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NTS

4::ClE Events
5 : : AWord from our President
by NicoleDeBorde
6::Winning Warriors
9 : : Dealing with Immigration Detainers
byFranklinBynum
1 3:: HCClA News Round Up
Running Fun, Learning&growing,
BBBS/Amachi, HomesforSoldiers &Teen Law
1 8::HCClAMailbagI lettersto the Editor
ACall to Colleagues - JuvenileCertifications
byPatMcCann
AChristmasWishlist
byRobbFickman
23::Welcome Alex Bunin!
byChris Tritico
24::HCClA Fall Picnic
Houston's DowntownAquarium
26::The Deer Hunter
byPatMcCann & TuckerGraves
29::Investigative Corner: E-Discovery
byJim Willis
30::HCClAExtras
NewMemberApplication &Ad Rates
UPCOMING EVENTS
THE PUBLIC DEFENDER'S OFFICE
TODD DUPONT'S LEGISLATIVE UPDATE
ROBERT FICKMAN
STACI BIGGAR:
Vetran's Court &Medical Treatment in Jail
For more information on CLE Events, contact
Carmen Roe, 71 3-236-7755, carmenmroe@yahoocom
(0 THE DEFENDER
HCClA ClE's have been better than ever this year and included
the expertise of Brian Rose (HCDAO), Brian Wice, Kent Schaffer,
Katherine Scardino and Pat McCann. HCClA will continue to
provide our members with excellence in our ClE speakers and
materials. We are proud to provide our members with the
benefit of earning ClE credit while learning the tricks of the trade
from the best of the best.
HCClA ClE 2011 will be even better by continuing to bring
great speakers, more material and even more ClE hours to
help our members meet their State Bar ClE requirements. By
popular demand we are working to bring additional ethics hours
to our ClE program. In addition, we are making plans to bring
our ClE classroom into the 21 st-century to make it available
through other types of media. This will provide for the expansion
of our ClEs to a greater number of our members who may not
otherwise be able to attend live sessions.
HCClA continues to work hard to bring the most up to date and
relevant material to our members. We will continue this effort in
2011. Don't miss out on all the exciting events to come.
reasonabledoubt
CALL-IN TALK SHOW
hosted bytodd dupont
thursdaynights@ 8pm
Join us in discussing
criminal justice issues
in Harris County with
weekly guests.
Sponsored by HCClA.
Houston Media Source
Com east (Channel 11)
AT&T U-verse (Channel 99)
www.hmstv.org/streaming.htm
a word from our president
ncote b e B o r ~
The end of 20IO brings exciting new times for the defense
bar in Harris County. Starting on December 6, 2010, Alex
Bunin will be the first Chief Public Defender of Harris
County. While the indigent defense system in our county
will still have many of the same components and enjoy a
hybrid including the same appointment system we have
known for years, the new public defenders office will offer
a new resource for attorneys representing indigent clients
and a new resource for the indigent defendant . The Harris
County Criminal Lawyers Association extends a warm
welcome to Alex Bunin, and we look forward to working
together as a resource to the defense bar. HCCLA also looks
forward to joining NACDL in inviting the legal community
to a social (TBA) where you can all get to know him soon
after he embarks on this new journey.
After doing some reconnaissance, I have learned a few things
about Alex Bunin and want to share them with those of you
who have not had the opportunity to get to know him yet. In
this addition you will find an article outlining Mr. Bunin's
experience. He has a reputation for professionalism, brains
and a passion for the defense of the indigent accused . Perhaps
most importantly. those who have worked with him report
that he is extraordinarily talented and gives freely of his time
and experience in the interest of his passion: criminal justice.
We wish him luck and look forward to watching the success
of his team in their endeavors.
HCCLA also continues to enjoy a uniquely productive and
cohesive defense bar. With membership near 500. we provide
a venue for criminal defense attorneys in our community to
turn for advice. both legal and professional.
We have also become a resource in the community at large
concerning issues of criminal justice concern. For example.
we have had the opportunity to work hand in hand with the
Harris County Sheriffs Department with a goal of improving
medical treatment for inmates and to help develop ideas
for relieving overcrowding. We have also been involved in
monitoring voucher underpayments and the issue of seeking
proper expense provisions for attorneys taking appointments.
We welcome your input on issues that affect the defense bar
and the citizens accused in our county. When we take the
time and effort to hold ourselves to the highest standards in
representing our clients. hired and appointed, we improve
the quality of the defense bar in the community as a whole.
With everything from quality, free CLE programs for our
members to wonderful social events for our membership,
HCCLA should be on everyone's list of reasons to be grateful
to practice law in this county. Special thanks to Carmen
Roe and our fantastic list of speakers so far this year at our
CLE events. Special thanks also to Christina Appelt. Sarah
Wood, Steve Halpert, Mark Thiessen for such hard work
putting together some really fantastic events for HCCLA
members this year. I continue to hear about how much fun
members and their families had at the Aquarium and we are
all looking forward to the year's grand finale Holiday Party
at Kobain on December 9th.
I'm not sure how we can top 20IO, but I am looking forward
to trying in 20n with a great Board and an active defense bar
membership. Cheers, and continued success helping people
and good verdicts to all in lOll!
TH DfllDR CD
In a stunning result that made national headlines,
Katherine Scardino and Jimmy Phillips pushed the
State, investigated everything, and achieved the dismissal
of the Anthony Graves case. With work that was not
done in 1992, 1994 or even 2006 (during various stages
of this lengthy matter), Katherine and Jimmy helped
save an innocent Iife. Katherine was overwhelmed by the
victory and thanked all the lawyers who worked on this
case over the years. Without their work, Anthony Graves
would possibly have been executed by now.
...................................... .
In Montgomery County, J. C.Castillo fought the
govemmentand raised a speedy trial issue. With his
motion granted, his client won a dismissal in his
intoxication manslaughter case.
......................................
Facing an offer of 8 years, Jordan Lewis and his client
raised the stakes and announced ready for trial in Judge
Hill's courtroom. The State folded .... more cards in the
muck pile!
................... .. .................
Big props to Dan Gerson with his dismissal of a kilo of
ecstasy case. If you didn't see it, you ' d never know it as
Dan continues to work quietly behind the scenes for all
his clients. We were lucky to get these details, sparse as
they are!
.................. .. ..................
Two Times the Winner! Cheryl Irvin won her second
motion to suppress in a month's time. As a result of her
fine lawyering, the officer is being referred to OIG to
investigate his lack of truthfulness in this particular case.
Luckily, her client had the sense to call Cheryl from the
scene and leave a voice mail message which confirmed
the officer' s untruthfulness! We hear Cheryl traded the
tape for a dismissal!
Baldemar Zuniga and James McCollum ended up with
a hung jury in the 182nd District Court in an aggravated
assault on a peace officer case.
.......................................
Our own Benny House (current member and
HCCLA Past President), apparently, still has it! In the
ultra-conservative McKinney, Texas, Benny got a not
guilty on an aggravated assault with a deadly weapon
case, and he litigated a motion to revoke probation.
The court found that 2 counts of aggravated assault
were simply not true.
.................................. .....
To the shock and dismay of court personnel and the
State, Kate Shipman won a not guilty in the 284th
District Court. Despite having only 2 weeks to get
ready for trial after being appointed, Kate highl ighted
the problems with the complainant's story and walked
her client out of the Montgomery County jail a free
man. Kate credits Judy Shields and Scott Pawgan for
some great advice. And to top it off, she won a negative
finding on an ALR hearing and quickly ran out to buy a
lottery ticket!
.......... .............................
Those two magical words were heard in Court 3 for
Steven Touchstone and his client following a telephone
harassment case. His client was alleged to have called
and harassed a state senator. Steven put the finishing
touch on the case and walked out with a not guilty.
..................................... . .
Let's hear it for Randy Ayers who got a not guilty on a
murder in the 338th District Court on an appointed case.
.......................................
Another not guilty makes it way through the courthouse,
this time for JL Carpenter and her client in a DWI in
County Criminal Court at Law #1. JL credits Dustin
King and Joseph Gagliardi for their assistance.
CD THE DEFENDER
FamilyViolence?Nothere...justanothernotguilty.
Congratulationsto MichaelPanesarand hisclient
followinga missingcomplainant,lots ofCrawford
objectionsand issues, and a trial byjury.Michael thanks
SarahWoodforpromotingthe2ndchairprogramand
JudgeHarmonfor keepingthecourtroomfair.
