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the

defender

fall 2006

Harris County Criminal Lawyers’ Association

HCCLA HOLIDAY PARTY
cot ton exchange club
202 travis

thursday, December 14, 2006
at 5:00 P.M.
Sponsorships will be $100, which entitles
the donor to 10 free tickets.
Individual tickets are $10.

CLE
thursday
October 26, 2006
at noon
7th floor
criminal jus tice center

Bill Habern on Parole Law,
1.5 hours credit

FALL 2006

table
contents

3

Winning Warriors

5

Message From the President

6

The Czar Incites Dissent

8

Brother Batson, We Hardly Knew Ye

15

HCCLA Letter to Harris County Judges

16

HCCLA Resolution - Revocation of Bonds

18

Motion of the Month

by Shawna L. Reagin

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President
Robert Fickman

President Elect
Pat McCann

Vice President
Mark Bennett

Secretary

Sean Buckley

Treasurer

JoAnne Musick

Past President

Wendell A. Odom, Jr.

FALL 2006

2006-2007

Past Presidents:
1971‑2005
C. Anthony Friloux
Stuart Kinard
George Luquette
Marvin O. Teague
Dick DeGuerin
W.B. House, Jr.
David R. Bires
Woody Densen
Will Gray
Edward A. Mallett
Carolyn Garcia
Jack B. Zimmermann
Clyde Williams
Robert Pelton
Candelario Elizondo
Allen C. Isbell
David Mitcham
Jim E. Lavine
Rick Brass
Mary E. Conn
Kent A. Schaffer
Dan Cogdell
Jim Skelton
George J. Parnham
Garland D. McInnis
Robert A. Moen
Lloyd Oliver
Danny Easterling
Richard Frankoff
Wayne Hill
W. Troy McKinney
Cynthia Henley
Stanley Schneider

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Publisher:
HCCLA
Editorial Staff: Shawna L. Reagin
Ads & Distribution: Shawna L. Reagin & Christina Appelt
Design & Layout: Limb Design


7026 Old Katy Road, Ste. 350
Houston, Texas 77024
713-529-1117

Distribution 450 copies per issue.
For articles and other editorial contributions,
contact Shawna L. Reagin at 713-224-1641
To place an ad, call Shawna L. Reagin at 713-224-1641

Board of Directors:
Tom Berg
Neal Davis
Nicole DeBorde
Christopher Downey
Todd DuPont II
Rosa Eliades
Ami Michelle Feltovich
Steven Halpert
Randall Kallinen
Melissa Martin
Feroz Merchant
Marjorie Meyers
Earl D. Musick
James T. Stafford
Charles Stanfield
Jim Sullivan

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HCCLA Officers

Editor
It seems so often the case these days that differing points of view are not reasonably debated, but
simply quashed. “Those who are not with us are against us” rings from coast to coast, and informs
political discourse from top to bottom. Sad to say, there are even members of the defense bar who
are more interested in cannibalizing their own than in presenting a united front to those prosecutors
and judges who seek to undermine the Constitutions we are all sworn to uphold.
We have all known those lawyers who are more interested in being popular with prosecutors and
judges than they are committed to zealous representation of the criminally accused. One reason
the Harris County defense bar has been historically powerless is because whenever its members
organize to take a stand against unfair treatment, there are always those few who rush to sell
out their colleagues in hopes of gaining some small and temporary favor. Even greater numbers
hinder protest by cringing under the rubric that it is “unprofessional” to openly criticize judicial
and prosecutorial misconduct. Too many times, these naysayers propose nothing in the way of
alternative action; instead, they simply pick up their toys and go home, nitpicking from the sidelines
while others carry the ball. And make no mistake: This is not a division between “court-appointed”
and “retained” lawyers; there are quislings in both camps.
This is not to say that all defense lawyers who refrain from taking global positions are incompetent
cowards. Some lawyers generally perceived as among the very best are loners who seldom interact
with professional organizations and evince little interest in group agendas. No one doubts these
lawyers’ ability or willingness to face down renegade prosecutors and judges. However, we also
do not see these lawyers betraying those lawyers who do choose to organize against abuses of the
system.
Evil flourishes when good people do nothing. Whether resistance is covert or open, it is necessary to
reform those institutions that have run amok. Many of us believe that, until appellate review again
becomes a meaningful exercise [and a review of this issue’s Winning Warriors spurs hope that the
pendulum may be swinging], public exposure of bias, ineptitude and dishonesty is the most effective
method available. To those who question the choice of weapon, we urge meaningful alternatives.
To those who question the need for the fight, we suggest alternative employment.

Shawna L. Reagin
Editor

* The Editor’s opinion is purely personal, and in no way reflects the viewpoint or position of the
Harris County Criminal Lawyers’ Association.

winningwarriors
Following the reversal of his death sentence due to faulty or false HPD
crime lab ballistics testimony, Martin Draughon is a free man after
20 years on Death Row, thanks to the negotiating skills of Katherine
Scardino and Jerald Graber, along with some parole advice from Bill
Habern. Jeff Keyes of Ohio won the retrial.
On trial before a worldwide audience, Wendell Odom, George
Parnham and Dee McWilliams finally obtained justice for Andrea
Yates by persuading her second jury to find her Not Guilty by reason
of insanity. George was selected for the Harris County Democratic
Lawyers Association’s 2006 Clarence Darrow Award for his work on the
Yates trial.

Steve Gonzales and Jed Silverman racked up another Not Guilty in
CCCL #14 on August 10, 2006.
“Real Deal” Neal Davis succeeded in the nearly impossible task of
obtaining a reversal and dismissal from the Fifth Circuit in U.S. v.
Chenowith. The panel unanimously reversed Chenowith's conviction
for being a felon in possession of a firearm, holding that because his
civil rights had been restored, the prior felony did not prevent him from
legally possessing a firearm.
David Fleisher engineered a 45-minute Not Guilty on a DWI in CCCL
#5.

Randall Kallinen scored another victory in his quest to have the
religious display removed from in front of the old civil courthouse when
a panel of the Fifth Circuit voted 2-1 to uphold Judge Sim Lake’s earlier
ruling banning it. This fight is likely not over, however.

Carmen Roe and Pat McCann achieved a rare reversal for factual
insufficiency in Brown v. State, ___ S.W.3d ___, 2006 WL 2192986
(Nos. 01-05-00074-CR & 01-05-00075-CR, delivered August 3, 2006)
[designated for publication].

Gilbert Alvarado and Jim Lindeman got a two-word verdict in an
aggravated sexual assault of a child case in the 208th District Court on
August 17, 2006.

Appellate guru Troy McKinney chalked up another win on August 1,
2006, in John B. Davis v. State, No. 14-03-00585-CR [unpublished],
when the COA held it was error for the prosecutor and the judge to tell
the jury that it must convict of DWI if the State proves the intoxilyzer
was operating properly, the operator was qualified and the result is over
.08. This case was particularly noteworthy for the panel’s consideration
of unpreserved error in analyzing harm, a practice long misunderstood
by the 14th COA.

Overcoming both the designated prosecutor and another masquerading
as the visiting judge, Joe Roach saw a Not Guilty in an aggravated sexual
assault of a child trial.
The saga that began with Kirk Oncken’s and Casey Keirnan’s recusal
of Judge Rains in a sexual assault case ended happily when their client
received a deferred adjudication on a plea to a PSI in the 230th District
Court.
Allen Tanner beat the State’s lowest pretrial offer of 35 years following
a four-day theft trial in the 262nd by convincing the jury that convicted
his client of bilking Medicaid for $1.2 million, on fairly egregious facts,
to assess punishment at 23 years in prison.
Flexing her particular expertise once again, Belinda Chagnard reversed
an aggravated sexual assault conviction out of the 176th in Fleck v. State,
___ S.W.3d ___, 2006 WL 2345927 (Tex.App. – Houston [14th Dist.]
8/15/2006) [designated for publication], for the trial court’s failure to
require the State to make an election when timely requested. Henry
Burkholder assisted with the brief.

