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AUGUST / SEPTEMBER 1999 

DOCKET CALL 
A  Publication of Harris County Criminal Lawyers Association 
photo by Russell Webb
.HCCLA 
Lawyers  of the Year 
1998·99 
•  • 
..... -
I
DOWNTOWN  /  MARKET  SQUARE 
La Carafe 
813  CONGRESS 
HOUSTON,  TEXAS  77002 
713-229-9399 
KEY  MAP:  493 L 
Be  one of the  "in"  crowd 
A cozy and historic beer and wine  bar. 
La Carafe 
boasts the  best jukebox in  town. 
On Old Market Square. 
DOCKET CALL 
Men's  Furnishings • Tailoring 
Shoeshine  by  Weldon 
305 Travis  Street 
Houston,  Texas  77002 
713-227-5867 • 713-227-5022 
August /  September 1999 
HCCLA OFFICERS
1999-2000
PRESIDENT
Danny  Easrerling 
PRESIDENT ELECT
Rich ard  FrankoFF 
VICE PRESIDENT
Mark  Bennerr 
SECRETARY
Rosa  A.  Eliades 
TREASURER
Angela  Cameron 
PAST PRESIDENT
Lloyd  Oliver 
BOARD OF DIRECTORS
Mary Acosra 
Lorr  Brooks 
John  Carroll 
Winsron  Cochran 
E.  Ross  Cran 
Ron  Hayes 
Davi d Jones 
Jay Karahan 
Ellis  McCollough 
Garland  Mcinnis 
David  Mircham 
Tyrone C.  MoncriFFe 
Rich ard  L. Moore 
Anthony Osso 
Rick  Soliz 
Clyde Williams 
PAST PRESIDENTS
1971-1997
C.  Anthony Frilioux 
Stuarr  Kinard 
George  Luquene 
Marvin  0, Teague 
Dick DeGuerin 
WB,  House, Jr. 
David  R,  Bires 
Woody  Densen 
Will  Gray 
Edward  A. Mallert 
Carolyn  Garcia 
Jack B,  Zimmerman 
Clyde Williams 
Robett Peiron 
Candelario  Elizondo 
Allen  C.  Isbell 
David  Mi tcham 
Jim  E,  Lavine 
Rick  Brass 
Mary  E.  Conn 
Kent  A. SchaFFer 
Dan  Cogdell 
Jim  Skeiron 
George j . Parn ham 
Garland  D.  Mcinnis 
Robert A,  Moen 
,
DOCKET CALL August /  Septelnber  1999 
Contents 
From the President . . . . . . . . . . . . . . . . . . . .  . 2 
From the President-Elect . ................... 3 
Fifty 'Ways to Loose Your Lover or License ...... 4
Cheating to Win (Houston Chronicle editorial) .. 5 
Galveston Criminal Law Seminar . . . . . . . . . . . .  6
HCCLA Action Plan . ...................... 8 
Potpourri ........... . . . . . ... . . . . . . . . .... 9 
Meet the Judges . . . . . . . . . . . . . . . . . . . . . .  10
Pros and Cons ofa Public Defender System .... 12 
HCCLA Annual Membership Party .......... 15 
Sheep in Wolves' Clothing ................. 16 
Beating the Odds ........................ 18 
Hearsay . ..... .  ..................... 21 
Upcoming CLE . . .................... 21 
Let's Hear From You!
Call us with your suggestions on this publication.
DOCKET CALL
Publisher HCCLA
Allen Isbell Editor Emeritus
Editorial Staff
Advertising Staff
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DOCKET CALL· 1
August I September  1999 
From  the  President 
The  President's Opinion 
DANNY EASTE.RLlNG
This is my first
column as
President of this
great association,
and I am deeply
honored by the
faith and trust that
the membership
has placed in me by
electing me into
this office. I intend
to work hard to follow our mission statement
to assist, support and protect the criminal
defense practitioner in the zealous defense
of individuals and their constitutional rights.
The strength of our organization is the
everyday criminal defense lawyer, you, and
HCCLA is the collective voice; we must be
devoted to continuing to to develop
ourselves as a major force in offsetting the
erosion of defendants' rights and leveling the
playing field in the courtrooms.
A lot of people ask how justice can be
achieved when the overwhelming weight of
the entire State and the force of the
government demands a conviction? Every
day one of us stands up and announces that
he or she represents the citizen accused and
by doing so, we bravely stand between the
almighty power of the crown and our client,
to stand up, quite literally, for the
Constitution and the Bill of Rights that we
all should cherish. If Liberty and Freedom
are to survive as we know them, we must
continue to fight against the notion that the
prosecution has some constitutional right to
win each and every case, and that it is just a
fluke or "bad jury" whenever we gain an
acquittal because there was reasonable doubt.
Each of our members has to be the eyes
and ears of the community, as we are in the
trenches every day seeing both justice and
injustice. Please report your not-guilty
verdicts to us so that we may publish them
and give you the recognition you deserve. I
also encourage you to report to any officers
any unusual, unfair or improper act that the
government or the judiciary performs in your
presence so that we may address that issue
through some forum. I have formed a
Judicial Liaison Committee, which has been
sorely lacking for several years in our
association. Our board has unanimously
agreed that it is critical that the judiciary
know that we stand together as a united
criminal defense bar, but that we also have
respect for their positions as long as they
respect our roles as we appear before them.
As I write this, the media-labeled "railcar
serial killer," Mr. Resendiz, has surrendered
and now faces prosecution primarily here in
Harris County. The great debate about
whether Mr. Resendiz will be treated
humanely, because the state will
undoubtedly seek the death penalty, could
last for hours, if not days. What there should
be no debate about is that this person, no
matter how notorious his alleged crimes,
should receive a fair trial from a fair and
impartial jury with competent and effective
counsel on his behalf. To this end, our
association has volunteered a task force of
attorneys to assist the lawyers for Mr.
Resendiz in their mammoth task of
defending, not only the West University
capital murder, but the eight-plus other
extraneous capital murders that will probably
be introduced at the punishment phase of
his trial. Ifyou care to volunteer in this effort
please contact me or Richard Frankoff. To
coin a phrase, this is what we are all about.
We must protect, understand and support
each other, a crucial thing given the difficulty
of our calling.
One of the most important functions of
our association has always been to create
continuing legal education programs that
inform, educate and recharge the batteries
of our members. It is important to draw
strength from your fellow HCCLA members
in order to renew daily your commitment
to representing that one human being at the
very worst moment of his or her life. Please
note the upcoming HCCLA After Hours
CLE seminars that we hold each month and
pl ease watch for the announcement of the
Galveston seminar, which will occur on
October 2, 1999.
I also applaud the HCCLA Mentor
Program and ask that any member that feels
the need for help on any criminal case or
topic please call me or the chair of that
committee, Richard Frankoff, and we will
provide help where help is needed.
My involvement in HCCLA has always
been enjoyable and uplifting even though it
is hard work. I encourage everyone to strive
to recruit and welcome new members into
the HCCLA ranks. We need more members
to continue our aggressive efforts to stand
together to ensure that those rights that we
all hold dear are not further eroded by an
overzealous thirst for punishment by the
government. The phrase, "Liberty and justice
for all" has become mere words for so many
in government, and these rights are tramped
upon and abused daily. Here in this great
state ofTexas there are no people that I would
rather have at my side in furthering our
mission to ensure justice and due process
than the brothers and sisters of HCCLA.
Don't ever give up and keep the faith .
A  Note From  The  Editor 
We are very excited that we have been able to publish
Docket Call again. We have received some excellent
feedback, but I would like to encourage all of you to
contact me with ideas and suggestions, as well as any
articles you would like to submit; we can always use
more writers. Thank you all for your support.
-ROSA EUADES
2 • DOCKET CALL
August / September 1999
From  the  President-Elect 
The  President-Elect's Opinion 
RICHARD  FRANKOFf 
Thanks for the vote of confidence. I am
extremely proud to have the support of my
peers. To know that the men and women I
have worked with over these last twenty years
believe that I can represent them gives me a
feeling of accomplishment and satisfaction
seldom received in this profession. When I
stood before many of you at the annual
dinner and awards ceremony in June to
introduce the "Attorneys of the Year," I
meant what I said: my primary satisfaction
from being a criminal defense attorney
comes from the great men and women I have
met and with whom I have shared this noble,
although often frustrating, profession. You
are a distinct, different and distinguished
group. I have never met a group more
hopeful, more giving, more dedicated. Any
group that believes that because of their
efforts they can convince twelve cynical
Harris County citizens that six nuns, a
minister and a rabbi are all wrong about what
they saw, and that our three-time felon client
is right, has to be all of those. Especially given
the fees that we collect.
This last year has been a very successful
one for HCCLA. Besides many other
accomplishments, we have greatly increased
our membership rolls. We have moved from
a barely existing organization to one that now
can boast over four hundred members. A lot
of the credit for this should be given to Lloyd
Oliver and Danny Easterling, for it was
during their terms as president and
president-elect , respectively, that the
membership rolls have grown.
I wan t ro contin ue this trend . The
president-elect is assigned the chairmanship
of the membership committee and as
president- elect I want [0 focus on this
responsibility. Although I want to continue
to reach out and get more members, I realize
we may have already signed up most of the
criminal defense practitioners. I want to
focus on signing up more attorneys but, in
addition, I want to focus on providing ever
bener services to our current members. I
want HCCLA ro give back to the
membership something of value for their
money, participation and commitment.
I believe that as an organization, we can
make our lives better, easier and more
fulfilling. We, as a group, can achieve and
provide things that individuals would find
more difficult. This is ironic because as
criminal defense attorneys our greatest
strength lies in our ability to work
independently and without the support of
groups, organizations or institutions. This
is why I believe we need to focus in this
direction: providing support for those who
have traditionally have not sought or have
avoided or ignored the support of others.
A recent example of what I mean is the
HCCLA task force being put together to aid
the defense of Resendiz. Although two fine
attorneys have been assigned the
overwhelming job of defending this person,
we all know the job will require more time
than any two attorneys could provide. Even
if they do it all themselves and do everything
correctly, their individual practices will suffer.
And we all know that they will not be
adequately compensated for their dedication.
In joining together and supporting them, we
can assure Resendiz gets the representation
he needs and is guaranteed by law, but also
our fellow criminal defense attorneys are nor
the object of the criminal justice system's
abuse. We owe this to any person accused,
to any person given the responsibility of
representing a person accused, and [0
ourselves as U.S. citizens and as members of
a profession sworn to uphold this noble
belief.
