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EDITORIAL REVIEW:: JoAnne Musick
Earl Musick
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CONTENTS
4 :: AWord from our President
by JoAnne Musick
5 :: Winning Warriors
8 :: HCClANews Roundup
10 :: Rules ofthe Road
by James Makin &J.D. Hamm
11 :: Through Bandaged Eyes:
Batson Seen in HarrisCounty
by Sarah V Wood
14 :: The Viewfrom the DefenseTable:
FurtherReform Neededin
HarrisCountyCriminal JusticeSystem
by Grant Scheiner
16 :: The Viewfrom the Bench:
Clearwith aChanceofThunderstorms
by Shawna L. Reagin
18 :: Criminal Defense:
In theAgeofMySpace& Facebook
by Ken Strutin
20 :: CheckThat Parachute!
SuggestionsforVoir Dire on ReasonableDoubt
by L. T. Butch Bradt & Betsy Grubbs
24:: Practice in aShoebox:
DisasterProofingYourPracticein 10 EasySteps
by Patrick F. McCann
26 :: HCClACelebrates 39 Years
28 :: Fallen Warriors
by Mike Hinton
30 :: Investigative Corner:
The411 on Cell PhoneRecords
by Jim Willis
31 :: Membership Drive - 500+ Members!
THE DEFENDER CD
awordfrom our
ThroUghoutthepastseveralyears,Ihavewatchedand
participated as ourAssociation has grown into the finest
and largest local criminal defense bar in the state. I am
deeplyhonoredto have beenelectedpresidentofsuch an
outstandingorganization.
AsHCCLAhasgrown,wehavegarneredstrengthand
respect: strength from our members, respect from our
actions. Weareaprofessionalorganization,servingour
members and improving the system within which we
work. We must continue this journey toward success,
without regard to personal motives, but with an eye
toward justice. To be respected, we must first respect
others: ourmembers,ouropponents,and ourjUdiciary.
Weshould always fight the good fight but be
mindful that ours is an intellectual fight.
NaIve as it may be, I thought the fight was at least
supposed to be fair. Sadly, I continually find myself
surprised at the amount of intellectual dishonesty in
the criminaljustice system. Is it really better to free a
hundredguiltymenratherthanconvictjustoneinnocent
man? Read some appellate opinions and you might
think it's harmless to convict just one innocent man.
ReadtheTexasDistrict& CountyAttorneysAssociation
(TDCAA) weeklycase summaries and you mightthink
defendants are presumed guilty. (Note: I have read the
constitution, and Ialways thought it was the otherway
around... couldIbemistaken?)
CD THE DEFENDER
rejl
I'd like to share a few quotes from the TDCAA case
summary commentaries, and see ifyou can help me
understandtherulesandplayfair:
1. With regard to jail credit: "Wow. This shows one
very patient trial judge. The dej(mdant got the benefit
ofevery doubt ...[aJnd the failed probationer still wants
to complain. Fortunately, the court of appeals applies
a very reasonable interpretation of the law to prevent
credit for time served in county jail on amendments. Hi
Hmmm...Ithoughtdefendantshad aright to complain.
I thought that was called an appeal. But I guess they
shouldjusttake what they get. It'sprobably harmless
anyway.
2. Regardingan errorbythe government: "This is just
the latest in a series ofcases in which the court has held
that a defendant is entitled to credit for jail time during
a time period in which he definitely was not in jail. Am
1 the only one who has a problem with this? Okay, so he
was incorrectly released. 1 get that. And maybe he does
not have any responsibility to tell the authorities that he
was being incorrectly released. Maybe. But does that
mean that he gets jail time credit when he was not even
incarcerated? "ii Gee,Ithoughtweheldthegovernment
responsiblefor its ownmistakes. Iguessthedefendant
shouldjustsuckitup andrelievethestateofanyfault.
3. And my favorite: "Fortunately, the mistake in this
case was made harmless by the horrible facts of the
original crime. "iii Yes, Virginia, the endsdojustifythe
means.
Well, as I clearly don't understand, I'll wait for one
ofyou to explain it to me! Until then, I'll try a little
intellectual honesty. See ya 'round the courthouse
puttingupthegoodfight!
i TDCAA WeeklyCaseSummaries: May 15,2009,
Commentary ofGutielTez v. State. CiteNo. 11-07-00322-CR, 11thCourtofAppeals.
ii TDCAAWeeklyCaseSummaries: April 3, 2009,
Commentary ofEx parte Baker, CiteNo. AJ'-76,031,Tx CourtofCriminalAppeals.
iii TDCAA WeeklyCaseSummaries: May 8, 2009,
COmmefllGlY ofSmilh v.Siale, CiteNo. AJ'-75,479,Tx CourtofCriminalAppeals.
Proving that it pays to know science, BOB WICOFF obtained the release
of Gary Alan Richard after 22 years in prison when his investigation showed
that Richard could not have been the source of the semen in the rape and
robbery that led to his conviction. HPD crime lab analyst Christy Kim
wrongly linked Richard to the crime. Prosecutors reportedly agree the new
results contradict the original lab evidence but have said they do not know if
Richard is innocent. Richard, meanwhile, has been released .
. . ...... . ............ ... . ........ . ...... . .......
Five years of pro bono toil by BRIAN WICE resulted in Judge Jim Wallace
recommending a new punishment hearing for Susan Wright, convicted
of murdering her husband and burying him in the backyard. Wallace's
recommendation followed a three-day evidentiary hearing and was based on
a finding that the defense should have called an expert in battered woman's
syndrome, and the husband's ex-fiancee, to corroborate the reasonableness
of Wright ' s claim of sudden passion. Brian thanks STAN SCHNEIDER,
CARMEN ROE, a team of unpaid experts - Jerome Brown, Toby Meyers,
Shelby Moore, and a quartet of criminal defense lawyers who provided
affidavits regarding the standard of competence in such a case.
In a trial-by-fire that had HCCLA members on the edges of their seats
in the I74th District Court, VIVIAN KlNG and TE'IVA BELL won a
magnificent Not Guilty for a client accused of sexual assault. The trial was
an especially fraught battle because Vivian and Te'iva's investigation showed
their client was actually innocent. Vivian credits STEVEN HALPERT for
rounding up moral and legal support when the court initially did not seem
to understand either the right to present a defense or the Supreme Court's
holding in Holmes v. South Carolina. And did we mention that this also was
a victory for The Second Chair Program?
SCOTT PAWGAN won a lesser-included verdict of Manslaughter in a
prison-murder case in Polk County despite his client's outbursts throughout
the trial in front of the jury. In the run-up to trial, Scott learned that his
client suffered from a severe, longstanding, and untreated mental illness.
The client was declared incompetent three times. Scott identifies KATE
SHIPMAN, his second-chair, as key to the victory and says that the verdict
opens up punishment options that will allow the client's mental illness to
finally be treated. "I think we very well could have saved this client's life
by beating the murder charge," Scott says. We agree.
Capping years of meritorious service and a recent stint as Parliamentarian,
JIM LAVINE has been elected First Vice President of the National
Association of Criminal Defense Lawyers. By our calculations, that
means Jim will become President of NACDL in August 20 II, making
him the second Past President ofHCCLA (EDWARD MALLETT was
the first) to become NACDL President and the third area attorney (JOHN
ACKERMAN being another) to lead the national organization.
After a five-day trial in the 185th District Court, ALLEN TANNER and
STEVEN HALPERT left with a misdemeanor conviction and probation in a
shooting case where the pre-trial offer was 25 years TDCJ and the allegation
was the client shot his girlfriend in the head. Though she survived, she is
now blind. Tragic as the facts may be, evidence established that the shooting
was accidental.
Although the client was accused of the capital murders of two men, TODD
WARD took death off the table with a thorough mitigation investigation and
a showing that the client actually acted in self defense. Later, in a testament
to Todd's lawyering, the State offered 10 years on straight murder.
THE DEFENDER CD
WinningWarriors
If we could amass the string of victories that JEFF PURVIS
obtained in two weeks' time, we just might retire. Or double our
fees. First, Jeff tried back-to-back misdemeanors and got Not
Guilty verdicts on both. Then, Jeff won another Not Guilty-
this time for a client facing 25-to-life on three counts of deadly
conduct. Tom Stickler reports, despite eyewitness testimony and
a suggestive photo lineup, Jeff destroyed the State's witnesses
through aggressive impeachment and logical argument.
Over in County Criminal Court-at-Law No.4, EQUATOR
TURNER got a Not Guilty in an Assault - Family Violence
case. Equator's defense was so good that jurors were overheard
complimenting it after delivering the acquitta1.
In a drug possession case involving 618 Jbs. of marijuana and
masses of drama, NORM SILYERMAN won probation for his
client [rom a jury in the I80th District Court while setting up a
great appeal. At merits, the jury twice advised the court that it
was hung and that further deliberations would not help. Jurors
indicated the only way they would reach a verdict was for the
lone juror who favored acquittal to violate his conscience. Norm
sought a mistrial , which was overruled. Instead, the jurors were
sent home and told to return the next day. They reached a guilty
verdict within 10 minutes. We are betting on a re-match after
the appeal.
............................................
In still more drug-related news, NORM SILVERMAN
won suppression before visiting Judge Don Stricklin in a
cocaine-possession case where the probable cause was alleged
to have been public intoxication at an after-hours club. Norm
credits CLINT DAVIDSON and DAPHNE PATTISON as
instrumental to this victory.
............................................
Inthe short space of one month, TYLER FLOOD proved to
be a defender without peer in two counties. First, Tyler fought
brand new Montgomery County ADA (and former HCCLA
member) Amanda Webb to a hung jury that split 5-1 in favor
of acquittal in a Boating-While-Intoxicated case. Perceiving
its case to be up a creek without a paddle, the State dismissed.
Then, in Harris County, Tyler obtained a Not Guilty in a bench
trial in the 1 77th District Court in a DWI involving a child
passenger and a .14 breath test. (Tyler gained the acquittal after
persuading Judge Kevin Fine to suppress the HGN and arrest
based upon insufficient evidence and the arresting officer's
lack of independent recollection.) Continuing, Tyler obtained a
Not Guilty in the 176th District Court on a fourth-offense DWI
involving a defendant who collided with another car at a red
light after failing to brake.
............................................
Not Guilty was the verdict in PAULA GOODHART and
CRAIG GOODHART's first trial as defense attorneys. The
client was a habitual offender charged with Possession of a
Controlled Substance in the 182nd District Court.
