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NOT ALL BONDSMAN CAN PROVIDE OUR LEVEL OF PROFESSIONAL SERVICES

NOT ALL BONDSMAN CAN PROVIDE OUR LEVEL OF PROFESSIONAL SERVICES H 09 FANNIN STREET USTON, TEXAS

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09 FANNIN STREET USTON, TEXAS 77002

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NOT ALL BONDSMAN CAN PROVIDE OUR LEVEL OF PROFESSIONAL SERVICES H 09 FANNIN STREET USTON, TEXAS
NOT ALL BONDSMAN CAN PROVIDE OUR LEVEL OF PROFESSIONAL SERVICES H 09 FANNIN STREET USTON, TEXAS

4:: Upcoming ClE Event Schedule

5 :: A Word from our President

6 :: Winning Warriors

by JoAnne Musick

11 :: HCClA News Roundup

To Kill a Mockingbird Book Donations

by Wendy Miler

12:: HCClA & Big Brothers/Big Sisters

"Amachi Program" Visits Downtown Aquarium & Houston Zoo

by Wendy Miler

13 :: The New Mental Health Court

14 :: Veteran's Court:

Helping Heroes Come Home

by Staci Biggar

by Patrick McCann

16:: Strategy: Full Court Press

 

by Joseph W Varela

19:: OWl Blood Defense:

Part II, Investigating the Draw

 

by Kelly W Case

24:: The Personal Bond:

In Pursuit of the Snow Leopard

 

by Patrick McCann

26

:: HCCLA Fall/Halloween Picnic

29

:: Fallen Warriors:

Esteban "Steve" Pena and Clyde Woody

30 :: Computer Advice:

Computer Ease Made Easy

31 :: Investigative Corner:

by Lester Lavin and Mark Hvizdos

The Role of the Defense Investigator

by Jim Willis

THE DEFENDER

CD

Distribution 1000 copies per issue. For articles and other editorial contributions ­ Contact Kathryn Kase at 713-222-7788 or to place an ad contact Earl Musick at 832-448-1148 or earl@musicklawoffice.com.

CD THE DEFEIIDER

a word froln our Presi~ent JaAnrw mUjick Founded in 1970 and almost 40 years in

a word froln our

a word froln our Presi~ent JaAnrw mUjick Founded in 1970 and almost 40 years in the

Presi~ent

JaAnrw mUjick

Founded in 1970 and almost 40 years in the making, HCCLA is the voice for the local defense bar. With many of the nation's most talented defense lawyers as members, it is no wonder our organization has grown into the giant it is today. Like no other local bar association, HCCLA has undertaken to better the criminal justice system on a daily basis.

HCCLA provides a daily listserv, an online database of transcripts and forms, strike force support, regular CLE opportunities, and a second chair program designed to help younger lawyers gain practical experience both in and out of the courtroom. In addition, HCCLA is your liaison to the judiciary, the DA's office, and the public. The new speaker's bureau provides informational speakers to community groups and local schools on a consistent basis. The Defender provides top quality legal information and articles with a circulation of 1,000 copies.

With everything we offer, it's not

hard to see why HCCLA continues to gain respect and authority within the criminal justice system.

That being said, it is sad to report that we must still fight for the very basics of due process for our clients . We still have prosecutors withholding Brady information, either because they don't realize what Brady means or because they believe that's how they get convictions . We still have judges signing motions ex parte. We still have judges and prosecutors discussing cases ex parte, even when it's as simple as which case is more likely to be called to trial amongst the 10 set that day. Why a judge would believe the prosecutor is to be given an edge on trial preparation is unclear, but make no mistake, it is inappropriate no matter the reason.

We still have courts sanctioning inappropriate and illegal behavior by calling it "harmless" error. Error is error and ought not be tolerated, especially when created by those entrusted to protect the public. Officers and prosecutors take oaths to uphold the law, yet they choose when to follow it and, sadly, when to bend it. Is it really that important that the certificate of service (attached to pleadings filed as public records) actually recite whether or not documents were actually served and when? Some think not. Is it really important for the defendant and his lawyer to be present during discussions with the judge? Some think not. Is it really important where Deputy Pickett went to school and what degree he obtained? Some think not. Is it really important that the officer actually read the DIC-24 to the defendant prior to requesting the breath test? Again, some think not. But where do we draw the line on this slippery slope?

As a friend of mine recently stated, we all know the difference between right and wrong, whether we like it or not. When someone does something wrong, there are consequences. Perhaps a defendant goes free because the officer crossed the line; to do otherwise is to reward the officer for crossing the line.

In our system of jurisprudence, we give prosecutors, judges and police officers large grants of immunity for their professional actions, even when they are wrong. This is a good thing for society because it does not hold these individuals personally liable for mistakes. However, our system does not reward that conduct either. Evidence should be suppressed when it is illegally obtained. The suppression serves as a deterrent to the inappropriate conduct.

With all that HCCLA has accomplished, there is so much more to do, and we can use your help. It is a massive undertaking but HCCLA stands vigilant. Justice is neither free nor easy, but we will continue the fight.

THE DEfENDER

CD

Demonstrating once again that eyewitness identification is more often wrong than it is right, BARRY

Demonstrating once again that eyewitness identification is more often wrong than it is right, BARRY SCHECK and five Cardozo School of Law students won the freedom of Ernest Sonnier fo.llowing nine 0) rounds of post-conviction DNA testing. Sonnier was sentenced to life imprisonment in 1986 after an abduction victim identified him in a photo array. Scheck told the news media that faulty testimony from a Houston Police Department Crime Lab analyst assisted Sonnier's wrongful conviction.

·

And in another case of faulty eyewitness identification, LANA GORDON got two aggravated robbery charges dismissed in the 182nd District Court following a thorough investigation. Two people picked the accused from a photo spread, but Lana found alibi witnesses and discovered that the fmgerprints obtained at the scene by police didn't match her client.

Remember that infamous murder case where JACKIE CARPENTER and ERIC DAVIS raised a Batson claim because the prosecutors struck all the African American jurors? When we last left this tale, Judge Jeannine Barr had dismissed the jury and re-set the trial date. The case finally did go to trial, and Eric and Jackie obtained an acquittal and gave their client - who was incarcerated through all this - his life back. How's that for a happy ending?

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Speaking of happy news, BRIAN WICE has been named the Best Criminal Defense Attorney in Houston by the Houston Press.

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Warning to prosecutors : Don't play Gotcha! with JOE VARELA around to do the appeal. The defendant pleaded to a Class C misdemeanor for disorderly conduct in the belief that no additional charges would be pursued, but the prosecutor filed an aggravated assault charge. A writ was taken, 208th District Court Judge Denise Collins granted relief, and Joe got the relief upheld in the Court of appeals.

CD THE DEFENDER

After six years of prosecution, four indictments, a week-long trial, an acquittal, re-indictment and an application for writ of habeas corpus, GORDON DEES, MIKE HINTON, ALEX MACIAS and JOHN PIZZATOLA prevailed when the Fort Bend County DA finally dismissed the case against their clients, who had been accused of manipulating the HP website and purchasing computers for nothing. Robb Fickman, who won in the early years of the case when his client wasn't re-indicted, praised these lawyers for their tenacious defense.

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He got death off the table for the client charged with capital murder and, then, DAN SCARBOROUGH got the man acquitted at tria1 in Montgomery County.

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In a blow for due process and good old common sense, BILL HABERN, SCOTT PAWGEN and RICHARD GLADDEN convinced a federal court jury in Austin to find, as a matter of law, that the Texas Board of Pardons and Parole acted unconstitutionally in placing parolees who have no sex offense convictions on sex offender supervision. Bill notes that the decision potentially affects between 650 to 1,000 other parolees who were subjected to the same unconstitutional procedures when the BPP placed them on sex offender conditions without benefit of due process.

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Two years of pretrial battling and the defendant's prescient rejection of a 45-year plea offer ended with STEVE JACKSON getting his client acquitted of murder in the 410th District Court in Conroe. KELLY CASE assisted Steve at trial with blood evidence.

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Successfully alleging a violation of due process, BOB WICOFF won a recommendation of a new trial from Judge Jeannine Barr because the HPD crime lab consumed all of the sample during DNA testing in an aggravated-sexual-assault-of-a-child case.

PAULA SILVER and GRANT SCHEINER won that oh-so-rare verdict of not guilty by reason of

PAULA SILVER and GRANT SCHEINER won that

oh-so-rare verdict of not guilty by reason of insanity in an attempting-to-disarm-a-peace-officer case in the 176th District Court.