.......................................
Double-teamingit, MoniqueSparksand Sunshine
SwaJlersscorea notguilty inGalvestonCounty. We've
beentold,"Theyfoughtthe law,andTHEYwon in a
terroristic threatagainstacop."
.......................................
Alvin Nunnerywinsagain! JudgeCartergranteda
directedverdicton23.5 grams.Alvin'spersistencepaid
offdespitejusthavingreceivedBrady materials on the
day oftrial.
.......................................
In yetanothernotguilty,StaciBiggarandClaire
Connorswinaharassmentcasewherethecomplainant
wasafamily courtdistrictjudge.Theirclientcould
havebecomejustanothermental healthcourtstatistic,
butinchallengingtheState'sevidence, theysecuredan
acquittal.
................... ....................
In State ofTexas v. Sean Roberts II (partI endedabruptly
whenJudgeKeel suppressedtheevidence),Mark
Bennettwona notguilty in JudgeDeniseCollins' Court.
Let'ssee: noevidenceandstillgoingto trial, yep, that's
arecipeforan acquittal whenyou mix it upwithagreat
lawyerlikeMark.MarkcreditsSarahWoodfor her
assistancethroughoutthecase.
.......................................
Wasthatevidencesuppressed?Youbetitwas!
JLCarpenterstrikesagain, thistime in the228th
afterthedeputycouldnotarticulatefacts amounting
to reasonablesuspicionforthestopinaDWIcase.JL
creditsJedSilvermanforhisadviceandguidance in
this issue.
RESEARCH & WRITING
TheLawis On YourSide
WithProfessionalBrififi.ng
Briefs,Memos,&Caselaw
TrialHelp& EmergencyServices
Sarah V. Wood
713.530.6
1
47
SAHAIIVWOODl@AOL.COl\1
HCCLAUnsungHeroandMemberoftheYearRecipient
References&WritingSamplesUponRequest
Congrats to RickOliverwhosecuredatwowordverdict
forhis clientin FortBend#2. Rickwasfaced with the
possibilityof gettingsmall-townedeverystep oftheway,
butthejurycamebackin 20 minuteswitha notguilty.
.......................................
BrianWiceandRandySchafferwina pairofvictories
in the CourtofCriminal Appeals. Brianflipped the
CorpusChristi CourtofAppeals in anaggravatedassault
ofa peaceofficerconvictionwith20-yearsentenceon
double jeopardygrounds in Teeter v. State. And, Randy
gottheCCAto keepthegrantingofhabeas reliefin
the form ofan outoftimeappeal becauseofappellate
counsel's ineffectiveassistanceintactin an opinion
denyingthe State'smotionfor rehearing in
Ex parte Miller.
.......................................
HilaryUngerscoresa notguiltyforherclientin a
shopliftingcasewhereherclientturned downan offerof
aclassC theft. Hilaryperformeda horriblyexcruciating
crossofthe losspreventionofficerwhenshewouldn't
evenadmitthedefensephotographswerefrom thestore!
Thejurysawthe loss preventionofficeras untruthful.
.......................................
Withanothertwo-wordverdict,WayneHellerwona
DWI in CountyCriminalCourtatLaw#7. His client
hadwantedDIVERTand wasrejectedtwice,sothey
triedthecase. Waynesays,"youcan'tgeta hitunless
you swingthe bat."We'dsayWaynehitoneoutofthe
park!
.......................................
TuckerGravesscoresa lesserincludedclassB theftfor
his client, from ajury,afterbeing tried for burglaryofa
habitation inthe 338thDistrictCourt. Agreatresultfrom
anothergreat lawyer!
...................................... .
Congratulationsto TomSticklerinconvincingJudge
Lowerytodirectoutthe Statein CountyCourt#3.
.......................................
Inwhatseemslikearareoccurrence,JoeGonyea
received a two wordverdict in federal court.Hisclient
waschargedwith"Delaying,Secreting,andDetaining
themail in violation of18 USC 1703".Jurywasout7
hoursbeforereturningto thecourtwitha notguilty.
JoesendshissincerethankstoJimmyArdoinand
JoshSchafferforthey wentaboveand beyondto help
with thecase.
.......................................
HermanMartineztookdowna0.13 breath testin
CountyCriminal CourtatLaw#11 when technical
supervisorJorgeWong testified the methylalcohol found
in the mercuryin sushi and soy saucecouldproducea
false highpositiveon the breathtestmachine.
THE DEFENDER 0
A trio of fine lawyers, Todd Dupont, Casie Gotro, and
Steve Touchstone heard those magic words, not guilty,
two times in a two count aggravated sexual assault trial
in the 338th.
...................................... .
Speaking of trios, up-and-coming barrister Carmen
Roe convinced Judge Kevin Fine to grant a motion to
suppress in a trio of cases - possession with intent to
manufacture a CS over 400 grams, possession with
intent to deliver a CS of more than 4 but less than 200
grams, and a felon in possession of a weapon -- based
on a bad search warrant affidavit. State's offer was 15
to do, but Carmen was able to book-and-page the State
on the law and Judge Fine agreed.
.......................................
Congratulations to new defense attorney Craig Still
who got three first degree cases on his true habitual
client dismissed based on a bad search warrant that he
skillfully picked apart. Is it just me or do they not write
good warrants like they used to?
.......................................
Kelly Case caught the trooper fudging the truth,
showed it to the jury, and won a two word verdict in
Montgomery County in a DWI trial. Kelly credits
Earl Musick with his closing argument because the
"Superman thing" was spot on for this case.
.. ..... .................................
David Ryan secured a not guilty in a prostitution case in
County Criminal Court at Law #12. We're sure he will
happily fill in the details, but this is becoming a regular
result to report for David. Excellent job!
Joe Labella convinced Judge Anderson to suppress a
.12 breath test on an Erdman issue. Joe argued that his
client was psychologically coerced into providing a
breath sample by Officer Hattan's threats to draw his
blood ifhe refused a breath test, being that it was the
fourth of July weekend and it was a no refusal night.
...................................... .
Danny Easterling pulled out another great win! This one
in a felony DWI case in the 182
nd
With the client turning
down an offer of one year misdemeanor probation (and
no jail time), Danny picked a jury and tried the case.
The jury was deadlocked at 9 for not guilty and 3 for
guilty. Court declared a mistrial and the State dismissed.
Another lesson in "good things happen when you set
cases for trial"!!
.......................................
David Cunningham and Jed SiJverman convinced
Judge Keel to suppress a pound of cocaine after they got
two dash cam videos from officers who were involved
on the periphery of the scene. These videos helped
show that the seizing officer was less than candid about
his search. Earlier in the same week, Jed Silverman
convinced Judge Keel to toss out a breath test on another
case because of problems with retrograde extrapolation.
.......................................
Congratulations to Tad NeJson for a not guilty in County
Criminal Court at Law #IO! Judge Ross was very close
to granting a directed verdict at the close of evidence in
this DWI, but he withheld his ruling to see if the State or
the jury would "do the right thing." . .. the jury did. Sam
Adamo reports, "Tad Nelson, throughout his illustrious
career, has brought to the courtroom an eloquence and
an unshakable conviction that makes him a legend in his
own time."
As we all know, the requirements of Padilla v. Kentucky"
are changing criminal defense of aliens quite
dramatically. The urgency of the problem the Padilla
court addressed was precipitated largely by increased
immigration enforcement in local jails across the country.
As a result, criminal defense lawyers should now be
prepared to deal with not only an entirely new set of
substantive law, but also a myriad of practical issues
regarding bonding and detention of alien clients caused
by the presence of federal officials in local jails.
The last issue of the Defender covered some substantive
tips for advising alien clients. The aim of this article is to
describe the mechanisms of immigration detainers, the
authority for and implementation of immigration
enforcement by the Harris County Sheriffs Office in its
jails, and practical ways to deal with bond and prolonged
detention.
Immigration enforcement is now active in every county
jail in Texas.';; Much of this atiicle should be applicable to
similar programs in other counties.;v
INTRODUCTION TO IMMIGRATION DETAINERS
What Is an Immigration Detainer?