CD THE DEFENDER
MICHELLE BECK went through the wringer and came out a
winner. First, she got a hung jury in County Criminal Court-at-Law
No.2. While that jury was deliberating, the judge (Harmon) began
telling the prosecutor how to get a conviction the next time. So,
Michelle got Hizzoner recused and was sent to County Criminal
Court-at-Law NO. 9 for the rematch, where she pulled out a Not
Guilty.
............................................
With her client facing 15-to-life on an Aggravated Robbery,
HATTIE SHANNON won an instructed verdict of acquittal
from Judge Hazel B. Jones in the 338th District Court when the
complaining witness could not positively identify the client at trial.
Hattie comments that the defendant's appearance had not changed
between the initial identification and trial, which makes us wonder
just what the arresting authorities did to obtain the IDin the first
place.
............................................
The client was charged with possessing 400 grams of cocaine with
intent to distribute, but NORM SILVERMAN persuaded Judge
Belinda Hill to suppress every last gram. Seems an undercover
officer told the uniformed officer who actually made the stop that
the client had failed to signal a lane change. Norm's brief pointed
out that Chapter 14 of the Code of Criminal Procedure does not
allow an officer to stop a vehicle for a traffic violation he did not
witness.
............................................
Are the days of "vampire warrants" - warrants for involuntary blood
draws - numbered? JOSH SCHAFFER got the results of such a
warrant suppressed in County Criminal Court-at-Law No. II and
JED SILVERMAN won suppression on another such warrant in
County Criminal Court-at-Law No. 15. Josh noted that his victory
was aided by the fact the standard probable cause affidavit used by
HPD had a defect.
JED SILVERMAN got a mid-trial motion to suppress granted when
he caused the police officer to agree the traffic offense of failure to
maintain a single lane consisted solely of two tires going over the
lane marker. Judge Reagan C. Helm grasped that a valid violation
of the law requires not only movement from the single lane, but also
evidence that the movement was unsafe. Reportedly, Judge Helm
declared the trial over and left the bench.
After providing a Harris County grand jury with a complete package
of evidence and his client's testimony, CARL R. PRUETT won
no bills in a case that included one charge of possession of a
controlled substance with intent to deliver and two charges of child
endangerment. Says Carl of his grand jury strategy: 'This really
needs to be done more often now, especially with more diverse
grand jurors empanelled by our new Democrat Judges."
A woman went to ask her upstairs neighbors to quit making such
a racket and was charged with trespassing. LANA GORDON
convinced the court that there was no probable cause, and the
prosecution dismissed the case.
Are there any sweeter words than Not Guilty? How about
"Dismissed!" After nearly two years of litigation, JAMES
ALSTON, JOHN PATRICK SMITH, WENDELL ODOM, JR.,
NEAL DAVIS, GORDON DEES, DA VID GERGER, JEROME
GODINICH and FRANK SHEPPARD got multiple federal
mortgage fraud charges dismissed against their clients. Even more
incredibly, dismissal came on the motion of the government in the
Southern District of Texas.
Look in the dictionary for a definition of "tenacious" and you're likely
to find RONNIE G. HARRISON's picture. After six months, two
prosecutors, and two Harris County grand juries, Ronnie won a No Bill
for a client accused of child endangerment. The key to cutting off the
prosecution at this pass? A persuasive grand jury packet.
In a sexual assault case where the complaining witness made contradictory
statements and initially wanted to file an affidavit of non-prosecution,
SCOTT PAWGAN persuaded a Montgomery County jury to return an
acquittal.
And, in County Criminal Court-at-Law No. I, JOE RAY RODRIGUEZ
got a Not Guilty verdict on an assault case where the State chose not to
call the complaining witness but relied on eyewitnesses and a 911 tape.
Joaquin Jimenez reports that the State's strategy failed when Joe Ray's
cross established the 9JI tape sounded a bit misleading when it was in
fact a heated argument rather than an assault.
In a bench trial in County Criminal Court-at-Law No.8, DORIAN
COTLAR won what he describes as a "big, fat Not Guilty" on behalf of
a Harris County reserve deputy sheriff wrongly accused of violating the
Private Security Act for allegedly receiving remuneration as a "courtesy
officer" at an apartment complex. Dorian's work released the client from
two-and-a-half years of court-imposed limbo and gave Dorian's law clerk,
Austen Hobbs, a close-up view ofjustice.
BONNIE ROGERS got a motion to suppress granted in County
Criminal Court-at-Law No.5.
The case was about to go to trial, but JIM SULLlV AN and NANCY
BOTTS persuaded Montgomery County prosecutor Rob Freyer to dismiss
an Aggravated Sexual Assault of a Child. Jim and Nancy showed the
allegations were triggered when their client confronted his wife about her
infidelity and said he wanted a divorce.
JIM SULLIVAN also got four counts of Manslaughter dismissed against
an 18-year-old client who was found to be incompetent and unlikely to
regain competence. The charges were first filed in juvenile court, when
the client was 15, and stemmed from a car wreck that killed the client's
five-year-old sister, his 16-year-old best friend, and two teenage girls.
The wreck left the client with serious brain injuries.
JOHN PETRUZZI blanked the State in County Criminal Court-at-Law
No.9 on behalf of a client who is a long-haul trucker.
TODD DUPONT capitalized on the State's errors to lead the jury to a
Not Guilty in a OWl case in County Criminal Court-at-Law No. 10.
BRIAN WICE won a motion for new trial when Judge Maria Jackson
found trial counsel was ineffective in an Aggravated Assault case
stemming from a post-midnight moving party initiated by hooligan
friends of the client's ex-girlfriend. The jury had found the client
pointed a shotgun at the hooligans after they damaged a lawn ornament.
Brian's work showed that even though trial counsel had color photos
of the property damage in his file, he failed to seek a jury instruction
on attempted use of deadly force to prevent commission of criminal
mischief at night.
KATE SHIPMAN received a mistrial in Montgomery County (410th
District Court) for a habitual offender charged with an assault. By the time
this hits print, Kate likely will have finished the double jeopardy claim.
Knowledge of decomposition helped GRANT SCHEINER and LEIRA
GRACIA compose the foundation of a Not Guilty verdict in a OWl
case based on a "vampire warrant" blood test. Key to the victory was
whether the sample had been refrigerated and the effect that the lack of
refrigeration would have had on the sample's alcohol content.
In spite of a videotape showing a slurring, stumbling client, STEVEN
TOUCHSTONE persuaded a jury in County Criminal Court-at-Law No.
15 to return a Not Guilty verdict. Tucker Carlson sat with Steven and,
in the words of Todd Dupont, "watched the magic unfold." Todd also
notes that the win provides "a valuable lesson in trying the perceived
losers."
.............................................
JUAN L.GUERRA and SARAH WOOD won a motion to suppress
in the 228th District Court, and the State threatened to seek a writ of
mandamus against Judge Mary Bacon rather than dismiss. According
to Juan, Sarah's work on the case was so persuasive that Judge Bacon
granted the suppression motion "five minutes into the hearing." Hmm.
Doesn't exactly sound like a slam-dunk winner for the State on appeal,
does it?
.............................................
KELLY CASE hung up the jury in an indecency case and thus
prevented Warren Diepramm from ringing up a victory in his first trial
as a Montgomery County prosecutor.
Second time's a charm! Especially when defended by JOE WELLS.
In an Assault - Family Violence, the first trial in County Criminal
Court-at-Law No.3 ended with the jury hung 5-1 for guilt. Upon
retrial, the jury acquitted Joe's client after a mere 30 minutes.
THE DEFENDER 0)
~ t 1lvtvtect! HCCLA DistributesLapel Pins to Members
If you are an HCCLA member and you have a problem with a
court or a prosecutor and you believe you need the assistance
of the HCCLA Strike Force, we are here to help you.
Robb Fickman, the HCCLA Strike Force Coordinator, is
available to dispatch a team to your aid: Ofc 713-655-7400 or
Cell 713-962-8821. If he is unavailable, contact immediate
Past-President Mark Bennett or President loAnne Musick to
request Strike Force assistance. Give us an overview of the
situation, and we will determine what action to take and send
committee members as appropriate.
Our team of Strike Force volunteers consists of:
Sam Adamo Danny Easterling Daphne Pattison
Te'iva Bell Cynthia Henley Carl Pruett
Dorian Cotlar Paul B. Kennedy Cannen Roe
Eric Davis Troy McKinney Chris Tritico
Nicole Deborde Earl Musick
Practice law ethically, and you will make our decision
to assist you, and our representation of you, much
easier. We are here to help and serve our members.
CD THE DEFENDER
Robb Fickman &
Richard "Racehorse" Haynes
Showyourpride in ourAssociation by wearing your
HCClApin. Special thanksto Vice-PresidentEarl
Musickwho led effortsto havethe pin designedand
produced and is noworganizing distributionto all
members in good standing.
Member Paul Kubosh is amongthosewearing the
lapel pin. "I am proudto be a memberof
thisorganization,"he said. "Youfight
and loveeach otherlike brothersand
sisters, like husbandsandwives. I
wearthe pin everydayand will never
evertakeitoff."
To getapin. see JoAnne Musick. Robb Fickman or Earl Musick.
each ofwhom haspinsto distribute.
1 United States v. Ellis Joseph Mosher, Cause No. 06-CR-1 01 (E.D.
Tex. 2008). This federal death penalty prosecution ended with
the imposition of a life sentence after the jury deadlocked in
the punishment phase.
J.D. Hamm and James Makin are criminal defense lawyers
based in Beaumont.
THE DEFENDER CD
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THE DEFENDER
the United States.
4
There are more African American
men of all ages in prison in Texas than in the higher
education system.
5
In August 2003, the Bureau of Jus-
tice Statistics reported that if incarceration rates con-
tinue at these levels, one in three African American
men born in 2001 will serve time in prison at some
point during their lives.
6
These are among the reasons
why Judge Barr's egalitarianism in preventing a proce-
dural inequity should not go unnoticed.
As no less than the Supreme Court has recognized:
"Purposeful racial discrimination in selection of the
venire violates a defendant's right to equal protection
because it denies him the protection that a trial by jury
is intended to secure."7 The protective force of a jury
comes from the fact that it is to be composed of one's
peers, one's neighbors, fellows, and associates.