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More than one jury was happy to give MARK TIDESSEN the verdict he loves to hear. In Montgomery County Court-at-Law No.3 with Judge James H. Keeshan presiding, Mark tried a case to an acquittal. Then, in Harris County Criminal Court-at-Law No.7, Mark got a

There are few cases more likely to be death penalty

DUARTE, ROBERT LOPER and DIANA OLVERA

IS-minute acquittal in a DWI case where the defendant had

prosecutions than when a police officer is killed. Add in

a

.19 BAC.

·

two foreign-national defendants and a death prosecution seems a certainty. But CASEY KIERNAN, RUDY

The State offered the client a shot at the "Divert" program and, when he turned it down, the cops testified they had

got death off the table for Andres Nava-Maldonado and Xiomara Mendez-Rosales after conducting an investigation that showed the facts supported only a felony murder charge.

·

Assistant Federal Defender PHILLIP G. GALLAGHER convinced a panel (King, Davis and Benavides) of the United States Court of Appeals for the Fifth Circuit to reverse his client's conviction of unlawful transportation of undocumented aliens. In so doing, the panel found that a United States Border Patrol agent did not have reasonable , suspicion to stop the client's car and that because the stop

, was illegal, the fruits of the inquiry into the passengers'

,.

I

I

immigration status should be suppressed.

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In Harris County Criminal Court-at-Law No.9, DAN GERSON won a motion to suppress and a directed verdict of not guilty in an unlawful-carrying-of-a-weapon case brought after a concerned wife came to the scene to see what she could see as her husband was being arrested. •

MATT SKILLERN obtained a not guilty in Harris County Criminal Court-at-Law No.1.

·

PAT McCANN persuaded the Texas Court of Criminal Appeals to grant a new punishment trial to death row inmate Carl Wayne Buntion because his original punishment trial lacked a constitutional jury instruction on mitigating evidence.

to jump out of the client's way to keep from getting run

over at an accident scene. GRANT SCHEINER won a not guilty anyway in this DWI case tried in Harris County Criminal-Court-at-Law No.3.

·

How do you say "not guilty" in Mandarin? DAVID RYAN and BRIAN WICE heard the two-word verdict in English after a mere 12 minutes of deliberation in a massage parlor "sting" case tried in Harris County Criminal Court-at-Law No.6. Carmen Roe reports that the highlight of the trial (for her, at least) was when the presiding jurist sent out the jury and asked the interpreter how to say "butt naked" in Mandarin.

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SUNSHINE SWALLERS won an eve-of-trial dismissal on behalf of a client who was charged with evading for fleeing a group of gun-toting thugs at a UH event. The cops never investigated the hooligans, but Sunshine did and discovered that another boy at the scene ended up in the hospital after being attacked by them.

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What can you get done in six minutes? TYLER FLOOD was so persuasive in a DWI 2d case that a Lee County jury took only six minutes to exonerate his client.

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ROLAND MOORE III won a reversal of a murder conviction from the 9th Court of Appeals and prevailed again when the Texas Court of Criminal Appeals denied the State's PDR.

THE DEFENDER

0)

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Winning Warriors

The client admitted to drinking a six-pack and a 16-ounce beer, and the cops found another six-pack and an open 16-ounce beer in the car, but JED SILVERMAN and STEVE GONZALEZ still obtained an acquittal in Brazoria County.

·

JED SILVERMAN argued involuntary intoxication and prevailed again in a OWl trial, this time in County Criminal Court-at-Law No. 4.

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If the skies seem friendlier, it may be because LISA BENGE and PAUL DAMICO saved a Continental pilot's job when they got him acquitted of three counts of aggravated assault with a deadly weapon. The pilot was charged after brandishing his gun when a suspicious car with belligerent occupants showed up in his neighborhood after Hurricane Ike hit. Lisa and Paul won the two-word verdict after showing that the car's occupants had scary criminal histories and the arresting officer had a rocky relationship with the truth.

·

His client had two prior drunk-driving convictions, but DANNY EASTERLING obtained a fabulous two-word verdict in a felony DWI case tried before visiting Judge Brian Rains. A key to this victory? Danny ' s discovery that one of the cops had met the client's former girlfriend and appeared to have arrested him as a favor to her.

·

The client went out for drinks with friends to commemorate the DWI-related fatality of a buddy, and then got busted for OWl himself after weaving and driving 30 mph over the speed limit. He also admitted to having had "a few drinks ." Still, TYLER FLOOD got a not guilty in County Criminal Court-at-Law No. 12.

·

JAMES FALLON and JOHN PARRAS secured a mistrial in the 230th District Court for a client charged with two counts of aggravated sexual assault of a child .

·

.

Haven ' t seen MARK BENNETT in trial lately? Probably because he's getting one case after another dismissed. First, he got an arson case dismissed, then an employee theft charge. We hear through the grapevine that he's bagged several dismissals he bagged in 2009, but when we asked him about that, he modestly declined comment.

CD THE DEFENDER

It looked bleak: the client was on 60 years of parole and picked up his ninth DWI. But SEAN McALISTER was appointed to represent him and, after 75 minutes of deliberation, the jury returned a not guilty verdict. Sean credits his law partners, Christian Capitaine and Steve Shellist, for giving wise counsel, Todd Overstreet for talking him through an HGN strategy, and Troy McKinney for advice on how to limit what the jury heard about the client's eight priors.

·

PAUL LOONEY and JOHN HARLE persuaded an Austin County jury to return a not guilty verdict in an indecency-with-a-child case. Key to the victory were motions in limine motion that crippled the State's case and a voir dire that prepared the jurors to acquit if they agreed that the defense theory was likelier than the prosecution's.

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After four days of trial in a murder case in the 351 st District Court and just after the State rested, BRIAN BENKEN and CRAIG WASHINGTON obtained an acquittal when they moved for an instructed verdict and Judge Mark Kent Ellis granted it.

·

LANA GORDON got a cocaine residue possession case dismissed in the 176th District Court after the client passed Lana's drug test. The client swore he'd only smoked dope, even though the cops had bagged push rods and a crack pipe as part of the arrest. Judge Shawna Reagin granted Lana's motion to administer a store-bought drug test, with Murray Newman serving as witness. The State dismissed upon seeing the negative results for cocaine use. Says Lana, "I'll have a few more of those throw-down urine tests ready from now on."

·

ERIC DAVIS won a very rare reversal in the 14th Court of

Appeals in a criminal

case

out of Jackson County .

·

DAPHNE PATTISON prevailed in a no-test, no-accident felony DWI case over three police officers who claimed that her client was acting intoxicated. Judge Mark Kent Ellis considered the evidence in this bench trial and entered an acquittal.

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It was a week-long murder trial with two eyewitnesses and a confession from the client himself, but JOHN PETRUZZI convinced four jurors that the State's evidence was wanting. The jury was declared to be hung after it sent a note stating that the four could not change their minds without doing violence to their consciences. Amen!

·

Out in Jefferson County, JIM MEDLEY won an acquittal without a defense expert in a DWI case with a client who

blew.12.

RON MORGAN inaugurated his HCCLA membership by obtaining an acquittal for a DWI client in Montgomery County Criminal Court-at-Law NO.3.

·

A persuasive motion to quash by SAM ADAMO caused

County Criminal Court-at-Law No.5 to grant relief and dismiss the telephone harassment charge against his client.

·

VIVIAN KING got an acquittal in a family assault case

in County Criminal Court-at-Law No . 14 with RAMONA

FRANKLIN-WILLIAMS as her co-counsel.

·

TODD DUPONT, with STEPHEN TOUCHSTONE

as his co-pilot, obtained an entrapment instruction and

obtained a hung jury on a state jail felony theft/receivership case. Sunshine Swallers reports that Todd's client was an irrunigrant who would have lost his status had he been convicted.

·

In

the 184th District Court, BUTCH BRADT and ELSIE

MARTIN-SIMON won dismissal of an aggravated sexual assault case. The duo obtained this result after showing that their client - who was being prosecuted for conduct alleged

to have occurred while he was a juvenile - never was

served with the petition and surrunons before he tumed 18 .

·

His client made racially inflammatory statements about the arresting officer, but JORDAN LEWIS calmly secured

a not guilty in a DWI case tried in Fort Bend County Court-at-Law No.4.

·

JOHN FLOYD and CHRISTOPHER CARLSON have mucho mojo. First, they heard "Dismissed!" for

a felon charged with possession of a firearm when

the State agreed that its case had - in Chris' words­ " issues." Some weeks later, this dynamic duo heard "Not Guilty!" from a Montgomery County jury following an indecency-by-contact-with-a-child trial. Then, they got a

DWI dismissed in County Criminal Court-at-Law No.8 after showing that their diabetic client was hyperglycemic

at

the time of the stop.

