school-age children. Concerned driver (CD) reported D as a reckless driver. CD testified D swerved in and out of his lane and eventually crashed into the barrier cables. Troopers arrived on the scene and conducted SFSTs. D not only failed all SFSTs, but lost his balance, nearly falling several times. Complaining about dizziness, he was released to the EMTs and transported to local a hospital. Hospital lab reported BAC of 247.
 At trial lab results were admitted over objection even though State failed to call the lab tech. RN who drew blood and treated D testified he was possibly dehydrated, had high blood sugar, was possibly anemic and had a high white blood cell count. RN also testified that D sounded and appeared normal less than an hour after the accident. None of the state’s witnesses testified that they could smell the odor of alcohol coming from the D—and that D never asked to use the restroom. (D admitted drinking the night before at the wedding but denied drinking on the day of the arrest. Blood test excluded drugs as a possibility.) Defense argued that reasonable doubt existed as to the cause of D’s obvious impairment. D offered—again—to plead guilty to reckless driving after 2 hours of deliberations. State refused. Jury deliberated three hours—and returned Not Guilty! Way to go, Phil.

Kudos to Ezekiel Tyson of Dallas, recently selected as the J. L. Turner Solo Practitioner of the year, presented by the J. L. Turner Legal Association Foundation. He was honored at a reception on October 21 at the InterContinental Dallas. Congratulations on this well-deserved recognition.

A shout out to Nicole DeBorde, James Makin, and the TCDLA Strike Force, marshaling forces in Beaumont recently in response to a civil attorney’s attempt to force a paralegal, Andrea Podlesney (of Tyler Flood’s office), to give a deposition about privileged matters she worked on related to a case. Scuttlebutt had it that the judge, ignoring attorney-client privilege, might order Andrea to submit to the deposition. As noted, if a civil lawyer could order Tyler’s paralegal to give a deposition about her work on a case, he can do the same to any member. The call went out to the Strike Force for a mass showing in the courtroom in support of our rights—50 TCDLA members in the room would certainly get the message across. Perhaps in response to the call to arms, the matter was dropped without forcing Andrea into the deposition. Yet still a fine example of the Strike Force in action. Congratulations to all in the Houston and Beaumont area for swiftness in responding to the very possibility of such an action.

In the October print issue of the Voice, Tad Nelson was pictured watching as his car sank, not Thad Davidson. In the July issue, Daniel Garrigan’s was misspelled. The proofreader has been shot.

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