Proving that good lawyers of a feather flock together, Stan Schneider
convinced the First Court of Appeals to reverse three child sexual assault
convictions out of Ft. Bend County, due to the trial lawyer’s failure
to investigate and to utilize a defensive expert, in an excellent opinion
by Justice Jennings: Wright v. State, 2006 WL 2076148, Nos. 01-0500597-CR to 01-05-00599-CR (Tex.App. – Houston [1st Dist.] July
7, 2006) [designated for publication]. It is good to see that Justice
Jennings’ understanding of ineffective assistance of counsel, previously
demonstrated by his dissent in Green v. State, 124 S.W.3d 789, 794 (Tex.
App. – Houston [1st Dist.] 2003, no pet.) has spread to at least two of
his colleagues.
Heather Harrison Hall won a reversal from the 13th Court of Appeals
in a published opinion that may be the first Texas case to address consent
to search within the framework of Georgia v. Randolph: Odom v. State,
___ S.W.3d ___, 2006 WL 2434999, delivered August 24, 2006.

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MESSAGE

PRESIDENT
by

Robert Fickman, President

Harris County Criminal Lawyers’ Association

In a case that could have wide ramifications for Harris County courts, if
defense lawyers will make the necessary records, Emily DeToto reversed
the 228th District Court for an unreasonably restrictive 30-minute voir
dire, in Mack v. State, 2006 WL 1977104 (No. 07-05-0154-CR, Tex.
App. – Amarillo, delivered July 14, 2006) [unpublished].
Confirming that a necessity charge is not precluded by jury instructions
on self-defense and defense of a third party, David Cunningham reversed
an aggravated assault conviction out of the 230th District Court in Fox
v. State, 2006 WL 2521622, No. 13-03-230-CR (Tex.App. – Corpus
Christi, delivered 8/31/06) [unpublished], with thanks to Catherine
Samaan and James Rivera for preserving error at trial.
Kim Parks continued this unbelievable appellate sweep by securing
the reversal of an aggravated assault from the 208th District Court in
Santacruz v. State, 2006 WL 2506382, No. 14-05-00227-CR (Tex.App.
– Houston [14th Dist.], delivered 8/31/06) [unpublished], in which
the issue was violation of the Confrontation Clause via admission of
testimonial portions of a 9-1-1 call in an alleged domestic violence case.

CONGRATULATIONS
TO ALL THESE

WINNING WARRIORS!

The exact order in which things happen is sometimes muddied. Perhaps
it does not matter. For years we have had the so called “War on Crime”
and the “War on Drugs”. We have seen the net effect of these wars.
More people are incarcerated in some jail or prison in the United States
than any other industrial nation. State sanctioned executions go on
unabated. Yet with all these incarcerations and executions are we really
any better off as a nation?
Now we have the “War on Terror”. Make no mistake; personally, like
most of you, I detest the terrorists who launched attacks on our country
on 9-11. They murdered a college friend of mine who worked as an
attorney for the New York Port Authority. He was trapped in one of the
Towers and died there.

Todd Dupont has bested his record for losing an agreed continuance in
JP court by obtaining a dismissal of a .15 DWI in CCCL #6 [task force,
failure of all SFSTs] on the eve of trial, making this his sixth dismissal in
six days, including a first-degree burglary of a habitation, two assaults
against public servants [jailers], a POM and a city ordinance violation.
In Victoria County, he persuaded the State to dismiss six misdemeanors
in return for one felony deferred plea.

Like most Americans, I want the terrorists to be brought to justice. Like
most Americans, I want them to stop attacking my fellow Americans. As
an American I feel the general undercurrent of fear and anger that we all
feel, waiting for the next attack.

All hail the Czar, Robb Fickman, who had four cases dismissed within
two weeks, including a theft, an evading and an interference with 91-1 call, then won a motion to suppress in a DWI case, based on no
reasonable suspicion for the stop. Most impressive of all is his summit of
Mt. McKinley on July 11, 2006, at 5:30 p.m.

The “War on Crime” and the “War on Drugs” has already led to a steady
erosion of our fundamental rights. Over the last forty years we have
seen the line protecting our rights get thinner and thinner. Anyone who
denies this lives in a fantasy land. We are not yet a police state, but will
we become one?

Despite a “rock solid” case for the State, Tyler Flood hung the jury 6-6
on the issue of the legality of the stop in a felony evading case in the 248th
District Court, helped along by some creative trial inventions offered by
the cops.

We want our nation’s leaders to protect us, but not at any cost. Our
President has sanctioned illegal wiretaps across the nation. He and
many other politicians seem not to care much about trampling on the
Constitution in their rush to fight the “War on Terror”.

Tom Stickler got a Not Guilty in Galveston County Court #3 on a notest, no-accident DWI.

Some may argue that our jobs as defense attorneys are trivial when
measured against larger world events. I would counter that our role
as defense attorneys now and in the future will become even more
important in preserving our nation.

Stanley Topek and son, Seth Topek, who recently joined him in
practice, obtained a grand jury no-bill on a sexual assault case.
Good team work by David Kiatta and Jeff Purvis convinced Brazoria
County prosecutors to dismiss charges of enticing a child on the eve of
trial.

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As an American I want my country to protect us. Yet as a defense lawyer
I must ask at what cost? What will be the cost of the “War on Terror”?

As defense attorneys it will fall to us to make certain that as our nation’s
leaders attempt to protect us from outside forces, they do not destroy us
from within. As the “War on Terror” proceeds, in the years to come there
will be greater calls for more drastic measures to protect us. As defense
lawyers, it will fall upon us to make certain that the Constitution does not
become a casualty of the “War on Terror”.

As an American I want my country to
protect us. Yet as a defense lawyer I
must ask at what cost? What will be
the cost of the “War on Terror”?
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THE CZAR

INCITES DISSENT

When two prosecutors expressed
disagreement with Robb Fickman’s
Presidential Message that appeared in
the Summer issue of The Defender, he
offered them his space in the next issue
and invited them to respond. Although
it was not necessary for Mr. Fickman to
sacrifice his space, the following is the
prosecution’s reply, which is reprinted
unedited:

Contrary to the opinion of some, the Harris County Criminal Justice
system is not broken. Is it perfect? Absolutely not! As prosecutors, we
are not ashamed of being part of the system. We take pride in our role
in the system.
Being a prosecutor is about doing the right thing. It is not about lying or
cheating to win. From the day we started at this office as prosecutors, we
were taught that nothing is more important than doing the right thing.
Over the years, we have learned quite a bit about what it means to do the
right thing. Doing the right thing sometimes means you dismiss a case
even though you believe the defendant is guilty. Doing the right thing
sometimes means you plead a case for less than it is worth. Doing the
right thing sometimes means you make people mad. Sometimes when
people get mad, they misinterpret your actions. Doing the right thing is
not always easy. Not surprisingly, people do not always agree as to what
is the right thing. The right thing is to follow the statutory duty we are
given as prosecutors, “To seek Justice”. As supervisors we try to instill
these principals in young prosecutors.
It has been suggested that there is manipulation of the Grand Jury system
on the part of prosecutors. Quite frankly, that doesn’t give the grand
jurors much credit. Grand Juries frequently impress us when they weed
out cases by “No billing” them. Why would the State want to indict
a case that is a sure fire loser? What is the upside for us in that? Grand
Jurors are not stupid and we have never gotten the impression that they
wanted to be used as pawns of the DA’s office. In fact, members of the
defense bar can and do sit on Grand Juries quite often. Members of the
DA’s office cannot and do not.
It is true that many Harris County Judges came from the District
Attorney’s office. They came up through the same organization we did.
Many judges who are former prosecutors are tougher on the State than
those who never prosecuted. We seem to never be as prepared or able
to do it as good as they did in their days of prosecuting. Some Judges
who only did defense work are more State’s oriented than any former
prosecutor. To suggest that there is some grand conspiracy between the
State and the judiciary is not only laughable, but also ludicrous. “Ex
parte communications occur daily” on both sides of the bar.

DenOunCeD FROM PulPIts COast tO COast!

Is it Deep Throat? Tropic of Cancer? Hustler?
NO, IT’S EVEN BETTER:

The deck is stacked all right, but in today’s era of limited space, budget
constraints, and case filings that are more than double of what they used
to be, the defendant often gets the better hand. We often plead cases
to much less than the very citizens that we represent would want us to
because we need to move them to make time to spend on someone who
is a more serious offender! (Got some of that 12.44a?)
Criticism is also heaped on jurors. Some say that they are too quick
to convict. Some say that they are too inclined to hand down a death
sentence in a Capital case. Clearly, no one has talked to jurors on cases that
we have handled.
We have gotten our
share of not guilty
verdicts. We have
also asked for the death penalty and been rebuffed by these supposedly
“blood thirsty” juries. Jurors who show up for jury duty bring their
experiences and attitudes with them. It is not only unrealistic to expect
anything less from them, but it is also just flat wrong.

