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spring 2018

REMEMBERING THE MAN, THE LEGEND
Richard “Racehorse” Haynes
April 3, 1927 - April 28, 2017
WHAT’S INSIDE SPRING 2018
CLE EVENTS LETTER FROM THE
EDITOR
WINNING WARRIORS INITIATION
EARNING YOUR STRIPES

2
MAY 17
First Court of Appeals CLE EVENTS
301 Fannin St. LETTER FROM THE EDITOR
Houston, Texas 77002

“ ”
So many stories of where I’ve been and how I got to where I am…
ANY QUESTIONS?
Visit the calendar at www.hccla.org
Brandi Carlile

2017 was an epic year for our organization, and I believe, a turning
4 OFFICERS, BOARD OF DIRECTOR
PAST PRESIDENTS

5
point for us. We lost one of our founding members, Richard ‘Racehorse’
Haynes, and the memories so many have of his greatness as a man A WORD FROM YOUR PRESIDENT
and as a lawyer are shared with us in this issue. A very talented artist BY TUCKER GRAVES
illustrated the cover, and I am absolutely amazed at the dignity and
power depicted in this portrait.

In 2017, we also weathered Harvey, a storm that is still impacting our
lives everyday because we are still displaced from our home building
and will be for the foreseeable future. Before Harvey made landfall,
7 WINNING WARRIORS

another storm rocked the criminal justice system: the bail reform lawsuit

11
HCCLA NEWS ROUND UP
and the ruling made by Judge Rosenthal that all misdemeanants must WELCOME NEW MEMBERS
be released from custody within 24 hours. This issue is still impacting BANQUET SAVE THE DATE
our world because of the confusion over court appearance dates after
defendants’ release, the disclosure by one of the magistrates that they
were instructed to not give P.R. bonds, and the county court judges
denying such allegations. I am hopeful that truth and justice will prevail
and that all parties will sit down to implement a solution for all involved.
It doesn’t seem that difficult really: begin the process to verify the
12 2017 HCCLA HOLIDAY PHOTOS
PHOTOS BY BOB ROSENBERG & RUSSELL WEBB

contact information for all misdemeanants arrested at the beginning of
the intake process. Those who cannot have their information verified
REMEMBERING RACEHORSE
RICHARD HAYNES: WARRIOR, / 16
should be given bonds that are within a reasonable range from $50 -
DEFENDER, DEAR FRIEND 6
$1000, depending on the nature of the crime. If a defendant is homeless,
BY CHRIS TRITICO 6
direct him/her to resources available to obtain what may be needed,
such as identification, medication, application for assistive services. If ALEX BUNIN REMEMBERS / 18
the case is a trespass, give a P.R. bond to give that defendant a chance BY ALEX BUNIN 6
to appear in court, and if he/she cannot make it, then the judge can

14
forfeit the bond. Do away with unsecured bonds completely. Make all MY FAVORITE RACEHORSE MEMORY / 19
court appearances upon release from jail be 1 week after release. It BY JERRY PATCHEN 6
does not have to be complicated! MY EULOGY FOR RICHARD HAYNES / 21
BY JACK ZIMMERMANN 6
Now that that is out of my system…
I am very grateful for all those who contributed to this issue. Joe Varela IN MEMORIAM OF RACEHORSE / 24
put together a fine piece about the President’s pardon power. The BY ROBB FICKMAN 6
tribute to Racehorse features articles by the men who knew him best
as well as those affected by him, and I am honored to publish them RANDY SCHAFFER / 27
together as a collection. The last piece of this issue features a story that REMEMBERS RACEHORSE 6
needed to be told, and I am glad that it has finally gone to print. It all BY RANDY SCHAFFER 6
started when I was a captive audience to Robb Fickman. We represent
co-defendants in a federal case out of Galveston, and I had the lovely OUR HERO, “RACEHORSE” / 27
idea to carpool to Galveston with him. He drove and talked my ear off, BY ROBERT PELTON 6
but it was mostly enjoyable because of this story that he shared with
me that appears in this issue. Earl Musick told Robb this true story
long ago, and Robb wanted it included in HCCLA’s magazine. Robb

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recorded Earl’s telling, did some research, and began to write, but like PARDON ME
other great authors, the story was never finished. Life, work, family took THE WEAPONIZATION OF CLEMENCY
over and the story sat waiting to be told. Once he shared with me in BY JOE VARELA
the car, I knew the perfect person to finally give life to this story – Rick
Oliver. Rick is a ridiculously talented writer, and once I received it for

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WAR STORIES
editing, I devoured it in one sitting. The story is phenomenal, and I truly HONOR & THIEVES
hope you enjoy reading it as much as I do. BY RICK OLIVER

-HAPPY VERDICTS- Lori Botello
4 C. ANTHONY FRILOUX
5
STUART KINARD
the defender
THE DEFENDER / SPRING 2018

THE DEFENDER / SPRING 2018
GEORGE LUQUETTE
PUBLISHER
MARVIN O. TEAGUE
HCCLA
DICK DEGUERIN
EDITOR
LORI BOTELLO W.B. HOUSE, JR.
ADS & DISTRIBUTION
past presidents DAVID R. BIRES

a word from your president
EARL MUSICK WOODY DENSEN
CHRISTINA APPELT
1971-2017 WILL GRAY

Tucker Graves
DESIGN & LAYOUT
BROCHURE BUILDERS
EDWARD A. MALLETT
BRANDI DELOACH CAROLYN GARCIA
WWW.BROCHUREBUILDERS.COM
JACK B. ZIMMERMANN
COVER ART
CLYDE WILLIAMS
THE PORTRAIT OF RICHARD “RACEHORSE” HAYNES WAS PAINTED
BY TREVOR GORING AND USED WITH PERMISSION. ROBERT PELTON We’ve made it to 2018, but with a lot of hitches in our Harvey created very unique problems for all. It will
THIS PORTRAIT WAS COMMISSIONED BY DAN COGDELL AS A GIFT
CANDELARIO ELIZONDO gitalong. I want to give the members an update on where continue to challenge us for quite some time. By the
TO RACEHORSE, AND IT WAS DISPLAYED IN RACEHORSE’S FOYER.
ALLEN C. ISBELL we are and where we are headed in 2018. very nature of what we do, we know what it is like to
UPON RACEHORSE’S DEATH, THE PORTRAIT WAS RETURNED TO
go against seemingly insurmountable odds. I urge all
DAN COGDELL’S OFFICE, WHERE IT IS DISPLAYED TODAY.
DAVID MITCHAM First, I have been blessed with a tremendous Board who
members to push cases to trial and don’t be afraid of the
does so much of the heavy lifting. You, the membership,
JIM E. LAVINE current set up. Your client deserves his day in court, if he
have elected some incredible individuals that take their
RICK BRASS so wants it, and it is up to us to push the state AND the
job seriously and work on your behalf. For the most part,
judges to see that it happens.
2017-2018 MARY E. CONN serving on behalf of HCCLA is a thankless job. These

Hccla officers & board KENT A. SCHAFFER
DAN COGDELL
board members work behind the scenes to ensure that
our voice is heard at the courthouse and throughout the
county.
Felony jail dockets have been a problem, but things seem
to be getting better. Firm schedule is now in place and
seems to be consistent. If you take court appointed cases,
JIM SKELTON PLEASE visit your client prior to jail docket and relay
Financially, the organization is on solid ground, but it
GEORGE J. PARNHAM any offer or discuss the case if need be. We all thought
PRESIDENT EXECUTIVE DIRECTOR could always be better. Steve Halpert, our long time
GARLAND D. MCINNIS holdover cells were bad for privacy; this situation is much
TUCKER GRAVES CHRISTINA APPELT treasurer, has done a great job in managing our money.
worse. There has also been some concern about security.
ROBERT A. MOEN Expenses have increased in recent years in part because of
HCCLA has addressed this with the Sheriff’s office. It’s
LLOYD OLIVER new technology. Our biggest expenses are The Defender
PRESIDENT ELECT BOARD OF DIRECTORS still not perfect, and we have to realize it probably never
magazine and Reasonable Doubt, the TV show.We are
DOUG MURPHY STACI BIGGAR DANNY EASTERLING will be given the circumstances.
also improving our presence on social media, and this
LORI BOTELLO WAYNE HILL is reflected in numbers across the board. We are always HCCLA is also working with the DA’s office about the
VICE-PRESIDENT JENNIFER “JL” CARPENTER RICHARD FRANKOFF looking at ways to trim costs and thus are considering all systematic ex-parte communication between the DA
THUY LE EMILY DETOTO W. TROY MCKINNEY options. and the judge. This is particularly true when it comes
KATE FERRELL to bond revocations. How many of us have walked into
CYNTHIA HENLEY We have a lot of past due members.If you are one of
SECRETARY ROBERT J. FICKMAN court looking for our client only to find that they are in
STANLEY G. SCHNEIDER them, please re-up as soon as you can. As you read on,
the holdover cell and the order revoking their bond has
DAVID RYAN JUSTIN C. HARRIS you will see what we are doing and you will know that
WENDELL A. ODOM, JR. already been signed by the judge? The higher ups in the
GEMAYEL HAYNES your dues and your membership are worth it.
ROBERT J. FICKMAN DA’s office agree this is wrong, and we are working on
TREASURER JORDAN LEWIS Some members feel like we are the proverbial red-headed educating the clerks and the judges that this practice is
STEVEN H. HALPERT PAUL M. MORGAN PATRICK F. MCCANN improper. We are required notice!
step child and that we are not taken seriously. That may
DAMON PARRISH II MARK BENNETT have been true at one time, but this organization has come
HCCLA continues to provide its members affordable
PAST PRESIDENT JED SILVERMAN JOANNE MUSICK a long way in the last 20 years. We now have a solid
(in many cases, free) CLE. The law and the strategy
dialog with the administrative judges, commissioner’s
TYLER FLOOD WADE B. SMITH NICOLE DEBORDE to properly defend your client is forever changing. I
court, and the press. We have a representative on all major
MARK R. THIESSEN EARL D. MUSICK encourage our members to attend an HCCLA CLE and
committees, from the rebuild of the CJC, to the bail bond
J. JULIO VELA learn from some of the best.
CHRISTOPHER L. TRITICO overhaul and the fee structure for court appointed cases.
JOE VINAS T.B. TODD DUPONT, II Will they listen to us? That’s a different question. Like
SARAH V. WOOD the Rolling Stones once sang, you can’t always get what
CARMEN M. ROE
you want, but sometimes you get what you need.
JOANNE MUSICK
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THE DEFENDER / SPRING 2018

THE DEFENDER / SPRING 2018
HCCLA will not tolerate judicial or prosecutorial
misconduct. Over the last 20 years, we have filed
numerous complaints against judges and prosecutors.
Yes, sometimes we feel like Don Quijote going against
a windmill, but we will not shy away from what is right. LIKE A HURRICANE STUCK Speaking of hammers, David Adler is one tough, smart
There are many other things that HCCLA is doing OVER A BAYOU, THE lawyer. David prevailed in a federal writ challenging D’s
life sentence for murder on IAC grounds. Victoria County
behind the scenes for the betterment of its members
and the practice of criminal defense.
MEMBERSHIP UNLEASHED must quickly decide if facing David in a re-trial is justice.
A FURY AND FLOODED THE ••••••••••••••••••••••••••••••••••••••••
Emily Detoto was at her sparty best in a shaken baby case
There have been some rumors that in order to receive
a frequent courthouse visitor badge, we might have to COURTHOUSE WITH SUCCESS! in DC263. Emily appealed the original plea, got it flipped,
and then got NG in less than 1 hour at trial after only a
now be fingerprinted. We might also have to have our •••••••••••••••••••••••••••••••••••••••• day of testimony. Emily thanks Paul Morgan and Stan
bags searched. This is utterly ridiculous and we have Woodrow Dixon had a jury deliberating for 3 hours Schneider for invaluable assistance.
joined with the Houston Bar Association in opposing on Sexual Assault the day before Hurricane Harvey ••••••••••••••••••••••••••••••••••••••••
this. Right now, it is just talk from the county’s side, hit. The jury was brought back 2 weeks later, resumed The State fought hard in DC183 to keep their secrets.
but we intend to stay on top of this. deliberations, and acquitted! With a court order to disclose CI, Jack Carroll and Philip
•••••••••••••••••••••••••••••••••••••••• Stephenson got a DCS 1st dismissed.
And: Matt Alford had completed evidence but not held closing ••••••••••••••••••••••••••••••••••••••••
Once again, weather related activity disrupted the arguments on CSA in DC185 when Hurricane Harvey hit. David Ryan followed for true habitual D in DC177 having
Nearly 2 months later, closing arguments are held and D multiple DCS charges with several CI. In order to avoid
courthouse schedule with the recent wintery weather.
was acquitted. the hearing, State dumped all but 1 case and D pleaded to
We have 38 courts that cannot seem to operate in a ••••••••••••••••••••••••••••••••••••••••
unifying fashion when it comes to closures. We have 5 years.
Tyler Flood is drowning the State in biblical fashion. First ••••••••••••••••••••••••••••••••••••••••
been in contact with the presiding judges in order to D is .16 blood DWI, open container on video, bad SFSTs, When is a win not NG? When Steve Shellist hung the
change this. The proposal is to link the courts decision and cursing everyone. Tyler leaves a cop to become the jury on CSA in DC180. Steve followed up with an in trial
to what HISD decides in the form of a STANDING jury foreman, and got the NG! Tyler followed up with NG dismissal on .11 breath DWI in CCCL6, after getting the
ORDER applicable to all courts. Of course, it’s like in CCCL3 on a .13 breath DWI, when Tyler got the tech cops to admit they did SFSTs wrong and a MTS granted.
herding cats, but then again, this job has made me the to admit D was possibly .07 at time of driving. ••••••••••••••••••••••••••••••••••••••••
ultimate cat herder. •••••••••••••••••••••••••••••••••••••••• Sean Davishi got a quick NG on DWI in CCCL15, despite
CONTINUED : A WORD FROM YOUR PRESIDENT

Brandon Ball has been balling, scoring NG on BOH in an accident and .08 breath test. Sean then teamed up with
Let me end by saying that I am extremely humbled DC178. D and CW are occasional lovers. CW claimed D Eric Benavides to get a 5 minute NG on DWI 2nd in
and honored to be your president. I want to thank the broke in a window, W saw D go in front door, and jury CCCL14.
membership for giving me the opportunity to serve this decided the photos looked staged. ••••••••••••••••••••••••••••••••••••••••
great organization. To do what we do is a true calling. •••••••••••••••••••••••••••••••••••••••• You know you have a chance when the State’s best
I have known this was my career path since I was 14. Tiffany Hill fought uphill and claimed the NG in DC176 argument is D did not preserve error in PCS 3rd. Neal
Others may have found it differently. We all seek the on AAFV. BBall teamed up with Tiff on another case to Davis III rejected that argument, maintained a warrant
same: justice for our clients. get another NG. was necessary, and COA1 agreed.
•••••••••••••••••••••••••••••••••••••••• ••••••••••••••••••••••••••••••••••••••••
Andrew Wright stroked the 2 word verdict on an indecent Adam Brown wanted in on the fun, and COA1 granted a
exposure in CCCL3. The jury credited the Andrew with new trial, finding error preserved on confrontation issue
May 2018 be one of poking glorious holes in the State’s case.
••••••••••••••••••••••••••••••••••••••••
regarding CW bias in an AFV 3rd. The dissent believed
error not preserved.