8
Ex-
plained the Supreme Court in Batson:
"The harm from discriminatory jury selection extends
beyond that inflicted on the defendant and the excluded
juror to touch the entire community. Selection proce-
dures that purposefully exclude African Americans
from juries undermine public confidence in the fairness
of our system ofjustice.
9
It may seem insignificant for one African American
man to be tried by an all-white jury, but when proce-
dural fumbles like this one here are repeated systemi-
cally throughout our local and national justice systems,
they produce the vast inequities shown by the statistics
above.
Some local controversy was created when District At-
torney Pat Lykos reacted by disciplining the prosecu-
tors responsible for the sustained Batson challenge.
lo
District Attorney Lykos did seem intent on sending a
message that her administration would not tolerate the
appearance of racial impropriety when she was quoted
on the front page of the Houston Chronicle. II
THE DEFENDER
"There is not invidious racism involved here, but negli-
gence or incompetence if you will. If I thought for a
moment that there were racial motives, they would
have been fired," she said.
12
Interestingly, a consensus quickly emerged that these
were ethical prosecutors. Even defense attorney Davis,
whose own client was deprived of his rights, comment-
ed, "I was surprised when it happened. The prosecutors
were people I had known and respected for years."
It is precisely because the offending prosecutors were
good people that District Attorney Lykos must go fur-
ther to correct the situation. If these two well-meaning,
good-intentioned lawyers failed to see that they had de-
prived a defendant of a jury of his peers by perempto-
rily striking seven African Americans, then their train-
ing was sorely lacking.
According to the commentary to Texas Disciplinary
Rule of Professional Conduct 3.09, "A prosecutor has
the responsibility to see that justice is done, and not
simply to be an advocate." For a conviction to be just,
it must be given by a jury of one's peers. Therefore, it
is a prosecutor's duty not to create ajury that will con-
vict, but to create a jury that will be just. Pure advo-
cates strike jurors who may sympathize with the oppo-
sition; justice seekers strive to keep them.
Given that issues of race and fairness permeate the
criminal justice system, it seems that some type of
racial sensitivity training should be standard practice
within any district attorney's office. However, Robert
Kepple, the executive director for the Texas District
and County Attorneys Association, had this to say:
"I will confess that in my 18 years at TDCAA, it never
occurred to me that our association should be talking
about how race impacts our offices, our profession, and
ultimately the work we do in our communities. Even
though mostlawenforcementagenciesand manyother
organizations and businesses regularly provide diver-
sitytraining,weas prosecutorsdidn't- until the Elect-
edProsecutorConferencein December[of2008]. "IJ
Stunningwords. Perhapstheyexplaina lot.
Some optimism should grow from these events. A
goodjudgedid the rightthing. ThenewDistrictAttor-
ney recognized a problem and made a bold statement.
Perhaps theTDCAAhasfinally realized that race does
impact prosecutors' offices. And the assistant district
attorneys were not invidious racists. Theywere good
men who made a mistake thatmight becorrected with
soundtraining. Forthesakeofall ourwell-intentioned
prosecutors, let us teach them how to bestseekjustice
and notjustget convictions. Most importantly, how-
ever, we must remember the man who sits waiting in
jail for another trial - for he may have forever lost the
onejurythatwould havesethimfree.
I Batson v. Kentucky, 476 U.S. 79(1986).
2 FrederickDouglass, Speech on the occasion oftheTwen-
ty-FirstAnniversaryofEmancipation in the DistrictofCo-
lumbia,April 16, 1883.
3 Jason Zeidenberg&VincentSchiraldi ,RaceandImpris-
onmentin Texas (JusticePolicy Institute2005).
4 MarcMauerandRyanS.King. Uneven Justice:State
RatesofIncarceration By RaceandEthnicity, 4(TheSen-
tencing Project- July 2007).
5 RaceandImprisonmentin Texas ,at 1.
6 ThomasBonczar,PrevalenceofImprisonmentin the u.s.
Population, 1974-2001 (Bureau ofJusticeStatistics2003).
7 Batson,476U.S. at 86.
8 Strauder v. West Virginia, 100 U.S. 303,308(1880).
9 Batson, 476U.S. at 86.
10 See,e.g., EricDavis'onlineblogSustained! at
www.myobjectionis.com;MurrayNewman's blogLifeat
theHarris CountyCriminalJustice Centerat
www.harriscountycriminaljustice.blogspot.com;Mark
Bennett's blogDefendingPeopleat
www.bennettandbennett.comlblog.
II BrianRogers,DA: PROSECUTORSWEREINCOMPE-
TENTLykosdockspay,suspendsthe twoafterseven blacks
stnlckfromajuryJURYAll-whitepanelthrown out, Hous-
ton Ctuonicle, at 1(Mar. 27,2009).
12 Id.
I) RobKepple,DiversityTraining,39 (No.1)TheProsecu-
tor: Newsletterofthe Texas Districtand CountyAttorneys
Association (Jan.-Feb. 2009).
Sarah V Wood isacriminaldefense attorneyanddirects
The SecondChairProgram. Lastyear, theAssociationhon-
oredherasan UnsungHero.
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THE DEFENDER @
TheViewfromtheDefenseTable
___ . ..: __ ." ...,_, ,I. , __ 0 __ '._ '.. '_
The Harris County criminal justice system has improved
noticeably since the 2008 election, but we shouldn't be lulled
into believing that our work toward building a better, fairer
criminal justice system for the people of Harris County, Texas,
is close to done. There still is vast room for improvement.
But we should not let an opportunity for early assessment pass
without first giving credit where credit is due. The gold medal
for early reform goes to newly elected District Attorney Pat
Lykos, who deserves major applause for her office policy of
providing defense attorneys with copies of offense reports upon
request. Nothing has done more to level the playing field and
ease what has long been an unnecessary point of tension
between prosecutors and the defense bar. The policy is no doubt
saving taxpayer dollars (mostly for court-appointed lawyers,
who are no longer required to waste billable hours taking
handwritten notes of offense reports) and building trust between
prosecutors and defense lawyers, because there is less of a
mystery about the strength of the State's cases against criminal
defendants. Judges surely do not miss the needless interruptions
in the middle of trials, when defense attorneys request additional
time to examine offense reports, prior to cross examinations.
The District Attorney's system for supplying offense reports is
still fairly new and could benefit from a couple of small tweaks.
First, the procedure for requesting and then physically obtaining
the reports needs to be more consistent from court to court.
(Either that, or defense attorneys and rank-and-file prosecutors
need better education on what the procedure is.) Second, District
Attorney Lykos should make it clear that witness statements are
considered part of the offense report, for purposes of pre-trial
discovery. There is no good reason why the logic for supplying
offense reports well in advance of trial does not also apply to
witness statements.
Several of our new judges deserve early credit for taking a
fresh look at the Harris County bail process. (I'll have a bit more
to say about this later.) ,In particular, newly elected Judge
Shawna Reagin of the l76th District Court is ordering greater
use of pre-trial bonds, for defendants who might otherwise
languish in jail, because they can't afford both an attorney and a
bond. I hope that more and more of our judges will follow this
lead and ease the expensive, unnecessary and possibly
dangerous overcrowding of our local jails.
Finally, newly elected District Clerk Loren Jackson has
applied common sense and modern technology to tackle two
long-standing issues that few people even recognized as
problems. In his first day in office, District Clerk Jackson
(without any fanfare and merely an eight-inch by II-inch sheet
of colored paper) set up an attorney window in the criminal
section of the District Clerk's Office. For some odd reason,
Jackson's predecessors never considered that keeping defense
attorneys - and, in the case of court-appointed attorneys, who
often bill Harris County taxpayers by the hour - waiting in line
for court document, was a waste of public resources. District
Clerk Jackson saw a problem and simply fixed it. However, the
District Clerk 's anticipated roll-out of an automated calendaring
system for lawyers (which is currently in beta testing), as well as
eventual plans for an electronic document system and e-filing
for attorneys, may eventually yield some of the greatest benefits
for practitioners and citizens alike.
But I said at the outset that we still have work to do. Following
are some suggestions that I sincerely hope our public officials
t consider:
Judges must make greater use of personal bonds and 1 I
r uced bail, particularly for non-violent, first-time offenders.
The Harris County jail system is filled to near capacity. The
county has been forced to ship excess prisoners to Louisiana at
taxpayer expense. The county jail situation is dangerous and
invites civil lawsuits. Harris County criminal judges can ease
jail crowding by working with the Harris County Pretrial
ices Department to identify and release low-risk inmates.
2 2. Judges must curb their overuse of "special conditions of
a' ." Many judges routinely - and with apparently little
attention to individual circumstances - set conditions of bail
which bear little relationship to the goals of promoting public
safety and insuring that defendants show up for their court dates.
(For example, some judges routinely order drug and alcohol
testing for defendants, whose charged offenses having nothing
to do with drugs or alcohol.) Special conditions of bail often
waste the resources of the Harris County Pretrial Services staff,
which is charged with the responsibility of monitoring. It is
important for judges imd the public to understand the
relationship between special conditions of bail and jail
overcrowding, which is the predictable result when defendants
can' t live up to special (and often irrelevant) conditions of their
release. On a practical level, we should all recognize that it does
little good to require a non-drug offender to miss an entire day
of work, every three weeks, because he sometimes has to wait
until 4:00 p.m . to urinate into a cup at the Pretrial Services
f) artment.
'
3 A few judges have been quick to forfeit bonds and throw
people into jail for being a few minutes late to court or for
failing to hire a lawyer. Some judges merely threaten to throw
people into jail for showing up without a lawyer. These practices
reflect poorly on the judiciary and must stop. For judges who
revoke bonds and then refuse to set a new bail, defense attorneys
and prosecutors should firmly - and on the record - remind
judges that a refusal to set new bail almost always violates the
4
a
as Constitution. See Tex. Const. art. T, Ila.
Judges should strongly consider waiving defendant
earances for routine, pre-trial settings. Anyone who has
been to the Harris County Criminal Justice Center can tell you
that it is chaotic and extremely over-crowded every morning.
Defendants have difficulty getting to their courts (which
sometimes results in their bonds getting revoked) and victims
and witnesses sometimes miss court settings altogether. Given
@ THE DEFENDER
)
.that the criminal courthouse suffers from an extremely poor
design and that even our stairwells are closed to the public,
judgesshoulddowhattheycanto alleviatethe numberofbodies
in the courthouse. Judges and the public should also recognize
that requiring defendants to miss work hurts family and hurts
10 al businesses.