The truth simply is.

The notion that “truth” in on one side or another is troubling. The
truth does not take sides. The truth simply is. Throughout the years we
have seen many defense attorneys take the low road and attempt to win
at any cost, even to the point of suborning perjury without regard to the
truth. Where is the righteous indignation over that? What punishment
do they face? None. They get an “attaboy” for beating the State. We
(deservedly) get a grievance filed on us. The defense bar is often held to
a lower standard. Where is the truth in that?
Make no mistake. The criminal justice system is and should be an
adversarial one. That’s what makes it work. It should not be reduced
to personalities or finger pointing. The criminal justice system is about
justice, not “Just Us”. All we have in this business is our integrity. We
all know some have it. We all know some do not. This is the TRUTH!
It takes both sides for justice to prevail. No one is alone in the fight!
Luci Davidson and Marc Brown
Harris County District Attorney’s Office
Robb Fickman replies: “I appreciate Marc Brown and Luci Davidson taking
the time to respond to my previous article. I stand by my comments.”

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banneDnInsbOstOn!
ce WORst nIgHtMaRe!
CItY COunCIl’s

ReasOnable DOubt

MEMORIAm

WITH

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o CHANNEL THAT HAS
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TuNE IN TO THE CABLE
ACCESS
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Loren Albert Detamore
August 10, 1928 - September 3, 2006

CAtCh It WhILe YOU CAn

HCCLA pays tribute to a valuable and respected
member of the defense bar and our organization,
and extends its deepest sympathy to Loren's
family. Rest in peace.

HOuSTON’S GuARDIANS OF PuBLIC DECENCy TOTALLy
HA -TWITTER TO SEE ROBB, HIS CO-HOSTS AND HIS
GuESTS SPIN CRIMINAL JuSTICE CONTROVERSy.
BE INFORMED AND ENTERTAINED.

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Cable aCCess CHannel 17
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BATSON,
WE HARDLY KNEW YE

By Shawna L. Reagin

When Danalynn Recer was working capital cases in rural Mississippi and
Alabama, she frequently had to seek help from the locals in her attempts
to locate witnesses, but would still find herself lost. Finally, a seasoned
investigator took her aside and explained that when white people gave
directions, they did not count houses belonging to black folks. So “third
house on the left” translated to “third house belonging to a white family
on the left.” To the white residents, the blacks simply did not exist.
Juror interviews following a recent non-death capital murder case revealed
this same philosophy to be alive and well in Harris County. Instead of
ignoring black houses, these jurors ignored black testimony. To them,
the testimony of the black people simply did not exist.
In all fairness to the State, and above all, we must be fair to the State,
its prosecutor did not use ALL her peremptory strikes against AfricanAmericans; she only used seven out of the ten, plus her one alternate,
to purge the panel of offensive black people. The panel itself was 18%
black [12 out of 65], and the prosecution used seven of its ten regular
peremptories against the nine black venirepersons within reach, and also
used its one alternate strike to excise a black man. An African-American
prison guard was struck by the defense, and one black male served on
the jury. This ratio was shocking even to a lawyer with experience in
the Deep South, who had never seen anything to compare to a Harris
County voir dire.
Of course, the prosecution had very good reasons for singling out these
people. The most pragmatic excuse, offered in response to the defense’s
Batson1 challenge, was that a young black male too enthusiastically
espoused belief that no innocent person should go to jail. The other

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reasons were equally valid, not any the less so for being applied solely to
the African-American venirepersons. Pretext? What pretext?
A sixty-four-year-old African American woman, employed as a certified
surgical technician, was eliminated from the pool of possible jurors via the
State’s use of one of its peremptory challenges. When asked at the bench
conference why it had stricken the juror from the pool of potential jurors,
the State offered her statement that child abuse is reported more often
today than it used to be. However, nearly the entire panel agreed with
that premise; only one potential juror thought child abuse is reported less
often these days. Whether one believed child abuse was reported more or
less often, that opinion had nothing to do with juror qualification, since
no one said that more reporting was necessarily a bad thing.

. . .when white people gave directions, they did
not count houses belonging to black folks. So
“third house on the left” translated to “third house
belonging to a white family on the left.” To the white
residents, the blacks simply did not exist. . .
The prosecutor struck a fifty-year-old African-American male security
officer and identified his previous employment within the Texas
prison system as the disqualifying factor. The State excluded neither
another black, current TDCJ employee [who made several anti-defense
comments], nor any white government employees. The prosecutor’s

feeble explanation that prison guards are apt to sympathize with people
who are sent to prison rang especially false, considering that the State will
normally knock down doors to seat a person even remotely connected
with law enforcement.

She did not say she had served on a hung jury. In answer to the judge’s
questioning, she said that she did not think her jury had reached a verdict,
but could not explain why. The Court specifically asked her if it was a
hung jury and she said she didn’t know.

A thirty-five-year-old black man who works as an operator for Texas
Instruments was felled by the State’s ax. When asked why she had
stricken this juror, the prosecutor claimed he was 'overzealous' in
agreeing with the presumption of innocence and the right to remain
silent,” given that he was “saying ‘Amen’” when the panel was asked
about this. Though the defense table was situated closer to this man
than was the State’s table, no one at the defense table heard an “Amen”
to any question at all.

The State’s strike of a 25-year-old black male was at first justified by the
prosecutor claiming he had a SPN, but when defense counsel pointed
out that she herself has a SPN, as does the prosecutor, the excuse was
amended to a “possible” arrest or conviction for DWI. There were
several members of the venire with DWI arrests and/or convictions, yet
not all were stricken by the State.

Also doomed by the prosecutor’s discriminatory pen was a twenty-oneyear-old black male employed as a laborer. When asked at the bench why
it had stricken this person, the State said he had not responded to the
defense attorney’s questions quickly enough. Aside from the prosecutor’s
theretofore unvoiced concern for the defense’s point of view, several
potential jurors – white, African-American and Hispanic – had difficulty
expressing themselves. Their lack of articulation did not render them
unsuitable in the State’s eyes, however.

The State did call another black person in rebuttal. She was the maternal
grandmother of the dead baby. [The mother had refused to bow to
the State’s constant pressure to say the man accused had abused her
child.] This grandma foamed at the mouth, committed blatant perjury
uncorrected by the prosecution, and appeared to be either mentally
unbalanced or mentally deficient in some regard, despite being on active
duty in the U.S. Army. The jury specifically said it disregarded her
testimony.

Incredibly, the prosecutor dismissed a fifty-one-year-old, black female
postal clerk, despite the fact that postal workers practically constitute the
backbone of the grand jury system in Harris County. She claimed she had
a policy of striking all postal service workers because “they do not make
good jurors.”2 The prosecutor further alleged this woman had served on
a hung jury, but that was not actually the case, as was pointed out.

In contrast, all of the defense witnesses except for the forensic pathologist
were African-American. Several people related by blood to the dead
child testified on the defendant’s behalf as to his loving, caring, gentle
relationship with her.4 The child’s own mother appeared for the defense,
and admitted that the baby preferred the accused over her.5 These
witnesses were prevented from telling the jury that they would all trust
their children with him, even today. The defense intentionally avoided

Only one African-American juror served in this case, which involved an
African-American male accused of intentionally or knowingly causing the
When the panel was asked as a group whether they understood the death of his girlfriend’s toddler by striking her head with an unknown
presumption of innocence is important, every single potential juror object. He was arrested several months after the child died3, based on
indicated that he or she agreed. Some potential jurors nodded, the assistant medical examiner’s contention that the head injury could
some said “Yes” and the juror in question
not have been accidental and could not have
said, “Absolutely.” The State’s substitution of
occurred at any time other than the moments
“amen” for “absolutely,” whether deliberate or
he was alone with the child. A doctor at Texas
All of the State’s witnesses
subconscious, reeks of racial stereotyping.
Children’s Hospital reiterated this claim at
were Caucasian. . .
trial, although the assistant M.E. became less
A forty-five-year-old African-American female
certain when he was made aware of the defense
employed as a para-educator was eliminated
expert’s existence. There was absolutely no
by another of the State’s peremptory challenges. The State’s alleged direct evidence connecting the accused with the injury, other than the
reasons were that it did not know what a “para-educator” was, and the timing issue.
insufficiency of the responses on her juror card. The prosecutor was
duly advised that a para-educator is a teacher’s aide. The State declined All of the State’s witnesses were Caucasian, with the exception of the dead
to strike any white teachers; indeed, at least one served on the jury, and child’s biological father and his current babymama, who had also had a
a Hispanic woman retired from HISD also served. Additionally, several child with the accused. Neither of those two were harmful to the defense,
other potential jurors of all races did not fully complete their juror cards. and even helped in some ways. They had nothing material to present for
One white male selected as a juror failed to note the fact that he had the State, although the prosecutor unsuccessfully tried to elicit testimony
children, and had to be separately questioned about this omission, as that the defendant was ragingly jealous of the baby’s father, despite the
did several other jurors. The prosecutor was not affected by these same passage of several years and several other relationships since his friendly
shortcomings when demonstrated by non-black panel members.
breakup with the mother of his own child.