dismissals and Armen Merjanian hammered away at the State’s
evidence, showing the inherent unreliability of only field
testing suspected drugs, and the jury agreed with NG in
••••••••••••••••••••••••••••••••••••••••
Cheri Duncan won a new trial on ASAC. In a published

two word verdicts. FBCCL2.
••••••••••••••••••••••••••••••••••••••••
opinion, COA14 found the failure of the State to elect the
act(s) relied upon was harmful. Cheri gives all credit for
an immaculate record to trial counsel Matthew Horak,
Mike Driver rode out to West Texas and got the 2 word who early and often objected to the failure to elect. Learn
verdict on AADW. D was accused of slitting CW’s the lesson – object, get a ruling, make an offer of proof,
throat with a broken beer bottle. repeat often.
8 9

Welcome
Nick Hughes won a reversal at CCA on failure to include Justin Harris and Austen Hobbs prevailed on a MTS
THE DEFENDER / SPRING 2018

THE DEFENDER / SPRING 2018
a lesser offense when requested at trial. D was pro se and on DWI 2nd. Some Brady material was viewed in camera
preserved the error! and the trial judge struck 1st cop’s testimony. 2nd cop’s
• • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • testimony did not establish PC for the detention and arrest.
Katie Ferrell heard the sweetest 2 words in the courthouse • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •
on .19 blood DWI in CCCL9. Katie followed up in the Scott Pawgan scored the NG in DC75 for Assault on
same court with a dismissal after MTS granted on .17 a Public Servant, to wit: the presiding judge of DC253.
FUTURE WARRIORS
blood DWI, despite an accident and D barfing all over The Pawgan-ator targeted various inconsistencies in the
himself. evidence, and the jury agreed. No truth to the rumor Scott Amy Paine & Cory Roth Mana & Jed Silverman
• • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • said, “I’ll be back,” after the verdict was rendered.
Welcomed Welcomed
Ned Barnett and Brian Burns got a NG in DC400 for • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •
indecency. D is an engineer and Marine who can now get A barroom brawl with racial overtones did not cause Justin Noah Jayden Roth Ella Yegani Silverman
back to his life. Harris and Sean Darvishi to flinch in CCCL4. Denial of On February 21 2018 On January 21 2018
• • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • defense instructions in the jury charge did not stop the jury 6 lbs 10 oz 6 lbs 13 oz
When your roommate drinks a fifth a day, there’s bound from having RD and acquitting D.
to be trouble and fights lead to charges of AA. Shannon • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •
Davis made sure the jury knew, and the jury found D NG Tonya Rolland got NG in CCCL9, despite D being
in DC268. .16 breath on this DWI. D was exceedingly polite and
• • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • cooperative on video, and Tonya showed the jury the
Troy McKinney got COA9 to affirm MTS out of MCCL4 breath machine is not to be trusted. Did you or anyone you know have success?
in a DWI. Troy credits trial counsel Doug Murphy with • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •
framing the questions such that W had no room to fudge Diana Olvera and Jane Vara heard NG in Project Court 1 Your fellow Winning Warriors want to know!
facts. on ASAC. The jury was out 2 hours.
•••••••••••••••••••••••••••••••••••••••• •••••••••••••••••••••••••••••••••••••••• We do not check social media for your wins.
With the jury in the hall, Danny Easterling got a time JL Carpenter kept fighting D’s .14 blood DWI w/child
served misdemeanor for true habitual D facing ARDW in in DC56, refusing to let GCDAO bully D into losing her So There.
DC338. kids. On eve of trial, State offered DWI 1st and probation.
• • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • The judge told D to go home and hug her kids.
Submit the names of the lawyers and a brief description to:
Michael Edwards and Frederick Wilson got an in trial • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • hcclawinningwarriorscolumn@yahoo.com
dismissal on FIP in DC176. Cops come looking for owner Alan Cohen had a CSA in DC182. It was a classic divorce .
of store, find a gun in a closed drawer, and charged D! gone ugly, and W had made the allegations in 3 different
Let’s hope for better case evaluations in the future. counties. With a jury in the hallway, the State dismissed.
Speaking of case evaluations, Tad Nelson kept telling the • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •
state in DC122 it had overcharged D with BOH instead Winning is sometimes making the State come back
of Trespass. It took a jury slightly over 1 minute to agree. another day. Mandy Miller had a motion to quash granted
• • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • on trial day in DC268. No manner and means was alleged
Anthony Osso pleaded his mentally ill D to LWOP in in the indictment. Word is State essentially filed the same
DC185 in a high profile capital murder of a peace officer. indictment again
In a sad case that ruined many lives of those involved,
justice prevails.
••••••••••••••••••••••••••••••••••••••••
Kathryn Kase convinced HCDAO to plead D to life

david ryan
instead of re-trying a death penalty case SCOTUS found
CONTINUED : WINNING WARRIORS

unfair for the introduction of racially tainted evidence at
trial. Kathryn thanks TDS, TCDLA, HCCLA and many
others for helping see this case through.
•••••••••••••••••••••••••••••••••••••••• Winning Warriors is written by HCCLA Secretary,
Mike Abner got 2 NG on ASAC in Brazoria County, and David Ryan (2015-present). David has been
the jury convicted on the lesser of Indecency on a third practicing for 24 years, Mentor of the Year 2013-
ASAC. 2015 (ret.), Member of the Year 2016, HCCLA
•••••••••••••••••••••••••••••••••••••••• Board Member 2013-2015, co-chair of TCDLA
Daucie Schindler convinced COA14 to order a new
Rural Practice, and TCDLA Board Member
punishment hearing for D who pleaded to DCS. Seems the
(2013-present). The victories are yours. David
trial court did not include a mandatory fine.
•••••••••••••••••••••••••••••••••••••••• provides the snark.
An incomplete investigation proving mere presence was
all Cory Roth and Jasmine Henderson needed to prevail
on POM and PDD in BCCL3.
10 11
THE DEFENDER / SPRING 2018

THE DEFENDER / SPRING 2018
Save
WELCOME
NEW HCCLA
MEMBERS

the Date
new members
Karla J. Aghedo Michael Moore
Mishae M. Boren Roland Alexander Mosher
David Ray Caraway David Overhuls
John Paul Cedillo Michael D. Renfro
James Clark Thomas C. Stephenson
Douglas M Evans Chaunte Sterling
Charles D. Finley Tony Sun
Chris Henderson Benson Varghese
Eugene Hong William Vaughn
Join us May 10 at

The Ballroom at Bayou Place
Janet Kleban Larry Douglas Williams II
Jules Laird Phillip Yates
Matthew Mendez
500 Texas Ave.
Houston TX 77002

Reserve your spot at new paralegal members
hccla.org/banquet
Chris Bingham
Honorees & Special Guests Paul Morgan Law Office
Milton Hernandez
Sam D. Adamo / R.P. ‘Skip’ Cornelius / Connie B. Williams The Law Office of Philip M. Gommels, PLLC
RICHARD ‘RACEHORSE’ HAYNES LIFETIME ACHIEVEMENT
Leslie Pierce
Scott Pawgan Darrow Law Firm, P.C.
LAWYER OF THE YEAR

Susman Godfrey, LLP / Civil Rights Corps / Texas Fair Defense Project
TORCH OF LIBERTY

Damon Parrish II new student members
SHARON LEVINE UNSUNG HERO

Robert Fickman Benjamin Brushe
PRESIDENT’S AWARD
Ta’Mara Foster
Patrick McCann Olympia D. Oliver
MENTOR OF THE YEAR
12 13
THE DEFENDER / SPRING 2018

THE DEFENDER / SPRING 2018
Brian Wice / Then & Now

Hon. Jay W. and Catherine Burnett Adrogué Law Firm, PLLC Jordan Lewis Eddie Cortés
Hanszen-Laporte Cordt Akers Jason Luong for Judge, 185th District Court Law Offices of Sean R. Darvishi, PLLC
(Charley Davidson, Dorian Cotlar and Austen Hobbs) Bobby Mims
Shannon B. Baldwin for Judge, CCCL #4 Judge Catherine Evans
Carmen Roe Law Firm, PLLC The Montalvo Law Firm, PLLC
Staci Biggar Robb Fickman
James Stafford Ron Morgan
Thiessen Law Firm Lori Botello for Judge, CCCL #11 Toria J. Finch for Judge, CCCL #9
Terry Bryant, Accident and Injury Lawyer Odom & Davis Foreman DeGeurin & DeGeurin
Tritico Rainey, PLLC Robert Pelton, Lawyer
J.L. Carpenter Fuller & Hudson
J.C. Castillo Maverick Ray & Associates Tucker Graves
Lionel Castro Raul Rodriguez for Judge, CCCL #13 Law Offices of Bo Hopmann
bob rosenberg Tonya Rolland
russell m. webb Mary E. Conn Internet Lava, LLC
Emily Detoto Law Office of Joseph Ruiz Chip Lewis
Danny Easterling Katherine Scardino U.A. “Umeka” Lewis-Piccolo
Antonio Espejo Scheiner Law Group, PC Amy Martin for Judge, 263rd District Court
David L. Garza Schneider & McKinney, PC McLemore, Reddell, Ardoin & Story, PLLC
Phil Gommels David L. Singer Campaign for Judge, CCCL #14 Marjorie Muniz-Monroy
Andreea Ionescu TSU Criminal Defense Clinic Doug Murphy
DaSean Jones for Judge, 180th District Court Hilary Unger Law Office of Neumann & Rodriguez
Jill Lansden & Mekisha Walker, attorneys at law Kris Ougrah for Judge, CCCL #15
Investigators Sonja Raffeet, Beau Hodges & Margaret Vozar
Vik Vij
Michael J. Wynne
remembering
14 15
THE DEFENDER / SPRING 2018

THE DEFENDER / SPRING 2018
racehorse
A TRIBUTE TO RICHARD “RACEHORSE” HAYNES

Original Photo from Houston Chronicale/Karl Stolleis, Staff Original Photo from AP Photo/Ed Kolenovsky
16 17

CHRISTOPHER TRITICO & RICHARD HAYNES
THE DEFENDER / SPRING 2018

THE DEFENDER / SPRING 2018
Richard Haynes:
Warrior, Defender,
Dear Friend
BY CHRISTOPHER L. TRITICO

I knew this day was coming for months. Richard had a lawyer literally 24 hours! That was Richard Haynes; Richard to take care of it for her. Richard told her he with closing his firm. It allowed me to spend more time
been on a slow decline for three years. The last two times that was the culture at Haynes and Fullenweider. He put would be happy to help. He instructed her to leave the with my friends Naomi and Richard. More importantly,
I saw him, he was alert but unable to speak. I could tell you into the fire immediately and let you go to work. I clock radio with him and to come back the following day. it gave me a chance to repay them for over three decades
he knew who I was, and we communicated like only two had no earthly idea what to do but, of course, I couldn’t As soon as she left he took out a post it note and wrote of friendship, mentorship, and for all the things they have
old friends of 38 years can; we did not need words. tell him that. “de-bugged” on it and stuck the note to the front of clock done for me. It was a labor of love.
radio. The next day when she came back, Richard gave
In 1979, I was a senior in high school, and my dad, Lenny Richard had a wonderful sense of humor. In college at Richard Haynes’ life can best be boiled down to a simple
her the clock radio and told her it had been de-bugged.
Tritico, grew up with Richard. They met up at a High The University of Houston, Richard, my Dad, and a few phrase: A life of service. Richard twice suited up for
She said, “Thank you, thank you… you saved me.” She
School reunion. He told Richard that I wanted to go to others created a week long musical and comedy review. his country; he twice defended the principles of freedom.
left consoled and happy.
law school. Richard said, “Send him by I’ll give him a The Frontier Fiesta still goes on today. My dad told During the height of WWII, at 17, he joined the Marines
job”. Richard owed my dad and certainly me nothing. me that during the shows Richard would walk out on By far the best story I have is one Richard told me and fought at Iwo Jima. During the Korean War, he went
But, at the end of the day, Richard Haynes gave me the stage and interrupt the program. He would holler, himself. Richard, Mike Ramsey, David Berg, and a bunch back in and trained paratroopers. His life of service
everything. “Script,” and from the rafters someone would lower a roll of friends were out celebrating one night. David had to continued as a criminal lawyer. He spent the next 50
of toilet paper. Richard would tear off a few squares and leave early and gave them his American Express card and years committed to protecting the principals of freedom.
Haynes & Fullenweider was the most unique place to
start into some of the funniest standup comedy he had told them they could charge until midnight. After David He spent his life looking the government in the eye and
work. We worked hard and played harder. It was not
ever heard. They must have created something special as left, they charged a bunch on the card and got tanked up, saying prove it. Representing the criminally accused,
only a fun place to work, it was the best place in the
Look Magazine wrote up the Frontier Fiesta as the “best drove to the airport, and were in the process of charting those that the public believes are the worst society has to
country to learn how to be a lawyer. You were exposed
college week in the country,” and 60 years later it is still a plane to Las Vegas. American Express had the good offer, is a daunting task.
to the biggest cases in the country, the best and brightest
going on at The University of Houston. sense to call David before they approved the charge.
lawyers. Your work had meaning. Your ideas were
Richard and Mike Ramsey were ready to head out on
respected and employed. You were entrusted with I was in his office one day when his assistant brought in a
that one. Richard believed as do I: if the Constitution cannot
the most important of task from the beginning of your lady who was in fear that the government was monitoring
work for the worst we have, it will not work for
career. Between 1979 and 1993 I was an office helper, her from the top of the buildings around her apartment. I said earlier that Richard gave me everything. He gave
anyone.
messenger, private investigator, law clerk and associate. The only thing that could fight the government was for me a place to learn how to be a lawyer. He showed
Richard Haynes and Donn Fullenweider to represent her me how to cross-examine a witness. He showed every
The day after I passed the bar, Richard called me into his
together. I sat there trying not to laugh as Richard baited day how zealous representation can be practiced with
office. He said, “So you want to be a criminal lawyer?” Richard stood up for the core values of our country and
this lady along. Eventually, with a big smile on his face, integrity and professionalism.
I said, “Yes sir, I do”. He gave me a file and said, “Here believed that standing up for the freedoms embodied in
he said, “I think you’re right, let’s go see Donn.” We got
is your first case. There is a hearing tomorrow morning.” Richard Haynes recommended me as one of the trial our Bill of Rights is an absolute necessity. His life was
up and walked across the hall, and Richard was about to
Excited I took the file to my office, what could it be? A lawyers on the Oklahoma City (OKC) Bombing. He a life dedicated to service to the public, service to our
leave this lady in Donn Fullenwider’s office. Fortunately
trespass? A DWI? I could not wait to jump into my very gave me my career. Our friendship lasted 38 years. One Constitution.
for Donn he was out of town that day.
first case. I opened the file and found that my new client of the greatest honors of my life is that he and Naomi
was charged with two murders, two aggravated assaults, A few years later, another lady brought in her clock radio asked me to assist them in their final years with their There was only one thing that Richard put above service
and impersonating a peace officer. My confidence waned that she was convinced the government was sending her affairs, after Richard fell and broke his hip about four to the constitution: his family. His lovely wife Naomi to
just a little. I felt like perhaps he forgot that I had been messages through and controlling her mind. She asked years ago. He needed to retire and requested that I help whom he was married for over 60 years and his children.
18 19

Alex Bunin Remembers
my favorite
THE DEFENDER / SPRING 2018

THE DEFENDER / SPRING 2018
Richard had four kids: Tracey, who passed away in 2015,
Ricki, Blake, and Slade, eight grand kids, and 7 Great
Grand kids.