An immigration detainer is a written request from the
Department of Homeland Security (DRS) to any federal,
state, or local law enforcement agency requesting custody
of a person presently held by that agency, for the purpose
of seeking to remove that person from the United States:
A detainer indicates only that Immigration and Customs
Enforcement (ICE) believes it has probable cause to
commence proceedings against the person or that the
person already has an outstanding order of removal.
Just because an immigration detainer issues does not
mean that the person is removable.
Many aliens, especially Lawful Permanent Residents,
have relief available to them.
In fact, even a United States citizen could be issued a
detainer and removed; this happens frequently. v;
The physical document that creates the detainer is called
the 1-247: '; A copy of the 1-247 should be on file with
both the local agency and ICE, and should be disclosed
by either pursuant to a freedom of information request.
v
, ;;
How Long May the County
Keep Someone with a Detainer?
The county must release a person with an immigration
detainer if DHS has not taken custody of the person 48
hours after the person would have otherwise been
released from county custody, excluding holidays and
weekends.;'
Who Decides Whether a Detainer Issues?
The decision of whether to issue a detainer is made by
one several types offederal officials such as Customs and
Border Patrol agents and ICE deportation officers.' Note
who does not have the authority to issue detainers: state
and county officials. County employees may screen
prisoners for immigration violations and may then
present a person suspected of an immigration violation to
a federal official, but the federal official ultimately makes
the decision.
THE "SECURE COMMUNITIES" PROGRAM
The federal government has the exclusive authority to
make and enforce immigration law:; The mechanism by
which the federal government allows local government to
assist in enforcing immigration law is described in the
Immigration and Nationality Act at Section 287(g).
Section 287(g) authorizes the federal government to enter
into agreements with local governments to enforce
THE DEFENDER CD
immigration laws under the supervision of federal
officers. The term "287(g)" is thus used to refer to a
number of different types of cooperative enforcement,
mostly taking on one of two forms: "task force"
agreements in which OHS agrees to participate in
street-level enforcement with local police; and, more
commonly, the so-called "Secure Communities"
program, which purports to screen jail inmates for
"criminal aliens."';;
Harris County has participated in Secure Communities
since 2008, and was the first county in the nation to
implement sending livescan fingerprints to the federal
government's immigration database.";'
The Harris County Secure Communities
"Memorandum ofAgreement"
The document that allows immigration enforcement in
Harris County jails is the "Memorandum of Agreement"
between the County and OHS. That document (the
"MOA") is provided publicly by ICE on its
For a more in-depth understanding of how the program
works, the MOA is an excellent resource.
Why Does an Immigration Detainer Issue?
The regulations say that a detainer issues when OHS
seeks to arrest and remove a person. However,
removability in eve!), case involves factual and legal
issues. With the large scale of the Secure Communities
program-2.9 million fingerprint queries in the eleven
months from October 1 through August 31,2010."
are some fairly rigid categories that help officers make
determinations as quickly as possible.
Unfortunately, those categories do not exist in federal
regulations but instead only in a "Standard Operating
Procedures" manual. The manual classifies crimes that
will result in detainer issuance into three " levels." Level
1 crimes are mostly serious felonies. "; Level 2 crimes are
mainly property crimes and Level 3 are miscellaneous
misdemeanors. ""
Level I crimes are the most important, because those are
crimes that can result in a detainer being issued with a
charge alone; no conviction is necessa!)'.
The "Standard Operating Procedures" manual states that
Level 2 and 3 crimes only result in a detainer if there is a
final conviction for one of the listed crimes.
Understanding this is essential to helping your clients and
their bonding companies understand what may happen if
the person bonds out. Here are two examples:
Example One
Client entered on a tourist visa, overstayed for ten years,
and has one conviction for OWl, a Level 2 offense.
Client is then arrested for a second OWl and an
immigration detainer issues. Client posts state bond, ICE
retrieves client within 48 hours. Once in immigration
custody, ICE issues Notice to Appear alleging
removability because the visa overstay and sets bond at
$3,000. Client posts bond, and is released from ICE
custody.
Example Two
Client is a Lawful Permanent Resident with no criminal
record and is arrested for aggravated assaUlt, a Levell
offense. Client posts state bond, ICE takes custody of
client within 48 hours. Client is in immigration custody,
but ICE does not issue a Notice to Appear because Client
is not removable from the United States: for an
aggravated assault charge to lead to removability would
require ajinal conviction for the aggravated felony. So
client sits in immigration custody, unable to bond out.
Client misses next state court date, and bond is revoked.
What makes this second example so troubling is that
there is no relief available to force a bond determination
until OHS files a Notice to Appear,"';;' and OHS may
refuse to file a Notice to Appeal until it has a conviction
record. This situation has not been litigated in federal
court yet, but given the high volume of bodies running
through the system and low competence of both ICE and
its private prison contractors, surely it will be litigated
one day.
BOND STRATEGY fOR CLIENTS WITH DETAINERS
To successfully bond a person with an immigration
detainer out of custody requires posting of one bond with
the local authority and one with ICE. Posting the bond
with the state is usually the easier part.
THE DEFENDER
Persons with Immigration Detainers Are Eligible to
Bond Out ofLocal Jail
Personswith immigrationdetainerscan postbond ifthe
person is otherwiseentitled to bond in thestatecourt.'"
Atthe pointatwhichtheywouldbereleased, the48-hour
clockbeginsforICEto retrieve the person. OnceICE
takescustodyoftheperson,it has48 hours to issuea
Noticeto Appear, whichwill also setaninitial bond
amount. Notethatin removal proceedings,the
prosecutingagency-notamagistrate-setsthe initial
bondamount,andthen thedetaineemayaskthe
immigrationcourt" for abond redetermination.
Procedures for Immigration Bond
Oncein DHS custody, thedetaineecanbe releasedon
"conditionalparole"(theequivalentofreleaseon
recognizance)orcanbereleasedonbond:';Conditional
parole is virtuallyunheardofforadetaineewitha
criminalhistory.Theminimumbondamountis $1,500.
xxii
WhenaNoticeto Appearisfiled andservedon a
detainee,an attorneycanfile abond motionwiththe
immigrationcourtat5520GreensRoad in Houston. A
bondhearingwill be scheduledfor sometimewithin a
few days up to acoupleofweeksafterfiling the motion.
In Houston,bondhearingsare heldbeforeoneofthree
immigrationjudges-Benton,Rose,orGreenstein-at
thecourton GreensRoad.Oncethejudgesetsthe bond
amountandthedetaineepostsabond, the casewill be
transferred, uponaperfunctorymotionto changevenue,
to the immigrationcourtat2320LaBranchStreetin
Houston."';;; TheLaBranchcalendaris severely
overloaded,andcourtdatesfor initialappearancesare
routinelysetformanymonthsout.
Foraclientwith absolutelyno criminalconvictionsand
whowasinspectedandadmittedupon entryto the
UnitedStates,theprocessofgettingan immigrationbond
hearingis simpleenoughfor thecriminaldefense
attorneyto handleherself,withonlya littleassistancethe
first timeortwofrom someonewith moreexperience.
Cheri Schultz Consulting
ProbationExpertise/ Pre-SentenceReports
MitigationSpecial ist / LicensedPrivateInvestigator
MitigationReponPreparation MotiontoRevoke/AdjudicateExpertise
Pre-Sentence ReponPreparation FormerCounLiaisonProbationOfficer
In-CustodyInterviews AvailabletoOverseePre-SentenceInterviews
c h cri sc hllit zcons lIiting(ag m a ii.com
713-783-5333
lli.lI I'1 II \1(.110
Mandatory Detention
Broadcategoriesofindividualswithconvictionsof
someverycommoncrimesareineligibleforbond.The
followingarethemostcommoncategoriesofcrimes
requiringmandatoryimmigrationdetention:
two ormorecrimesinvolvingmoral turpitude;";'
aggravated felony;'"
controlledsubstanceconviction;"';
firearms offense;"';;
on thebasisofanoffenseforwhichthe alien hasbeen
sentencedto atermofimprisonmentofatleastoneyear--
committingacrimeofmoral turpitudewitrun five years
ofadmissionandbeingsentencedtoayearormore:"';;;
Ifapersonhasan immigrationdetainerandaconviction
ofoneofthesecrimes,thealien will becategorically
ineligibleforbond.Ifthepersonweretopostbondwith
the state, thepersonwouldbedeliveredto ICEand not
released.