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calling his own relatives to vouch for his character, in the belief that the
support of the complainant’s relatives was much more convincing that
that of his own.
Many, but not all, of these witnesses were very poor, having had their
lifetimes of deprivation exacerbated by the ravages of Hurricane Rita;
most lived in Orange, Texas. None of the witnesses had criminal history.
A few had jobs, a few did not. Some were well-dressed, some were not.
Most were regular churchgoers. They varied in degree of articulateness.
The witnesses were all consistent in their unwavering support for the
man on trial, based on their frequent observations of his behavior with
this child and other children. They all knew him, the baby’s mother and
the baby, and were unanimous in their contention that he could not and
would not have harmed the child, either negligently or intentionally.
Many of them were not quite as confident about the mother. Other than
the rabid grandmother, shunned by her community, the State could not
bring a single witness or piece
of evidence to denigrate the
character of the accused.
“those people were all

sticking together”

How did the jury perceive this
parade of witnesses? According
to post-trial interviews, the
majority of them completely failed to comprehend that they were not
the defendant’s relatives. Sneering comments ranged from “anybody
can get his family to come down and lie for him” to “those people were
all sticking together.” The white jurors could not understand the types
of relationships involved, so chose to dismiss the entire group. No one
bothered to examine why the great-grandmother, great-aunts, aunts and
cousins of the dead child would want to come to court and lie for the
man accused of killing her. The couple of jurors who did seem to know
that the witnesses were the child’s relatives apparently believed them to
be so callous as to be more concerned with keeping a guilty man out of
prison than with seeking vengeance.
The white jurors smirked that the “Orange people” were “not my
neighbors.” There were many references to “those people,” “that
culture” and “certain cultures like that in Orange, New Orleans and
coming to Houston, now, after Katrina.” “Culture” referred to having
multiple children out of wedlock, with multiple biological fathers. One
white juror thought the defense witnesses were “cultish and all in cahoots
on the defendant’s side and had all had babies with each other,” a gross
mischaracterization of the relationships. This same juror praised the sole
black juror for “having no issues” and “if we had blinkers on, we would
not have known he was African-American.”6 She opined that the best
way to stop child abuse cases would be “to stop people in this group from
having babies.”
During voir dire, defense counsel broached the racial issue by sharing an
experience from a murder case tried a couple of months earlier, wherein

the defender h 10

a white female juror ducked her head, cowered in her seat and refused
to make eye contact throughout the trial and especially during closing
arguments. After the verdict, this same juror scuttled out without talking.
Other jurors revealed that this woman had concluded that all the black
people she saw in the courtroom during the trial were gang members who
were going to track her down and harm her after the verdict. Of course,
none of the people she feared were even connected to the trial. Upon
hearing of this, the panel scoffed, rolled their eyes and all agreed that
anyone with that type of feeling should not serve on the jury.
Amazingly, these same jurors later told interviewers how petrified they
had been of all the black people in the courtroom and in the halls. The
juror who advocates racial sterilization claimed that she would never again
stop in Orange, Texas, and that she did not make eye contact with anyone
in the courtroom as the verdict was delivered because “there was a crowd
of angry people in the courtroom and I felt intimidated.” She alleged
that the female jurors demanded to be escorted out by males, and that
the male jurors insisted on pairing up to leave. There was no anger in
the courtroom; there was immense sorrow. Such a normal emotion could
not be credited to “those people,” however.
This juror waited until after the trial to reveal that she was approached
during trial by “someone from the African-American community,” who
allegedly said, “I just pray that you make the right decision.” It was “this
type of confrontation” she “feared the most – a member of the defendant’s
family coming to me after the verdict and demanding an explanation for
their decision.” Fortunately, it was not a member of the defendant’s
family who approached her; the juror simply assumed the worst, based on
the apparent supposition that all the black people around the courtroom
were related to him. The offending black person was either the paternal
grandmother or aunt
of the complaintant.7

. . .she immediately asked if

When this juror’s
they were African-American.
husband informed her
there were two people
at the door to see her
about her jury service, she immediately asked if they were AfricanAmerican. She claimed that every time she hears a car door shutting in
her neighborhood, she looks out to see who it is, apparently believing
that “those people” have come to terrorize her.
These jurors likely would deny to the death that they are in any way
racist. Their attitudes are so ingrained that they do not recognize the
extent to which they influence their decisions and feelings. By the same
token, the prosecutors who erase minorities from jury panels, and the
judges who so willingly allow them to do so, seldom act from overt
racism. As Thurgood Marshall observed in Batson:

“[I]t is even possible that an attorney may lie to himself in an effort
to convince himself that his motives are legal. [citation omitted]. A
prosecutor’s own conscious or unconscious racism may lead him easily
to the conclusion that a prospective black juror is ‘sullen’ or ‘distant,’ a
characterization that would not have come to his mind if a white juror
had acted identically. A judge’s own
conscious or unconscious racism may
lead him to accept such an explanation
. . .people often act
as well supported.”8

A racially-oriented manual on jury selection written and used by the
Dallas D.A.’s office from 1968-1976 or later was considered evidence
of a formal policy to exclude minorities that “reveals that the culture of
the District Attorney’s Office in the past was suffused with bias against
African Americans in jury selection.” This evidence, of course, is relevant
to the extent it casts doubt on the
legitimacy of the motives underlying the
State’s actions. “Even if we presume at
from the teachings
this stage that the prosecutors in Millerof the institutions they represent, rather
El’s case were not part of this culture
than from their personal beliefs.
of discrimination, the evidence suggests
they were likely not ignorant of it.”14

The main problem is that Texas appellate
courts have abandoned Batson’s
promise, giving prosecutors carte blanche
to exercise their peremptory strikes in a racially discriminatory manner.
The Court of Criminal Appeals has held, contrary to Batson, that a
prosecutor can give a reason that is completely contradicted by the record
and still be deemed to have offered a “racially neutral” explanation for
the strike.9 The Court continued to distance itself from the protections
guaranteed by Batson when it deemed gender or racial bias to be an
acceptable reason for exercising a peremptory challenge, as long as the
prosecutor recites an additional, “racially neutral” reason to cover his/her
tracks.10
The Court appears to favor a reversion to the laissez-faire standard it
rejected in more temperate years:
“It appears that the Court [of Appeals] would only review the exercise
of a peremptory challenge where there is a blatant constitutional
violation, such as where a prosecutor states “I struck that prospective
juror because he is black.” Limiting our review to the exercise of such
a challenge ignores the reality that the peremptory challenge system
permits discrimination by those who are of a mind to discriminate.”11
Of course, following Guzman’s regression, the Court will even excuse
a blatant assertion of racial bias, as long as it is coupled with a more
politically correct mantra.
The issue cannot be whether a particular trial judge or prosecutor is
racist; the law cannot turn on a subjective, personalized assessment of
the individuals involved in each case. However, people often act from
the teachings of the institutions they represent, rather than from their
personal beliefs.
As recently as 1991, the Harris County District Attorney’s Office was
instructing its prosecutors that “probably the very best jurors are Oreos
– black on the outside, white on the inside.”12 The District Attorney
at the time believed these words were “kind to blacks,” but the office
was criticized for not understanding the offensiveness of characterizing
“white” attitudes as “good,” and “black” attitudes as “bad” in terms of
jury service.13

