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J

J Danny Easterling 1018 Preston 6th fl. Houston, TX 77002 September/October 1994 A Publication of Harris
Danny Easterling 1018 Preston 6th fl. Houston, TX 77002
Danny
Easterling
1018 Preston 6th
fl.
Houston,
TX
77002

September/October 1994

A Publication of Harris County Criminal Lawyers Association

Preston 6th fl. Houston, TX 77002 September/October 1994 A Publication of Harris County Criminal Lawyers Association

-i.ETDSPLAJ YOUR JAIL -B~{:]~~~~-[=~

IF-

-

-i.ET DSPLAJ YOUR JAIL -B~{:]~~~~-[=~ IF- - _ ~~ ) , ~­ In Jail Call 222
_ ~~ ) , ~­ In Jail Call 222 ­ BAIL That's ~~~-~~45
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In Jail Call 222 ­ BAIL
That's ~~~-~~45

Burns Bai Bonds

~~~eued~4beee 1971

224- 305

• Free D.W.!. video with any D.W.!. bond

• Our bilingual staff provides prompt, courteous service with over half a century of bonding experience

• Terms Available

• Open 24 Hours

• Conveniently located across from city jail

• Serving all courts in Harris County, with statewide and national affiliates

Carol Bums, John Bums, and Chris Freyer

609 Houston Ave.

Across/rom City Jail

Lie. #74243

HCClA Officers & Directors 1994-1995 President . President-Elect . . . . . . .

HCClA

Officers & Directors

1994-1995

President . President-Elect

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·

·

.Jim Skelton

George Parnham

Vice-President Treasurer.

Mark A. Goldberg

Wheelan

Dick

Secretary .

Kenneth

W. Smith

Immediate Past President · Chairman of the Board Directors:

Dan Cogdell Lloyd W. Oliver

Loren A. Detamore Joseph A. Porto Mary E. Conn Danny Easterling Wayne Heller Clyde Williams Judith Martin Prince W. B. Bennie House. Jr .

J. Charles Whitfield

John E. Crow Harry A. Loftus, Jr. Jonathan Munier Will Outlaw Moses M. Sanchez Winston E. Cochran, Jr.

 

Past-Presidents

1971-1994

C.

Anthony Friloux

(1 972-1973)

Stuart Kinard

(1973-1974)

George Luquette

(1974-1975)

Marvin O. Teague

(1975-1976)

Dick DeGuerin

(1976-1977)

W. B. "Bennie" House, Jr.

(1977-1978)

David R. Bires

(1978-1979)

Woody Densen

(1979-1980)

Will Gray

(1980-1981)

Edward A. Mallett

(1981-1982)

Carolyn Garcia

(1982-1983)

Jack B. Zimmermann

(1983-1984)

Clyde Williams

(1984-1985)

Robert Pelton

(1985-1986)

Candelario Elizondo

(1986-1987)

Allen C. Isbell

(1987-1988)

David Mitcham

(1 988-1989)

Jim E. Lavine

(1 989-1990)

Rick Brass

(1990-1991 )

Mary E. Conn

(1991-1992)

Kent

A. SchaHer

(1992-1993)

Dan Cogdell

(1993-1994)

President's Club David Cunningham Kent A. SchaHer

Docket Call

Editor .

Allen C. Isbell .Robert Pelion Louis F. Linden Donna K. Kleszcz

Associate Editor

Polson Pen

Design

& Production .

ADVERTISING RATES

Full Page

$300.00

112 Page

$150.00

1/4 Page

$75.00

Business card size

$37.50

Distribution 500 copies per issue. Articles and other edi­ torial contributions should be sent to the Editor, 202 Travis, Suite 208, Houston 77002 or the Association oHice at 405 Main SI. , 303, Houston 77002 Telephone (713) 227-2404.

DOCKET CALL

September/October 1994

Contents

From the President

2

Texas Capital Sentencing Statute's Definition of "Mitigating Evidence" is

Facially Unconstitutional

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Hearsay

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7

Primer for Handling a Grievance Complaint for the Honest and Conscientious Lawyer

9

To Tell the Truth

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.15

COUltrooms On the Range

 

.17

Encourage Clients and Friends to Vote

 

.19

LET'S HEAR FROM YOU!

CONTINUING LEGAL EDUCATION

WEDNESDAY APPELLATE UPDATES 30 I San Jacinto 12:00 noon, 177th District Court 01:00 MCLE

HCCLA Nuts & Bolts Seminar Series 1994 183rd District Courtroom, 30 I San Jacinto , 12:00 Noon Friday.

November 4, 1994

December 2, 1994

November 10, 1994

Cross Examination - Ed Mallett

Closing Arguments - Dick Wheelan

HCCLA Board Meeting, Thursday noon, Scanlan Bldg.,

December 8,1994

405 Main, 2nd floor

conference

October 27,1994

HCCLA Luncheon

Meeting

Treebeard's at The Church, 1117 Texas, 2nd fl. church aud .

November 2 - 4,1994

12:00 noon Thursday. Hon. Charles F. Baird Significant Decisions, Court of Criminal Appeals "Defenses That Work" Doubletree Hotel - Post Oak, Houston NACDL Call 202-872-8688

December 9 & 10, 1994

December 9 - 11, 1994

Warrantless Search Warrants Workshop Jim Skelton, Innova Bldg., 20 Greenway Plaza

National Criminal Defense College

Theories & Themes -

Denver, CO (912) 746-4151 for information .

An Advanced Course in Persuasion

WARRANTLESS SEARCH WARRANTS WORKSHOP -

Dec. 9 - 10, 1994

WARRANTLESS SEARCH WARRANTS WORKSHOP - Dec. 9 - 10, 1994 "~OME MEN LOOK AT CONSTITUTIONS THEM

"~OME MEN LOOK AT CONSTITUTIONS

THEM LIKE THE ARK OF THE COVENANT, TOO SACRED TO BE TOUCHED.

ASCRIBE TO THE MEN OF THE PRECEDING AGE A WISDOM MORE THAN HUMAN, AND SUPPOSE WHAT THEY DID TO BE BEYOND AMENDMENT."

WITH SANCTIMONIOUS REVIORENCE, AND DEEM

THEY

- Thomas Jefferson, letter to Samuel Kercheval, July 12, 1816

97'rom the ~resident

BY JIM SKELTON

97'rom the ~resident BY JIM SKELTON In this issue, President lim Skelto n presents a useful

In this issue, President lim Skelto n presents a useful referen ce g uide to all

Penal Cod e offense s and their punishment. In th e next issu e, he will present a s imilarly use­

[Editor's Note :

ful reference guide to all Drug Offenses and their penalties.]

reference guide to all Drug Offenses and their penalties.] PENALTIES Misuses property $500-$1,500. (39.03) Bail

PENALTIES

Misuses property $500-$1,500. (39.03)

Bail Jumping/Failure to Appear:

M-A

38.10 M-A

Felonies:

Misuses property $1,500-$20,000. (39.03)

Fine only.

(38.10)

M-C

 

F-4

Felony.

(38 . 10) F-3

Barratry:

 

F-I

Life or 5-99 years , may

fine not to

Mi suses

property

$20 ,000- $ 100,000.

(38 . 12)

exceed $ 10,000.

(39.03) F-3

Solicits/finances solicitation (38.12) F-3

 

Misuses property

$ 100,000-$200,000.

Sends

another

to

solicit.

(38 . 12)

M-A

F-2

2-20 years , may fine not to exceed

(39.03) F-2

Sends another to solicit (priors). (38.12)

$10,000.

Misuses property more than $ 200,000.

F-3

 

(39.03) F-I

Bigamy. (25.01)

M-A

F-3

2-10 years , may

fine not to exceed

Acceptance

of

Honorarium

(Public

Boating While Intoxicated. (49.06) M-B

$10,000.

Servant).

(36.07) M-A

72

hours minimum confinement

 
 

Aggravated Perjury. (37.03) F-3

One prior. (49.09)

M-A

FA

180 days - 2 years may fine

not to

Aggravated Robbery. (29.03) F-l

15 days minimum confinement

 

exceed $10,000

Aggravated Sexual Assault. (22.021) F­

Two priors. (49.09)

F-3

Misdemeanors:

I

Agreement to Abduct from Custody.

Serious bodily injury.

(49.07)

F-3

Breach of Computer Security:

(33 .02)

 

(25 .031)

F-3

No benefit/harm . (33.02) M-A

M-A

Up to

I year in

ja il, may fine up

to

Aiding Suicide:

(22.08) M-C

Benefit/harm less than $20,000. (33 .02)

$4,000.

Cause suicide/serious bodily injury (22.08)

FA

 

FA

Benefit/harm more than $20,000. (33.02)

M-B

Up to 180 days in jail, may fine up

Arson: (28.02) F-2

F-3

to $2 ,000 .

Death or serious bodily injury. (28.02) F-I

Bribery (Commercia\).

(32.43)

FA

Fiduci ary gaining benefit-fine double

M-C

Fine up to $500 .

 

Assault:

(22.02)

benefit

OFFENSES:

 

Aggravated. (22.02) F-2 Aggravated (by a public servant) . (22.02) F-l

Bribery (Public Official). Burglary: (30.02)

Building. (30.02) F-4

(36.02)

F-2

Abuse

of a Corpse. (42 .08) M-A

Aggravated (victim is public servant ).

Habitation. (30.02) F-2

Abuse

of

Official Capacity:

39 .02

(22.02) F-l

Habitation; felony other than theft.

Violates a law relating to capacity. M-A

39.02

Aggravated (retaliation). (22.02) F-l Bodily injury. (22.01) M-A

(30.02) F-l Coin operated machine. (30.03) M-A

Misuses property less than $20. M-C

(39.02)

Physical contact. (22.01) M-C Threats. (22.01) M-C

Vehicle. (30.04) M-A

Misuses property $20-$500.

(39.03)

M-B

Capital Murder. (19,03 ) Li felDeath Child Pornography-PossessionJ Promotion. (43,26) F-3 Civil Rights Violation - Prisoners:

39,04 M-A

Failure to report prisoner ' s death . (39 .05)

Dog fighting (money/property). (42.10)

F-4

Dog fighting (spectator). (42.10)

M-C

Deadly

Weapon

-

Penal

Institution.

M-B Coercion of Public ServantNoter:

(36.03) M-A Threat to commit felony, (36.03) F-3 Communicating Gambling Information.

