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cD jet B) Sy DESEO RO Rieke Ren) DANIEL D. HOROWITZ, III” & ABRAHAM, WATKINS, NICHOLS, SORRELS, AGOSTO & FRIEND ARE PROUD TO SUPPORT THE HARRIS COUNTY CRIMINAL LAWYERS ASSOCIATION SORRELS + AGOSTO + FRIEND. Since 9 800 COMMERCE STREET HOUSTON, TEXAS 77002 FOR INFORMATION OR ASSISTANCE WITH PERSONAL INJURY 713.226.5142 OR TOLL FREE 800.870.9584 MATTERS, CONTACT DANIEL HOROWITZ AT 713.226.5142 WWW.ABRAHAMWATKINS.COM or dhorowitz@abrahamwatkins.com PROUDLY ASSI * Board UA MEMBERS IN ALL PEI Injury Til Law by the Texas Boar JURY MATTERS. aN os 13: 18: 20: 24: 31: 32: 34: 39: ‘Strategy: 1 CLE Update +A Word from the President by Earl Musick 2: Winning Warriors 2: HECLA News Round Up 11 :: Welcome New Members! 11s: Fall Picnic! 12 :: Honoring our Fallen Brothers & Sisters :The Plea Strategy: How to Persuade Your Capital Client that Resolving the Case with a Plea is in his Best Interests by Kathryn Kase litigation Can Help: Looking Beyond the Punishment Phase by Frances Y. Bourliot :Here to Help: Harris County Public Defenders Office by Mark Hochglaube ‘HCCLA Ethics: 2 25 Ethics by Robert Pelton May a Lawyer Electronically Record a Telephone Conversation sy Grog Vtazquer 27 :; Here Be Dragons: Internet Marketing for Honest Lawyers by Mark Bennett osing Battles, Winning Wars by Joseph W. Varela :Making Cases into Motions by Patrick MeCann ‘Harnessing the LSI-R 36 :: Sample LSI-R Questions by Edward Mallett & Sarah Wood :HCCLA Extras Ad Rates New Member Application © rosso TALK SHOW Hosted by Todd Dupont Thursday Nights @ 8pm Houston Media Source Comcast (Channel 17) AT&T U-verse (Channel 99) www.hmstv.org/streaming, htm ia es FREE :: Attorney Ready Room Ue R Ue nS Chee CH CCU SUC Com Cee We PCNA m esc ee ume es NCCC Ra variety of topics taught by experienced attorneys. ea UU cm ae Tee SCR me cme aD available courses. Lee ee UU RUC Ld CAR ex ELL ‘The Harris County Criminal Lawyers Association (HCCLA) stands ready co serve not only its members, but also che accused, We are here to ensure zealous adeacary, due proces, and justice for persons accused of crimes. ‘Our entire criminal justice system is founded on the zealous advocacy of the accused, due process for defendants and justice for those accused. IF we, as defense lawyers, fil in performing four sworn duty, justice will also fail and innocent members of society could be convicted of crimes they did noc commit. ‘There is no greater injustice than to unjustly deprive an individual of his life or his liberty. ‘We are often placed in & postion to stand up against judges snd even prosecutors who would deny due process and justice. ‘We lawyers no longer stand alone. We have HCCLA standing ‘with us to protect our rights and achieve eue justice. While some prosecutors claim to “wear the white hat” and “bring justice’, chey can often mean “seek convictions” and “being punishment”. Too ofen judges claim to be "rough on crime but often treat the accused as “convicted” in order to move a dlocket. We all know the person taken into custody is more likely co enter a ple bargain thar gets them out of custody guickly. ‘Throughout my career, I have respected those lawyers who fight for cheir clients; chose who zealously advocate for their clients, fight for due process, and demand justice! Lawyers like Dick DeGuerin, Mike Ramsey, Racehorse Haynes and Bob Tarrant, to name only a few of the many great Haris County lawyers, who have fought hard and earned respect hhave all r00 often called to task judges, prosecutors and cops sho violated the Constitution. Not only do lawyers fight to protect the system, HCCLA stands and fights alongside our ‘members. You all remember the practice of incarcerating defendanes who came to court without a lawyer. This practice became s0 widespread hat it almost seemed the law. Judges or coordinators would give the defendant a reset’ to hire a lawyer. Ifthe defendant appeared again without a lawyer, the judge revoked the bond and cook the defendant into custody. Remember those times? Well, it never quite seemed to change. a word from our president eal Whusich Several years ago, during Troy McKinney's term as president, HICCLA condemned this long standing practice and authored 1 resolution to end ehis practice, The resolution was posted and circulated co all siting judges in Harris