Racehorse memory
During my final two years in law school,
I remember, we had been in a murder trial for about eight
I was a clerk at Haynes & Fullenweider.
weeks. My wife was due with our second child, and one
Mr. Haynes (as I always called him) never
night we were talking. I was complaining that I had not
seen my family in weeks. Richard told me his greatest assigned me work. Occasionally, I would
regret was that he had spent so much time away from get a project involving one of his cases
his family when his kids were growing up. It was a rare or I was asked to deliver a file to him at
BY JERRY PATCHEN
moment of vulnerability. It was truth, it was honesty. the courthouse. Since he won many of his
It was a complete and deep expression of love for his trials, there were few appeals. However,
family. once I was given the record in a federal In 1977, Richard Haynes secured an acquittal for Cullen Richard “Racehorse” Haynes broke your record for the
case of his in order to write a statement Davis. One evening after a hearing in his divorce case longest murder trial in Texas.
People say, and it is true, that Richard Haynes is the
of facts and draft the arguments. involving his estranged wife Priscilla Davis, Cullen
greatest trial lawyer this country has ever seen. To me, What do you have to say about that?” Percy responded,
Davis was accused of wearing a black wig and a stocking
however, he is my simply dear friend. I always heard of his ability to cross- “All I have to say is that if all lawyers tried cases like
mask, gaining entry into Priscilla Davis’ home, and
examine witnesses, but I never had the Mr. Haynes and myself, we would need a lot more
committing a double murder by killing her boyfriend,
opportunity to watch him at length Courthouses and a lot fewer penitentiaries.”
Stan Farr, and marching her 12 year old daughter from

CHRIS TRITICO
or read a transcript of his questioning a previous marriage, Andrea Wilborn, into the basement, The exceptional thing about Richard
before. At first, I could not see a method forcing her to her knees and shooting her in the head. was he was not only the
to it. He doggedly asked a witness about Priscilla Davis positively identified Cullen Davis as greatest criminal defense
Christopher L. Tritico, a native of Houston, Texas, received small details that did not readily appear the assailant and murderer. During the trial, Haynes lawyer in Texas and
CONTINUED : RHICARD HAYNES: WARRIOR, DEFENDER, DEAR FRIEND

his Bachelors Degree at Sam Houston State University and connected to the case. It continued for literally demonized Priscilla Davis, and after a couple beyond, he was a great
his Doctor of Jurisprudence at South Texas College of Law.
many pages, but he was determined to of weeks of the 13 week trial, the jury was ready to man. I knew Racehorse
Mr. Tritico is licensed to practice law in the State of Texas and stone Priscilla Davis. His client, Cullen Davis, was personally. I worked
before the United States Court of Appeals for the Fifth and get answers. The witness occasionally got
acquitted of capital murder. Haynes did an encore: on a couple of cases
the Tenth Circuits, and the United States District Court for the confused, but Mr. Haynes would reorient
Southern and Eastern Districts of Texas. He is a member of Cullen Davis then allegedly conspired to have the with him. As a law
the man and keep going.
the State Bar of Texas, The National Association of Criminal Judge in his divorce case killed and solicited and student at University of
Defense Lawyers, The Texas Criminal Defense Lawyers The case was being tried before Norman planned the murder. The evidence against Cullen Houston, where Haynes
Association, The Harris County Criminal Lawyers Association,
Black, a United States District Judge Davis was substantial, even overwhelming. In a had served as student
President 2012 and The Houston Bar Association. Mr. Tritico second trial, Haynes produced another improbable
who has since passed. Judge Black was body President, and as a
was named one of Texas Super Lawyers 2003 - 2017 by
verdict of not guilty for Cullen Davis. young lawyer,
Texas Monthly Magazine. Mr. Tritico was named one of the my law professor, and I knew him to be
Top Lawyers for the People by H Texas Magazine in 2005- extremely patient and good humored. Richard Haynes’ 13 week trial in the Cullen Davis’
2017. Named one of Texas Top rated lawyers 2012 and The
National Trial Lawyers Top 100 Lawyers, 2012 - 2017. In 2014
However, even from the cold record, I case broke Percy Foreman’s record for
the longest murder trial in the
his name was placed on the Wall of Honor for the College could tell Mr. Haynes had pushed him over
of Humanities and Social Sciences at Sam Houston State the edge with his extended cross. The state of Texas. The news media
University and given the Reflections of Hope Award by the witness was now so confused he could rushed up to Percy Foreman
Oklahoma City National Memorial and Museum and cornered him shouting,
barely remember his own name. After a
long series of leading statements by Mr. “Mr. Foreman, Mr. Foreman,
A criminal defense lawyer his entire career, Mr. Tritico
handles cases in both state and federal courts; ranging from Haynes about the shade of trousers the
environmental law to capital murder. Representing notable
witness had worn on a particular date, ART BY KELLY KIELSMEIR
athletes such as Moses Malone, former Houston Rocket,
Gary Sheffield, All-Star third baseman for the Florida Marlins Judge Black – probably pulling out the Kelly is a self taught illustrator in
Houston, TX. Since 2012, she has
and Julio Lugo, former Houston Astro. In 1997 Mr. Tritico was last couple hairs on his own head – said in shown her work in galleries, festivals,
and at a local boutique, Hello Lucky.
one of the trial lawyers who represented Timothy McVeigh in exasperation, “Mr. Haynes, what difference Articles featuring her art have been
the Oklahoma City Bombing Case. Since 1988, Mr. Tritico published in the Houston Chronicle,
has represented the Houston Federation of Teachers; with
is the color of pants he was wearing?” Houston Press, and various online
publications. She is primarily known
more than 6,000 members it is the largest teachers’ union
in the State of Texas. In addition to the Houston Federation
Mr. Haynes, apparently in triumph after for her illustrations on vintage
fine china and her series of ink works.
of Teachers, Mr. Tritico represents the Employee Federation reducing the witness to a blubbering Currently, she is the legal assistant
to Attorney Brent Mayr. In her spare time,
of Lone Star College. Further, he has represented teachers’ wreck, responded, “Judge, those were she enjoys reading, needlecrafts,
interest in both criminal district court and civil district court in burglar pants.” and spending time with her daughter.
Harris County, Texas.
20 21
THE DEFENDER / SPRING 2018

THE DEFENDER / SPRING 2018
Richard “Racehorse” Haynes, MY EULOGY FOR RICHARD HAYNES
in my opinion, was simply BY JACK B. ZIMMERMANN

the greatest trial lawyer I think everyone that has spoken so far has given you
reasons why Haynes was a great trial lawyer, and in
my opinion, Richard Haynes was the best trial lawyer
making more money, you promised me that I would be
making the pay of a general and you know I’ve taken a
pretty good cut here in my pay.” He said, “Well Jack, I

in Houston and in Texas. that I had ever seen. But I wanted to concentrate on not
only Haynes as a great lawyer but he was a great human
being. And the reason he was a great human being was
did tell you you’d make the pay of a general but I did
not tell you what Army it’s in. I was talking about the
Mexican Army.”
that he cared about people.
I watched him in Court.One of Hayne’s amazing qualities First, Haynes would always go to the scene. He would So he had a sense of humor
was his voice. His voice had the broadest range of notes photograph and diagram all of the specific landmarks. All To give you an example of but also was concerned
of any lawyer that I ever heard examine a witness or patrols were a team of two officers. Richard explained what I am talking about, with equal rights and
how he would go into every little detail with the first he and I were trying a case the appearance of equal
argue a case.
officer about every step of the arrest. No detail was too in a small south Texas rights. Not just the fake
His voice was melodious, almost as if he was small. He would inquire when the officer first observed town where we were occurrence of it. And, the
singing. The harmony, rhythm and tempo of the vehicle, how far the vehicle traveled, what the driver out for dinner in a small way I first learned when
was doing, how the officer approached the vehicle, every little roadside diner, and was that he called me in his
his voice could literally hypnotize a jury.
single statement by the officer and the defendant, every being the junior member office one time and said,
Richard was a virtuoso with words. He could speak softly little move, what the other officer was doing, every of the team, it was my “Close the door.” And he
and bring a jury up to the edge of their seats, and then gesture and declaration, movement, and approach by the responsibility to take care said, “We got problem with
boom them back against the back of their chairs. He other officer. He was like a Swiss watch-maker building of administrative matters your name.” I said, “How’s
could make a gesture with his hand pointing away to his a precision time piece. Haynes would then get the other like paying the bill. And he that?” and he said, “Well,
left or right, and every head on the jury would shift in officer in the courtroom and take the other officer through watched what I put on the the last part of your name
unison like a synchronized flock of birds. Not only a truly the same detailed examination. Inevitably, there would tip and I used the standard is mann. We just can’t have
amazing lawyer and fine man, he was a true gentleman, be numerous variances between the testimony of the 15% tip and he got all that in this law firm.” He
very pleasant and friendly with a tremendous wit. He two officers. Haynes then was able to capitalize on these over me, saying that these said “from now on, your
would never make an off color statement in the presence inconsistencies and create doubt regarding the officer’s people live on these tips name is Zimmerperson so
CONTINUED : MY FAVORITE RACEHORSE MEMORY

of a woman and was not given to profanity. credibility concerning the defendant’s intoxication. and you should be more you will be referred to as
generous, especially in Zimmerperson from now
The memorial service was a truly grand tribute to Richard Richard Haynes was a family man, married to Naomi a small town where they on,” and I was for the rest
“Racehorse” Haynes, who was characterized as being Haynes for 63 years. How fortunate Richard and Naomi aren’t paid anything. And of the time that I was there.
fearless. The fact that Racehorse was a “workhorse” was were to enjoy the strength, deep bonding, commitment, he made it clear to me that So I thought this would
underscored, emphasizing his long hours and tremendous and union that being with a spouse for decades provides. when we are trying an out give you a little insight into
study of the facts. I recall when Haynes tried the first They were blessed with children, grandchildren, and of town case, in a small his sense of humor and his
DNA case in Texas on which he secured a not guilty after great-grandchildren that Richard doted over. town, especially in a small sense of fairness.
spending countless days at the Rice library mastering the town, you should care
topic of DNA. Haynes cross-examination is legendary. Richard “Racehorse” Haynes, in my opinion, simply the But the next item is that
greatest trial lawyer in Houston and in Texas, has set a about people and should tip
It was said at the service that he once had a records he trusted the lawyers that
very high bar for each of us to unfailingly in our own way more than 15% amount.
custodian, who is ordinarily only asked five questions, on worked with him and trusted our judgment. That is
the stand for three days. strive to achieve. And while we are talking about pay, he persuaded me why everybody is so loyal and that is why there are
after 14 years of active duty as a Major of Marines to so many former members of the law firm of Haynes
My recollection is that Richard had 38 or 39 consecutive leave the Marine Corps to come practice law with him & Fullenweider who are present today. There are all
DWI acquittals until he lost one; however, I have heard in Houston, Texas, and he told me that there would of the civil lawyers that worked there, almost all of
a much larger number. The true number is lost in time; be a significant pay increase. After awhile I realized the criminal lawyers that worked there, at this funeral
regardless, whatever the number was, it remains a that I had taken a pay cut of about $6,000.00 that I service. And I think he generated loyalty because he
record. Richard once shared with me that he mastered would be getting as a major, and I went to him and trusted us and I use this as an example: trying a major,
the art of cross-examination trying DWI cases, back told him, “Haynes, you told me that I was going to be major murder case involving the widow of the Secretary
before video recorders, breathalyzers, and blood tests.
22 23
THE DEFENDER / SPRING 2018