(46.10)

Deceptive Business Practices: (32.42) Using false weight/selling less. (32.42) M-C Intentional or priors, (32.42) M-A

F-3

(47.05) M-A

Selling

adulterated/

misrepresenting.

Consumption of Alcohol in Motor Vehicle. (49.03) M-C

(32.42)

Destruction of Flag. (42. 11) M-A

M-A

fight or own property.

Credit

Card Abuse. (32 ,32) F-4

Disorderly Conduct: (42.01) M-C

Credit Card Laundering: (32,35) Less than $20, (32.35) M-C $20-$500, (32,35) M-B

Displays/discharges firearm. (42 ,01 ) M-B Official Proceedings. (38.13) M-A Disrupting Meeting/Procession. (42.05)

$550-$1,500. (32.35) M-A $1,500-$20,000. (32,35) F-4 $20,000-$100,000. (32.35) F-3 $100,000-$200,000. (32.35) F-2

Criminal Attempt. 15.01 Degree lower

M-B Dog Fighting: (42 .10) Cause a fight or train for fighting. (42.10) M-A

$200,000 or more. (32.35) F-1

E arn money from (42 .10) F-4 Spectator at fight.

(42 .10) M-C

Criminal Conspiracy. (15.02) Degree lower

Drinking While Driving. (49.03) M-C Driving While Intoxicated: (49.04) M-8

Criminal Instrument:

Possess with intent. (16.01) Degree lower Manufactures. (16.01) F-4

(16.01 )

Criminal Mischief: (28.03)

Less than $20. (28 .03)

M-C

72 hours minimum confinement

One prior. (49 .09) M-A

15 day s minimum confinement

Two priors. (49.09) F-3 Open container. (49.04) M-8 6 days minimum confinement Serious bodily injury. (49.07) F-3

$20-$500, (28.03) M-B $500-$1,500. (28.03) M-A $1,500-$20,000. (28,03) F-4 $20,000-$100,000. (28.03) F-3 $100,000-$200,000. (28,03) F-3 $200,000 or more. (28.03) F-I

Employment Harmful to Children (43,251) M-A Endless Chain Scheme. (32.48) M-B Engaging in Organized Criminal (71.02)

Less than $1,500; impair public services. (28,03) M-A Less than $20,000; church/ monument/etc, (28.03) F-4 Substantial inconvenience (28.03) M-C

Activity. One degree higher Con s piring to engage. (71 .02) The same degree as the most serious offense Renunciation before the offense.

Criminal

Negligent Homicide. (19 .05 )

(71,02) The same degree as the most

F-4

serious offense Renunciation of conspiracy

Criminal

Non-support.

(25 .05 ) F-4

to engage . (71.02)

Degree lower

Criminal Simulation. 32.22 (M-A)

M-A

Enticing a Child.

(25 .04)

M-B

Criminal Solicitation: (5.03) Capital Murder. (15.03) F-I Second Degree Felony. (15.03) F-2 Criminal Trespass: (30.05) M-B Habitation/shelter. (30.05) M-A Carries deadly weapon. (30 ,05) M-A Cruelty to Animals. (42.09) M-A Dog fighting (fighting/training). (42.10)

Escape: (38.06) M-A Felony/confined in correctional institution (38,06) F-3 Causes bodily injury. (38.06) F-2 Causes serious bodily injury/deadly weapon. (38.03) F-l Facilitating, (38 .07 ) M-A Facilitating (felony/confined in correction­ al institution). (38.07) F-3

Facilitating (deadly weapon) . (38 .07) F-2 Implements. (38.09) F-3 Implements (deadly weapon) . (38 .09)

F-2

Evading ArrestlDetention:

M-8

Serious bodily injury or death. (38 .04) F-3

(38.04)

Failure to Identify; (38.02) M-C Fugitive. (38,02) M-8

Failure to Report Prisoner's Death (39 ,05) M-8 False AlarmlReport: (42.06) M-A Public school/public facility. (42.06) F-4

False

(37,12)

False Imprisonment: (20.02) M-B Risk serious bodily injury. (20.02) F-3

False Report to a Police Officer (37.08)

Officer

Identification

M-B

as

Peace

M-8

False Statement for CreditlProperty (32.32) M-A Flying While Intoxicated (49.05) M-B

72 hours minimum confinement

One prior. (49.09) M-A

15 days minimum confinement

Two priors. (9.09) F-3 Serious bodily injury. (49.07) F-3

Forgery: (32.21) Will/deed/check/commercial instrument. (32 ,21) F-4 Money/securities/postage stamps. (32.21)

F-3

Government record . (32.21) F-3 Fraudulent DestructionJRe-moval of Writing (32.47) M-A Will /C 0 d i c i 1/ M 0 rtg a g e/ Sec uri t y Agreement. (32.47) F-4 Fraudulent Transfer Vehicle: (32.34) Under $20,000. (32.34) F-4 $20,000 or more. (32.34) F-3

Gambling. (47.02) M-A

Gambling - Communicating Information. (47.05) M-A Gambling Paraphernalia. (47.06) M-A Gambling Place - Keeping. (47,04) M-A

Gambling Promotion.

Gift to Public Servant: (36.08) M-A Offering gift. (36.09) M-A

(47 .03)

M-A

Harboring Runaway Child. (25 .06) M-A

Harassment:

(42.07)

~omthe

~resident

- CONTINUED FROM PAGE 3

Telephone. (42 .07) M-B Harassing more than one time. (42 .07) M-A Harassing more than one time (priors). (42.07) F-3 Hindering Apprehension/Prosecution:

(38.05) M-A Charged/convicted for a felony. (38.05)

F-3

Hindering Secured Creditors: (32.33) Under $20. (32.33) M-C $20-$500. (32.33) M-B $500-$1,500. (32.33) M-A $1,500-$20,000. (32.33) F-4 $20,000-$100,000. (32.33) F-3 $100,000-$200,000. (32.33) F-2 $200,000 or more. (32.33) F-I Homosexual Conduct (2l.06) M-C

Illegal Divulgence of Public Communications: (16.05) F-4 Divulgeslbenefit. (16.05) M-A Cellular phone/pager. (16.05) M-C Illegal Recruitment of an Athlete.

(32.441)

Benefit less than $20. (32.441) M-C Benefit $20-$500. (32.441) M-B Benefit $500-$1,500. (32.441) M-A

Benefit $1,500-$20,000. (32.441) F-4

F-3

Benefit $100,000-$200,000. (32.441) F-2 Benefit more than $200,000. 32.441 F-I Impersonating Public Servant: (37.11) M-A Police Officer. (37.11) F-3 Implements for Escape: (38.09) F-3 Deadly weapon. (38.09) F-2 Improper Influence (Public Servant) (36.04) M-A Incest (Prohibited Sexual Conduct). (25.02) F-3 Indecency with a Child: (21.11) Sexual contact. (21.11) F-2 Exposes . (21.11) F-3 Indecent Exposure. (21.08) M-B Injury to Child, Elderly, Disabled:

(22.04)

Benefit $20,000- $100 ,000. (32.441)

Bodily injury (intentional). (22 .04) F-3 Bodily injury (reckless). (22.04) F-4 Criminal negligence. (22 .04) F-4

Serious bodily injury. (22.04) F-2 Serious mental impairment. (22.04) F-2 Intercept Communication: (16.02) F-2 Manufacture/sell/possess. (16.02) F-4 Obstructs law enforcement. (16.02) F-4 Interference with Child Custody. (25 .03)

F-4

Interference with Public Duties. (38.15)

M-B Interference with Railroad Property:

(28.07)

Throws object or shoots at train . (28.07) M-B Throws/shoots and bodily injury. (28.07

(F-3)

Enters railroad property. (28.07) M-C Tampers with railroad property. (28.07) M-C

Place obstruction on tracks.

Causes derailment. (28.07) M-C Tampers/obstruct/derail; loss $20-$500. (28.07) M-B Tampers/obstruct/derail; loss $500 $1,500. (28.07) M-A Tampers/obstruct/derail; loss $1,500­ $20,000 F-4 Tampers/obstruct/derail; loss $20,000­ $100,000 F-3 Tam pers/obstruct/derai I; loss $100,000­ $200,000 F-2 Tampers/obstruct/derail; loss $200,000 or more F-I Intoxication Assault. (49.07) F-3 Intoxication Manslaughter. (49.08)

F-2

Issuance Bad Check. (32.41) M-C

(28 .07) M-C

Keeping a Gambling Place. (47.04) M-A Kidnapping: (20.03) F-3 Aggravated. (20.04) F-I Release in safe place. (20.04) F-2

Leaving Child in Vehicle.

(22.10) M-C

Manslaughter. (19.04) F-2 Intoxicated . (49.08) F-2 Misapplication Fiduciary Property.

(32.45)

Property less than $20. (32.45) M-C Property $20-$500. (32.45) M-B Property $500-$1,500. (32.45) M-A Property $1,500-$20,000. (32.45) F-4 Property $20,000- $100,000. (32.45) F-3

4 DOCKET CALL

Property $100,000-$200,000. (32.45)

F-2

Property more than $200,000. (32.45) F-I Misuse of Official Information: (39.06)

F-3

Coerces another not to report. (39.06) M-C Murder: (19.02) F-I Sudden passion. (19.02) F-2

Negligent Homicide.

(19.05)

F-4

Obscenity: (43.23) Promote/possess/produce. (43.23) M-A Promote/possess - wholesale. (43 .23) F-A Sale/display to minor. (43.24) M-A Sale - hires minor. (43 .24) F-3 Obstructing Highway/Passageway. (42.03) M-B Official Oppression. (39.03) M-A

Pen Register, Tap and Trace.