Another example happened to me just
recently. I was asked by three less experienced
attorneys to assist them in their cases. They
are less experienced, but by no means less
qualified than me. In the first case, two
attorneys asked Mark Bennett and me to
help prepare their client to testify. Mark and
I spent a Saturday afternoon talking with
their client while they watched and evaluated
his testimony. At the end of the session they
and the client were more prepared and
confident in his testimony. The next week
he took the stand, he told his story to the
jury and they believed him, as they should
have. He was rightfully and justly acquitted.
In the second case all I did was listen and
make suggestions to an attorney abou t to try
his first federal case. He was well prepared
and, at the trial, made an excell e nt
presentation. Although I was at the defense
table for the trial, I did nothing except look
good. He did all the work and did it well.
By joining together and supporting each
other, we gave strength to each other. We
are stronger as a group than individually. We
better represented our clients.
This is one way to help us, our
membership. And in the year to come I plan
to seek other ways. I have several ideas I will
be discussing and developing this next year,
but I am still looking for suggestions. Help
me identify those issues that affect you. Stop
me in the hallway at the courthouse, phone
me at the office, send it by carrier pigeon if
you must, but please let me hear from you. I
need your suggestions on ways that we, as
members ofHCCLA, can assist, support and
help each other. I am looking forward to this
coming year and even more so [0 the
following one as your president.
Thanks again for your vote of confidence.
I will do all I can to live up to this sacred
obligation.
c. R.  Markham & Associates
Private Illvestigatiolls
Strtu LbIIu ,  CfHll
1807 West 34th Street, Suite C 
Ho stoll, Ii  '1018
J'lJice: (713) 88
,,.: (713) W-MH 
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Crlmtnall 

eMF Inveltf 

Accident Inv 

Mllslng P 
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DOCKET CALL· 3
August / September 1999
There  Must Be  Fifty Ways to Leave 
Your Lover  (Or Lose  Your License) 
JUDGE  JIM  ANDERSON 
I was approached and asked to write a brief
article on the topic of my choice by Ms.
Angela Cameron, and after some thought I
concluded that one of the most perplexing
areas of law facing attorneys in the county
courts is, "What do I tell my client about
his driver's license?" The following
commentary will cover many, if not most,
of the situations that you may face in your
practice. But first, before you offer me
accolades for authorship, let me give credit
where credit is due and that is to our staff
attorney, Me. Marshall Shelsey. Marshall's
diligence in legal research and ear for ethics
has provided me with the information
contained in this article and tremendous
guidance in my career for over ten years.
The first area to deal with is, what happens
if your client pleads guilty to the offense of
OWLS (driving while license suspended).
Does this conviction au tomatically re-
suspend their license? ANSWER-YES/NO/
MAYBE SO-ALL THE ABOVE. Now,
don't panic, look up some law. The new
Transportation Code is a six volume set, and
you can always stop by my office ifyou need
some research assistance. The general rule
of thumb is that a conviction for OWLS will
cause a suspension for a "like" period of time.
What does that mean? If your client had
an "SR" suspension or was past the
mandatory period of a suspension they may
reapply for a new license despite the
conviction with ptoof of liability insurance,
an "SR" rider, and a reinstatement fee. In
certain circumstances, such as a OWl
suspension or drug conviction, they may be
required to take an educational course as a
prerequisite to getting a new license. If the
arrest for a OWLS occurred during a
mandatory period of suspension, the
conviction will cause and additional
suspension for a "like" or similar period of
time. The best advice that you can give your
client is that until they get a clearance letter
from the DPS or a new driver's license is to
park the car and be safe.
Quoting Paul Simon, "Hop on the bus
Gus."
Next, your client approaches you with a
ticket for failure to provide proof of financial
responsibility (no insurance). What now?
The Transportation Code (TC) Sec.60 1.231
provides that upon a second conviction the
department shall suspend your license, and
you will be required to reapply for a new
license and maintain proof of insurance for
a period of two years after the date of
conviction. (SR-22). You need to be aware
that a second offense of failure to maintain
proof offlnancial responsibility may be filed
in the county criminal courts and the
sentence range is a fine of not less than $350
and not more than $1,000 - no jail time is
provided for in TC Sec.601.19l.
Quoting Paul Simon again,"Make a new
plan Stan."
Now, to the less obvious ways to lose your
driving privileges: "Skip our the back Jack."
Transportation Code Sec 521.341 (2) a
license is automatically suspended for a final
conviction of Sec.38.04, Evading Arrest or
Detention. This appears to apply to even a
nonvehicular evading situation. Reading on
through Sec. 52l.341:
Subsec 1- a conviction for Negligent
Homicide where a vehicle is involved=
suspension
Subsec 3- a conviction for OWl, Sec 49.04
or 49.98 = suspension (more to follow)
Subsec 4- a conviction for Intoxication
Assault 49.07 =suspension
Subsec 5- a conviction for an offense
punishable as a felony under the motor
vehicle laws of this state.
Subsec 6- an offense underTC 550.021-
accident involving injury or death (FSRA)
"Drop off the key Lee."
If your young dient is convicted under
PC Sec 28.08, criminal mischief (graffiti),
it is a mandatory one year TDL suspension.
Sec.521.314 TC.
"Get on a plane Jane."
There are a number of offenses all related
to possession of false, fictitious, counterfeit
or unlawful possession of driver's license,
registration stickers, license plates, or
insurance documents, as follows:
TC Sec 52l.451 displaying a false or
fictitious driver's license, or cancelled license;
521.451 (2) Lending you r license to
another ;
52l.451 (5) Having more than one valid
driver's license;
52l.451(6) Using false information to
obtain a driver's license;
521.453(a) displaying a document that is
deceptively similar to a driver's license unless
the document displays the statement,"NOT
A GOVERNMENT DOCUMENT."
Any of the above offenses will result in a
suspension of not less than 90 days or more
than one year per TC Sec.52l.346.
In similar vein, TC Sec. 521 .3465- there
is an automatic suspension of 180 days if:
license holder is convicted of TC
502.409(a)(4) - fictitious license plate on
vehicle, or license holder is convicted ofTC
548.603(a)(l)- fictitious inspection sticker,
insurance documents or similar documents
issued for another vehicle.
Also, TC 521.3466 there is a potential
two-year TOL suspension for possession of
an altered government record, pursuant to
PC Sec 37.10 if that record is a license plate,
registration sticker or inspection certificate.
The preceding topics were some of the
more unknown ways to lose your driver's
license. The more obvious reasons for a
license suspension are as follows:
TC 521.372- A person's license is
automatically suspended on a final
conviction of:
1. An offense under the Controlled
Substance Act
2. A drug offense
3. A felony under Chapter 481 Health and
Safety Code, that is not a drug offense.
TC 521.341 &TC 521.343- Provide for
suspension for convictions for OWl and
susequent OWl offense. For a first offense
the suspension must be at least 90 days and
not more than one year. For the second
offense the license will be suspended for not
less than six months and not more than twO
years, regardless of whether the Defendant
receives probation or not.
This pretty much concludes the numerous
ways a person's license can be suspended. Oh,
I forgot, there are about 20 more reasons that
fI t special si tuations such as drivers of
commercial vehicles, under 21 drivers,
multiple moving violations, driving in
violation of any license restrictions, minors
in possession of alcohol or tobacco products
and a few more that I just can't rhink of right
now. Take a few minures, do your research-
give your client the benefit of an informed
attorney. So, when your client asks you about
his/her license, start humming the song
about "Fifty Ways to Lose Your License" but
try not to launch into any Ally McBeal
fantasies.
4 • DOCKET CALL
August / September 1999
The  Houston  Chronicle  Speaks Out 
Against Prosecutorial Misconduct 
August / September 1999
The following Houston Chronicle
editorial was printed recently and deserves
reading in case any of you missed it:
Cheating To  Win 
Prosecutors abusing public trust deserve
harshest discipline
An anaJysis of mountains of court records,
appellate rulings and attorney discipline
records throughout the United States by the
Chicago Tribune demonstrates that some
prosecutors have stopped at nothing to win,
trying suicides as murders, blaming blacks
for the crimes of whites and hiding
exonerating evidence.
According to the Ttibune report, some 381
defendants have had their homicide
convictions thrown out since 1963 (the year
the U.S. Supreme Court ruled that
prosecutors must disclose evidence favorable
to a defendant) after evidence surfaced that
prosecutors conceaJed or falsified evidence.
Although the Supreme Court said such
actions are grounds for disbarment and
criminaJ charges, not one of the offending
prosecutors was convicted ofa crime or kept
from the practice of law. Few were impeded
in their careers at all, despite the fact that 67
of the defendants in question had been
sentenced to death, including RandaJl DaJe
Adams ofTexas, whose wrongful conviction
was exposed by the documentary film The
Thin Blue Line.
Because of wrongful convictions, many
defendants spent years in jail before being
freed. Their appeals were costly and time
consuming. Taxpayers paid millions when
defendants won new trials because
prosecutors hid evidence.
More important than the public resources
these mishandled cases wasted, unpunished
DOWNTOWN  /  MARKET  SQUARE 
9ftft 
307 TRAVIS 
HOUSTON, TEXAS  77002 
713-247-9207 
SERVING 
liQUOR, WINE  and  BEER 
Deli Sandwiches 
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Daily Until  Closing 
LUNCH SPECIAL 
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11:00 A.M. - 2:00 P.M. 
Open 365 Days A Year 
Ti112:00 A.M. 
DOCKET CALL • 5
prosecutoriaJ misconduct erodes the public's
trust in the criminaJ justice system-especiaJ ly
because it is impossible to know how often
such abuses actually occur. Overzealous
prosecutors heap injustices on the innocent
and insult and threaten the foundation of
the U.S. criminal justice system, which is
built on the principle that all are innocent
until proved guilty. Like police officers and
others invested with the power to seize a
person's liberty and imbued with a sacred
public trust , prosecutors must be held to
tight standards and punished when they
abuse those standards.
Even guilry defendants deserve a fair triaJ .
Certainly the innocent do. Prosecutors so
desperate for a guilry verdict they would
ignore-even willfully suppress-vindicating
evidence ought to be vigorously prosecuted
themselves.
THE 11TH ANNUAL GALVESTON 
HARRIS COUNTY 
CRIMINAL LAWYERS 
ASSOCIATION 
PRESENTS 
CRIMINAL LAW SEMINAR 
SATURDAY, OCTOBER 2,  1999 
9:00 A.M.-S:OO P.M. 
GALVESTON COUNTRY CLUB 
PRICE:  $100 for Members 
$150 for Non-Members 
Join HCCLA or renew a lapsed n1elnbersip  and 
receive a 50% discount on seminar price! 