·

A

big cheese ADA tried a DWI case to show the lowly

assistants "how it's done" - and we doubt that he meant "eat an acquittal" but that's what happened when RICK OLIVER defended in County Criminal Court-at-Law No. 13.

·

MARK TIllESSEN won a DWI in County Criminal Court-at-Law No.2 despite facts that included the client causing a one-car accident and then trying to bite the police video camera.

First, a female firefighter accused the Houston Fire Department of permitting sexual harassment, and offered up evidence of some pretty gnarly scrawled comments. Then, District Judge Susan Brown entered an order compelling the female firefighter to be taken into custody to give handwriting samples. RANDALL KALLINEN applied for mandamus in the 14th Court of Appeals and Judge Brown withdrew the order.

JEREMY DISHONGH and DEANDRE GIBBS won an acquittal for a client accused ofDWI in Montgomery County Criminal Court-at-Law No.3.

And speaking of drunk driving, DOUG MURPHY has been elected to the 12-person Board of Regents for the National College for DUI Defense. Houston now has two people on the august panel, the other being our very own Troy McKinney.

Defense. Houston now has two people on the august panel, the other being our very own
Defense. Houston now has two people on the august panel, the other being our very own

THE DEFENDER

0

Defense. Houston now has two people on the august panel, the other being our very own

.A~_

It took a jury in Galveston County Criminal Court-at-Law No.3 only 10 minutes to acquit

It took a jury in Galveston County Criminal Court-at-Law No.3 only 10 minutes to acquit TAD NELSON's client in an assault/family violence case.

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In a case involving notorious Fort Bend County Sheriff's Deputy Keith Pikett and his scent-lineup dogs, WILVIN CARTER and JAPAULA KEMP got four burglary-of-a-babitation charges dismissed and a fifth charge reduced to theft when they insisted on going to trial.

·

The immigrant client was charged with aggravated assault against peace officers and spent 18 months in the county lockup, but ANNIE BASU got the charge dismissed, the record expunged and the client's immigration status re-established . But she still wasn't done until she sued the peace officers for violating her clients' rights and won a $60,000 settlement.

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CHERYL IRVIN got a case dismissed in the 337th District Court when she, too, insisted on going to trial and all the State had was scent-lineup "evidence" from Fort Bend County Sheriff's Deputy Keith Pikett.

·

It was beginning to seem like the Case That Wouldn't Die, but KELLY CASE prevailed anyway. First, he got the case dismissed on speedy trial grounds, but the prosecution re-filed the charges. So, Kelly sought a writ of habeas corpus on double jeopardy grounds and the prosecution finally saw the light and dismissed.

@ THE DEFENDER

Making it known that she had discovered a credibility problem on the part of the police, CYNTHIA HENLEY got a cocaine possession (15.98 grams) case dismissed right before the suppression hearing in the 228th District Court.

·

Just try keeping secrets from PAUL KUBOSH,

RANDALL KALLINEN, and open records lawyer JOE LARSEN. The City of Houston foolishly refused

to disclose documents regarding safety at intersections

controlled by red-light cameras, and this trio persuaded 295th District Court Judge Tracy Christopher to order disclosure of those records.

·

The jury had been sworn in County Criminal Court-at-Law No.8, but EARL MUSICK and JOANNE MUSICK battled hard behind the scenes to win a dismissal of a family violence case.

·

A

fierce three-day battle by DAVID RYAN in a family

violence case ended in an acquittal for his client in County Criminal Court-at-Law No. 14.

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BRIAN WICE and CARMEN ROE persuaded the Texas Court of Criminal Appeals to grant a new punishment trial for Susan Wright, who was convicted of killing her husband by stabbing him 193 times, after showing that she was not effectively defended when she originally was sentenced to 25 years in prison.

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As the ad says, it pays to discover. JED SILVERMAN won dismissal of a felony possession case (Ecstasy) in 208th District Court after his investigation discovered that the arresting officer had no probable cause for the stop and that the officer's "inference" that his police car didn't have a video camera was untrue.

·

There were three kilos in the back seat and the cops had the car on surveillance during the delivery, but ROSA ELIADES won reversal of the conviction in the 1st Court

of Appeals.

·

There are many ways to be an advocate and one of them

is to pursue a sentence that

was with CARMEN ROE who represented a federal

client charged with possessing with intent to distribute

61 kilograms - or 250,000 tablets - ofMDMA.

level was 38 (235 to 293 months for those with little to no

a client can live with . So it

The base

criminal history), but Carmen worked diligently and the judge sentenced her client to time served, three years of supervised release and no fine. And did we mention that Carmen's client had only one day of jail credit?

HCCLA Shares To Kill a Mockingbird with Local Schools by Wendy Miller HCCLA donated 155

HCCLA Shares To Kill a Mockingbird with Local Schools

by Wendy Miller

HCCLA donated 155 copies of To Kill a Mockingbird in May 2009 to local high
HCCLA donated 155 copies of To Kill a Mockingbird in May 2009 to local
high school students in recognition of the Harris County Public library's Big
Read summer reading program. Each volume bears a book plate stating that
it was donated by the Association.
Students at Yes PREP-North Central, Milby High School, and the
High School for Law Enforcement & Criminal Justice received the
Association-donated copies. Each school's library also received a single
copy of the book for its permanent collection.
The Big Read is a one-community/
one-book reading event that encourages
people to read and discuss important
issues raised in a single book. The Harris
County Public Library, with the support
of the National Education Agency,
chose to highlight Harper Lee's To Kill a
Mockingbird.
proudly Donatedby.
.
County Criminal
Twenty-five copies of the books at the
High School for Law Enforcement &
Criminal Justice are reserved specifically
for underclassman. Several HCCLA
member volunteers were scheduled to
return in December 2009 to discuss the
book and get to know the students over a
lunch also provided by the Association.
The teens are very excited about spending
time with local criminal defense attorneys
and expressing what they have gained
from reading the book.
H
ams
Lawyers AsSocIatIon
2009

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by Wendy Miller

HCCLA is a huge fan of the Amachi Texas Mentor program for the Big Brothers Big Sisters of Greater Houston. The Association has actively supported events and fundraisers for the children in the program, both financially and with volunteer manpower, since the Arnachi program kicked offin 2007.

The Amachi program provides one-on-one mentoring for children with one or more incarcerated parents. The program's mission is to break the generation-after-generation cycle of crime and incarceration and help these children reach their maximum potential through safe and positive mentoring relationships. Children ofincarcerated parents are five times more likely to conunit crimes, and without positive adult intervention, will more than likely follow their parents into prison.

Due to the limited number of adult volunteers in BBBS, not every child registered in the Amachi program in Houston has been assigned a big brother or sister. There are, on average, 70 children left unassigned every year due to the low number of volunteers. HCCLA-sponsored "Big for a Day" events help address this problem by inviting Amachi children not assigned to long-term mentors to attend the events - with adult professionals (attomeys,judges, law students, etc) serving as the volunteer mentors at the event.

The time commitment typically needed to be a BBBS mentor makes many lawyers shy away from volunteering. But "Big for a Day" events alJow that exact opportunity: to serve as BBBS mentors. Other than the time needed to watch a movie or playa round of putt-putt golf­ there is no other conunitment required. These events are a wonderful opportunity to make a difference in the lives of at-risk youth.

HCCLA mentor Cyntbia Henley, playing carnival games with her mentees at the Downtown Aquarium
HCCLA mentor
Cyntbia Henley, playing carnival
games with her mentees at the
Downtown Aquarium
""~.i!~ men tee
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men tee

A mentee enjoys tbe petting zoo at the Amachl program event

HCCLA mentor Tom Zakes, enjoying lunch at the zoo

with bis

Events are always free for Amachi children. In conjunction with the Houston Young Lawyers Foundation, HCCLA co-sponsored two events in the spring of2009 for Amachi children. Twenty-five Amachi children and mentors, including HCCLA volunteers, were treated to a day at the Houston Downtown Aquarium in April. This event included for each child: lunch, bottled water and snacks as needed, the Aquarium Adventure exhibit tour, outside carnival-style games, and an aU-day access bracelet for unIirrrited rides on the ferris wheel, Shark Voyage train ride, Aquatic Carousel, and Lighthouse Dive.