FA

Perjury: (37.02) M-A Aggravated . (37.03) F-3 Possess Components of Explosives. (46.09) F-3 Possession - Gambling Paraphernalia. (47.06) M-A Possession of Alcohol in Motor Vehicle. (49.03) M-C Possession Prohibited Weapon: (46.05)

F-3

Switchblade/armor-piercing ammo. (46.05) M-A Prohibited Sexual Conduct (Incest). (25.02) F-3 Prohibited Substances - TDCJ. (38.11)

F-3

Prostitution: (43.02) M-B Priors. (43.02) M-A Compelling. (43.05) F-2 Promotion. (43 .03) M-A Promotion - aggravated. (43.04) F-3 Public Intoxication. (49.02) M-C Public Lewdness. (21.07) M-A

(16.03)

Reckless Damage/Destruction. (28.04) M-C

Resisting ArrestiSearchffransportation:

(38.03)

Deadly weapon. (38.03)

M-A

F-3

Retaliation/Obstruction. (36.06) F-3 Robbery: (29.02) F-2 Aggravated. (29.03) F-I Riot: (42.02) M-B

Same classification as an offense commit­ ted during a riot. SalelPurchase - Child. (25.08) F-3 SalelPurchase - Human Organs. (48.02) M-A Sexual Assault: (22.0 II) F-2 Aggravated. (22.021) F-I

(43 .25)

Sexual Performance by a

Employlinduce one under 18. (43.25) F-2 Produce/direct one under 18. (43.25) F-3 SilenUAbusive Calls - 911. (42.061) M-B Smoking in Prohibited Places. (48.01) M-C

Child:

Taking Weapon from Peace Officer. (38.14) F-4 Tampering with Consumer Product

(22.09)

Sale to public. (22.09) F-2 Seriolls bodily injury. (22.09) F- I Threatens to tamper. (22.09) F-3 Tampering with Government Record:

(37.10) M-A Intent to defraudJharm another. (37.10)

F-4

License permit, seal, title, etc. (37.10) F-3 Tampering with Identification Numbers. (31.11) M-A Tampering with Witness. (36.05) F-4 TamperinglFabricating Physical Evidence. (37.09) F-3 Terroristic Threat: (22.07) Causes reaction by agency. (22.07) M-B Fear of serious bodily injury. (22.07) M-B Interrupt public place. (22.07) M-A Interrupt public service. (22.07) F-3 Theft: (3 I .03) Under $20. (31.03) M-C Under $20; one prior. (31.03) M-B $20-$500. (31.03) M-B $500-$1,500. (31.03) M-A $ 1,500-$20,000. (31.03) F-4 less than $1,500; two or more priors. (31 .03) F-4 $20,000-$100,000. (31.03) F-3 $100,000-$200,000. (31.03) F-2 $200,000 or more. (31.03) F-I Firearm. (31.03) F-4 Human corpse or grave. (31.03) F-4 Livestock under $20,000. (31.03) F-4 Person. (31.03) F-4 Public servant (one category higher)

(31.03)Service less than $20. (31.04) M-C

Service $20-$500. (31.04)

Service $500-$1,500.

Service $1,500-$20,000.

Service $20,000-$100,000.

Service $100,000-$200,000. (31.04)

Service $200,000 or more . (3 1.04)

Trade secrets.

M-B

(31.04)

M-A

F-4

F-3

F-2

F-I

(31.04)

(31.04)

(31.05)

F-3

Unauthorized Absence - Community Corrections. 38.113 F-4 Unauthorized Use Motor Vehicle. (31.07) F-4 Unlawful Access to Stored Communications: (16.04) M-A If benefit/harm . ( 16 .04) F-4 Unlawful Carrying Weapon: (46.02) M-A Licensed Premise. (46.02) F-3 Schools/airports/etc. (46 .02) F-3

Violation of Protective Order. M-A

(25.07)

Weapons: (46.01) Carrying. (46.02) M-A Carrying (licensed premise). (46.02) F-3 Deadly weapon - penal institution. (46.02) F-3 Designated places (school! airports/etc). (46.03) F-3 Possess components of explosives. (46.09) F-3 Possess hoax bomb. (46.08) M-A

Possess prohibited weapons. (46.05) F-3 Possess switchblade/armor piercing ammo. (46.05) M-A Sell to minors/drunks/felons . (46 .06) M-A

Wiretapping.

(16.02)

F-4

SEMINAR FOR THE PRESENTATION IN

ASYLUM &:

DEPORTATION

PROCEEDINGS

YMCA International Services Houston Refugee Pro Bono Project

Saturday, November 19, 1994

8:45 am -

5:00 pm

Thurgood Marshall School of Law

Texas Southern University

For more information, contact:

Kim Shelton at the YMCA International Services at (713) 995-4005

CHARLES FORD INTERNATIONAL INVESTIGATIONS, INC

995-4005 CHARLES FORD INTERNATIONAL INVESTIGATIONS, INC 9301 SOUTHWEST FRWY. SUITE 605 HOUSTON, TEXAS 77074

9301 SOUTHWEST FRWY. SUITE 605 HOUSTON, TEXAS 77074

713·774·1575

INC 9301 SOUTHWEST FRWY. SUITE 605 HOUSTON, TEXAS 77074 713·774·1575 SEPTEMBER/OCTOBER 1994 DOCKET OALL 5
TEXAS CAPITAL SENTENCING STATUTE'S DEFINITION OF II MITIGATING EVIDENCE" IS FACIALLY UNCONSTITUTIONAL by Allen C.

TEXAS CAPITAL SENTENCING STATUTE'S DEFINITION OF

II MITIGATING EVIDENCE" IS FACIALLY UNCONSTITUTIONAL

OF II MITIGATING EVIDENCE" IS FACIALLY UNCONSTITUTIONAL by Allen C. Isbell ()7he Texas capital sentencing
OF II MITIGATING EVIDENCE" IS FACIALLY UNCONSTITUTIONAL by Allen C. Isbell ()7he Texas capital sentencing

by Allen C. Isbell

IS FACIALLY UNCONSTITUTIONAL by Allen C. Isbell ()7he Texas capital sentencing Vsta~~te's definition of

()7he Texas capital sentencing Vsta~~te'sdefinition of mitigating evi­ dence is facially unconstitutional because it Iimjts the Eighth Amendment concept of mitigation to factors that render a capital defendant less morally blameworthy for committing a capital murder. V.A .C.C.P, Article 37.071 Section 2. (e) (t), effective Sept. I, 1991, provides:

(e) The court shall instruct the jury that if the jury returns an affirmative finding to each issue submitted under Subsection (b) of this article , it shall an swer the following issue:

Whether, taking into consideration all of the evidence, including the circum­ stances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient mitigat­ ing circumstance or circumstances to warrant that a sentence of life impris­ onment rather than a death sentence be imposed.

(f)

The court shall charge the jury that in answering the issue sub­ mitted under Subsection (e) of this article , the jury:

(1)

shall answer the issue "yes" or

"no",

(2)

may not answer "no" unless it agrees unanimously and may not answer "yes" unless 10 or more jurors agree'

(3)

need not agree on what particu­ lar evidence supports an affir­ mative finding on the issue; a nd

(4)

shall consider mitigating evi­ dence to be evidence that a juror might regard as reducing the defendant 's moral blame­ worthiness. (emphasis added)

Subsection (e) uses the phrase, " per­ sonal moral culpability of the defendant," and subsection (t) uses the phrase, "defen­ dant's moral blameworthiness". These mean the same because "moral culpabili­

"MITIGATING EVIDENCE IS NOT SIMPLY THAT WHICH RELATES TO A DEFENDANT'S MORAL CULPABILITY. "

ty" and " moral blameworthiness" are syn­ onymous. See, WEBSTER'S ENCYCLO­ PEDIC UNABRIDGED DICTIONARY

353 (1989). Therefore, the only type of evidence which the Texas statute autho­ rizes the jurors to regard as mitigating is evidence which reduces the defendant's culpability in committing the crime. There are numerous types of constitu­

tionally relevant mitigating evidence that

have no bearing on the issue of moral cul­ pabjlity, such as a history of positive char­ acter traits, religious devotion, voluntary

service, kindness, or

ence, mathe matics, or the

Franklin v. Lynaugh,

A capital defendant who is especially gift­

ed in a field, may be no less morally cul­ pable or blameworthy for committing a horrible capital crime than an ordinary or below ordinary person. A rational jury may be less inclined to sentence the espe­ ciall y gifted capital defendant to death, however, believing that hi s genius could be used positi vely, even in prison . This miti­ gating evidence against the imposition of the death sentence has nothing to do with "moral culpability" or " moral blamewor­ thiness".

The United States Supreme Court has held that constitutionally relevant mitigat­ ing evidence is not simply that which relates to a defendant 's moral culpability;

it includes any and all evidence relevant to

his character, history or circumstances of the offense that militate in favor of a life sentence. In Skipper v. South Carolina, 476 U.S. 1 (1986) the trial court refused to allow testimony regarding the appellant's good behavior and adjustment during incarceration pending his trial. The United States Supreme Court recognized that any

favorable influence from this type of

de nce "would not relate to petitioner's cul­

pability for the crime committed", but would be mitigating in the sense that it might serve "as a basis for a sentence Jess

special geniu s in sci­

arts . See

487 U.S . 164 (1988) .

ev i­

than death." Because the jury was not allowed to consider this type of mitigating evidence, the sentence of death was vacat­ ed pursuant to the holdings in Lockett v. Ohio, 438 U.S. 2d 586, 604 (1978). In Lockett v. Ohio, id., the United States Supreme Court, in a plurality opin­ ion, held that the Ohio death penalty statute was "constitutionally infirmed" because it unduly limited the range of mit­ igating circumstance that the sentencer could consider:

The Eighth and Fourteenth Amendments require that the sen­ tencer, in all but the rarest kind of capital case, not be precluded from considering as a mitigating factor, any aspect of a defendant's charac­ ter or record and any of the cir­ cumstances of the offense that the defendant proffers as a basis for a sentence less than death.

a statute that prevents the sen­ tencer in all capital cases from giv­ ing independent mitigating weight

to aspects of the defendant's char­

acter and record and to circum­ stances of the offense proffered in mitigation, creates the risk that the death penalty will be imposed in spite of factors which may call for

a less severe penalty. When the

choice is between life and death,

that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments. Id., 604, 60S.

302

(1989), the United States Supreme Court reaffirmed that "a sentencer may not be precluded from considering, and may not refuse to consider, any relevant mjtigating evidence offered by the defendant as the basis for a sentence less than death." The Court reasoned that case law "makes clear that it is not enough simply to allow the defendant to present mitigating evidence to the sentencer. The sentencer must also be able to consider and give effect to that evi­ dence in imposing sentence." The Court stated that only if the sentencer is able to consider and give effect to that mitigating evidence can society be assured "that the sentencer has treated the defendant as a uniquely individual human being, and has

In Penry

v.

Lynaugh, 492 U.S.

made a reliable determination that death is the appropriate sentence." The statutory definition of mitigating evidence narrows the type of evidence to that which relates to the accused's "culpa­ bility". This precludes the sentencing jury from assessing, weighing, and considering as mitigating other evidence which relates only to whether a "sentence less than death" is appropriate, simply because that evidence has no relevance to the defen­ dant's moral blameworthiness or personal culpability.

"IT IS NOT ENOUGH SIMPLY TO ALLOW THE DEFENDANT TO PRESENT MITIGATING EVIDENCE."

The constitutionality of VA.c.c.P., Art. 37.071 rests on the breadth with which the statute permits a capital jury to consid­ er and give effect to mitigating evidence. By narrowing the scope to evidence relat­ ing to Appellant's moral culpability [i.e., blameworthiness] for the crime committed, the Legislature violated the principles of the Eighth and Fourteenth Amendments as

explained in Lockett v. Ohio,

Eddings v. Oklahoma, 455 U.S. 104, 102

Supra; [

S.Ct. 869, 71

L.Ed.2d, (1982); Skipper v.

