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HCCLA HOLIDAY PARTY cotton exchange club 202 travis thursday, december 14, 2006 at 5:00 P.
HCCLA HOLIDAY PARTY
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at
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sponsorships will be $100, which entitles
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the donor to 10 free tickets. individual tickets are $10. cLe thursday october 26, 2006 at
cLe thursday october 26, 2006 at noon 7th floor criminal justice center bill habern on
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at noon
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bill habern on Parole Law,
1.5 hours credit
table Fall 2006 contents 3 Winning Warriors 5 Message From the President 6 the Czar
table
Fall 2006
contents
3
Winning Warriors
5
Message From the President
6
the Czar Incites Dissent
8
brother batson, We Hardly Knew Ye
by Shawna L. Reagin
15
HCCla letter to Harris County Judges
16
HCCla Resolution - Revocation of bonds
18
Motion of the Month

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HCCla OFFICeRs FALL 2006 2006-2007 PResIDent Publisher: Robert Fickman Editorial Staff: HCCLA Shawna L. Reagin
HCCla OFFICeRs
FALL 2006
2006-2007
PResIDent
Publisher:
Robert Fickman
Editorial Staff:
HCCLA
Shawna L. Reagin
Ads & Distribution: Shawna L. Reagin & Christina Appelt
PResIDent eleCt
Pat McCann
Design & Layout:
VICe PResIDent
Mark Bennett
Limb Design
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seCRetaRY
713-529-1117
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tReasuReR
JoAnne Musick
Past PResIDent
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
Wendell A. Odom, Jr.
bOaRD OF DIReCtORs:
Tom Berg
Neal Davis
Nicole DeBorde
Christopher Downey
Todd DuPont II
Rosa Eliades
eDItOR
Ami Michelle Feltovich
Steven Halpert
Randall Kallinen
Melissa Martin
Feroz Merchant
Marjorie Meyers
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.
Earl D.
Musick

James T. Stafford Charles Stanfield Jim Sullivan

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

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

W.

Troy McKinney

* The Editor’s opinion is purely personal, and in no way reflects the viewpoint or position of the

Cynthia Henley

Harris County Criminal Lawyers’ Association.

Stanley Schneider

Criminal Lawyers’ Association. Stanley Schneider F a l l 2 0 0 6 t H e
Criminal Lawyers’ Association. Stanley Schneider F a l l 2 0 0 6 t H e
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Stanley Schneider F a l l 2 0 0 6 t H e DeFenDeR WInn Ing

IngWARRIORS

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.

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.

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

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 230 th District Court.

Allen Tanner beat the State’s lowest pretrial offer of 35 years following

a four-day theft trial in the 262 nd 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 176 th in Fleck v. State,

, 2006 WL 2345927 (Tex.App. – Houston [14 th 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.

S.W.3d

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.

Carmen Roe and Pat McCann achieved a rare reversal for factual

insufficiency in Brown v. State ,

(Nos. 01-05-00074-CR & 01-05-00075-CR, delivered August 3, 2006) [designated for publication].

, 2006 WL 2192986

S.W.3d

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 14 th COA.

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. 01-05- 00597-CR to 01-05-00599-CR (Tex.App. – Houston [1 st 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 [1 st Dist.] 2003, no pet.) has spread to at least two of his colleagues.

Heather Harrison Hall won a reversal from the 13 th 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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t H e In a case that could have wide ramifications for Harris County courts, if
t H e In a case that could have wide ramifications for Harris County courts, if
t H e In a case that could have wide ramifications for Harris County courts, if
t H e In a case that could have wide ramifications for Harris County courts, if
t H e In a case that could have wide ramifications for Harris County courts, if
t H e In a case that could have wide ramifications for Harris County courts, if

In a case that could have wide ramifications for Harris County courts, if defense lawyers will make the necessary records, Emily DeToto reversed the 228 th 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].

CONGRATULATIONS

TO ALL THESE

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 230 th 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.

WINNING WARRIORS!

Kim Parks continued this unbelievable appellate sweep by securing the reversal of an aggravated assault from the 208 th District Court in Santacruz v. State , 2006 WL 2506382, No. 14-05-00227-CR (Tex.App. – Houston [14 th 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.

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.

All hail the Czar, Robb Fickman, who had four cases dismissed within two weeks, including a theft, an evading and an interference with 9- 1-1 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.

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 248 th District Court, helped along by some creative trial inventions offered by the cops.