Bond Forfeiture and Immigration Detention
Manybondingcompanieswill notwriteabondfora
personwithan immigrationdetainer. Thisshouldnotbe
thecase.Innearlyall casesyoushouldbeableto assure
thebondsmanthattheywillnotbeliableonthesurety
becauseoftheimmigrationproblems.Thekeytothat
assuranceis in Article 17. 16 oftheCodeofCriminal
Procedure.
UnderArticle 17.16, when aperson is releasedto ICE
afterpostingabond, thesuretycanrelieveherselfof
liabilitybyimmediatelypresentingthe Sheriff"an
affidavitstatingthatthe accused is incarcerated in federal
custody.",,;, Oncethe Sheriffverifiesthatthe person is
in federal custody,thesurety is automaticallyrelievedof
further liability.'"TheCourtofCriminal Appealshasheld
thatthisprocedureis effectiveto preventbondforfeiture
whenapersonis in immigrationdetention butnot ifthe
personhas alreadybeenremoved from theUnitedStates
at the timethebondingcompanyapplies forarelease."' ;
Whensomeonebondsoutofstatecustodyandis sentto
immigrationdetention,oneofthreethingswill happen:
1)personwillbondoutofimmigrationdetentionand
appearas required forcriminalcourt; 2) person will
notbondoutofimmigrationcustodyin timeto appear
in criminalcourt,butwill notyet beremovedfrom the
UnitedStates;3)personwillberemovedand will likely
notappearagainin thecriminalcourt.
In everysingleoneofthosescenarios,a well-informed
bondsmancanpresentsomebasic documentationto the
SheriffsOfficeand relieveherselfofliabilityon the bond.
THE DEFENDER
However,to preventbondforfeiture willprobablytake some
hand-holdingwith yourclient'sbondingcompany to makesure
they don'tjumpthe gun andgeta warrantissued foryourclient.
Byworkingwiththebondingcompanyandkeepingthem
continuouslyinformedabouttheprogressofthe immigration
bondprocess,youcanbuyyourclienttimeto attemptto bond
outofimmigrationdetention. Ifitbecomesapparentthatyour
clientwill notbeableto makeimmigrationbond, the bonding
companywill need to quicklyprovidetheSheriffsOffice
proofthatsheremainsin immigrationdetention.
EthicalConsiderations
Ifyouplantokeep thebondingcompanyappraised ofthe
case'sprogress, makesureyourclientsknowsandgivesyou
permissionto discloseanyconfidentialinformation.
Commonly,clientswhofaceremoval attheconclusion oftheir
sentenceask iftheycan"justbedeported." Oneresponsemight
bethatitis up to thejudge,jury,orprosecutor,and thatmercy
from anyofthem maynotbeforthcoming.
However,being removed withoutservingastate-courtsentence
couldbepossible in certaincaseswhereremoval is a certainty.
Arguably,ethicalproblemscould arisefor an attorneythat
advisesaclientto bondoutofthecriminalproceedingwhile
reasonablycertainthatthe clientwould neverappearbeforethe
statecourtagain.
Thoseconcernsshouldnotstopyou,evenin closecases,from
takingacautiousapproachto attemptingto gain yourclient's
freedom whilechargesarepending.
iMember,HCCLA,theAmericanImmigration Lawyers
Association, and theNational ImmigrationProjectofthe National
LawyersGuild.Specialthanks to my officemateAmyMartinfor
editingassistanceand puttingup with meall day.
ii 130 S. Ct. 1473 (2010).
iii JulianAguilar, ControversialProgramNowIncludes
AllTexas Counties,TexasTribune(Sep.29, 2010),
http://www.texastribune.org/ immigration-in-texas/ immigrationlco
ntroversial-program-includes-all-texas-counties/.
iv ICE maintainsan incompletelistof287(g)agreementson its
website:
http://www.ice.gov/pi/news/factsheets/section287_g.htm .Each
county'ssignedagreementshould be disclosed in responseto an
open recordsrequest.
v See8C.F.R.287.7(a).
vi Search Googlefor"United States citizendeported."
vii http://tinyurl.comlfonn247
@ THE DEFENDER
VII Ifyou areseekingan 1-247regarding aperson who is a Lawful
PennanentResident, DHSwill require youtoprovidethe alien's
writtenconsent.
ix 8C.F.R. 287.7(d).
x8C.F.R. 287.7(b).
xi This is perhapsabitofan overstatement,butnotas
controversial as itmayseem.Tfyou'reinterested in federal power
topreemptstate immigrationenforcement, follow the United
States v.Arizona pleadingsontheDistrictofArizona'sPACER
site, undercase 10-cv-01413.
xii "Purports"becausethe program is beingused to remove
massivenumbersofnon-criminalaliens. See, e.g., Travis County
leadsnation in deportingnoncriminalimmigrants,groupsfind,
Austin-AmericanStatesman,Aug 10, 20IO.
xiii !DENT/IAFISInteroperabilityMonthlyStatistics through
August31,20I0(Sep. 7, 20I0)
(http://www.ice.gov/doclib/foialsecure_communities/nationwidein
teroperabilitystatsaug10.pdf).
xiv http://tinyurl.com/Harris287g
xv "!DENT/ IAFISInteroperability"memo.
xvi "NationalSecurity"crimes(sabotage, sedition, espionage,and
treason; terroristthreats; and weapons,arson/incendiarydevices,
and bombingoffenses); Homicide; Kidnapping; Sexualassault;
Robbery; Aggravated assault;Threats;Extortion-threatto injure
person;Sexoffenses;Crueltytowardspouseorchild; Resistingan
officer; Hitand run; and Felonydrugcharges
xvii "!DENT/IAFIS Interoperability"memo.
xviii MatterofWerner, 25 I&NDec.45 (BlA2009).
xix Castaneda v.State, 138 S.W.3d304,306-07(Tex. Crim.App
2004).
xx The"immigrationcourt"is theExecutiveOffice for
Immigration Review,a partoftheDepartmentofJustice.
xxi 8U.s.c. I226(a)(2)(B).
xxii 8 U.s.c. I226(a)(2)(A).
xxiii Until this summer, caseswereautomaticallytransferred to La
Branchwhen the personwasreleasedon bond,butnow amotion
to changevenue is required.
xxiv Immigration and NationalityAct237(a)(2)(A)(ii), 8 U.S.c.
I227(a)(2)(A)(ii).
xxv Immigration and NationalityAct237(a)(2)(iii),8 U.S.c.
I227(a)(2)(A)(iii)(2006).
xxvi Immigration and NationalityAct237(a)(2)(B), 8U.S.c.
1227(a)(2)(B)(2006).
xxvii Immigration and NationalityAct237(a)(2)(C),8 U.S.C.
I227(a)(2)(C)(2006).
xxviiilmmigrationand Nationality Act237(a)(2)(A)(i),8 U.S.c.
I227(a)(2)(A)(i)(2006).
XXIX Castaneda, 138 S.W.3dat308.
xxx Jd.
xxxiJd. At310.
RIIIIIIIII, 11111
HCCLA donated $120 to sponsor 6 runners for
the September Run for Recovery fun run
recognizing National Recovery Month.
The Run for Recovery event is designed to
promote addiction awareness and community
connections. Runners involved with the drug
court programs in Harris County participated.
LEARNING&growing
During our new member's social in August,
HCCLA members generously donated over $500
at Hearsay on August 16 to benefit the school
aged children of mental health
court probationers.
Our own Staci Biggar was able to use these
funds to purchase backpacks, school supplies,
and lunch kits for families participating and
succeeding in the mental health court.
THE DEFENDER
HCCLA&
BigBrothers/BigSisters
HCClA, in collaboration with Big Brothers-Big Sisters of
Greater Houston I"BBBS"} and the Houston Young lawyers
Association ("HYlA"l. hosts events annually - since 2007
- for local children in the Amachi program. Affectionately
nicknamed "Celebrating Amachi All-Stars," all events in this
bar year include a "sports" aspect with an emphasis on the
importance of physical fitness and leading a healthy life.
"Celebrating Amachi All-Stars" events in 2011 planned
for Amachi children are: Houston Aeros hockey game
(January 16); Houston Rockets game (February 5); Brunch
Honoring a local Sports Celebrity (March 19); and the
Field Day with B-B-Q at a local park (May 7). "Celebrating
Amachi All-Stars" events are graciously funded and made
possible by child-ticket donations from the Houston Aeros
organization, Houston Rockets player-Brad Miller, a Houston
Young lawyers Foundation grant, and continued support
from the Harris County Criminal lawyers Association.
