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SPRING 2009
HARRIS COUNTY CRIMINAL LAWYERS' ASSOCIATION
GREG HURST, KHOU-TV: "Would you implement a policy mandating that defense
attorneys be allowed to photocopy all prosecution documents
to which they have access, Judge Lykos?"
JUDGE LYKOS: "Yes. In fact, the office should copy it for them and that
way if there is any information in there that may endanger a witness it
can be redacted. But, yes, it should be supplied to thenl.
That's justice."
HURST: "Would you favor legislation requiring prosecutors to give defense
attorneys evidence that favors defendants as soon as
prosecutors receive it?"
JUDGE LYKOS: "That obligation already exists and why there
is an unwritten rule that you cannot turn over the offense
report to the defense is beyond me. It can be done
this minute. "
ftft/!td 
Sharon  L vine 
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Sta te  Sen . Jo hn  Wh itm 
TH 
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HYATT  11200 
vVlay  14, 1-009 
5:00PM  6:30  PM 
RECEPTION  DINNER 
TICKETS: 
S90  Members  &Guests  / S100  Non-Members, 
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CASH  BAR  BUSIN ESS/ COCK TAI L  VALET  PARK ING 
ATTIR E  AVAI LA BLE 
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Don  Lambri ght 
I1hJlAh,f J-t erlJeJ
 
JoAnne  Musi ck 
832.448.7748 
• • • • • • • • • • • • • • • • • • •
HCCLA   2008-2009 
PRESIDENT 
Publisher:  HCClA Distribution  650  copies  per  issue. 
Mark Bennett
Editor:  Kathryn M. Kase For  articles  and  other  editorial 
Ads  &Distribution:  JoAnne Musick &Christina Appelt contributions, contact  Kathryn  M. Kase
PRESIDENT  ELECT 
JoAnne Musick
Design  &layout:  lim b Design at  713.222.7788.  To  place  an  ad , call 
www.limbdesign.com
JoAnne  Musick  at  832.448.1148
VICE  PRESIDENT 
Nicole DeBorde
SECRETARY 
T. B. Todd Dupont II
TREASURER 
Steven H. Halpert
PAST  PRESIDENT 
Patrick f. McConn
BOARD  OF  DIRECTORS 
Stoci Biggar
2 ·. . . . . . . . . . . . . . . . . . From  the  President
David Cunningham
By Mark Bennett
Ty ler flood
Tucker Groves
Mark Hochglaube
Randall Kollinen
3
• • • • • • • • • • • • • • • • • • •
Winning  Warriors 
Joni Maselli
Marjorie Meyers
David Mitcham
Roland MooreII I
9 · . . . . . . . . . . . . . . . . . . The  Quest  to  ErnpanelMore  Diverse
Earl D. Musick
Grand  Juries
John Porras
By Hon. Shawna L. Reagin
Carmen Roe
Amanda Webb
O. Tote Williams
10 ·.. . .. . . . . . .. . . . . . . Pretrial  Release  Bonds:  One  to  Put  the
Sarah v. Wood
Harris  County  Plea  Mill  Out  of  usiness 
PAST  PRESIDENTS 
By Robb Fickman
1971  2007 
C. Anthony fri loux
Stuart Kina rd 11 · . . . . . . . . . . . . . .. . . . Motion  &Proposed  Order  of  the  Month 
George Luquette By JoAnne Musick and W. Troy McKinney
Morvin O. Teague
Dick DeGuerin
W.B. House, Jr.
12 ·. . . . . . . . . . . . . . . . . . HCCLA  Documents
David R. Bires
at  Juvenile  ustice  Cen  er 
Woody Oensen
Will Gray
Edward A. Mol lett
13 Shaken  Baby  Syndrome
Carolyn Garcia
By L.T. "Butch" Bradt
Jock B. Zimmermann
Clyde Williams
Robert Pelton
19 · . . . . . . . . . . . . . . . . . . Changes  To  The  Administrative
Candelario Elizondo
License  Revocation  Rules
Allen C. Isbell
By Tyler Flood
David Mitcham
Jim E. Lavine
Rick Bross
Mary E. Conn
20
• • • • • • • • • • • • • • • • • • •
The  Association  Nurtures  Advocates  with  the 
Kent A. SchaPPer
2nd  Chair  Program 
By Sarah V. Wood
Don Cogdell
Ji mSkelton
George J. Pa rnham
Gar land D. MCinni s 22 · . . . . . . . . . . . . . . . . . . Fallen  Warriors 
Robert A. Moen
Lloyd Dliver
Donny Easterling
Wayne Hill
• • • • • • • • • • • • • • • • • • •  HCCLA  Gives  Back 25
Richard frankoPP
W. Troy MCKinney
Cynthia Henley
Stanl ey G. Schneider
Wendell A. Ddom, Jr. 26
• • • • • • • • • • • • • • • • • • •  HCCLA  Holiday  Party 
Robert J. fickman
AS HUMAN BEINGS, we have  a duty to leave  the world a  better place than we  found  it.  But, as  criminal defense 
lawyers,  what  we  do  often  amounts  to  little  more  than  sticking  another  finger  in  the  dike,  staving  off tyranny  for  one 
more  day.  Every  little  success  keeps  us  from  becoming  less  free,  but the  successes  that reverse  the  inexorable  growth  of 
governmental power are  few  and  far  between. 
So what can  we,  as  individuals  and  as  an  organization,  do 
in the courthouse to make the world a better place?  One thing 
that we  can  do  is  to  nurture  the  next  generation  of criminal 
defense  lawyers,  who  will  continue  the  struggle  when  we 
have  left the field . It can  be  hard  to make a living  as  a criminal 
defense lawyer,  and  the young lawyers who join  us  in  speaking 
up for  the damned need alI the help we  can  give  them. 
As individual  lawyers, we  can support the next generation 
by  hiring them, if we  are  in  a position to hire. We  can support 
them  by  giving  them  contract work. We  can  support them  by 
referring our table scraps to them - "If you can't afford to hire 
me,  you  might call  this  person, who's a good lawyer,  but less 
expensive  because she's building up her practice." 
Even  if we can't afford  to pay  them, and even  if alI of our 
business  is  appointed  so  that  we  can't  refer  cases  to  them, 
those ofus who have established practices can support the next 
generation  by  letting  them  sit  second  with  us  at  trial  and  by 
offering advice  and  mentorship. 
Independent DNA Consulting LLC
Need help  interpretating your DNA results? 
Can assist in All trial preparations 
Murder. sexual assault. hit & run. & more 
Experience in DNA. crime scene. & serology 
angelafross@cox.net
,225/ 936-9377 
Criminal  defense  lawyers  have  always  provided  younger 
lawyers  opportunities  to  get  into  court  and  watch  trials 
from  close-up for  no money.  My first  jury uial experience was 
sitting second with Clyde Wtlliams on a murder trial.  HCCLA 
has,  through  the  listserv,  made  it  easier  for  the  lawyers  who 
offer experience  and  the  lawyers who want experience  to find 
each other. And now, through the new Second-Chair Program, 
HCCLA has  created a more formal  way  to partner the lawyers 
who need  experience with  the lawyers who have  experience to 
share. 
ALready,  The Second  Chair Program  has  borne  fruit  with 
notable  successes  on  participants'  cases.  If you  are  a  newer 
criminal  defense lawyer, whether you've come to the job from 
law  school,  from  the  DA's  Office,  or  from  some  other  area 
of the  law,  don't  be  shy.  If you're  an  older  criminal  defense 
lawyer, don't be  modest about your experience. 
Join  The  Second  Chair Program,  and  make  the  world  a 
better place  for  generations to come. 
 
Introduces 
CHAR BAR 
·:·Shoe Shine 
·:·Custom Suits 
·:·Two  Full  Service  Bars 
·:·Repairs & Alterations 
305 Travis @ Congress  ·Hull Service Tailor since 1937
713.222.8177 
713.227.5867 
THE DEFENDER * 2
+
DEBORAH SUMMERS obtained post-conviction DNA testing
and the exoneration of Ricardo Rachell, who in 2003
was convicted of the sexual assault of a child in a case that
highlights the fallibility of eyewitness identification and the
continuing failures of the Houston Police Department with
regard to DNA evidence. Although DNA was collected
from the then-8-year-old victim and fi'om Rachell at the
time of his arrest, the evidence was not tested until five
years after Rachell was convicted and sentenced to 40 years
in state prison, and only after it was sought by Deborah.
The Harris County District Attorney has agreed to support
a "full pardon" for Rachell - nomenclature even we find
difficult to explain given that he never should have been
found guilty of anything.
+
r
Capping an II-year fight for justice, BRIAN WICE persuaded
the United States Court of Appeals for the 5th Circuit to
order a new punishment trial for Gaylon George Walbey,
Jr., who was convicted and sentenced to death in Galveston
County in 1994. See Walbey v. Quarterman) No. 08-70007,
2009 U.S. App. LEXIS 942 (5th Cir. Jan. 19,2009). The
court ruled that Walbey was entitled to a new punishment
hearing because his appointed lawyer (now a Galveston
County ADA) rendered ineffective assistance by failing
to investigate and present a "wealth" of mitigating evidence
about Walbey's "nightmarish" childhood. Brian credits MIKE
CHARLTON, his co-counsel in state court, and PAUL MANSUR,
his co-counsel in federal court, for contributing to this
magnificent victory.
+
One day before their client was to be put to death,
JAMES RmlNG and PHILIP HilDER won an incredible
stay-of-execution from a panel of the 5
th
Circuit
(Jones, Wiener, and DeMoss) on behalf of Larry
Swearingen. This was Swearingen's second stay of
execution in a case that has raised many questions
about whether the State has the right man. (Based
on the newly discovered forensic evidence, we
think the answer is: "No.")
THE  DEFENDER  "*  4 
SCOTT PAWGAN ,1I1d BILL HABERN, \\'ith LO-C()Unst:i RICHARD
GLADDEN (of Denton), secured a big yictnry against the Texas
of Pardons and Parole and the Texas Dep,lrtment of
CriminJI Justice Parole Di\'isiorl that cOlild change P,lrole
«lIldiriom tilr sex offenders affcct the mJnner in which
the Board proceeds in imposing parole conditions, Bill, Scott,
and Ridw'd obtained injunctin: and decbrJtory rciid- after a
U ,S. District Court in Austin f<'>L1nd that Special Condition
X (sex otTcnder parole conditions) was
applied to their client. The court ruled that an indiyidual on
parole fill' a non-sex oftensc, but \\'ho has a prior sex offense
con"iction under Texas la\\', has due process right to notice
,lIld an opportunity to be heard bdixc treatment and orlll:r sex
oftcnder conditions of parole imposed.
CHRIS DOWNEY persuaded not one, but t\\'o ( !) prosecllting
offices to drop all charges against a fC)fJl1er HPD otTlcer alleged
to ha"e committed t\\'o bank robbelies ill i\iontgol11ery Count\·
and one in Harris County in 2007. The Clses went   after
prosecutors im'estigated the tixl1ler officer's alibi, which would
ha\'C included testil1lol1\' trom a ti.:deral air n1.lrsld.
LISA BENGE and MARY SAMAAN, by SARAH WOODS' t:lbulous
bliding, \Von suppression in the 221 st Distlict Court in
County, The C,lse, llIade by a canine cop who
snitlcd ti'OI1t door, innlked a husb,lIld and \\iti.: charged
with possession of l11arijuam and cocaine, two count'> of child
end,mgefment, and engaging in money laundeling. The
O\·tTl.ealous oliginally charged the with
15 counts of ti.:lon-in-possessioll of a firearm, even though he
wasn't eyell a fdoll. And no\\', thanks to this legal tIio, neither
he nor his \\ 'iti.: \\ill be,
We\'e he,lrd that it's ne"er too early to begin defending the
client, TODD OVERSTREET, BRIAN BENKEN and PAULA GOODHEART
proved the mit \\"hen they cOl1\ineed a Hartis County grand
jury not to indict a mother who was t:King C1iminal charges tur
ICl\'ing her in a hot car.