C.L.E.  CREDIT:  7 HOURS (INCLUDES  1 HR ETHICS) 

SPEAKERS:  Justice Eric Andell, John Ackerman, Judge 
Belinda Hill, Ned Barnett, Judge Jim Anderson, 
Anthony Griffin and  Danny Easterling 

*Advanced Registration is  strongly urged! 
*Call HCCLA President  or mail admission  to 
Danny Easterling at  1018  Preston, 6th FI. 
7131228-4441 Houston, TX 77002 
6 • DOCKET CALL
August /  September  1999 
What is  the  HCCLA? 
TheHCCLA is a nonprofit, tax exempt,
professional association madeupoflawyers
from HarrisCounry,Texas,whoareworking
topromoteexcellenceandhighidealsinthe
practiceofcriminal law.
Anydefenselawyeringoodstandingwith
theState BarofTexas, who is endorsed bya
memberofHCCLAis eligible to join.The
endorsement recommends the applicantas
a person of professional competency,
integriry and good moral character who is
actively engaged in the defense ofcriminal
cases.
What does a  member do? 
• Participates and exchanges information
andskill sin ourCLEprograms.
Application 
AppliGmt:_________________________________________________
MailingAddress:_________________________
Telephone:_____________________________
FirmName:______________________________
DateadmittedtoBar:______LawSchool:_______________
Date,DegreefromLawSchool:_______________________
ProfessionalOrganizationsinwhichyouareamemberingoodstanding:_______
• Performsagreed Pro BonoService.
Haveyoueverbeendisbarredordisciplined byanybarassociationorareyouthesubject
• Brings to the Association's attention
proper grievances in the practice which
ofdisciplinaryaction nowpending?_____
merit responseandaction.
• Takes cal ls onourReferral Service.
TypeofMembership: 
What does  HCCLA do  Student ($25.00Annual Fee) 
for the defense bar? 
(Expected graduation date_____,
• Referrals through our Lawyer Referra l
NewlyLicensed (firstyear) Membership ($50)
Service and through our membership 
directory. RegularMembership ($125.00) 
• HCCLA Publicat ions including Docket
  a l ~ a bimonthly newsletter addressing
topics oflocal interest to the criminal
defense bar.
• Provides a responsive local forum for
date signatureofapplicant
lawyersactivelyengaged in thepracticeof 
criminal law. 
• Opposeslegislationandlocal rules which
Endorsement 
infringeonindividual rights protected by
I, amemberin goodstandingofHCCLAbelievethisapplicanttobeapersonof professional
constitutionalguarantees.
competency, integriryand good moral character.The applicantis actively engaged in the
• Promotesa productiveexchange ofideas
and encourages better communication defenseofcriminal cases.
with prosecutors and thejudiciary.
• Provides continuing legal education
programs for improving advocacy skills
andknowledge.
date signatureofmember
• Promotes ajust application ofthe court-
appointed lawye r system for indigent
MAllTHIS APPLICATION TO:
personscharged with acriminaloffense.
HCCLA
• Files Amicus Curiae Briefs where
p,O, BOX 2273• HOUSTON, TEXAS 77027
appropriate.
713-227-2404.
August/ September 1999
DOCKETCALL· 7
HCCLA Action  Plan 
DAVID A. JONIS,  HCClA DIRECTOR 
The HCCLA ought to be trying several
different things to improve its standing in
the courthouse, with other lawyers and in
the community. We all recognize that
criminal lawyers for far too long have been
losers on an unbalanced playing field in the
justice system's battles over the last 15 years.
Whether in fighting County Commissioners
in the indigent fee squeeze or as advocates
for simple fairness in the courts and in the
legislature, Texas and Harris County's
criminal defense bar have been losers or
nonplayers.
Many of our colleagues in the bar have
noticed our losses; membership in HCCLA
fell for a few years and certain of our more
notorious brethren no longer participate in
our affairs. Our membership is now at an
all time high of near 400 members, but the
community interests and organizations that
value civil liberties and civil rights have been
fighting their battles without us. We need
to find ways ro improve our position across
the board.
\,\'It> can raise the profile o/the association by
taking the following actions:
1.) A cable T.Y. show with lawyers talking
about the importance of our work, issues
facing the justice system and how people can
assess the performance of their institution
would be valuable. Our president, Danny
Easterling, is currently negotiating with
Access Houston for such a show.
2.) A Speaker's Bureau should approach
all available outlets for lunch or breakfast
presentations about the same subjects.
(Rotary, lions and even Republican
Women's Clubs should be approached).
3.) We need to have a lunch meeting with
a prominent speaker and sell tickets and
promote it with the press.
4.) HCClA should join lawyers in
certain cases where a prosecution appears
prejudiced in some way, either against the
lawyer or the client, or where a grave injustice
is likely due to an unbalance of resources.
The volunteer task force we are forming to
help the Angel Resendiz case is an excellent
example of this idea in action. lawyers
should know that their colleagues will help
when a manifestly unjust outcome is
avoidable should the right help be provided.
Even community groups or citizens should
be able to alert the defense bar and have their
particular grievance screened for possible
help to their cause. Obviously such review
and endorsement by HCClA should be
done sparingly, where success is likely, and a
maximum exposure for the organization.
\,\'It> should help lawyers get business in the
private market. The following should be
considered:
1.) A letter to misdemeanor offenders
promoting HCClA and its members and
discouraging them from hiring off oflawyer
letters unless they fully understand their
choices. The referral service could reimburse
for the costs.
2.) The bail schedule is too high and
denies people the opportunity to hire their
own lawyers. Concentrated efforts to bring
bonds in line with the realities of family
budgets should be studied and employed,
including form writs given the incarcerated
and researching the costs of incarceration due
ro high bonds for first offenders. A systemic
attack based on constitutional guarantees of
reasonable bail, presumptively violated by a
bail schedule ordered by the Board ofJudges
without a record supporting their choices,
or perhaps use a separation of powers
argument against the practice of judges
permitting the District Attorney to
arbitrarily raise bail at filing. The bail bond
indusuy should be consulted about joining
this effort.
3.) Lawyers for the day or week in County
and District Court should be carefully
watched and challenged if the case/lawyer
ratio is too high and especially if these
attorneys are representing people on bond
whose indigency has not been reliably
established. Rules of professional conduct
and of the Judicial Conduct Commission
should be consulted where appropriate.
We should become more politically active in
our county. The association can become
players in future policy discussions of
criminal justice ifit asserts its proper role as
an institutional representative for the defense
of the community. Several activities, some
with overt political ramifications. should be
implemented. All of these options recognize
that a defense lawyer organization in the
current political environment of Harris
County cannot compete and have its views
respected without being politically active.
I.) HCCLA should sponsor a PAC and
atrempt to raise $100,000 to support a slate
of judicial candidates, either in the
Republican primary or as a Democratic
opposition, against the worst of those judges
who more closely resemble operatives of law
enforcement in the courthouse rather that
neutral magistrates. The conspiracy to
punish at all costS while disregarding the rule
of law is an all roo common feature of our
jurisprudence. Running a slate of candidates
committed ro ending the symbiotic alliance
of prosecutors and judges whose punitive
policies waste vast amounts of resources
while undermining the adversary process
they claim to represent should be our highest
priority.
2.) lawyers and community
representatives should be encouraged to use
the Judicial Conduct Commission to
investigate and punish the worst offenders
in the judiciary who openly side with the
prosecutors with their rulings and practices,
refuse to control the abuses of their ClOs
or who repeatedly inject their views on
punishment in manner that demonstrably
ignores impartiality and the full range of
punishment.
3.) CLOs have far too much power and
all toO frequently abuse it. They should be
rotated often and the worst of their lot
should be transferred or fired. Personal
liability should be exploted for probation
officials who know but choose to ignore the
abuses of their employees.
4.) Recently, in too many cases, I have
noticed grand juries refusing to hear
witnesses or review proffered evidence. Not
only should they hear from HCCLA about
what the lawyer's role is in the process, bur
letters to each of them should update them
on critical information about the
performance of the criminal justice system
including who gets prosecuted, for what, and
at what taxpayer expense and social cost.
5.) We should join with others in the
community and critique and condemn the
Drug War as an example of a failed law
enforcement/prosecutorial effort. We
should identify and support legislative
initiatives that give choices other than
incarceration to judges. An overall
comprehensive analysis of the COSt of the
current prohibition effort, both to the
taxpayer and the offender population, should
be undertaken by HCCLA and shared with
8 • DOCKET CALL
August / September 1999
Action Plan (cont  ... ) 
he community, media, politicians and
opinion leaders. Given that lawyers are
constantly portrayed as mere profit centers,
his support for major change in the Drug
\'Var's prosecution would be seen correctly
as unselfish and positive for the community.
If any HCCLA members wish to join and
offer time and effort in these efforts please
contact me or any officers or directors.
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Potpourri••• 
Official HCCLA 
1999 Election  Results 
The new Officers and Directors elected
at the June 28-29 1999 Election are as
follows:
President - Danny Easterling
President-Elect - Richard Frankoff
Vice President - Mark Bennett
Secretary - Rosa A. Eliades
Treasurer - Angela Cameron
BOARD OF DIRECTORS
Mary Acosta
Lott Brooks
Winston Cochran
David Jones
Jay Karahan
David Mitcham
Tyrone C. Moncriffe
Anthony Osso
Clyde Williams
All of the Officers and Directors thank all
of the candidates for their participation and
many thanks to both Jay Skelton and
~   n n i f   r Bennett for working the ballot box
on both days.
PRESS  RELEASE 
The Harris County Criminal Lawyers
Association is forming a volunteer task force
ofcriminal defense attorneys experienced in
Capital Murder litigation who will volunteer
their time to assist Allen Tanner and Rudy
Duarte who are representing Angel Resendiz.
These volunteers are needed due to the
tremendous resources available to the
governmenr and all of the numerous law
enforcement agencies that are providing
assistance in this Harris County prosecution.
That is what this association is about,
assisting cri minal defense lawyers in any type
of criminal case. no matter what type of
crime is alleged. It is important that no
matter how notorious the charges are against
Mr. Resendiz that he receive an effective
defense and a fuir rrial just like any other
citizen accused in our criminal jusrice system.
Danny Easrerling
President
Appointed Attorney 
Recertification Announcement 
If you missed the Augusc 27.
Recertification program, it's not too late
to recertify. The program will be presented
on video Friday, September] 0, ] 999 at
] :00 p.m. in the Jury Assembly Room.
Contact Debbie Lonon at the
Administrative Office of the District
Courrs at 713/755-6576.