County. The resolution provided case law condemning this practice? Years laer, this resolution was resurrected and cieculated again to all sitting judges, Things still didn’t change. Even though the law was clear (and still is cleat), defendants were (and are) still being deprived of their due process rights by being placed in custody because they were without «lawyer. (Our resolution maintained that we would take all reasonable and necessary actions to end the unconstitutional, illegal and unethical practice of depriving defendants their liberty simply because they did not retain a lawyer. In taking all reasonable and necessary actions to end this “unconstitutional practice fairly recently under Robb Fickman’s term (2006-2007), we were forced to file a complaint wich the Judicial Conduct Commission (“Commission”) against a sitting, ‘riminal district court judge addressing this very conduct. ‘Again, some things never change. Shortly ater being sworn in 18 your president it became again necessary to file yer another complaint on a criminal district judge for placing an accused person in jail simply because she did not have an attorney present, In this instance, it was visiting Judge Robert Jones, sitting for the Honorable Herb Richie in the 337th District Court, who refused to follow the law and continued this dishonorable practice. When the attorney failed to appear, Judge Jones addressed the defendant and inquired as to her attorney's whereabouts. When she replied her aetorney was in another town or county, Judge Jones ordered her into custody, despite the face that she properly appeared before the cours. ‘Thankfully several of our members witnessed this conduct and were able to provide affidavits for our complaint to che Commission, Unfortunately and horrifically, the defendant ‘was deprived ofher liberty until Judge Richie returned to che bench the following Monday and reinstated her bond. Later all criminal charges were dismissed against the accused and she was released from her bond. Can you imagine showing up for court, a8 required, only to be taken into custody because your lawyer wasn't present? ‘we ese Sex fr soiy sna ch ations [Not only were the judges placed on notice we would no longer tolerate this unlawful abuse of the accused, Robb Fickman approached and advised Judge Jones he could not revoke her bond just because she die not have an attorney in Court. The Jadge told Robb he was not revoking her bond for that reason and gave Robb no other reason. Ie is importane co nore, he did not lise i the public record or on the court's docket any reason ther inco custody. Ina similar case the appellant court said, “We also note tha, altbough it isnot shown in the record that the trial judge revoked appellant's bail solely due to ber attorney's rene, we would disapprove of such practice inthe trial ont if bey do wc. After filing that complaint, we received yee another complaint ‘on visiting Judge Robert Jones. This time it seems while sitting jn che 248th District Court, he placed another defendant into custody, and cold one of our members the defendant would not be released until he retained an attorney. We are now forwarding another wienes’s sworn affidavic to che Commission to urge swift action as this practice continues regularly. HICCLA has had a significane impact on the criminal jus system in Harris County and we will continue working to support the criminal defense bar and our members in seeking justice for the accused, Uneil the unlawful practice of placing the accused in custody because they have no lawyer stops, we have no choice ut to keep bringing attention of the unlawful acts 0 the Commission. ineador v. State, 78o S.Wad 836 (Tex. App. Houston fi4th, Dist.