The client? An undocumented immigrant \\'ith
hold who wanted to go pm Sf. The ch,lrge?
Aggra"ated Sexual with a Deadly Weapon (knivcs).
The DNA. The lawyer? GREG GLADDEN (the cliem's
tilurth). The outcome? Not Guilty after a th'e-day trial in
thc 18Sth District Court. The value of such a victory
odds? Price\t:ss.
Sometimes, it's all in knowing who to ask tur assistance -
and then taking that ad"ice. MONIOUE SPARKS \\'on dismiss,ll
of two (!) assault cases in County Criminal COl1l't-at- L1W
No, 12, but modestly shared credit ",ith SAM ADAMO, who
helped her prepare the cases tClr
In her \'Cry first trial as a criminal deknse lawyer, BONNIE
ROGERS defended a client on DvVI charges in County
Criminal Court-at- Ll\v No, 5 and, in the words of
Christopher L. Carlson, he.1rd those two words that used
to make her sad as a prosecutor.
Risking a speeding ticket for his   JIM MEDLEY recei\'ed
,1 12-minute Guilty on a DWI in County Criminal
CourhH-La\\' No. 13. for those keeping score home,
this \Vas a no-breath-test, no-accident, and no-\'ideo
case.
WESLEY CORDOVA ,He the prosecution's lunch in tl:lonv
tampcring-\\'ith-C\'idence case in the 178th District
Court. The ddendant, a habitual offender who rejected
a 25-year pica, was to have tampered with the
c"idenct: - - by swallowing same when stopped
by the police, The jury teasted on Wes' deknse ,1nd sen'ed
up an acquittal.
THE DEFENDER "'" 5
+
scon PAWGAN won yet another parole revocation hearing,
this time in Walker County on behalf of a 70-year-old sex
offender who, if revoked, faced spending the rest of his life
in prison. The client was alleged to have had three instances
of improper contact with a child under the age of 10, but
Scott was able to show at the hearing that the contact either
did not occur or was de minimus. The client was released
after the Board of Pardons and Parole issued its findings .
+
TERRI ZIMMERMAN nipped injustice in the bud when she won
a grand jury no bill on behalf of a client accused of trying
to disarm a police officer. In fact, the client - an active-
duty Marine - merely had bumped into said officer at the
airport after flying home for Thanksgiving. Terri's excellent
preparation enabled the client to testify before the grand
jury, which then voted the no bill.
+
Proving that the Constitution is alive and well, NED BARNEn
and AMANDA WEBB secured a dismissal upon winning a motion
to suppress in a DWI case. The police promised their client
a ride home ifhe took and passed the breath test or an arrest
if he refused the test. (Apparently, there was a third option
that went unmentioned - be arrested if you flunk the breath
test - that resulted in the client's detention.) After the officer
admitted under oath that he had made these promises and
the client relied on them, Judge Margaret Harris in County
Criminal Court-at-Law No.5 suppressed the test results .
+
Not Guilty rang out in the 221st District Court, where JUDY
SHIELDS defended a client accused offelony theft at Wal- Mart .
The client already had one state-jail felony conviction for
theft, and undoubtedly was overjoyed by Judy's advocacy.
+
ARNOLD S. COHN made the State say "Uncle!" in a family violence
case involving a stepson and stepfather in County Criminal
Court-at-Law No. 13. The State heard just half of Arnold's
cross-examination before filing a motion to dismiss.
Of his performance, Arnold said: "Not bad for a guy
who's been absent for a while ." We say: "Share that cross-
examination with us. Please!"
+
CHRISTOPHER L. CARLSON and JOHN FLOYD have been
fighting - and winning - a pitched battle on behalf of
a client who has been charged in four different sexual
crime cases. Christopher and John obtained acquittal
numero uno back in October 2008 . In January in the
263rd District Court, they obtained a second acquittal
involving a different complaining witness - and despite
the admission of extraneous offenses over the defense's
Rule 403 and 404(b) objections. The prosecutor sought
to admit yet another extraneous offense and, when the
court sustained the defense objection, she asked the
witness if she was aware that another victim still thought
about what the client allegedly had done to her. Chris
and John's jurors weren't fools, though, and acquitted
after seven hours of deliberations.
+
.IED SILVERMAN'S defense of a DWI charge was so vigorous
that Judge Richardson told the State to "work it out"
(meaning: dismiss) .
+
Did you lose your pencil, too, Officer? JED SILVERMAN and
HENRY NGUYEN successfully defended an alleged prostitute by
focusing on the inconsistencies between the arresting officer's
testimony, the police report, and common sense. Rand Mintzer
reported that the case began falling apart when the arresting
officer claimed on cross that the accused must have eaten the
condom - even though this was mentioned nowhere in his
report and the officer didn't call 911 to advise that the alleged
prostitute was choking on the wrapper.
+
Earl Musick says, "Only one thing can happen with a
guilty plea: the defendant is found guilty. Set it for trial
and all kinds of good things can happen." LISA BENGE
proved Earl correct when she won dismissal of a DWI
+
SAM CAMMACK obtained a Not Guilty in the 351st District
charge on the day she walked into court to pick the jury.
CASIE GOTRO had a similar experience when a burglary-of-a-
building charge was dismissed the day before it was to go
to trial. PAUL KENNEDY also waved bye-bye to a DWI case
(.139/.15, video, minor accident) that he went to try in
County Criminal Court-at-Law No. 10. As Paul relates,
after President Obama was sworn in, Judge Sherman Ross
decided he wanted to hear the case, but the State ended
up dismissing because the officer who "wheeled" the client
wasn't available.
+
RICK OLIVER walked a client in a DWI trial in County
Criminal Court-at-Law No. 15. And, on the very same
day, TYLER flOOD walked a client in a DWI trial in County
Criminal Court-at-Law No.9. Said Tyler, "We need to keep
encouraging trials. Set 'em. Try 'em."
+
TYLER flOOD subsequently demonstrated the wisdom of his
advice in County Criminal Court-at-Law No. 14, where
he won an acquittal on behalf of a diabetic client who had
admitted that he had been out drinking for Cinco de Mayo.
Then, the arresting officer reported, the client threw up all
over himself. We suspect that's what the State felt like doing
when Tyler got that two-word verdict.
+
DEBORAH SUMMERS' decision to go to trial in two cases in the
182
nd
District Court benefitted two clients. The first case
was a sexual assault where the defendant's age at the time of
the offense became an issue. After one witness, the client pled
out to a reduced charge of indecency by exposure and for the
minimum sentence. The second case involved a husband and
wife who decided to litigate their marital troubles in criminal
court. Although the case started as a felony, it ended in a
misdemeanor plea when the State's first two witnesses couldn't
(or wouldn't) abide by the Court's in limine ruling to not
mention the defendant's recent release from prison.
Court on behalf of a client charged with indecency with a
child. Jim Medley noted that Sam prevailed despite multiple
allegations and evidence of extraneous offenses.
+
BRETT PODOLSKY picked a jury for a DWI case, tore apart one
of the arresting officers on cross-examination, and returned
to the courtroom following lunch to find a nolle prosequi
sitting on the judge's bench,
+
The client was charged with aggravated sexual assault of a
disabled child, Judge Joan Campbell presided, and PAm
SEGURA obtained a spectacular Not Guilty from the jury.
+
ANTHONY SEGURA and DAVID HUNTER heard those two wonderful
words in a DWI case they tried in County Court-at-Law
No.1 in Fort Bend County.
+
In a place far, far away - okay, close to Dallas - NORM
SILVERMAN obtained a mistrial on behalf of a client accused of
stealing vacuum cleaners. (Based on what follows, it seems
the State's case sucked.) During the trial even the judge
commented that the prosecution hadn't proven anything
and he felt a Class C misdemeanor coming on. The State
persisted. At closing, Norm pointed out that the State
had not subpoenaed certain witnesses. On rebuttal, the
prosecutor said that, if those witnesses were so important,
the defense could have subpoenaed them. Norm objected to
the prosecutor's effort to shift the burden of proof, moved
for a mistrial, and the rest is history.
+
The Second-Chair program paid dividends for first-chair
PAT MCCANN and his second-chair, MONIIlUE SPARKS, when
they got a Not True verdict in juvenile court on a car theft
case. (For more details, see Sarah V. Wood's story on The
Second Chair Program.)
THE  DEFENDER *:  8 
THEDEFENDER] SPRING 09
By Hon. Shawna L. Reagin
THE
to Empanel More Diverse Grand Juries
While campaigning for the district court bench, I learned that Harris County
grand juries were regarded with suspicion and distrust by various minority segments
of our community who felt especially disenfranchised. I also learned that correct
information about grand juries was sorely Jacking throughout the commwlity.
After I was sworn in as a judge, one of my first responsibilities was to prepare
to empanel a grand jury in early February. Due to the various steps involved
in putting together the grand juries, the process needed to begin no later than
January 15 or 16, two weeks into my initial term. Given the lack of time, I
decided to visit various community meetings that were happening prior to those
dates to spread the word about grand jury service and to leave applications for
attendees to fill out and send in. Two of those groups were the GLBT Caucus
and Tejano Democrats.
I a d   ~ s e d my audiences that I was seeking both grand jury comnlissioners and
grand jurors to add to the pool of available prospects. Like a1J judges, I wanted to
empanel a diverse grand jury that proportionately represented our community.
This is not an issue limited to the newly-elected. For almost 20 years, I have
watched judges struggle to find people of different races, gender and ethnicity
to serve on grand juries. The comnlitment required to attend two-day-per-week
sessions for three months makes it very difficult to identifY people other than the
affluent or the retired who can serve. If the three-to-five comnlissioners are all
of different race, gender, ethnicity and sexual orientation, and they pick grand
jurors who are like them, then would we not have the diverse grand jury we all
seek to achieve?
When applications were slow to arrive, in face of the rapidly approaching
deadlines, I then sent out an e-mail to a group of approximately 8,000 people
whose names were compiled by my friend Carl Whitmarsh. I again encouraged
folks to download applications for service and to submit them to the court.
Judge Randy Rolllike\vise contacted this list, and I have no doubt that the other
newly elected judges faced with empanelling grand juries engaged in sinliJar
tactics to gather applications. (CONTINUED ON PG.28)
THE DEFENDER * 9
---
Pretrial Release Bonds:
ONE WAY TO PUT THE HARRIS COUNTY PLEA MILL
By Robb Flckman
AT THE HARRIS COUNTY CRIMINAL JUSTICE CENTER WE HAVE A PLEA MILL IN FULL SWING.
IT'S NOT A NEW BUSINESS. OH NO, IT'S BEEN IN FULL OPERATION FOR A LONG TIME AND
PRODUCES POOR PEOPLE WITH UNDESERVED CRIMINAL RECORDS. IT'S ALSO A DISGRACE
AND IT NEEDS TO STOP. AND NOW IS THE TIME TO RENEW OUR EFFORTS TO CHANGE IT.
OIlTO't'
r BIISINESs
THE PLEAMILL OPERATESIN SIX EASY STEPS:
1  A  poor man - let's call  him  George - is  charged with  a 
non-violent crime. 
2  Because  George  is  poor,  he  cannot  afford  to  hire  a 
bondsman . 
3  Although  George  has  no  history  of violence  and  has 
lived  a  chunk  of  his  life  in  Houston,  he  sits  in  jail 
because  he  cannot make  bond. 
4  George goes to court and his lawyer conveys a Hobson's 
Choice of a plea  offer: plead guilty and  get out sooner, 
or fight  your case  and  stay in  jail  much  longer. 
The  next  day,  a  whole  new  set  of Georges  arri ves  and 
steps  one  through  six  are  repeated.  They  are  repeated  day 
after  day,  year  after  year,  and  produce  generations  of poor 
people  with  undeserved  criminal  records. 
Poor people should not be forced to plead guilty because 
they are  poor.  The  mill  as  it  currently operates  makes  poor 
people  plead  guilty  because  they cannot afford  to  languish 
in jail until  the system sets their case for a dispositive hearing 
or for  trial . 