Remember: the old list of attorneys
certified to take appointments will be
purged- ifyou don't recertify, you cannot
take appointments.
Court Clothing 
Joe Varela provided Docket Cal/with a
letter he received from Captain K.M.
Stelter, of the Harris County Sheriff's
office, regarding new policies related to
delivery of court clothing. The texr of the
letter follows.
I am in receipt of your lerrer dated
February 26, 1999, and appn!ciate yo ur
concerns. Whenever an issue is brought
to our a((ention relating to one of our
areas of service. we carefully re-evaluate
our procedures in an effort to improve
our services. After reading your le((er
concerning the delivery of court dothing.
I have exrensively reviewed our polil'Y' I
found that over the past twelve months.
in this particular are-a, we have revised our
policy to:
1. extend our acceptance of clothing
an additional 24 hours prior to the court
appearance date, resulring in a 48 hour
acceptance rime frame
2. add an additional day (Saturday) to
ou r clothing acceptance schedule,
resulting in a Saturday through T hursday
acceptance time frame
3. lastly, we have extended the time
frame for accepting coun clothing by two
hours, resul ting in a 10 a.m. to 8 p.m.
del ivery time.
Due to our extremely heavy workload
on Fridays, at this dme, we are unable ro
revise our procedures any further. IfI can
be ofany further assistance, please contact
me at 713/755-8050.
or  visit  our  web  site  at: 
www.absou/te/endinginc.com
August 1 September 1999 DOCKET CALL· 9
Meet the Judges 
YOLANDA  D. CoROY  AND 
GRANT  M. ScHllNlR 
Docket Call shines its spotlight on two
more judges this month. In this issue, we
profile Hon. Joan Campbell of the 248th
District Court and Hon. E. Janice Law of
County Criminal Court at Law No.5.
Hon. E.  Janice  Law 
Hon. E. Janice Law is Judge of Harris
County Criminal Court at Law No. 5. She
succeeds Judge Hannah Chow.
Born and raised in Flint, Michigan Judge
Law graduated from the University of
Michigan at Ann Arbor, where she received
a Bachelor of Arts Degree in English. She
earned her law degree from Nova University
in Fort Lauderdale, Florida in 1979.
Judge Law (widely recognized for having
the perfect name for a judge!) began her legal
career as an Assistant State Attorney in Polk
County, Florida in 1980. She eventually
moved on to become an Assistant State
Attorney in Broward County (Fort
Lauderdale), Florida, before moving to Texas
in 1985. Her background includes stints as
an attorney for Hyatt Legal Services in
Pasadena, Texas, a Staff Attorney for the
United States District Court for the
Southern District ofTexas, an Assistant City
Attorney for the City of Houston , an
Assistant United States Attorney, and a solo
practitioner handling criminal defense and
miscellaneous civil matters.
In 1994, Judge Law became an Associate
Municipal Judge for the City of Houston,
where her responsibilities included reviewing
police search warrants and presiding over a
spate of Class C misdemeanor pleas and
trials. In 1999, she ascended to the bench in
Harris County Criminal Court at Law
Number 5.
As Judge of Court No.5, Hon. E. Janice
Law has proven unafraid to try new
approaches. For instance, the Court holds
pretrial conferences by telephone each
Thursday before the following week's trials.
"My court reporter [Eliza] Madrigal early
in the week calls all counsel and asks them
to be at their offices, if possible, or
somewhere we can get hold of them on
Thursday afternoon," says Judge Law. "Then
the State comes in here [and] on the speaker
phone we do a pretrial conference."
As with most pretrial conferences, the
Court is interested in the potential length
of each trial, whether counsel are ready, and
whether there will be any witness/scheduling
difficulties. Once the Court determines
which cases will fit within the following
week's schedule, the Court rank orders the
cases from one through six. Attorneys who
are uncomfortable with a telephone
conference are welcome to show up in
person, but the clients need not attend the
pretrial conference.
Although practitioners will notice a
number of innovations in Court 5, the
overall docket plan comes from County
Criminal Number 11. For starters, Judge
Law has adopted Judge Diane Bull's "two-
track" docketing system. After arraignment,
if needed, an accused is given one setting to
hire an attorney, a two-week "non-issue"
setting, followed by two-week "disposition"
setting. From there, anorneys are required
to decide between a Motions setting, Trial
(if no Motions), or a plea. The second "track"
for scheduling cases has fewer settings
(disposition, plea, then trial), but allows for
more time between court dates.
Judge Law has also adopted Judge Bull's
standard discovery order, although defense
attorneys are free to request additional items
not contained in the standard order. Other
Court specifics are contained in a four-page
"Guidelines" memorandum available to
practitioners upon request. The Guidelines
are packaged with a "Standing Trial
Management Order," which addresses
everything from Motions for Continuance,
to preparation of the Court's Charge, to
proper courtroom behavior.
Interestingly, motions are not
automatically carried with trial. Motions are
placed on a Friday docket and generally
heard at least one (1) week before the
scheduled trial. Motions to Revoke
Probation and Motions to Adjudicate Guilt
are also heard on the Friday Motions Docket.
For those interested in court
appointments, there is no specific, contract
attorney handling the duties. The Court
hires two attorneys of the week. One
Spanish-speaking and one English-speaking.
Interested attorneys should contact
Coordinator Debra Griffin, described by her
judge as a "wonderful, wonderful addition"
with a "most beautiful smile." Ms. Griffin
can be reached at 713/755-6196.
Visitors to Court 5 may also notice
colorful floral arrangements up at the bench.
Some of the flowers are real, some are
artificial, but the Judge changes them
frequently to keep things "cheery" in the
courtroom, she says. Judge Law also confides
that some of the flowers come courtesy of
her husband, a tax attorney at Fulbright &
Jaworski.
Hon E. Janice Law surprised Docket CaJi
by telling her interviewer that she cou.ld "not
think of any particular pet peeve, " as a
member of the judiciary. She did, however,
offer a complaint that gives new meaning to
the phrase, "sitting judge."
"Constant sitting .. . really ruins your
back," she says. "It's really amazing when you
sit for six or seven hours, it just kills your
back."
Sacroiliac aside, Judge Law seems
comfortable in her new seat on the bench.
Hon. Joan Campbell 
The new face on the bench of the 248th
District Court is Joan Campbell, but she is
not new to the courthouse. Although only
on the bench for a few months, Judge
Campbell is unique in Harris County in that
her legal experience ranges from
misdemeanor to capital murder trials,
working on both sides, prosecution and
defense.
Judge Campbell is a native Texan who
grew up in Bellaire and attended Bellaire
High School. She obtained her Bachelor of
Science degree in Speech at the University
of Texas in 1977. Judge Campbell first
enrolled at Northwestern University, but
shortly thereafter transferred to UT,
admitting that it was "too cold in Chicago"
to stay. Later, she attended the University of
Houston Law School where she obtained her
law degree in 1981. Judge Campbell
embarked on her legal career as a civil lawyer
with the firm of Crady and Peden, (now
Crady, Jewett and McCoulley) and then
switched to criminal law as an ADA in 1983,
when she joined the Harris County DA's
office. She advanced from misdemeanor
court assignments to the 262nd and 208th
as chief. While working in the DA's office,
Judge Campbell met her husband, Steve
Kimbrell. Judge Campbell laughed as she
reminisced, "The night we met we danced
to the music of Death by Injection."
Eventually, her husband's career led to
temporary assignment, in the People's
Republic of China and in Malaysia. At that
time, Judge Campbell took a leave of absence
from the DA's office and relocated to the Far
East with her husband. Following their last
overseas assignment, Judge Campbell elected
not to return to the structure of the DAs
office. She decided, instead, to work for
herself and in 1993 developed her practice
in criminal defense until 1998 when she
10 • DOCKET CALL
August / September 1999
Meet the Judges (continued) 
711  Prairie 
(Enter  at  backdoor  on  401  Louisiana) 
Houston,  TX 
Downtown  Houston 
Info:  713·222·8900 
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01;




o
g
g
Open  'p.m.. 2a.m.  Thurs.,  Fri.,  and  Sat. 
began to pursue her career on the bench.
Judge Campbell commented that the
greatest change she noticed in her transition
from prosecution to  defense was the
flexibility of working for herself.
When asked about her court-appointment
process, Judge Campbell explained that Dick
Wheelan is the contract defense attorney
who handles most arraignments. As an
experienced attorney and Spanish speaker,
Mr. Wheelan has proven to be invaluable to
the court. Nevertheless, other attorneys are
appointed to cases consistent with the level
ofexperience required. As a matter of course,
Judge Campbell welcomes interested
attorneys to submit their business cards to
the court's coordinator, Vickie Oliver, for
appointment consideration as well as to stop
by the bench to meet the judge.
Vickie Oliver was with the DA's office for
about 12 years before working for Judge
Campbell. As the former secretary to a
division chief in the DA's office and as
secretary to the 262nd District Court, Ms.
Oliver interacted with prosecutors and
defense attorneys as well. \'Vhen asked about
the job, Ms. Oliver stated that prior to taking
her job as court coordinator she had not
realized all that took place in the courtroom
and how much responsibility came with the
job. "The Judge is great to work for; she is
fair to both sides and very approachable,"
Ms. Oliver stated, ''I've learned so much in
the short time I've been here."
Regarding pretrial motions, Judge
Campbell uses a standard discovery order
that closely tracks the language of the statute.
However, additional requests are heard at the
bench on the record. Of course, a pretrial
motions setting is available, and motions can
be carried with trial. The court is equally
accommodating regarding hearings on
motions to suppress. As for settings, the court
utilizes the standard settings, arraignment,
non-issue, disposition, (at which time the
case should be set for plea or trial.) Trials in
the 248th are on the fast track with trial
settings of only about four weeks.
Judge Campbell offers the following tips
for trial. "If you're set for trial, then you're
probably going that week. Where there is
an unusual evidentiary question, submit case
law in advance for review. Always have
witnesses present and ready to testifY as trials
move quickly. Trials start at 9:30, break for
pleas around 10:45 and resume shortly
thereafter. The last witness for the day is
heard by 5:00 P.M. when the jury is usually
released." As for other miscellaneous tips
on her court, Judge Campbell offered the
following. Judge Campbell asks lawyers to
call if they have a problem getting to  the
court on time. In addition, she warns, "I
don't get involved in plea negotiations."
Where an attorney is seeking alternative
sentencing, Judge Campbell considers boot
camp a "wonderful" alternative. The CLO,
Nicki Hoenshel, is always happy to talk to
an attotney even before an MRP is filed,
such as when the probationer is charged
with a misdemeanor.