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

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.

to dismiss charges of enticing a child on the eve of trial. t h e d

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MESSAGE

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PRESIDENT

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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.

by RobeRt Fickman, PResident

HARRIS COUNTY CRIMINAL LAWYERS’ ASSOCIATION

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.

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”?

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?

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”.

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.

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”.

does not become a casualty of the “War on Terror”. as an aMeRICan I Want MY

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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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:

CZAR INCITES DISSENT

which is reprinted unedited: C Z A R INCITES DISSENT Contrary to the opinion of some,

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.

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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banneD In bOstOn!

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LoREn ALbERT DETAmoRE AuguST 10, 1928 - SEPTEmbER 3, 2006

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.

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DeFenDeR F a l l 2 0 0 6 BATSON, t H e
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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 African- Americans; 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 Batson 1 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

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

nor any white government employees. The prosecutor’s feeble explanation that prison guards are apt to sympathize
nor any white government employees. The prosecutor’s feeble explanation that prison guards are apt to sympathize

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.

Only one African-American juror served in this case, which involved an African-American male accused of intentionally or knowingly causing the death of his girlfriend’s toddler by striking her head with an unknown

object. He was arrested several months after the child died 3 , based on the assistant medical examiner’s contention that the head injury could not have been accidental and could not have

occurred at any time other than the moments he was alone with the child. A doctor at Texas Children’s Hospital reiterated this claim at trial, although the assistant M.E. became less certain when he was made aware of the defense

expert’s existence. There was absolutely no direct evidence connecting the accused with the injury, other than the timing issue.

When the panel was asked as a group whether they understood the

presumption of innocence is important, every single potential juror indicated that he or she agreed. Some potential jurors nodded, some said “Yes” and the juror in question said, “Absolutely.” The State’s substitution of

“amen” for “absolutely,” whether deliberate or subconscious, reeks of racial stereotyping.

All of the State’s witnesses were

A forty-five-year-old African-American female

employed as a para-educator was eliminated by another of the State’s peremptory challenges. The State’s alleged reasons were that it did not know what a “para-educator” was, and the 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

to strike any white teachers; indeed, at least one served on the jury, and

a Hispanic woman retired from HISD also served. Additionally, several

other potential jurors of all races did not fully complete their juror cards. One white male selected as a juror failed to note the fact that he had children, and had to be separately questioned about this omission, as did several other jurors. The prosecutor was not affected by these same shortcomings when demonstrated by non-black panel members.

All of the State’s witnesses were Caucasian, with the exception of the dead child’s biological father and his current babymama, who had also had a child with the accused. Neither of those two were harmful to the defense, and even helped in some ways. They had nothing material to present for the State, although the prosecutor unsuccessfully tried to elicit testimony that the defendant was ragingly jealous of the baby’s father, despite the passage of several years and several other relationships since his friendly breakup with the mother of his own child.

Also doomed by the prosecutor’s discriminatory pen was a twenty-one-

year-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.

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.

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.

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

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calling his own relatives to vouch for his character, in the belief that the support
calling his own relatives to vouch for his character, in the belief that the support
calling his own relatives to vouch for his character, in the belief that the support
calling his own relatives to vouch for his character, in the belief that the support
calling his own relatives to vouch for his character, in the belief that the support
calling his own relatives to vouch for his character, in the belief that the support
calling his own relatives to vouch for his character, in the belief that the support
calling his own relatives to vouch for his character, in the belief that the support
calling his own relatives to vouch for his character, in the belief that the support
calling his own relatives to vouch for his character, in the belief that the support
calling his own relatives to vouch for his character, in the belief that the support
calling his own relatives to vouch for his character, in the belief that the support
calling his own relatives to vouch for his character, in the belief that the support
calling his own relatives to vouch for his character, in the belief that the support
calling his own relatives to vouch for his character, in the belief that the support
calling his own relatives to vouch for his character, in the belief that the support
calling his own relatives to vouch for his character, in the belief that the support
calling his own relatives to vouch for his character, in the belief that the support
calling his own relatives to vouch for his character, in the belief that the support

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

“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.

character of the accused.

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

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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 they were African-American.

When this juror’s husband informed her there were two people

at the door to see her about her jury service, she immediately asked if they were African- American. 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

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 this stage that the prosecutors in Miller- El’s case were not part of this culture of discrimination, the evidence suggests they were likely not ignorant of it.” 14

.people often act from the teachings of the institutions they represent, rather than from their personal beliefs.

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

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 Miller- El, much less to accurately address the issues. 15

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.