Nearly 30 children enjoyed a day at the Houston Zoo with mentors in May. The zoo event included for each child: lunch, bottled water and snacks as needed, animal exhibits, a special animal-keeper chat with a zoo representative, as weU as carousel ride tickets and a take-home zoo souvenir. HCCLA generously contributed volunteer mentors and $480 to help support costs for the wo event, which was entirely raised at our October 2008 poker tournament.

Please consider volunteering at an upcoming BBBS Amachi event with HCCLA in Spring 20 I O. Simply send an "Interested BBBS

Mentor" post to our HCCLA listserv and HCCLA Public Relations will contact you with event details. The children and the volunteers

find the events to be easy to

do - and hard to forget!

® THE DEFENDER

by staci Biggar At the beginning of 2009, Harris County criminal district judges decided that

by staci Biggar

At the beginning of 2009, Harris County criminal district judges decided that a full-time mental health court was needed given the quantity of defendants afflicted by mental health issues in this county. The judges designated the 184th District Court and Judge Jan Krocker to serve in the capacity of presiding judge of the mental health court.

Approximately 25 percent of the inmates in the Harris County Jail have, or are suffering from, a mental illness - a fact that means the jail is the largest mental health facil ity in the state of Texas. The

criminal justice system has historically ignored mental illness and, consequently, criminal defendants with such illnesses traditionally failed to get the tre atment needed to keep them from ret1lming to the

system . By recognizing the need for

the county is recognizing the need to repair a broken system .

a full-time mental health court,

Essentially, the mental health court is intended as a therapeutic court in which defendants with mental health ailments will participate in

a judicially supervised treatment

professionals. Prosecutors, defense attorneys, probation officers, and

mental health professionals, along with substance-abuse treatment providers and social workers, will work in a non-adversarial environment to enable defendants to obtain treatment.

plan developed by mental health

Eligibility would be determined at intake. Only 46 non-violent felony offenses would qualify a mentally ill defendant to be sent directly to the mental health court. A qualifying defendant would have to have an Axis I or Axis 1I diagnosis or a cognitive or anxiety disorder to qualify. (Among the qualifying diagnoses are schizophrenia, bi-polar disorders, and major depression.) Additionally, defense counsel, the prosecution, and the judge would have to agree that a particular defendant qualified for the court

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Once admitted to the mental health court, the defendant would be evaluated by a psychiatrist and interviewed by a social worker. Following a needs assessment, a treatment plan would be recommended. Still being worked out are the details of how cases would be resolved upon successful completion of the treatment plan.

One indication that a full-time mental health court can be successful is found in the mental health docket that District Judges Mark Kent Ellis and Marc Carter have handled for four years. Although the number of cases handled in their courts have been limited due to budget restraints, Judges Ellis and Carter have shown that individualized attention can result in success for the mentally ill defendant.

The planning team for the full-time mental health court includes Judge

Krocker, members of the Harris County District Attorney 's Office, myself, HCCLA President Joann Musick, past-presidents Robb Fickman and Mark Bennett, and defense lawyers Hilary Unger, Nicole DeBorde and George Parnham. Others who are providing input include: the Harris County Probation Department, psychiatrists from MHMRA and private practice, social workers, the Harris County Sheriffs Department, HPD Crisis Intervention Team, Pre-Trial Services, treatment providers, local ministers, LULAC, NAACP, various political staff members from several state and local politicians, faculty members and physicians from

both University of Texas Health Science Center and

Medicine, the Harris County District Clerk's Office, representatives from HCPC and the Rusk State Hospital, and the Coalition for the Homeless . All participants have been vital to the effort to make a full-time mental health court a reality in Harris County.

Baylor College of

Pending appro val of the necessary funding , the full-time mental health court is scheduled to open in the Spring 2010.

THE DEFENDER

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The Texas Legislature last session approved legislation np,-rn,tt,r,o counties to create pre-trial diversion courts for 'n". Harris County hopes to become a pioneer with its plan J.)perate a veterans court under the supervision of228th Court Judge Marc Carter.

courts will allow veterans and current armed forces

members to obtain pre-trial diversion of their criminal cases when they can demonstrate that a service-connected disability was a factor in the charged conduct. Participants who complete an agreed-upon treatment program will have their cases dismissed and their records may be expunged. Because the prosecution must consent to the diversion, there is a check on which cases would be deemed eligible for the veterans court.

The idea for a veterans court originated with state Sen. Rodney Ellis (D-Houston) and was supported by a diverse coalition that included its House sponsor, state Rep. Allen Vaught (R-Dallas). HCCLA, the Houston Bar Association, the Harris County District Attorney' s Office, and a coalition of veterans groups from across the state also supported the legislation. Association past president Jack Zimmerman, who retired from the U.S. Marine Corps with the rank of Colonel, testified on behalf of the bill, as did his daughter, Marine Lt. Col. Terri Zimmerman. With them was Judge Carter, himself a former Army Captain and the son of a retired Lieutenant Colonel in the Army.

In his testimony, Judge Carter spoke eloquently about a Marine who had won two bronze

In his testimony, Judge Carter spoke eloquently about a Marine who had won two bronze stars, but who appeared before him as a defendant as a result of the invisible wounds inflicted by war. (These can include post-traumatic stress disorder, traumatic brain injury, depression, and frequently, substance abuse.) Through the extraordinary efforts of the court, the defense, and the prosecution, the Marine was granted a felony pretrial diversion. The Marine was due to have completed his diversion contract in December and regained a clean record.

It was that example - and the unusual collaboration between many stakeholders in the criminal justice system - that assisted in passage of the veterans court bill. It is that same spirit of cooperation that has helped in planning the pilot program here.

As of this writing, the veterans court has been approved by the district court judges and the new Criminal Justice Coordination Council and was slated to be considered by the Harris County Commissioner's Court. The program will start small. In its first six months, the court will be limited to not more than 20 or so carefully screened eligible veterans or serving armed forces members.

Participants will be referred to the veterans court in a variety of ways: screening at the jails, individual referrals from judges or defense attorneys, and any other way that makes sense, provided that the candidates meet the criteria. The veterans must be honorably discharged or currently on active or reserve duty. They must not have committed any sexual offenses or any of the "3G" offenses (though aggravated assaults may be considered on a case-by-case basis).

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Individuals will be referred to the Veterans Administration for services. These services will run the gamut from assistance for the homeless, to group therapy or medical treatment once eligibility is detennined. Participants will enter into a voluntary contract with the consent of the prosecuting attorney to have their cases moved to the veterans court docket in the 228th District Court.

State grants will be utilized to fund the case manager, clerks and other staff required to operate the court, as well as the contract attorneys who would represent the veterans. These attorneys ideally will be individuals with military experience. For the fIrst six months only a few attorneys will be needed to handle the case load, but as anyone who has ever dealt with a veterans case knows, the cases can absorb a great deal of time. The hope is that more attorneys will commit to assisting at a later time once the program is under way.

With any luck and the cooperation of various agencies - mental health organizations, the Veterans Administration, Commissioner's Court, the district courts, the Harris County District Attorney's Office and the bar - the project will be up and running by January 1,

2010. What better way to greet the New Year than by being a

witness to this county's extraordinary efforts to do the right thing for

those from whom we have asked so much?

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www.SlateforJudge.com
Texas Criminal Defense
Lawyers Association
Dennis Slate for Judge Campaign
112 E. Forrest
Deer Park, TX 77536
Harris County
Criminal Lawyers Association
Houston Bar Association
713-409-3293
Past President
Pasadena Bar Association
denni s@slateforjudge .com
Po lillcal OId.,.rti~n8 pa id by
()e(! n ls Sial!! for Judi e C3mp aiBn.
Jacque line Houlette Tr easurer
Associate Judge serving
Houston and Pearland
In compli ance wi(h the vo1untaf\llimits of the Judicial C8mpalBn FairM'is ~ct.
'

-- ­

-- ­ "If the enenlY is taking his ease, harass him; if quietly encamped, force him

"If the enenlY is taking his ease, harass him; if quietly encamped, force him to

move

places where you are not expected." -Sun Tzu l

march swiftly to

"

defense the defender can fight a tactically offensive

battle by seeking out and attacking the enemy as soon as he invades his theater of operations." -Carl von Clausewitz 2

in the course of his

® THE DEFENDER

o

+

von Clausewitz 2 in the course of his ® THE DEFENDER o + o Strategy: ~

o

Strategy:

2 in the course of his ® THE DEFENDER o + o Strategy: ~ by Joseph

~ by Joseph W. Varela

Vivek Ranadive had a problem. He had agreed to coach his daughter's National Junior Basketball team, essentially the Little League of basketball. But at first glance, it appeared that he had little to work with.