Judges must restore sanity to the Harris County "Bail
edule," which often requires people accused offelony drug
or theft crimes to post bonds larger than people accused of
murder. Judges should eliminate the practice ofsetting drug
bonds at twice the "street value" (whatever that means) ofthe
drugs and setting theft bonds at twice the value of the
merchandise. The Houston CourtofAppeals has criticized this
practice yet manyjudgescontinue to follow the Bail Schedule,
setting arbitrary and unreasonable bonds. See, e.g., Ex Parte
Bogia, 56 S.W.3d 385 (Tex. App. - Houston [1st Dis!.] 2001)
(rehearingoverruled).Thispracticecontributestojailcrowding
and often cause people- presumed to be innocent- to languish
in jail for many months, waiting for their trials, because they
Iy don'thave enough money to postasteep bail.
The District Attorney's Office needs to reconsider its
tice of automatically charging a person, accused of
possessing four or more grams of cocaine, with a delivery
charge.It is unacceptable for prosecutors to claim that while a
defendant"might" have been involved in an eventual delivery;
it is ultimately a question for the jury to decide. Charging a
person with a crime for which there is little facial proof is
unethical and wrong. Further, the difference between a
possession chargeand adelivery charge- even ifagrand jury
eventually rejects the delivery charge - is often the difference
between a defendant's ability to bond out of jail, versus
languishing in an over-crowded jail and losing his job while
I
I .ng all hope.
Someofourverybestjudgesroutinelyengagein "enmasse
j2l s," in which several or more jail defendants are chained
togetherand broughtfrom theirholdovercellsto plead guilty in
open court. Cattle-call pleas may be convenient and even
efticient, but the practice looks bad and sends the wrong
messageabout metingoutindividualjusticein individual cases.
And then there are disputes that sometimes break out in the
holdover cells and in the jails between defendants and their
lawyers because some defendants believe they didn't get as
, ood adeal" as apersonchained beside them in opencourt.
It 8 Judges must adequately compensate court-appointed
rc ers so that court-appointed lawyerswon'tfeel pressured to
take on more cases than they can handle. Compensation for
court-appointed lawyers has improved slightly in recent years,
but it is still far less than what lawyers need to make ends meet
effectively representtheirclients.
' a
'1 9 udgesand theirstaffs mustalwaysstriveto beprofessional
polite, and they should require the sameofthe practitioners
who appear in their courts. The best way for ajudge to ensure
Judgesmustrestore
sanitytotheHarris
County{{Bail Schedule,"
whichoftenrequires
peopleaccusedoffelony
drugortheftcrimesto
postbondslargerthan
peopleaccusedofmurder.
professionalism in the courtroom is to lead by example.
Professionalism means being patientand givingeach side afair
hearing. It means refraining from facial expressions, sighs,
rolling ofthe eyes or emotional displays (in particular,when a
witness testifies) in opencourt.
Servingas acriminalcourtjudge,prosecutor,defenseattorney
or an elected official in America's fourth-largest city is a
dauntingand an oftenunderappreciatedchallenge.ButIbelieve
that our newly elected officials and our seasoned veterans are
verycapableofleadingthe way in ourcollectivepursuittoward
excellence.
So far,in 2009,they' re offto aprettygoodstart.
Grant M. Scheiner is the principal ofScheiner Law Group, pc.
He is a long-time member of HCCLA and is Board Certified in
Criminal Law by the Texas Board of Legal Specialization. He
gratefully acknowledges his friend and colleague, Robert
Fickman, whose holiday "wish list" for reform in the Harris
County criminal justice system formed the initial basis of this
opinion piece. The views expressed here are Mr. Scheiner 5 own
and are not necessarily those of the Association.
THE DEFENDER
By Hon. Shawna L. Reagin
When I was a defense lawyer, I resented being questioned
about my reasons for resetting a case, setting it for trial or re-
questing a hearing. I figured that I should be considered compe-
tent enough to decide what needed to happen with my client's
case and that lowed no one else any explanation, other than to
say we were not accepting the plea offer. However, I dimly real-
ized that such court policies were probably implemented be-
cause of "a few bad apples," for whom we all must be punished.
Having now been on the bench for a few months, I have dis-
covered that those policies were necessary for about 85 percent
of the lawyers, not just a few. Little did I know how extremely
rare it would be to see lawyers who show up for court, take care
of business, are able to identify the issues in their cases and who
know even the most rudimentary criminal law. This is not some
20/20 hindsight of "Oh, I was the best trial lawyer in the world
and you people are losers." What I'm talking about is the un-
willingness or the inability to demonstrate basic courtroom eti-
quette and the educational level of a first-year law student. And
for those of you keeping score at home, the most egregious ex-
amples have been retained lawyers (although a few of the
court-appointeds give them a run for the money).
Here is a sampling of what I've seen so far:
Lawyer is told at least 10 days before trial that he is number
one to pick a jury on trial date. This warning is repeated two
days before trial date and then one day before trial date. Lawyer
appears enthusiastic, says he is ready and never mentions a con-
flict. The morning of trial , lawyer goes to another court and tries
to begin a bench tria I, without telling judge that he is set to pick
a jury. Does not appear in trial court, nor contact trial court;
sends a minion as jury is I ining up in the hall to announce he has
decided to do his bench trial in the other court instead of picking
a jury. This motion was denied .
Client has been in custody 596 days. Lawyer has been on
case almost one year, is advised at pretrial conference two
weeks before trial date that he is number one with a bullet.
Lawyer is questioned about conflicts, pretrial issues, etc., and
assures court he is ready to go. Lawyer re-confirms the day
before jury selection is set. As the jury is en route from jury as-
sembly, lawyer appears and advises court he has learned there
might be some DNA in the case. This information had been in
the offense report from the beginning. Lawyer had no written
motion for continuance. Jury must wait in hall while lawyer
sends off for a written motion, which must be granted to avoid
probable writ reversal for ineffective assistance of counsel.
Client is advised he will probably have to wait another year for
trial, due to court's backlogged trial docket.
Lawyer pleads client to a PSI, requesting probation. Lawyer
does not respond to probation department's numerous requests
for information and does not submit his client's statement.
Mentally-impaired client must prepare his own statement, with-
out assistance. Lawyer brings another statement late the after-
noon before the hearing is set, then does not show up for the
hearing until approximately II :30 a.m ., as witnesses wait.
THE DEFENDER
Attempts to reach by phone are unsuccessful, and lawyer
makes no effort to contact court. Lawyer later says he left his
cell phone at home, and seems unfamiliar with the concept of
land-line telephones.
Lawyer sets a very old case for a plea, then shows up on plea
date announcing that he had just looked at his client's jurisdic-
tional priors and thought the offense might possibly be a misde-
meanor. Vague as to why he agreed to plead a client to a felony
without investigating the priors, lawyer asks for a few days to
research the issue and provide prosecutor with argument. Over
3 weeks granted instead. Lawyer shows up again set for a plea,
without ever having contacted the prosecutor, dumps a motion
to quash on the clerk and insists the court rule immediately so
that he can go pick a jury. When told this did not fit in with the
court's plans, he advises that the law is a "no-brainer," despite
his having required three weeks to prepare his motion, imply-
ing that both the court and the prosecutor should immediately
recognize his brilliance and rule in his favor. Bonus: It is later
di scovered that lawyer told trial court where he was picking a
jury that he had a case set for a hearing, instead of a plea, and
would need at least an hour to conduct it. Bonus bonus: The
argument was predicated on two superseded statutes.
At pretrial conferences set I 0 days prior to trial date, several
different lawyers are asked, for scheduling purposes, whether
an interpreter will be needed, whether suppression hearings are
needed, whether we will have Daubert challenges, whether
client is probation-eligible, etc. These queries are routinely
met with blank stares, then mumbling about "Well, I guess I
need to look at the case."
"What I'm talking about is the
unwillingness or the inability
to demonstrate basic
courtroom etiquette and the
educational level of a first-year
law student. ]]
At one pretrial conference for an aggravated assault, r noticed
the lawyer had filed a motion for community supervision and a
punishment election to the court. When I questioned the appar-
ent conflict, lawyer was confused. After I explained the law, he
rather condescendingly reassured me that, "It'll be OK, Judge -
we're asking for deferred if he's convicted."
Lawyers approaching the bench to ask for bonds to be set or
lowered, or to see if the court might consider probation in cases
where the prosecution has declined, know nothing about their
clients and cannot answer the court's basic questions about what
the client does, where slhe lives, etc.
Cases are set for "dispositive" motions to suppress, but when
I inquire as to disposition if the court should happen to deny the
motion, I am told, "we'll probably work something out."
Many lawyers fail to show up for court before noon, and few
of those ever bother to call and advise the court as to where they
otherwise are. When they saunter in at 12:45, they expect every-
one to cancel whatever plans they may have had, drop every-
thing and attend to their needs. Helpful hint: The judge, the
prosecutors, the clerk, the coordinator and the bailiffs are all
more inclined to do your bidding if they are not reeling from
hunger and exhausted from dealing with the 50+ cases that are
on the daily docket.
Longtime appellate lawyers (appointed before my tenure)
claim capital murder-league numbers of hours for preparing 10-
page, sloppy, poorly-reasoned briefs based on two-day trials, ac-
companied by sketchy, incomplete timesheets that offer no justi-
fication for the excessive time allegedly spent.
Folks, I may have just taken the bench in January, but rwasn't
just born in January. I don't know if some of this behavior is ex-
hibited because the lawyers think I am going to allow the de-
fense to do whatever it wants, simply by virtue of being the de-
fense, or if it is some sort of test to see how completely stupid I
am. Either way, it is a big mistake.
Defense lawyers frequently complain that judges are "all
about the numbers." What lawyers may not appreciate is that
those numbers represent people, and that the judge is the person
responsible for seeing that those people do not languish in jail
for years on end without any meaningful review of their cases.
Every case that gets frivolously set for trial just because the
lawyer is too lazy to look at it uses up a slot that could be used
for a case with real issues that truly needs to be tried. Every
jailed defendant who is brought to court over and over, while his
lawyer fails to show up or dithers around, takes up a space that
could be occupied by a defendant whose lawyer will make good
use of a court appearance.
The next time you hear a lawyer complain of "unreasonable"
treatment, being "forced" into back-to-back trials or denied ap-
pointments due to "zealous" representation or "politics," you
might investigate the whole story before forming an opinion on
a court's policies or a judge's conduct. Those of you who know
what you're doing might get impatient at policies that you per-
ceive as intrusive or burdensome. It is embarrassing to me to
learn that I have to micro-manage so many alleged profession-
als, and thereby collaterally, and unintentionally, insult those of
you for whom I have the greatest respect. Please bear with us.