Shortly after the U.S. Supreme Court handed down Miller-El, a Batson
issue was briefed in a death penalty case from Harris County, wherein the
State had struck a Hispanic juror in a discriminatory fashion. Pages upon
pages of the brief were devoted to the parallels between the State’s actions
in that case and those repudiated in Miller-El. The Court of Criminal
Appeals, in summarily disposing of the claim by way of misstating the
record, resolutely refused to even acknowledge the existence of MillerEl, much less to accurately address the issues.15
Although it is not unusual for the Court of Criminal Appeals to shirk
legitimate review of death penalty cases, the issue of racially biased jury
selection extends beyond an individual case and affects the right of the
state’s diverse citizenry to serve on juries. Texas should not be free to
avert its eyes from those portions of the Constitution it finds disagreeable
and pretend they are not real. Texas can no longer be permitted to
deny its citizens the threshold protections afforded citizens of more
enlightened jurisdictions.
Encouraging racially diverse juries has traditionally focused on the
constitutional right of minorities to serve as jurors and on the enhanced
information exchange that occurs among a heterogeneous group.16 As
Justice Marshall, a prime example of the benefits racial diversity can
confer upon a deliberative body, once wrote:
“When any large and identifiable segment of the community is
excluded from jury service, the effect is to remove from the jury room
qualities of human nature and varieties of human experience, the range
of which is unknown and perhaps unknowable. It is not necessary
to assume that the excluded group will consistently vote as a class in
order to conclude, as we do, that its exclusion deprives the jury of a
perspective on human events that may have unsuspected importance in
any case that may be presented.”17
While these remain valid concerns, there are far greater reasons to ensure
racial diversity on juries. Too often, both the defense lawyers who
strive to seat minority jurors, and the prosecutors who ruthlessly deny
them those seats, think in terms of a monolithic “minority experience,”

the defender h 11

assuming that a particular minority will think and vote as a bloc. Trial
experience teaches most of us that this is not the case. It is no more valid
to say that a black juror will always acquit a black defendant than it is to
say that a white juror will always vote to acquit a white defendant. By
operating on this assumption, however, prosecutors who exercise their
peremptory strikes in a racially discriminatory manner deprive themselves,
and the system, of the opportunity to bring greater legitimacy to jury
verdicts in criminal trials.

In a case like the one discussed above, with extremely marginal evidence,
the importance of having a jury better-equipped to engage in complex
decision making cannot be overstated. Interestingly, several of the
jurors interviewed mentioned their high degree of education and what a
harmonious group they made. Unfortunately, the high levels of academic
attainment did not translate into a sophisticated ability to analyze the
evidence presented.

The jurors have admitted that nearly all of them retired with an intention
Dr. Sommers’ study revealed that, by every deliberation measure examined, of returning a guilty verdict; two jurors thought it important to at least
heterogeneous groups outperformed homogeneous groups. [In this appear to discuss the evidence, which accounted for the four hours they
model, juries comprised of four whites and
spent reviewing a full five days’ worth of
two blacks were considered diverse; a onetestimony. They spent this time picking
“discrepancies”
person minority is not meaningful in that
apart details in an attempt to find some
“different stories”
it is “token,” particularly likely to remain
justification for what they had already
“racial code words”
quiet and succumb to group pressure, and
decided to do.
less likely to exert the consistent pressure
necessary to have an influence on the majority.18 Most criminal trial Two different white female jurors cited the “fact” that the bed upon
lawyers have discovered this phenomenon for themselves.] A summary which the accused had said he laid the child to perform CPR was
of the findings follows:
“perfectly made, unlike it would have been if he had really tried to do
CPR,” as evidence that he lied about his actions. A photograph of the bed
1. Diverse groups spent more time deliberating than did all-white shows that it was unmade and very messy. Clearly, this non-diverse jury
groups.
both processed data inaccurately, and failed to correct the inaccuracies
2. The diverse groups used this extra time productively, discussing a once they surfaced. As previously stated, the jurors also confused the
wider range of case facts and personal perspectives.
identities of the witnesses and completely misunderstood their relation
3. Diverse groups made fewer factual errors than all-white groups.
to the case. An in-court demonstration with a doll, explicitly explained
4. Factual inaccuracies were more likely to be corrected in diverse to be smaller than the actual size of the dead child, was ridiculed by
groups.
several jurors as being an effort by the defense to mislead them, or being
5. Racially heterogeneous groups had discussions that were more unconvincing. These well-educated folks apparently were somewhat
comprehensive and remained truer to the facts of the case.
lacking in imagination or in the ability to extrapolate.
6. Diverse groups were more open-minded, in that they were less
resistant to discussions of controversial race-related topics.
The jurors found many non-existent “discrepancies” in what they termed
7. Jurors were less likely to believe the defendant was guilty when they the defendant’s “different stories,” most of which were again factually
were in a diverse group.
inaccurate. One cannot help but conclude that, had a white male from
River Oaks been brought to trial on this same marginal evidence, this
Other trial analyses have supported the proposition that the greater the nearly all-white jury would have been much more forgiving. Instead,
proportion of whites on a jury, the harsher that jury tends to be toward the white male alternate juror deemed the accused to be “like a pimp,”
non-white defendants.19 But it is an oversimplification to conclude because he wore some suits this man did not find acceptable. Would this
that the effects of racial composition on decision making can be wholly have been the sobriquet applied to a white defendant whose clothing did
attributed to the differential information conveyed by white and black not meet his approval?
group members. When jurors were asked to submit individual, predeliberation verdicts, white members of racially diverse juries were less Although there is always the tendency to blame a questionable verdict on
likely to consider a black defendant guilty, even before any discussion had racism, especially in Harris County, that is not the point of this article.
ensued.20
The point is that, in trial after trial in this county, the State routinely
purges the panel of those few minority members who manage to show
“Whoa Nelly!” says the prosecutor. “This is precisely why I strike blacks up for duty. If the defendant is Hispanic, adios to Hispanics. If she or
from the panel – I want a guilty verdict, and I might be less likely to get he is African-American, toodle-oo to the African-Americans. Only white
one if I leave those people on the jury.” But do we not always hear that defendants manage to emerge from voir dire with a jury that mostly
the prosecution’s true job is to see that justice is done, not to simply reflects their own race, for better or for worse.
secure a conviction? If the State’s case is a righteous one, then it should
be able to stand the test of a racially diverse jury.
The Houston Chronicle recently reported on an employment
discrimination lawsuit filed by the EEOC on behalf of a black file clerk,
that alleges her white supervisors used “racial code words” to intimidate

the defender h 12

and harass her.21 The code word in this instance was supposedly an
“infamous racial slur spelled backward.” The EEOC referred to this and
other examples as a “more subtle form of intimidation” than the outright
use of such words.
It is difficult to think of a racially derogatory term spelled backward that
lends itself to subtle usage in everyday conversation, but it is a fact that
most people today, especially those with any pretense toward education
or socialization, do not employ inherently offensive words to express
prejudice against minorities. However, white people do not need to use
those words in order to convey certain opinions and conclusions they
believe to be shared by others of their kind.

racial justice might better serve by trading the uniforms for suits and ties
and coming inside the courtroom to see what really transpires.
We would all benefit from increased minority participation in the jury
pool, as well as community outreach that can educate potential jurors
about the issues and the dire need for their presence within those cabals
of twelve.
Meanwhile, we may as well run this ad in the newspaper:

WANTED:

JURORS FOR CRIMINAL TRIALS

In one of his earlier novels, Philip Roth described how a character’s
mother had substituted a Yiddish word for a more racially offensive
term that had figured in her vocabulary before it became socially outré.
The woman remained obliviously convinced that black people did not
understand themselves to be the subject of such sentences as, “I have to
hide the silver from my schvartze” [spoken in the presence of her black
maid], etc. This laughable subterfuge has “evolved” into the lifted brow,
the slightly curled lip or even just the quick, knowing glance exchanged
across a table; thus is the truly subtle Caucasian code that enables those
in the club to communicate across whatever untouchable temporarily
sullies their presence.

QUALIFICATIONS:

When the white jurors talked of the “Orange people,” “that culture,”
and “those people,” they were being only a little less obvious than Roth’s
well-intentioned matron. Like her, they probably consider themselves
to be free from prejudice, totally open-minded toward other races and
ethnicities and completely unbiased in their dealings with people who are
different. Unfortunately, by living their insular lives in their homogeneous
suburbs, churches and families, they are depriving themselves of any true
insight into both their own attitudes and those of people outside their
tightly-regulated spheres. They think so much alike they do not have to
overtly communicate their racial beliefs.

* (Qualifications subject to change without notice.)