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:

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

“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,”

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t h e assuming that a particular minority will think and vote as a bloc. Trial
t h e assuming that a particular minority will think and vote as a bloc. Trial
t h e assuming that a particular minority will think and vote as a bloc. Trial
t h e assuming that a particular minority will think and vote as a bloc. Trial
t h e assuming that a particular minority will think and vote as a bloc. Trial
t h e assuming that a particular minority will think and vote as a bloc. Trial
t h e assuming that a particular minority will think and vote as a bloc. Trial
t h e assuming that a particular minority will think and vote as a bloc. Trial
t h e assuming that a particular minority will think and vote as a bloc. Trial
t h e assuming that a particular minority will think and vote as a bloc. Trial

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 of returning a guilty verdict; two jurors thought it important to at least appear to discuss the evidence, which accounted for the four hours they spent reviewing a full five days’ worth of

testimony. They spent this time picking apart details in an attempt to find some justification for what they had already decided to do.

Dr. Sommers’ study revealed that, by every deliberation measure examined, heterogeneous groups outperformed homogeneous groups. [In this model, juries comprised of four whites and

two blacks were considered diverse; a one- person minority is not meaningful in that it is “token,” particularly likely to remain quiet and succumb to group pressure, and

less likely to exert the consistent pressure necessary to have an influence on the majority. 18 Most criminal trial lawyers have discovered this phenomenon for themselves.] A summary of the findings follows:

“discrepancies” “different stories”

“racial code words”

Two different white female jurors cited the “fact” that the bed upon which the accused had said he laid the child to perform CPR was “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 shows that it was unmade and very messy. Clearly, this non-diverse jury both processed data inaccurately, and failed to correct the inaccuracies once they surfaced. As previously stated, the jurors also confused the identities of the witnesses and completely misunderstood their relation to the case. An in-court demonstration with a doll, explicitly explained to be smaller than the actual size of the dead child, was ridiculed by several jurors as being an effort by the defense to mislead them, or being unconvincing. These well-educated folks apparently were somewhat lacking in imagination or in the ability to extrapolate.

The jurors found many non-existent “discrepancies” in what they termed the defendant’s “different stories,” most of which were again factually inaccurate. One cannot help but conclude that, had a white male from River Oaks been brought to trial on this same marginal evidence, this nearly all-white jury would have been much more forgiving. Instead, the white male alternate juror deemed the accused to be “like a pimp,” because he wore some suits this man did not find acceptable. Would this have been the sobriquet applied to a white defendant whose clothing did not meet his approval?

Although there is always the tendency to blame a questionable verdict on racism, especially in Harris County, that is not the point of this article. 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 up for duty. If the defendant is Hispanic, adios to Hispanics. If she or he is African-American, toodle-oo to the African-Americans. Only white defendants manage to emerge from voir dire with a jury that mostly reflects their own race, for better or for worse.

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

1. Diverse groups spent more time deliberating than did all-white groups.

2. The diverse groups used this extra time productively, discussing a wider range of case facts and personal perspectives.

3. Diverse groups made fewer factual errors than all-white groups.

4. Factual inaccuracies were more likely to be corrected in diverse groups.

5. Racially heterogeneous groups had discussions that were more comprehensive and remained truer to the facts of the case.

6. Diverse groups were more open-minded, in that they were less resistant to discussions of controversial race-related topics.

7. Jurors were less likely to believe the defendant was guilty when they were in a diverse group.

Other trial analyses have supported the proposition that the greater the proportion of whites on a jury, the harsher that jury tends to be toward non-white defendants. 19 But it is an oversimplification to conclude that the effects of racial composition on decision making can be wholly attributed to the differential information conveyed by white and black group members. When jurors were asked to submit individual, pre- deliberation verdicts, white members of racially diverse juries were less likely to consider a black defendant guilty, even before any discussion had ensued. 20

“Whoa Nelly!” says the prosecutor. “This is precisely why I strike blacks from the panel – I want a guilty verdict, and I might be less likely to get one if I leave those people on the jury.” But do we not always hear that the prosecution’s true job is to see that justice is done, not to simply 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.

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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.

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.

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.

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

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

QUALIFICATIONS:

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.

* (Qualifications subject to change without notice.)

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.

1 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. Romero- Reyna, 867 F.2d 834 (5 th 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

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t H e courthouse, since experience foretold that any disturbance would be blamed on them and
t H e courthouse, since experience foretold that any disturbance would be blamed on them and
t H e courthouse, since experience foretold that any disturbance would be blamed on them and

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,

The prosecutor’s questions to white jurors consumed pages, ending with a “Do you agree?”, while minority

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.