The  Harris  County  plea  mill  is  contrary  to  the 
Constitution  because  it  coerces  pleas. We  violate  our  oath 
to  uphold  the  Constitution  by  our  active  participation  in 
the  mill  or  by  our silence  in  the  face  of it. 
I  can hear  the  indignant responses  from  all  the  parties. 
Assistant district attorneys may say,  "I just convey the offers; 
I  don't  make  them  take  the  plea."  Defense  lawyers  might 
say  the  same.  Judges  may  add,  "I just  accept  the  plea;  I 
don't force  them to  take  it ."  And  lawyers  in  the  courtroom 
might say,  "It's not my case;  I  don't make  them  take  those 
pleas." 
How  do  we  stop  this  gross  inequity?  First,  we  must 
acknowledge  the  mill's  existence  and  our  roles  in  it. 
I  understand  judicial worries about moving dockets,  but 
5  George pleads guilty, as  this  is  his quickest way out of 
jail.  Neither  innocence  nor  guilt  has  anything  to  do 
with  his  plea,  which  is  motivated  solely  by  his  desire 
to  get  out of jail  as  quickly  as  possible.  He  is  joined 
by  another  100  Georges,  all  pleading  guilty  on  the 
same  day. 
6  Because  the  plea  cases  are  off the  docket,  the  plea 
mill  is  operating smoothly. 
sacrificing  justice  in  the  name  of  expediency  is  wrong. 
Judges should  be  reminded:  When you  leave  the  bench, no 
one  will  remember  the  size  of your  docket,  but  they  will 
recall  whether  yours  was  a  just  court.  Judges,  if  the  mill 
operates  in  your  court,  it  is  not  a  just  court,  but  you  can 
change  that. 
There  is  a  simple  way  to  stop  the  mill  and  the  law 
provides  the  mechanism:  pretrial  release  bonds.  If lawyers 
would  seek  pretrial  release  bonds  and  judges  would  grant 
them,  the  mill  would  stop.  Poor  people  would  get  out  of 
jail, the county would spend less money housing non-violent 
defendants,  and  those  defendants  would  be  able  to  assist 
their  defense  lawyers  in  working  on  their  cases.  Mass  pleas 
(a  related  and  equally  unconstitutional  problem)  would 
diminish.  The  docket  might  not  move  as  fast ,  but  justice 
would  be  restored. 
And, most important, pleas would  be  based  on  the facts 
and  the  law, and  not on a poor person's desire  to get out of 
jail.  Using  liberty  as  bait  to  induce  a  plea,  without  regard 
to  the  facts  and  the  law,  is  not justice.  It is  a  perversion  of 
justice  and  it must  be  stopped. 
We  cannot delay,  we  cannot make  excuses; we  must act 
now to  restore justice and  to uphold  the Constitution. 
ROBll  FICKMAN  is  a  past  president  of HCCLA and  has  25  years  of experience  zealously  defending 
people  charged  with  criminal  offenses  ranging  from  shoplifting  to  murder.  He  is  reputed  to  have 
invented  the  Moltov cocktail  in  a former  life. 
THE DEFENDER'" 10
Motion AND  Proposed Order OF  THE  Month 
By  JoAnne  Musick  and  W.  Troy  McKinney 
MOTION FOR  RELEASE  ON PERSONAL BOND 
WRONGFULLY ACCUSED, the Defendant, moves this Honorable Court to grant a personal release bond in this
cause and in support would show:
I.
The Defendant is charged with the offense(s) of ____. The Defendant's bond(s) is/are currendy set at _ ___
II . 
Pursuant to Article 17.03 a magistrate may, in the magistrate's discretion, release the defendant on his personal bond
without sureties or other security. Tex. Code Crim. Proc. Ann. Art. 17.03.
The purpose of bail is to secure the presence of an accused upon trial of an accusation against him. It is not a revenue
measure intended to be a substitution for a fine, but is intended to secure the trial of the alleged offender rather than turn
his securities or those of his bondsman into a penalty. Trammel v. State) 529 S.W.2d 528,529-30 (Tex. Crim. App. 1975).
The amount of bond is a tool to guarantee the Defendant's presence in court and is not to be used as an instrument of
oppression. Ex Parte Vasquez) 558 S.W.2d 477 (Tex. Crim. App. 1977); Eggleston v. State) 917 S.W.2d 100 (Tex.App.-
San Antonio 1996, no pet.). The granting of a personal bond is proper under the facts of this case because the Defendant
is neither a flight risk nor a danger to society.
III. 
Because any personal bond requires the defendant to give a sworn oath obligating him to appear before the court,
this Court wiJJ be given the same assurances of appearance as if the Defendant were released on a surety bond. Tex. Code
Crim. Proc. Ann. Art . 17.04. Moreover, Defendant's financial obligation and commitment is the same whether he posts
bond through a surety or through this court granting release on his own recognizance. Not having to expend the funds to
pay a fee to a surety, however, releases those funds to Defendant to be applied to his defense.
IV. 
Defendant is not a flight risk or a danger to the community. He has lived in the local area for _ years. He has relatives who
also live the area: these include . Defendant has no prior criminal history [alternative language: some criminal history, but
nothing indicating that he poses a risk to the corrununity ]. Defendant is employed at , where he has worked for _ years.
Defendant has his own transportation, which he would use to appear in court as required. He completed __ years ofeducation.
WHEREFORE, the Defendant respectfully requests that this Honorable Court grant a personal bond in this case.
Respectfully Submitted,
Abel Counsel
Attorney for WrongfuUy Accused
OR DE R ON  MOTION  TO  SET  PERSONAL  BOND 
Before the court is the Defendant's Motion for Release on Personal Bond. After considering the motion, the response, the
e \ ~ d e n c e   and the arguments of the parties, it appears to the Court that the relief requested should be GRANTED.
It is therefore ORDERED that upon executing a personal bond in the amount of $ , Defendant shall be
released from custody conditioned that he appear before this court when scheduled and notified to do so.
SIGNED on this the _ day of _______, 2009.
Judge Presiding
JOANNE MUSICK is a name partner in Musick & W. TROY MCKINNEY is a name partner in Schneider
Musick, LLP, and is President- Elect of HCCLA & McKinney, PC, and is a past president of HCCLA.
THE  DEFENDER  * 11 
Continuing its quest to
remind public servants
and citizens of the
framework by which
justice IS pursued,
HCCLA on December
10, 2008, dedicated
framed copies of
Photo: Dena Fisher the Decl aration of
Murk Bennett speaks ut the dedicution Independence, U.S.
Constitution and Bill of Rights that the Association
donated to the Harris County Juvenile Justice Center.
The dedication, attended by U.S. Magistrate Calvin
Botley and many Association members, marked the hanging
of the documents. It also was the second time that HCCLA
had purchased and donated framed copies of these seminal
works to Harris County for posting in a courthouse.
The occasion featured remarks by HCCLA President
Mark Bennett, President-Elect JoAnne Musick and Past
President Robb Fickman.
"The first thing we swear to do as lawyers is to support
the U.S. Constitution," Fickman told those assembled.
"We are, pursuant to our oath, duty bound to defend the
Constitution, no matter what our role in the system."
Sharon Levine, then in the final stages of Hodgkin' s
Disease, was the best example of a lawyer who kept her
oath, he added. Had Levine not taken on Erik and Sean
Ibarra's criminal cases, Fickman said, there would have
been no civil lawsuit that resulted in the resignation of
District Attorney Chuck Rosenthal and the electoral defeat
of Sheriff Tommy Thomas.
Bennett's remarks focused on the irrevocable
connection between the Constitution and liberty.
"Our founders were remarkable for their zeal
for liberty," he said. "Instead of building palaces or
monuments of stone and brick, they enshrined liberty in
words, culminating in these three simple documents.
"There's no mention in these documents of docket
management . The words 'tough on crime' nowhere
appear. Yet modern public discourse is dominated by
such language. This is the language of fear.
"We face difficult times. In difficult times, people
cling to stability, to safety, and to nationalism. Freedom
can fall by the wayside ."
Musick revealed why prominent copies of our
founding documents need to be displayed at the
juvenile courthouse: because the United States Supreme
Court did not recognize that juveniles were entitled to
constitutional protection until 1967. See In re Gault,
387 U.S. 1 (1967).
"As a juvenile practitioner, I recognize how important
my role is within the juvenile system," Musick said . "As
lawyers we must not only advocate for our clients, we must
protect their rights . It is only through the protection of
each person's individual rights that we protect the collective
rights ofal!. We must continue to advocate for those rights
that have been either ignored or eroded."
THERE'S NO MENTION IN TH ESE DOCUMENTS OF DOCKET MANAGEMENT.
THE WORDS ' tough on crime' NOWHERE APPEAR.
YET MODERN PUBLIC DISCOURSE IS DOMINATED BY SUCH LANGUAGE.
THIS IS THE LANGUAGE OF FEAR. " - Mark Bennett
THE DEHnER 1<' 12
EVIDENTIARY CONSIDERATIONS IN A
a a
Syndrome" CASE'
One need look no further than Galveston's "Baby Grace"
prosecution to know that infants can be, and are, injured
by adults. But this paper does not seek to address those
cases where there has been an impact to the child's skull
or body. Instead, it addresses those cases where the child
is alleged to have been killed by "violent shaking" and no
impact can be shown to have occurred.
2
These are known
as "shaken baby syndrome" cases and, because prosecutors
depend heavily on expert scientific testimony in these cases,
they trigger serious evidentiary concerns.
For a full understanding of expert scientific testimony,
defense lawyers are advised to review a 1999 article
3
by
the Hon. Harvey Brown about Rule 702 of the Texas
Rules of Evidence. That paper addressed the admissibility
of expert witness testimony in general. This article has a
narrower focus and will address what Judge Brown called
the "methodological reliability" and the "foundational
reliability" gates to admissibility of medical testimony
regarding shaken baby syndrome. It also will address the
overlay of evidentiary Rule 403 considerations in the
presentation of the State's case.
If it is to be made at all, the diagnosis of shaken baby
syndrome (SBS) should always be made by exclusion, and
only made after a long list of differential diagnoses has
been ruled out. Unfortunately, it is almost always a spot
diagnosis.
The diagnostic criteria for SBS require the combination
of subdural hematoma, retinal hemorrhage, and cerebral
edema. In some cases, the presence of rib or long bone
fractures is also taken as a sign of abuse.
4
Shaking an infant
to the point of severe brain injury is usually associated in
the literature with the diagnosis referred to as the shaken
baby syndrome.
5
A careful review of that literature,
however, shows that much of it is predicated upon beliefs
and assumptions
6
that have never been corroborated or
that are based on flawed extrapolations of data.
It is not clear how shaken baby syndrome originated It may have
originated with a pediatric radiologist who believed that the presence of
a subdural hematoma and a long -bone fracture in a child had to have
been caused by abuse:
The current description of the SBS in the literature
evolved over a period of nearly a half a century with
some reports attributing its genesis to Caffey, a pediatric
radiologist, who had the notion that an association
between chronic subdural hematoma and long bone
fracture in children should be a red flag for child abuse.
Caffey'S notion remained less known for about 10
years until he encountered the case of Virginia Jaspers,
a nurse caretaker who confessed to shaking a 2-week-
old infant who died. Jasper's confession is a legalistic
characterization and thus did not provide scientific
support for Caffey'S notion but did help start the use
of the SBS label in the literature .?
Alternatively, SBS may have been a counterpart to " battered ch ild
syndrome," which is used by proponents to explain a plethora of
symptoms -
Kempe contributed to the current description of SBS
by introducing the "Battered Child Syndrome" and the
concept that inconsistency between clinical observations
and reported event history should signal abuse.
s
The cornerstone of the SBS movement is that injuries are caused
by shaking alone. In Its purest form. SBS is alleged to be caused by
rotational head accelerations derived from a sequence of mechanical
events. The following theorizes how the injuries occur
An infant is gripped by the chest or shoulders and
forcefully shaken back and forth whipping the head in
the anteroposterior direction. The nearly non-existent
THE DEFENDER *: 13
muscle strength of the infant neck makes the head
highly susceptible to high head-whipping rotational
acceleration so severe that the brain moves relative
to the interior surface of the skull resulting in torn
bridging veins and so acute subdural hematoma.