A few of the white jurors expressed surprise that there had not been more
than one black juror to sit in judgment of a black defendant. These jurors
were left in ignorance as to the true reason they were forced to substitute
for the accused’s peers, lest an explanation be deemed an unethical
attempt to taint them for future jury service. But the loss was as much
theirs as it was that of the man on trial.
To date, neither the NAACP nor other activist groups have taken any
sustained interest in the systematic exclusion of minorities from Harris
County jury service. We periodically hear of efforts to increase minority
participation in the jury pool as a whole, but these never seem to develop
into real programs. The monitoring of capital voir dire is an area of
special need, as sometimes there exists a palpable aura of discriminatory
intent when the judge and the prosecutors reach a tacit understanding
that a particular juror will be dismissed.22 Rather than donning uniforms
and marching around outside the courthouse, groups concerned with

Caucasian: Pulse [optional]; Harris County resident
*

African-American: Doctor of Jurisprudence, employed as
prosecutor in the Harris County D.A.’s office, IQ of 200 or
more, must never have driven past a prison or known of one’s
location, must speak a minimum of four languages, must
have published a minimum of five books endorsed by Ann
Coulter, must not believe too strongly in the presumption of
innocence or proof beyond a reasonable doubt.

The author thanks Danalynn Recer and the numerous GRACE interns who
assisted in the trial of the case discussed herein, compiled data on the venire
and conducted post-trial interviews of the jurors who served. Their help was
invaluable.

Batson v. Kentucky, 476 U.S. 79, 106 S.Ct.1712, 90 L.Ed.2d 69 (1986). All of the defense’s
objections pursuant to Batson were overruled.
2 It is widely recognized that supposedly neutral explanations for peremptory strikes which bear no
rational relationship to how a juror might perform her duty are obvious pretexts for discrimination. See,
Whitsey v. State, 796 S.W.2d 707, 713 (Tex. Crim. App. 1990); see also, United States v. RomeroReyna, 867 F.2d 834 (5th Cir. 1989) - rejecting a prosecutor’s claim that he struck a Hispanic juror
because he had a policy of striking any juror whose occupation began with the letter “p”. Additionally,
the State’s failure to question the woman about her profession weighs in favor of a finding that her
profession was a pretext for discrimination. Vann v. State, 788 S.W.2d 899, 904 (Tex. App. – Dallas
1990). If the State truly had concerns about her ability to serve on the jury due to her occupation, it
would have questioned her in this regard.
3 He was arrested a month or so after the death, but was released for lack of evidence, despite the
fact that the autopsy had been completed, because the statement he gave was the same explanation
he had provided to 9-1-1 and when interviewed at the hospital; it remained the same throughout the
intervening years and during his trial testimony.
4 The defense was denied the opportunity to present crucial testimony, around which its entire strategy
had been designed, about the accused’s experience, treatment and behavior with other children, pursuant
to Tex.R.Evid. 404(a) and 405, explicitly allowing evidence of specific instances of conduct when the
defense injects his character into the trial.
5 The mother had two more children with the accused after the death of this baby.
6 This poor soul, painfully cognizant of his position as the only African-American on the jury, failed to
perceive his fellow jurors’ bias. Either he was unschooled in Caucasian code, or the others refrained from
voicing their observations during deliberations, each tacitly aware of the others’ feelings. He agreed to
find the defendant guilty, despite being only 75% convinced of his guilt.
7 Prior to trial, all defense family and witnesses were strenuously lectured on proper behavior at the
1

the defender h 13

the

defender

F ALL 2 0 0 6

courthouse, since experience foretold that any disturbance would be blamed on them and that all
their actions would be viewed in the most negative light possible. Also, the family and witnesses were
continuously supervised by volunteers from GRACE. The black people in the courtroom throughout
trial belonged to the biological father’s family, as none of them were witnesses.
A few weeks after the trial discussed herein, a large crowd of Anglos camped outside this same
courtroom, rallying around an attractive young woman with long red hair, causing one to wonder
whether the jurors on the case cringed in fear as they passed by the unruly mob and lived in terror that
an Irish boogeyman would later track them down and punish them for their verdict. Of course, she may
have been a victim, thus blessed with the State’s imprimatur.
8 Batson, ante, 106 S.Ct. at 1728 [Marshall, J., concurring].
9 Ford v. State, 1 S.W.3d 691 (Tex.Crim.App. 1999) – prosecutor claimed she struck a black juror
because she knew the defendant’s mother, but it was actually another venireperson who knew her.
10 Guzman v. State, 85 S.W.3d 242 (Tex.Crim.App. 2002). Under this rationale, a prosecutor’s strike
will be immune from Batson review if he states for the record that he struck a panel member because
he was a [insert racial slur here] as long as he added, “and he was looking at me funny.” The Texas
Supreme Court has declined to adopt the “dual motive” standard for civil cases [again, so much more
important than mere life or death for a criminally accused], holding that equal protection is denied when
race is a factor in counsel’s exercise of a peremptory challenge. Palacios v. Powers, 923 S.W.2d 489
(Tex. 1991).
11 Whitsey, ante, at 713 (Tex.Crim.App. 1989), citing Batson, 106 S.Ct. at 1723.
12 Houston Chronicle, “Oreo line offends black prosecutors,” Sec. A-1 (May 10, 1991).
13 Id., “Oreo comment disservice to all,” Sec. A-21 (May 11, 1991).
14 Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).
15 Jesus Flores v. State, No. 74,258 (Tex.Crim.App. Oct. 20, 2004) [unpublished], cert. denied.
This case provided excellent examples of the type of disparate questioning rejected by Miller-El, even
though the CCA ignored it completely. The prosecutor’s questions to white jurors consumed pages,

ending with a “Do you agree?”, while minority jurors were treated to abrupt queries like, “Give us your
thoughts on the death penalty.” White jurors were instructed endlessly on the applicable law before
being asked a question, whereas the minorities, especially Hispanics, were given no clue before being
asked to pronounce an opinion or analyze hopelessly obtuse scenarios.
16 Sommers, Samuel R., On Racial Diversity and Group Decision Making: Identifying Multiple Effects of
Racial Composition on Jury Deliberations. Journal of Personality and Social Psychology, Vol. 90, No.
4, 597-612 (2006).
17 Peters v. Kiff, 407 U.S.493, 503-04, 92 S.Ct. 2163, 2169, 33 L.Ed.2d 83 (1972). For a great
example of intra-racial diversity, contrast Justice Marshall with Clarence Thomas.
18 Sommers, S., ante, at 600.
19 Id., 598.
20 Id., 599-601.
21 Houston Chronicle, “Racial code words draw lawsuits,” Sec. D, p. 1 (Aug. 21, 2006).
22 Several years ago, during a high-profile capital trial involving a black defendant, these tactics reached
a particularly abysmal level. An African-American preacher’s wife, stronger than goats’ breath, was
dismissed because she “might be influenced by her husband” to go against death, even though she
repeatedly affirmed her own belief in the death penalty in an appropriate case. The black plant manager
for the entire M.D. Anderson system was deemed to be of insufficient intelligence to comprehend
the special issues. However, a young white dolt who lolled in his chair, chomping gum, giggling and
drooling, was readily accepted by the State [but not by the defense] and was treated with great deference
by the trial judge, who, despite his own personal claims of renowned racial liberalism, handled black
venirepersons and black witnesses with frigid contempt and disdain, while his tender concern for a white,
scumbag, multiply-convicted jailhouse snitch was so obsequious as to be nauseating. Fortunately, his
behavior contributed to a life sentence in a case widely considered to be a slam-dunk death for the
State.