The time commitment typically required to be an adult
mentor makes many lawyers shy away from volunteering
in the BBBS program, but the "Big for a Day" events with
HCClA &HYlA allow professionals that exact opportunity
- to serve as BBBS mentors. Other than the time needed
to watch a basketball game or attend a luncheon, there
are no other commitments. Past event locations hosted for
Amachi children by HCClA &HYlA include the Houston
Zoo, Downtown Aquarium, Edwards Marq*E movie theater,
and a tour of the Houston SPCA.
THE DEFENDER
The Big-For-a-Day events help make a difference in the lives
of local at-risk youth. The Amachi Texas program provides
mentoring for children with one or more incarcerated parents or
guardians. Children of incarcerated parents are five times more
likely to commit crimes, and without positive adult intervention,
will more than likely follow their parents into prison. But
this is a chance to make a difference in a child's life (and an
otherwise unforgiving cycle). What only takes a moment for a
lawyer-mentor can impact a "lifetime" for an Amachi child.
Due to the limited number of adult volunteers in BBBS, not
every child registered in the Amachi Texas Program in Houston
has been assigned a permanent big brother or big sister. There
are on average seventy children left unassigned every year. The
"Big for a Day" events help address this problem by organizing
events specifically for Amachi children without permanent
"Bigs". Events are always 100% free for the children.
Besides volunteering as a mentor at an event, there is another
way to help support this extraordinary program! The "lawyers
Bowl", an annual bowling-tournament fundraiser for BBBS
of Greater Houston, will happen on a Saturday in early April
of 2011. HCClA has had a team in the tournament of "legal"
bowling teams for the past four years. HCClA in 2009 even
took home the prize for 1 st Place! Help continue our winning
streak.
If interested in joining "Team HCClA" either as a bowler or
sponsor, please email wendymiller@comcast.net.

[O]]]]lillJ-[[(([(ffi]J
www.homesforourtroops.org
HCCLA volunteers - Tom Berg, Denise Poole, and Darla
McBride - got "down & dirty" on behalf of a disabled war
veteran this past summer. HCCLA members volunteered at
the Landscape & Clean-Up Day for the new home for a
Houston-area war veteran built by Homes for Our Troops
on June 25-26, 2010.
The new home was built for Naval Petty Officer-Anthony
Thompson and his family, including his young son, AJ.
Thompson was on his second deployment to Iraq with the
2nd Battalion, 7th Marines Fox Company 3rd Platoon near
FaI\ujah, when a suicide bomber detonated an explosive
under an overpass where Thompson and his Marines had
taken up post on April 20, 2007. During recovery efforts
Anthony was found unresponsive on a pile of concrete
rubble.
After being transported to three separate Battalion Aid
Stations, Petty Officer Thompson was finally stabilized for
transport to Landstuhl, Germany. As a result of the blast he
suffered a Traumatic Brain Injury, an incomplete spinal cord
injury and a punctured right lung.
Before his life-altering injuries, Anthony enjoyed playing
and watching football and baseball, bowling, going to the
movies, and listening to music. His wife, Ivonne, believes
that Anthony knows the support that surrounds them. She
says that having a home that the family can come home to
together is "a dream come true." [A video on Thompson and
his family, as well as photos of the completed new home, can be
seen at: www.homesforourtroops.org/thompson.]
ABOUT
Homaslor Our Troops:
The American Institute of Philanthropy, one of the country's
premier charity watchdog organizations, includes Homes
for Our Troops in their "Top-Rated Veterans & Military
Charities" listing. Homes for Our Troops, a national
non-profit, non-partisan 50 I (c)(3) organization was founded
in 2004. The organization is strongly committed to helping
those who have selflessly given to our country and have
returned home with serious disabilities and injuries since
September 11, 2001.
Homes for Our Troops assist severely injured Servicemen
and Servicewomen and their immediate families by raising
donations of money, building materials and professional
labor and to coordinate the process of building a home that
provides maximum freedom of movement and the ability to
live more independently.
The homes provided by Homes for Our Troops are given at
NO COST to the Veterans they serve. [ Note: An eligible
Veteran or service member may receive a Veterans
Administration Specially Adapted Housing Grant up to a
maximum amount of$63,780. Homes for Our Troops'
assistance covers all costs over and above this grant and
works closely with the VA to ensure that when resources are
combined, the home is provided at no cost to the recipient.]
THE DEFENDER
"TEEN LAW"
SUMMER PROGRAM
The four-day "Teen law" summer program in 2010 in Houston at the
Family law Center and the Civil and Criminal courthouses was made
possible by HARRIS COUNTY CRIMINAL lAWYERS ASSOCIATION,
in conjunction with the Houston Young lawyers Association. HYLA
covered the Family and Civil courthouse duties (July 14 and 16), while
the focus for HCClA efforts was the two days spent by the area high
students at the Criminal courthouse (July 20 and 21). Fourteen teens
from YES Prep-North Central and Southeast campuses (grades 10-12)
participated in the program each day (attendance was limited to fourteen
to allow the teens, if invited by the courtroom judge, to sit in the jury
box during courtroom observation timesl .
From 9 AM-2:20 PM daily, HCCLA volunteer attorneys escorted the teens
to courtroom observations and, when not in a courtroom, conducted in
the 7th-floor Attorney Ready room crash courses for the teens covering
the basics of criminal law, court procedures, and the rights of teenagers.
The students were responsible for their own transportation to and from
the courthouse each day, but HCCLA organized the agenda each day
and provided for the teens all materials, lunches, copies of "To Kill a
Mockingbird," segment ribbon awards, and "Teen Law" completion
medals.
SpeCial "THANK YOU" to the following Judges and their courtroom
staff for hosting the participating teens IYou made the experience
OUTSTANDING for the teens/l: Judge Jay Karahan-Co. Criminal Crt
nO.8, Judge Jan Krocker-184th, Judge Kevin Fine-l77th, and Judge
Shawna Reagin-176th (Judge Belinda Hill-230th, also invited the teens
to her courtroom, but time ran out for the teens during that session and
they did not make it to her courtroom). For more information on the
2010 summer program and the upcoming 2011 program, please send
an email towendymiller@comcast.net.
Thursday December 92010
3720RaymondStreet
HoustonTX77077
{offWashington & Heights}
UNDERWRITERS,
ArnoldS.Cohn.PC
CodarLawOffices
&smyer.Tritico& Rainey, LLP
Musick& Musick. LLP
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SPONSORS",
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AdrogueLaw Firm, PLLC
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DanielJ.Corrigan
PaulJ. Coselli
EricJ. Davis
Nicole DcBorde
Gordon Dce.
Dick DcGuerin
DannyEasterling
Michael Essmyer
Robb Fickman
TylerA. Flood
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TuekerGraves
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as oftimeofpriming
"Startingwith virtuallynoresourcesandnosupport,this
scrappylittlegroupofvolunteersandunderpaiddefenders
havechanged'thecapitalofcapitalpunishmenfinwaysno
onebelieved possible. Iencourageyou tosupportthelifesaving
workofGRACE. TheircompassionWId energywill
multiplytheimpactofyourgiftmanytimesover,"
acharity for the defenseofthe indigent -SisterHelenPrejean,ActivistandAuthorof
DeadMan Walking
Neveranother
sleepinglawyer.

Whatcanyoudotohelp?
Visitourwebsiteatwww.gracelaw.org.
IHE DEFENDER
..
;/
I ( A Cay to "
/ / about Juvenile 'Certificatiol1
brPatMcCann \
Ij , - '
Everyonceandawhile, sees beingdone (
( byone'sfriends andcolleagues,andonescratchesone's
wonderingwhyl certainthingisdonethiswayor ( /
'/ that. Sometimestheanswer.is simply"Thatis waythe
judgewantsit",sometimesthereisno answer.Sometimes
theansweristhatthe wedothingsiswrong. I
abouttopubliclyscratchmy,headandaskmycolleagues
who courtsapublicquestion,and
'I Iamtrulyasking,thatsomoone
wilLrespond,perhapsevenbeingkindenoughtopena
responseinthismagazineforthe nextissue..