Ranadive was an immigrant from Mumbai. He was a graduate of MIT who owned a software company. He had no experience with basketball. His team, made up mostly of twelve-year-old suburban girls, had two serious players, but the rest had never played the game. None of them had any particular physical talents. He was competing against well-coached teams of girls who played pickup games every afternoon. The opposition was clearly superior. It

seemed to be

a recipe for humiliation and defeat. )

Many times, an "outsider," working without preconceived notions or ingrained habits, can discover unorthodox solutions to a problem

the existence of which insiders have failed to notice. Ranadive took a hard look at basketball itself. He was perplexed at how after a team scored, the players would immediately retreat to their end of the court and await the opponent, who was allowed to advance the

ball unopposed until the last 20 feet or SO .4 In fact,

possession was permitted to bring the ball inbounds unmolested, and was further pennitted to arrange its players under the goal and bring the ball near. Only in the last few seconds, when the offense executed its prearranged scoring maneuver, did the defenders respond. And this situation obtained at the highest levels of collegiate and professional play. Each basket is ordinarily worth two points . NBA teams score in triple digits regularly.s It was all offense, no defense, by tacit agreement. Looking at it quantitatively, on a basketball court, for most of the time, in most of the space, the game was not contested. 6

the team in

Ranadive thought that this style of play rewarded the stronger teams, namely those who had the talent and experience to better execute prepared plays under the goal. More accurately, he thought that such a style tended to widen the gap between the stronger and weaker teams. The problem was how to narrow, and if possible, overcome that gap. Even ifhis players had the physical talents to execute the technical skills they would need to match the competition, Ranadive had no time to teach those skills. What he needed was a stratagem.

Ranadive's solution was what is known as the "full-court press." This stratagem, reduced to its essence, is to contest each and every move the offensive team makes, from the moment it brings the ball into play. It is but rarely used in traditional basketball, and then only briefly. What if, Ranadive wondered, his team could use the full-court press every minute and on every inch of the court?

And so he spent what little practice time was available teaching his girls how to press, how to steal the bal1, how to block passes, how to make only short shots. He spent most of the practice sessions making the girls run, thereby building the endurance conditioning necessary for such sustained action. He taught his team to contest every foot of the court, to stick to the other team like glue, to be everywhere at once , to concede nothing. It was a style of play that allowed effort and energy to substitute for skill.

They crushed the opposition. Regardless of the superior experience and talents of the opponents, Ranadive's team instantly dominated the games, jumped out to early leads and

held them. They upset the practiced plays of their opponents, spoiled their timing, forced turnovers. They rattled the opposing players, made them angry, made them panic, ran

them out of breath. 7 In

players showed up, they lost by only three points. They moved through the regional championships and into the nationals, where they were final1y eliminated; but they had played at a level far beyond that which their meager resources should have predicted.

one game when only four of their

There are lessons for the defense lawyer.

When a criminal case commences, how is the defense lawyer to react? Too many defenses resemble the traditional style of basketball play. They concede the prosecution's opening moves, fall back, and await the prosecutor's next move. The case is reset over a period of weeks and months, and little work is accomplished . Meanwhile the prosecutor is getting ready for trial.

What would a "full-court press" look like? Like Ranadive's girls, the defense lawyer must put forth great effort immediately. Witnesses must be located and their statements taken. Where applicable, visit the scene and get pictures,

before the scene changes. Crucial pretrial motions must be filed and, where applicable, hearings held. Discovery should be sought immediately; most Harris County state courts have standardized discovery orders which the judge will enter even before motions are filed; while these are by no means complete discovery, they are a start. The criminal records of all witnesses must be found. Legal research on critical issues must be accomplished.

A steady stream of this kind of work is a full-court press. If nothing else, the defense lawyer should be outworking the prosecutor from the outset, and must be seen doing so. As with Ranadive's basketball team, effort on the part of the defense can compensate for the government's superior resources. A prosecutor aware of such a vigorous defense might think twice before tangling with it.

'THE ART OF WAR, chap.VI (James Clavell, trans. 1983).

20N WAR, Book VI, chap. 9 (trans. Michael Howard & Peter Paret 1976).

JThe story is told in Malcolm Gladwell, How David Beats Goli­ ath , THE NEW YORKER, May 11, 2009. This author wishes to thank Mr. David Adler for bringing it to his attention.

4I've wondered about this myself. What iffootball teams, after turning the ball over to the opposition, fell back to their own 20­ yard line and awaited events?

5Th ink about

Imagine if a typical Major League Baseball score was 53-48.

baseball, a game in which the defense dominates .

6In a very different sport, imagine a Tour de France in which the cyclists agree not to compete until the last 10 miles of each stage . Of course it does not work this way ; attacks can and do happen at any time.

7As this essay went to press, the University of Houston Cougars were applying this stratagem to football! See Steve Campbell,

Coogs enjoy cramping opponents' style: UH'sfast-paced attack often leaves defenses winded, HOUSTON CHRONICLE, October

21 , 2009, at

Icollege/houstonl6679741.html (last visited Oct. 28, 2009).

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Part n, Investigating the Draw by Kelly w. Case Most defense attorneys think that a
Part n, Investigating the Draw by Kelly w. Case Most defense attorneys think that a
Part n, Investigating the Draw by Kelly w. Case Most defense attorneys think that a

Part n, Investigating the Draw

by Kelly w. Case

Most defense attorneys think that a DWI prosecution based on drawn blood provides no avenue for a defense and that the drawn blood is an evidentiary "lock." I have fmUld this to be far from true when time and effort is taken to develop these cases properly.

Soon after being hired on a blood-draw DWI you must set up an interview with the person responsible for taking your client's blood. The interview with the vampire (with apologies to Anne Rice) should take place soon after your client hires you. You want to interview the vampire as soon after the blood draw, as possible. Memories fade very qillckly, especially for a nurse who is drawing blood 5 to 10 times a day. So don't delay.

If the nurse will not return your phone calls or will not agree to talk to you while on video, request a deposition. A witness' refusal to iliscuss what they know with you is grounds for a deposition requesU

Bring a video camera and explain to them that you want to focus on talking to them and not have to take notes. This will be much quicker for them, too, since you will not have to write everything down, word for word.

You are trying to detennine:

1) What procedures do they normally follow when drawing blood. Do they really know the correct procedures? 2) What specific procedures ilid the nurse use when drawing your client's blood?

Trying to talk to merucal personnel can be ilifficult.lfthe draw was conducted by a hospital, they will want their legal counsel to get involved. Their legal counsel will want you to arrange all interviews through them. Don't agree to that and don't do it. The nurse is a witness in a criminal matter. They cannot keep the nurse from talking to you, provided you have a valid HIPAA release signed by your client. For them to advise the nurse to not talk to you would violate the rules of professional ethics.' Criminal and civil rules are ilifferent with regard to obtaining witness depositions and there is a long line of criminal cases that give you the right to talk to any witness, without interference.

The purpose of this interview is similar to an ALR hearing. You want to record the witness for later use, if necessary, to either refresh their memory or rebut any testimony that may have changed by the time of trial. Develop your questions before you meet with the witness. I use a checklist of the procedures found in Phlebotomy Essentials) to make sure I can quickly and efficiently utilize the time allotted with the witness.

Essentials) to make sure I can quickly and efficiently utilize the time allotted with the witness.
Essentials) to make sure I can quickly and efficiently utilize the time allotted with the witness.

IREI&ElDER ®

Part ll, Investigating the Draw Before beginning your blood lab quest, you must have copies
Part ll, Investigating the Draw Before beginning your blood lab quest, you must have copies

Part ll, Investigating the Draw

Before beginning your blood lab quest, you must have copies of

necessary infonnation, either through subpoena or discovery motion, in order for your time at the lab to be productive for you and your client. If you are going to be dealing with the DPS Crime Lab (located at 12230 West Road, Houston, Texas 77065-4523), use a subpoena The items you should request can

be found in Troy McKinney's blood discovery motion. 4 Send the

lab a copy of the signed court order in which you should have

included language authorizing you to review the evidence the evidence at the lab.

Take the time to learn what you are asking for in your discovery or subpoena. You will receive a CD from the lab with approximate 1,500 to 2,000 pages of material. Once you have fully reviewed the lab documents and know what questions you will have about any issues or discrepancies, call the lab to schedule an appointment to review the kit.