} 1983, pet. red), stating a trial judge may not revoke a person's bond because chat person failed to hire an atcomey, and ‘trial court may noc even order a person to hire an attorney a8 ‘ condition of bond, “tae, Stats, 39 SW094 373, (Tex. App. Houston fist Dist] 201 Cer Paro BT Tell Owned & Operated Se ne » Inclusion and/or exclusion zones emcee cc ete eee et aero as »No phone line required J oat eultagemereert rere eR cath oriaeal festectedt Poe Sci Bee aces ay Years neath ic) Call Shannon or Shaun Le MC Cl) iJ io Cee ace Dee e esr CMON esta) Pearse tl TTT LD es Partners in crime Matt Sharp and Mike Driver keep knockin" cases out of the park. They filed a writ in Judge Fields’ court arguing counsel was ineffective in guilty plea negotiations because prior counsel said a plea would not result in deportation, This team went on to secure an Austin County Not Guilty for their firefighter client charged with criminal mischief. Matt Sharp went on to prepare his .19 breath test case without the assistance of an expert and won! And, Mike Driver went on, to secure a Not Guilty in the 263rd for his client charged with, possession of cocaine. ‘The jury got it right ater Marcos Adrogué and Marco Sapien, pointed them in the right direction in a DWI case where the client was pulled over for “resting his eyes” in a parking lot. ‘After admitting 2 beers and pulling in to buy more beer, officers uickly arrested the suspect. Marcos did a great job discrediting the officer and his inferior investigation Congratulation to Nick Hughes for getting a difficult ‘manslaughter case reversed and remanded on PDR for harm analysis in the trial court. Austen Hobbs did his homework and convinced prosecutors in, the 180th to dismiss his client's first degree felony steroid case. State's offer was 10 years TDC. Incredible work! No stranger to success, Danny Easterling grabs a few more awesome wins of late which include convincing the State to dismiss his client’s felony possession of marijuana where there ere no affirmative links and getting a habitual robbery case plead to 6 months in county jail. He does it all! Continuous aggravated sexual assault of a child is always a difficult charge but it’s that much harder when your client is, innocent, but Gilbert Villarreal methodically directed his, client toa Not Guilty verdict inthe 248th, Jed Silverman takes a victory in Court 15 on an assault-family violence case. The complainant wasn’t credible and the jury didn't buy her version of events. A really great outcome for his, client! Michael Pham is picking up speed with a DWI dismissal in Court 14 after a hung jury (5-1 split for Not Guilty). ‘An unbelievable Not Guilty by Fred Dahr when the arresting officer identified another female sitting next to his client! This “Matlock moment” won’t work for everyone, but Fred took it to the bank and walked hs client on her DWI in Court. A creative genius! Joaquin Jiminez sliced and diced the State's case on a DWI 2nd and charmed the jury in Court 4. The State's “slam dunk” ‘missed the basket when the jury returned a Not Guilty. Federal cout victories? Yes, they exist! Tom Berg and Gus Saper took one home with hard work, skilled argument and incredible teamwork! This ease involved alleged false statements against one of the government's own and they stil lost!! ‘Who says young lawyers don’t win big? William “BIN” secured relief for a parole on a wrt of habeas corpus in Judge “MeSpadden's cour. This case follows the CCA's recent holding that sex offender conditions cannot be used retroactively. This case was unusual Because the CCA actually had to withdraw their initial denial of the writ after the wrong findings were inadvertently signed. The CCA sent it back and after a hearing the judge recommended relief ‘The incredible Kate Shipman won a hung jury in a difficult murder tial in Montgomery County where the infamous prosecutor was annoyed tha the case Was being tried as it was “incredibly obvious that she is guilty”. The jury had plenty of| doubt and wasn’t convinced ofthis “obvious guilt” With a litle “the hand is quicker than the eye” magic, the elite defense team of Dick DeGuerin, Brian Wice, and Cat Baen, witha major assist from jury selection guru Robert Hirschhorn, and behind-the-scenes ai from Sean Buckley and Carmen M. Roe, won a hard-fought acquittal for famed hand surgeon Dr. “Michael Brown in his felony family violence ease. ‘Who says you can’t beat City Hall? Vivian King did when she ‘volunteered her time to fight for due process for Councilwoman Jolanda Jones in a tumultuous political envionment! The DA investigation found insufficient evidence to prosecute. CONTINUED: WINING Warrlors President-Elect Chris Tritico brought his clients home for the holidays by convineing Judge Gray Miller that no supervision was necessary and a fine would be sufficient in his federal immigration case. This, the largest worksite enforcement case in American history which took over five years to