South

Carolina;

and

Woodson

v.

North

Carolina, 428 U.S. 280, 305, 96. S.Ct. 2978, 49 L.Ed.2d 944 (1976) [Opinion of

Stewart, Powell, and Stevens, JJ].

With this issue I begin a

series of articles on the Constitutionality of the Death Penalty Statute.]

[Editor'S Note:

Hearsay

of the Death Penalty Statute.] [Editor'S Note: Hearsay by Allen C. Isbell Received notice that Walter

by Allen C. Isbell

Received notice that Walter Boyd no longer resides in a house at 4654 Ingersoll, his new residence appears to be a post office box!

How about that examination for recertifi­ cation by the Harris County Judges for rep­ resenting indigents! Actually, kind of fun. Expect some enterprising lawyer to put

''judicially certified in criminal law by virtue of written examination!" in his let­

ters to new arrestees! Two questions drove me crazy. Was the reference in question one to the "42.18, section 3g" offenses, a typo, and should have read" 42.12, section 3g" offenses? I presumed so, and answered accordingly. Also, how did you construe the option in question 20 about appealing from administrative license sus­ pensions, which said: "The petition for appeal must be filed with the State Office of Administrative Hearings". Of course, the petition for appeal must be filed with the clerk in the county where it was sus­ pended, but a certified copy of the petition sent to the SOAH. How was the question using the word, "filed"? I wish I could think like Hal Hudson. He did not think about it.

Ex-prez Jim Lavine sends this note about

partner ex-prez Jack

Seems Jack was honored at a formal retire­

ment parade by two Marine Corps Reserve units he commanded jn the past. People assumed he was retiring from the practice

of law! Jim and Jack say this is not true, and that he is returning to full-time practice

of crirrunal defense law.

retired royally! He received the Meritorious Service Medal on behalf of the President of the United States for outstand­ ing service as a military judge. The cita­ tion stated that "through, his extensive experience, scholarly approach to resolv-

Our friend was

Zimmermann.

Hearsay

- Continued from page 7

ing complex legal issues, innate common sense, and considerable hard work, Colonel Zimmermann produced trials that were unquestionably thorough and legally correct." Personally, I thought the movie "A Few Good Men" was about Jack, which character I shall not say.

Soon, he will be Lt. Col. Terrence Windham of the Airforce Reserve. He is the prosecutor's office response to our own Col. Jack Zimmermann. Query: is a Lt. Col. in the Airforce Reserve a higher or lower rank to a Col. in the Marine Reserve?

Lori Corrigan, the very nice person who married John Corrigan, was honored August 31 st in Winterset, Iowa, for her work as an artist and patron of the arts.

Banquet honoring her featured Clint Eastwood and Meryl Streep, who were filming "Bridges of Madison County" in Winterset. Lori founded the art center there.

If you have noticed a great improvement in the last two issues of Docket Call, the cred­ it belongs to Lou Linden who has stepped in with suggestions and a lot of work! Walter Boyd has always had suggestions.

H.C.C.L.A. is fortunate to have an out­ standing trial lawyer and scholar at the helm. Jim Skelton combines those quali­ ties and is a great example for lawyers to follow. In the "good news is never old news" department, Haley Margurette Norton, Margaret C. Lombardo's daughter, is her mother's joy. Father is David Norton, of Norton Pictures Inc. Promised to tell about her severaL issues ago; just found the note to myself.

New Members Welcome! Name Sponsor C. Don Gutman Lloyd W. Oliver Susan F. Cobb Lloyd
New Members
Welcome!
Name
Sponsor
C. Don Gutman
Lloyd W.
Oliver
Susan F. Cobb Lloyd W. Oliver
Scott Kerman
Randy McDonald
Tex Tonroy Lloyd W. Oliver
Tracie L. Tippen
John G. Garza
MichaelOjo
James S. Healey
Jane C. Disko
Angel Fraga
Lloyd W. Oliver

Cynthia A. Brown

682-5932

Certified paralegal, experience in family and criminal law. Extensive training in personal injury. Excellent people skills.

LAWYER ARRESTED

Defense lawyer Mary Conn was arrested on the First Floor of 301 San Jacinto in the Criminal Courts Building, on April 26, 1993, at about 9:00 a.m.

If you saw, heard, or otherwise witnessed her arrest or any distur­ bance" before or after the arrest, or if you have any information which may be important to the criminal or civil; action pending, please contact:

J. Patrick Wiseman c/o Mary E. Conn 3000 Smith Street

Houston, Texas

77006

Telephone: (713) 520-6333

facsimile:

(713) 520-6399

Thank you.

PRIMER FOR HANDLING A GRIEVANCE COMPLAINT FOR THE HONEST & CONSCIENTIOUS LAWYER BY JOHN R.

PRIMER FOR HANDLING A GRIEVANCE COMPLAINT FOR THE HONEST & CONSCIENTIOUS LAWYER

BY JOHN R. GLADNEY

E ach year the State Bar receives more than 9,000 grievance com­ plaints against attorneys and

presently handles more than 550 grievance committee hearings per month. The pur­ pose of this article is to discuss various aspects of substantive and procedural dis ­ ciplinary law that inevitably impacts the most honest and conscientious lawyer. Many lawye rs believe that bec ause they are well meaning, decent, honest, and fair with their clients that they will never be called upon to respond to a glievance com­ plaint. In today 's complaint oriented envi­ ronment, and in consideration of the nebu ­ lous content of some disciplinary rules , this bel ief is probably wrong . This article will discuss the procedure following receipt of the grievance packet through the "just cause" hearing. Since January I, 1990, all Texas lawyers have been governed by the Texas Disciplinary Rules of Profess ion al Conduct. These latest rules add new requirements on Texas lawyers that the well intentioned and honest lawyer may inadvertently violate. In particular, the general are as of neglect, communications, and fees will be discussed.

I. Substantive Law A. Neglect

of

Di sc iplinary Conduct states that a lawyer shall not neglect a legal matter entru sted to

him . Under the old State Bar Rules, a

Rule

101(a)

of the Texas

Rules

lawyer violated the disciplinary rule only if it could be proven th at he " intentionally neglected " a legal matter entrusted to him . The burden on the State Bar of proving "intentional neglect" was to show con­ scious indifference of a serious degree. The present rule basi ca lly differentiates between a single act of neglect and several different acts of neglect by a lawyer toward his client. Rule 101(a) states that a lawyer shall not neglect a legal matter entrusted to him.

/IA LAWYER SHALL NOT

NEGLECT A LEGAL MAnER ENTRUSTED TO HIM./1

violation of disciplinary rules, unles s it can be shown to be an act of conscious disre­ gard by a lawye r for his responsibilities to

a client.

A different standard applies for a series of acts of neglect or for frequent acts of neglect, because Rule 1.01 (b)(2) of the Texas Disciplinary Rules of Professional

fre ­

Conduct states that a lawyer shall not

quently fail to calTY out the obligations that

a lawyer owes

it appears that

omissions, et cete ra, even when not a result of conscious indifference or con­

scious di s regard for a lawyer's obligations,

may result in

to a client or clients . Here, frequent un s killed acts and

di sc ipline to an attorney.

B. Communications Rule 1.03(a) of the Texas Disciplinary

Professional Conduct s tate s, " A

Rules of

" Neglect" is defined as conduct which sig­

lawyer shall keep a client reasonably informed about the status of a matter and

nifies inattentivene ss involving

conscious

promptly comply with reasonable requests

disregard for the re s pon sibilities owed to a client or clients. Thus, a single act of neglect falls under the sa me old rule stan­ dard of intentional neglect. Further, the comment to Rule 101(a) speCifically states that a

for information ." The term "reasonable" a nd "reas onably" are words of a rt and when used in relationship to conduct by a lawye r, refers to the conduct of a reaso n­ abl y prudent and competent law ye r. (See definition s section in preamble of the

lawyer who acts in

goo d

faith is not subject

Tex as Disciplinary Rules of Profess ional

to discipline under

these

provi s ion s for iso­

Conduct).

lated , inadvertent or unskilled ac ts or omis­ sions, tactical error or errors of judgment.

The seco nd part of this rule dem ands prompt responses to reasonable requests

The key word here is "isolated," and, an isolated act of negligence, even a serious one , is specifically not to be treated as a

for inform ation and is one of the most ambiguous of the disciplinary rules. Under certain circumstances, it may be so vague

Primer for Handling a Grievance Complaint

- CONTINUED FROM PAGE 9

as to be unconstitutionally void for vague­ ness. Before a lawyer can be disciplined for fai ling to keep his client reasonably informed about the status of activities, the lawyer must be shown to have acted in a fashion below the standard of the ordinari­ ly prudent lawyer. It is not entirely clear whether the same standard applies to promptly responding to reasonable requests for information, since the "reason­ able requests" language relates to the client's request, not the lawyer's conduct. As a matter of practicality a lawyer should document when and to what degree he has discussed with his client various aspects of his case. As noted below, cer­

tain specific aspects of a case must be talked about with the client. However, since the rule requires prompt response to reasonable requests for information, the lawyer is also advised to keep records of making such responses. In addition, if it is consistent with the facts, it is wise to bring evidence to the grievance committee to show that the client's request for informa­ tion far exceeded his legitimate need to know the progress of the case. Often, this can be done by calling associates to talk about how often calls were made. In addition, disciplinary Rule 1.03(b) requires that a lawyer explain the matter to the extent reasonably necessary to permit the client to make an informed decision regarding the representation. Rule 1.02(a) of the Texas Disciplinary Rules of Professional Conduct states that, subject to some limitations, the lawyer must abide by the client's decisions:

a. concerning the objectives and general methods of the represen­ tation.

b. whether to accept an offer of set­

tlement in a matter.

c. in a criminal case, after consulta­ tion with the lawyer as to a plea to be entered, whether to waive a jury trial, and whether the client will testi fy Compliance with this rule is based upon the "reasonably prudent lawyer" standard. In a close case, one should sub­

mit the expert opinion of another attorney that the discussion was at least adequate based upon the "reasonably prudent lawyer" standard.

C. Fees The basic rul e under Rule 1.04 of the

/I A NON-REFUNDABLE

RETAINER FEE IS

PERMISSIBLE IN TEXAS

ONLY UNDER CERTAIN CONDITIONS. /I

Texas Disciplinary Rules of Professional Conduct is that, "A lawyer shall not enter into an arrangement for, charge, or collect an illegal fee or unconscionable fee. A fee is unconscionable if a competent lawyer could not form a reasonable belief that the fee is reasonable." However, there are specific rule provisions of which some practicing attorneys are apparently not aware, namely the requirements regarding contingency fee contracts and non-refund­ able retainer agreements in a straight fee context. Rule I.04(d) of the Texas Disciplinary Rules of Professional Conduct dealing with contingent fees specifically require that the following information be given to a client in writing:

a. State the method by which the fee is to be determined.