In the meantime, a large percentage of the defense bar needs to
take a trip to the woodshed and be refreshed concerning basic
courtroom decorum and etiquette. I know your mamas raised
you better than this.
Shawna L. Reagin is Judge ofthe / 76th Criminal District Court
and the immediate past editor-in-chief of The Defender. The
views expressed here are Judge Reagin sown and are not neces-
sw-ily those of the Association.
THE DEFENDER
At the same time, a preservation motion or court order to freeze an
account may be necessary to protect the content of a profile which
can be removed or amended at any time.
16
In addition, archiving 0
other steps can be taken to capture web content.
17
Law enforcement or the prosecution may already be aware of the
information on their witness's pages and taken steps to download or
preserve them. A bill of particulars or a request for a list of prosecu-
tion witnesses and addresses should be expanded to include their
web profiles.
18
And, a discovery motion or Brady request might un-
cover informati n 0 longer posted online.
19
An individ may we more than one account or abandoned old
profiles across any num er of networked sites.
20
And then there is
the Internet gra Xard. early everything uploaded to or download-
ed from a social networking site had its origin in a computing or
digital recording device.
The computers belonging to the accused or an-y witnesses poten-
tially contain material that has been removed 0 edited in an online
profile. This can become problematic for a defe dant who may have
removed his MySpace page, only to find the police knoe ing on his
door with a search warrant for his home computer. I Conversely, a
prosecution witness who removes or restricts her acebook site
before trial , which may contain impeaching or exculpating evi-
dence, might have that information on her BlackBerry or laptop.
Finally, an Internet alert service or software program can update de-
fense counsel whenever a web page has changed
n
Also, the links
or friends lists on the defendant's or complainant's web profiles may
lead to undiscovered witnesses.
Conclusion
Alternate suspects, impeaching statements, official misconduct
are just a few of the kinds of evidence that can be uncovered
through online searching. As with all investigation, the key is know-
ing where to look. The many incarnations of Internet communica-
tion are opening new avenues and additional levels of research.
More and more cases are layered with evidence of web-based mes-
sages, personal profiles, blogs and text messaging and other elec-
tronic communications. In a sense MySpace and Facebook are like
fishing nets catching all manner of media that might contain some-
thing useful. But it requires a lot of elbow grease and imagination to
find them. And it is equally important that prosecutors continue to
meet their disclosure and due process obligations whether based in
the real or virtual worlds.
See generally Ken Strutin, Social Networking Evidence in a Self
Surveillance Society, New York Law Journal, March 10,2009, at
5, col. I; Ken Strutin, Social Networking Online and Criminal Jus-
tice, LLRX, Feb. 28, 2009, <http://tinyurl.comlamcvwn>.
2 See, e.g. , Murder Most Wired, Newsweek, Dec. 3, 2008,
<http://www.newsweek.comli dl72027> .
) See, e. g. , MySpace Page Used Against Gang Suspect, Buffalo
News, Jan. 23, 2009, <http: //tinyurl.comlaohzwn>.
4 See, e.g., Woman sMySpace Increases Sentence, Daily Nexus,
April 17, 2007, <http://tinyurl.comlbop66c>; Social Networking
4 (continued) defense lawyer Steve Balash said the day he met his client
Jessica Binkerd, a recent college graduate charged with a fatal drunken
driving crash, he asked if she had a MySpace page. When she said yes,
he told her to take it down because he figured it might have pictures that
cast her in a bad light. [P] But she didn't remove the page. And right
before Binkerd was sentenced in January 2007, the attorney said he was
'blindsided' by a presentencing report from prosecutors that featured
photos posted on MySpace after the crash.").
5 Victim Uses Facebook To Finger Suspect, CNN, Sept. 28, 2007,
<http: //tinyurl.coml22guc3>.
6 But see State v. Gomez, 937 So. 2d 828,833 (Fla. Dist. Ct. App. 4th
Dist. 2006) (,,[T]rial court could properly conclude that it was unneces-
sarily suggestive for the victims to be provided the defendant's name
and resulting access to his photo on the website before having any op-
portunity to identify him, thus giving rise to a substantial likelihood of
irreparable misidentification." [emphasis added])
7 Bar Brawl Indictment Dismissed, Albany Times Union, Feb. l8, 2009,
<http://tinyurl.comlc3bx8q>.
8 Lack ofInternet Access Muddies Case Against Sex Offender'S
MySpace Site, Law.com, Nov. 6, 2006, <http://tinyurl.comlcjvfey>.
9 Myspace Profile Sets Convicted Felon Free , CNET News, Nov. 30,
2007, <http://tinyurl.comlbv37bt>;Statev. Cecil,221W.Va. 495, 504
(W. Va. 2007).
10 See, e.g., The Officer Who Posted Too Much on MySpace, New York
Times, March 10,2009, <http://tinyurl.comlb64ah2>.
I I See generally List of Social Networking Websites (Wikipedia),
<http: //tinyurl.comlk2 j hx>.
12 See generally Pamela D. Pengelley, Fessing Up to Facebook: Recent
Trends in the Use ofSocial Network Websites for Insurance Litigation.
SSRN, March 3, 2009, <http://ssrn.comlabstract=1352670>; Seth P.
Berman et aI., Web 2.0: What's Evidence Between "Friends"?, Boston
Bar Journal, Jan./Feb. 2009, at 5, <http://tinyurl.comlc8qd87>; Ronald
1. Levine and Susan L. Swatski-Lebson, Are Social Networking Sites
Discoverable?, Product Liability Law & Strategy, Nov. 13, 2008, <
http://tinyurl .coml6558j8>.
Il See, e.g., America Online Compliance & Investigations,
<http: //tinyurl.comlc3yeff>;MySpace.com: Official Law Enforcement
Officers Investigators Guide (2006), <http://tinyurl.comlalkpy>; and
ISP List (Search), <http://tinyurl.coml5alan8>.
" See, e.g., Wink Launches Social Network Search for MySpace, Bebo,
Linkedln, Mashable: The Social Media Guide, Nov. 10,2006,
<http: //tinyurl .comlyaalr3v>.
15 See Whose Space Is MySpace? A Content Analysis ofMySpace Pro-
fil es, First Monday, Vol. 13 No.9 - 1 Sept. 2008,
<http ://tinyurl.coml4b95eu>.
Continued on next page.
THE DEFENDER
I
16 See, e.g., Sex Offender Charged After Failing To Register Myspace Ac-
count, Telegraph, Feb. 9, 2009, <http://tinyurl.com/d3vlyn> ("'(After the
tip), we did a 'preservation' on the account,' Wells said, explaining the de-
partment occasionally takes such action in order to prevent records or evi-
dence from being lost or destroyed. A subpoena was necessary to help pre-
vent the MySpace page from being taken down from the site. The tactic
occasionally is used in tracking cell phone records and social networking
sites, he said. ").
17 See, e.g., How to Capture a MySpace Pagefor Investigative Purposes
(Search 2008), <http://tinyurl.com/dzrncv>.
Ii See generally Interference By Prosecution With Defense Counsel's Pre-
triallnterrogation Of Witnesses, 90 A.L.R.3d 1231.
19 Cj Ronald 1. Levine & Susan L. Swatski-Lebson, Are Social Network-
ing Sites Discoverable?, Product Liability Law & Strategy Newsletter,
Nov. 13,2008, <http://tinyurl.com/6558j8>; Cozen O'Connor, Fessing Up
to Facebook: Recent Trends in the Use ofSocial Network Websites for In-
surance Litigation, SSRN, March 3, 2009,
<http://ssrn.com/abstract=1352670>. See generally Kyles v. Whitley, 514
U.S. 419, 444 (1995).
20 See, e.g., Google Cache, <http ://tinyurl.com/95pq52>; WayBack Ma-
chine <http://tinyurl.com/f754>.
21 See United States v. Ogden, 2008 U.S. Dist. LEXIS 86006, n. 44 (W.O.
Tenn. Sept. 22, 2008) ("Defendant might argue that his deletion of a blog
and his My Space page rna es it more likely that he also had deleted the
photos of SS [complainant]. However, the Court notes that Defendant was
only deleting internet-based evidence of his relationship with SS, not per-
sonal files available only on his computer or storage media. Therefore, it
would not have been urueasonable for investigators to determine that De-
fendant had saved the photos on his computer(s) and storage media. "); see
generally Matthew 1. Hodge, The Fourth A mendmentllnd Privacy Issues
on the "New" Internet: Facebook.com and MySpa e.com, 31 S. Ill. U.
L.1. 95, 120-121 (2006)("Whether a person has a expectation
of privacy in this release of information is a difficult determination, but
most people are not willing to give up all protection merely by signing
online. The police are rapidly evolving their investigative procedures by
using Facebook and MySpace in more ways and in a growing number of
investigat"ons. ith these techniques, it is up to the courts to grow and
continue to apI! Ythe existing Katz doctrine so that the Fourth Amendment
does not get Lost in cyberspace."); Ken Strutin, Passwords and the Fifth
Amendment, New York Law Journal, March II, 2008, at 5, col. I .
22 See, e.g., Monitoring Web Pages 24 Hours a Day, Search Engine Watch,
April 9, 2003, <http://searchenginewatch.com/2178631>.
Ken Strutin is Director of Legal Information Services at the New York
State Defenders Association in Albany, NY He serves as a columnist on
criminal law and technology for the New York Law Journal and on crimi-
nal justice resources for the Law Library Resource Exchange.
THE DEFENDER
Check
That
Para-
Chute!
Suggestions For
Voir Dire On
Reasonable Doubt
l
By L.T. "Butch" Bradt and Betsy Grubbs
Many successful defense lawyers start educating the jurors about
the State's burden of proof in voir dire. Unfortunately, if they do
anythIng at all, too many lawyers use isolated, hackneyed examples
to tell potential jurors what "proof beyond a reasonable doubt" is.
In light of the proliferation ofNfNJA 2 loans and the recent bailouts
of Fannie Mae and Freddie Mac -- the certainty that one wants
before buying a house is hardly that certain. To begin with , there
are drastic distinctions between Judge-conducted voir dire and
attorney-conducted voir dire. What follows here is a discussion of
what we have successfully used for a number of years in conducting
our own voir dire.