A major part of your trial preparation is inspecting the kit and

contents at the lab. The kits look similar to this:

kit and contents at the lab. The kits look similar to this: ® THE DEFENDER There

® THE DEFENDER

at the lab. The kits look similar to this: ® THE DEFENDER There are three dates

There are three dates you must determine: the kit expiration date, the individual blood vial expiration date, and the swab expiration date. Swab packaging often is discarded at the time of the blood draw so you must swiftly secure this evidence and preserve it for inspection through a motion to preserve. 5

Can you spot the differences?

Take a look at these items from a testing kit. Call you spot the differences?

items from a testing kit. Call you spot the differences? "!O"OE" NO ., BUK200 EXP. DATE

"!O"OE" NO ., BUK200

EXP. DATE :

MA

LOT NO., lOl7
LOT NO.,
lOl7

. aI , 200t

NO ., BUK200 EXP. DATE : MA LOT NO., lOl7 . aI , 200t The kit

The kit expiration date is stated as uMarch 31, 2009," the blood vial expiration is "2()()9.{)3" and the swab expires on "02/2010."

Check the expiration dates against the date that the blood was drawn, as well as the date the blood was tested. If the blood was drawn after the expiration ofthe kits, the manufacturer's warranty will not guarantee a viable test. Likewise, ifthe blood was drawn, but not tested witlUn one year of the draw, the test should not be admissible. The tubes are only warrantied for one year after the date of the blood draw since their integrity is compromised during the draw itself and because the preservative and anticoagulant cannot stop contamination, but only slow down the process. After a year, any testing will not be accurate, according to Sirchie Labs.

Send a letter tto all law enforcement in your county requesting that all of the original instructions and packaging be kept and maintained as part of the body of evidence in your case. Specifically, ask for all of the original contents of the kit to be preserved including but not limited to "swab cover and all instructions of use." The Texas kits are different and contain different instructions than the manufacturer insists upon. Similar to the Intoxilyzer 5000, Texas has substituted its own instructions in these kits.

The Texas kits require "several" inversions of the vial after the draw is complete. The manufacturer states that the tube must be inverted precisely eight times. An inversion is equal to turning the tube upside down and returning it to the original upright position. lbis must be done precisely five times, no more, no less, in order for the preservative and anticoagulant to be mixed sufficiently, but not cause hemolysis, according to BD Vacutainer instructions. 6

Attach the letter and green card receipt to your motion for spoliation! suppression when it is inevitably determined that the swab packaging and instructions have been discarded and you will have a viable argument based on Massie v. State? that you have been denied the right to independently verify the expiration date on the swab.

Set up your appointment for evidence review by sending the lab a copy ofyour order authorizing you to review the kit. The DPS Crime Lab in Houston will accept faxed copies. Call the lab for a date and time for your review. Be on time and bring a legal pad, camera and your lab file, which should at a minimum contain the lab report for your case. This report will contain the lab number and assist in locating the kit

When you get to the lab, you will check in at the main desk and be given a visitor pass to go to the lab. You will go to the lab entry area and wait for the lab personnel to remotely unlock the door. Introduce yourself to the lab personnel and be ready with your questions and your file so they can pull the test kit. Most of the time, they will have the kit ready for you, but bring your file in case they need their lab number to pull the kit.

Ask for and use the rubber gloves the lab will provide, or bring your own. You will be handling human specimens, which require you to adhere to the universal precautions for bloodbome pathogens. Be aware that this can be dangerous material and treat it accordingly.

When you first see the kit, look for dates and writing on the outside before opening. Look for the "kit" expiration date on the outside of the kit and note it in your records before you start cutting through the tape. Photograph the date, if possible.

Look also at the labels used to mail the kit. Postal regulations 8 require that human specimens must have this label affixed to the outside of the package before they can be mailed:

to the outside of the package before they can be mailed: If your kit does not

If your kit does not have this sticker on the outside, get a photo of the kit without the sticker. By violating postal regulations, the arresting officer has given you grounds for suppression. File your motion to suppress based on the evidence (specifically, the lab results) being obtained in violation of 18 U.S.c. §1716(jXl).

THE DEFENDER

®

DWI Blood Defense: Part n, Investigating the Draw

For those in jurisdictions where law enforcement physically delivers the kits to the lab, you should check the date the blood was drawn against the date the lab received the kit. It is not unusual for kits to be kept in the tnmk of the officer's "unit" for several months before being used to collect blood. Nor is it unusual for the kits used for blood draws to remain in an officer 's trunk for over a month before being delivered to the lab. Ask about the location of the kit both before and after the test in your ALR hearing so you know what sort of condition the kit was in at the time. Don't be deterred when the officer tells you that no contamination could possibly have occurred even though the blood spent a month in a car tnmk during one of Houston's summer months

In fact, unless drawn blood is refrigerated inunediately, the accuracy of any testing is suspect. When questioning your lab analyst about their rules for refrigeration and the time frame they must follow upon receiving the kit, ask whether a kit that can remain unrefrigerated for as long as your kit, is still considered accurate.This can counter the Trooper's fallacious assertions that blood does not have to be refrigerated and can provide you enough of a defense that your ADA will decide to not prosecute.

You will find forms and labels such as these within the blood testing kits. Each fann should be filled out completely so there are no questions to be asked.

(PLACE OVER

BOT7l.E CAPISLOOD TUBE STOPPER)

(PLACE OVER

BOTn.e CAPISLOOD TuSE STOPPER)

(PLACE OVER

BOTTlE CAPI8LOOD TUSE STOPPER]

® THE DEFENDER

.:

~--

If the State really wants to take one of these "disappearing" kits to trial make sure that you obtain the documentation necessary to attack the chain of custody. There is much fertile ground here because records are not kept very well about the location where blood is stored . I am not aware of any police agency - even DPS substations - that have the capacity to refrigerate blood. But you will need to know specifically where the blood was stored, for how long, whether it was mixed with other vials, and whether the kit packaging and labeling were thrown out to save space. The ALR hearing should be the place to learn this, not trial.

Next, you will open the box kit and look at the written contents. These are the forms and labels that came with the kit and should be completely filled out so there is no question about whose blood was drawn, who drew the blood and who took possession of the blood vial after the draw. These are also a part of the chain of custody and should be properly maintained. The arresting officer is supposed to fully complete all of the written contents and labels to correctly identifY the blood vials as belonging to your client. I have never seen the written forms fully completed, so you should note this fact. It may assist you in developing the "sloppy police work" argument to a jury. Again, photograph the written materials or anything that you believe to be suspicious or missing.

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TIME

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Verify that all fonns have been completed and photograph them or note the name of the form and all of the information contained thereon. Check this information against the chain-of-custody docwnents to detennine if dates have been listed incorrectly or there are any defensible issues such as missing chain of custody witnesses. While chain-of-custody issues often go to weight and not admissibility, you may be able to raise doubt with jurors and sufficiently frighten the prosecutor so as to improve the offer for your client.

The blood vial itself should be wrapped in the white cotton lining inside a plastic baggie within the kit. Carefully open by unwrapping the lining and make note of any blood contamination that may have leaked out on to the white cotton lining. Dried blood can sometimes resemble bits of dried, brown grass clippings, so pay attention and note any discolorations on the cotton lining. If you do note anything that appears to be blood, or anything else, ask the lab personnel if they will test the cotton \-vrap with a presumptive test for hwnan blood. Sometimes they will do this and sometimes they won't; it depends on who helps you.

I bring my cell phone and photograph the contents and any contamination for later review. The lab personnel do not mind, so be thorough and precise when reviewing this evidence. I also dictate everything I witness as I am opening the kit because it is difficult to take notes with rubber gloves on.

After you remove the cotton lining, the blood vial- with two types of tape covering it - will remain.

The DPS Crime Lab uses evidence tape to cover the blood tubes, after they have tested the contents. They cover the tube top and sides with this tape. This is in addition to the manufacn.rrer's tape, which is placed over the blood vial after the draw. It should be labeled with the subject's identifying information such as name and date of birth, at a minimum. This evidence tape is very strong and will adhere and tear the underlying manufacturer's identification tape and the labeling and expiration dates on your tube, so you must be extremely careful when peeling it back during your inspection. Ask for Mr. Gibson's help so that he can be the one to destroy the label, not you. If possible, read through the tape, to detennine the expiration date on the blood vial.

You are seeking client's identification on the tape covering the blood tube, as well as the tube's expiration date. Both may be covered by an additional layer of evidence tape.

Note all of the additional contents of the kit. If you are lucky, the kit instructions will be included. Ask for a copy of these instruc­ tions and compare them to the manufacturer's instructions for the kit and blood vials.