THE DEFENDER / SPRING 2018
After final arguments the judge came back and found of State of Texas at the time, who was also the son of
my client not guilty. So I use that as an example of the Governor who was also a former Chief Justice of
him putting his trust in his subordinates, in developing the Texas Supreme Court, and the wife was on trial for
good trial lawyers. being the cause of death for the famous fellow. We heard
about midway through trial that someone had contacted
I end by saying that some of the other people talked
one of our investigators and said, “Hey you guys may
about how he loved his family, and let me tell you two
be in trouble because some juror was overheard saying
things about how I know he loved his wife, Naomi.
that they would never vote to acquit somebody that was
We were trying a case in a rural Louisiana court and
associated with the power structure, that wouldn’t be
after dinner we went shopping on a street that had all
right.” And, then we found out almost on the same day,
of these shops on it, and he went in and he bought a
within just days that another juror was overheard at the
sconce. Does everybody here know what a sconce is?
grocery store over the weekend saying, “The way that
About ½ of you raised your hands. I sure didn’t know
guy beat that girl up, I would never vote to convict her”
what a sconce was before. Do you know what a sconce
and we reported that to the district attorney’s office.
is? It is something you put on a wall and you can put
So I contacted the district attorney and he said, “Hey,
a candle in it or if its electrified, you can put a light
I need to tell you something” and he told me about his
bulb in it. But I had no idea what a sconce was, and
situation and I told him what happened with mine, and
I admitted I didn’t know. But he bought that for his
we both realized that we were going to have a hung
wife and then he brought it back as a present. I thought,
jury one way or another, whichever way the majority
man I would have never thought to do that, and I love
went. And the county did not want to have to pay for
my wife more than anybody loves their wife. But, he
another jury trial and I didn’t want to put my client
did it because he knew she would appreciate it, and
through another jury trial. We were almost finished
I understood from the family that they’re still in the
with the trial. So that night I called Haynes and I said,
house that they bought.
“Hey, I need some advice. What do you recommend?”
Another example and the last thing I’ll bore you with He said, “I don’t know that Judge.” They brought in a
is that when we were trying the case in Louisiana that new judge because it was such a big publicity case. The
I was telling you about, we were representing a State local judge recused himself. And I said, “I don’t know
district judge and the district attorney who were charged either. I’ve never tried a case in his court, he is from out
with buying votes in a rural Louisiana parish, being of town.” So Haynes said, “What do you think of the
CONTINUED : MY EULOGY FOR RICHARD HAYNES

tried in federal court. We ended up getting one of the way he is running the trial?”
cases dismissed and the jury acquitted on the other one,
Now, my last assignment on active duty before I came
so we had a victory party there, and the supporters that
to Haynes and Fullenweider’s office was as a Marine
supported the judge and the district attorney literally
Corps military trial judge and so I always gauged the
rented the local country club. They only had our party
qualifications of the civilian judges that I was before
in there that night and they asked Haynes what kind
based on if they ruled on a motion or objection the way
of music he liked. He said he liked country-western,
I thought it should be ruled on, I thought they were
so they hired a four-piece country-western band and
really great judges; and if they didn’t, I didn’t think
they were taking requests for songs. And the thing I
they were so good. So he said, “What you think about
remembered about that night was that his favorite song
this judge’s fairness?” I said, “Well, every ruling that
that they played was a country-western song that ends
he has made so far in these several days of trial, I think
with “he stopped loving her that day.” I don’t know
has been right on. I think he is fair and it appears he is
if you are familiar with that song or not. So now, a
worthy of trust.” He said, “Well do what your gut says
few days ago Richard passed away. People can say he
to do.” So the next day, instead of having a mistrial,
stopped loving Naomi that day but in reality, I know
we agreed to excuse the jury and go to a bench trial
that he and Naomi are looking at us now from wherever
just before the judge and that advice was sage because,
they are and he didn’t stop loving her that day. He still
as it turned out, that decision to waive the jury and go
loves her, and she still loves him.
to the judge resulted in a twenty minute deliberation.
24 25

in memoriam of
THE DEFENDER / SPRING 2018

THE DEFENDER / SPRING 2018
RACEHORSE by Robb Fickman
Growing up in West Texas, I first saw Racehorse Haynes wouldn’t take them so would not risk having his mind dulled For a long time, I was the unofficial liaison between HCCLA defense. He enjoyed it. When we were done filming the
on television defending the John Hill case. He had a larger during trial. I remember Racehorse was well into his 70s and Racehorse. He was a charter member of HCCLA for scripted lines, I encouraged him to ad lib the part of an abusive
than life personality and by the time I made it to law school, when we tried this case. Some people tried to tell me that he over the years and behind the scenes, he continued to be very judge and we kept filming. This part of the film is priceless.
Racehorse was the embodiment of everything I wanted to be. had lost his edge. They were wrong. I watched him try this supportive of HCCLA. At our lunches, I would routinely Racehorse randomly threatened contempt, berated people,
He was brilliant, witty, and unrivaled in the courtroom. He case and he was sharp as hell and still in full command of update him on what was going on with HCCLA. He would ordered people arrested and ordered others to be thrown from
was a living legend and a hero. I had no idea that this lawyer the courtroom. Each day during the breaks, he would sit in often have a positive suggestion or idea and was proud of the court. Robert Pelton, who was playing the part of the
who I had come to so admire would someday be my friend. front of the courthouse and smoke his pipe. I would sit with HCCLA’s activism and for standing up to some of the judges Deputy, acted out whatever Racehorse ordered, pretending to
him and discuss the case or just talk about life in general. who were particularly abusive. arrest someone or throw them from the court. From his many
In law school, I clerked for Randy Schaffer who had worked I continued to refer to Racehorse as Mr. Haynes. Finally, years of trying cases, he knew more about abusive judges
for Racehorse and made me feel like I had a connection to the point came when Racehorse said his friends called him He was also never afraid to lend his name to a worthy cause. than any of us. We had 30 lawyers involved in the film and
Racehorse. One day I noticed Randy’s business card had only Racehorse or Richard and I should pick one or the other. When HCCLA had a contentious, heated internal fight over we all watched in delight as Racehorse masterfully mocked
his name and the word “Lawyer” on it. I asked why he kept From then on I called him Racehorse. From that moment whether we should support the Public Defender, Racehorse the abusive judiciary. He stole the show.
his card so simple and he replied that was the way Racehorse on he and I were friends and it was a friendship that I will took a stand. He cared about quality representation for
did his cards. When I got out of law school I had my own forever treasure. indigent defendants. It was a subject that he and I talked We made a second banquet video a year later called
cards made and for 34 years my cards have simply had the about many times. In support of the creation of a Public “SuperDefenders”. Racehorse was not able to come down
word “Lawyer” under my name. I figured if it was good I nurtured my friendship with Racehorse by keeping up Defender’s Office, Racehorse signed a letter with four other while we were filming. Nevertheless, I still wanted him to
enough for Racehorse and Randy, it was good enough for me. with him. I spoke to him or Elise on the phone on a regular top defense lawyers. The letter endorsed the creation of the be in the video and he was still willing to be in it. He agreed
basis. Elise Sartwelle was Racehorse’s dutiful legal assistant. Public Defenders office. I referred to the five lawyers as the to be the narrator so I went to his office and recorded his
Like many other young lawyers, I wanted to work for As Racehorse got older, Elise was rightfully very protective “Royal Flush” and Racehorse was the Ace. Working with a lines on my iPhone. Again I encouraged Racehorse to ad lib. I
Racehorse. I dutifully sent my resume and after a short while, of him and would not let anyone take advantage of his small group of pro-public defender lawyers, we sent a letter remember very distinctly he ended with the phrase, be kind to
I received a polite letter from Jack Zimmermann stating that kind nature. bearing the names of Racehorse and the other four lawyers one another. For me, that ad lib line encapsulated Racehorse’s
they were not hiring at the time. I think Dan and Chris had out to every member of HCCLA. With Racehorse leading the view of the defense bar. I think he supported a strongly united
already been hired. I remember being disappointed, but I RACEHORSE AND HCCLA defense bar’s endorsement, the membership voted to publicly defense bar. I also think as he stated, we should be kind to
saved the letter. Even a letter of rejection from Racehorse In 2006, when I was president of HCCLA, we needed someone support the creation of the Public Defender. I was deeply one another.
Haynes was special. Years later, after He and I became new to start swearing in officers and board members. I asked appreciative of him lending his name to what I considered a
friends, I would jokingly tell him I was going to resubmit Racehorse if he would do it and he replied that he would very righteous cause. LUNCH WITH RACEHORSE
my resume. be glad to. From that point on for many years, he swore After we became friends, Racehorse and I went to lunch on a
everyone in at the Banquet. Many board members told me Racehorse had extraordinary comedic timing and is one of the regular basis over the years. I would pick him up and always
As a young lawyer, for many years, I would see Racehorse they considered it a great honor to be sworn in by Racehorse. funniest people I ever met. So it was only natural that when enjoyed the fact Racehorse made no big deal about where he
around the old courthouse. When he appeared in the coffee To me it was important to get Racehorse on the stage each we decided to make two comedy videos for HCCLA banquets, went to lunch. He was quite happy to go to a burger joint on
shop he would quickly be surrounded by older lawyers where year. In fact, Mike DeGeurin had urged me to make sure we would include Racehorse. He readily agreed to be in both Washington or Becks Prime in Memorial Park or Jack-in-the-
he would sit at the center table and hold court. You could see Racehorse was always included in the banquet and I readily videos. The videos mocked the criminal justice system and Box. He always went out of his way to joke around with the
all the other older lawyers liked him and wanted to just hang agreed. I thought it was important not just for HCCLA but Racehorse was happy to join in the mocking. The first video people working behind the counter and he had no pretense. He
out with him. Racehorse would regale them with humorous also for Racehorse that he is part of the banquet. was entitled “Mexican Al Queda and the Big Gulp”. We had never let his financial success go to his head and was always
stories of his latest exploits and for many years, I admired had an all-star cast of local defense lawyers. We filmed on the down to earth. I enjoyed our lunches and savored the time.
him from afar. Annually, Racehorse and Mrs. Haynes would sit at my table. 20th floor on a Saturday. Joe Varela played Jimi Hendrix on Mostly it was me asking Racehorse about his famous cases
That was always a great honor for me. In 2007, he was an electric guitar as loud as possible. I doubt that will ever or him telling me stories from back in the day. As the years
In 2002, I finally got my chance to work with Racehorse turning 80 around the time of the banquet. In the middle of happen again. The highlight of the video was Racehorse. I passed, we developed a true friendship. He liked to play with
when we represented co-defendants on a federal health care the banquet, I arranged for the hotel to present him with a wrote the part of “Judge Jack Hammer” specifically for him. names so he would call me “Lawyer Fickman” or “Fickey”.
fraud case. We had very bad facts but that never seemed to birthday cake and 300 of us sang happy birthday to him. You On the Saturday we were filming Racehorse arrived at the
bother Racehorse. At the end of the first day of trial, he had might remember that when he gave an autograph he often agreed time and we immediately stopped filming all scenes. Racehorse was a great storyteller. Having lunch with the best
to go see a doctor for his hand and needed outpatient surgery. drew a little cartoon horse head. (see page 23) Well... We were going to film just his scenes so he would not have lawyer and storyteller in the state was not only hilarious fun,
The next day he was back in court with his hand sewed up. to stay too long. He donned the robe and took the bench and it was educational. I was the beneficiary of many a private
It looked like it hurt so I asked him if the doctor prescribed I had that cartoon blown up and put on the cake. delivered each line I gave him with perfection. Of course, Racehorse tutorial and I soaked in every word. The most
him any painkillers. He responded that they tried to but he every ruling was for the state with regular scoldings of the important lesson He taught me was to never let the law box
26 27
in the creativity of your defense. For him, there was no box. I My sons, Sam and Daniel, had never shown any interest in the
THE DEFENDER / SPRING 2018

THE DEFENDER / SPRING 2018
learned something with each lunch, but mostly my friendship
with him just grew stronger. The more time I spent with him, the
law. I took them to lunch with Racehorse and he immediately
captured their attention. After lunch, my sons couldn’t stop
Randy Schaffer
more I liked the man. The larger than life lawyer I had watched talking about him and they had never met anyone like him. To Remembers Racehorse
on television as a kid, was now my friend. It is truly hard to this day they still talk about that special lunch.
express how much that meant to me. Richard “Racehorse” Haynes was the Richard understood what makes a briefcase dragging behind him and
last of the old school criminal defense criminal defense lawyer great. He almost toppling him over. I thought
I asked Racehorse a lot about the John Hill Case. By then the case There was a kindness to Racehorse that not everyone knew. After lawyers. The tools of his trade were stood his ground and did not back that he had stayed too long, that he
was 40 years old but it didn’t matter. His memory of the details lunch with my boys, he sent me a letter commending my boys. a Montblanc pen, a legal pad, and a down. He believed that it is better to did not know when to quit. I failed to
of the case was extraordinary. I once asked if it was possible that His kindness went beyond sending a letter. His associate and steel trap for a brain. He did not need die on your feet than to live on your appreciate that, for Richard, continuing
John Hill had faked his own death and gotten away to Mexico as my dear friend the late Sharon Levine confided in me that he computers, electronic gadgets, or knees. He was willing to march into to work when he could barely stand
had been suggested in one of the movies. Racehorse laughed and rarely turned a veteran away. Even if they couldn’t come close to gimmickry to convey his message to hell for a heavenly cause. And he did was his statement that he would not
replied, “If John Hill had managed to do that he would have to affording his fees, he would take their case. juries. All he needed was words. all of it fearlessly, without regret. go gently into that good night; that he
be the toughest guy who ever lived.” I asked why, to which he I heard about what Richard could do would rage, rage against the dying of
responded, “Because I saw his autopsy.” Racehorse lived in River Oaks but I don’t think he was ever What made Racehorse run? Was it that long before I saw it myself. I did not the light.
overly impressed with it. He told me a story about when they first he grew up poor on the wrong side of have to be sold on him. His legend had
I once asked him if he thought Ash Robinson had John Hill moved into River Oaks. He was out in the yard wearing coveralls the tracks? Was it that he felt that the sold itself. That was the way it was So Richard leaves us, and an era goes
killed. To my surprise, Racehorse responded that he knew Ash thinking he probably looked like a yardman. While out front, he powers-that-be did not accept him, so once, when word of mouth was gospel. with him. I choose to remember him,
Robinson had done that. I asked how he knew that and he told me said a River Oaks matron came out of her house and waived him he needed to call attention to himself in That was the source of the joy I will not as he was at the end, but when he
that Ash Robinson had told him so. He then explained that after over. He approached the woman and she asked, “Boy, what are any way possible? We will never know always feel, the joy that I had the gift was healthy and stood proudly before
John Hill was killed, he sued Ash Robinson on behalf of John these Haynes people like?” Racehorse had a lot of fun with this. the answer. What we do know is that of practicing law with Richard when juries, the most dangerous person
Hill’s estate. They were taking Robinson’s deposition when there He told the woman, That Mr. Haynes is a gem of a fellow; but three generations of clients benefitted he was in his prime. in the courtroom—the way criminal
was a break. Racehorse explained he went to the bathroom and that Mrs. Haynes is a shrew of a woman. About two weeks later from his burning desire to prove that defense lawyers used to be. And I will
while he was in there Robinson came in. The two of them were He and Mrs. Haynes were at a black-tie event at the River Oaks he was the best lawyer in America. The last time I saw Richard at the always remember that, even when
alone in the bathroom and Robinson looked at him and said that Country Club and the River Oaks Matron was seated directly courthouse, he was walking at a Richard Haynes was young, he was the
Racehorse was right but he would never be able to prove it. He across from them. She had a mortified look and never waved him 45 degree angle to the ground, his best kind of old.
concluded by saying Ash Robinson was right, he was never able over again.
to prove Robinson was behind John Hill’s death.
The last lunch I had with him was after Mrs. Haynes had passed
He loved to tell humorous stories about his own exploits. One away. It was very sad and we talked about very personal matters
of his favorites was the “Back Flip Story”. One evening after which I will not repeat. I talked about how I had lost my father Our Hero, “Racehorse”
“enjoying libations” with friends he was driving home down when I was still in school. We talked of death. I recall asking by Robert Pelton
Memorial Drive. He got pulled over by HPD. By then he was him about Iwo Jima. He had a distant look and I could see his As a young man growing up in and wearing ostrich
well known to HPD so they were happy to have him. He was mind was a million miles away. He confirmed that he had saved
Abilene, we had all heard of the battle cowboy boots; not
extremely athletic and he knew his capabilities. The cop was a man’s life. The man was stuck on the beach under fire and
of Iwo Jima and the raising of the only was lawyer
going to arrest him for driving while intoxicated so he asked Racehorse had cleared the beach and had good cover. He saw
the cop if he would let him go if he could successfully do a the other soldier stuck out on the beach pinned down under fire. flag. One youngster in my class was Haynes a survivor
backflip off his back bumper. The cop readily agreed, assuming He left his relatively secure spot, ran back out on the beach under especially familiar since his dad had of Iwo Jima, he was
that hewould land face down smack in the middle of the road. fire, and saved the soldier. I asked him if he knew the soldier he been killed at the battle of Iwo Jima a lawyer wearing
CONTINUED : IN MEMORIAM OF RACEHORSE