9
In fact, there are inherent problems in assuming that
this theory suffices to explain the injuries and symptoms
that are claimed to add up to SBS. It is these problems that
trigger the court's gatekeeping function under Rule 702 of
the Texas Rules of Evidence.
EXPERT TESTIMONY
Admissibility of expert testimony is governed by the
Texas Rules of Evidence and the Robinson factors.
lo
An
expert's testimony must be both relevant to the issues and
based on a reliable foundation. I I An expert who fails to rule
out other causes of the damage renders that expert's opinion
little more than speculation and, therefore, unreliable. 12
In the context of a shaken baby case, there are many
signsl3 that must be excluded before expert testimony should
be permitted. There are also the forces and mechanisms of
injury that must be accounted for, before expert testimony
should be permitted. These are discussed below.
FORCES OF INJURY
Physicians who are proponents of SBS will testify
that the force that the baby's brain is subjected to during
shaking is equivalent to the force created when a child falls
head first onto concrete from a height of three stories.
Alternatively, the physician will say the force generated by
shaking is equivalent to the force generated when a car
runs into a concrete barrier at 30 mph with an unrestrained
passenger who hits an unpadded dashboard.
Impressive testimony. Highly inflammatory. And not
true.
Let's examine this testimony to expose the flaws. First,
there is literature showing what happens when someone
falls three stories onto concrete. Falling from thirty feet
onto concrete causes severe marks, severe fractures,
severe external injuries on the head and the head would
not be pristine, as shown in SBS. These injuries would be
unmistakable .
Second, courtesy of Newtonian physics, we know
that forces have equal and opposite reactions. This law is
recognized in the unit of energy called the foot-pound,
which is the force required to lift a one-pound weight one
foot. Therefore, the energy of a 12-pound child falling
three stories onto concrete would be equivalent to the
same energy required to throw the same child straight up
30 feet (or three stories). How does a person generate such
force? No one can throw 12 pounds straight up 30 feet.
If no one can generate the force necessary to throw that
weight straight up 30 feet, no one can generate that same
THE DEFENDER *' 14
force as detailed by shaken baby syndrome. Remember, the
force is the same; only the direction has changed.
Third, proponents of SBS tend to express the
intensities offorce generated by shaking only in qualitative,
unsubstantiated terms that analogize the damage resulting
from acceleration or deceleration of rotational injury to falls
onto hard surfaces from great heights or to impact injuries
due to severe motor vehicle crashes .
14
These are misleading
analogies, without support in science. IS
Generally, head injuries are classified according to their
biomechanical causes. Biomechanical forces acting on the
head can be dynamic or static. Because shaking is a dynamic
event, static forces should be ignored in the context of
SBS. Additionally, dynamic head loadings are categorized
as either contact or non-contact, and refer to loading to the
head and through the neck.
16
Fourth, physicians are not trained to calculate forces
exerted on the brain and body by a biodynamic event.
Biomechanicians are. Yet, physicians routinely are permitted
to testify aboutthe "forces" that the child's brain supposedly
was subjected to through shaking - and these physicians do
this without having the first clue as to how to calculate
those forces or what they actually were. Questions such as,
"What was the acceleration that the brain was subjected
to?" or "What was the tangential acceleration of the head?"
or "What was the shear force the brain was subjected
to?" produce blank stares from most physicians. When a
physician does not know the answer to those questions, any
testimony about the forces that were allegedly exerted on
the brain is pure conjecture.
Fifth, injury to an infant's cervical spine can occur
at much lower levels of head velocity and acceleration
than those reported for the SBS.17 In other words, if an
infant were subjected to the levels of rotational velocity
and acceleration detailed in the SBS literature, that infant
would experience a structural failure of the cervical spine. IS
It therefore is impossible to generate the forces necessary
to cause brain damage without also damaging the cervical
spine or spinal cord. Thus, when SBS is alleged but there
is no injury to the infant's cervical spine, it is physically
impossible for the infant's brain to have been subjected
to forces sufficient to cause injury. Any testimony to the
contrary is completely unfounded in science.
1:IiJiMi'
If someone were to try to shake a baby hard enough
(like alleged in SBS cases) to cause injury to the child's
brain, it would be natural to ask, "Where are the bruises?"
If one assumes that the infant weighs 12 pounds, and that
the child is being shaken with sufficient force to injure
the brain, the infant's chest or shoulders would have to
be held very tightly to keep the infant from flying out of
the adult's hands during shaking. That kind of grip should
leave imprints of the hands. No imprints means the child
was not held with a force sufficient to shake violently.
Physicians frequently testify in shaken baby cases that the
there are certain diagnostic signs that are pathognomonic
of the syndrome - in other words, that they exclude all
other causes or conditions.
19
It is important to understand
how the term pathognomonic is used in medical science.
For example, if amoebas are present in a patient's stool,
that is pathognomonic of amoebic dysentery. On the
other hand, if the patient presents with profuse diarrhea,
vomiting, cramps and dehydration, those symptoms are not
pathognomonic for amoebic dysentery because the patient
could have one of several diseases that affect the digestive
and intestinal tracts in these manners.
In connection with SBS, retinal hemorrhages, subdural
hematomas and rib or long bone fractures are assumed to
be pathognomonic of the syndrome. But unless the other
possible causes of the signs are excluded, they are nothing
more than signs. They are not pathognomonic.
An examination of each sign in turn demonstrates why
they cannot be caused exclusively by SBS and are, therefore,
not pathognomonic ofSBS. Further, because each sign can
have many different etiologies, it is important to remember
that an absence of a history for a traumatic event is not
pathognomonic for non-accidental injury.
Physicians will testify that the presence of retinal
hemorrhages are believed to be pathognomonic of SBS.
Not necessarily. Many infants diagnosed as suffering from
SBS and presenting with retinal hemorrhages will have
been administered cardio-pulmonary resuscitation. And
CPR can cause retinal hemorrhages.
2o
Therefore, unless
the physician can rule out CPR as having caused the retinal
hemorrhages, Robinson and its sister cases stand for the
proposition that he should not be permitted to testify that
the presence of retinal hemorrhages is proof of SBS.21
Hypernatremic dehydration has also been shown to
cause massive bilateral retinal hemorrhages.
22
It also has
also been shown to cause subarachnoid hemorrhage, a
23
subdural collection and focal intracerebral hemorrhages .
Therefore, unless the physician can rule out hypernatremic
dehydration as a cause ofthe retinal hemorrhages, testimony
that these hemorrhages are caused by SBS also should not
be permitted.
Vaccine injuries also are known to cause retinal
hemorrhages. Reports ofvaccine injuries filed with the CDC
describe retinal hemorrhages as a known complication of
vaccines, with the effect showing up as much as 32 days after
administration of the vaccines.
24
If the infant was recently
vaccinated, the physician should be required to rule out the
vaccine as having caused the retinal hemorrhages before
being permitted to testify that SBS was the cause.
Indeed, vaccines present several distinct problems for a physiCian
who testifies that certain Injuries are pathognomonic of SBS The first
problem is that vaccines have never been subjected to proper double-
blind studies. As Sherri J. Tenpenny, D.O. , has written:
Vaccines have not been proven safe by the same
standards applied to other procedures or drugs: a
double-blind, placebo-controlled investigation. In a
placebo-controlled study, the safety of a medication is
determined by comparing it to a neutral substance, such
as a sugar pill. In vaccine safety trials, a new vaccine is
not compared to an inert substance, such as a shot of
sterile saline. Instead, the designated inert substance,
the placebo, is another vaccine with a "known safety
profile." If the number of side effects caused by the
new, experimental vaccine is found to be the same as
the number of reactions caused by the placebo vaccine,
manufacturers declare the new vaccine to be as safe as
the placebo. In actuality, this is true: It is as safe as the
older, existing vaccine. That does not mean it is as safe
as a true, inert placebo.
25
If an inert substance is used in the "double-blind
study," it is to see whether the placebo creates an immune
response; it is not to see the type, number and severity of
adverse reactions caused by the vaccines.
The assumption that vaccines are safe and efficacious
goes back to Edward Jenner's 1796 experiments with
cowpox to produce resistance to small pox. Compare that
benign image with what happened in Australia about 40
years ago. Aboriginal children, some of Australia's most
impoverished and malnourished children, were vaccinated
in a government push to improve their health. They were
given multiple vaccinations (DTP & Polio) at the same time.
And almost half of them died (until general practitioner
Archivides Kalokerinos began giving these children large
doses of vitamin C).26
A second problem with vaccines is the developing
state of medical literature. So many problems have been
associated with vaccines that, in order to induce vaccine
manufacturers to continue making vaccines, the federal
government has established the Federal Vaccine Injury
Compensation Fund - an administrative body set up to
compensate patients injured by vaccines. Associated with
that are the Vaccine Adverse Event Reporting System
(VAERS)27 reports, which show an ever-increasing number
of adverse reactions to common childhood vaccines.
28
Reported adverse reactions include seizures, subdural
hematomas, retinal hemorrhages, subarachnoid bleeding
and even death. Many physicians testifying to SBS will
THE DEFENDER * 15
not have seen the infant's vaccination records, much less
examined the VAERS reports to see if the signs could have
been caused by an adverse reaction to vaccines.
29
The presence of rib or long bone fractures often
IS offered as proof of the "violence" that the child was
subjected to by shaking. There are multiple problems with
such testimony.
First, there is no peer-reviewed medical literature that
shows that broken bones in an infant are pathognomonic
of abuse. 30 Indeed, there are several conditions that lead to
very fragile bones that break easily. Vitamin D deficiency
and Barlow's Disease, which is caused by a Vitamin C
deficiency, both can cause an infant's bones to be susceptible
to fractures. Without ruling these conditions out, it is
speculation as to the cause of the fractures.
31
Where the fractures are found also can be important.
For instance, as documented on videotape, a humeral
fracture can be caused by attempting to roll an infant from
a prone to a supine position.
32
Additionally, the age of the fractures is significant.
Peri-mortem fractures are said to have happened at or about
the time of death. If the child was hospitalized for a period
of days, without any contact by the alleged perpetrator
of the abuse, how can peri-mortem fractures be evidence
of abuse? They can't. Similarly, fractures of the ribs can
be caused by chest compressions in CPR. Unless medical
intervention is ruled out as the cause of the rib fractures,
the presence of rib fractures does not prove that the child
was subjected to a criminally violent act.
The age of the fractures is important in another way.
Peer-reviewed medical literature has documented rib
fractures occurring during a vaginal delivery, because of
birth trauma.
33
If there are healing (or healed) rib fractures,
how has the physician ruled out birth trauma as the cause?
Unless this is ruled out, testimony ofthe presence of healing
fractures should not be permitted as proof of abuse.
While the presence of a subdural hematoma often IS
said to be the sine qua non of SBS, here are several reasons
why shaking and subdural hematomas do not go hand-in-
hand.
First. the conclusion that SBS causes subdural hematoma is predicated
on experiments by Ommaya. whose research methodology was as
follows;
Ommaya's experiments as well as follow-up primate
experiments by Ommaya 's previous co-workers,
Gennarelli and Thibault supported a rotational
acceleration mechanism for the generation of cranial
subdural hematomas. This is the much-heralded
differential rotational skull-brain motion mechanism
that causes parasagittal bridging veins to rupture and
thus hemorrhage below the dura. This mechanism
was postulated for the adult head with a fully ossified,
stiff, skull which plays a major role in its activation.
It is important to note that the Gennarelli- Thibault
experiments were conducted in a way that protected the
neck from head whipping forces. In those experiments,
the head of the primate was potted in a metal cylinder
which was constrained to accelerate and then decelerate
along a prescribed arc in a prescribed time frame.