When asked why she sought the seat on
the bench, Judge Campbell remarked, "I
had experience in both prosecution and
defense and was ready for a new challenge."
Regarding her expectations of the job,
Judge Campbell carefully thought and
remarked, "I have found sentencing the
most difficult aspect of the job. However,
being a judge is a rewarding Job."
August / September 1999 DOCKET CAlL· 11
Who's Afraid of the  Big  Bad Wolf? 
The  Pros  and Cons  of a  Public  Defender System 
PATRICK  F. MCCANN 
Recently everyone in our community had
a brief scare when State Senator Rodney
Ellis's bill regarding indigent defense got to
the Governor's desk. One could hear the sigh
of relief when it was vetoed. Yet, why should
any of us fear a public defender system? I
for one admit that the timing of the bill was
unfortunate; it might have been more
sensible to try and build consensus before
intr6ducing any sudden changes. However,
now that the system we have all grown
accustomed to will be around for a little
longer, I would like to open up some healthy
debate on the topic, and invite response via
letter or article regarding establishing a
public defender system in Texas, or at least
in HaHis County.
I should probably start out with a
disclaimer. I have never been an Assistant
Public Defender in any state or federal
system. I did grow up in a state with such a
system, and through service in Uncle Sam's
Canoe Club (otherwise known as the United
States Navy) I spent a great deal of time in
another Gulf Coast state with such a system.
It was called Florida, and I believe it is just
east of here, first stop after Alabama.
My father was, and is, a criminal defense
attorney in Massachusetts, my home state,
and my mother was an Assistant District
Attorney for Essex County (anyone here
heard of the Salem witch trials?) in
Massach usettS. My father had considerable
experience setting up and dealing with a
variety of county public defender systems,
and it is through his eyes, my mother's often
skeptical comments on defenders and
defense attorneys in general and my own
observations of the Florida system, that I see
Issues.
I will try not to make statistical
comparisons, since there would be no basis
for comparison between states as different
as Florida, Massachusetts and Texas.
However, some broad principles should be
applicable to our situation in this county.
Last, I do not believe that a Public Defender's
office is the panacea some folks think it
might be; public defenders have many
limitations and unique problems that private
attorneys do not face. That said, a fair
discussion of the issues might help make up
some folks' minds about whether to try
it at all.
First, one might ask, why have a public
defender system at all? Well, if one truly
believes, as I do, and as I think most folks
do, that everyone is entitled to a good
defense, then it seems only fair to provide a
poor person with as good a lawyer as can be
found. This does not entitle anyone to Gerry
Spence or Clarence Darrow, but every
accused should ideally be entitled to an
energetic, competent attorney who will fight
for him. We in Harris County provide that
attorney via judicial appointment from a list
of approved and certified attorneys, and we
pay them at a rate Set by county officials.
Other states have found advantages to
doing it a different way. Believing that the
only fair way to defend people prosecuted
by a state-run, state-paid professional group
of experienced prosecutors was to provide a
similar system of state-paid, state-trained,
state-su pported defense attorneys, these
states set up a variety of offices, and funded
them in a variety of ways. These other states
found that their systems produced
experienced trial attorneys in a relatively
short time, and they found that they could
provide extensive defense- oriented training
so that, in theory at least, a young public
defender would know the work of criminal
defense very well. How they did it is
instructive for Harris County, and for Texas
generally.
Massachusetts, for example, uses a variety
of organizations, including contracts with
criminal defense organizations, non-profit
corporations set up to defend indigent
people, and state organizations dedicated to
indigent defense but not funded by the
county governments. Using Massachusetts
as a model for Harris County might actually
be best, both because there happens to be
an active and capable criminal defense bar
here, and because a variety of approaches
generally tends to work best in solving any
problem. To demonstrate how such an
amalgam of approaches might work here, I
will try to create a fictional "Harris County
Defenders" group, and offer a few theories
on how it could be put together. I will also
point out why it would not provide aJi the
answers for people who dislike the present
system.
A major problem confronting those
desiring to create a public defender office in
Texas is that pesky separation of powers
problem raised by the Texas Constitution.
Appointments are a judicial function, and I
frankly do not see how or why judges should
relinquish it without a fight. After all, judges
certainly should have a say in what goes on
in theit courtS; that is why they were elected.
I am not sure that any county or state agency
has the authority to create any defender
agency without the approval of the criminal
court judges. The Code of Criminal
Procedure does permit some county
commissioners in certain counties to set up
and fund a public defender office, and they
appoint the public defender. However, there
is no way for any group of county
commissioners to force a district judge to
accept or permit certai n lawyers in their
courL (If the judges agree to this
arrangement, fine. Nothing says they have
to do so.) Also, the county government does
not, at least in my reading of the Texas
Constitution, possess the authority, absent
an amendment or judicial concurrence, to
set up such an agency.
There is one simple way to bypass these
problems, namely, to encourage the creation
of a non-profit corporation that could then
contractwith the administrative judge of the
Harris County criminal court system for
appointments, much as private attorneys do
now in individual courts. The contract
would obviously be larger, would not or
should not be limited to specific courts, and
the rates would be approved by the county
commissioners. Lest my fellow attorneys are
starting to cringe here at the thought ofJost
business, or taxpayer watchdog groups want
to start screaming about expense, I would
like to point out a few things.
First, a public defender system will never
eliminate court appointments. There will
always be conflicts and multiple-defendant
cases, and they will need appointed
attorneys. (Look at the Federal system if you
doubt me.) Unless the public defender's
office can hire as many attorneys as the
District Attorney's office, there will have to
be an "overflow" or case-limit requirement
such that, after the public defender's office
has reached a certain caseload per capita, new
cases go to a list of qualified attorneys for
12 • DOCKET CALL August / September 1999
  o ~ Afraid of the  Sig Sad Wolf?  (continued) 
appointments. The Texas Disciplinary Rules
require arrorneys co only carry the workload
that they can handle so that their clients get
their best efforts; a caseload limit would be
required in order to meet that mandate.
Further, unless a capital defense unit is also
created, with capital- certijied personnel at a
salary level equal co what a private arrorney
could reasonably expect to make taking such
cases, capital cases, particularly here in Harris
County, would still need to be appointed.
Likewise appeals would likely still need to
be appointed.
Finally, some of us forget that generally
half the criminal cases in Harris County are
handled by hired lawyers. So a public
defender organization, set up as a nonprofit
corporation that contracts with Harris
County to represent indigents, would not
kill criminal defense business. Change it
certainly, but not kill it.
Now co the taxpaye rs in the reading
audience, let me remind you that a public
defender sys tem is inherently smaller than
the District Attorney's office, precisely
because of the reasons mentioned above.
ConAicts, co-defendants, overflow, appeals,
and capital cases would all reduce the need
for personnel. Also, keep in mind that a
nonprofit corporation that has a contract
with the county is not the same thing as a
county agency!The taxpayers would not be
paying for infrastructure (buildings,
equipment), benefits or any other such thing.
They would pay in bulk ro one group of
lawyers what they now pay individually ro a
larger group of lawyers to handle the same
cases. In addition, as a nonprofit corporation,
this hypothetical "Harris County Defenders"
group would be able to seek other sources of
funding legally, including grants and private
donations. New York's Legal Aid Society
functions in much this way, as do many other
such corporations in Massachusetts. (Before
anyone says "New York City!!??" remember
that not evety idea from there is bad.)
Alright, I have laid out some ways that
judges can keep control of their court system,
that the taxpayers won't be broken by the
creation ofa public defender agency and how
such an agency would not kill off all business
for appointed attorneys. You might be
thinking by now that I am arguing for JUSt
such a system. However, having grown up
seeing such things at work, I also got a bird's-
eye view of some of the flaws. Let me
mention a few.
To start with, let me point out that the
presence of a public defender system no more
guarantees a competent dedicated attorney
than the presence of a hospital guarantees
competent dedicated doctors. Lazy,
ineffective lawyers exist everywhere, in evety
part of our profession, on both sides of the
criminal bar. Changing a title from
"appointed" co "public defender" does not
change the lawyer. Second, the court
appointment system can work far berrer for
some defendants than a public defender
system for reasons I call the "Iorrery effect,"
the "Robin Hood" plan and "good judge"
syndrome.
The "Iorrery effect" means pretty much
what it says; sometimes, in the appointed
system, the defendant simply wins the
lottery. I will use an office mate as an
example: (co protect the innocent [not him,
just the innocent]) no names will be used.
This person is a former prosecutor, with
about a dozen years ofexperience in criminal
trials at the state and federal level. He is
capital certifIed and eligible for board
certification in Texas. His practice does not
depend on appointments, but he still rakes
first degree felony appointments and serves
as "attorney of the week" in the courts of
judges whom he respects. Most folks who
have tried cases with or against him would
describe his style as ... aggressive.
In a public defender system, the people
who are attracted ro this work are typically
fresh idealists just out of school, or still-
young former prosecucors who want to learn
how to defend a case on someone else's dime
before going private. Now, if you were a
young felon looking at a possible 15-co life
sentence for delivery of a controlled
substance or a first-time offender who is
genuinely innocent and charged due to
mistaken identity, who would you rather
draw as your arrorney? The experienced trial
warrior I just described above or the typical
assisrant public defender?
The "Robin Hood" plan is one with which
many of us in private practice are familiar.
Sometimes a defense atcorney comes across
a case, either appointed or pro bono, where
she passionately believes that this case needs
to go the distance, whatever the cost.
Whether it is the actual innocence of the
accused, or the sympathetic nature of the
case, sometimes we just fight harder for some
clients. In private practice, where we can set
our prices and take what cases we feel like, it
is possi ble for us to subsidize the poor or
appointed defendant who needs an expensive
expert or investigation (after the judge has
turned down your request) by budgeting the
fees for hired cases so as to cover one's loss
on the pro bono or appointed trial marrers.
In a nonprofit or county agency, where the
funds are limited, one must follow the "needs
of the many" theory and budget accordingly.
Private arrorneys who take appointed cases
thus have a freedom and a resource that
public defenders do not. Private arrorneys
can also limit their caseloads to the degree
that they can devote more time to the cases
and fights they believe in. An assistant public
defender working for a nonprofit agency
with an enormous caseload, who must justify
every expense ro his supervisor and auditor,
simply cannot do rhat.
Lastly, the "good judge" syndrome is
something else most of us are probably
familiar with, at least in passing. Some
couns, via a thorough knowledge of the
attorneys who work there and a
conscientious attention ro det ail in the
indigent cases before them, seem co do an
extraordinary job of matching an attorney
to a case. A difficult fraud case goes ro the
dogged lawyer with a nose for detail; the
accused with mental illness goes to that
skilled attorney with infinite patience and
the hopeless case goes ro the person who JUSt
will not give in and fights ro the bitter end
for their client.