!
Iamaskingaboutwhatappearsto bethecurrentHarris
County'practiceefrollingove}andneverfightingjuvenile
( certificationofyoung
"
a'ccusedoffendersasadultsinfelon):
/ r ,
matters. Ihavecometothisquestionhones,t1y, becauseI
havefollowed inthe this rubber-s tamping
attempttocertifyayoung.offenderfortrial iii
(
thefelonydistrictcourts.BythatImeanIhave
in'AFTERsuchadealwasdone, andaftertheyoung
offenderhadscreweduponcommunitysupervisionofa
deferredadjudication. Ihaveseentheusualtragicresults
insuchcases,whicharethattheoffender,o&nnomore
thansixteen,issen,tencedtotwentyor thirtyorforty'years
onthepriginalchargeofAggravatedRobbery,oneof .
thSmostcOI11IponsuchchargesforwhichtheStateseeks
certification. .)
\
Iamnotgoingto pretendtobeajuvenilelaw'expert.Iam
notboardcertifiedinthatarea. Idonotpracticeinthose\
HarrisCountycouds,soperhapsIam something.
J
ThegeneralexplanationI heard
courthousecoffeeshopfornotfightingsuchcertification
is infactthehopethattheclientw.ill get,duetotheir .
tenderyears,theexactoptionofdeferredImentioned,
.'
and
THE DEFENDER
J (
/ b
/ /thus keeptheirrecord getoutof
. detention,andavoidincarcerationinthe ofthe
TexasYouthCommission.Iam sorry,butifthatisthe
/ thenIhaveto challengethelogic,atleastasit
normallyworksout. .... (
,
/"
Mostteenagerswho felony&imesarenot) ikely (
gOIng to havetheskillstoc,ompletealongperiodof
communitysupervision,particularlyinHarrisCounty,
wheretherevocation/adjudicationrateisfarhigher
theaverageinthestate.Teenagershavetroublegettingto
schoolontime; letalonetakirigcaretofulfill-the
\ ofadultprpbation.The"prize"of gettinga
slimchance{ocompleteanoneroussupervisionisthat
one youngmen[thestatisticsareoverwhelming
thatthosecertifiediiiHarrisCountYareblack'orHispanic
males]to potentiallylife-long,sentencesfor
minorviotationsofthetermsoftheirsupervision.The
certaintyoftheirb,ringadjudicatedis.almosta'given.This
(
"Ptlze" ofpossible adjudicationisnot'inthe
client'sbestmterests,nomatterwhattheyortheirparents
mayask. J"' of' /" f'./'..
("> ! / . -
Thesenearlyautomaticcertificationsalsotakeplace
(
despitesignificantevidenceofmentalhealthproblems
withmanyoftheseyoungmen.Theseproblemsare /
usuallydocumentedin theverysamepsychological
evaluationsmandatedbythecourts'foreveryjuvenile!
Thatmeansthattheyareorshouldbeavailabletothe
attorneysonthecases.UndertheFam!lyCodeprovisions
applicabletocertificittion,suchmentalhealthconditidnS).
aresupppsedtopreventcertificationandtransferto the
adultsystem.Oftensomeover:workedcontract
'psycbologistthatdoestheevaluationsfor
hasdetermined,despitethe. evidenceofanIQ ,
ofsixtyandthepresenceofhallucinations,thatthe
youngsteris"competenttobetransferred"toadult
criminalcourt; .
(
J ' . ) \
Nooneeverseemstofighttlleseassembly ".
assessments,orasksformore.timetocontestthe
.certification,orgetsareal ad litem .ifthe .
(parentsarenotprovidinganyhelptQ.contestthetransfer
toadultprison,..er,Imeantcourts,right.In felonycourts,
oncethevirtuallyinevitableadjudicationtakes\place,this
evidenceoftencomesto1light. It simplycomestolightfar
toolatetohavedonetheclientmuchgood.
I
/
/

Approximatelya hundredorsoyoungmeneachyearare
certifiedtostandtrialasadultsintheHarrisCounty
JuvenileCourts. Theseteenagersfacealmostcertain
adjudicationIFtheyobtaincommunitysupervision;
otherwisetheyfacelongstretchesinadultprisonsw}1ere
theyarelikelygoingtobepreyforolder,larger,more
violentpeople. Theirchancesofactuallychangingthe
courseoftheirlifeisvirtuallynil. IrecognizethatTYCis
theplaceanyone itwere,orthatanyonewishes ?
toseeanyyoungoffendersentthere. However,Juvenile
Probation, TYC,atleasthavesomeaspectsof their
programsthattry to, rehabilitateorretrain-educatethese
youngmefi. WeknowthatIDCJdoesnotaccomplish
that. Noristheremuchlikelihoodthatyouthfuloffenders
willhavetheirmentalproblemsgetadequateattention.
L I
BeforeanyonethjnksIamunqulyweep! aboutthis,letme
remindyoutheseyoungmen,whomighthavebecome
peacefulcitizensunderjuvenilesupervisionorinTYC,
...willgetoutofprisononevday.Theywillstillbequite I
young,angry, uneduca1fl.andvirtually
unemployable. >
- ) " .... . /
U ,
Iknowtheactofaskingthisquestionwillirritatethose
whodonotwishtoquesnbnthewaythingshavealways
workedorthosewhobelieveIamnGtqualifiedtoask /"
thesequestions.IdonotwishtohurtfeelingsbutIdonot

knowawaytoaskthiswithoutcausingsome
consternation. However,asmyfatheroncesaidtome. {
"son,ifyouneedlove,youshouldHavebeenafireman." I
hopethatmycolleagueswhopracticein juvenilecourts
willjointhis,debate, answerthesequestions; Whyare
weinsucharushtoputsomanyyoungjuvenilesonthe
fasttracktoprison? Whyaren'tthesecertificationcases
foughtmoreordebatedmoreinthejuvenilecourts?',
I
PatMcCannisapastpresidentofHCCLA. Heiscertifiedto
handledeathpenaltycasesin Texas,andhastaughtondeath
. /
penalty, appellatelaw,aniJ.criminalprocedureasanadjunct
professorathurgoodMarshallScliool9fLaw. Hehasserved
asaBoardmemberfortheFortBendCriminalDefenseLawyers
Appcigtion,andisChairoftheAdvisoryBoardfor. theFort
BendMentalHealthDefenders. .
OfficesofPatrickF. McCann I
909TexasAve,Ste. Houston,:Fexas 7"7002
.;J3-223-3805 ' /
J
I
I
/
/ ./
THE DEfENDER
Letters to the Editor 9
I sent my Christmas wish list to our judges two years ago.
Some of them are stiLi talking to me.
T9" lJI'W 'FtAtwtJ J t./:
First, let me say I am a big fan of all our Federal Judges!
The fact you are all appointed for life, has nothing to do
with it!!! Seriously, 1like the fact that in federal court we
are not saddled with the ugly partisan politics that we
find in state court.
But, I still have a Christmas wish of you: How about
allowing lawyer voir dire?
On a misdemeanor OWl with a maximum punishment of
six months, a county court will give me 30 minutes to
voir dire. On a federal fraud case, where my client is
looking at 10 years without parole, I get no voir dire.
I know federal law allows this, but is this really fair?
Potential jurors are intimidated by federal court.
When a federal judge asks questions, potential jurors
lUlderstandably tend to be mostly quiet or agreeable.
Even the nicest Federal Judge can be intimidating to a
potential juror, simply by virtue of his or her position.
Maybe it's the robe, I don't know.
1do know that allowing me one measly hour of voir dire
...ttb1ere is so much at stake, (particularly when the
QitltmneIlt has spent months or years investigating),
hardly bring the wheels ofjustice to a halt. So, for
.lUI.ICIi3. my wish is for you to consider allowing
IRWV f"r voir dire.
T9" lJl'W ffiAtt;
I know you all, and know that while we have our .......1.;+1..'....-
differences, you are in my opinion well-intentioned. I
know that being a state judge must be very difficult. 1
would not want the job. I once told my friend, Judge
Caprice Cosper, "It must be very hard to be fair ... ALL
DAY LONG!"
You may recognize some of these Christmas Wishes;
that's because they were on my 2008 Christmas Wish
List. I am hoping they will not still be on my 2012
Christmas Wish List.