34
III d< 0" maya basec I,s lode on ar ao lit rea a, J
hat tile experJlllent provided neck prot'?cIIOIl. And there 'Ivf' olll
differences with his model a Finis Bandak Ph 0 . d research or
111 the   of Neurology at nle UI 110rmed p.rvlves Jnlver Ity ,I
r Health SCiences. has obsuvec.
[T]he neck was not subjected to the forces of the
accelerated free head as it would be if the loadings were
applied at the chest. This is precisely and erroneously
the presumed SBS head motion where equivalent
rotational accelerations of the infant human head were
calculated by scaling this type of data. The important
question when using the results of these experiments
to interpret infant shaking injury is whether it is
naturally possible for a free human head to reach such
head accelerations through chest shaking without neck
injury. This question was not addressed by those primate
experiments nor has it been addressed quantitatively in
the literature.
35
As a result, Dr. Ommaya's experiments on adults were
erroneously used to obtain a foundation by extrapolating
his conclusions that shaking causes subdural hematomas in
infants.
Second, research has shown that the maximum forces
that can be generated through chest or shoulder shaking of
an infant are, in fact, one-tenth of the force that pro-SBS
physicians say that shaking generates.
36
Third, the mechanism of injury to the infant's brain,
through shaking, requires that the forces be transmitted
through the neck to the head. Head acceleration and
velocity levels commonly reported for SBS generate forces
that are far too great for the infant neck to withstand
without injury. Shaking head accelerations can potentially
cause severe, if not lethal, cervical spinal cord or brain stem
injury in the infant at levels weU below those reported for
shaken baby syndrome. 37 Thus, ifthere is a subdural hematoma
but there is no neck injury, then another cause of the subdural
hematoma must be suspected and ruled out.
Fourth, many children who are alleged to be victims of
SBS also are alleged to have been found by their caregivers
to be nonresponsive or to not be breathing. Ifan infant does
not breathe for a period oftime or is not properly intubated,
this can lead to anoxia, which is the lack of oxygen to the
THE DEFENDER '* 16
brain. And anoxia leads to an ischemic cascade, which can
then lead to a subdural hematoma.
An ischemic cascade is a series of biochemical reactions
that take place in the brain after seconds to minutes of
inadequate blood supply or inadequate oxygenation of
blood (a condition known as ischemia). Most ischemic
neurons that die do so due to the activation of chemicals
produced during and after ischemia. The ischemic cascade
usually occurs for two-to-three hours but also can last
for days, despite the return of normal blood flow. 38 The
ischemia can cause coagulopathy, which is a failure of the
body's blood clotting mechanism.
Hemodilution also can cause coagulopathy.
Hemodilution is what happens when you infuse a patient
with IVs such as normal saline and lactated ringers.
Coagulopathy, in turn, can cause bleeding within the
cranium. Bleeding in the cranium manifests as subdural
hematomas and as subarachnoid bleeding. Coagulopathy
also can cause bleeding from any blood vessel within
the body and serves as another possible cause of retinal
hemorrhages.
The presence ofa subdural hematoma and coagulopathy
poses a significant chicken-or-egg question. This is
because an injury producing a subdural hematoma can
result in ischemic cascade, coagulopathy and ultimately
death. Conversely, anoxia can cause an ischemic cascade,
coagulopathy, a subdural hematoma and/or subarchnoid
bleeding and ultimately, death. Therefore, a child whose
signs included not breathing presents the courts with the
significant scientific question of whether ischemia stemming
from anoxia caused the coagulopathy that caused the subdural
hematoma or vice-versa.
RULING OUT ALTERNATIVE CAUSES
As the foregoing demonstrates, the signs typically asserted
to be pathognomonic of SBS are not. This means that ruling
out alternative causes is critical to the admission of any
testimony about the presence of a subdural hematoma and its
medico-legal significance.
The methodology by which the physician rules one
alternative out is dispositive of whether the testimony is
admissible. For instance, if the medical examiner opines that a
subdural hematoma was caused by SBS but has not seen the
medical records to see that the infant was improperly intubated
(resulting, for example, in extended periods ofanoxia/ hypoxia
and that the initial CT brain scan showed no bleeding within
the skuli, but did show changes consistent with anoxic brain
injury), a conclusion that the subdural hematoma caused the
brain damage, resulting in death should not be permitted. No
proper methodology is employed in reaching that conclusion
and it is not scientific. It is speculation.
DEMONSTRATIVE EVIDENCE
Proponents of SBS will frequently use a Raggedy Ann-
type doll as a demonstrative aid. This raises serious Rule 702
concerns because there is no scientific validity associated
with such a demonstration. Why? Because one can never
reach the head accelerations estimated by the proponents
of shaken baby syndrome.
39
Additionally, demonstrations
with dolls have variables that are never consistent with the
child in question.
RULE 403 CONSIDERATIONS
In addition to the Rule 702 considerations for
admissibility of expert testimony in shaken baby syndrome
cases, a case involving a dead child requires additional
considerations about the application of the constraints of
evidentiary Rule 403 .
Non-scientific evidence is never relevant and should
not be admitted. Assuming that the court somehow finds
that the testimony of the physician is scientific, then the
one frequently used demonstrative should be excluded
under Rule 403 due to capacity to result in unfair prejudice,
confuse the issues, and mislead the jury. That demonstrative
is the Raggedy Ann doll that is shaken by the physician
while "explaining" SBS .
Use of the doll is not an appropriate example of an
infant for any number of reasons . First, the demonstration
dolls typically weigh about a pound, which is nowhere near
the weight of the dead infant. Second, because the weight is
so light, it exaggerates the movement of the body that can
be obtained by shaking. Consider the difference that would
be seen between shaking a baseball and shaking a 12-pound
bowling ball. Third, unlike an infant, the dolls have no
rigidity whatsoever, which exaggerates the movement of
the head. One need only consider the difference in shaking
a three-eights-inch wooden dowel and shaking a baseball
bat of the same length to understand this effect. Fourth,
demonstration dolls have no neck and the head is not
proportional in weight to the rest of the body, as it would
be in an infant.
If the physician wants to shake a doll, it should be
one filled with beans, so that the weight approximates the
weight of the child. And the head should have a weight that
is commensurate with tlle dead infant's head. Otherwise, aU
the jury is being shown is theatrics - highly prejudicial and
inflammatory theatrics that are excludable under Rule 403.
In the absence of ademonstrable Impact and injury to the Infant's neck/spinal cord , testimony about SBS
Conclusior
should not be permitted unless the other potent ial causes of the signs found are ruled out. Failure to rule
these other causes out renders the testimony unscientific and excludable under Rule 702.
THf DEFENDER * 17
1 © 2009  L.T  "Butch"  Bradt  Permission  given  to  Harris  County  Criminal 
Lawyers  Association  to  copy,  reprint  or  republish  in  any  format.  All  others 
must  secure  written  permission  from  the  author  befOre  copying,  reprinting  or 
repu blishing in whole or in  part. 
2 Most  of the  infOrmation  in  this  paper  also  relates  to  children  who  are  alleged  to 
have  been  injured  by shaken  baby syndrome.  But some of it, such as diffi.LSe  axonal 
injury,  applies  mostly  by  microscopic  postmortem  evidence  to children  who  have 
died.  Practitioners are  advised  to seek  expert  assistance  if they  have  questions as  to 
which  is which. 
3 H.  Brown, "Eight Gates  for  Expert Witnesses,"  36 Hous.  L.  Rev.  743 (1999). 
4 TJ.  "Shaken  baby  (shaken  impact)  syndrome:  non-accidental  head 
injury in  infancy," 99 Royal  Soc.  Med.  556-61  (Nov.  1999): J.T Weston,  "The 
pathology  of child  abuse,"  in  R.E.  Heifer  & R.E.  Kempe,  eds.,  The  Battered 
Child  77-100  (Univ.  ofCh.icago  Press  1968);  J. Caffey,  "On  the  theory  and 
practice  of shaking  infants:  its  potential  residual  effCcts  of permancnt  brain 
damage and  mental  retardation,"  124 Am.  J. Dis.  Child  161-69 ( 1972). 
5  F.A.  Bandak,  "Shaken  baby  syndrome:  A  biomechanics  analysis  of  injury 
mechanisms,"  151  Forensic Sci.  Int' l 71-79 (2005). 
6 See, eg., Sinead  Fenton, "Bilateral  Massive  Retinal  Hemorrhages In a 6-Month-
Old  Infant:  A  Diagnostic  Dilemma,"  117  Arch.  Ophthalmology  1432-34 
( 1999) (retinal hemorrhages in  inf.mcy are  believed to be a cardinal sign of non-
accidental  injury). 
7 F.A.  Bandak,  "Shaken  baby  syndrome:  A  biomechanics  analysis  of  injury 
mechanisms,"  151  Forensic  Sci.  Int'l  71-79  (2005)  (citing  J.  Caffey,  "Multiple 
fractures  in  the  long  bones of infants suffering  from  subdural  hematoma," 56 Am. 
J.  Roentgen  163  (1946); J.  Caffi:y,  "On the theory and  practice  ofshaking infants: 
its  potential  residual  effixts  of permanent  brain  damage  and  mental  retardation," 
124 Am.  J.  Dis.  Child.  161  (1972);  and  J.  Caffey,  "The  whiplash  shaken  infant 
syndrome:  manual  shaking  by  the  extremities  with  whiplash- induced  intracranial 
and  intraocular bleedings,  linked  residual  permanent brain  damage and  mental 
retardation," 54 Pediatrics 396-403 (1974)). 
8  FA.  Bandak,  "Shaken  baby  syndrome:  A  biomechanics  analysis  of  injury 
mechanisms," 151  Forensic Sci.  Int'l 71-79  (2005) 
9Jd.
10  See Tex.R.  702, 705(c); see also E.l. du Pont de Nemoul"S & Co. v. Robinson,
923 S.w.2d 549, 556-57 (Tex. I995 ). 
11  Robinson, 923 SW.2d at 556. 
12 See Merrell Dow Pharms., Inc. P. Havner, 953 S.W2d 706, 720 (Tex.l997), cert. 
denied, 523 U.S.  1119 (1998) ("[I]fthere are other plausible causes ofthe injury or 
condition  that could  be  negated,  the  plaintiff must offer  excluding  those 
causes  reasonable certainty."); Robinson, 923 S.W2d at 559 ("An expert who 
is trying to find  a cause ofsomething should carefully consider alternative causes. "); 
Hess P. Mclean Feedyard, Inc., 59 S.W3d  679,687 (Tex.  App. - Amarillo  2000, 
pet. denied) ("[ A]n expert should carefully consider and  rule out alternative causes, 
and  the  failure  to  rule  out other causes  results  in  speculation  and  conjecture  and 
amOlUlts  to no evidence of causation.");  Purina Mills, Inc. v. Odell, 948 S.W.2d 
927,934 (Tex.  App.- Texarkana  1997, pet.  denied) (analyzing  expert  testimony 
under Robinson factors and concluding testimony unreliable when experts fujJed  to 
exclude other potential causes). 
13  A sign is  defined as  an objective finding as perceived  by an examiner, such as  a fever, 
rash,  the whisper heard  over the  chest in  pleural  effusion. Compare  this definition 
to  that  for  symptom,  which  is a subjective  indication  of a  dise."1Se  or a change  in 
condition as  perceived  by the patient.  Mosby's Medical  Dictionary (5th ed.  1998). 
14  FA.  Bandak,  "Shaken  baby  syndrome:  A  biomechanics  analysis  of  injury 
mechanisms,"  151  Forensic Sci.  Int'l. 71-79 (2005). 
15Id.
J6Id.
J7 Id.
IS  Id.
19  Random  House  Dictionary (2006). 
20 See A. PolitO, "Bilateral Retinal  Hemorrhages in a Preterm Infant Witl1  Retinopathy 
of  Prematurity  Immediately  FoUowing  Cardiopulmonary  Resuscitation,"  119 
Arch.  Opthamology  913-14  (2001);  Sinead  Fenton,  "Bilateral  Massive  Retinal 
Hemorrhages  In  a  6-Month-0Id  Infant:  A  Diagnostic  Dilemma,"  117  Arch. 