b. State the specific amount or per­

centage to be charged for settle­ ment, trial and/or appeal. c . State whether litigation or other

expenses are to be deducted and whether such other expenses are to be deducted before or after the contingent fee is calculated.

d. Upon conclusion of a contingent

fee matter, the client must be given a written statement describ­ ing the outcome of the matter, and if there is a recovery, showing the remittance to the client and the method of its determination. A written agreement is not ~ se required for non-contingent fee agree­

ments, but is suggested. However, except where the lawyer has regularly represented the client, the basis or the rate of the fee shall be communicated to the client before or within a reasonable time after com­ mencing the representation [Rule 1.04(c) of the Texas Disciplinary Rules of Professional Conduct]. Thus, the practice

of telling the client that "I will let you

know what you owe when I finish your work" is a black letter violation of discipli­ nary law.

The greatest area of misunderstanding

in the straight fee context is that of the non­

refundable retainer and whether there is any obligation to refund a portion of that

type of fee in the event that the attorney withdraws prior to the time the work is completed. Rule 1.15(d) of the Texas Disciplinary Rules of Professional Conduct states:

Upon termination of representa­ tion, a lawyer shall take steps to the extent reasonably practicable to protect a client'S interests, such as giving reasonable notice to the client, allowing time for employ­ ment of other counsel, surrender­ ing papers and property to which the client is entitled and refunding

any advance payment offees that has not been earned.

Ethics Opinion 431 of the Texas State Bar Professional Ethics Committee, pub­ lished November 1986, makes clear that non-refundable retainer fees are permissi­

ble in Texas only under certain conditions.

A true non-refundable retainer fee is not

the payment for services; it is rather, an advance fee to secure a lawyer's services and remunerate him for loss of the oppor­ tunity to accept other employment. To the degree that it can be shown that a fee is truly for this purpose as, opposed to an advance payment for services to be per­

formed, the fee is earned at the time it is received and should not have to be refund­ ed, unless the attorney voluntarily with­ draws or is discharged for cause before it can be shown that he lost any opportunity

to obtain other and additional employment.

To the degree that the fee is truly only an

advance payment for future services, a refund should be made if the attorney vol­ untarily withdraws or is discharged for

cause, to the extent of the amount that the fee has not been earned at the time of the voluntary withdrawal or discharge for cause. It is respectfully submitted by this writer that the grievance committee will give consideration to the above ethics opinion as the standard of review of a refusal to refund a non -refundable retainer fee when the lawyer has terminated employment prior to completion of the work. Obviously, if the facts support the allegation, the lawyer should show that his withdrawal was a result of discharge with­ out cause or constructive discharge without cause by the client, such as where the client does not abide by his fee agreement to make future payments or does not coop­ erate in a significant fashion with the attor­ ney. However, beyond the text of Ethics Opinion 431, this writer also believes that the grievance committee will view a refusal to refund a non-refundable fee when the work has not been completed based upon a fairness standard, keeping in mind that a lawyer always has an obliga­ tion to deal fairly and equitably with his client.

II. Procedural Law and Considerations A. Overcoming Initial Response

The above discussion of the substan­ tive law relating to neglect, communica­ tions, and fees probably will convince

most lawyers that it

lenged for violation of a disciplinary rule,

even when the lawyer has a pure heart and the best of intentions. A lawyer will first know that a grievance has been filed against him when he receives a certified mail, return receipt requested mailing from the General Counsel 's Office of the State Bar of Texas which is marked "personal and confidential." The first and critical thing a lawyer must do after receiving this communication is to overcome hi s initial shock and unwillingness to participate in the process he may believe has falsely accused him. Statistics from the general counsel's office reflect that a significant number of lawyers do not respond to grievance com­ plaints at the "just cause hearing", do not make an election to proceed in district court or an evidentiary hearing panel, and thus, by default, end up before an eviden­ tiary hearing panel of the State Bar of

is possible to be chal ­

Texas, and even at that phase, do not respond. Frequently, the consequences for such attorneys is needlessly harsh.

A lawyer who receives a grievance complaint must overcome reactions such as ''1' m not going to play" or the "frozen with fear" response, and prepare to devote

a significant amount of time to properly

defend himself before a "just cause" panel

of a grievance committee of the State Bar

Texas . This article is intended to give

of

some idea of the procedure through the "just cause" phase. Frequently, an attorney

wi II be well advised to employ an attorney

who regularly handles grievance matters, and this will be discussed in more detail in another section.

B. The Grievance Packet

The grievance packet will contain a

"You CAN BE CHALLENGED EVEN IF YOU HAVE A PURE HEART AND THE BEST OF INTENTIONS."

letter from the General Counsel's Office of the State Bar of Texas notifying the attor­ ney that there is enclosed a grievance com­ plaint that has been filed against him to which the attorney must respond within thirty days. In addition, the accused attor­ ney will receive the actual grievance filed against him, an appeal form to the Board of Disciplinary Appeals and the names and addresses of the grievance committee members, from which you may make recusals (discussed below).

1. Grievance Complaint The grievance complaint itself is fre­ quently filled out by the lawyer's client. The attorney needs to carefully read this complaint and then refer to the Texas Disciplinary Rules of Professional Conduct to see if he can identify what is a potential violation of disciplinary law of which the client is complaining. Every attorney respondent is entitled to receive notice sufficient to apprise him of that

which he is charged so he can make an informed response. If this minimal infor­ mation has not been provided, the attorney should so state in his response. However, in making a response, the attorney should not treat the complaint as if it were pre­ pared technically by another attorney, but keep in mind that all that a layman must do is to allege grounds of misconduct which, if true, would constitute a disciplinary rule violation and do so with sufficient speci­ ficity to allow the attorney a reasonable opportunity to make a response.

2. Appeal Form to the Board of Disciplinary Appeals

The appeal form to the Board of

Disciplinary Appeals is designed to be used if the lawyer believes that if all the allega­ tions made against him are true (but not admitted), they would not constitute a viola­ tion of a di sc iplinary rule . In this instance , the attorney should fill out an appeal form to the Board of Disciplinary Appeals and mail it to the designated address . Many lawyers find it strange that they would file an appeal form to the Board of Disciplinary Appeals when no decision has

by the grievance committee .

The lawyer questions " what am I

been made

appealing

from?" The answer is that before the griev­ ance complaint was mailed to the attorney, a member of the General Counsel's staff made a decision that if the allegations as presented by the complainant are true, a vio­ lation of the Texas Disciplinary Rules of

Professional Conduct has occurred. The staff is sometimes erroneous in making this decision. For example, the staff may deter­ mine the complaint alleges negligence, even

though all that is alleged is a single isolated

act of attorney negligence . In this

stance, the Respondent simpl y completes the appeal form and mails it to the Board of Disciplinary Appeals. While the instruc­ tions state that no correspondence is desired to be sent with this appeal, this writer sug­ gests that the Respondent send a letter of less than one page in length to explain why the attorney believes that the complaint does not state a basis for discipline, even if all facts in the complaint are true.

circum­

3. List of Grievance Committee Members

The

final

information

sheet

in

the

grievance

packet

lists

the

names

and

Primer for Handling a Grievance Complaint•

- CONTINUED FROM PAGE 11

addresses of all grievance committee members. This information is given to the respondent attorney for the purpose of complying with Rule 2.06 of the Texas Rules of Disciplinary Procedure. Providing the Respondent with a list of all of the grievance committee members and their addresses may not comply with Rule 2.06 of the Texas Rules of Disciplinary Procedure. Rule 2.06 states: "Each mem­ ber of a Committee shall act through pan­ els assigned by the chair of the Committee for investigatory hearings and evidentiary hearings. Promptly after assignment, notice must be provided to the Respondent by United States certified mail, return receipt requested, of the names and addresses of the panel members assigned to each grievance." The issue of whether the General Counsel's Office must provide a specific list of panel members for the specific "just

cause" hearing is being litigated. At pre­ sent, the General Counsel's position is that

a global listing of all the grievance com­ mittee members is sufficient and that recusals, if any, must be made from the entire list within ten days after receipt of the list of the grievance committee mem­ bers. The recusals are to be made on the same basis as the recusal of a district judge.

C. Suggestions for a Response to Complaint

The attorney should make a complete and accurate response to the charges against him . For example, if the client is complaining the attorney neglected the

matter and did no work, the attorney needs to detail his efforts on behalf of the client. Most grievance panel members have care­ fully read the complaint and the attorney's response before the hearing and many have

a good idea how seriously they view the

complaint based upon the written materi­ als. Therefore, care in giving a detailed

and accurate written response cannot be overly emphasized. Because there is a question whether a lawyer should receive specific notice of

the panel members to be assigned to his grievance matter, this writer suggests a lawyer request this specific notice at the time he responds to his complaint. Further, when he responds to the complaint, if the attorney wishes to have a record made of

"AT THE HEARING THE ATIORNEY'S FUNCTION IS TO BE A WITNESS FOR HIMSELF."

the proceedings, even though the record will always be kept in the custody of the grievance commi ttee, unless the same should be used in other disciplinary pro­ ceedings, the attorney should make that request, and offer to pay the reasonable cost for videotaping and/or transcription.

D. Preparation for the Hearing Should You Hire a Lawyer?

Every lawyer accused of a disciplinary violation and facing a "just cause" hearing before a grievance committee should con­ sider whether to hire an attorney. At the grievance committee hearing, the accused attorney's primary function will be as a witness for himself and answer the ques­ tions posed to him by members of the grievance panel. It is advisable to prepare

for the hearing with a lawyer familiar with disciplinary law. Additionally, there are occasions when it is particularly important to have an attorney who the substantive and procedural disciplinary law present:

a. To attempt to limit the scope of the committee's inquiry - a lawyer should not be called upon to answer charges that were not made in the complaint. If the lawyer has any concern that the committee may seek to expand upon the specific allegations, the accused attorney needs a lawyer to assist him in preventing this from happening. The accused attorney is not in a good position, as a witness, to act as his own advocate.

b. To discuss areas of substantive and procedural disciplinary law

- frequently, these will not be

raised by the committee. If areas of disciplinary law need to be dis­ cussed to show why the attorney is not guilty of professional mis­ conduct, the accused attorney should rely upon another attorney to present those arguments.

c. The Respondent should avoid bragging or touting his profes­ sional accomplishments. A lawyer before a disciplinary panel must avoid appearing arrogant. Yet, his professional abilities may be a very significant aspect of the defense (such as in the case of a charge of an allegation of a clear­ ly excessive fee). The respondent attorney needs a lawyer to do this on his behalf so he can remain a dispassionate witness.

d. It is poor form for a respondent lawyer to be in a position of impeaching or discrediting his former client. Although the com­ plainant may have lied about the accused attorney or the com­ plainant's problems his own shortcomings, including at times, his basic lack of honesty, it is preferable for the Respondent's lawyer than for the Respondent himself to speak of his former client's faults.