1. Grant Pre-Trial Release Bonds
This issue came up during our recent election and is
finally getting the attention it deserves. I again urge our
District Court judges to grant PTR bonds to non-violent
first offenders, particularly on state jail felonies like small
possession cases. We are exporting pre-trial detainees,
chained humans, to Louisiana. Granting PTR bonds is
fair and it will help solve the problem ofjail
over-crowding and save the county hundreds of
thousands of dollars.
In County Court, please stop the dismal practice of
denying PTR bonds to poor people, thereby keeping these
same poor people in jail on misdemeanors.
A presumptively innocent person, charged with a
non-violent misdemeanor, should not have to stay in jail
because they are poor. If you deny a PTR bond to a
person on a misdemeanor, we all know the "Hobson'
choice" they will face. They will be told, "You can plead
guilty today and get out in 30 days, or you can reset your
cbOose're plead than to fight their
.......... nvr They plead guilty to get outofjail. They
to secure their liberty. My wish is for all
Courts to stop this insidious practice. When you
poor people PTR bonds and then an hour later
their guilty pleas (all of whom are represented by
or maybe two lawyers) is justice really being served?
Stop the Plea MUI in County Court
My wish is to stop taking mass pleas from a chain of
defendants, most ofwhom just met their lawyers that
morning, on the first setting in court. Your Federal
Brothers and Sisters might be shocked by the "Plea Mill"
at 1201 Franklin. What effective investigation has been
ne for these indigent folks? Are they really pleading
guilty because they are, or do they just want out ofjail?
Federal Judges and some of our more distinguished state
judges, take guilty pleas very seriously. They are all on
the record. The judges ask detailed questions to ascertain
whether the defendant has received effective assistance of
counsel. There is no such inquiry when our County Courts
accept mass pleas of guilty each day. If the defendants
were asked how many times did you meet with your
lawyer? The answer would most often be "Once today,
for 5-10 minutes" or even "Who is my lawyer?"
A Federal Judge would rightfully reject such a plea; so
sbouldyou.
3. Stop Ex Parte Communications with the ADA
My wish is that State and County Court judges would stop
long standing practice ofex parte communications
the Assistant District Attorneys assigned to their
-""'II"'.Itis not fair. Could you imagine the outrage that
occur on a civil case iflawyers from one fmn were
-given non-stop ex parte access to the judge? Sometimes
the communication is simply about which trial might go
first, but tlrls gives the prosecutor the advantage of
owing which toprepare and gives the appearance of
that we should all seek to avoid.
4. PJI)' AppointedLawyersfor Their Work
My wish is that State and County juages would
arbitrarily cut vouchers for court appointed
Arbitrarily cutting their vouchers serves only to
other good lawyers from participating in the court
appointed system. Lawyers must be reasonably
compensated for their work. If we think there are too
many court settings .. .. well, see wish #5.
5. Justice is Not Measured by the Size ofYour Docket
My wish is that judges stop worrying so much about the
size of their dockets. Please remind your Colleagues to
care more about the quality ofjustice in their court and
less about the size of their docket; their place in history
will depend far more on the former rather than the later.
Please, consider all of the above as simply one lawyer' s
Christmas Wishes on how to make the Criminal Justice
System a better system. I mean no offense by my
suggestions. and I make them in good faith in the hope
that someone out there with a robe on will be less
affronted and more inspired. We must lean toward the
future if we are ever to get there.
Robb Fickman is a past president and current board
member ofHCCLA with 27 years ofexperience zealously
defending people charged with criminal offenses in state
and federal court. He is reputed to have invented the
Molotov cocktail in a former life.
rfickman@yahoo.com I 713-655-7400
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With its annual Fall Picnic, the Harris County
Criminal Lawyers Association proves to be a
progressive organization. "I remember when our
events used to be in the banquet room at the
Holiday Inn," said attendee Mark Bennett. "Yeah,
and it would just be the guys with their dates,"
said Jen as she helped the kids to rainbow bowls
of Dippin' Dots ice cream. We've come a long
way, baby.
Our job sets us apart from all others. Criminal
defense is meaningful and rewarding - but it
is also controversial, and it is definitely not PG
rated. With the Fall Picnic, we set out to generate
good will and unity. Welcoming families and
friends with open arms and creating some good
wholesome fun nicely balances out the radical
aspect of our profession. At heart, the nature
of our group is to be supremely generous and
compassionate, particularly for the less fortunate.
At the Fall Picnic, our members bestowed
considerable donations on the Gulf Region
Advocacy Center (GRACE), a Houston based
charity providing high quality capital defense
services, and Friends of BARC, a non-profit
organization rescuing innocent animals from
capital punishment at the Houston pound. Todd
Dupont graciously donated a brand new
O'Connors Criminal Codes and his book, Crimes
and Consequences, to the highest bidder. Thanks
to Robert Pelton for his generosity as he topped
the charts in bids.
With over 200 members and friends in
attendance, criminal defense lawyers overran the
Downtown Aquarium on October 24th. We pet
stingrays and watched white tigers bat pumpkins
around like balls. We took a train under water
with the sharks and sawall of downtown from the
top of the ferris wheel. For this, we are all
stronger and happier.
c
Since moving to Texas 20 years ago, I have gradually
taken up hunting. Aside from providing a great way
to spend time outdoors and forget the problems at the
office, this hobby has occasionally provided some
food for the holidays and good times with friends. I
will confess, however, that when I started doing this
I was terrible. Over the years, through pointers from
friends, one of whom was Tucker, a fine sportsman
and an avid shooter. I have progressed from being a
true tenderfoot to actually being a mild threat to an
unwary deer, provided it was distracted and taking
medication from a feeder. Even a few slow and
straight flying ducks have wound up in my stew pot.
One thing both Tucker and I have agreed upon over
many conversations is that hunting can teach much to
criminal defense lawyers. This article is an attempt to
distill a few principles that apply to both good hunters
and good lawyers. Any mistakes are mine, and frankly
any wisdom is Tucker's, who truly distilled these
thoughts into a usable format.
Good hunters, like good lawyers,
.are quiet observers.
Would agood' hunter bririg a Blackberry or an iPhone
to the tree stand? Probably not, and therein lies a good
lesson for the novice lawyer. Put down your smart
phone in court for a moment. Don't lie and pretend
you are not texting while the bailiff or the judge is
busy.
Now.. .look around. Which ADA is in a bad mood?
Observe your surroundings. Is the judge irritated and
sentencing a defendant with a case eerily similar to
yours to a long term of years? Listen. What is the
trial case load like for this court? Look. Is the court
probation officer saying something tq another attorney
about what rehab programs this court prefers? Watch.
Is the bailiff trying to be kind to an accused's family
member? These are things we all need to know, and
frankly given our busy dockets and time pressures often
do not pay attention to. Try this just once in an unfamiliar
court, or even a court you think you know well, and I
promise it will be worth the fifteen minutes you will be
unable to answer email.
Good hunters are patient
If your experiment above results in a situation where you
realize it is just a bad day to be in court...leave. Sign the
reset and do not attempt to stay - it is just not your day.
There will be another. Do not risk a terrible offer or a bad
result when you can return to the deer stand another day.
This also applies to dealing with Assistant District
Attorneys. These are an underpaid, often over-worked, and
harried lot. Realize that they have good and bad days, may
be following policies that they do not agree with, and may
not have had time to actually examine your case. Do you
want to approach them on unfavorable ground, where the
shot conditions are bad? Or do you want to pick a better
spot, where the shot is clear and the wind is right, say, at
their office over a cup of coffee? When you read a case
file, do you know when you are going to need a bit more
investigation to convince the ADA that your case is much
better than they realize? Be the patient hunter, and do not
fall victim to wanting to get this matter resolved. A good
result for your client is worth the wait, just as a good buck
or a fine meat-doe is worth the patience.
Good hunters pick their shots.
There is a moment in the day, usually right at dusk, when
the wind stills, the light is soft, and the insects buzz dies
way, when every sense in your body tells you a deer is
about to show. These moments happen in a trial , and
they happen in court every day, when the people are
ready to listen, you have the good reasons handy why
your case should be dismissed or reduced to a very small
misdemeanor, and .. that is when you, the good hunter,
should take your shot. If that moment is not there, then
do not shoot. Sometimes this is hard, and requires a great
deal of the patience mentioned in point # 2, but with
diligence, investigation, and a knowledge of the ground
and the winds, you will have a much better chance of
getting that deer .. or that dismissal.