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DeFenDeR

Dear JuDge:

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

August 24, 2006

to All Judges trying CriminAl CAses

HArris County 1201 FrAnklin Houston, texAs 77002

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HCCLA RESoLuTion
HCCLA RESoLuTion

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.

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revocation BonDs regarDing of

t h e d e f e n d e r h   revocation 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.

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

make bond only because a friend or relative provided the funds. In any

(Tex. Crim. App. 1978). Similarly, a person may have been able to

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

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).

(Tex. Crim. App. 1989) (the power of the trial court to appoint

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.

resolution

of the HARRiS CounTy CRiminAL LAwyERS ASSoCiATion

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

due process, and justice for persons accused

of crimes" and to "keep members and the public informed of current criminal justice issues;"

the Association to "ensure

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;

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:

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

A.

Transmit that information to an Officer or a member of the Board of Directors of the Harris County Criminal Lawyers Association;

follow the laws enacted by the Legislature, and to abide by the Code of Judicial Conduct;

B

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

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

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;

had retained an attorney;

D.

Advise the Harris County Board of Judges;

Whereas, judges have no inherent, legal, constitutional, ethical or moral power or authority to hold an accused citizen in contempt for failing or

E.

Advise the press; and/or

choosing not to hire an attorney;

F.

Refer the matter to the Judicial Conduct Commission.

F. Refer the matter to the Judicial Conduct Commission. Unanimously Adopted, Approved, and Sanctioned by the
F. Refer the matter to the Judicial Conduct Commission. Unanimously Adopted, Approved, and Sanctioned by the

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

by the Officers and Board of Directors of the Harris County Criminal Lawyers Association. t h
by the Officers and Board of Directors of the Harris County Criminal Lawyers Association. t h

t h e

d e f e n d e r

h

t H e

F a l l

2 0 0 6

DeFenDeR

mOTION

of the

CAUSE

t H e F a l l 2 0 0 6 DeFenDeR mOTION of the CAUSE

IN THE INTEREST OF

IN THE DISTRICT COURT

XXXXXXX,

JUDICIAL DISTRICT

A CHILD

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

3)

, [/adjudicated delinquent/the case was dismissed] by this Court.

Respondent appeared before this Court on

in cause number

,

for the offense of

,

and was

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.

t h e

9)

10)

11)

d e f e n d e r

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

[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:

h

a) Charles Rosenthal

Harris County District Attorney Attn: Kris Moore

1201 Franklin, 6 th floor

Houston, TX 77002

b) Elmer Bailey Jr.

Harris County Chief Juvenile Probation Officer

3540 West Dallas

Houston, TX 77019

c) Charles Bacarisse Harris County District Clerk 301 Fannin Houston, TX 77002

d) 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 61 st day after receiving the order, and to thereafter, upon inquiry, state that no such record exists with respect to the Respondent.

Respectfully Submitted,

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

JoAnne Musick

day of

, 20

CAUSE

[attorney should list and serve all agencies named]

,

IN THE INTEREST OF

XXXXXXX,

A CHILD

AFFIDAVIT OF

(Verification)

IN THE DISTRICT COURT

JUDICIAL DISTRICT

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.

Subscribed and Sworn to before me on this

day of

XXXXXXX

, 20

,

to certify which, witness my hand and official seal.

Notary Public in and for the State of Texas

t h e

d e f e n d e r

h

IN THE INTEREST OF

XXXXXXX,

A CHILD

CAUSE

ORDER SETTING HEARING DATE

IT IS ORDERED that a hearing on the Motion to Seal Records is hereby set for

, 20

,

in the

District Court of Harris County, Texas.

Judge Presiding District Court Harris County, Texas

IN THE INTEREST OF

XXXXXXX,

CAUSE

IN THE DISTRICT COURT

JUDICIAL DISTRICT

HARRIS COUNTY, TEXAS

a.m./p.m. on the

day of

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 61 st day after the receipt of this order. Verification of said deletion shall be sent to this Court before the

61 st 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.

t h e

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

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

District Court of Harris County, Texas that XXXXXXX had engaged in delinquent conduct is hereby

day of

,

20

Judge Presiding District Court Harris County, Texas

d e f e n d e r

h

2 0

interested

in becoMing a MeMber?

HCCLA

f

Promotes a productive exchange of ideas and encourages better communication with prosecutors and the judiciary.

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.

application

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:

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

WE

NEED

YOUR

RECORDS!

the defender

p.o. box 22773

houston, texas 77027

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

RECURRING WITNESSES.

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

fall 2006

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