e. Rarely, and regrettably, a commit­ tee member may unfairly treat the respondent attorney or mischarac­ terize his conduct. The accused attorney needs a lawyer to prevent this abuse in a way that does not create antipathy against him from other members of the panel. Additionally, the recusal of a panel member should be handled by the accused attorney's lawyer.

2. Know the Facts of the Complaint

Whether represented by a lawyer or not, the respondent attorney must be thor­ oughly familiar with the subject matter of the complaint, have all relevant names, dates and facts in mind, and be prepared to discuss his defense.

3. What Will the Committee Look For

The committee is charged with deter­

specific rule of the

mining whether any

12 DOCKET CALL

SEPTEMBER/OCTOBER 1994

Texas Disciplinary Rules of Professional Conduct has been violated. In addition, the committee is always concerned with whether the lawyer demonstrates that he has been concerned about his client's wel­ fare and is concerned about the legal pro­ fession at large.

E. The Hearing 1. Who is on the Panel

Usually, there are three to six mem­ bers on the "just cause" panel, one-third of whom are laymen and two-thirds of whom are attorneys. All grievance committee members have been recommended to the Board of Directors of the State Bar of Texas by the President of the Board upon the recommendation of the local director of the State Bar of Texas. Sometimes, it suggested that griev­

ance panels are

lawyers. This is true only to the extent that

there are more big firm directors of the State Bar of Texas (especially from big cities) and these individuals naturally appoint people who they know and respect to grievance panels .

stacked with "big firm "

2. Procedure

Committee meetings begin with the chairman of the panel making admonitions to both the complainant and the Respondent. The complainant is advised that the purpose of the hearing is to deter­ mine whether professional misconduct has occurred, not to handle the complainant's legal matters or obtain compensation for the complainant's losses. The respond e nt attorney is advised that he has a right to an attorney and is given a Miranda warning, applicable if the charges against the attor­ ney also involve potential violations of criminal Jaw. The complainant and Respondent are advised that the proceed­ ings are confidential , except in the circum­ stance that the accused attorney agrees to some type of public discipline. The com­ plainant and Respondent are advised that the panel members have read the com­ plaint and the response and that the parties should limit their comments to additional information or to answer the questions of the committee. Usually, the complainant is asked first if he or she has additional infor­ mation and then questioned by the panel members. Following this, the accused attorney is asked if he or she has addition­

al information , followed by questions. Cross examination by either party is not allowed. However, at the panel chair's discretion, either the complainant or the accused attorney may present questions to the panel chair to ask of the other party.

Closing arguments may

be allowed .

3. Problems with the Hearing

Usually, the Respondent has no clear cut opportunity to present his case. The admonition that only new information is sometimes used to cut short information the attorney believes important. However, with respectful persistence, one should be able to adequately describe his other efforts on behalf of the client, or other­ wise detail why he or she has no commit­ ted professional misconduct.

"THE LAWYER HAS ONLY ONE OPPORTUNITY TO PRESENT HIS SIDE AT THE GRIEVANCE HEARING."

The majority of grievance committee members are courteous and give both par­ ties an opportunity to present a fair case. Howev e r, in some circumstan c es, commit­ tee members are brusque or appear to have predetermined the result. On some occa­ sions, committee members do not consider substantive disciplinary Jaw, but act more like a Court of Chancery in trying to deter­ mine what is fair or right. The lawyer has only one opportunity to present hi s side of the matter at the grievance hearing. He needs to make certa in he has covered rele­ vant defenses to the pertinent substantive disciplinary law. The manner in which a lawyer pre­ sents himself at a committee hearing is critical. The lawyer must give thoughtful, dispassionate answers to questions posed . He must be prepared to respond to the sub­ ject matter of the complaint. If the lawyer projects concern about his other clients and the profession, he or she has gone a long way toward a successful conclusion of the grievance process. Conversely, arrogance, ill temper, and lack of preparation virtually guarantee a bad result.

F. Decision by the Committee 1. Finding of No Misconduct - Decision Unanimous

Success -

over.

the grievance complaint is

2. Finding of No Misconduct ­ Decision Not Unanimous

The complainant will be advised that he may ask for a new hearing panel to hear the same grievance. The procedural rules do not state a time frame in which the com­ plainant has to make this request.

3. Finding of Misconduct - Proposed Discipline

Range of

The "just cause" hearing panel may only make recommendations for disci­ pline. It may not impose discipline, with­ out the accused attorney's agreement. The proposed discipline may be a private repri­ mand (and is available only if accepted at the "just cause" hearing level), a public

suspension from th e practice

reprimand, a

of law which is fully imposed or is fully or partially probated, and a recommendation

of resignation in lieu of disbarment.

G. Twenty Days to Accept or Reject or Negotiate A "Just Cause" Determination

A respondent attorney has only twenty days from receipt of the certified mail to accept or reject the decision of the "just cause" grievance panel ' s proposal or to propose a counteroffer. For a grievance committee action to be effective, the griev­ ance committee proposal (whether original or revised due to the committee accepting

a counteroffer) must be fully accepted and

signed by the respondent attorney within the twenty-day period. This is one of the most difficult time periods in the rules. If

a counteroffer is proposed, the committee

must be polled within the twenty-day peri­ od. The findings of fact, conclusions of law, and the judgment must be redrafted and all documents notarized within this same twenty-day period. If this is not accomplished, the respondent attorney is deemed to have rejected the proposed set­ tlement offer. At the time of the rejection of the offer or after the lapse of twenty days from the date of the initial offer, the grievance committee loses jurisdiction. Future decisions regarding whether to per­ mit a settlement, and, if so, for what

Primer for Handling a Grievance Complaint•••

-- CONTINUED FROM PAGE 13

degree of discipline, are made by the Commission on Lawyer Discipline and not the grievance committee. If the accused attorney and the griev­ ance committee agree upon a sanction within the twenty-day period, the judgment has the same effect as if rendered by a dis­ trict court.

H. Limitations on Use of Private Reprimands, Public Reprimands, and Probated Suspensions 1. Limitations on Private Reprimands

the

Commission on Lawyer Discipline and in accord with Section81.072(ll) of the

Texas Government Code, an attorney may

receive only one private reprimand for the violation of the same disciplinary rule within a five year period. An attorney may receive no more than two private repri­ mands for the violation of any disci plinary rule during a ten year period. A private reprimand is not to be imposed under the

following conditions:

a. The misconduct includes theft, mi sa pplication of fiduciary property , or the failure to return, after demand, a clearly unearned fee; or

b. The misconduct caused substan­

tial injury to the client, the public, the legal

system or the profession; or

c. There is likelihood of future mis­ conduct by Respondent; or

d. The Respondent intentionally

violated the Texas Disciplinary Rules of Professional Conduct or, if applicable, the Texas Code of Professional Conduct.

Under

a

rule

imposed

by

2. Limitations of Public Reprimands

When the Supreme Court makes effective the recently passed disciplinary rules referendum (possibly as early as October I, 1994), a lawyer may recei ve only one public reprimand in a five year period for a violation of the same discipli­ nary rule. He may receive only two public reprimands during the same five year peri­ od, whether or not for violating the same disciplinary rule.

3.

Limitation on Fully Probated Suspensions

When the Supreme Court makes effective the recently passed disciplinary rules referendum, a lawyer may not receive

a

fully probated suspens ion, if he has with­

in

the past five years received a public rep­

rimand or a fully probated suspension for violation of the same disciplinary rule or if he has previously received two or more fully probated suspensions whether or not for violating the same disciplinary rule. An attorney may not receive a fully pro­ bated suspension, if he has previously received two or more sanctions of public reprimand or greater for conflict of inter­ est, theft, misapplication of fiduciary prop­

"A LAWYER MAY

RECEIVE ONLY TWO

PUBLIC REPRIMANDS

DURING THE SAME FIVE

YEAR PERIOD."

erty, or failure to return, after demand, a clearly unearned fee.

4. Election for Further Proceedings

The election to go to district court or to an evidentiary hearing panel of the grievance committee must be made within

fifteen days after the Respondent receives

a notice of election from the General Counse l's Office. There may be some rea­ sons for electing to proceed before an evi­ dentiary hearing panel (this should be care­ fully discussed with an attorney familiar with disciplinary procedure). As a general mle, this writer believes most accused attorneys will be better served by electing

to go before a district court.

Conclusion

This article is limited to discussing procedure through the first phase of the grievance process which is the "just cause" grievance panel hearing phase. Should a lawyer be involved in the latter phases of disciplinary action, he requires competent legal representation. As earlier suggested,

such representation is often needed during the "just cause" phase. Hopefully, this article has de-mysti­ fied some specific aspects of substantive disciplinary law and procedural steps through the "just cause" hearing. While some pitfalls and traps for the unwary have been discussed, others remain.

About the Author

John R. Gladney is currently a partner with the Law Firm of Kreisner & Gladney and primarily litigates matters concerning attorney professional responsibility. He regularly defends attorneys in disciplinary proceedings, serves as an expert witness in matters of professional responsibility and has spoken at seminars concerning attor­ ney conduct. From 1989 to 1991, Gladney served as Deputy General Counsel and Chief of Litigation for the State Bar of

Texas,

serving as the State Bar s chief trial

attorney and supervising a staff of approx­ imately ten lawyers. From 1983 through

1989, Gladney served as Assistant General Counsel for the State Bar of Texas prose­ cuting disciplinary actions throughout the State. Gladney is licensed to practice in

the State of Texas and before the Northern District and Western District courts of Texas. He received his Juris Doctor from Baylor Law School in 1974 and graduated from the University of Texas at Austin in

1971 with a Bachelor of Arts with Honors

in 1971.

Paula S. Williams

864-7302

-----------~----------

Certified paralegal-­ extensive training personal injury and family law for a reputable attorney. Available immediately.

'1'«) 'I'I~IJIJ 'I'III~ Louis F. Linden A television of almost solid-state vin­ tage perched
'1'«) 'I'I~IJIJ 'I'III~ Louis F. Linden
'1'«) 'I'I~IJIJ
'I'III~
Louis F. Linden
'I'I~IJIJ 'I'III~ Louis F. Linden A television of almost solid-state vin­ tage perched on a

A television of almost solid-state vin­

tage perched on a tri angular piece of ply­

wood wedged high in the corner and glow­ ered down on the room. It was a major

source of the light in the room aided onl y by two reluctant fluorescent tubes and the Jight that occasionally made it through the

double kitchen doors . It wasn't

dark but it wasn ' t light. That was fine by me. I was hiding out. No one would look for me here at Your Mom ' n Them's Fried Chicken. It's a monument to Houston ' s aversion to zoning. It's a monument to the three Texas food groups. Tex-Mex, Barbecue and Grease. It's a monument to interior designer Sears A. Roebuck, c.