Ophthalmology  1432-34  (1999);  Mark  Goetting,  "Retinal  Hemorrhage  Mer 
Cardiopulmonary  Resuscitation  in Children:  An  Etiologic  Reevaluation,"  85 
Pediatrics 585-88 ( 1990). 
21 Stlpranote 12.
22 Sinead  Fenton, "Bilateral  Massive  Retinal  Hemorrhages In  a 6-Month-0Id Infant: 
A Diagnostic Dilemma,"  117 Arch.  Ophthalmology 1432-34 (1999). 
23Jd.
24 See Event  113478, VAEl\s database (32 days), available at http://W\vw. medalerts. 
org  (last  Feb.  2,  2009);  see also id., Event  123168  (3 1  days );  id., Event 
228586 (28  days). 
25  Dr.  Sherri  J. TenpeJ1J1Y,  Saying  No To Vaccines - A Resource  Guide  For All  Ages 
25-26 (NMA Media  Press  2008). 
26  Archie  Kalokerinos, Every Second Child (Thomas Nelson, Australia  1974). 
27  VAERS  is  a  United  States  program  fOr  vaccine safety  that  is  co-sponsored  by  the 
Centers fOr Disease Control and Prevention and the Food and Dmg Administration. 
VAERS is a post-marketingsafety surveillance program ,collecting information about 
adverse  events (otherwise  known as  side  effects)  that occur after administration 
of vaccines.  The  program  is  an  outgrowth  of the  1986  National  Childhood 
Vaccine  Injury  Act,  which  requires  health  care  providers  to  report:  (1)  Any 
event  listed  by  the  vaccine  manufacturer  as  a  contraindication  to  subsequent 
doses of the  vaccine;  and  (2)  Any  event  listed  in  the  Reportable  Events  Table 
that  occurs  the  specified  time  period  after  vaccination.  See 42  U.S.c. 
§§  300aa-l  to 300aa-34.  The data  are  stored electronically  by  the  CDC in  the 
Vaccine Safety  Datallnk.  See "Vaccine Safety Datalink (VSD)  Project," available 
at  http://www.cdc.gov/vaccinesafety/vsd/  (last visited  Jan. 30,2009). 
28  VAERS  reports are  probably best researched  by  a  physician  fumiliar  them. 
Sherri Tenpenny,  D.O., has written a book t11at  addresses many of the problems 
vaccines and vaccine  injuries.  Sherri  J. Tenpenny,  Saying  No To Vaccines: 
A Resource  Guide  for  NI Ages ( NMA Media  Press 2008). 
29 There  is  a  misconception  about  the  temporal  relationship  between  the 
vaccination  and  the  onset  of adverse  reactions.  While  some  happen  the  day  of 
administration, adverse effi:cts, including death, have  been documented as  much as 
32 days  after the vaccinations.  See, eg., Event  113478, VAERS  database,  available 
at  http://www.medalerts.org (l3l>tvisited  Feb. 2, 2009). 
30This  is  unlike  knife  stab  wounds,  certain  burns,  depressed  skull  fractures, 
and  gun shots. 
31  C.A.B.  ClementsOn, "Barlow's disease,"  59(1) Medical  Hypotheses 52-56 (2002); 
see a/.so KA Keller  & P.O.  Barnes, "Commentary:  Rickets vs.  abuse:  a national and 
international epidemic," 38  Pcdiatr.  Radiol.  1210-1216 (2008). 
32  KP.  Hymel, c.L. Jenny,  "Abusive spiral  fractures  of the  humerus: a 
exception,"  150 Arch.  Pediau.  Adoles.  Med.  226 - 228 ( 1996). 
33  Blake  Bulloch, "Cause  And Clinical  Characteristics of Rib Fractures in  Inf.mts," 
105  Pediatrics 48 (2000). 
34  F.A.  Bandak,    baby  syndrome:  A  biomechanics  analysis  of  injury 
mechanisms,"  151  Forensic Sci.  Int'l.  71-79 (2005). 
35Id.
36Id. (head  velocity  from  human  manual  shaking  is  of the same  order as  free-fuJI 
head  velocity from  a height of about one meter (approximately three  feet). 
37Id.
38  "Stroke:  Hope  Through  Research,"  National  Institute  of  Neurological 
Disorders  and  Stroke  (N INDS ),  available  at  http://www.ninds.nih.gov/ 
disorders/stroke/  detaiUtroke.htm (last  visited  Feb.  2, 2009). 
39 A.C.  Duhaime,  T  Gennarelli,  L.E.  Tibualt,  et  aI.,  "The  Shaken  Baby 
Syndrome:  A  clinical,  pathological,  and  biomechanical  study,"  66  J. 
Neurosurgery 409-415  (1987). 
L.T.  "BUTCH"  BRADT  is  a  general  practitioner  who  has  been  licensed  for  32  years  and  has  represented  clients  in  civil,  corporate, 
criminal and  family  law  matters.  As  a  criminal defense  lawyer  he  has  prevailed  in  cases  ranging  from  speeding  tickets  to  capital  murder. 
THE DEFENDER * 18
By Tyllr Filid
To The Administrative license Revocation Rules
The new rules of procedure for Administrative license Suspension Hearings took effect on January 29th, 2009 and
can be found in the Chapter 159 of Title 1 of the Texas Administrative Code. The most important changes are in the
witness subpoena procedure and deadlines.
There were concerns about other sUbstantial changes, but none of them were realized. Live hearings are still in
existence and you still do not have to issue a subpoena for the breath test operator or breath test technical supervisor
as they are required to appear upon request. Here is the link to the new rules: http://www.soah.state.tx.us/AboutUs/
ALR_Rules_Bikmkd_n_linked_eff_20090120.pdf
ASummary of the New Subpoena Rules and Guidelines
1.  For up to  two attorney-issued subpoenas, use  the SOAR 
form.  For  additional  (judge-issued)  subpoenas,  requests 
must  be  filed  with  SOAR  and  done  so  at  least  ten  days 
prior to  the  hearing date. 
2.  For  attorney-issued  subpoenas,  you  must  serve 
DPS  a  copy  of the  subpoena  on  the  date  it  is  issued. 
Judge-ssued subpoena requests must be served on DPS at 
the  time  the request is  filed  with SOAR (at least  ten  days 
before  hearing). 
3.  All subpoenas (attorney- or judge-issued) must be served on 
the witness at least five  calendar days  before  the  hearing. 
4.  For  all  subpoenas  (attorney- or judge-issued),  you  must 
file  the  return  of service  with  SOAR along ,vith  a ,vitness 
fee  check,  and  serve  the  return  on  DPS  at  least  three 
calendar days before the hearing date along with the \vitness 
fee  check. The witness  fee  should  be  $10 plus an additional 
amount ifthe witness' round-trip travel will  be more than 25 
miles.  Mileage  can  be  calculated  by  using  the guide  found 
at: http://ecpa.cpa.state.tx.us/m.ileage/Mileage.jsp 
The old rules required all subpoena requests to be filed with the State
Office of Administrative Hearings (SOAH) for a judge's approval and
signature. This is no longer required for certain witnesses. Now a
licensed attorney in Texas can issue his or her own subpoenas for up
to two witnesses:
1. the  officer  who  found  reasonable  suspicion  for  the 
stop or detention; and 
2.  the  officer  who  found  probable  cause  to  arrest.  If 
this  is  the  same  officer  - which  it  will  be  in  some 
situations - the attorney can issue only one subpoena. 
For  attorney-issued  subpoenas,  the  SOAR  form 
must  be  used  and  can  be  found  at  the SOAR site  by 
using  following  link:   
aboutus/  air _subpoenajorm_dec_2008_4.  pdf 
Additional subpoenas, other than the two attorney-issued subpoenas, are
allowed but must be requested through SOAH at least 10 days prior to the
hearing date. These requests must demonstrate good cause to compel a
witness' appearance when:
1.  seeking  to  calJ  more  than  two  peace  officers  to 
testify, 
2.  requesting  the  presence  of  a  non-police  officer 
witness, and 
3.  when  a  pro  se  defendant  seeks  to  compel  a  witness' 
appearance. 
A  properly  issued  subpoena  remains  in  effect  until  the 
judge releases the witness or grants a motion to quash or for 
protective order.  If a hearing is  rescheduled  and  a subpoena 
is  extended,  and  unless  the  judge  directs  otherwise,  the 
TYLER  FLOOD  is  a  OWl  Trial  Attorney  and  a  name  partner  in White  Flood,  PLLC.  His  website  is 
www.tylerflood.com or the  better-known www.DoNotBlow.com. His e-mail addressistyler@tylerflood.com. 
party who  requested  the  continuance shall  promptly  notify 
any subpoenaed witnesses  of the new hearing date. 
Default  judgment  timelines  also  have  changed. 
Now,  within  10 days  of a  default  judgment,  the  defendant 
may  file  a written  motion with SOAR and  DPS  requesting 
that  the  default  order  be  vacated  because  the  defendant 
had  good  cause  for  failing  to  appear.  The  old  rules 
required  that  the  motion  be  filed  within  five  days  of the 
default judgment. 
Deadline  computation  has  not  changed  but  is  always 
important to  note . When  computing deadlines,  if the  rules 
specify a deadline or set number of days for filing documents 
or taking other actions, the computation of time shall  be  by 
calendar  days  rather  than  business  days,  unless  otherwise 
provided in  the  rules  or by a judge's order.  However, if the 
period to act is  five  days or less,  the intervening Saturdays or 
Sundays  are  not  counted  unless  otherwise  specified  by  the 
rules  or a judge's order. 
The  foregoing  outlines  the  main  changes  to  the  new 
rules,  but  it  should  also  be  mentioned  that  there  is  now 
a  provision  allo\ving  for  hearings  by  videoconference,  111 
addition  to  in-person  and  by  telephone. 
Every attorney who hand les  a DWI should request 
with an  ALR  hearing  and  familiarize  themselves 
the  rules  and  procedures  for  securing  witness 
appearances when the strategy calls for it. License 
suspension  is  not automatic and ALR hearings 
can  be  a valuable  tool  in  DWI  defense. 
THE ASSOCIATION NURTURES
ADVOCATES WITH THE
"Did you forget your books? Do you need me to lend you
some paper?!" Monique Sparks said, while frowning at the
counsel table's empty surface. Trial was beginning and first-
chair counsel did not even have a pen.
"Don't worry, Monique. Everything I need is right in
here." Pat McCann gave his second-chair lawyer a knowing
look and firmly tapped his temple. Thus began the first official
trial of The Second Chair Program.
In December 2008, the Association proudly launched its
innovative new mentorship component, The Second Chair
Program. The curriculum is designed to provide real-world,
on-the-job training to a select group of ambitious criminal
defense lawyers - the "Second Chairs" - who are interested
in perfecting the art of their profession. They will learn the
secrets of the masters as they are teamed with some of the
finest and most experienced lawyers of the defense bar: the
"First Chairs."
The scope of the program centers on the evolution of one
case. First Chairs each contribute a case from their own docket
in which to allow their Second Chair partner to participate
and sit as co-counsel. First- and second-chair partners attend
each case setting together and work in alJiance toward the best
resolution for the client. If the program case goes to trial, First
and Second Chairs wiJl sit together at counsel table. Ideally,
the Second Chair will not simply shadow the First Chair, but
will work on the case. For example, McCann entrusted Sparks
to contact all of the witnesses prior to trial, to question the
character witnesses for the defense, and to cross-examine the
police officer - all of which she did very well, McCann said.