We all know these courtS, and we a.11 like
ro practice in them. A contract or county
agency does rob the trial judge ofsome ability
ro pick the right atrorney for the case. There
is no doubt about that; it is simply a trade-
off of efficiency versus choice. One gives up
some of one to get more of the other.
However, having seen it work to a
defendant's advantage, I for one might not
like ro see this particular perk of the judiciary
go away.
These last few situations may not be the
majority of those faced by indigent criminal
defendants, but they are certainly a sizable
chunk of the caseload. There are those who
would argue that a public defender agency
helps lift up the general professionalism and
competency of the criminal bar, and that it
does far more for the accused than a system
of appointments. I suppose they may think
so, but I tend to believe that depends largely
on the caliber of the people that one puts in
such jobs. I have known a variety of people
August / September 1999 DOCKET CALL· 13
  h o ~ Afraid of the Big Bad Wolf? (continued) 
in  a  variety  of such  organizations,  and  for 
the  most  part  they  are  dedicated  and 
motivated.  I  have  found  an  equal  number 
of dedicated  and  motivated  people  in  my 
local  defense  bar.  Perhaps  that is  where  this 
essay should  finish. 
I believe  that there might not be a clamor 
for a public defender agency if there was  not 
a  perception,  however  incorrect  or 
unjustified,  that  the  current  appointment 
system  is  not working. That  perception,  at 
least in (he eyes ofsome pol iticians, may need 
to be changed. The best way for  us  to change 
it is  to strive to improve in every way and to 
inform  the public about those efforts. 
Harris County requires the people seeking 
appointments  to  be  certified  by  taking  a 
course and  an exam. Many counties  do  not 
require  any  such  thing.  Harris  County 
requires attorneys to recertify periodically to 
stay  on  that  list,  and  it  requires  all  capital 
appointments  to  be  made  to  people  who 
have been certified  to  handle capital cases. I 
wonder  how  many  elected  officials  know 
this,  or  how  many  of them  have  attended 
meetings  of  either  the  Harris  County 
Criminal  Lawyers  Association  or  the 
Houston Bar Association's Criminal Law and 
Procedures Section? 
How many members  of the  public  know 
that HBA offers  frequent Continuing Legal 
Education credits on exclusively criminal law 
topics?  Or  that  every  Wednesday  HCCLA 
members  can  get  an  appellate  case  update 
for  two  dollars  a  credit  hour?  Or  that 
HCCLA and  HBA offer  periodic  seminars 
and conferences to increase member skill and 
knowledge?  Or  that  HCCLA  offers  a 
"Mentor"  program  to  young lawyers  trying 
their  first  major case?  I  believe  that if we  in 
the  criminal  defense  bar  make  a  concerted 
effort  to  increase  our  own  standards  of 
representation  and  professionalism,  and 
make  our  elected  officials  and  the  public 
aware  of our efforts,  that we  would  then  be 
the  best  argument  against  changing  the 
system. After all, any system is  only as  good 
as  the people in  it.  If we  improve ourselves, 
why do we  need  to  change anything else? 
~ ~ .. ~ fTrinity
.\:oJ,  J ¥ X  Children and 
Family Services 
'.'_",C..NI.I..,._.
Trinity Foster Care 
11500 Northwest Freeway 
Suite 465 
Houston, TX 77092 
Office (713) 957-8442  Fax  (713) 
688-5220 
YOU DON'T HAVE TO  MAKE 
A  LIFETIME COMMITMENT 
TO MAKE A DIFFERENCE FOR A 
LIFETIME! 
Trinity  Fosler Care needs 
compelenl fosler pareuts to  serve as 
members of a professionalleam 
to protecl alld nur/lire 
children amI slrenglhen families. 
Because every child deserves 
a chance to  laugh,  play,  dream, 
learn,  and grow. 
Adver1iscment donated by HeCLA.
I  DON'T  DO 
CRIMINAL  INVESTIGATIONS! 
Read the Police Offense Report. There you  will 
find  their "side of the  story"  ... but if you  want 
a  professional,  in-depth  Criminal  Defense 
Investigation, searching for exculpatory evidence, 
then  you  owe  it  to  yourself to  give  me  a  call. 
German A. Vanegas 
Texas Licensed Investigator 
713-304-3548 
"We  do  our best to  keep the 
scales of Justice  balanced" 
TXPI# A-7329 
14· DOCKET CALL August  / September 1999 
HCCLA Annual Membership Party
photo by Sissi Easterling
photo by Russell Webb
On June 24, 1999; 175 members, judges
and friends attended the HCCLA Annual
Membership Party at the Majestic Metro. A
buffet of a11-you-can-eat barbecue was served
by Mikeska's Barbecue. Danny Easterling
was inducted as HCClA President, and we
honored the following "Lawyers of the Year"
for their work in the City Hall BriberyTrials:
Richard "Racehorse" Haynes, Dick
DeGuerin, Mike DeGeurin, Mike Ramsey,
Dan Cogdell, Bob Bennett, Robert Scardino
and Paul Nugent (see cover photo of all
honorees except for Mike Ramsey who was
out of town and could not attend). After the
awards ceremony, music was provided by the
live band, the Elite Fluids. A good time was
had by all.
August / September 1999 DOCKET CALL· 15
Sheep in Wolves' Clothes
A monthly column dedicated to exposing
commonly overcharged offenses
NORM SILVERMAN
This month's sheep are tampering with
government-record cases, where the record
at issue is an inspection sticker. These cases
are being filed with ever-increasing frequency
in felony courts, often as second degree
felonies, despite the fact that the proper
offense level is a class "B" misdemeanor.
The following motion to quash should be
filed when possession of a false inspection
sticker is charged as a felony. Ie explains why
explains these charges are mere, "sheep in
wolves' clothes."
DEFENDANT'S MOTION TO
QUASH INDICTMENT
TO THE HONORABLE JUDGE OF
SAID COURT:
Now comes Defendan t in the above-styled
and numbered cause, by and through his
attorney of record, and, prior to announcing
ready, moves that the indictment filed in this
case be set aside by virtue of the Fifth, Sixth
and Fourteenth Amendments to the United
States Constitution, Article I §§t 1 0 and 19
of the Texas Constitution, and Articles 1.05,
21.01 , 21.02,21.03,21.04, and 21.11 of
the Texas Code of Criminal Procedure, and
TEX. GOV'T CODE ANN. § 311 er. seq.
for the following reasons:
I. The Indictment
Omitting the caption and formal
averments the indictment alleges that, in
Harris County, Texas, hereinafter styled the
Defendant, heretofore on or about, did then
and there unlawfully, with the intent that it
be used unlawfully, POSSESS GOV-
ERNMENT RECORD, namely a
CERTIFICATE, TO WIT: A TEXAS
VEHICLE INSPECTION CERTIFICATE.
II. The Relevant Statutes and Definitions
Tex. Penal Code Ann. § 37.10 condemns
tampering with a governmental record. Ie
provides in pertinent part:
(a) A person commits an offense if he:
(4) possesses, seils, or offers to sell a
governmental record or a blank
governmental record form wirh intent that
it be used unlawfully.
(c) An offense under this section is a felony
of the third degree if it is shown on the trial
of the offense that the governmental record
was a license, certificate, permit, seal, tirle,
or similar document issued by government,
by another State, or by the United States,
unless the actors intent is to defraud or harm
another, in which event the offense is a felony
of the second degree.
TEX PENAL CODE ANN. § 37.01
defines governmental record. It provides in
pertinent part:
(2) "Governmental record" means:
(C) a license, certificate, seal , tirle, letter
of patent, or similar document issued by
government.
TEX. TRANS CODE ANN. § 548.603
proscribes display of a fictitious or
counterfeit inspection certificate or insurance
document. It provides in pertinent part,
(a) A person commits an offense if the
person:
(1) displays or causes or permits to be
displayed an inspection certificate or
insurance document knowing that the
certificate or document is counterfeit,
tampered with, altered, fictitious, issued for
another vehicle, issued for a vehicle failing
to meet all emissions inspection
requirements, or issued in violation of:
(A) this chapter, rules adopted under this
chapter, or other law of this state; or
(B) a law of another state, the United
States, the United Mexican States, a state of
the United Mexican States, Canada, or a
province of Canada;
(2) transfers an inspection certificate from
a windshield or location to another
windshield or location;
(3).(4),(5) (deal with emissions
requirements and are not germane to the case
at bar.
(b) A person commits an offense if the
person:
(1) makes or possesses with the intent to
sell, circulate, or pass , a counterfeit
inspection certificate or insurance document;
or
(2) possesses any part of a stamp, dye,
plate, negative, machine, or other device,
that is used or designated for use in making
a counterfeit inspection certificate or
insurance document.
(c) The owner of a vehicle commits an
offense if the owner knowingly allows the
vehicle to be registered or operated while the
vehicle displays an inspection certificate in
violation of Subsection (a).
(d) An offense under Subsection (a) or (c)
is a Class B misdemeanor. An offense under
Subsection (b) is a third degree felony unless
the person acts with intent to defraud or
harm another person, in which event the
offense is a second degree felony.
(e) In this section:
(1) "Counterfeit" means an imitation of a
document that is printed, engraved, copied,
photographed, forged, or manufactured by
a person not authorized to take that action
under:
(A) this chapter, rules adopted under this
chapter, or other law of this state; or
(B) a law of another state, the United
States, the United Mexican States, a state of
the United Mexican States, Canada, or a
province of Canada;
(2) "Inspection certificate" means a
document that is printed, manufactured, or
made, by the department or an aurhorized
agent of the department for issuance after a
vehicle passes an inspection performed under
this chapter.
(3) (A) and (B) germane only to insurance
documents.
(4) "Person" includes an inspection station
or inspector.
(f) Notwithstanding Subsection (c), an
offense under Subsection (a) (1) that involves
a fictitious inspection certificate is a Class B
misdemeanor.
III. No Felony Jurisdiction
Because the conduct purportedly
proscribed by this indictment (TEX.
PENAL CODE ANN. § 37.10 (Vernon
1973)) is the subject ofa more specific, more
recently enacted misdemeanor statute (Tex.
Trans. Code Ann. Section 548.603 (Vernon,
1995)) , this court lacks jurisdiction, and the
indictment ought to be quashed. It is a well
settled principal of code construction that
when a general and a specific statute conflict,
16 • DOCKET CALL August / September 1999
Sheep in  Wolves' Clothes (continued) 
the special statute controls. See, e.g. State v.