Close the kit and return it to the lab personnel. They will tape it shut. Clean your work area for the next person. The last thing we want to do is make the lab personnel clean up after us and thereby cause a problem for the next person with a blood case.

ITex. Disc. R ofProf. Conduct, Rule 3.04(e).

2Tex. Code ofCrim Proc. art. 39.02.

3Ruth E. McCall and Cathee M. Tankersley, Phlebotomy Essentials, 4th Ed. (Wolters KJuwer Publishing 2(08) (ISBN 978-0-7817­

6138-3).

4 Contact me at kwcase@caselawpUc.com for a copy of the motion that Mr. McKinney drafted and has so graciously made available.

5 See Kelly W. Case, DWl Blood Defense: Part I, Initial Client Contact and Discovery, The Defender, at 12 (Fall 2(09) (discussing motions to preserve evidence).

6 For the inversion instructions, refer to Becton, Dickinson and Company's guide on its website at

4%200rder%200fOIo20Draw%20Jun%2004.pdf(last visited Oct. 28,

2009).

72008

Tex. App. LEXIS 2442 (Tex. App .- Houston [lstDist.] Apr. 3,

2008) (not designated for publication).

818 U.S.c. §1716U)(1), which states: "Whoever knowingly deposits

for mailing or delivery

lations authorized to be prescribed by the Postal Service, shall be fined.

unless in accordance with the rules and regu­

or

imprisoned." Violation of this law is a federal misdemeanor.

Kelly W. Case is an experienced criminal dtfense lawyer who practices in Galveston, Harris and Montgomery counties. This is the second oja series ojarticles on D WI prosecutions based on blood draws.

THE DEFENDER

@

In Pursuit of the Snow Leopard by Patrick F. McCann
In Pursuit of the Snow Leopard
by Patrick F. McCann

The greybeard leaned his long, wizened frame against the rock around the campfire. The young faces turned towards him eagerly, seeking the wisdom for which he was famous. They had come to hear of a legend, a legend they could only dream about as none of them had actually seen this mythical creature. The greybeard cleared his throat, and his deep gravelly voice boomed out over the flickers of flame. "Let me tell you, children, about the "

personal recognizance bond

The personal recognizance bond is, to put it frankly, dead in the district courts here, against all law, reason, and constitutional history. It is in better shape in the county courts, although "better" in a cancer ward is a relative term. There one can still occasionally find it, though in far less numbers than they should be issued. In this article, the writer hopes to illustrate just how bad the situation has gotten, based upon public information released by the Harris County District Clerk's office. This article will also put forward a proposal to help improve tills situation, which the author believes has directly contributed to the enormous over-crowding in our Harris County Detention Center.

A personal recognizance bond is exactly what it states : a

bond where someone is released upon their promise to show up, with no cash posting to offer surety for their appearance. At one time PR bonds were conunon. If a court could not

find a rational bond amount, it would conduct a screening of the person's job history, residence, and the person's possession of a phone and car to ensure they could get down

to

the courthouse. These bonds are provided for in law, and

in

tradition, established during a time when the goal of the

courthouse appeared to be geared a bit more towards a fair

and humane dispensation of justice as opposed to our current plight. In case you younger lawyers are confused, that screening was the reason Pretrial Services was established - not to administer drug tests on people who

locate

have already posted cash bonds undocumented inunigrants.

or

to

help ICE

® THE DEFENDER

This began to change after the 1994 elections. It was not immediate, but gradually the issuance of these bonds became less and less common. That brings us to the situation today, and it is a grim one. In 2007, the last year information had been completely compiled, the issuance of pretrial bonds in the district courts fell to less than one half of one percent of those screened. That is correct: one half of one percent. Of the 30,121 people screened by Pretrial Services in 2004, only 109 PR bonds granted. In 2005, only 110 PR bonds were granted out of 31 ,345 defendants screened. For 2007, the percentage was slightly better, running at .043 percent.

Looking at the data another way, this means that your chances of being struck by lightning in your lifetime (slightly greater than lout of 500) are much greater than your chances of being granted a PR bond on a felony case in Harris County. While this may not be comforting to golfers, it should be truly disturbing for those who represent the indigent in the Harris County criminal courts.

The county courts fare only slightly better, but the reason for this may be that many bonds there are much lower than in the district courts; the working person may find county court bonds more in reach, and thus a smaller number of defendants may be seeking PR bonds in the county courts.

For 2004 to 2007, the county courts issued, on average, about 7 percent of their bonds as PR bonds . This actually went up as a trend, going from 6.75 percent in 2004 to 8.33 percent in 2007. As a whole, the county courts also place fewer people on cash or surety bonds on release under PTS supervision, both in real numbers and as a percentage. The number of people who were supervised on county court dockets actually went down as a percentage, going from 4.5 percent down to 3.9 percent from 2004 to 2006. In real numbers they were also less than the cash/surety folks that the district courts supervised under PTS. For example, in 2004, the district courts placed 2,998 people on PTS supervision, and the county courts placed 2,114. On average, the district courts placed about 10 percent of their cash/surety bonds on PTS supervision. This has created the phenomenon of "pre-trial probation" that has become so onerous, and led to a revocation rate for bonds far higher than normal in the district courts.

For example, in 2006, the district courts revoked pretrial release for 918 of defendants who

For example, in 2006, the district courts revoked pretrial release for 918 of defendants who had posted a cash or security bond. Only 198 of these revocations were for failing drug tests, and as anyone who practices here knows, there is no real pretrial drug treatment available for clients, only the happy option of failing a test administered by harried and overworked public servants who probably thought they would be doing something more positive in this agency.

County court revocations, by contrast, were only 159 in 2006, for the nearly 2,000 people they had under pretrial supervision. The yearly average for district court revocations appears to be approximately 650 or so individuals who had already paid a bondsman.

What does all this data mean?1 It means that if you are indigent, you will stay in jail. It means that even if you post bond, the judges in district court often will revoke your bond. If you are looking for a reason the jails are overcrowded, let me lay this problem at the feet of those who have largely2 caused it: our district court judges, too many of whom have gone so long without actually looking at these cases for genuine granting of a PR bond that they have frankly forgotten such things exist.

To be fair , our bar also has forgotten how to ask for these bonds in felony courts. There are certainly individuals whom everyone agrees, no matter what their poverty, should not be on the street as they are a public danger.

However, as the reader sits perusing this article over a cup of coffee, there are over 3,000 felony accused awaiting trial in the Harris County jail on any given day. Not convicted, awaiting triaL Surely there are sufficient resources available to divert some Pretrial Services folks from their current odd purpose of seeking to catch unwary bonded folk to their original reason for being, which was to assist the indigent accused in meeting the obligation to get to court. Even if the revocation rate decreased it would make at least some dent in jail overcrowding, which has now resulted in our clients being shipped off to Louisiana or to distant counties in Texas, making communication with them all but impossible.

What, if anything, can we do about this sad state of affairs?

the

courts weary of telling you "no".

2. File the pre-trial habeas writs, which would allow us, in

meritorious cases, to put this local policy on trial before the appellate courts.

3. Put these judges on the spotfor this election. Ask them

repeatedly at every bar association or luncheon: Why won't you grant more PR bonds?

I. Ask for these bonds.

Ask, and keep asking until

We as a group, and as individuals, must also speak out about this problem at Commissioner's Court, at the new Criminal Justice Coordination Council, and at every church and community function we attend. We must ask our county commissioners and state representatives why the Pretrial Services agency is being ill used, and why it cannot be returned to its original mission?

The data does not lie These bonds are virtually extinct, much like the snow leopard mentioned in the beginning of the article. Ifwe as a bar and as a community wish to restore a measure of sanity and respect for the poor who are trapped in this system, then we are the only ones who will raise this issue. And we must raise this issue or the death of the PR bond will be a very real thing that we will see in our professional lifetimes.

IThis data is available from the District Clerk's Office. Readers who wish to view it in the form in which it was sought should contact HCCLA.

2The collapse of our mental health system also bears some measure of responsibility for jail overcrowding.

Patrick F. McCann thanks Robb Fickman and Amanda Webb for their diligence in gathering information upon which this article was based.