So far, the program seems a smashing success, with
more than 80 participants. Our members recognize that
the integrity of our justice system and the strength of our
organization depend upon ourability to support and nurture
one another. The vision of The Second Chair Program is
to bring members together in unique collaborations in the
hope that epiphanies will occur, that lessons will be learned,
that good can be done and freedom can be won. Ifwe can
teach a significant lesson to just one member, that lawyer
may use that knowledge toward exponential good, perhaps
using it to free future clients and even teaching that lesson
to second chairs of their own so tha t they, in turn, may one
day free their own clients.
"Sir, don't turn around," McCann directed the State's
witness. "But can you please read me the sign on the wall
behind you?"
"Dmm, I can't remember what it says," the witness
responded. "I didn't pay much attention to it earlier."
"Can you normally see what's behind you without
turning around?"
"No. "
"Is that because you don't have eyes in the back of your
head?"
Sparks could barely contain a smirk. Like everyone else
in the courtroom, except for the State's witness, she knew
there was no sign on that wall. She also knew that the first
client of The Second Chair Program would be exonerated.
With any luck, she will use that non-existent sign to free
her own clients.
SARAH V. WOOD is a criminal defense attorney and directs The Second Chair Program. Last year, the
Association honored her as an Unsung Hero.
THE DEFENDER * 20
FIRST  CHAIRS 
DO: 
+ Introduce your Second Chair to judges, attorneys, and
court staff members and try to foster a good working
relationship.
+ IncludeyourSecondChairinout-of-courtactivities,including
meetings with the client, witnesses, or investigators.
+ Give your Second Chair assignments so that he/she can
contribute to the case.
+ Consider inviting your Second Chair to work on other cases
with you after the program case is finished.
+ Spread the good word, if warranted, about your Second
Chair.
+ Report seriously offensive conduct or unusual
circumstances to the administrators.
+ Uphold the highest ethical and professional standards as a
representative of The Second Chair Program
DON'T: 
+ Don't overload your Second Chair with bothersome work
or unwanted responsibility.
+ Don't ask him/her to do menial tasks like making coffee or
ironing your socks.
+ Don't have your Second Chair attend settings without you.
+ Don't depend on program administrators to resolve
disputes between you and your Second Chair.
FIRST  CHAIRS 
David Adler Vivian King
Lisa Benge Andrea Kolski
Mark Bennett Laine Lindsey
Staci Biggar Thomas A. Martin
Adam Brown Troy McKinney
Dan Cogdell Pat McCann
David Cunningham Rand Mintzer
Eric Davis Robert Morrow
Nicole DeBorde Brett Podolsky
Gordon Dees Tom Radosevich
Todd Dupont Kent Schaffer
Danny Easterling Grant Scheiner
Rosa Ebades Jed Silverman
Robb Fickman James Stafford
John Floyd Deborah Summers
Tucker Graves Chris Tritico
Heather Harrison Hall Joe Varela
David Kia tta Tate Williams
Don't 
FOR  SECOND  CHAIR  PROGRAM  PARTICIPANTS 
SECOND  CHAIRS 
DO: 
+ Respect the privacy and dignity of the client and the
authority of the First Chair with regard to the case.
+ Offer to draft motions, do research, and perform other
tasks helpful to the case.
+ Ask your First Chair questions about the program case as
well as other cases you may have.
+ Spread the good word about your First Chair, if warranted.
+ Report seriously offensive behavior or unusual
circumstances to the program administrators.
+ Uphold the highest ethical and professional standards as a
representative of The HCCLA Second Chair Program
DON'T: 
+ Don't speak to anyone about the case without specific
prior approval.
+ Don't do anything on the case without specific prior
approval.
+ Don't put your name on any motions or other documents
relating to the case.
+ Don't overload your First Chair with pestering questions
about other cases.
+ Don't depend on the program administrators to resolve
disputes between you and your First Chair.
SECOND  CHAIRS 
Lori Adrogue Patrick Ngwolo Marissa Garcia
Marcos Adrogue Sandra Oballe Ramona Franklin·
Shannon Baldwin Rick Oliver
Williams
Annie Basu Jimmy Ortiz
Robert Tuthill
Te'iva Johnson Bell Peyton Peebles
Sandra Martinez
Matthew Darby Ross Palmie
Sarah Mueller
Delia DeLaGarza Bonnie Rogers
Troy Locklear
Dena Fisher Carmen Roe
Sunshine Swallers
Alexander Gurevich Gary Roth
Joaquin Jimenez Daucie Schindler
Audrie Lawton Paula Silva
Amy Martin Monique Sparks
Ryan Matuska David SuhJer
Don McClure Greg Tsioros
Heather Morrow Hilary Unger
Jessica Needham Nick Westbrook
Henry Nguyen Joshua Willoughby
THE  DEFENDER  * 21 
AN UN IKELY HER But A Real Hero Nonetheless
By Chris TrltleD
of us have those
we look up to and
those that we revere
and respect as heroes.
There are recognized
heroes like John Glen
or Audie Murphy.
Walking among us
every day, however, are
heroes. They don't seek
the limelight; they just
perform heroic acts as
if those things come
naturally.
Sharon Levine was
Sharon levine with Kevin Fine (lePt) and Robb Fickman just that person. Sharon
graced us for 39 years. She had a great wit, keen sense of
humor, and a rare beauty. Her smile lifted your spirit and her
laugh was so hearty that it invaded your soul with happiness.
Sharon lived for four years with Hodgkin's Disease. For
four long years she fought a war with her own body. Her fight
was to continue breathing. She fought this battle through
more than 40 rounds of chemotherapy. She rarely missed a
day of work and never asked for a continuance because she
was sick. She did all of this with a smile on her face and a
winning attitude. All of us are better and stronger for having
had the pleasure of knowing her. She was a hero.
I consider Sharon an unlikely hero because she did not
ask for this fight. However, when the fight came to her she
accepted it. She didn't want to - who would? - but she fought
hard and never gave up on her dreams or her life's work.
Sharon Levine is a hero because of her work. Much credit
has been given to those who sued the county in the Sean
and Erik Ibarra case. It has been said that the civil lawyers
brought down former Harris County District Attorney
Chuck Rosenthal and exposed the Harris County Sheriff's
Department for its egregious acts of violence against two
All innocent people. The first person to take up the cause of the
Ibarra brothers was Sharon Levine.
Sharon was hired to represent the Ibarras on the criminal
charges filed as a result of Sean Ibarra's photographing of
Sheriff's deputies who served a search warrant on a neighbor's
property. She took the case not for publicity, not for money (the
Ibarras had almost none), but because she believed that these
two citizens had been treated shabbily by the sheriff She took
tl1e case because she felt it was her duty to help these people.
With no money in trust, Sharon spent days investigating
tl1e case herself. She made numerous visits to the I barras'
home to interview witnesses. It was Sharon's work that
resulted in the ultimate acquittal of me Ibarras. I stepped in
and tried Erik's case and Sharon tried Sean's. However, don't
be mistaken: I did nothing but take her work and go try a
case. Sharon Levine is the lawyer solely responsible for the
acquittal ofSean and Erik Ibarra.
Why, one may ask, is this important? If Sharon had not
taken on this case for
virtually no money and
invested her personal "I think a HERO is
time effort and energy
an ordinary individual who
in it, the Ibarras would
be two mOre convicted
finds to strength
minorities, and Chuck
Rosenthal and Tommy persevere and endure in spite
Thomas would still be in
of overwhelming obstacles."
office today.
This unlikely hero
- Christopher Reeve
did her job. She did it
so well that her work
was the basis for the civil rights case that brought down the
District Attorney and the Sheriff. Christopher Reeve once
said, "I think a hero is an ordinary individual who finds
strength to persevere and endure in spite of overwhelming
obstacles." Sharon lived that definition every day. Sharon
Levine was a hero .
CHRIS TRITICO is a name partner in Essmyer, Tritico & Rainey, LLP. He defended Erik Ibarra at trial
in County Criminal Court-at-Law No. 2, and obtained a directed verdict of not guilty on the charge of
evading arrest for Mr. Ibarra.
THE DEFENDER * 22
A GIANT 
"We  are  constitutional 
law  dammit!" 
Andrew L. Jefferson, Jr. blazed a
path that most lawyers can only
dream of judge of the United
States Court of Appeals for the
Fifth Circuit, first African-
American district court judge
in Harris County, first African-
American assistant district attorney in Bexar County, and a
formidable criminal defense attorney. Association member Craig
Washington told the local news media that Judge Jefferson was
(;giant» who possessed ((unrelenting dignity. » What follows are
the recollections of other Association members on the passing of
this singular lawyer. - Editor
ROBERT J. FIC KMAN: There is a story about how in a recent
trial he castigated a federal judge for that judge's arrogance.
HCCLA honored Judge Jefferson with a lifetime achievement
award a couple ofyears ago. Jim Stafford made the presentation.
Judge Jefferson gave a short, memorable speech. In reference to
being a judge, he said (and I paraphrase): "It's not so hard; just
do the right thing."
Judge Andrew Jefferson was a great, noble man. His
photograph hangs on my office wall where it will remain. It will
be my sad duty to add his name to our memorial plaque.
DAN  COGDELL:  It was in Judge Hittner's court ... actually,
Andrew called out Hittner several times. We (all the co-
defendants' lawyers) kept calling Andrew "Judge" in the presence
ofthe jury.
Judge Hittner was impressed enough by Andrew he actually
didn't bristle when we did so. It was one ofthe few bright spots
ofthat trial.
I am certain that there isn't another ex/retired/defeated
judge of any sort that Judge Hittner would have allowed us to
refer to in that fashion.
AL  LEAl:  Judge Andrew Jefferson brought grand jury service
to the minority community in Harris County. It took courage
to do so in a very difficult case. He ruled for the defense when
attorney Ernest Valdez challenged the composition ofthe indicting
grand jury. He did so because he believed in inclusion and an
integrated justice system. He served as a family district judge
and later as the judge in the 208th criminal district court. He
impacted our criminal justice system and brought fairness and
true justice into our courts .. . I am so glad that he witnessed this
past presidential election.
SAM ADAMO:  I was an Assistant District Attorney when Judge
Jefferson was sitting on a criminal district court bench. I recall
shock waves going thru the office when he asked an assistant
district attorney if he had any case law to support his position.
He made us better prosecutors by requiring us to be prepared.
Judge Jefferson elevated the professionalism of all the lawyers
who appeared in his court. He treated everyone with dignity
and professionalism. He set a judicial standard of fairness and
neutrality that few Harris County judges have been able to
emulate.
VIVIAN  R. KING:  Thank you, Judge Jefferson, for paving the
way for me and making it a little easier for me to defend one's
constitutional right to a fair trial.
Thank you for ensuring inclusion. In your memory and
those of others like you, I will continue to "fight the good
fight" for fairness and inclusion.
STEVE  SHELLlST:  Dear Judge Jefferso n:
Although I never had the chance . . . strike that... I never
made the effort to speak with you after our o ne trial we had
together, I hope that somehow you will get this message from
above. I wanted to apologize for my behavior during our trial .
At the time, as a prosecutor, no one taught me the proper way
to act or the proper way to treat defense attorneys; especially
ones like yourself who have earned that right. I was taught to
win trials; to put people in jail; to get convictions. Well, I got
none of the three with your client that day. What I got was an
ass-whipping. What I got was a lesson in humility.
See, when you called me a "lil' shit" in front of the jury,
I shouldn't have responded in kind. I should have said "Yes,
sir," because I was a "lil' shit" that day and you had every
right to call me out on it.
When Judge Brown warned me about your skills and
who you were and what you had accomplished, I should have
listened. But, I didn't. I was a prosecutor and I was doing
the Lord's work. I was invi ncible. Or so I thOUgllt, until you
convinced me otherwise.
Judge Jefferson, you were the best lawyer I've battled
to this day. You were articulate, passionate and convincing.
You were cleaning up that courtroom and I was your mop.
Thank you for teaching me a valuable lesson that day. And I
hope (although, in my heart, I know it' s too late) that you will
accept my apology for the disrespect I showed you that day.
For years, I meant to find you to apologi ze for my behavior. I
am sorry. You will not be forgotten.
Sincerely, Steve Shellist, Former ADA, CCCL #12.