August 24, 2006

to All
Judges
Trying
Criminal
Cases

Dear Judge:

Harris County
1201 Franklin
Houston, Texas 77002

The Harris County Criminal Lawyers Association believes
that some Harris County judges continue to illegally
revoke bonds. The Board of Directors of the Harris
County Criminal Lawyers Association takes this matter
very seriously. In 2001, the Board passed a Resolution
condemning the practice. The Resolution was disseminated
to all judges.
Due to the serious nature of the problem, the Board
has again voted to disseminate the previously passed
Resolution and to take appropriate action when
necessary. For your review, enclosed please find a copy
of the Resolution.
Thank you for your attention to this matter.
Respectfully,
Robert J. Fickman
President
the defender h 14

the defender h 15

Resolution Criminal Lawyers Association

HCCLA Resolution

Regarding
revocation of
Bonds

The officers and directors of the Harris County Criminal Lawyers
Association unanimously approved a resolution condemning the long
standing practice in Harris County and throughout the State of Texas
of revoking the bail bonds of people who do not hire a lawyer. The
resolution follows this short discussion.
The practice of revoking a person's bond simply and solely because such
person has made bond and then failed, chosen, or refused to hire an
attorney expressly violates the Code of Criminal Procedure. TEX. CODE
CRIM. PROC. ANN. art. 26.04 provides, "[t]he court may not deny
appointed counsel to a defendant solely because the defendant has posted
or is capable of posting bail." Moreover, it has long been held by Texas
appellate courts that a trial judge may not revoke a person's bail bond
because the person has failed to hire an attorney. Meador v. State, 780
S.W.2d 836 (Tex. App. – Houston [14th Dist.] 1989, pet. ref'd). Just as
importantly, a trial court may not order a person, as a condition of bond,
to hire counsel. Id. 780 S.W.2d at 837.

The officers and directors of the Harris
County Criminal Lawyers Association
unanimously approved a resolution
condemning the long standing practice
in Harris County and throughout the
State of Texas of revoking the bail bonds
of people who do not hire a lawyer.

the defender h 16

Although some judges may be of the opinion that a person who can afford
to make bond should be able to afford to hire an attorney, a person may
be too poor to employ counsel and yet not be completely destitute. An
accused may have some available funds, such as a few hundred dollars to
make bond, but not enough available funds, which can frequently amount
to thousands or tens of thousands of dollars, to secure counsel in view of
the nature of the charge pending against him. Ex parte Bain, 568 S.W.2d
356 (Tex. Crim. App. 1978). Similarly, a person may have been able to
make bond only because a friend or relative provided the funds. In any
event, it is equally well established that the ability to secure a bond is not,
standing alone, sufficient to warrant a refusal to appoint counsel. Harriel
v. State, 572 S.W.2d 535 (Tex. Crim. App. 1978). Cf Ex parte King, 550
S.W.2d 691 (Tex. Crim. App. 1977); Stearnes v. Clinton, 780 S.W.2d
216 (Tex. Crim. App. 1989) (the power of the trial court to appoint
counsel does not carry with it the concomitant power to remove counsel
at the court's discretionary whim); Buntion v. Harmon, 827 S.W.2d 945
(Tex. Crim. App. 1992) (once counsel is appointed, the trial judge is
obliged to respect the attorney-client relationship created through the
appointment).
Having a lawyer is a right provided by the Texas and United States
constitutions. It is not an obligation. While a represented defendant may
be easier for courts to deal with, being unrepresented is not, under any
circumstance, a justification for a judge to place a person in jail.
While some judges may be offended at the portions of the resolution that
call for grievances to be filed with the Judicial Conduct Commission, as
one potentially appropriate response, the only goal of this resolution and
its call to action is to end the practice of people being incarcerated for not
having an attorney. If the practice ends, then no grievance, mandamus,
or habeas corpus will ever be filed. If the practice does not end, then all
appropriate action must be taken. The Officers and Board of HCCLA
encourage its members as well as other attorneys across the State of Texas
to do everything reasonably possible to help end this despicable, illegal,
unconstitutional, immoral, and unethical practice.

of the Harris County

W

hereas, it is the mission of the Harris County Criminal Lawyers
Association to "Educate and Inform the General Public Regarding
the Administration of Criminal Justice" and it is among the goals of
the Association to "ensure . . . due process, and justice for persons accused
of crimes" and to "keep members and the public informed of current
criminal justice issues;"
Whereas, it has been and is the practice and policy of many judges in
Harris County, Texas and elsewhere to revoke the bond of a person who
has not retained counsel within a time period prescribed by such judge;
Whereas, it has been and is the policy of some judges in Harris County,
Texas and elsewhere to order accused citizens to hire an attorney by a
certain date and when such citizen fails or chooses not to do so, to hold
such citizen in contempt;
Whereas, the employment or retention of counsel is a right afforded to a
citizen charged with a crime by the United States and Texas Constitutions
and not a legal or constitutional obligation of such person;
Whereas, the only legitimate purpose of a bail bond is to ensure the
presence of the citizen accused in the court in which such person is
charged;
Whereas, bond and the revocation of bond may not be used as a tool of
punishment or oppression;
Whereas, judges have constitutional, legal, and ethical duties and
obligations to uphold the United States and Texas Constitutions, to
follow the laws enacted by the Legislature, and to abide by the Code of
Judicial Conduct;
Whereas, judges have no inherent, legal, constitutional, ethical or moral
power or authority to revoke the bond of a person who has failed or
chosen not to hire an attorney;
Whereas, a person who has failed or chosen not to hire an attorney
should have his case treated and disposed of in the same manner as if he
had retained an attorney;
Whereas, judges have no inherent, legal, constitutional, ethical or moral
power or authority to hold an accused citizen in contempt for failing or
choosing not to hire an attorney;

Therefore:
Be it Resolved by the Harris County Criminal Lawyers Association
that consistent with its mission and goals, its members, associates, and
affiliates are encouraged, requested, and implored to take all reasonable
and necessary actions to end the unconstitutional, illegal, and unethical
practice by judges in Harris County, Texas and elsewhere of revoking the
bail bond of any person because such person has failed or chosen not to
hire an attorney.
Be it Further Resolved by the Harris County Criminal Lawyers Association
that reasonable, necessary, and appropriate actions may include one or
more of the following:
1. Immediately upon witnessing the improper revocation of a bail
bond on the basis and for the reason that such person has failed or
chosen not to hire an attorney, advise the judge in the presence of the
prosecutor that the act of revoking the bond of a person on the basis
and for the reason that such person has failed or chosen not to hire
an attorney is unconstitutional, illegal, and a violation of the Code of
Judicial Conduct.
2. Collect relevant information about the case, the citizen accused, and
the circumstances and, as appropriate:
A. Transmit that information to an Officer or a member of the
Board of Directors of the Harris County Criminal Lawyers
Association;
B

With the citizen's consent, pursue a writ of mandamus to
compel such judge to withdraw the illegal revocation of bond;

C. Advise the incarcerated citizen that the judge's revocation of
bond is unconstitutional, illegal, and a violation of the Code of
Judicial Conduct and advise the incarcerated citizen that she has
the right to pursue certain remedies, including a mandamus and
a complaint to the Judicial Conduct Commission;
D. Advise the Harris County Board of Judges;
E. Advise the press; and/or
F.

Refer the matter to the Judicial Conduct Commission.

Unanimously Adopted, Approved, and Sanctioned by the Officers and
Board of Directors of the Harris County Criminal Lawyers Association.

the defender h 17

the

defender

F ALL 2 0 0 6

motion
of the

a)

b)

c)

CAUSE NO. ___________

IN THE INTEREST OF

IN THE DISTRICT COURT

XXXXXXX,

_____ JUDICIAL DISTRICT

A CHILD

d)

HARRIS COUNTY, TEXAS

MOTION TO SEAL RECORDS
COMES NOW XXXXXXX, Respondent in the above entitled and numbered cause, by and through his attorney of record, and moves the
Court to issue an order requiring that files and records in the above entitled and numbered cause be sealed in accordance with the provisions
of [§/58.003(c)/58.003(d)], Texas Family Code, and would show the Court that:
1)
Respondent’s full name and date of birth is XXXXXXX, xx/xx/xxxx. Other identifying information is as follows:

Sex:

Race:

Texas Drivers License:

Social Security:

AFIS:

Harris County Juvenile Number:
2)

               
               
               

Respondent was charged with the offense of ______________ alleged to have taken place in Harris County, Texas on or about
_________.
Respondent appeared before this Court on _______, in cause number ________, for the offense of _____________, and was
[/adjudicated delinquent/the case was dismissed] by this Court.

4)

[if felony adjudication, include the following:]
Respondent did not receive a determinate sentence for engaging in delinquent conduct that violated a penal law listed in Section
53.045 of the Texas Family Code nor engaging in habitual felony conduct as described by Section 51.031 of the Texas Family
Code.

5)

Respondent completed probation on ___________.

6)

Respondent’s charge was dismissed on ________.

7)

Since the time specified above, Respondent has not been convicted of a felony or a misdemeanor involving moral turpitude or
found to have engaged in delinquent conduct or conduct indicating need for supervision, and no proceeding is pending which seeks
conviction or adjudication.