bring to trial, involved 1,180 illegal immigrants and tax fraud. With persistence, Chris convinced the goverament to dismiss the indictment and allow a plea for a petty misdemeanor, Randy Martin and Sarah Wood worked hard, did the research and convinced Judge Campbell o grant their motion to suppress. Randy Martin, with an assist from Nick Hughes, convinced the jury to give his client probation on an aggravated robbery in the 338th, The state considered nothing but pen time. This, victory was also made possible by the hard work and incredible mitigation evidence put together by Frances Bourliot. Melissa Martin got PDR granted after a dismissal from the First, Court of Appeals on her client's right to appeal. The certification, stated her client had no right to appeal and Melissa successfully, argued that this waiver was invalid because it was executed at the time the defendant plead but prior to sentencing. We should be hearing more on this one! ‘The always-successful Brian Wice convinced the Fourth Court of Appeals, in a published opinion no less, to reject the State's, appeal of the granting of a motion to suppress in a DWI case fom Kerr Cou. eff Greco keps ‘em coming with yet another DWI vitory in Court 2, Mark Thiessen boldly refused a Class C open container offer for his DWI client in Fort Bend County and instead waited patently forthe granting of is Motion to Suppress! Vice-President Todd Dupont teamed up with Tate Williams and secured a hung jury in an 8-day felony murder trial in the 338th, Deseribed by onlookers as an “epic battle” this fight will, continue to rumble another day! Always quiet and under the radar, Chuek Noll heard those magic words, Not Guilty, in state jail court with the jury deliberating a mere 20 minutes, © wens Fort Bend County didn’t know what hit them when Jed ferman and Lee Cox went into battle and won a DWI Motion to Suppress. Jed educated everyone, including the arresting officer on the law: just crossing the line with both, tires is not sufficient reasonable suspicion. Apparently some interesting text messages were flying around the DA’s office after this victory! With a lengthy battle up through the CCA, James Stafford brought home a Motion o Suppress in a dope case in Livingston where his client's business was searched, initially with consent, but thereafter became a fishing expedition for police which he angued exconded the scope ofthe consent. The CCA agrsd! The State mistakenly started an aggravate asl by treat il ith Pattl Sedita by telling the jury “this one will be easy”. Boy were they wrong! The jury didn’t find it easy or obvious and gave a lesser of deadly conduct. Jen Gaut got a directed verdict of acquittal from Judge Watson in Montgomery County Court | on a boating while intoxicated case. Judge suppressed everything, including a breath test after she convinced him there was no reasonable suspicion for the detention! We can't say enough about the incredible talent and extraordinary skill of Anthony Osso and Daniel Cahill who secured a Not Guilty on capital murder. Being the overachievers they are, they pushed forward to secure a 7 year sentence for ‘murder and probation for tampering. Trial work is hard and these two warriors are putting in the work! The indispensable Franklin Bynum won a contentious motion, ‘to suppress in Judge Ellis’ court after he convinced the judge that the officer’s pat-down search was unlawful. One day officers just might lear they cannot search everyone for “safety”. ‘Taking the moming off from his new job at the PD's Office, ules Johnson makes time for an acquittal! Despite the fact that his client admitted on the stand to lying to the police and having, variety of prior convictions, the jury took Jules's explanation, of reasonable doubt to heart and eame back with a Not Guilty! We didn’t know he could keep it quiet, but Steven “Rocket” Rosen secured a directed verdict of acquittal ina difficult DWI in Court 15. In anything but Rocket style, the details remain, confidential Paul Kennedy, assisted by Zinn Brown, secured a beautiful ‘two-word verdict for his client on a DWI in Court 14 With tons of lawyers not talking to their clients about immigration consequences, Stan Schneider chalks up another appellate win on a Padilla writ out ofthe 6th Court of Appeals ‘Three days of battle bring George Jacobs and his client