A couple other officers came by to watch the show. This was saved and he did not. while serving in the U S marines. cowboy boots like
perfect, as he loved an audience. He climbed up on his back everyone in Abilene
bumper and did a perfect backflip, spiking the landing like an For me, the Iwo Jima story fairly well sums up who Racehorse Once my road led to moving to did.
Olympic champion. The startled cops had to let him go and the was. He was an extraordinarily brave man, who would risk Houston and going to law school,
legend had beat the cops once again. everything to save another man’s life. He spent his life, saving I started hearing about this great My Dad kept
other men and women’s lives. He was the best lawyer I ever together, we would talk about what
lawyer, Richard Racehorse Haynes. telling me “Son, work hard and he did during the battle. He had been
knew. He was my hero and my friend. The more I came to know Then, lawyer Haynes defended Gus you can be a good lawyer like
Racehorse ended the story by pointing out the cops Racehorse, the more I admired him. assigned to be a runner to deliver
Mucher, part of the Sharpstown Racehorse.” Over the years, orders and info to the different
didn’t realize that he always did the backflip better bank scandal in Houston. The case I became friends with him and his officers in the battle. He was short
Racehorse could be tough as hell inside the courtroom, but
outside he was as kind as a man could be. I will miss my friend had been moved to Abilene, and it loyal assistant Elise Sartwelle, who in stature, so he said that was
when he was inebriated. and I will never forget him. Getting to be friends with him is one was the talk of the town. One of my worked with him for almost 30 what saved him from getting shot.
of the highlights of my career. It’s not everyone who gets to be high school classmates served on the years. Elise ran the office and helped
There were lots of stories about Racehorse and his motorcycles. friends with their hero. Like others, I could not help but love this jury that found Mucher guilty, but lawyer Haynes with whatever he He was a great lawyer, but way
On one occasion I asked him if it was true that back in the day good man. We were all very lucky for whatever time had with the case was over turned on appeal. needed. She was a totally dedicated
he and Warren Burnett had driven their motorcycles through the before that, he was a hero to me
Richard “Racehorse” Haynes. Our lives are all much richer for helper for him. Elise was the best and and other veterans because he was
crowded lobby of the Rice Hotel. He looked at me and with his having known him. God Bless Richard “Racehorse” Haynes and one of the finest humans I ever met.
mischievous smile he responded simply, “Burnett didn’t”. a survivor of Iwo Jima, one of the
the entire Haynes family. We would see lawyer Haynes on deadliest battles of WWII.
TV talking about being a lawyer When lawyer Haynes and I were
28 29
which were calculated to shelter require Congressional approval. Under issued Proclamation 4311, in which
THE DEFENDER / SPRING 2018

THE DEFENDER / SPRING 2018
a fit object of its vengeance. the mechanics of the Constitution, the he “grant[ed] a full, free, and absolute
The reflection that the fate of a discretion to pardon belongs to the pardon unto Richard Nixon for all
fellow-creature depended on his President alone. offenses against the United States which
sole fiat, would naturally inspire he, Richard Nixon, has committed or
scrupulousness and caution . . . 5 Congress, while having no legal authority may have committed or taken part in“
to prevent a pardon, nevertheless may while in office. This was a blanket, pre-
Hamilton persuaded the Constitutional be able to impose informal political indictment pardon, which did not name
Convention. limits on the President. They may specific acts for which a pardon might be
threaten impeachment, or hold up his warranted.
Limits on the Power appointments or withhold funding.
Article 2, Section 2 places few limits A pardon granted as a quid pro quo in Watergate prosecutor Leon Jaworski
on the power of the President to issue exchange for something of worth might did not challenge this pardon because
pardons. A pardon must concern a federal expose a president to a bribery charge. he believed that Ford had the power to
crime (not a state or local crime), and A pardon granted to silence a witness or do so.10 Ford’s surprise announcement
may not be in relief of an impeachment. ensure the destruction of evidence might raised serious speculation that there
constitute an obstruction of justice, were was a “deal” between him and Nixon,

Pardon Me
In Ex Parte Garland,6 the Supreme the requisite intent to be shown.8 although Ford denied it under oath in
Court interpreted Section 2 as broadly as a Congressional hearing and a quid
possible: With these principles in mind, we pro quo was never proven. The pardon
can examine the history of recent damaged his standing with Congress, the
The power thus conferred is Presidential pardons. press, and the public, and contributed to
unlimited, with the exception [of GOP losses in the midterm elections and
impeachment] stated. It extends Use and Abuse of the Pardon Ford’s ultimate failure of election.
to every offence known to the Political scientist Jeffrey Crouch argues
The Weaponization of Executive Clemency law, and may be exercised at that the number of pardons granted by
any time after its commission, presidents has fallen steadily since World
By Joseph W. Varela
either before legal proceedings are War II, but the incidence of misuse of
taken, or during their pendency, the pardon for political purposes is
COMINIUS: or after conviction and judgment. rising.9 Crouch shows that many of
“I minded him how royal ‘twas to pardon Thinkers who influenced the Constitution merit quoting at This power of the President is not the pre-Watergate pardons were in the
When it was less expected: he replied, length. John Locke argued that the power to pardon was to be subject to legislative control nature of healing wounds. Washington
It was a bare petition of a state used for the public’s benefit: Congress can neither limit the pardoned those convicted in the
To one whom they had punish’d.”1 effect of his pardon, nor exclude Whiskey Rebellion. Jefferson pardoned
. . . [T]he good of the society requires, that several from its exercise any class of those punished by the Alien and Sedition
“Pardons for Offences” things should be left to the discretion of him that has offenders. The benign prerogative Acts. Later presidents pardoned figures
Article II, Section 2 of the United States Constitution provides the executive power: for the legislators not being able of mercy reposed in him cannot convicted of activities related to Ford and Nixon.
that “The President . . . shall have Power to grant Reprieves Foresee, and provide by laws, for all that may be useful be fettered by any legislative politically divisive controversies such
and Pardons for Offences against the United States, except in to the community, the executor of the laws having the restrictions. as the Civil War, race relations, Puerto The next administration to furnish a
Cases of Impeachment.” power in his hands, has by the common law of nature a Rican independence, and labor and pardon controversy was that of the elder
right to make use of it for the good of the society, This rule was reinforced in Ex Parte “communism” issues. None of these Bush. His predecessor, Ronald Reagan,
I contend that Section 2 is a flaw in the Constitution that can in many cases, where the municipal law has given no Grossman,7 holding that the power to pardons appears to have generated the had been caught trading missiles to the
be exploited to upset the balance of power envisioned by the direction, till the legislative can conveniently be pardon extended to cases of criminal level of public outcry that later ones Islamic Republic of Iran in exchange
Founders. assembled to provide for it. . . [S]ince many accidents contempt. did. Crouch distinguishes them because for hostages and for money to fight
may happen, wherein a strict and rigid observation of they were all post-conviction acts of an illegal war in Central America;
Theories of the Pardon the laws may do harm . . . ‘tis fit the ruler should have The power of pardon is notably clemency, and they did not directly this was the “Iran-Contra Affair.”
The pardon was not invented at the Constitutional Convention. a power, in many cases, to mitigate the severity of the different from other Presidential benefit the pardoning presidents or their Several Reagan aides were indicted for
It was an ancient prerogative of executives across cultures law, and pardon some offenders: for the end of powers, such as the power to supporters. various crimes relating to the scandal,
and forms of government. It existed in Athens and Rome.2 government being the preservation of all, as much as appoint judges and including defense secretary Caspar
European monarchs exercised it, apparently without question; may be, even the guilty are to be spared, where it can ambassadors, in that Then came Watergate. Weinberger, who was indicted for
English kings had their unfettered common-law pardon power prove no prejudice to the innocent.4 the latter acts President Nixon conspired several counts of perjury and obstruction
circumscribed by Parliament only in the seventeenth century. with his associates to cover of justice. One count concerned
Alexander Hamilton urged that the power of pardon should up the consequences of a alleged false statements supported by
Institutions do not endure unless they are useful. One can belong solely to the executive, without the possibility of burglary of the Democratic Weinberger’s contemporaneous notes of
imagine a number of good reasons that the executive of a interference from Congress: Party’s headquarters. meetings. These notes belied President
government should have the power to pardon convictions, or to Bush’s repeated public assertions that,
commute or reprieve sentences. A pardon could satisfy a need As the sense of responsibility is always strongest, in Investigation revealed other sensational as vice-president, he did not know
to be perceived as merciful, could correct what is believed to be proportion as it is undivided, it may be inferred that a irregularities. Faced with certain of the transactions as they occurred.
a miscarriage of justice, could advance some domestic public single man would be most ready to attend to the force impeachment and removal, and fearing After Bush’s re-election defeat, he
policy3 or international diplomacy, or could act as a check-and- of those motives which might plead for a mitigation of indictment, he resigned. A month pardoned Weinberger and other Iran-
balance against an overreaching legislature or court. the rigor of the law, and least apt to yield to considerations after his resignation, President Ford Contra figures.
30 31
The pardon of Weinberger avoided a trial or personal convenience rather than for federalism usually works in reverse, Article II certainly does not do that now. Indeed, it serves the
THE DEFENDER / SPRING 2018

THE DEFENDER / SPRING 2018
at which Bush could have been required the traditional reasons for executive when the federal authorities step in to opposite interest: hiding crimes and conspiracies from public
to testify or produce his own diary clemency previously adumbrated. clean up local corruption. exposure.
notes, revealing his knowledge of, and
possible participation in, the weapons- The Pardon as a Weapon I believe Hamilton was simply wrong These proposals are nothing that was not discussed at the
for-hostages scheme. A President may discover that the power when he thought that a single executive Constitutional Convention. That body debated both these
of pardon is useful as a weapon.15 A was the appropriate officer to hold issues, and others, and did consider the possibility of a
Another significant pardon controversy President faced with an investigation unilateral power of pardon; better than president’s immunizing his executive branch (particularly
occurred at the end of Bill Clinton’s could issue a blanket pardon to his a legislature, which he thought was too in cases of treason), but declined to include antidotes in the
term. Wealthy businessman Marc Rich associates, worded like the one Ford susceptible to public passions.17 It was Constitution.21 As it was with Hamilton, the Convention’s
was indicted for numerous counts of used to pardon Nixon. The potential a natural mistake: in the run-up to the omission was most likely a failure of imagination; the
illegal transactions with Iran and tax defendants would have nothing further adoption of the Constitution, Hamilton Founders were simply unable to picture a president who was
fraud. He fled to Switzerland to avoid to fear, and would therefore have was surrounded by men such as himself, not the least bit inclined towards Locke’s “scrupulousness
prosecution. The lame-duck Clinton nothing to gain by cooperating with the serious men who were conscious of the and caution” and was willing instead to use the pardon to
issued 176 pardons and commutations in government, nor would there be a public power they wielded. The unilateral grant upset the balance of powers.
the last two hours of his tenure, including trial revealing embarrassing information. of the power of pardon too much reflected
a pardon for Marc Rich. It was later This process could be repeated as needed the personalities of the Founders and ---------------------------------------
revealed that Rich’s wife had raised cash for each defendant, or there could be failed to anticipate the advent of a man 1 William Shakespeare, The Tragedy of Coriolanus, V.1.
or pledges of $1.5 million for Clinton’s a simultaneous pardon of everyone with a very different concept of authority (1608?)
presidential library and garnered support under investigation. In theory the and its responsibilities. 2 The pardon of Barabbas appears in all four Gospels.
from the likes of Israeli Prime Minister pardons would free up the prosecutor or E.g. John 18:39 et seq.
Ehud Barak and Jerusalem Mayor Ehud Congress to issue subpoenas and compel It is time to consider amending the 3 Biddle v. Perovich, 274 U.S. 480 (1927).
Olmert.11 There was an investigation12 testimony, as the witnesses would be Constitution. Texas practice is instructive
4 Second Treatise of Government, Section 159 (1690).
but no quid pro quo was found. But the effectively immunized and unable to take here. The Texas Constitution provides
pardon was almost universally regarded the Fifth, but those pardoned could then that the Governor may grant reprieves, 5 Federalist No. 74 (1788).
as an abuse of presidential power and say anything under oath, anticipating that commutations, or pardons, but only after 6 71 U.S. 333 (1866).
smacked of tawdry money and political they would also receive a new pardon for conviction or deferred adjudication, and 7 267 U.S. 87 (1925).
corruption.13 any perjury or obstruction. only upon the written recommendation of 8 E.g., 18 USC § 1510.
the Board of Pardons and Paroles.18 The 9 The Presidential Pardon Power, University Press of Kansas
Like his father before him, the younger With an entire executive branch Governor, with the advice and consent (2009).
Bush succumbed to the temptation to use putatively immunized from federal of the Senate, appoints the Board,19 and 10 Leon Jaworski, The Right and the Power: The Prosecution of
pardon power for personal reasons. Bush prosecution, anything becomes possible. the Governor can remove any member Watergate, Reader’s Digest Press (1976).
claimed that Iraq (i.e. Saddam Hussein) The President, or any other executive he appoints without cause.20 The Board
11 The deal was brokered by a deputy attorney general, one
had bought uranium from Africa. This branch official, could order Watergate- therefore is not, strictly speaking, a
Eric Holder. Olmert had previously received campaign
claim was disputed and in the ensuing style burglaries, illegal surveillance “representative” of the citizens or an
contributions from Marc Rich.
contretemps, the identity of a CIA agent, and arrests, censorship, or even independent agency, but the scheme
Valerie Plame, was published. Vice- violence against any person deemed does divide authority and can act as a 12 By federal prosecutor James Comey.
President Cheney’s top aide was Scooter an impediment. Nor is this brand of brake against unfettered gubernatorial 13 Crouch, op. cit.
Libby. Libby was suspected of being the lawlessness limited to executive branch pardon power. 14 Id.
leaker. There was an investigation, and employees. The road to authoritarianism 15 The President has asked for advice about his power of pardon,
although Libby was never charged with may be paved with presidential pardons. I propose that Article II be amended in and has tweeted about it. It is illuminating that he used it to
leaking, he was indicted for perjury and two respects. First, to require the consent pardon Sheriff Arpaio, an early supporter, who was held in
obstruction of justice. He was convicted What is to be done? of a majority of the Senate before any criminal contempt for defying
and sentenced to a term in prison, a fine, Although such pardons would be effective presidential pardon has effect. This a court order in a matter involving
and probation.14 for those pardoned, the Congress could procedure would ensure public debate the civil rights of racial minorities.
deem them an abuse of office worthy of by representatives responsible to 16 There is evidence that the special prosecutor is already
Right before Libby was to report to prison, impeachment and removal. Whether or constituencies and would obviate self- considering this possibility and is working with
lame-duck President Bush commuted the not the present Congress, or some future serving unilateral presidential action. state-level prosecutors. See
prison portion of the sentence, so Libby Congress, would step up is a matter of Congress would have an incentive to Jon Wiener, “Robert Mueller’s Brilliant Move
CONTINUED : PARDON ME