Eversole, 889 S.W2d 418, 425 (Tex. App.-
Houston [14th Disr.] 1994, per. ref'd);
Ogilvie v. State, 711 S.W2d 365 (Tex .
App.-Dallas 1986, per. ref'd). And when a
general statute and a more specific statute
both proscribe a defendant's conduct, he
should be charged under the more specific
statute. Cheney v. State, 755 S.W.2d 123,
126 (Tex. Crim. App. 1988). If there are
irreconcilable conflicts between statutes as
to elements of proof or penalties for the same
conduct, then the more specific statute
controls. Rodriguez v. State, 879 S.W.2d
283,285 (Tex. App.-Houston [14th Disr.]
pet. ref'd). These principals of in pari materia
are codified in the Government Code.
TEXGOV'TCODEANN. § 311 er. seq.
provides in pertinent part,
(i) Special provisions prevail over general.
(a) If a general provision conflicts with a
special or local provision, the provisions shall
be construed, if possible, so that effect is
given to both.
(b) If the conflict between the general
provision and the special or local provision
is irreconcilable, the special or local provision
prevails as an exception to the general
provision, unless the general provision is the
later enactment, and the manifest intent is
that the general provision prevail.
TEXGOV'TCODEANN. § 311 er. seq.
\1C'"here the special statute is complete and
specific within itself, it controls even though
other statutes concerning the same subject
matter contain requirements not enumerated
in the special statute. Williams v. State, 641
S.W2d 236, 238 (Tex. Crim. App. 1982);
Jones v. State, 552 S.W2d 836, 837 (Tex.
Crim. App. 1977); Sarratt v. State, 543
S.W2d 391, 392 (Tex. Crim. App. 1976).
TEX PENAL CODEANN. § 37.10 and
Tex. Trans. Code Ann. section 548.603 both
proscribe the same conduct. Although 37. 10
is broader, in the instant application, both
statutes deal with the same general subject
matter and the same persons or class of
persons. In the context of this prosecution,
they have the same purpose. Moreover, Tex.
Trans. Code Ann . section 548 .603 is
complete as well as specific. 548.603 levies
out misdemeanor punishment when the
offense is displaying a counterfeit sticker, but
it also mandates harsher felony punishment
for possession with intent to sell, or for
possession of the implements necessary to
manufacture th e documents (See,
subsections (a) and (b) respectively.) This
makes sense. It is a complete scheme. Mere
possessors or displayers of the fraudulent
documents suffer misdemeanor penalties
while those who produce them do so at the
peril of a felony conviction. TEX PENAL
CODE ANN. § 37. 10 lacks this distinction,
is not complete, and therefore has been
supplanted by Section 548.603.
Though not codified, the rule of lenity
provides that when faced with two
irreconcilable penal statutes, a court should
interpret them so as to give the benefit of
the doubt to the accused. See ego Moskal v.
United States, 498 U.S. 103, III S.Ct. 461 ,
112 L.Ed.2d 449 (1990).
Defendant also contends that common
sense dictates that this offense could not rise
to th e level of conduct condemned as
felonious when such crimes as: resisting
arrest, TEX. PENAL CODE ANN § 38.03;
evading arrest, TEX. PENAL CODE ANN.
§ 38.04; hindering apprehension, TEX.
PENAL CODE ANN. § 38.05; escape TEX.
PENAL CODE ANN. § 38.07; and bail
jumping TEX. PENAL CODE ANN. §
38.11, are all misdemeanors in the absence
of substantial aggravating circumstances.
TEX. PENAL CODE ANN. § 1.02 (3)
provides in pertinent part:
The general purposes of this code are .. .
(3) to prescribe penalties that are
proportionate to the seriousness of offenses
and that permit recognition of differences
in rehabilitation possibilities among
individual offenders.
Among the other offenses categorized as
felonies of the third degree ar e: (I)
kidnapping, § 20.03; (2) sexual exploitation
by a mental health services provider, § 21.14;
and injury to a child, elderly individual, or
invalid, § 22.04. The nonsensical nature of
this assertion illustrates the improbability
that the legislature actually intended to
punish those who possess a fictitious
inspection sticker as third degree felons.
WHEREFORE, PREMISES CON-
SIDERED, the defendant prays that the
Court order the indictment in the
above-numbered and entitled cause quashed
and the case dismissed.
On this the_day of_, 1999, came on to
be considered Defendant's Motion to Quash
the Indictment, and said Motion is hereby
(GRANTED) (DENIED).
SIGNED on the date set forth above.
JUDGE PRESIDING
JAY  T.  KARAHAN 
Mediator 
DAMERIS & KUNIAI%KY
Post Oak Tower
5051 Westheimer, Suite 700
Houston, Texas 77056
OFF: (713) 627-3606
FAX: (713) 627-3644
jkarahan@hypercon.com
24hr toll free pager (800) 817-6062
August / September 1999
DOCKET CALL· 17
Beating the Odds
Reflections on trying and winning a homicide case
involving the death of a child
By DAVE STILLER
In April of 1999, I tried my first homicide
case before a jury in the 182nd District
Court. The four-day trial resulted in an
acquittal of all charges against my client by
a jury that deliberated for 35 minutes. In
my ten years of practicing law in Texas, I
have tried just about every type of criminal
case except for a homicide. Given the
opportunity to be involved in this important
case, I jumped at the chance.
Eager to win the case, I quickly discovered
that I was seriously outnumbered by State
witnesses, including members of the police
department, district attorney's office and the
county medical examiners, who teamed up
to create a tremendous number of
accusations against my client.
Although I have never published my
feelings pertaining to any jury trial I
participated in, I feel compelled to share
my experiences during this trial, to show all
of us that the little man can win, against
tremendous odds and an emotionally
charged set of alleged facts.
I. Beginnings
My client put his infant son to bed in his
room to sleep for the night and, for some
unknown reason, the child died in his bed.
My client discovered the lifeless little body
the next morning. Finding him cold, my
client moved the child towards the phone,
called 911 and attempted CPR on the child.
A short time later, the paramedics arrived
and moved the child to a hospital, where he
was quickly pronounced deceased.
The deceased child's family was struggling
to get by, merely earning enough to pay the
bills for a family of four, living in a crowded
one-bedroom apartment. The child's room
was a large walk-in closet, his bed and
blanket was a large sleeping bag and the child
was less than one year old. His young parents
did the best they could and believed that
allowing him to sleep in a sleeping bag was
safe and affordable. They also thought that
the large closet was big enough for him to
sleep in and that closing the door to the closet
when he first went to sleep would calm him
and shut OUt the majority of noise and light.
II. Immediate Suspects &
Interrogation
Almost immediately, the police officer
working the case treated this as a homicide,
describing the circumstances of the death of
the baby in the worst possible manner: as
an infant, wrapped in a sleeping bag, placed
in a closet with the door shut with the
thermostat at 82 degrees and not being
checked on for 12 hours. Feeding on this
frenzy, all police officers assigned to this case
seemed to follow that lead as they pounced
on the grieving parents at the hospital,
splitting them into separate rooms, guarded
by officers, and interrogating them endlessly.
The parents had discovered the child only a
couple hours before meeting with the police
at the hospital and coming to the realization
they were targets in a murder case.
An autopsy was performed the next day,
and the results of the examination by the
county medical examiner's office were
reported some eight weeks later. The finding
was "cause of death: asphyxia associated with
lack of custodial care."
My client was formally arrested shortly
after the report from the M.E. was made
public. His wife and he were interrogated a
second time for hours on end, and he was
finally arrested.
My client made written statement as to
the even ts of that night, in which he recalled
"tucking" his child in the sleeping bag and
putting him to bed. He cooperated
completely with the homicide detective, yet
he was still the center of the investigation.
Because his wife was not home that night,
she was not charged with a criminal act.
III. Formal Charges Filed
The prosecutors charged him with "injury
to a child," going with intentionally and
knowingly, or recklessly causing serious
bodily injury to the child, by wrapping the
child in a sleeping bag. My client quickly
learned that the prosecutor's first offer was
in the neighborhood of 40 years in the
penitentiary, later lowered to the rejected
offer of six years for reckless on the day the
trial began. The prosecutor originally
working the case told me that a jury would
despise him, and that he had better take the
deal.
The State felt confident that my client,
who had been in trouble in the past with
misdemeanor cases ofcarrying a weapon and
assault, would certainly go down in flames
for "killing his kid." The projected DNA
evidence that the child was deep inside the
bag and an extensive study performed by
medical experts and at least a handful of
police officers bolstered this confidence.
"How in the world would you ever find a
jury to listen to your idea that putting an
infant in a sleeping bag in the closet was
normal or reasonable?" I heard that
statement so many times while I was
attempting to convince the State to dismiss
the case under a theory of accidental death;
they seemed blind to the possibility of that
contention, relying so heavily upon the
autopsy report and the homicide detective's
claim of a "wrapped" child.
IV. Establishing A Plausible
Defense
Every parent of a new born baby knows
and fears the dangers of their infant dying
in its sleep for some unknown reasons. These
accidental deaths fall under a category
termed Sudden Infant Death Syndtome
(commonly called SIDS). It's also known
as, "Crib Death." Being a diagnosis of last
resort in unexplained deaths, SIDS is a catch-
all grouping, in which specific cause of death
in children under the age of 12 months old
cannot be positively identified. Parents
routinely put their children to bed and
discover shortly thereafter a dead child, who
was not choked, beaten or tortured. It does
not appear to be a heart attack situation, but
rather some unexplained reason for the child
not getting himself into a more effective
breathing position.
Victims of SIDS are usually males, no
older that 10-12 months, found face down
in some blanket or cloth material,
rebreathing expelled air for a time long
enough to cause some rype of cessation of
the breathing process.
Knowing that I could not afford to hire a
medical doctor to explain this terrible disease
or cause of death to the jury, I had to score
on my cross-examination of the medical
examiners and any other persons, as to their
knowledge of SIDS in cases like this one.
18 • DOCKET CALL
August / September 1999
Seating the Odds (continued) 
My client's entire defense rested upon my
cross. If I was able to show some similarities
to SIDS, I hoped to create some reasonable
doubt on the homicide issue.
I further developed the theory of an
accidental death caused by SIDS by extensive
research at the University of Texas Medical
School library, where I found many books
and articles on the causes of SIDS and
findings over the last fifty years. I implore
anyone looking into such a defense to do
such research, which proved to be critical in
challenging and ultimately destroying the
medical examiner's findings in my case. I
copied many articles and passages from weU-
known treatises on SIDS, and prepared to
use them during the trial if necessary.