a Not Guilty in a DWI case in Court 14. ‘Congratulations to Luci Davidson who achieved @ hung jury on a really dificult aggravated robbery case in the 183ed District ‘Court. Luci is making the state work double for this one! ‘Using a combination of carrot (Rule 35) and stick (writs, one in ‘local state case and one inthe federal case), Norm Silverman has saved a young man named "Happy" from spending every day of the rest of hs life in maximum security federal prison. Advocate extraordinaire, Joe Gonyea, wins two writs in Court Lon actual innocence and a motion for new trial in the 183rd. ‘They tried to keep this one under wraps, but Chabli Hall gets 2 35-minute Not Guilty. This young lawyer is certainly one to watch! ‘The dynamic duo of Grant Schelner and Jose Ceja received a ‘Not Guilty for ther client in Court 1 on a DWI with bad driving facts. Yes folks, driving bad does not equate to intoxication! ‘The recently married, beautiful bride, Daphne Pattison convinced Judge Guererto to grant her out of time motion for new trial, vacating her client's 8 year aggravated sentence! Daphne was then able to secure probation for her client. Daphne credits the success of the 2nd Chair Program and her partnership with Yexe David Cunningham and Feroz Merchant worked together to get a motion to suppress granted in the 176th. In both preparation and presentation of this case David was deseribed ‘as “amazing”! Some motions to suppress are won with a grant, but Juanita, Barner was so convincing she didn’t have time to finish her argument before the State dismissed on a cocaine possession in the 208th! Jeff Purvis had time to spend on our listserv while he hung up ‘a jury who were 5-1 for acquittal. Apparently a pesky cop lover ‘on the jury was the kink inthis chain, but the jury foreman was clear they were impressed with Jeffs skills! ‘Another client has his life back thanks to Juan Guerra, Jr. ‘who got a dismissal on charges of aggravated sexual assault ofachild. The DA dismissed charges in this high-profile case ‘when the DNA evidence did not support the prosecution. See folks, innocent people get arrested on a regular bas ‘The always-feisty Eddie Cortes pulled another Not Guilty out of the jury box on his client's DWI case. Interestingly, the jury panel included a woman who losta friend to a drunk driver and a lady who was married to an ex-DWI officer! Danny Easterling and Diana Olvera had a huge victory in a difficult capital murder case involving a Mexican national accused of murdering her 14-month-old daughter by throwing. her to the ground. After much hard work and a thorough mitigation investigation, this dynamic duo negotiated a plea to the lesser charge of injury to a child in return for a 40 year sentence, ‘A group of prosecutors gathered to watch what they assumed ‘was a clear victory forthe state in Montgomery County Court 3, What they didn’t count on was the ineredible lawyering by ‘Tyrone Monecriffe and Josh Zientek. The assault case involved a black female that allegedly assaulted a white retited deputy sheriff. In a bold move, they addressed race head-on with the all white panel. Jayson Booth and co-counsel got a hung jury (5-1 for not guilty) in Court 8 on a charge of interference with duties of a public servant. The client was a passenger in a car pulled over for DWI thatthe officer said came at him “aggressively” while hho dealt with the DWI In one of the biggest victories of the season, Dane Johnson and Leslie Johnson challenged the outcome of dozens of DWI ccases in Harris County by challenging the so-called “BAT “Vans”. Thank you to these winning warriors for bringing such aan important issue to light. This is a battle we all continue to fight and we will lok for more ofthese victories in the coming. ‘months. ht CONTINUED: WINING warrlors Bill Habern and Scott Pawgan continue to make law and create ‘major shifts in the structure of parole law in Texas. In their most recent victory they convinced the CCA that the parole board ‘cannot brand a prisonor as a sex offender without conviction for 1 sox-related crime, The Texas Parole Board has now started removing the sex offender status of thousands of parolees who ‘were never convicted of sex crimes. ‘The one and only Tyler Flood worked hard to take a predatory cop off the strets after that cop victimized his client. It's not often