1957. It's a monument. No one looks for

swinging

an addict in a monument. Addictions have an up side and a down side, often literally. I'm addicted to democracy. That's the up side. The down side is that I am therefore addicted to poli­ tics . Painful but true. Democracy is not a spectator sport. It's my Jones. It's a crav­

ing that defies my resolutions never to do

this again. God knows I've tried but it has­

hi s behavior any. Or mine . The

n't altered

last binge I was hung over for three months. I tlied twelve steps to apathy pro­ grams like Politics Anonymous. It didn't take. I went to meetings of the campaign worker 's support group. It didn't help, not really. I stayed away from the primaries. I knew that temptation was not my friend.

But deep in my heart I also knew that I

would falter sooner or later. It was sooner.

A person I knew to be an unrepentant

junkie said, "Here, just work at this fund

raiser. Just one li'l 01' fund raiser won ' t hurt." I knew he was lying even as I start­ ed serving up the barbecue. Even as I denied it to myself, I knew I was off on another binge. My practice, my marriage to the most understanding and long suffer­ ing spouse a junkie could have, my resolu­ tion to quit smoking and aID fifteen miles

a week, all began to fade away in a kalei­

doscope of yard signs, pushcards, and campaign events. Everything focused on just keeping all the balls in the air until that Tuesday in November. If I can just avoid

a grievance, and losing too many clients

and having my duodenal ulcer consume my lower G.I . tract and have my candidate win, I prorrtise I'll never do it again . So there I was at Your Mom'n Thems where no one can call me and ask when the pushcards will be ready or when will I have the big sign put lip at somebody's cousin's ice house . There were other junkies there but all careful not to acknowledge the others. It 's a safe zone . Neutral turf. There's a box by the door with a sign, "check all cell phones and pagers here." I was watching Dan Rather doing the pre-game warm-up show for the Haitian invasion and scarfing some of YM.'n T.'s burned bird. The initial crunch through the fried batter then the exquisite, salubrious drooling of the grease down the back of my hand toward my wrist. In my reverie I failed to notice the program had changed to a piece about jury consultants

until I caught a glimpse file footage of Cat

Be nnett sitting next to

Smith. The piece revolved around a new

William Kennedy

book written by the "Legal Editor" (as opposed to the "Illegal Editor" I guess) of the Wall Street Journal. The theme was that defense lawyers are rigging trials by

using focu s

other social science techniques. They did­

n ' t imply it, those were the words they

used. A California defense lawye r tried to explain to the reporter about th e adversary system but she wasn't having any. "Aren't you keeping perfectly good people from serving on the jury?" (At least she under­ stood about the effectiveness of leading questions.) Her moral indignation that people who would vote to convict were being targeted for exclusion by the defense was palpable. Is it any wonder the American people hate us? Any tactic which raises the chances of a not guilty verdict is somehow immoral. Justice is that which con victs. Fair juries are those who will vote guilty After they interviewed the geek who

book (which I haven ' t read

had written the

and mayor may not concur with what I

piece ended . I got

another Lone Star long neck from the Pepsi cooler by the kitchen doors and resumed muttering over the comestible wreckage on my plate. It looked like the aftermath of a three chicken head-on colli­ sion. The television had ruined my appetite . It's so hard to enjoy your dinner when you are foaming at the mouth and jumping up and down . When I worked for N.A.C.D.L. I often found myself in the same position as the California lawyer, trying to rationally

groups and mock trials and

saw on the tube) the

explain the workings of the criminal jus­ tice system and the defense function in par­ ticular. Sooner or later the interview would always get to ''The Question ." "How can you represent someone you know is guilty?" Having answered "The Question" hundreds of times it was not dif­ ficult to respond. But in my mind I was always amazed. They just don't get it.

How can it be?

They have high school

civics classes even in this age of dumbed down education. They must understand the structure, they grew up watching Perry Mason and nearly a dozen other lawyer

Lawyer movies are the genre of the

shows.

day. Scott Trurow and John Grisham lawyer novels sold literally millions of copies in the last ten years alone. But they just don't get it. I think one of the problems is politics, the evil twin brother of democracy. Moreover, I think that judicial politics is one of the worst offenders. I'll be the first to admjt that this premise is vulnerable to

chicken and egg analysis . But it is impos­ sible to ignore that virtually all elected judges' campaign platforms consist exclu­ sively of being "tough on crime." Even candidates running for courts with no criminal jurisdiction jump on the band wagon! The conventional wisdom is that candidates who promise to be fair to the prosecution and defense alike remain just that, candidates. I don ' t pretend to know

whether this is a cause or an effect. I don't know that it matters anymore. What does matter is that it is a perversion of any sys­ tem that calls itself justice. It violates the philosophical foundation of our judicial process. It is an index to how far our soci­ ety is willing to live from our ideals. We can't afford to be fair anymore, we've got

to be tough , tougher than our

Crime has replaced corrununism as the boogeyman of choice. To be fair one must admit that legisla­ tors and executive candidates are at least as cynically exploitive of the people's fear, e.g., congress creates more than fifty new death penalty offenses. Even Texas which leads the western world in judicial execu­ tions can only come up with one offense warranting the death penalty. What pur­ pose do the fifty new capital offenses serve? Quite simply they serve to get politicians re-elected . So it has ever been, at least within my lifetime. Cynics believe

opponent.

that the electorate is not interested in fair­ ness or, for that matter, in freedom. They are interested in security. I'm afraid the cynics are right. Voters are interested in what a candidate will promise to do for them, not the good of the society. The dark side of individual liberty is egocentrism. What are you gonna do for me? Judge candidates are hampered in responding to the self-interest of the voter. They can't make laws. They can't build roads or promise to pick up the garbage more often. In Harris County there are so many of them, more than a hundred in the coming election, no one can sort them out

par ty affiliation, a dubious criteria

save by

at best. If we accept the apparent as true, the voters don't understand the process and

"HAITI HAS MORE INFLUENCE ON JUDICIAL ELECTIONS THAN ALL THE CAMPAIGNING BY ALL THE CANDIDATES."

are therefore irrevocably handicapped in evaluating candidates. It is a scenario ripe for exploitation by any opportunist with a law license and a willingness to pander to an often irrational, media inflated fear of crime. There is no shortage of people of that description. In most Texas counties it's not a problem. There are a handful of judge candidates and everyone in the coun­ ty knows them or their family or their rep­

utation .

largest electoral county in the U.S . with

more voters than twenty-six states. Almost none of those voters know what the various courts do, who the candidates are or why they would or would not make good

third

But Harris County is the

judges . Hell, I don't even know

most of

those folks, at least those running for civil

benches. Whether Haiti gets invaded has more influence on judicial elections in Harris County than does all the campaign­ ing done by all the candidates. If this is so, I wonder why we all do this. I understand the candidates' motiva­ tions. Some are good and some are not so

good. Some rise directly from that reptil­ ian stem of the brain that no one wants to

admit to. But what

the schlumphs who lug the signs and push the cards and make the lists and check them twice? I can't really imagine that anyone would go through all of this just to get appointed criminal cases. That's termi­

nal masochism. Beat me, whip me, make me write hot checks. If there were that many junkies Your Mom'n Them's could

franchise, open new locations all over town. I mean, for fun it's right up there

with rolling around in

a sandburr patch .

Maybe that's the answer. I just feels so good when you stop. More likely it's delu­ sional, like Your Mom ' n Them's Low Fat Special Dinner. Beyond all rationality we delude ourselves into thinking that we real­ ly are working for a better judiciary. What an age we live in boys and girls, what an age we live in?

abo ut us? What about

m Thomas M. Tompkins

U1UI (2:::::~481I

Seeking Employment

803-B Government Street Mobile, Alabama 36602

.HCADA

MISSION STATEMENT

"To reduce the incidence and prevalence of alcoholism and other drug addictions and their related problems in the City of Houston and Harris County."

520-5502

Ext. 39

The flouslOn Council on Alcoholism and Drug Abuse ( H CADA)

is an affiliate of Ih e NOIiona l Council all Alco holism ami Drug

Way. 'h e Texas

Commission on Alcolzol alld Dug Abuse as well as privare om ­

Dependence, and receives funding from United

friburions , special events and program fees.

service due /0 th ei r finan c ial s ilLiGtion.

No Oll e ;s denit:d

COURTROOMS ON THE RANGE THE TRIAL LAWYERS COLLEGE

BY JOHN E. ACKERMAN,

AN OLD WARRIOR

1(,5:30 A.M. TIred lace, are arriving

at

the

dining

hall

on

Thunderhead

Ranch - each wondering why they were told to get up in the dark and come to breakfast. Oatmeal, Granola, Orange Juice and toast are the morning fare. The Old Warrior enters the room, gets everyone's attention, and announces the reason for the early breakfast. "Upon finishing breakfast each of you is to walk out into the moun­

tains alone, find a comfortable place, a rock, a tree, a flat piece of ground, and stay there until lunch time. Come back for lunch. There will be no talking during lunch. We will meet in the big barn at

questions?" There were none .

They were used to surprises from the Old Warrior. A heavy silence hung over the group at lunch time. They spoke only with their eyes, but from deep inside them­ selves. The meeting in the big barn at 1:30 confirmed what each one knew. It had been a morning of self introspection - a morning in which they learned something important about themselves; who they were, and why. As they began to share the morning's experience, some laughed and some cried and they came closer together. As they learned about themselves, they gained insight into others. That night, around the camp fire, they sang and told stories. Mostly the music came from their hearts and spoke of their lives. The stories were of their feelings; their pain, their anger, their joy at impor­ tant and intimate moments of their lives. The Young Warriors learned that they are

I:30. Any

more like each other than they are different and that there was something in each of them worth caring about. As their days at the ranch progressed, this day would keep returning to their minds. It changed the way they did their daily chores. Somehow they were more

relaxed ; more at peace within

and with each other. The next morning they went off in groups of eight to the small barn or the

themselves

"A DONKEY OUTSIDE THE WINDOW OFFERED OCCASIONAL COMMENTS. "

milk house and worked on Opening Statements, or Cross-Examination. They were accompanied by an Old Warrior, one of America's top trial lawyers. They were learning from the best. They were becom­ ing trial lawyers. The place was Thunderhead Ranch, near Dubois. Wyoming. The event was the culmination of a IS-year dream of Gerry Spence, The Old Warrior, to create a col­ lege where young lawyers, who cared about people and were committed to help­ ing people could come and learn. Spence converted his ranch into a college. The big barn became a donnitory and a courtroom .