It has been our experience that, if the presiding judge tells the
veniremen anything at all, it will be along the lines of "proof
beyond a reasonable doubt is not defined" and "it is a level of proof
that we do not use in everyday life." Huh? Helpful? Not at all.
To .overcome that lack of guidance from the bench, start by
detaIling the levels of proof on a blank flip chart. Use of a flip chart
forces the veniremen to use at least two senses at the same time. In
our experience, this tends to increase their retention of what you are
about to tell them - and what they tell you (it allows them to "own
it"). Alternatively, purchase and use the Levels of Proof chart from
the National College for DUI Defense. )
It is also important to empower the jury to find your client not
guilty. One of the ways to do this is to explain to the venire that, in
Scotland, they have three verdicts in a criminal case: guilty, not
guilty and not proven. In Scotland, not guilty means the defendant
had absolutely nothing to do with the crime; that there was no
evidence that the defendant had anything to do with the crime. A
verdict of not guilty in Scotland is a bar to a civi I suit on the same
facts. Not proven only means that the prosecutor did not prove its
case beyond a reasonable doubt. Not proven does not mean that the
defendant had nothing to do with the crime alleged. In the United
States we roll "not guilty" and "not proven" into "not guilty" and a
verdict of not guilty is not a bar to someone being sued in civil court
later. This is what happened to 0.1. Simpson after the murder of his
ex-wife when he was sued in civil court. If he had been found not
guilty in Scotland, it would have been a bar to the civil suit.
Empowering your jury also means asking the venire who
dIsagrees with the Los Angeles jury's verdict to find 0.1. not guilty
of murder. Invariably, there will be a number of hands that go up.
Then ask whether any of them saw the entire trial , especially the
testImony about the preservative that was put in the blood that was
found in the Bronco and in O.1.' s room, how the police were unable
to explain how that preservative got into the blood that they claimed
to have found in those two places, or the other problems with the
State's case. Since the jury in that case heard all of the evidence
that was presented, only that jury has the right to decide whether the
State did or did not prove its case beyond a reasonable doubt. Ask
them "Do they understand that no one has the right to question the
jury's verdict that the State has not proven its case beyond a
reasonable doubt,)"
Remember proof beyond a reasonable doubt is the ultimate
measure by which a jury will decide your client's case. For the
jurors to better understand what proof beyond a reasonable doubt is
however, it is helpful for them to understand that it is the highes;
measure of proof required in our law and how it is distinguished
from other measures of proof, "reasonable suspicion" , "probable
cause", "substantial evidence", "preponderance" and "clear and
convincing". These measures are defined for the jurors as follows:
No evidence. No trace of evidence whatsoever.
Scintilla of evidence. Any evidence at all. Even the smallest
amount of evidence. Whoever did this was alive. Your client is
alive. That is a scintilla.
Reasonable suspicion. A reasonable suspicion is what a police
officer must have in order to momentarily detain a person to
question them about a crime or to do a pat down of their clothing
should he believe they are armed with a weapon. This measure of
proof is more than a hunch or a guess. It requires "articulate facts",
I.e., the officer must state the facts which gave rise to his suspicion
10 order to make it a reasonable one.
"Reasonable suspicion" means the officer must be able to
articulate something more than an inchoate and un-particularized
s u s p i i o ~ or hunch. It requires some minimal level of objective
JustIficatIOn for making the stop. U.S. v. Sokolow, 490 U.S. I
(1989) . This is the level of proof that a police officer needs to stop
someone on the sidewalk and ask for identification.
Probable cause. Probable cause is what a police officer must
have in order to make an arrest or search a person's home or
business. It is also the minimum measure of proof in order to aJ low
a judge to issue a search or arrest warrant. Probable cause concerns
probabilities and is decided on an objective standard based upon the
training and experience of the particular officer making the arrest or
search. Said another way, probable cause requires a reasonable
person 's standard of proof to justify the officer's actions in either
arresting or searching, i.e., was it objectively reasonable for the
officer to do what he did based upon what he actually knew and
based upon his experience? The probable cause standard is
necessary for a police officer to do a strip search of a person .
THE DEFENDER
"Probable cause" concerns whether the facts available to the
officers at the moment of the arrest would warrant a man of
reasonable caution in the belief that an offense has been committed.
Probable cause also hlrns on whether, at the moment the arrest was
made, the officers had probable cause to make it and that is defined
as whether at that moment the facts and circumstances within their
knowledge and of which they had reasonably trustworthy
infornlation were sufficient to warrant a prudent man in believing
that the person had committed or was committing an offense. Beck
v. State of Ohio, 379 U.S. 89 (1964).
"Probable cause" is also the level of proof required for 9 of 12
grand jurors to return an indictment. This is a good place to remind
the veniremen that the indictment process is not unanimous and is
on a much lower level of proof than required of them to convict
your client.
Substantial Evidence. Substantial evidence does not mean a
large or considerable amount of evidence, but rather it is "such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion of fact." Lauderdale v. Texas Dept. of
Agnculhlre, 923 S.W2d 834,836 (Tex. App.- Austin 1996, no writ)
(quoting Pierce v. Underwood, 487 U.S. 552, 564-65 (1988)).
Substantial evidence is also more than a scintilla but less than a
preponderance. Marker v. Finch, 322 F.Supp. 905 (D.C. Del. 1971)
(more than a scintilla but less than a preponderance). Under the
substantial evidence standard of review, an administrative decision
may be sustained even if the evidence preponderates against it.
Mireles v. Texas Dept. of Public Safety, 9 S.W3d 128 (Tex . 1999).
Since this level of proof is less than a preponderance, you might
want to leave a blank step and fill it in after you explain
preponderance.
The Levels of Proof chart that you can purchase from the National
College for DUI Defense does not refer to substantial evidence.
Until that is changed, we prefer to use the flip chart so that all levels
are addressed . If you use the Levels of Proof chart, make sure you
address the missing step with the venire.
Preponderance. Preponderance is the measure of proof required
in most civil court cases. It is sometimes referred to as the "51
percent of the evidence rule", or the "more likely than not" rule.
Here, the party to a lawsuit that convinces the jury by 51 percent of
the evidence is the winner. This is the measure that is used to take
money from one party of a lawsuit and give it to another.
"Preponderance of the evidence" as a standard of proof in civil
cases, means the greater weight and degree of credible evidence
admitted in the case. That degree of proof that, when taken as a
whole, shows that a fact sought to be proved is more probable than
not. Lackey v. State, 819 S.W2d III (Tex. Crim. App. 1991); see
also Texas Pattern Jury Charge 1.03.
For the preponderance of evidence demonstrative, we like to use
two new reams of paper- unopened. Unwrap both reams and show
them to the venire. Both have 500 sheets of paper and, if placed on
the scales of justice, would be evenly baJanced - not even proof by
a preponderance. Remove one sheet from one ream. Ask the venire
to look at both and how close they are. But they know that one
stack only has 499 sheets, the other 500. If both stacks of paper
were placed on the scales of justice, the 500-sheet stack would be
heavier. That is a preponderance.
Clear and convincing. Clear and convincing is the measure of
proof required in heirship determinations, child custody cases,
involuntary commitment cases, and guardianship cases - a
determination of a fundamental or property right. Also, it is the
@ THE DEFENDER
standard by which a jury's right to impose punitive damages is
measured. Our courts have defined this measure as the tier between
the "reasonable doubt" standard and the "preponderance" standard.
Here, the law requires that a fact finder be "clearly convinced"
before it awards custody of a child to a parent, takes a child from a
parent, involuntarily commits a person to a mental health
institution, determines that a person is an heir, or that a person no
longer has the ability to take care of either their estate (business
affairs) or their person.
"Clear and convincing" means that measure or degree of proof
that will produce in the mind of the trier of fact a firm belief or
conviction as to the truth of the allegations sought to be established.
This is an intermediate standard, falling between the preponderance
standard of ordinary civil proceedings and the reasonable doubt
standard of criminal proceedings. State v. Addington, 388 S. W2d
569 (Tex. 1979); see also Santosky v. Kramer, 455 U.S. 745, 102
S.Ct. 1388 ("clear and convincing" proof standard is
constihltionally required in parental termination proceedings);
Texas Family Code 161.001.
Reasonable doubt. Reasonable doubt is the standard/measure of
proof in criminal cases. It is such a doubt as would cause a prudent
person to hesitate before acting in matters of importance to
themselves.
Proof beyond a reasonable doubt is
also the certainty that someone who
is going to parachute needs before
jumping out of a perfectly-good-
working airplane.
Proof beyond a reasonable doubt. Do we use this standard of
proof in our everyday lives? Well, here's two examples that say we
do. It is the certainty that you would want before you unplugged a
loved one from life support. As you raise your hand, ask the
potential jurors who among them has ever had to be the person to
make that decision. Ask one of the ones who raised their hand how
certain they wanted to be when they made that choice. Remind
them of the person who was in a coma for 19 years and came out of
it. Remind them that in that case the person would have been killed
if life support had been discontinued at 18 years and 9 months, or
even 18 years and II months . You want to be certain beyond a
reasonable doubt because you know that if you guess wrong, you
have killed your loved one.
Proof beyond a reasonable doubt is also the certainty that
someone who is going to parachute needs before jumping out of a
perfectly-good-working airplane. That person checks every square
inch of the parachute and every inch of all of the lines, beyond a
reasonable doubt. Watches the packing of the chute, every fold,
every hick, ever fastener, beyond reasonable doubt. Goes over the
packed parachute, beyond a reasonable doubt. Up in the plane, he
goes over it again beyond a reasonable doubt and if there is a single
thread out of place, he doesn't jump. Only when he is confident,
beyond a reasonable doubt, does he put the parachute on and jump
out of that plane. Why? Because he knows, beyond a reasonable
doubt, that if the parachute doesn' t work - beyond a reasonable
doubt - he is dead.
Beyond a Reasonable Doubt
Not easonable Doubt
Not 6ui1t; Clear & Convincing
Not Preponderance
Not 6ui1ty Substantial Evidence
Not Probable Cause
Not Reasonable Suspicion
Not 6ui1ty Scintilla
Not 6ui1ty No Evidence
Make an ascending stair case on a flip chart with these
levels. The last stair is the one above reasonable doubt,
the one labeled Beyond a Reasonable Doubt. Go back
with a red highlighter, ask different veniremen what the
verdict would be and write "NOT GUILTY" by each of
the ones up to beyond a reasonable doubt. Do not have
them answer what their verdict will be if they find proof
beyond a reasonable doubt.