that any lawyer can get an officer in front ofa grand jury and take his job. Paul Kendall, with the help of Cynthia Henley, took on a difficult aggravated sexual assault of a child case and walked away with probation for the client in the 208th Being no stranger to these results, John Denholm took two ‘more wins! First, a Not Guilty in an assault case where a teacher was accused of assaulting a student — the defense: educators right to discipline! Second, a dismissal in an aggravated assault cease where the complainant originally claimed the client pointed a shotgun at him This one took a litle creativity and a Brady hhearing wherein the prosecutor was called to testify that the complainant had admitted he lied to police yet she had failed to disclose itt a charity for the defense of the indigent Never another sleeping lawyer... What can you do to help? Visit our website at www.gracelaw.org. ‘The always-incredible Kent Schaffer partnered up with Nicole DeBorde to work their magic in getting relief for their client in the 337th district court. Assisted by the impeccable work of Brian Benken, Kent and Nicole convinced Judge Herb Ritchie to grant a motion to dismiss for pre-indictment delay. Doug Murphy got a 24 minute Not Guilty on a .17 DWI in CCCL 3. During the cross of the TS, Doug, having established a bad observation period with another witness, asked the TS. if that would invalidate the test? After a pregnant pause by the TS, Doug said "it's ok, you can tell us!" ‘Congratulations to Erie Davis who fought hard for his client and obtained an excellent result. Facing a litany of really awful, ‘charges that could have kept him in prison for life, the pimp got 40 non-aggravated years, Awesome work in extremely adverse facts, Montgomery County hears another Not Guilty at the hands of Judy Shields in a DWI 2nd in Court 4. It was question of ‘whether the jury had to believe either there lying eyes or the trooper! Rounding out this edition, Paul Schiffer and Wendell Odom. ‘grab probations for their clients from a jury on a racing case ‘which resulted in death, With the state only offering pen time, this pair took it to the people. The people probated! That's « ‘win for these clients and for justice! weeremER cd ‘The 3rd Annual HCCLA Fall Festival was a smashing success this year! Over 100 members and their fiends and families converged on the downtown Market Square Park area. Many even brought their canine family members. Tails ‘were wagging as litte kids in capes and costumes rubbed furry eats. A Halloween costume contest brought out the kid in everyone, with Todd Dupont elaborately dressed as Mark Twain and Tyler Flood appearing as a blood sucking, ‘vampire cop. Members received custom made pienic blankets adomed with the HCCLA logo and spread out in the grass fora relaxing time. Everyone enjoyed a delicious buflet from Market Square Grill including hot grilled mini-cheeseburgers ool fruit salad, and watm cookies. Alter lunch, everyone took turns piling into a horse-drawn carriage adorned with flowers for a tour ofthe city in the crisp fll ar. Mana Yegani Honoring Our Fallen Brothers and Sisters On September 8, 2011, over 100 lawyers, friends and family gathered to honor criminal defense lawyers who dedicated themselves to defending the Constitution and the rights of the accused. Periodically, HCCLA holds a special memorial ceremony in the Criminal Jus- tice Center's trial ready room on the 7th floor. This year, Judge Michael MeSpadden was our guest speaker and told the packed audience how appreciative he was to be given the chance to honor his many friends who had spent their careers in the criminal courts buildings. During this year’s ceremony, 21 names were added to our plaque which hangs in the trial ready room. The ceremo- ny was very moving with family members taking pictures of the plaque and other displays HCCLA had arranged. JoAnne Musick took some great photos which are posted on the HCCLA Facebook page. Robb Fickman read two tribute poems. All 99 lawyers’ names were read aloud by Earl Musick, who paused to allow Todd Dupont, Roni Most, Raquel Clendening and. ‘Audley Heath to step forward and honor their fathers. Chris Tritico closed the ceremony with a tribute to the ‘many guests who had taken time from their busy sched- ule to honor these fine men and women on our memo- rial