The small barn became four courtrooms. Even the old milk house was called into service. A donkey outside the window

offered occasional comments. The roost­ ers , crowing, seemed to have no concept of time. Last Winter, as the snow lay deep across the valley of the Little Wind River, full-page ads appeared in The Champion and in Trial Magazine. For $2,900. lawyers were invited to come to Wyoming for the entire month of August and learn from the best. The application was to be a letter explaining what the applicants had done and wanted to do with their lives. From the 435 letters received, Spence and the other members of the Board of Directors selected 50 lawyers. Those who

couldn ' t afford

arships. They came from all across the United States. From Washington, Oregon and California to New York, New Hampshire and Florida. they were a mixed group. Some had tried cases for twenty years, some had never tried a case. They arrived on July 31, seventy-five miles from the nearest airport and after rid­ ing down ten miles of some of the bumpi­ est gravel road in Wyoming. They found accommodations that were Spartan. yet adequate. The nearest town was 20 miles and 45 minutes away. There was no tele­ vision and no newspapers. Even radios found very few waves to grab. They arrived strangers to each other and departed the closest of friends. Mostly their days were spent working

the tuition received schol­

in their sections. They were helped by the likes of Gerry Spence, some say the best trial lawyer of the 20th century; Rikki Klieman of Boston, lawyer for Katherine Ann Powers; Richard Haynes and Joe Jamail of Houston; Howard Weitzman of Los Angeles, lawyer for Michael Jackson, John DeLorean and OJ. Simpson; Morris Dees, of Montgomery, Alabama; Albert Krieger of Miami, Florida, lawyer for John Gotti; Judge Robert R. Rose, formerly of the Wyoming Supreme Court, and many others. During the final four days they did one-day trials. Many tried the O.J. Simpson case. As I watched them try their cases, I was astounded by how accom­ plished they had become as trial lawyers. Even those who had never tried a case before were better than most of the lawyers I watched try cases from the bench here in Harris County. Although the magic of the Trial Lawyers College is hard to define, it is surely magic . I was there. I saw it with

my own eyes .

On September Ist, fifty tired Young Warriors packed their bags, said their final good-byes and headed home; some with anticipation, some reluctantly. They were not the same people who arrived there on July 31st. They had been changed. They viewed the world differently. They viewed themselves differently. Each and every

They felt

privileged by having been there. They just

didn ' t know how the folks

going to take them. Karen Cauthen is a Young Warrior from Port Arthur. She has never tried a case. She says: "When I started law school back in the fall of 1990, I dreamed of becoming a good trial lawyer. Since attending the Trial Lawyers College, I am now determined that I will not be just a good trial lawyer but rather a great trial lawyer. lowe my clients no less since I have been taught by the very best! " John Bull from Pearsall, Texas is a trial

one was glad they had come.

back home were

lawyer of some significant experience. John says he applied "with the intent of becoming a better trial lawyer, but received so much more. I think the best part of all

of this was that I learned a lot about myself as a human being. I told Garvin [Garvin

I

known that we would be dancing with Indians and painting when I applied I'm not sure I would have come. What a mis­ take that would have been." So, you want to be a trial lawyer? Well, if you don't represent corporations or insurance companies or governments, but you do represent people, send in your application now, 1 then mosey on up to Dubois next August. Find yourself in the Rockies . "Let the wind do its thing with

your mind."2 Become a Trial Lawyer.~

Isaacs from Oklahoma City] that had

I Send

in your

Trial Lawyers College, P.O. Box 548. Jackson, WY 83001. ' . From Waddie Mitchell. Buckaroo Poet.

a leller. Explain what you ' ve done life and wh at your dream s are. To:

VOTE 209th District Court Judge Pd. Pol. Adv. by L.W. Oliver, P.O. Box 271503, Houston,
VOTE
209th District Court Judge
Pd. Pol. Adv. by L.W. Oliver, P.O. Box 271503, Houston, TX 77277

Encourage Clients and Friends to Vote

The following contested races are very important to our members. Circle your choices, and send a copy to your clients and friends.

APPELLATE RACES

ATTORNEY GENERAL

314th District Court, Juvenile

RACES ATTORNEY GENERAL 314th District Court, Juvenile Steve Mans field Court of Criminal Appeal s, Place

Steve Mans field

Court of Criminal Appeal s, Place 2 Sharon Keller c::setty M ars ha ll

~
~

~ jF1ore~~

~~Moral~

Don Wittig

HARRIS COUNTY RACES

180th DiSLrict Court, Criminal Debbie Mantooth

Mary c:n;;id O.r ga

c~~

)

315th Di s trict Court, Juvenile KentEliis

C

Berta A. Mejia:::::;'

HARRIS COUNTY COURTS

AT LAW

C Berta A. Mejia:::::;' HARRIS COUNTY COURTS AT LAW Associa e Justice, 1st Court of ru;,

Associa e Justice,

1st Court of ru;,peals, Place 3

Qiichol M

O'Connor ~

Mamie Proctor

Associate Justice, 14th Court of Appeals, Pl ace 1 Ha rye~ Hud s on c:§b Moore ::;

Associate ~ ustice, 14th Court of Apl'eals, Place 2 Wanda McKee Fowler

C RosJ SearC:::=­

,

Place 2 Wanda McKee Fowler C RosJ SearC:::=­ , Associa e Justice. 14th Court of Appeals

Associa e Justice. 14th Court of Appeals Maurice Amidei

Place 4

c;&e" L. DraugfuC>

Associate Justice. 14th Court of Appeals . Place 5 John S. Anderson

e san Spru(j:)

182nd District COUlt, Criminal

184th District Court, Criminal c:B:Qb Burdetto Jan Kroeker
184th District Court, Criminal
c:B:Qb Burdetto
Jan Kroeker

185th Dis rict Court, Criminal H. Lon Harper CCar l Walk er. D

208th D istrict Court. C lj minal C2n ise Colliii:' andy M 81tin

209th Distriet Court, Criminal

Mi cha el McSpadden c? L!o yd

W. Oliver::J

Court, Criminal Mi cha el McSpadden c? L!o yd W. Oliver::J Criminal Court at Law #2
Court, Criminal Mi cha el McSpadden c? L!o yd W. Oliver::J Criminal Court at Law #2

Criminal Court at Law #2

coundt~::inal 50urt at Law #9

ed G.

AI) LeD

Analia Wilkerson

iminal Court at Law #12 Ro bin Brown
iminal Court at Law #12
Ro bin
Brown

<:::::Ioe T. TerracinaJ

County a= Cti%;a! CQJJ~aw #14

Barkle

Norma Jean Mancha

ADMINISTRA'I'IVE RACES

oJ

Barkle Norma Jean Mancha ADMINISTRA'I'IVE RACES oJ 232nd D' t Criminal Carlos (e.e.) Correa Mary Lou

232nd D'

t Criminal

Carlos (e.e.) Correa Mary Lou Keel

232nd D' t Criminal Carlos (e.e.) Correa Mary Lou Keel 263rd District Court. Criminal CRuben Guerre~

263rd District Court. Criminal

CRuben Guerre~

Jim Wallace

~Cogbur0

Associate Justice,

14th Court of Appeal s. Place 6

co:

Patnce Barron :J Leslie Ann Brock

313th District Court,

C

Juvenile

Ramona JohU

Pat Shelton

COUNTY COMMISSIONER, PCT. 4

District Court, C Juvenile Ramona JohU Pat Shelton COUNTY COMMISSIONER, PCT. 4 SEPTEMBER/OCTOBER 1994 DOCKET CALL

Court Reporting

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77060

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Gerold P. Monks CBA" Owner

FAST RELEASEI

NATIONWIDE 7 DAYS. 24 HOURS

Traffic Tickets. Non Arrest Bonds

Personal Checks or Terms LOW PRICES • RELIABLE "Certified Boil Agent in Houston Since 1936
Personal Checks or Terms
LOW PRICES • RELIABLE
"Certified Boil Agent in Houston Since 1936 Post President
of Profe ssional Boil Agent s of u .S. of Harris Co. & of Texas
BAlLMAN BAIL BOND COMPANY
2016
Main , Suite 108 , Houston , Tex a s • 713
Lie. No . 74108 • in Humble,
759-6000
441 ­ 1033

Civil&Fa

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Referrals Sought

We Will Sign Your Client Up For You! Home & Hospital Visits Available for Personal

We Will Sign Your Client Up For You!

Home & Hospital Visits Available for Personal Injury Cases

• Victims of Violent Crimes

• Auto Accidents

• Railroad Accidents

• Marine and Aviation Accidents

• Industrial Accidents

• Medical Malpractice

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FELIPE • GALLERIA r-­ SW FRW Y AR EA "­ Greater Houston Divorce Clinic of Charles

Greater Houston Divorce Clinic

of Charles Brown, Attorney at Law

"Galveston, Brazoria, Ft. Bend, Montgomery & Harris County

NO PROPERTY - NO CHilDREN

$45.00 Plus Filing Fee

FINANCING AVAILABLE

FLEXIBLE TERMS FOR CHILDREN , PROPERTY, & CONTESTED CASES

"Se Habl a Espano l"

Charlie Brown

Your Family's Lawyer

Union Privilege Attorney

Brown Your Family's Lawyer Union Privilege Attorney FINANCING AVAILABLE AlEEID48IIlITD4 FIlII AlE IlJURY

FINANCING AVAILABLE

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ASK ABOUT OUR DISCOUNT ON Simple Will Package

DISCOUNT

ON HOURLY AND CONTINGENCY FEE LEGAL SERVICES WITH THIS AD,

Firm Founded in 1952 Ask About Our Satisfied Clients

"I only get paid if I get results!"

4-LAWYER (713) 452-9937

(800) 871-0880

OUR 24 HOUR NUMBER IS:

(713) 897-5117

NOT BOARD CERTIFIED BY THE TEXAS BOARD OF LEGAL SPECIALIZATION IN AREAS OFFERED.

Members of Ihe firm are Board Certified in Tax Law, Estate Planning and Probale Law, Oil,Gas,and Mineral Law, andCommercial Real Estate.

Personal Injury cases handled on a contingency lee. We advance costs and are reimbursed at the end 01 the case.

SCANLAN BUILDING

405 MAIN STREET

DOWNTOWN HISTORICAL LANDMARK

SCANLAN BUILDING 405 MAIN STREET DOWNTOWN HISTORICAL LANDMARK • EXISTING SPACE READY FOR OCCUPANCY • TOTALLY

• EXISTING SPACE READY FOR OCCUPANCY • TOTALLY RENOVATED OFFICE BUILDING

• SHORT TERM LEASES (30 DAYS - 5 YEARS)

• ADJACENT TO COUNTY COURT BUILDINGS ·500 SQ. FT. TO 60,000 SQ. FT. • 6,000 SQ. FT. FLOORS

FOR INFORMATION

TO 60,000 SQ. FT. • 6,000 SQ. FT. FLOORS FOR INFORMATION ftALSOlRC: 405 Main Street, Suite

ftALSOlRC:

405 Main Street, Suite 300 Houston, Texas 77002

Roben H. Cranshaw, Jr.

Phone: 713-223-4550

Fax:

713-223-4559

1

 
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