would have to serve no time. This act conjecture. forestall power grabs by an executive Against Trump’s Pardon Power,” The Nation, September
was derided as hypocritical, given the branch effectively immunized from 6, 2017.
Bush Administration’s tough-sentencing Another possibility, and an intriguing prosecution.
17 Federalist no. 74.
stance and the lack of traditional reasons one, is that federalism itself offers Second, I would have a presidential
for clemency. The fallout did Bush’s help. The Article II pardon power pardon attach only to convictions. A 18 Tex. Const. art. IV, § 11 (b); Tex. Code Crim. Pro. art.
already dismal approval no good. extends only to “offences against the president would not be able to relieve an 49.01.
United States,” i.e. federal crimes, but indicted person pretrial or issue a blanket 19 Tex. Govt. Code § 508.031.
In sum, the recent pardons discussed some federal crimes may also be state pardon as Ford did for Nixon. This 20 Tex. Govt. Code § 508.037.
here (and they are not crimes. If money laundering is a federal change would ensure that the system of 21 Crouch, op. cit.
the only ones) appear to have been done crime, it might also be illegal in the grand jury indictments and public trials
mostly by lame-duck presidents immune state where the laundering took place.16 would at least expose evidence before
from responsibility to voters, for political This is extraordinary, considering that executive clemency could be exercised.
WAR
32 33
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THE DEFENDER / SPRING 2018
In 1975, the United States was suffering a He didn’t see a summons. three men, drive slowly past the Mize home an hour and half
crisis of conscience. In the previous year, the before the robbery. Still, the descriptions weren’t enough
Instead, he saw a gun. to positively identify the suspects. The Mize family did not
President resigned. Early in the new year,
the Watergate conspirators were convicted. know their tormentors, and the descriptions Sam managed
The pistol looked tiny in the hand that was holding it. to obtain only gave rise to mere suspicion. Fortunately, he
Saigon had fallen. Jimmy Hoffa had gone Still, it felt no less lethal as it ground into his temple. As wouldn’t have to wait long for more definitive proof.
missing. John Wooden retired. his perspective slowly widened, Mize saw a giant of a man
had filled his darkened doorway, and behind him stood two
News of the home invasion and robbery wasn’t news to
It wasn’t all bad, though. others. All of them wore masks. The three men pushed him
everyone. Michael Ashley Nycum was supposed to have
into the shadows of his sleepy home. The giant threatened
been in on the Mize robbery. He helped them plan it, but a
to kill him if he gave them any trouble.

STORIES
Margaret Thatcher had become the first woman few days before the heist, he was arrested on an unrelated
chosen to lead a political party—any political charge. The group cut him out of their plans. He knew
party. The first Federal Rules of Evidence were Within minutes, Charlie’s wife, Carrie, woke to the how much loot was waiting for them inside the Mize family
approved by Congress. Bill Gates and Paul nightmare. Her terror was magnified by a sense of home. The loss of that income itched like an amputation.
helplessness—a previous battle with cancer had resulted in He stewed inside his cell at the Village Police Department,
Allen co-founded Microsoft. The movie, Jaws,
the amputation of one of her legs. When their frightened but he didn’t stew for long. He made contact with his
was released to critical acclaim. young son was pushed into the room, the three of them stewards, Detective Steve Stevens and Captain Pat Wallace,
were bound. Pillowcases were drawn over their heads. They and offered the names of the robbers in exchange for a
It was a world in upheaval; its traditional were ordered to lie face down on the master bed, still warm

honor and
favorable outcome to his case. The Village PD accepted
power structures were crumbling, and people with the sleep of a lifetime ago. his offer and relayed the information to the Houston Police
were wondering what on Earth they could still Department. When Sam returned to the Robbery Division,
believe in. Despite Nixon’s protestations to The robbers knew what they were after. Realizing the Nycum’s information was waiting for him.

thieves
the contrary, it seemed anyone—at any level— intrusion wasn’t random amplified the Mize’s fear.
could be a crook. Depending on the day, it They demanded Mize tell them where he kept his sample Michael Gregory Todd was a small-time hood and a
seemed there was as much reason to hope as jewelry cases. Mize was employed as the Houston sales professional wrestler whose stage name was “Yukon
there was to despair. rep for a New York-based jewelry wholesaler. His samples Eric.” He was undoubtedly the one who’d held a gun to
were clearly the objective of this heist, but the thieves the temple of Charlie Mize. His masked accomplices were
BY rick oliver Sunday, August 17, 1975, wasn’t a day that
inspired much hope.
wanted more. identified as Howard Pope and Steven Roy Clements. None
of the men were strangers to law enforcement.
The intruders were inside the home for mere minutes.
When they finally left, along with the Mize’s peace of mind, Sam created photo spreads that included a previous mug
In Memorial—a wealthy suburb of Houston— they had stolen Charlie’s sample jewelry case containing
it was sticky and hot. Evening temperatures shot of each of the three suspects and hot-footed it back
diamonds and assorted jewels, a blue jewelry box that to the scene. There again, he met with Mr. Ricklin and
had dipped to the low eighties, but Houston’s contained the family’s personal jewelry, fifty silver dollars, Ms. Hagedorn. Mr. Ricklin was able to positively identify
typically tyrannical humidity persisted at over cash, and the family sedan—a 1973 Oldsmobile. The total Steven Clements as the driver of the suspicious vehicle
eighty percent. There was a cloudless sky. value of the property taken was over $140,000. The Mize and Michael Todd as one of its passengers. For her part,
Somewhere, on a porch radio, Gene Elston and family lay still on the bed for an eternity. When they were Ms. Hagedorn was able to identify Michael Todd as being
Loel Passe described the diminishing action as sure they could no longer hear the three men, they began among the men she saw out on the sidewalk, the night
Astros’ lefty Jim Crawford lost a pitching duel trying to loosen the ropes. of the robbery. Within twenty-four hours of the crime,
to the Cubs: 11-7. the combination of Nycum’s avarice and Sam’s good old-
Sam Nuchia, a Detective with the Robbery Division of the fashioned police work established probable cause to
The games were all over, and night had Houston Police Department, and a straight-laced Catholic believe the three men had perpetrated the robbery.
from Beaumont, made the scene in the early hours of August
descended; dull stars twinkling in the Witching
18, and immediately began the investigation. Quickly, he Still, Sam wasn’t finished. Not wanting to rely on the
Hour. Charlie Mize—a wholesale jewelry
discovered the thieves had been conscientious not to pull allegations of a conflicted snitch and the nighttime
salesman—and his family were asleep in their their getaway car into the Mize driveway, and apparently,
home. The doorbell pealed; a monstrous identifications of nosy neighbors, Sam decided to stake
they didn’t wear bandoliers and wave their guns in the air out Michael Todd’s Oak Forest home. He already had arrest
sound in the dead of night. Mize awoke. as they approached. Other than that, it seems parking the warrants for Todd and his accomplices, but he wanted to
Groggy, he left his wife in their bed and made car at another location was the only thought given to cover. more definitively connect them to the crime. As it turned
his way out of the room. On his way to the out, the motley crew of criminals was just as talented at
front door, he passed the room where his only They weren’t smart enough to split up, or wear hats, or covering up their crimes as they were in planning them.
son, Skipper, was sleeping. otherwise act inconspicuous. They parked some distance
away and walked to the house as a group, unmasked. Fortune With the help of six patrol officers and a police helicopter
He didn’t answer the door immediately. smiled on Sam in the early hours of the investigation, and a called the “Fox,” Sam set up surveillance around Todd’s
Warily, he asked who was there. A clear and night-owl neighbor, Ms. Leslie Hagedorn, provided physical home. They didn’t have to wait long. With their eye in
commanding voice claimed he had a summons descriptions of the three men. Another neighbor, Seth the sky, the surveillance team was able to track Todd to a
Ricklin, told Sam he’d seen an unfamiliar car, occupied by
to serve. Mize opened the door.
34 35
Sam briefed Earl on the status of the case. They agreed the needle of the polygraph ticked like an EKG charting a
THE DEFENDER / SPRING 2018

THE DEFENDER / SPRING 2018
nearby house trailer. There, they saw him pick up Steven there was nothing passive about selecting the target, then
it was time to pay Frenchie a visit. They found Frenchie cardiac arrest.
Clements. The police followed the two men to their next organizing the hoodlums to carry out the dirty deed. Pope
behind the counter inside Northwest Jewelry & Loans.
stop, an apartment complex, where Howard Pope and a informed Sam that Frenchie had set up the robbery. After,
They braced him with the information they’d received Earl would later remark that Frenchie had “failed the
woman named Janet Womack, joined them. Together, the Pope claimed Frenchie had paid the group the sum of
from Pope. polygraph so bad, it threw ink all over the walls.”
quartet drove to the Great Southern Bank. After making $5,000 for delivery of the sample jewelry case, which was
a withdrawal, Sam and his officers followed the group clearly the prize bull of the heist.
back to the apartment complex. With all their suspects There was no reason not to burn their source. If Frenchie It didn’t matter.
inside, the surveillance team moved into position outside set it up, he had to already know his boys had been
If Pope could be believed, Frenchie’s misdeeds were far
the door of Howard Pope’s apartment. Sam knocked pinched. They weren’t expecting a confession; Frenchie Bail was set at $20,000. Before the ink could dry on his
more egregious than simply receiving stolen property, but
on the door, ready to announce their presence. No one was too smart for that. Frenchie proclaimed his innocence failed polygraph result, Frenchie made bond and was out
Sam had to be certain Pope’s conversion was because he’d
answered. Potentially, they were going to be forced to kick and offered to let them search his store for the missing on the streets. As expected, his case was assigned to the
seen the Light; not simply because Pope felt the heat.
in the door. First, Sam tried the handle. jewels. The Detectives were too smart for that. They knew 174th District Court. Sam and Earl didn’t panic. Indeed,
he was smart enough to stash the loot off-campus. A little they didn’t fret. They’d already accomplished their first
Sam re-established contact with one of the victims,
too eager, Frenchie claimed he could provide actionable
It was unlocked. Charlie Mize, and asked whether Mize had ever heard
information against other criminal agents. He was a little
objective. They’d put the heat on Frenchie and tightened
of Frenchie Fontenot. As it turned out, Mize had. In fact, the valve. All they had to do was wait for the pipe to burst.
fish in a big pond, he claimed. He could give them the
Sam opened the door, and he and his team swept inside. he’d recently been inside Frenchie’s store. Indeed, while
sharks. Sam and Earl were too smart for that, too. Soon, the Detectives received an unexpected call from
Upon entering, they saw Pope and Clements, shocked, showing Frenchie samples, Mize had been made to feel
standing by a kitchen table. On top of the table sat uncomfortable: Frenchie had asked abnormal questions, an unexpected place. Harris County Sheriff’s Deputy
Frenchie was in their crosshairs. John Tanner had been working in an undercover capacity
a familiar blue jewelry box. All four occupants of the such as where the sales rep lived and where he kept his
They weren’t going to be distracted. to interdict and stop the trafficking of cocaine into and
apartment were immediately detained, separated, and jewels, which was unusual solicitee repartee. They were just
transported to the police station for questioning. On the the kind of questions one might ask if his ulterior motive through Harris County. He’d met with some success and
drive, each of the arrested, no doubt, contemplated the were to avail himself of the property without the hassle of They left without a confession, but they did have a plan. executed a bust that resulted in the arrest of a drug
“Prisoner’s Dilemma.” a valid receipt. At that point, Sam knew he didn’t yet have Their visit had put Frenchie on notice that the jewels he trafficker. As is so often the case, the dealer was willing to
enough information to hang Frenchie Fontenot for what had received had been procured in a robbery. That, along trade private information for personal leniency.
he’d done to the Mize family, but he was determined to with the information provided by Pope, gave them just
Ironically, Pope was the first of the criminals to find Jesus.
find a way to feed Frenchie enough rope so that he could enough evidence to entice the District Attorney. The phone rang inside the Robbery Division of the
His first act of contrition was to ensure his criminality
didn’t besmirch his wife, Janet Womack. He admitted eventually hang himself. Houston Police Department. Sam and Earl had been
his participation in the robbery of the Mize home. He It was August 22, 1975. Already, Pope, Todd, and Stevens right to wait. Deputy Tanner had good news: a recently-
admitted Todd and Stevens were the men who’d done Before Sam made a move against Frenchie, his partner, had been charged with Armed Robbery. Their cases arrested suspect had information to broker about a pawn
it with him. He admitted the blue jewelry box was the Detective Earl Musick, returned from vacation and joined had been assigned to the 174th District Court, Judge shop owner desperately trying to move a large number of
same one that contained the Mize’s personal jewelry. the fray. Earl, a Houston native, was a ten-year veteran of Garth Bates presiding. If their next visit were successful, jewels unlawfully acquired in a recent home invasion. And
He admitted storing the pilfered jewels in Janet’s safety the force who’d joined in 1965, at the age of twenty. He was they knew any case brought against Frenchie would be due to recent unfortunate personal developments, the
deposit box, at the bank from which they had recently the son of a machinist, who preferred the adrenaline of the assigned to the same court. They drove to the courthouse. ensnared drug dealer was willing to work as a Confidential
returned, but he insisted she had no idea how the jewels beat and the bonhomie with the damned, to the bore of Inside, they found Henry Oncken, Assistant District Informant (CI) for Detectives Sam Nuchia and Earl Musick.
had come into his possession or why Todd and Stevens the drill and the precision of the lathe. Earl joined the cops Attorney assigned to the 174th District Court, and told
CONTINUED : WAR STORIES : HONOR AND THIEVES

were there to ensure an equal division. Ultimately, Pope because he thought it sounded fun. Sam joined because him what they had. After a brief conversation, Oncken The Detectives smiled—cats with canaries in their mouths.
was granted immunity from prosecution in exchange for he thought it was his duty. Earl believed in Protestantism agreed to accept charges against Frenchie for Receiving They suggested the CI should become an interested
the information and testimony he would provide, and to Sam’s Catholicism, at a time when such things mattered. Stolen Property. It was a dog of a case, and they all knew it. buyer. They wired him for sound. They gave him some
though the answer has escaped the annals of history, it Despite their differences, the two worked incredibly well They needed to corroborate Pope’s allegations to justify money and sent him on his way. He returned with a bounty
seems unlikely his wife escaped prosecution on account of together and would become lifelong friends. any hope of seeing the charge mature into conviction, but of jewels. To close the loop, Sam and Earl once again
the plausibility of his assertions regarding her involvement. it was a charge. reached out to Mr. Mize.
Indeed, it seems more likely she was spared the wheels of
justice because Pope had also given them something they And with a charge would come an arrest.
hadn’t previously had.
With the arrest, they could apply more pressure. Soon
Nukie “Frenchie” Fontenot. thereafter, Sam and Earl arrested Frenchie and booked him
on the charge. They took advantage of the opportunity to
Frenchie was the owner of a place called Northwest have another conversation with their prisoner. As he was
Jewelry & Loans, across the street from Northwest Mall. a captive audience, Frenchie agreed to speak to them.
Law enforcement knew about his legitimate business, and He’d been through the system enough times to know
they also knew about his underworld activities as a fence. they couldn’t make the case against him without more
In the parlance of the streets, a “fence” is a criminal who evidence. He’d also probably been through the system
deals in stolen property. That, alone, wasn’t the revelation enough times to know polygraph evidence wouldn’t be
that had raised Sam’s hackles. Typically, a fence was a admissible in a trial as proof of his guilt. Maybe because
passive participant in the criminal underworld, simply of that, or irrational arrogance, Frenchie offered to be
brokering deals between the thieves and their buyers, but polygraphed as to any involvement in the Mize robbery.
DA Carol Vance and Detective Earl Musick Happily, Sam and Earl accepted his offer. Needless to say,
36 37
When he identified the stones as being among those taken Sam and Earl were waiting for him at the agreed location.
THE DEFENDER / SPRING 2018