TOMlAKES:  Judge Jefferson was one of the greatest people
I ever had the honor to meet. He was also the United States
Attorney for the Western District when Carl Walker was in the
Southern Disuict.
I remember going to a seminar that he was the final
speaker at. I was very glad that I stayed to hear hi m. The
theme was, "We are constinltionallawyers, damrnit!" I have
looked back to that for inspiration many times since.
He was rightfully held in awe at the courthouse. He is
listed in JIMS as "Judge Andrew Jefferson" - the only person,
I believe, listed that way.
THE DEFEII DER * 
ic
THE DUD Abides in Our Memories
HON. TRAVIS B. BRYAN III: I first met Dude
in the Fall of 1965 at Texas A&M,
where he was a star fifth-year football
player and I was a lowly walk-on
freshman. When he befriended me, I
knew he was special. Dude, I learned,
always tried to help the little guy.
I saw Dude in one of the most
famous plays in A&M football
history. Early in the second quarter against Texas in 1965,
A&M quarterback Harry Ledbetter bounced an apparent
pass out to wide receiver Jim Kaufman. Kaufman caught the
ball on the first hop and acted disgusted as he headed back
to the huddle. Suddenly, Kaufman lofted a backwards lateral
to Dude, who was 15 yards away. Dude scored on the 91-
yard play. It was the longest play in school and conference
history and helped A&M to a 17-0 half time lead. Dude
also had 13 catches in that game for 150 yards. This, too,
was an A&M record for many years. He ended the season
with 60 total catches for 835 yards and was drafted by the
Green Bay Packers.
It is no surprise Dude and I turned out to be criminal
defense lawyers. We were arrested together in Spring 1966.
We were watching a fight near a local college hangout. The
fighters ran off as the police arrived . We were still standing
there, so we got cuffed and stuffed. We didn't get any
Miranda warnings, so we both gave a statement. When our
stories matched, I guess they figured we were telling the
truth and they let us go. Dude and I laughed about it many
times through the years.
ROBERT PELTON: In the mid-1970s I was working during
the day and attending South Texas College of Law at night .
I had been placed on scholastic probation and had to make
a 90 on my Torts exam or I was out of there. With the help
of Jay Burnett I made a 95 in Torts and the Dean's List. I
met Dude, Jay, Terry Gaiser and Don Hendrix, who were
seniors, when I was a freshman. Jay and Hendrix wanted
to be judges, while Dude, Terry and I wanted to be rich
and famous like Percy Foreman and Racehorse Haynes. We
learned more about law and life at Shelby's, the beer joint
across the street from law school, than we did in class. We
remained friends through divorces, IRS audits, cases won
and lost, and an occasional social drink.
Dude always said that la\vyers are too busy to have
friends, but he had many, including Mike McSpadden, Mac
Seacrest, Todd Bennet, Travis Bryan, Rique Bobbitt and
Bill Johnson.
Dude and I talked often about the Saturday picture
shows we loved as children. I got a picture of Dude's favorite
one, The Durango Kid, which I gave to him along with a
pair of ostrich boots like Durango wore.
THE DEFENDER * 24
II Ken was a IDude
l
in
every facet of his life
ll
• Hon. Jay Burnett
A few weeks ago, some friends of Carson Joachim were
looking at some land that I own in Abilene for use as a deer
hunting lease. I gave one of them the gate key and, when
he couldn't open the lock, I asked him if he was an Aggie.
He replied, "No, but my dad is." I told him that I had a
friend in Houston who was an Aggie named Dude McLean.
"Not the Dude?" he asked. Yes, I said, I am friends with
"The Dude."
HON. JAY BURNETT: I was privileged to have attended law
school and practiced on and off with Dude for about 25
years. We lived in the same neighborhood and shared the
same hairdresser, where he got his hair colored at least once
a month and swapped stories about what a miracle plastic
surgery had become.
Ken was a "Dude" in every facet of his life, from his
meticulous dress to his gentlemanly demeanor. His suits
were tailor-made, often with five buttons in front, and never
did the trousers have back pockets. As he once explained,
"Burnett, if one has back pockets one may be tempted to
put something in them and that, of course, would destroy
the line of the suit. I don't expect you and Bennie House to
understand this concept because you buy your suits off the
rack and are truly no slaves to fashion ."
While Dude loved the ladies, his true mistress was the
law. He never failed to be a gentleman unless he felt that his
client was not getting proper treatment by a prosecutor or
judge. In that case, he might say that the offending party
not only was not curious about the law, but, in fact, "did
not know a law." He epitomized that very rare com bination
of criminal practitioner: a pit bull trial attorney as well as a
highly talented and successful writ and appellate attorney
who won most of his cases without having to go to trial.
He could, and did, do it all. Hardly a day went by without
him calling and asking if you had read a particular opinion
or what you thought about the CCA or 5th Circuit decision
rendered that day. He was a stickler for grammar and
composition and would agonize for hours over a sentence
to convey a particular concept. We would joke about having
to pry his fingers from a brief or writ. His dry and sometimes
acerbic wit, coupled with his never-ending humor, had the
ring of truth which he used frequently in his conversations,
briefs, and writs.
Yes, Dude was a football legend and a criminal lawyer
legend, but most of all he was a legendary and loyal true
friend who we will all miss. It is not often one can claim
to have had a true legend as friend and colleague, but for
those of us who knew him we have and will cherish that
distinction. So long, pal.
Drug Treatnlent  Court  gets Association  Support 
The  Association  donated  $500  to  the  Harris 
County  Drug  Treatment  Court's  Success 
Through Addiction Recovery (STAR) Program 
late  last year. 
In  a  letter  to  Association  president  Mark 
Bennett,  Special  Programs  Manager  Mary 
Covington  stated  that  STAR  was  honored 
to  be  the  recipient  of  the  organization's 
generosi ty. 
"STAR  not  only  assists  clients  in  battling 
drug  addiction  and  dependency,  but  we  also 
struggle  to  maintain  our  daily  operations  and 
financial  obligations  with  limited  resources," 
Ms.  Covington  wrote.  "Your  contribution  will 
allow  us  to  provide  incentives  and  recovery 
support services  that  help  STAR clients  achieve 
their  goal  of  being  responsible,  law  abiding, 
sober  members of the community." 
Holiday  Party  Produces  Donation  for  Hurricane  Ike  Survivors 
The  Association's  Holiday  Party  at  The  Social  for  Mrs.  Hasler and  her  husband,  Rick. 
also  provided  an  opportunity  for  members  to  In  a  letter  to  Association  Treasurer  Steven 
honor 182nd District Court Coordinator Diane  Halpert, the Haslers wrote: "The generosity and 
Hasler, whose home was destroyed by Hurricane  support  of everyone  is  truly  overwhelming  and 
Ike, and  to contribute to a  fund  for  her benefit.  really  helps  ease  our burden  in  what  has  been  a 
Members came through with a total of$810  difficult few  months." 
Mental  Health  Court  Participants  Rewarded  for  Hard Work 
By Stacl Biggar
Every  year,  the  Association  selects  a  Christmas 
project and rewards this project with a monetary 
donation.  This  past  December,  HCCLA 
awarded  a total of $2,000 in varying amounts to 
15  exemplary  individuals  on  the  mental  health 
dockets  in  the  351st  and  the  228th  district 
courts. 
The  mental  health  courts  in  the  351st  and 
228th district courts were established to supervise 
select probationers whose mental illnesses preven t 
them from successfully completing probation. In 
these  courts,  participants  are  highly  supervised 
by  a  trained  team  of mental  health  professionals. 
The  primary goal  is  to  lead  them  to stability with 
medication  compliance,  and  transition  them  back 
into  independent  living.  They  are  represented  by 
counsel at all  times . 
The  Association  chose  to  reward 
participants  who  had  shown  improvement  in 
lifestyle,  medication  compliance  and  a  true 
financial  need.  These  fifteen  people  ranged 
from  a  mother of seven who  had  just obtained 
her  GED  and  enrolled  at  UH  Downtown,  to 
a  participant who had successfully transitioned 
into  independent  living,  was  paying  for  her 
own apartment wi thou t government assistance, 
but  possessed  no  furniture  whatsoever.  After 
hearing  these  and  13  other  touching  success 
stories,  the  Association  Board  voted  to  select 
these  individuals  as  their Christmas  project. 
On  December  18,  2008,  a  ceremony  was 
held  at  the  courthouse.  Association  Treasurer 
Steve  Halpert individually  congratulated  each 
recipient  on  behalf of HCCLA.  On  behalf of 
the  mental  health  court  and  its  very  special 
participants - thank you! 
THE DEFENDER * 25
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WE  CANNOT  DO  IT 
On the date my grand jury commissioners met, they
were presented with a batch of applications and instructed
to compose a list of potential grand jurors that numbered
between 15 and 40 people. The array of applications
permitted them to make a list that was not limited to
whichever of their best friends they thought might show
up for service. Instead, they were able to review the
qualifications of people who had demonstrated a desire to
participate. The commissioners' list is sealed and delivered
to the District Clerk, who then compiles the names and
returns a list to the judge of the empanelling court. A copy
of that list also goes to the District Attorney's office so that
criminal background checks can be run.
Subpoenas are issued to the names on the list, instructing
them to appear in their particular court on a certain date to be
qualified under oath. Once those who show up are qualified,
the judge then selects 12 grand jurors and two alternates. This
selection is made with a careful eye to overall qualifications and
appropriate diversity.
The grand jury empaneUed by the 176th District Court
consists of six men and six women, three of whom are
HispanicjLatino, four ofwhom are African-American and five
of whom are Caucasian. They range in age from 30 to 70. The
two alternates are a Hispanic female and a Caucasian male. It
is my understanding that all five ofthe grand juries empaneUed
by newly elected criminal district court judges are similarly
diverse. Each of the five judges acted independently.
After all this work, I was surprised to open my Sunday
newspaper in early February and learn that two local law
professors had decided that we new judges, a mere five weeks
into our terms of office, had failed in our mission to deliver
the citizens of Harris County from non-representative grand
juries. Gee whiz, President Obama hasn't fixed the economy
yet, so let's throw out the rascal. With only a couple of weeks
to prepare, we could have taken the easy route, maintained
the status quo and presented our grand jury commissioners
with the existing database of names from which to make their
selections, but we did not. Vlfe reached out the best way we
could within our limited time. Real world timelines sometimes
run afoul of ivory tower expectations.
Given more tinle, I expect we will emulate the practice ofsome
of our more experienced judges and ask for volunteers from
our petit jury panels. We did not have trial juries in the month
ofJanuary (which I'm sure will likewise draw criticism), so we
did not have that pool available in time for these grand juries. I
offered applications to a trial venire of 60 people on February
2, and got three takers. Only one of those takers would break
the existing stereotype of the standard grand juror, but all will
go into the selection pool once their applications are received.
General venires frequently fail to proportionately represent
the community at large. Just ask any of the several minority
defendants who have been convicted by all-white juries.
The good professors also need to review the separation of
powers. Implementing an entirely new method ofempanelling
grand juries will require change at the legislative level.
Judges don't make the law; they interpret it. We are statutorily
authorized to gather grand jurors in only two ways:
1. the commissioner system, and
2. summoning an array of 20 to 125 prospective grand
jurors, who are qualified and empanelled in the same
manner as through the use of commissioners. Making
applications available to historically disenfranchised
segments of our community, so that more names may be
submitted to the grand jury commissioners, is a much
more straightforward method of ensuring diversity
than relying upon the random call of a venire that
experience teaches may grossly under-represent all but
the Caucasian constituency.
All judges want the community to be educated about the
grand jury process because the legitimacy of the system
depends upon acceptance of its institutions. Clearly, there
is a lot of work to be done when even some of those
who teach "criminal justice" are unclear on the concept.
We welcome participation by all those who are more
interested in construction than they are in destruction.
We cannot do it alone.
SHAWNA L. REAGIN is Judge of the 176th Criminal District Court and the
immediate past editor-in-chief of The Defender.
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