The Levels of Proof chart that you can purchase from the National
College for DUI Defense has the last step labeled "GUILTY". We
disagree with that strategy. We don't feel that you should do
anything in the voir dire to acknowledge guilt. And if any
venireperson asks you what goes on the last step, you know that
person is too dumb to be sitting on your jury.
Accordingly, using the Levels of Proof, you can graphically and
educationally walk the jury panel through the respective ascending
levels (steps) of proof. Demonstrating these levels to the jury, we,
as defense counsel, can make the jury visually understand that proof
beyond a reasonable doubt is indeed the highest burden in our law.
Using these examples of proof beyond a reasonable doubt, in an
aggravated sexual assault case, we once got an assist from the Judge
during voir dire. To answer a potential juror's question about the
difference between clear and convincing and proof beyond a
reasonable doubt, the judge explained the difference between
beyond a reasonable doubt, clear and convincing and scintilla by
using our analogies. He said, "Beyond a reasonable doubt is how
well you check you parachute before you jump out of the plane.
Clear and convincing is how well you check your wife's parachute
before you push her out of the plane. Scintilla is how well you
check your ex-wife's parachute before you shove her out of the
plane."
If the State's case rests upon the testimony of a witness who has
problems "keeping the facts straight", you can refer to that witness
in closing as the doctor who is telling you that you need to unplug
your loved one from life support. Point out all of .the
inconsistencies and contradictions. Then ask the rhetOrical
question, "in light of all of these inconsistencies and if you were the
one being asked to pu II the plug on the defendant's life, who
wouldn't get a second opinion before pulling the plug?" Since
reasonable doubt is such a doubt as would cause a prudent person to
hesitate before acting in matters of importance to themselves,
wanting a second medical opinion before deciding to pull the plug
is reasonable and prudent. Then tell them, "That is reasonable
doubt, the State hasn't proven its case beyond a reasonable doubt
and you must acquit. "
Mr. Trichter, in his paper given to the National College for DUl
Defense, advised that the Levels of Proof step ladder chart can also
be used during the cross-examination of the arresting officer in
DWI cases. His recommendation was for the defense lawyer to use
the graphic burdens of reasonable suspicion, probable cause and
reasonable doubt in the cross-examination of the arresting officer,
i.e., the officer is asked if he understands those required levels of
proof and whether he applied the reasonable suspicion and probable
cause burdens in bis decision process in your client's case.
Mr. Trichter observed that experience teaches us that, in DWI
cases, most police officers will testify that they did not form their
opinion of probable cause until after they observed the very last
intoxication fact and that it was then that they arrested your client.
When this happens, leave it alone and don't ask any more burden of
proof questions. By doing so, you can argue in your closing that,
even accepting all that the officer said was true, by his own words
he only had probable cause, and, that is far short of the required
proof beyond a reasonable doubt to convict.
Lastly, using the Levels of Proof step ladder graphic allows you to
deal with some of the State's arguments in closing. It doesn ' t
matter that the evidence was "overwhelming" - that is not a level of
proof. It doesn't matter if there was "substantial evidence" - that is
less than a preponderance. And it doesn' t matter if the evidence
was "clear" or if it was "convincing"; both are less than reasonable
doubt.
I Much of this paper is based on the paper that J. Gary Trichter presented
at the 2000 Summer Session of the National College for DUI Defense
(NCDD) and on the Levels of Proof chart related to that presentation.
Both the paper and the chart are copyrighted by NCDD and are ava ilable
from them at its website, www.ncdd.com. To the extent that portions of
that paper or the chart appear here, they are used with the permission of
NCDD, for which grateful acknowledgment is made.
2 A Ninja Loan was a type of subprime loan for housing issued to
borrowers with No Income, No Job, and no Assets. No Income No Asset,
http: //en.wikipedia.orglwlindex.php?title=No_Income_No _ Asset&oldid=
275265755 (last visited Apr. 30,2009).
3 The chart can be ordered from the NCDD at its website,
www.ncdd.com. The artwork for this article is based on that chart, with
the modifications suggested here.
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.
Betsy Grubbs is a general practitioner in private practice in
Houston and has been employed in the legal field since 1990 and
was licensed in 2001. For more than 20 years she has tried many
cases with Mr. Bradt in the civil and criminal arenas.
THE DEFENDER @
PRACTICE IN A SHOEBOX
DISASTER-PROOFINGYOURPRACTICE IN 10EAsySTEPS
The lastfew years have taught us all that life, and ourlaw
practices, are not always guaranteed a smooth or
bump-free ride. Like all of you, I have been through
Tropical Storm Allison and seen what happened during
hurricanes Katrina, and Rita, and recently during Ike. We
have all lost friends in the past few years, seen others
struck low by illness, or forced to move or to suffer the
illness ofaloved one. Ihavealso had the unique pleasure
ofhaving to go back on active service three times since
2000, so I can tell you from first hand experience that
stoppingandre-startingapracticeis notonlypossible,but
very possibly something you may have to go through in
these crazy times. So, to help, and to keep the things you
needtodo in perspective,Iofferthefollowingsuggestions
for making yourpracticeabitmore resilientto the shocks
and upheavals that normal life brings us. The service has
taught me three things: keep it simple, always have more
than one way of doing things, and there are always
resourceshandy, eventhoughyou may notrecognizethem
atfirst.
StepOne: Relax,and makeapotofcoffee.Thecoffee
will help you focus, and while it brews you can assemble
someofthe thingsyou will need, including,quite literally,
ashoebox (or areasonable substitute, such as one ofthe
fireprooflockboxes theofficesupplyplacessell, orabank
safedepositbox, ifyou trustthebanksto beopenduringa
stonn like Ike.)
StepTwo: Think about what you actually need to run
apractice. For most ofus it includes aphone, aplace to
meet clients, a way to produce motions and documents,
and really, not much else.That said, what is the absolute
minimum you would need to sustain some form of
continuity in the eventofyouroffice beingwrecked by a
hurricane or flood, orwhat someone would need to nurse
yourpracticealong in the eventofyou being hit by abus?
Now, pourthe coffee, take asip, and go to StepThree.
Step Three: Pull out your shoebox, and first ofall,
make aspare setofkeys to youroffice and place them in
it. Ifyour office is at home, make a spare set ofkeys to
your home cabinet and safe, orthe privatestoragefacility
you use, oryourhouse/apartmentsothatwhomeverhas to
walk in and help outcan actuallygetaccess to yourstuff.
StepFour: Buyapre-paidcell phonefrom amajorcell
phone outfit, preferably one that is not your own service.
Most ofthem have 300 to 500 minutes to start up and
cards available to purchase to prolong the service. In the
event your office phones are destroyed this will at least
provide some fonn ofcommunications or a back up to
your own cell/home phone. These cost about $50. Place
this, along with the instructions for activating it, in the
box.
StepFive: Spend$20on asetoftwo flash drives,with
some serious gigabytes ofmemory. Back up asignificant
portion of all your essential documents, meaning your
mostcommonmotions,yourform clientagreements,your
client lists and any significant filing dates, and all your
business documents, such as your PCILLP articles, the
lease and insurance agreements for your office, your last
few tax years, etc. As a truly deep, non-tech dependent
method, you can make papercopiesofmany ofthese, and
add themto thebox.Placeoneofthedrivesin thebox,and
the otherin yourbriefcaseoron your keychain.
Step Six: Learn where your public library and the
FedEx/Kinko's is in relation to your house. In case your
officeisdestroyed,you canuseeitherthefreeaccessatthe
library (also agreatplace to type and research as it is one
ofthe few public places that is quiet) or pay the $7lhour
that Kinko's charges for internet/computer use. This is
why the flash drives come in handy, or for that matter, if
you are tech savvy, web storagefor yourdocuments. Both
the library and Kinko's offer printing, and ifyou did not
have the foresight to stock up on currency and gold
bullion, Kinko's will take credit or debit cards. You may
also, ifyou aresocial sort, makeafriend whoseofficeyou
couId actuallyuse in theeventofsomecatastrophe, butof
course, this requires you to be nice to people,so you may
wantto stickwith the Kinko'splan.
Step Seven: Get a courthouse directory with all the
courttelephonenumbers,andaddafew, likethoseofyour
accountant, yourown legal advisor ifyou have one, your
local bank manager, your family, your bookie, your
bartender or personal trainer - in other words, all those
who would want to be informed ifyour office downtown
were under water or you were smooshed onto the
@ THE DEFENDER
windshield of a large bus. Place this into the box so that
either you or your next of kin can call these folk s and get
the ball rolling to either help your practice stay afloat or
put it on a medically induced coma for a short time.
Step Eight: Pour another cup of coffee, and think.
What else do you need to transact business? Oh yes : bank
accounts and the infonnation for the State Bar! Make a
copy of your license and place it into the box, along with a
copy of any safe deposit boxes or safes you maintain, and
both cancelled and blank checks. If you pay bills online,
then make a copy of your account numbers and
passwords, and throw in some deposit slips, as well as a
list of your normal bills and accounts requiring periodic
payment. These folks may understand that you are
canoeing out on the Brazos River and the creek is rising,
or maybe not, so why not have some way to contact and/or
pay them? You may also want copies of your estate
documents, such as wi lis and powers of attorney or health
care directives, placed inside, just in case.
Step Nine: Sip the coffee, and think about this next
part carefully. In the event of a true emergency, who would
you want called, and what would you want done? These
instlUctions are for both you and whomever you designate
with the safety of your practice in case you are beaten by a
peasant mob or attacked by roving packs of wild dogs, or
(only slightly more likely here in Houston, disaster capital
of the universe) laid out by a stroke or accident. Think
about them, write them down, and place them in the box,
along with any information you might think pertinent, and
then tell the person you trust most about the box and where
it is.
Step Ten: Place the box somewhere other than your
office, preferably at home or somewhere else safe. If it
locks tape a key to it, and make another spare that you can
carry on your car key ring. Before you lock it, think: what
else should I have in there? Maybe some emergency cash?
How about some gift cards for office supplies so I can
keep going? Business cards with some alternate numbers
or space to write them in? This is your shoebox; put it
what ever you like - canned vegetables, an Uzi , whatever.
Now, breathe deep, and relax, If you have done all you
can do, then that is all you can do, so take this off your list
of many daily worries, and go finish the coffee and maybe
add some brandy. Good luck.