Years of cross-examining insurance
company doctors when I practiced {un}civil
law, came in quite handy when I began
compiling my strategy for my defense.
Armed with my medical journals and
articles, I felt confident I could demonstrate
to the jury that my client lost his baby to
SIDS.
V.  Jury Selection 
Those of you who try cases aU know that
the right jury wins your case. The panel had
to hear that a sleeping bag had been used for
an infant's bed in the closet, which I knew
would inflame the group. I patiently sat
through the State's presentation, which
involved constant references to the image of
someone intentionally injuring a child with
a bat. We both felt the heat emanating from
the panel, as they began to connect my client
with that image. When the State suggested
that probation for someone doing such an
acr was unacceptable, the panel continued
to look at us like we had committed mass
murder.
My approach to the panel was simple:
warm them up with some mild humor,
explain the importance of jury trial s, then
move right to the heart of the matter. I told
the panel rhat desrroying a child with a bar
was an act that should be punished, but what
if a child suffers an accidental death. In a
matter of five minutes, I carefully tested the
waters about accidental deaths, being parents
and the dreaded four-letter word "SIDS."
Much to my surprise, the panel began to look
at my client not with hatred but with
compassion and sympathy. After one-third
of the panel of 60 explained their personal
experiences with losing a child to SIDS, I
was able to shift visions of infant deaths away
from violent causes to accidental ones.
Having warmed them up to an accidental
death theory, and scoring tremendous points,
I needed to defuse the sleeping bag bomb.
First, I raised the idea ofallowing a youngster
to use a sleeping bag, nothing murderous
about that, right? From the youngster, I
moved on to infants in sleeping bags.
Miss ion accomplished; the panel had learned
exactly what my case and defense were and
responded so positively that, as a group, it
concluded that the State was trying to create
a n intentional murder out of an
unexplainable, accidental tragedy.
After we selected ten men and two
women, the jury was sworn to their oaths,
took their seats and looked at my client and
me with a compassion. I knew then and
there that I won the most important part of
the trial ; yet unknown to me, the best was
yet to come.
VI.  Smoke &  Mirrors: 
The  Truth  Shall  Set You  Free 
Ending my voir dire with the sleeping bag
issue made the transition to my opening
statement easy to grasp. I informed the jury
that accidents happen every day. Sometimes
peopl e get hurt and die. Sometimes the
victim of an accident is a child. I went on to
explajn the facts from the defensive posture
I anticipated I could prove, all  pointing to
an accidental death. I did not mention
SIDS, since I was not sure how my cross
would come out.
The State, in its opening statement , was
calm and almost cold, revealing a story that
the homicide detective conjured up, of
wrapping the infant too tightly into the
sl eeping bag, putting him in the closet and
not checking on him for a long time,
suggesting an intentional, knowing, or
reckless act.
As the drama unfolded, I was hit with a
barrage of many witnesses, including the
officers who interrogated my client and his
wife, officers who took evidence at the
apartment, family members and witnesses
to my client's parental skills. Attempts were
made to show extraneous acts of abuse by
my client on the decedent, as well as his step-
daughter. And of course, the State had it's
medical examiner and DNA "experts" tell
the jury how they beli eved this to be a
homicide by neglect type of case. Three days
of witnesses were called, crossed and
recrossed.
I learned, duting my cross of the State's
witnesses that:
1. Defendant was the only person that
found the child, immediately called 911 and
was seen giving CPR to the child in the right
manner;
2. Defendant's apartment , a lthough
sparsely furnished, was very clean, and not
riddled with roaches, vermin and the like.
There was not much to eat in the refrigerator,
despite the fact that the children were well
nourished;
3. The police at the hospital were
immediately ordered to separate the grieving
parents, since they were both suspects,
according to standard police procedure, which
was not very sensitive to young parents who
just discovered their dead infant hours before;
4. The police began interrogating my client
and his wife at the hospital while both were
in shock over rhe loss of their child;
5. The chief homicide detective failed to
inspect the site of rhe child's death, but merely
relied upon other officers' rendition;
6. The same detective ordered or suggested
to the medical examiner's to go into the
autopsy to rule out SIDS;
7. That although Defendant cooperated
with the police, his wife did not, making up
stories as to her whereabouts the night of the
child's death, leading to her telling three
stories to the police, and gaining zero
credibility (yet the State seemed to believe
that the jury's hating her for lying
automatically meant they would hate my
client or disbelieve hi s statements to the
police);
8. Officers investigating the scene made
tequests to the medical examiners to make a
finding against SIDS or to further examine
stains found on the carpet where the child
was found {neither of which was ever done
by anyone};
9. Thar the medical examiner relies heavily
on the recommendations from the police in
making their findings and does not even go
to the scene of a "crime" to make personal
observations in the course of preparing an
autopsy; or, to look at it another way, the
M.E. serves as a branch of the police
department in working to prove a homicide
instead of exercising independent judgment
as to a basis for a cause of death;
DOCKET CALL· 19
August / September 1999
Seating the Odds (continued) 
10. A photograph of the thermostat in the
apartment showed that the device was, in
the picture taken, set at 82 degrees, while
the top marking looked like the temperature
was presently in the 70's (this disposed of
the State's theor y that the hotter the
temperature in the apartment the hotter
closet temperature; yet the police could not
tell the exact temperature during the night,
did not submit Defendant's light bill, and
could not get around our testimony of either
the door being open while the first four
policemen investigated the site or that
Defendant often turned off the thermostat
when he left, or that the police may have
turned the device up for their own purposes) ;
1l. That the child could have died 4-12
hours before getting £0 the hospital bu t that
a more definite time could have been
established by a simple potassium test that
was not done;
12. There was absolutely no proof of any
previous abuse £0 either of the Defendant's
children;
13. That Defendant adored his baby son,
and wok as good of care for him that he
thought was bes t, including a 20-minute
videotape showing the child's first and only
Christmas with his family;
14. That the chief homicide detective
knew what SIDS was, but insisted that the
M.E. not make such a finding for the cause
of death;
15. That the medical exam iner has
testified for the State in some 70 cases
involving murder and homicide, but never
for an accused; that such medical examiner
did not find any physical proof of abuse on
the body; that no lab tests were completed
or performed on the child's clothing or
involving the carpet stains because it "cannot
be done" (which is not true-any university
can do the testing) ; and that in this case,
there were more symp£Oms for SIDS than
asphyxia; that SIDS is a real cause of death
that snatches up young babies without
explanation; that many articles and
presentations are done with SIDS in medical
seminars; that she was well aware of SIDS;
that asphyxia can be accidental; that she did
not go to the apartment to see the site
personally, even though she admitted to the
fact that the environment is an important
facror in a SIDS case; that the child probably
died in a period of no more than 5 minutes;
16. That the medical examiner admitted
that a cause of death by SIDS would negate
a homicide case; and that there were more
symp£Oms of SIDS here than asphyxia ;
17. That a DNA "expert" from the county
examiner's office tested the sleeping bag,
outside on the corner (not finding any
evidence or DNA to the child, as well as a
large piece of the inside tested, resulting in
no presence of DNA from the child (which
destroyed the State theory that the child was
even wrapped in the sleeping bag, as first
projected by the detective).
At least four times, I approached witnesses
£0 demonstrate how the sleeping bag was
used, found or tested. I sat on the floor of
the cramped courtroom, allowing the
Defendant or DNA witness to show me
testing sites or the position of the baby. Each
time a demonstration was performed, the
jury seemed to jump out of the box, and
lean in to our space, so I knew they paid
attention.
My summation was emotional and
11  am  - 12 pm,  tues. -thurs. 
11  am  - 2am,  ~ i  
Gpm  - 2am,  sat. 
succinct. All the evidence pointed to an
accidental death caused by SIDS. The jury
deliberated for thirty-five minutes or so,
came out and acquitted my client. Overall,
they told me that my client did not act
criminally, even though he had not used
common sense in putting his child £0 bed
for the night.
VII.  Afterthoughts 
We all have cases with difficult facts £0
explain. I always thought that a solid and
open-minded jury would not have £0 like
my client's parenting skills but would only
have to be open £0 the idea that his acts did
not rise to criminal liability. This case
showed me that no matter how much the
State has against us in personnel, research
capabilities, wi messes, experts and the like,
that good old-fashioned common sense,
humanization of the accused, informative
cross-examination and a simple defense
theory will often bring you success.
closed,  sun.  &mono 
20 • DOCKET CALL
August / September 1999
Hearsay 
NOT GUILTY VERDICTS: (listed in
theordertheywere received by the edicor)
Rosa Eliades and Angela Cameron _
Burglary ofa Habitation with Intent co
CommitSexualAssaultin the248thDistricr
Coun
DavePendleton- Robberyin the 174th
DistrictCoun
Rick Casrleberry - DWI , no test, in
CCCL#6
BrianCoyneandDickWheeler- Capital
Murder, life sentence when State sought
death.
JayKarahan-AggravatedRobberyinthe
262nd DisrrictCourt
DonBecker- Aggravated Robberyin the
351st DistricrCourt
Jack Carroll - Assault in CCCL#6 -
Intoxication Manslaughter-Probation in
262ndDistrictCourt- AssaultinCCCL#14
- Burglary with Intent to Commit
AggravatedAssault(ADADevonAnderson's
onlynotguilryverdictin 70 jurytrials!)
Trude Scott - Forgery in the 185th
District Court
Jon Munier- Gambling in CCCL#5 _
Assault in CCCL#7
Danny Easterling - D\'V'I , no test, in
CCCL#11.
WOULDYOU BELIEVE? Jon Munier
recently brought in a young man who
wantedco turnhimselfinonafour-yearold
murder arrest warrant in a neighboring
county south of here; the sheriff's
departmentasked himifhecouldcorneback
afterlunch....
CONGRATULATIONS to Assistant
District AtcorneyJeff Laird ofthe 209th
District Court on his marriage to Sarah
Barnes,aCP.A.
Upcoming 
CLE 
TheAfterHourseLE
Social 5:30 p.m. - 6:00 p.m.
CLE6:00p.m. - 7:00p.m.
At theSolero Swank Lounge
910 Prairie (upstairs room)
Houston, TX
Refreshments- Cash Bar
0<)/14/l)()   ofErrorin Voir
[)irc - Judy Princc
10/12/l)<) Punishmcllt ()priollS.
(:oILllcral (:ollSeljuL'nlt, &
CClleral Trcnd. ., Rcgarding
ScxualOfil:lldm- CarilL'rilll'
Crecn Burnett
II/Ol)/<)l} Inmatcs and Thcir bmilil's
IlItroJul'lioll to Prisoll
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DOCKETCALL· 21
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