By the way, there is a corollary to this - the prey has the
right to get away, if one is following the rules. The duck has
the right to be swifter than you, and the deer more clever.
Try reminding your friends of this when the situation
arises, whether on the defense side or the prosecution.
Good hunters practice.
There is a reason good hunters spend time at the shooting
range, and in walking the ground they will hunt, or in
reading about deer or other animals' habits. It helps.
Good hunters spend time honing skills so they can depend
on them when the time comes. Good lawyers do the
same. They spend time at CLE, reading the law, talking
with other lawyers who have hunted the same courtroom
ground, and learning the facts of their case so they can
depend on their knowledge and skills when the time
comes.
Good hunters are careful.
The things I watched good hunters do that impressed me
most was how deliberate they often are. These habits
make good sense around firearms, in bad weather, and
in unfamiliar ground. They make just as much sense in
court.
As an example, one of the better hunters I ever saw [and
I am still learning] would check and walk every part of
his lease several times a year, doing nothing other than
observing. He laid out his camp and his gear exactly the
same way every time he set up. I even knew which pocket
he kept a small first aid kit in [something he shared in
case an accident happened]. Good success comes from
good habits. This hunter was methodical even in the way
he field-dressed game, taking care to never spoil the meat
or endanger himself because of acting without thinking.
This has implications for us in so many ways. Do you
know enough about your client to truly recommend what
is best for him? Are you methodical about gathering the
information in your case? Are you careful to inform your
client fully about every possible down range complication
in your case, such as the implications for immigration
or enhancement ifhe takes a deal? Doctors take an oath
whose first precept is "Do no harm." When we slow down
and think for a moment about the things we do, it usually
works out better. Having done lots of thoughtless things I
later wished I had not, trust me on this one.
THE DEFENDER
TheDeerHunter byPatMcCannandTuckerGraves
Goodhuntersworkhardtopreservetheir
huntinggroundsandimprovethem.
Ever seen a hunter plant some oats on his lease for the
next season? Or remove some brush that could be a source
of potential fire problems? Or join a hunting group, like
Ducks Unlimited, to be certain his voice is heard with the
legislature? Lawyers, like hunters, need to preserve and
improve the places we hunt, which means COUltS.
It means that , yes, we should join professional
organizations. We should work with the legislature and
the state bar to improve how we do things. We should
treat judges and adversaries with respect and try to gi ve
them the tools they need to help us. Plant some oats. You
may be surprised at the results.
Goodhuntersareteachers.
I would never have gotten a duck or a deer without
someone to teach me. [I am fairly certain that some of the
folks who tried were pretty frustrated with me most days] I
would never have gotten a "not guilty" verdict or a reversal
or a good plea or a dismissal without someone to teach
me. When you get those things, you have an obligation to
pay them forward. Give a pointer to another lawyer. Tell
someone what the court they are heading into is like. Be a
mentor. Share what you know, whether at a CLE, or over
coffee at the courthouse, or a beer after work.
Goodhuntersknowthatlastseason'strophies
won'thelpyou thisseason.
Trophies are great for memories and offer teaching
moments. They do not move tomorrow's cases. They are
proof of past success, but not of today's efforts. Trophies do
not make a hunter - work, patience, practice, and hunting
make a hunter. Hunters hunt. Talkers brag about trophies.
Goodhuntersarealwaystryingto learnandtry
newthingsthatmaywork.
This seems counter-intuitive to being careful , but it is not.
Good hunters regularly test and evaluate new gear, try
new places to shoot from, or apply a friend's suggestion
to improve their shooting, or new recipes for cooking and
enjoying the fruits of their hunting. [Cooking up a new
recipe for deer tender loins for my family was one of the
ni cest hunting moments I have had.] What works is kept,
what does not is ruthlessly discarded, as it should be.
Each good hunter, like each good lawyer, is a constant
THE DEFENDER
laboratory for their own improvement. We should not fear
new things, we just should evaluate them in the tough
laboratory of reality that we all work within.
Goodhuntersarehumblebutconfident
A realistic tempering of one's view of one's own ski II is a
nice thing to see in anyone, hunter, fisherman, or Lawyer.
One should know what one knows, and realize that one
does not always know everything. [Life, a judge, or a
duck are often happy to remind the hunter-lawyer that
this is true.] Never think you know too much to learn, or
cannot learn enough to do something competently. Lack
of confidence paralyzes, and lack of humility leads one
to do stupid things. Both can be disastrous. Neither one
is a way to hunt, or to lawyer.
Good hunting!
Patrick F. McCann
Criminal Defense Attorney
Law Offices ofPatrick F. McCann
909 Texas Ave, Ste. 205
Houston, Texas 77002
713-223-3805
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In this edition of Investigator's Comer, I want to address
E-Discovery and tips and tricks to a successful search.
I also wanted to update you on regarding the presentation
to the District Judges. All Judges were present except for
two. The overaIl presentation was a success as it related to
appointed cases and investigator's expenses. Questions were
raised on both sides of the aisle and the process will be a
"work in progress."
I want to personally thank all the judges for their input and
willingness to work through a difficult "Hot Topic" position,
Indigent Defense.
E-DiSCOVERY
Choosing the right keywords during the processing stage
of e-discovery means a greater chance of finding target
documents, thereby reducing review time. Many attorneys
have had the experience of sending what they thought was
a comprehensive and specific list to a vendor and receiving
thousands of irrelevant documents in return.
In this article, with the assistance of Avansic
(www.avansic.com). are tips and tricks to crafting a search
term list that can help instead of hurt.
Knowing a little bit about how computers name files and how
automated programs "search" for documents can empower
attorneys to make effective keyword lists.
1
Use "wildcards" to your advantage - a wildcard,
commonly represented by a "*,, symbol, tells the
computer "any character or characters can be here." For
instance, if you're looking for singular and plural instances
of the word, you can search for "dog*" and the computer will
return all hits with "dog", "dogs", "dogged" and "doghouse."
Careful use of the wildcard can allow the simultaneous search
for multiple tenses, plural words, and sometimes misspellings.
2
Short words and single characters are not your friend.
Many e-discovery products won't even index words of
less than 3 characters and often don't index the most common
words such as " the", "any", and "because". Even if the short
word is indexed, the chance of getting junk results is much
higher for short words. If you have to search for a very short
word or abbreviation, consider pairing it with another word
that generally appears in the same document or ask that the
abbreviation be searched for in a case sensitive manner.
3
Phrases - The more unique and contextual the search
terms, the better the results. Combined with the use of
wildcards as mentioned above, using phrases will give much
more specific results than each word searched separately. Most
e-discovery programs also have a "within" feature , where it
can be specified to return all instances ofa word when it occurs
within several words or characters of another keyword. For
instance, a search for "quick" within two of "fox" would return
a hit on the phrase "the quick brown fox" but would not return
"the quick sand".
4
Tenses - For words where wildcards may not work
on various tenses, fuzzy searching can be utilized.
Fuzzy searching uses both a dictionary of common tenses and
misspellings as well as an algorithm to determine words that
are "near" to the word being sought. For example, a fuzzy
search for "receive" would find "receive". A search for "find"
would locate "found." Fuzzy searching can be powerful, but
should be used in moderation as it can provide false positive
results .
5
De-NISTing (or NSRLing) - This process is also known
as "known file filtering" and compares an e-discovery
set against a list of known files kept by the National Software
Reference Library. It removes common operating system files
in order to reduce a data set, but should be used thoughtfully
since the presence of certain known files may be relevant
to a case. For example, the installation of a remote desktop
program might be important if the case involves a theft of
intellectual property from a terminated employee, but that
program information might be removed from the set during
de-NISTing.
Any expert e-discovery vendor will be happy to consult with
you regarding keyword lists. Those with significant experience
with e-discovery processing tools know the ins and outs of
those programs and can refine your concepts, phrases, and
words in order to produce the most relevant data set. In the
end, a refined data set will take less time and money to review,
leading to lower e-discovery and overall litigation costs.
Jim Willis
Benken & Associates - Professional Investigative Services
1214 Heights I Houston, Texas 77008
(0) 713-223-4051 I (F) 713-223-4052 I (C) 832-256-9741
JWillisPI@aol.com
THE DEFENDER @
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