Patrick F McCann is a past president of HCCLA, an adjunct
professor at Texas Southern University. and practices in
Houston and Fort Bend County. Modesty forbids him from
mentioning his upcoming canonization .
THE DEFENDER
The Associationrecognizedthosewhohaveprovided
outstandingserviceandinstallednewofficers andboard
members atits AnnualBanquetonMay 14at the Hyatt
RegencyHotel.
R.P. "Skip" CorneliuswasnamedLawyeroftheYear.
DonLambrightwasrecognizedforLifetimeAchievement,
whilethe late SharonLevinewasrememberedas an Unsung
Hero. SarahV. WoodwonMemberoftheYear, andJim
SkeltonreceivedtheAristotleAward. TheTorchofLiberty
wasconferredonStateSen. JohnWhitmire(D-Houston).
JoAnneMusickwas installedas AssociationPresident,while
MarkBennettjoinedthe ranksofpastpresidents. Also
installedwere: NicoleDeBordeas President-Elect,Earl
Musickas VicePresident,Todd Dupontas Secretary,and
Steve Halpertas Treasurer.
Thefollowing individualswereswornin as membersofthe
Association'sBoardofDirectors: SamAdamo, Robert
Fickman,RobertK. Loper,MargyMeyers,CarmenRoe,
SunshineSwallers,ChrisTritico andSarahV. Wood.
RobertJ. Sussman
Robert J. Sussman died from a heart attack on April 28.
The death of the 60-year-old attorney sent the legal and arts
communities into deep mourning.
At the time of his death, Sussman was a partner at Locke
Lord Bissell & Liddell, where he started the firm's white
collar section. He also was a Renaissance man, remembered
for his love of both the arts and the law.
Association past-president Robb Fickman recalled
Sussman as "an honest, helpful , friendly, kind, cheerfu I,
courageous lawyer."
Dan Cogdell had known Sussman since clerking at
Pizzitola, Hinton and Sussman, which was formed in the
late 1970' s, when Mike Hinton convinced Sussman to join
him in the practice of law.
"Bob was one of the very first lawyers in town to ' stretch'
into a ' White Collar lawyer' back when most of us thought
that meant you were going to stop by Joseph A Banks
and get some new shirts," Cogdell said. "And, to no one's
surprise, he really began to blossom in that practice. Bob
felt greater comfort, ] think, in representing corporate types
than in the client base primarily in State practice. And, tnlst
me, if yOll think it is ' easier' you haven't done it . He could
communicate effectively with that type of client and was,
in his own way, very comforting to them. He developed a
national and later international practice. Through it all , he
was ' the same old Bobby.'"
Rich Levy, the executive director of Inprint, where
Sussman was a Board member, remembered him as a "a
warm, kind, sweet, and funny man, and we loved him dearly
here at Inprint. He brought a sense of joy to everything he
did (including Inprint meetings, which greatly benefited
from that joy), and every interpersonal transaction with Bob
seemed like a kind of gift. He was a rare individual , and we
will miss him."
The family requests that Sussman be memorialized
through donations to:
Inprint, 1524 Sui Ross, Houston, Texas 77006.
THE DEFENDER
The Association fonnally added 32 names to the plaque
memorializing deceased criminal defense lawyers at a
ceremony organized by past-president Robb Fickman and
held April 22 on the seventh floor of the Harris County
Criminal Justice Center.
Board member Earl Musick led the effort to update the
plaque, but reminded those at the well-attended event that
it was Fickman's idea to memorialize the fallen.
"I remember most of the lawyers whose names are on
the plaque," Musick told those assembled. "When I read
the names, I have a lot of fond memories."
Added to the plaque were:
Johnnie Abercia Don Hendrix
Steven Annstrong Mike Hernandez
Ellis Barrerra Jr. Mike G. Hernandez
Leroy Beck John J. Herrera
James Bowers Andrew Jefferson
Ed Van Buren Sharon Levine
John Carrigan Michael Maness
Bernard Chanon Mike Matthews
Gilbert Corrigan Jim McBride
Loren Detamore Don E. McClure, Sr.
Charles Easterling Kenneth "Dude" McLean
Casare Galli James "Big Law" Moore
Desmond Gay Ken Poland
Rene S. Gonzalez J.R. Seeman
Lon Harper Jim Tatum
Melissa Harper Dick Wheelan
Immediate past-president Mark Bennett and Judge Debbie
Mantooth Stricklin also spoke of the importance of
remembering colleagues. Fickman read "Do Not Go Gentle
Into That Good Night" by Dylan Thomas and the names ofall
those on the plaque. When Fickman arrived at Charles
Easterling's name, he asked past-president Danny Easterling
to read his father's name.
Member Paul Kubosh said the memorial ceremony was
especially important for family members.
"Rene Gonzalez's wife, Lori, was there," Kubosh said.
"The ceremony brought her to tears. His nine-year-old
daughter told her mother that it would be neat to be a lawyer
and work where her dad's name was. I watched Lori reach up
with tears in her eyes and touch his name plate."
The 32 names joined these lawyers already memorialized
on the plaque:
Leroy Peavy
Gerald Applewhite Charles Freeman
Paula Asher Mel Freidman
Walter Pink
Roy Beane Tony Friloux
Judy Prince
John Berke Rudy Gaulke
lW. Robinson
Ira Bertrand Will Gray
Moe Sanchez
Bill Burge Charles Hearn
Tom Steinmeyer
Ray Stevens
Joe Cannon Bob Heath
Marvin Teague
John Coulter Chris Hodge
John Crow Jimmy James
AI Thomas
Clarence Thompson
Fred Dailey Joe Kegans
Joy Vandervoort
Donald Davis Johnny Knoff
c.c. Devine Dennis Medley
Mark Vela
Ned Wade
George Ellis Jack Milin
Don Flintoff
lR. "Bob" Musslewhite Bill Walsh
Steve Walsh
Percy Foreman Gabe Nahas
Carrol Weaver
Mark Bennett, Judge Debbie
Mantooth Stricklin
and Robb Fickmall
Photo by JoAnl/ e Musick
THE DEFENDER
Investigative Corner: the L+ 11 on
Cell Phone
Oneofthe majorchallengesthatweface everyday in
the world of criminal defense is information.
How can it be obtained?
Where is it? What is it?
How long is it available?
These are common questions when it comes to
infolmation. There is pending legislation that is
attemptingto restrictus even morewhen it comesto
the availability ofinformation.
In this first article, I want to specifically address cell
phoneinformation. Manypeopleusetheircell phones
on a daily basis and have replaced land lines with
them. There are many types ofphones and lots of
good informationto be obtainedfrom cell phones. But
one needs to know what is available and the cellular
retention period for each carrier.
With the assistance of Mike O'Kelly from Crime
Scene & Statement Analysis, I have compiled the
accompanyingchartto showtheretentiontimetables
from severalcarriers. Generally,Cell Detail Records
(CDR) and text message (SMS) data are sought for
litigation. Although the SMS content data may be
overwritten or deleted, the transmission record will
belocated within the CDR.
Recordsby Jim Willis
The transmission record will reveal the originating
cell deviceandthereceivingcell device.Tollrecord
retention is includedon the last line for each carrier.
The most important factor to consider is sending
the letter of preservation to the cell carrier
early to preserve the records until a subpoena is
issued. When you fax your preservation letter
and/orsubpoena duces tecum, always requestthe
"Account Notes." These contain the reported
conversation(s) between the subscriber and the
carriers' representative.
The cell phone and the data contained in there
records is a valuable investigative tool that can
assist many cases and their outcomes. There is
much moreinformationregardingcellphonesand
theabilityto retrievethe information. Ifyouneed
additional information orassistance in obtaining
any cell phone records, please don't hesitate to
contactme.
In the next Investigative Corner, be on the look out
for computer hard drive analysis and cell tower
information, plus much more useful information.
Jim Willis isa private investigator with Benken &
Associates. }willispi@aol.com I713.223.4051
Carrier
Alltel
Boost (Sprint- Nextel)
Centennial
Cingular/AT&T
Cricket/Leap Communications
Iowa Wireless (T-Mobile)
Metro PCS, Inc.
Nextel
Sprint*
T-Mobile (formerlyAerialNoice Stream)
Tracfone
US Ce"ular
Verizon Wireless*
LaaphofTime laformltioa'eld
CDR (Tower-Calls-SMSTransmissions) SMS (Text MessagesRetained on Server) Toll Records
45 Days 3-5 Days
18+Months Detailed Billing
3-4 Months Non-ootail Billing
2Years 7Days 18 Months
6Months- 2Years
18 Months
(rocovered from database: 5Years)
60-90 Days
7Years
6Months o(cell devices) 3Months (online)
7Years
18 Months/6 Months Prepaid 1-3 Months (orlonger)
9Months
45 Days 9Months
2Years 7Days
18 Months
2Years 12 Days
18 Months
180 Days
5-6 Years/2+Years Prepaid
6-8 Months-
6-8 Months
1Year
3-5 Days
Since Activation
1Year
5Days
From late 1990s on
:?west gave its customers achoice of staying with Sprint or switching to Verizon on December 1, 2008.
In all slates where E911 system IS In operation, tower data isavailabte since the cell phone was in use by the individual subscnber
THE DEFENDER
Ma'" Beallett. Joshua Zientek.
f.ad Musick &
t"ristill
Gera'" frllCis
&Earl Musick
9
0
to
Sara Mueller & earmel B08 tor toordi"ati"l1 t"is 8'1e,,\\
1"(
THE DEFENDER
PO Box 924523
Houston TX 772924523
II., ,II,, ,III,", II"II", ,,I,I, I "II, I ", ,11.1," 1.1.1,II", I
T7- 6fJ::ct:: ::t: :*: TfJ::I:: ::1:: SC: H .3.- D.r G.r T 770
Ms. Musick
ck fl.: 1" 'lus1 ck LLF'
397 N SAM HOUSTON PKWY E STE 325
HOUSTON TX 77060-2493
BIACKWOO
p
G B I
PRESORTED STANDARD
U.S.POSTAGE PAID
HOUSTON, TEXAS
PERMIT NO. 11500
t 002NSANJACINTO
HOUSTON,TEXAS77002
WE.ALSOPROVIDE
COURT OMASSISTANCE
EDD BLACKWOOD LICENSE 74432
71S-222-BAIL
Houston'sOldest
(2245)
Bail BondingCompany
Serving Houston,
HarrisCounty,
All Texas counties, and
Nationwidebail bonds

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