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For Judge 1B4th Criminal District Court

Dick DeGuerin*

Robert Fickman*

Lana Gordon

Kent Schaffer**

Richard "Race Horse" Haynes Steering Committee Chair

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Committee Members

 

Dan Cogdell*

Troy McKinney*

Gerald Bourque

Mark Bennett*

Stanley Schneider**

Robert Scardino

Brian Wice

David Bires**

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Cynthia Henley*

Robert Morrow

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Randy Schaffer

Ten (10) Presidents o/HCCLA* & Three (3) Presidents o/TCDLA**

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Current HCCLA Member Supporters

Jennifer Hodges Kahn + Adrian Almaguer + Carmen M. Roe + Bill Habern + Kimberly J. Samman + D. Bret Evans Daucie Shefman + Richard Kuniansky + Doug Murphy + Jan L. Fry + Mary Moore + David Kiatta + Leorah Kahn Russell Webb + Margurite Hudig + Chris Tritico + Chip Lewis + Gary Roth + J. L. Carpenter + W. B. "Bennie" House* Sarah V. Wood + Carl R. Pruett + Melissa Martin + Robert H. Tuthill + Sunshine Swallers + Geoff L. Womack Clay S. Conrad + Thomas A. Radosevich + Gilbert Rodriguez + Scot Powgan + D. L. Recer + James Stafford Jerald Crow + Arnold S. Cohn + George o. Jacobs + Robert Alton Jones + Troy Locklear + Gary Roth Johnny P. Papatonakis + Michael P. Fosher + Ted Trigg + Joe Varela + Jaime Acosta

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allen Wat'rior;s Clyde Woody Clyde Woody, known for his successful advocacy in the United States

allen

Wat'rior;s

Clyde Woody

Clyde Woody, known for his successful advocacy in the United States Supreme Court and his high-profile clients, died on October 3,2009, from the complications of Alzheimer's Disease. He was 89 years old.

Among his many appellate triumphs, Woody briefed, argued and won Aguilar v. Texas, 378 U.S. 108 (1964), which established one prong of the Aguilar-Spinelli test for evaluating probable cause. He also obtained vacatur and remand on his certiorari petitions alone in Barnes v.

Texas, 380 U.S. 253 (1965) and Etchison v. Texas , 378

U.S. 589 (1964). And, as proof that the gods do have a sense of irony, Woody was on the defense brief in Illinois v. Gates, 462 U.S. 213 (1983), which replaced Aguilar-Spinelli with the "totality of the circumstances" test for probable cause.

Woody and Marian Rosen, his law partner for 25 years, were celebrated for helping secure an acquittal - with, as Brian Wice noted, the "considerable help of Percy Foreman" - for Candace MossIer and her nephew, Melvin Powers, after the two were accused by the state of Florida of murdering Mossier's millionaire husband. During his 45-year practice, Woody's client list included Judy Garland, Baron Enrico DiPortanova and Harris County Sheriff Jack Heard.

"Clyde was the first boss I ever had," Wice recalled. "In the year that I worked for him, Clyde taught me how to

read a record like a detective novel , looking for clues to

how the trial was unfair, how to write a brief that told a

compelling story and how to always win the moot court round at the oral argument."

In 1989, Woody's wife, Paula, joined his law practice until his retirement in 1991. In addition to Paula, Woody is survived by two sons, Allen and Todd, three grandchildren, one great-grandchild, and Woody's brother and sister. The family requests that donations be made in his memory to Alzheimer's Research, 640 Jackson Street, Mail Stop 112018, St. Paul, MN

55101-2595.

Jackson Street, Mail Stop 112018, St. Paul, MN 55101-2595. Esteban "Steve" Pena Esteban "Steve" Pena,

Esteban "Steve" Pena

Esteban "Steve" Pena, who had a busy criminal defense and civil practice, died unexpectedly on September 4, 2009. He was 35 years old.

Pena graduated in 2000 from the South Texas College of Law and plunged into the practice of law in Harris County. He was a frequent sight at the Harris County Criminal Justice Center, in the family courts and in the county's civil courts.

Pena is survived by his wife,

C. and Lourdes B. Pena, his and his brother, Obed.

Xi omara, his parents, Martin

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®

Computer-Ease

by Mark Hvizdos

& Lester Lavin

Computer-Ease by Mark Hvizdos & Lester Lavin What is the best way to provide security for

What

is

the best

way

to provide security for

my system?

Thi s can get quite detailed, but, in short , security must mitigate the risk of catastrophic events that may compromise your system and data whethe r due to internal , external, or environmental events. System passwords, antivirus software, data back-up routines and regular update procedures must be maintained as an establish ed discipline. [t would be wise to work with your IT consultant to introduce components and procedures that will provide the necessary level s of protection .

How do

I maintain my computer system?

cel1ain: " s tuff' happens. you prefe r the su spense?

It ' s your business! The best proactive stance will establish and maintain security

protocols, software updates and monthly or quarterly preventative maintenance (PM) activities and logs.

There are two choices: Proactive or Reactive . One thing is So, do you want the opportunity to avoid that " stufj" or do

How

system's performance and reliability?

As an attorney , what advice would you give a client re garding the management of

legal matters? Many of the day-to-da y procedures

back-ups and security protocol, can be managed by internal resources and individual users. PM' s (the scheduled deposition s or COUl1 dates of your IT prog ram) require a

technical knowledge and discipline to assess the situational developments or "new evidence" generated from within your system . Use a trained and qualified technician

to perform your PM's.

do

I

manage

all

of

the

aspects

that

that are

contribute

to

my

perform ed , such as data

Do

I

need

to be networked?

Do you have more than one computer? It makes good business sense, it makes work life simpler, and it doesn't cost much .

What

is

the best

network configuration?

A peer-to-peer network is a simpJe and cost effective way to " daisy-chain" office

computers and share office files, printers, and the internet. This is generally the best network configuration for small businesses.

What

is my best choice for an office workstation computer?

A PC running XP Professional

running standard office software : JGB RAM; 1.6 GHz processor ; 40GB hard drive .

with the following rec omm ended minimums for

bhat is the best ~ating System(OS)

to

use

on

business ~ters?

~

first and foremost , don ' t buy any OS within the first six months of its relea se. Secondl y, don't buy any OS within the first six month s of its release. (Just trying

to drive home the point!) The last Microsoft product that passed the six-month

acceptance test was Windows XP , thus receiving first

Windows 7 looks promising for having been out only a very short time .

recommendation. That said,

Les ter Lavin and Mark Hvizdos operate Bayo u City Connected, an IT services firm.

Th eir

next coLumn wiLL dis cuss computer system management and networkingJor the

small

bus iness.

® THE DEFENDER

n ex t coLumn wiLL dis cuss computer system management and networkingJor the small bus iness.
Investigative Corner: The Role of the Defense Investigator by Jim Willis An important part of

Investigative Corner:

The Role of the Defense Investigator

by Jim Willis

An important part of any successful defense team is a good investigator. The team member's main duty is to review and validate the work product of law enforcement. In order to perfonn as a qualified defense investigator, one has to have acquired training or experience which would allow one to be able to recognize errors or omissions. In addition, the investigator must know proper procedure during the initial police investigation. The investigator must have the confidence to talk to all witnesses and to review and verify all the evidence in a particular case.

How can I be sure who I am hiring? What type of experience does this investigator have? What types of training has this investigator had? How many cases has this investigator worked? These are all questions that you should ask when hiring an investigator. At the end of the day, your success depends on your defense team.

All investigators in Texas must be licensed and are regulated by the Department of Public Safety. Continuing education must be obtained. There are numerous conferences and organizations to obtain all the credentials to become a professional investigator.

Once your investigator has been hired, it is time for the defense team to put a plan into action. The investigator has to interview all witnesses identified by the defense team. Many times additional witnesses are uncovered through interviews. The investigator reviews all the accumulated statements and evidence with the defense team to detennine if any additional clarification is needed.

Results!!! We all want positive outcomes. If the investigator does his job thoroughly, then you as the lawyer will have the answers to deliver the best case possible. A good investigator's knows and has experience with: physical evidence, crime scene reconstruction, blood stains, fireanns, and photography. The art of conducting interviews comes with experience. Some investigators have the ability to get people to visit with them, but more important is the art of being able to read a person. You want the truth and your investigator must be able to go and get it.

As experience is gained, the investigator knows where to look for answers. Plus, the investigator will be able to assist in the organizing of more complex cases. A good investigator on your defense team will assist you and ease the already stressful arena of criminal defense.

The defense investigator has to possess the self-confidence to act professionally and independently, and be able to interpret infonnation correctly. It is of no benefit to you to constantly "hand hold" your investigator who, after several hours of work, has nothing to report. What is more frustrating than chasing a dead-end lead than to have to read a 10-page report about it?

My final thought: as a criminal defense investigator I have a huge responsibility to my clients. My work changes the lives of people everyday. What we do can impact others forever.

Jim Willis is a private investigator with Benken & Associates. He may be reached at 713-223-4051 and jwillispi@aol.com

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