THE DEFENDER / SPRING 2018
1961. He was elected to the bench of the 174th District that might find its way to the judge’s chambers. With that
from his stock, the Detectives knew they had Frenchie by Court in 1972, where he still sat. Earl’s impression of the understanding, the Detectives went back to work.
the noose he’d fashioned for himself. When Frenchie finally arrived, the surveillance team man was scant, but he believed, at least, he was favorable
watched as he met briefly with Tanner and the CI. to law enforcement. Judge Bates was known as a “hanging They knew where they had to go. Earl would wear the
But the jewels the CI had purchased were only worth eleven Seemingly satisfied, Frenchie disappeared inside the judge;” someone quick to drop the hammer on those who wire. On the way to the Northwest Jewelry & Loans, they
hundred bucks. Sam and Earl knew the jewels were the offices of the construction company. A few minutes later, stood before him. The admonition from Dante’s Divine discussed their plan of attack. Back out on bond for the
rightful property of the New York-based wholesaler, and he emerged with the stolen jewels. Comedy at the entrance to Hell could have just as easily past five months, they knew Frenchie had been a busy
they also knew the jewels were uninsured. They wanted to been inscribed above his dais: “Abandon hope all ye who man, but they couldn’t confront him with their suspicions.
return them to their rightful owner. They wanted them all, In Houston, even late-September is hot. enter here.” It had to come from him.
and they wanted to nail Frenchie, dead to rights.
Tanner wiped his brow with a handkerchief. But, Judge Bates wasn’t considered among his peers Frenchie was behind the counter of his pawnshop when
Deputy Tanner, working undercover, agreed to accompany or colleagues to be a learned judge. He didn’t know or they arrived, unannounced. He was nervous and justifiably
the CI to Frenchie’s store to pose as the CI’s benefactor It was the signal Sam and Earl and their team understand the penal laws or rules of procedure to the so. They told him they wanted to talk. Once, back in August
and true buyer. For posterity, and also evidence, Tanner had been waiting for. They blitzed the site and arrested all degree expected of a District Court judge, and a 1975 of the previous year, Frenchie had offered to spill what he
assured them he’d be wearing a wire. When Tanner and the three men. With the jewels and the money both recovered, Houston Bar poll had rated him last of the twelve District knew about sharks and bigger fish. They offered to buy
CI encountered Frenchie inside his shop, they negotiated Sam and Earl thought the case was finally over. Court judges in the categories of integrity and character. him a coffee. Reluctantly, Frenchie agreed. They found a
a price for the remainder of the loot. The price was set at As Bennett divulged what he had been hearing, it seemed back booth in a nearby diner and sat down for a chat.
$45,000. Tanner promised he could get the money, but in a Except it wasn’t. the Judge’s reputation might finally come home to roost.
world where fifty-seven cents could buy you a gallon of gas
It became quickly apparent that Frenchie was
to fuel a new car that cost you thirty-eight hundred dollars, Sam and Earl learned that Judge Bates was also a regular
Frenchie was arrested, transported to the police station, willing to snitch out any criminal but Judge Bates.
Tanner admitted he needed some time to marshal the gambler who often appeared on the secret high-stakes
and booked on charges of theft and aggravated robbery.
funds. When Tanner returned with news of the agreement, poker scene. Unfortunately for him, that scene was one
Sam and Earl went to talk to him. They told him he hadn’t After all, the judge was his ace in the hole; his “Get Out
Sam and Earl realized a very immediate complication. being watched by the Houston Police Department’s Vice
been followed by “the Man;” he had been negotiating of Jail Free Card.” He made clear his belief that the whole
with him. Tanner was a cop. They had the whole thing on Division. Recently, the flies on the walls of those rooms criminal justice system was corrupt, but he was beating
The department didn’t have anywhere tape. Pope was waiting in the wings, ready to testify about had begun to hear troubling rumors. Bennett told them he around the bush. The Detectives let him keep talking.
near that kind of money. how Frenchie had set up the original robbery. It was over, a had received word from Vice Officer, Stanley Plaster, and Frenchie kept throwing out the line, but Sam and Earl
slamdunk. With his guilt clearly established, they expected his Sergeant, Carl “Bob” Reese, that justice might be for weren’t taking the bait.
But in a world that had lost so much faith, a bit of an easy confession. They were disappointed. Frenchie sale in the 174th District Court. More shocking, Bennett
hope was able to shine through. Within days, Harris proclaimed his innocence and demanded to speak with and Holmes admitted they’d heard similar rumors before. Close to thirty minutes after they sat down, Earl excused
County Sheriff’s Deputy Bill Norman, working with their his attorney. This time, though, the rumors weren’t after-the-fact, so himself from the table; he had to take a leak, but there
Intelligence Division, contacted Sam and Earl. Somehow, they had to move fast. When Sam and Earl realized who was something else he had to do, too. The device in his
an unidentified civilian had come forward, willing to The Detectives were disappointed, but they knew they the buyer was, they knew at once why they’d been chosen. coat pocket could only record for thirty minutes per side.
help, and he wanted no recognition beyond knowing had him. They spoke to Henry Oncken, who assured them He stepped into the restroom, flipped the tape, and set it
he was doing his civic duty. He offered to loan them the he wouldn’t sell Frenchie’s case for cheap. He would afford Frenchie Fontenot. to record again. Then, he really did take a leak—while the
Frenchie no illusions of grandeur. There would be no recorder was running. Later, much to his chagrin, the tape
CONTINUED : WAR STORIES : HONOR AND THIEVES

money—$45,000—to complete the buy and execute the
sting. discussion of probation; Frenchie was going to the pen. What they thought was long-since over had only just and all that it recorded would be played for judge and jury.
begun. The investigation was to begin at once. Things
Tanner and the CI returned to the pawnshop. Frenchie But, on March 4, 1976, were already in place. The elected DA, Carol Vance, had He returned to the table. Finally, after more fruitless
already contacted Pappy Bond, the Chief of Police, and chatter, Frenchie said, “Well, I have one thing that is pretty
wouldn’t show them the jewels until he saw the cash. everything changed. requested the re-assignment of the detectives to Special
Tanner showed him. Still, Frenchie didn’t want to make the big, but I just don’t know…”
exchange inside the sanctity of his store. He told Tanner Sam and Earl were summoned to the office of Crimes. They were not to tell anyone why they’d been re-
he was being watched by “the Man.” Ostensibly, Tanner Robert “Bob” C. Bennett. It was an off-site location, assigned or what they were working on. The investigation There it was.
managed to suppress an ironic smile. Frenchie explained separate from the other offices of the District Attorney. had to maintain the highest degree of secrecy. Sam and Earl
it was “too hot” to do the exchange there. They agreed They were confused. Bennett was the Chief Prosecutor in both thought it wise to consider a compromise position. Earl knew Frenchie was ready to play his final card. He
on an alternative location. Tanner and the CI left with charge of the Harris County Special Crimes Bureau. His A re-assignment would draw just the kind of attention could see he was ready to break. It seemed to Earl that
an agreement to meet Frenchie outside a construction division investigated and prosecuted allegations of public Bennett and Holmes wanted to avoid, so Sam and Earl Frenchie was just hoping for the softest place to land. He
company in Northwest Houston. corruption. They had no idea what that had to do with suggested they maintain their current assignments to tried to assure him. He said, “Frenchie, you can trust us.
two detectives from Robbery. When Sam and Earl arrived, the Robbery division, and that their boss, Captain Leroy There are not any two cops more hard-working and honest
On September 24, 1975, Frenchie left his shop heading Bennett’s right-hand man, Johnny Holmes, was there with Zoch, be informed of their secret mission. When they were than Sam and me. And we are men of our word.”
for the construction site. He took the scenic route. He him. working the Judge Bates investigation, they would record
drove in circles and down dead-end roads. He was nearly and preserve everything they did. If they were going to
Earl had been right.
paralyzed with paranoia and fear that the cops were hot Bennett had troubling news to share about the judge attempt to take down a judge, their evidence had to be
on his tail. It took him over a half hour to drive a few miles. of the 174th District Court, Garth Bates. For most of his perfect. Sam and Earl would report the results of their
investigation to Bennett, Holmes, and Zoch, no one else. The dam broke, and Frenchie began to tell his tale.
career, Judge Bates had been a public servant. He had
worked in the State Legislature from 1953 to 1957. He Everyone else in the department and the District Attorneys
He needn’t have bothered. Soon after posting bond, Frenchie realized there would
had been on the Houston City Council from 1958 through Office would be kept in the dark. They couldn’t risk a leak
38 39
no budget for that kind of thing, and they couldn’t ask the unit, found a parking spot about 150 yards away from the
THE DEFENDER / SPRING 2018

THE DEFENDER / SPRING 2018
be no easy way out of his mess. Oncken, the ADA in the the-ante only days before this sojourn with detectives.
174th, wasn’t offering anything more pleasant than a trip Finally, the cracks in the dam were becoming apparent. County Commissioners for the $60,000. There never would bank with a line-of-sight on the front doors. He backed
to scenic Huntsville. Frenchie had no intention of going to Now, it made sense why Frenchie had been willing to talk. have been enough time, and they couldn’t risk a leak that into the spot, checked the magazine of his .45 Commander
prison. There had to be another way. He got to talking with He had no real hope of managing the $60,000 on his own. would find its way to the Judge. Back at the Special Crimes Automatic, pulled out his binoculars, and settled in for the
one of his known associates, a guy named Jerry Kottwitz. Bureau, Robert “Bob” C. Bennett and Johnny Holmes wait. Sam, too, lurked somewhere nearby. The undercover
Like Frenchie, Kottwitz was a fence, but he also liked to If the cops wanted to take down a dirty judge, the pondered their predicament. officers were in place on the inside. The prowl cars were
gamble, and he didn’t gamble for nickels. Kottwitz was a $60,000 was going to be their problem, but Sam and on high alert but out of sight. Bob and Johnny were
big game hunter. The local circuit wasn’t terribly robust, Earl realized they had a more immediate concern: A short time later, Bob and Johnny left the office and near enough the location to manage the operation, but
and most of the players were familiar with one another. Ed Riklin might have been full of shit. Riklin was the only headed to the bank. far enough away to avoid making themselves witnesses.
Kottwitz explained to Frenchie that he knew a guy who person with whom Frenchie had spoken. They had no Team members were able to establish radio contact
knew a guy. solid evidence Judge Bates was involved in anything more Leaving no doubt as to their commitment to the and determine that Earl would have the only eyes on
sinister than card games. His complicity and corruption investigation, when they arrived at the bank, the two men the exchange. Shortly before 9 a.m., Frenchie left his
could have been specious bravado. Riklin could have been co-signed a personal loan for $60,000 of “flash money.” pawnshop and drove across the street to the bank.
The guy Kottwitz knew was Ed Riklin. Riklin had a day job
as a salesman for National Auto Maintenance. He was making it up, with Frenchie his unwitting mark. Still, the Together, Bob and Johnny personally guaranteed the
also known to Vice to be a bookie and a gambler. He, too, stakes were too high to fold their investigative tent. With repayment of the funds. Without imparting any revelations At about the same time, Bob got a call over the radio.
frequently appeared around high-stakes poker tables. The Bennett’s approval, they put Frenchie to work to gather to bank officials, they asked that they be given the
guy Riklin knew was Judge Garth Bates; the very judge more evidence. proceeds in cash. The caller was Debbie Burkhalter, an Administrative
with the power to determine Frenchie’s fate. Riklin and Assistant for Special Crimes. She said it was urgent she
Judge Bates were incredibly close—like father and son. On March 10, 1976, Frenchie was taken to a local doctor’s When they returned to the office, Bob handed the money speak to Bob. She was concerned her integrity was being
According to Kottwitz, Ed had negotiated bribes for office. There, a cast with a hidden transmitter was encased off to Bill Hubble, one of the team’s investigators. Hubble tested. She’d found money on the copy machine—ten
Judge Bates in the past, to make cases go away. Suddenly, around his arm to record any impromptu meetings. The carried the bundled stacks of hundred dollar bills into the neatly arranged hundred-dollar bills—and she wanted to
it seemed like serendipity had smiled upon Frenchie’s little pawnshop was bugged, and Sam and Earl monitored each copy room and arranged ten bills atop the scanner glass. report it immediately. She thought it was some kind of a
problem. and every scheduled meeting. Copying ten bills at a time, he made sure to copy every sting. She, like all but the chosen few, had no idea what
serial number of every bill, so they could prove any monies was underway that morning.
Though his involvement was short-lived, Kottwitz was The Detectives monitored more than just meetings. With recovered were those that were borrowed from the bank.
the critical link that set a ball in motion that would wreck the scope of their investigation widened, Bennett assigned While Hubbell was making copies, Bob was working the Bob put his head in his hand.
lives and careers and rock the foundation of the halls of three trusted investigators to the case. Ken Rodgers, Bill phone. He was on the line with a manager of the Northwest
justice. He made contact with Riklin, on Frenchie’s behalf. Hubbell, and D.I. Baker worked with Sam and Earl to keep National Bank, where Frenchie kept his accounts. Their Apparently, Bill Hubble had made sixty copies on the
After some haggling, an agreement was reached. For tabs on Ed Riklin, who lived in an apartment located at offices were inside the Northwest Shopping Mall, across machine, but he’d only remembered to remove the bills
the princely sum of $150,000, Riklin promised Frenchie’s 2320 McCue, near the Galleria. From March – July of 1976, the street from Frenchie’s pawnshop. Bob rented a safety fifty-nine times. The bribe would be short by $1,000.
charge would die an untimely death or, at a minimum, he they watched the traffic into and out of Riklin’s apartment deposit box in which Hubbell would deposit the money,
would do no worse than probation. from a parking garage just north of the residence. They early the next morning. Over night, the cash was stored in That’s when Ed Riklin arrived.
spent long hours watching through binoculars and taking a safe inside the Special Crimes Bureau.
Frenchie was gutted. He knew there was no way he could pictures of everyone they saw. Judge Bates, they noted, Earl watched as Riklin met Frenchie outside the bank.
raise that kind of capital in time. Still, the alternative was was a frequent visitor. Still, that alone proved little. Riklin While Bob and Johnny were dealing with the money, Sam After a brief exchange, Frenchie disappeared inside. As
CONTINUED : WAR STORIES : HONOR AND THIEVES