8)

[if juvenile passed for deferred adjudication, simply dismissed, or otherwise did not result in an adjudication, include the following:]
There was no adjudication in Respondent’s case.

9)

[if misdemeanor offense which was adjudicated, include the following:]
More than two (2) years have elapsed since the final discharge of Respondent from probation.

10)

[if felony offense which was adjudicated, include following:]
Respondent is now 21 years of age or older; he was not transferred by a juvenile court under Section 54.02 to a criminal court for
prosecution; these records have not been used as evidence in the punishment phase of a criminal proceeding under Article 37.07(3)(a)
of the Texas Code of Criminal Procedure; and Respondent has not been convicted of a felony since becoming 17 years of age.
Respondent has reason to believe that the files and records relating to the Respondent regarding this cause of action are held by the
following individuals and agencies:

the defender h 18

Elmer Bailey Jr.
Harris County Chief
Juvenile Probation
Officer
3540 West Dallas
Houston, TX 77019
Charles Bacarisse
Harris County District
Clerk
301 Fannin
Houston, TX 77002
Police Department
Records Department
Houston, TX 77002

e)

School District
Houston, TX

f)

N.C.I.C.
c/o Federal Bureau of
Investigation
Ninth Street at
Pennsylvania Ave. N.W.
Washington, D.C. 20535

g)

T.C.I.C
c/o Texas Department of
Public Safety
Crime Records Service
5805 North Lamar
Austin, TX 78765

h)

Texas Department of
Public Safety
Crime Records Division
Attn.: Expungement
P.O. Box 4143
Austin, TX 78765

i)

Texas Department of
Public Safety
Statistical Services
Division
P.O. Box 4087
Austin, TX 78773

j)

TYC [if applicable]

k)

Any other facility in
which the juvenile was
placed, if applicable [drug
rehab, Burnett-Bayland,
Delta Boot Camp, state
hospitals, treatment
providers, etc.]

WHEREFORE, PREMISES CONSIDERED, Respondent requests that this Court set the matter for a hearing, and after such hearing and
upon the proper proof, the Respondent prays this Court will grant his Motion to Seal Records and order each official and agency named as
possessing records or files concerning the Respondent to send all files and records to the court, delete all index references to the Respondent
and send verification of the deletion to the court in the manner attached, before the 61st day after receiving the order, and to thereafter, upon
inquiry, state that no such record exists with respect to the Respondent.
Respectfully Submitted,

3)

11)

Charles Rosenthal
Harris County District
Attorney
Attn: Kris Moore
1201 Franklin, 6th floor
Houston, TX 77002

JoAnne Musick
Texas Bar No. 24000371
Musick & Musick, LP
363 N. Sam Houston Pkwy E., Suite 1100
Houston, Texas 77060
281-443-7747 (phone)
281-288-6884 (fax)
ATTORNEY FOR RESPONDENT
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing Motion to Seal Records was served upon ______________, _____________,
_______________on the _____ day of _____________________, 20___. [attorney should list and serve all agencies named]
____________________________________
JoAnne Musick
CAUSE NO. _________

IN THE INTEREST OF

IN THE DISTRICT COURT

XXXXXXX,

_____ JUDICIAL DISTRICT

A CHILD

AFFIDAVIT OF
(Verification)

HARRIS COUNTY, TEXAS
PETITIONER

BEFORE ME, the undersigned authority, on this day personally appeared, XXXXXXX, who after being duly sworn, stated:
“I am the person who is the subject of the above entitled and numbered cause and Motion to Seal Records. I have read the foregoing Motion
to Seal Records and swear that all of the allegations of fact contained in the motion are true and correct.

_________________________________
XXXXXXX

Subscribed and Sworn to before me on this _______ day of _______________, 20_____, to certify which, witness my hand and official seal.

_________________________________
Notary Public in and for the State of Texas

the defender h 19

CAUSE NO. _________




IN THE INTEREST OF

IN THE DISTRICT COURT

XXXXXXX,

_____ JUDICIAL DISTRICT

A CHILD

HARRIS COUNTY, TEXAS
ORDER SETTING HEARING DATE

IT IS ORDERED that a hearing on the Motion to Seal Records is hereby set for ____________ a.m./p.m. on the _______ day of _________
__________, 20____, in the _____ District Court of Harris County, Texas.



_________________________________
Judge Presiding
_____ District Court
Harris County, Texas
CAUSE NO. _________

IN THE INTEREST OF

XXXXXXX,

IN THE DISTRICT COURT
_____ JUDICIAL DISTRICT

A CHILD

HARRIS COUNTY, TEXAS
ORDER SEALING FILES AND RECORDS

ON THIS the ______ day of ____________________, 20_____, came to be heard Respondent’s Motion to Seal Records and it appears to this
Court that this Motion should be GRANTED.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that all files and records pertaining to XXXXXXX which are specific to any
record of arrest, adjudication, disposition, or charges brought against him in the above-entitled and number cause be sealed in accordance with
the provisions of §58.003, Texas Family Code. The identifying information of the subject of this order, XXXXXXX, is as follows:








Respondent:
Date of Birth:
Sex: Male
Race: Caucasian
Texas Drivers License:
Social Security:
AFIS:
Harris County Juvenile Number:
Houston Police Department Offense Report:

Each official or agency named in the Motion to Seal Records is ORDERED to immediately comply with this order and shall send to this Court
all files and records ordered sealed within 61 days of the date that this order is received.
Each official or agency named in the Motion to Seal Records is ORDERED to delete from its records all index references to the files and
records ordered sealed before the 61st day after the receipt of this order. Verification of said deletion shall be sent to this Court before the
61st day after the date of the deletion.
Each official or agency shall henceforth reply on inquiry that no record exists with respect to XXXXXXX’s records made subject of this order.
Any official or agency that cannot send the records or delete index references because there is incorrect or insufficient information in the Order
shall notify this Court before the 61st day after receiving this Order. The Court shall promptly notify the Respondent or his attorney after the
Court receives the notice that the agency or official cannot seal the records or delete index references because there is incorrect or insufficient
information in the Order.
The Clerk of the Court shall send a certified copy of this order to each agency or official named in the foregoing Motion to Seal Records. The
adjudication, if any, entered by the _____ District Court of Harris County, Texas that XXXXXXX had engaged in delinquent conduct is hereby
vacated, and the proceedings therein are hereby dismissed and are to be treated for all purposes as if they never occurred.
Signed and entered this ________day of___________________, 20_____.



the defender h 20

_________________________________
Judge Presiding
_____ District Court
Harris County, Texas

Application

interested
in becoming a member?
HCCLA
f Promotes a productive exchange of ideas and encourages
better communication with prosecutors and the judiciary.

Applicant:
Mailing address:
Telephone:
Fax:
Email:
Website:
Firm Name:
Date admitted to bar:
Law school:
Professional organizations in which you are a member in good standing:

f Provides continuing legal education programs for improving
advocacy skills and knowledge.
f Promotes a just application of the court-appointed lawyer
system for indigent persons charged with criminal offenses.
f Files amicus curiae briefs in support of freedom and
human rights.

Type of membership:
r Student ($25 annual fee)

Expected graduation date: ____________

r Newly licensed (first year) attorney ($75)
r Regular membership ($150)

Date:
Signature of applicant:

Endorsement:
I, a member in good standing of HCCLA, believe this applicant
to be a person of professional competency, integrity and good
moral character. The applicant is actively engaged in the defense
of criminal cases.
Date:
Signature of member:

Member name:

Mail this application to:
HCCLA
P.O. BOX 22773, Houston, Texas 77027
713.227.2404

HCCLA IS COMPILING A DATABASE
OF EXPERTS’ TESTIMONY,
CVs
AND TESTIMONY OF OTHER

WE
NEED

RECURRING WITNESSES.

YOUR
RECORDS!
PLEASE EMAIL IN PDF FORM TO
ndeborde@houston.rr.com
OR SNAIL MAIL COPIES TO
NICOLE DEBORDE
917 FRANKLIN, SUITE 550
HOUSTON, TEXAS 77002

IF QUESTIONS,
CALL NICOLE AT 713-526-6300

THE DEFENDER
P.O. Box 22773
Houston, Texas 77027

FALL 2006
PRESORTED STANDARD
U.S. POSTAGE PAID
HOUSTON, TEXAS
PERMIT NO. 11500