prison. He made a risky decision. He decided to cut out had managed to insulate Judge Bates from any of his and Earl were preparing for the bust. They would have he waited for Frenchie to emerge, Earl saw a remarkable
the middleman and approached Riklin on his own. He illicit conversations, but with time running out, there were undercover officers inside the bank, a surveillance team thing.
admitted he couldn’t get his hands on that kind of money. decisions that needed to be made. outside, and marked units on standby. Sam and Earl would
With Kottwitz out of the picture, he hoped for a lower position themselves in unmarked units in the mall parking Judge Bates, in his black Cadillac, wearing a red ball cap,
price. They discussed the available options. For dismissals, The agreed-upon exchange date had drawn nigh. lot, and they wanted a helicopter. When they approached had just driven by.
they still charged a premium. Frenchie could only afford Chief of Police, Pappy Bond, about the “Fox,” he informed
probation. Ultimately, he was able to negotiate a price of It was July 15, 1976. Once they crossed the Rubicon, the them it was unavailable; it was being used on a cocaine
Earl got on the radio and surprised the team when he
$30,000. For that, Riklin promised Frenchie he’d have his problem was they knew they could only make a case bust. At the last minute, the Detectives were able to
said, “the man just showed up.” Everyone knew what
probation. against Riklin. They had countless hours of recorded procure a DPS chopper to cover them from the sky.
that meant. Earl thought Judge Bates was “jiggering” the
conversations, but the closest Riklin had ever come to mall parking lot, or casing the location for the presence of
mentioning Judge Bates by name was by reference to Their plan was simple: Frenchie was going to meet Ed Riklin
Not for the first time, “the party,” or “my friend and your friend,” or “the big at the bank, go inside to make his withdrawal, and meet
law enforcement. After making a few slow circles, Judge
Sam and Earl proved to be Bates parked in the spot directly in front of Earl’s position.
boy.” They felt sure he was doing the Judge’s bidding, Riklin back outside, where the money would change hands. Another man was in the Cadillac with Judge Bates. James
the thorn in Frenchie’s side. but the only way they were going to be able to prosecute At that moment, the arrest team would swarm them. H. Brown, a long-time friend of the Judge who had worked
Judge Bates was if they were able to flip Ed Riklin. Once as his accountant, and at that time, was working as his
Soon after they agreed on the $30,000, Riklin reneged again, they were confronted by a familiar failing. Everything was set.
on the deal; $30,000 wasn’t going to be enough, he said. probation coordinator, was in the seat beside him. Like
Since Sam and Earl had sicced Oncken on the case, Riklin Earl, they were positioned directly behind Riklin. Unlike
They didn’t yet have the money. The exchange would take place the following morning, at Earl, they appeared to be there to cover his six. Judge
claimed Judge Bates was going to have a tougher time
9 a.m. Bates got out of the car, casually scanning the parking lot.
extracting probation. He was still willing to do it, but they
This time, there had been no do-gooding citizen willing
wanted to double the bribe. For $60,000, Frenchie could
to lend them the cash. The District Attorney’s Office had The next morning, August 16, 1976, Earl, in an unmarked Incredibly, he walked to the car directly behind his—Earl’s
still avoid the penitentiary. Riklin had relayed this up-of-
40 41
car—and leaned against the front bumper. Fortunately, Nothing. Everyone with a badge and gun flew out of the building their efforts, he knew he could easily justify probable
THE DEFENDER / SPRING 2018

THE DEFENDER / SPRING 2018
when Judge Bates had turned towards his car, Earl had and converged on the little apartment at 2320 McCue. cause for the Judge’s arrest. He saw Investigators, Baker
slid off the seat and sank into the floorboard, out of sight. The entire team was deflated. Earl saw Bob and tried to Later, Earl estimated ten to fifteen officers, along with the and Hubbell, ahead of him on the sidewalk. He shouted
Quietly, Earl relayed to his team that he no longer had lighten the mood, DPS chopper, were able to make the scene. at them to detain Judge Bates, but they didn’t hear him.
eyes on the exchange. Despite the intensity and confusion Clearly, Judge Bates could sense what was happening.
of the moment, Bob made the call for the arrest team to “At least they didn’t get away While they were en route, one of Riklin’s neighbors He put his car in reverse but was blocked-in by a vehicle
stand down. Before any arrests were made, he wanted to noticed Rodgers and the other officer with him, outside behind him.
be certain the money had changed hands, and he wanted
with all $60,000.”
of the apartment. The neighbor saw that both men were
to see whether Judge Bates would insinuate himself armed. They were in an undercover vehicle; neither was Earl was fifty yards away.
further into their trap. Bob and Johnny had personally guaranteed the repayment
in uniform. The neighbor couldn’t have known they were
of the flash money. As it stood, they were on the hook for
members of law enforcement. Worried, the neighbor went He was still holding Riklin’s useless shotgun, dirt clogging
$59,000. Somehow, Bob didn’t see the humor in Earl’s joke.
Slowly, Earl eased back up in his seat and looked over the inside and called Riklin. its barrel. With his badge in his other hand, he broke into
dash. a sprint. Judge Bates was stuck. When Earl skidded to a
They all considered their options. They didn’t believe
Riklin was terrified. He thought it was a double-cross; he stop outside the driver’s side door, Judge Bates had rolled
Judge Bates or Ed Riklin were on to them, so there was
Ed Riklin was gone. no reason to believe their suspects would do anything
was sure Frenchie had sent the men there to rob him. down his window.
He went into his closet and retrieved a chrome-plated,
drastic. They expected the men to return to their normal
Earl had missed the exchange but watched as Judge sawed-off shotgun, and charged outside to confront the
routines. That meant if the Judge weren’t going to work,
Bates got back into his car and reversed out of his spot. As two men.
he might simply have gone home.
he left the mall parking lot, Earl saw that Judge Bates was
following Riklin. Both were heading back into town on Old Outside, Earl stepped out of his vehicle.
They needed a pretext to call him at home.
Hempstead Highway. Quickly, Earl radioed the update.
He’d parked down the street, away from Rodgers and his
Suddenly, Earl’s humor and Bill Hubble’s mistake sparked
Bob radioed back for Earl to maintain his position. “cool car.” Earl’s car was more conspicuously coppish.
a fortuitous epiphany. After the bust had gone south,
Suddenly, the front door opened and Riklin was there,
Frenchie had joined Sam and Earl. He was still with them,
Earl overheard the traffic as Bob confirmed with the wielding his shotgun.
at Special Crimes. A plan was hatched to have Frenchie
DPS chopper that they had not witnessed the money call Judge Bates at home. He could claim to have just
changing hands either. With growing panic, Bob ordered realized he shorted the bribe money by $1,000. He could Earl started to run as Riklin started down the sidewalk.
officers from the parking lot into the bank to determine assure the Judge he’d make him whole. He could admit it Ahead of him, Bob Reese made it there first and went to a
whether the undercover officers had been able to see the was a simple mistake and ask the Judge if they still had a knee maybe ten feet from Riklin, badge in one hand, pistol
exchange. Within seconds, the payoff was finally verified. deal. in the other, screaming, “Stop! Police!”

Bob screamed into the radio, “Fall on ‘em!” Bob worried it would raise suspicion; that the Judge would Riklin leveled his shotgun.
wonder how Frenchie had been able to procure his home
Earl jammed the gear into drive and screeched out of phone number. Sam and Earl thought the adrenaline and Reese pulled the trigger.
his parking spot and hit the Old Hempstead Highway at
CONTINUED : WAR STORIES : HONOR AND THIEVES

panic of being contacted at home by a defendant from
nearly one hundred miles per hour. He radioed to the DPS whom he was taking a bribe would countermand any calm Earl flinched,
chopper for a location on the vehicles. For an interminable reflection. With no other ideas, they began working to but all he heard was an empty click.
second, there was radio silence. Finally, the chopper pilot secure the judge’s digits.
came back on the air. By then, Riklin could see the swarm of uniformed officers
When Frenchie called, the Judge’s wife answered. Politely, advancing on him. He threw the shotgun into the flowerbed
He was following the wrong car. Frenchie asked if he could speak to the Judge. She put off the side-walk, where it stuck in the dirt, barrel first. Earl
him on. Once again, Sam and Earl were right. Judge Bates rushed past Reese and pushed Riklin into the wall. Just
The DPS guys were from Austin; the pilot didn’t know was clearly rattled. He spoke quickly, trying to get Frenchie behind him, Sam and a cadre of officers sprinted up the
the area. He’d picked a car to follow, but he’d picked the off the phone. sidewalk. In his haste, Sam barreled through Earl and into
wrong one. Ed Riklin and Judge Bates were gone. The Riklin; placing him under arrest.
money was gone. The team was apoplectic. Earl’s heart Frenchie feigned panic and asked whether he should
Judge Bates, in handcuffs

sank. hire a lawyer. Judge Bates told him, “You don’t need any With Riklin secured, Earl re-holstered his weapon,
lawyer. You just deal with Ed. I’ll help Ed. And I’ll help you.” stepped off the sidewalk, and retrieved the shotgun
With no one to follow and no one to arrest, the team Frenchie profusely thanked the Judge for his help. Judge from the flowerbed. Earl looked around them; the scene “Your Honor, you’re under arrest,”
regrouped at Special Crimes. Their first order of business Bates made his allegiances clear when he said, “I’m doing was chaotic. Earl shouted.
was to try and locate their suspects. They called the 174th this for Ed Riklin.”
District Court. Employees there assured them the Judge Suddenly, he spotted a familiar black Cadillac. Epilogue
had left that morning and had not since returned. They About the same time, Ken Rodgers called.
radioed Ken Rodgers, who was set up with a surveillance Judge Bates had just turned onto McCue. With a sense of On July 16, 1976, Judge Garth Bates became the first
team outside Riklin’s apartment. Ed Riklin was home. alarm, Judge Bates had stopped in the middle of the road District Court Judge in the history of the State of Texas to
and was watching the scene. Earl didn’t hesitate. Through be charged with Bribery. Once he was detained, Earl
42
Nine days later, on November 11, 1976, Bates was
THE DEFENDER / SPRING 2018

convicted. The jury sentenced him to eight years
confinement in the Texas Department of Criminal Justice.
He remained free on bond while his appeals were pending.

On July 11, 1977, the Supreme Court of Texas affirmed his
removal from the bench of the 174th District Court.

Evidently, they did read the papers.
On January 10, 1979, the Court of Criminal Appeals
affirmed his conviction. On October 25, 1979, Bates was
sent to prison; however, after serving only four months
Judge Bates’ Mugshot
of his sentence, District Court Judge Thomas Routt
granted Bates “shock probation.” He was released from
searched the Judge’s coat. Inside, he found twenty-nine
prison, and the balance of his sentence was probated.
hundred dollars. There was also a deposit slip inside the
He successfully completed his probation and was
coat pocket that showed a deposit of eleven hundred
discharged on November 10, 1987.
dollars that had been made at the First City National
Bank—where Judge Bates did his banking.
Ed Riklin’s case was also tried to a jury. He, too, was
convicted. Riklin was sentenced to four years in prison.
After arresting Ed Riklin, Sam searched his apartment.
Like Bates, Riklin only served four months of his sentence.
Inside a pillowcase, he found thirty thousand dollars in
Like Bates, Riklin was also granted shock probation. On
cash. Focused on Riklin, Sam had no idea Judge Bates
October 13, 1986, he successfully completed his probation
had arrived on scene or that Earl had arrested him. He
and was discharged.
wouldn’t hear of the Judge’s arrest until leaving the scene
with his prisoner.
Nukie “Frenchie” Fontenot and Howard Pope both
received immunity from prosecution in exchange for the
After the dust settled, officers were able to determine
testimony they provided at the various trials that resulted
what had happened after Riklin, Judge Bates, and Brown,
from this investigation.
left the mall parking lot. The three men drove to the office
of James H. Brown. There, Riklin and Judge Bates divided
the cash: Riklin took thirty thousand, leaving Judge Bates On December 10, 1979, Michael Gregory Todd, “Yukon
with twenty-nine. Judge Bates immediately handed Brown Eric,” was convicted by a jury and sentenced to forty years
ten thousand dollars with instructions on what to do with in prison.
CONTINUED : WAR STORIES : HONOR AND THIEVES

it. Brown left his office and drove to the bank, where he
purchased a cashier’s check in the same amount. The Steven Roy Clements was also convicted by a jury and
check was then delivered to a title company, as deposit for sentenced to life in prison.
the purchase of the Beacons Field Apartments, a property
Judge Bates hoped to buy with a group of investors. Detective Sam Nuchia worked for the Houston Police
Department from 1967 until 1984, leaving as a Deputy
Ultimately, officers were able recover all of the $59,000 Chief. After finishing law school, he was hired as an
Frenchie had provided to Ed Riklin; Debbie Burkhalter Assistant U.S. Attorney for the Southern District of Texas.
provided the rest. All of the cash was matched to the serial In January 1992, Mayor Bob Lanier made him Houston’s
numbers of the bills Robert “Bob” C. Bennett and Johnny Chief of Police, where he served until January of 1997
Holmes had borrowed. when Nuchia was elected as a judge to the First Court
of Appeals, where he remained until 2008. While on the
Judge Garth Bates’ case was assigned to the 208th District bench, he authored the opinion that overturned the
Court. On July 21, 1976, he was indicted by the Grand Jury. conviction of Andrea Yates.
On August 18, 1976, a jury was selected, and he went on
trial for Bribery. On November 2, 1976, while his case was Detective Earl Musick remained with the Houston Police
on trial, Harris County voters elected Garth Bates to return Department until 1998. After finishing law school, he was
as Judge for the 174th District Court. hired by the Harris County District Attorney’s Office, where
he worked as a prosecutor for four and a half years. In
Evidently, they didn’t read the papers. 2003, he opened a criminal defense firm with his daughter,
JoAnne. Earl became HCCLA President in 2011. He is still
in private practice, today.
SPRING 2018
THE DEFENDER
PO Box 924523
Houston TX 77292-4523