plaque. In addition to Judge MeSpadden, Judge Mark Elis was also in attendance. The entire ceremony lasted just 30 minutes with refreshments and fellowship following Since the ceremony we have received so many positive comments and lots of thanks from the family and friends of those honored. Memorialized Defense Lawyers Frank Alvarez Jr Stuart Kinard Frank Briscoe Benjamin Grant Levy Charles C. Cates Miron A. Love John R. Coe Robert “Bobby” Most John L. Denninger Joe Roach Jr. ‘Thomas Barker "Tody" Dupont Jose H. Rojo Rosemary Garza Felix Salazar William M. “Bill” Hatten Don Shipley Marguerite Hudig Robert J. Sussman Phil Jenkins Robert “Bob” Tarrant David Anthony Wills Kathryn M. Kase / Interim Executive Director, Capital Trial Project / TEXAS DEFENDER SERVICE © Howto Pesuade Your Capital Client that Resolving the Case witha Plea isin his Best Interests. 4 ‘The strategy for convincing a capital client that a plea bargain is the best way to resolve his case begins at, well, the beginning of the case. Capital defense lawyers who Teave construction of a plea strategy for the end of the case squander the precious commodity of time and risk much. The client who has not been consistently schooled that aplea is a good resolution is very likely to balk when presented with a less-than-death plea bargain. While defense counsel can appreciate the value of a life plea, the idea of spending the rest of your life in a very small space will not likely Appeal to the client unless counsel has spent a great deal of time putting the client inthe proper frame of mind The objective of all plea strategies is to reduce the harm eventually suffered by the culpable client. Nowhere is the potential harm to the client greater than in a death penalty trial. In Texas in the past 10 years, prosecutors have obtained convictions in 99 percent of the capital cases tried to death qualified juries. Death sentences have been imposed on average in more than 80 percent of those eases. These are casino odds that heavily favor the house. ‘The ABA Guidelines obligate us to seck resolutions short of death’ Thus, like any other strategic goal in a capital case, the plea strategy merits detailed planning, continual updating, ‘and team discussion, Teams who fail to make a plea strategy a priority do their clients a disservice. THE PLEA STRATEGY’S ELEMENTS Everyone on the team must agree that a plea constitutes a ‘good resolution of the case. Ifeveryone on the team docsn't believe that, now is the time to find out wity. If the team ‘members cannot agree that a plea is best resolution, obstacles to this agreement may include (1) there has not been enough investigation; (2) the team is “too busy" to consider a plea now; (3) the team has concems thatthe client will never accept a plea; (4) one or more team members ae too focused on going to tial. ‘The plea strategy must include a commitment to do the work that allows the client to understand you're being truthful ‘when you talk to him about the need to plead. Clients are enormously concemed about lawyers who appear tobe selling them out. The client will likely not appreciate counsel taking bout a plea too carly inthe relationship. ‘The team should perform the fact investigation, even though 20 nuns observed, and 14 video cameras recorded, the client commiting the crime. Ifthe client s going to trust his lawyers enough to take a LWOP plea then he is going to have to see a willingness to challenge the prosecution’s case at every level. The defense team that wants a plea must build trust by litigating discovery, getting the DNA tested by defense experts, and ensuring that the ballistics are independently analyzed. Be sure to report the results of your factual investigation to the client. Let him know that no stone will go untumed and the state's evidence will be challenged at every opportunity. Keep him involved in the case by getting his input on evidence which refutes the State's case. Where the State’s evidence cannot be refuted, show the client how it will be used against hhim and how the team will attempt to minimize its impact, Don’t assume the client understands how evidence will be used. Even the most “frequent flyers” inthe criminal justice system have mistaken ideas about how capital trials proceed Some clients may know how the evidence will be used but cannot bring themselves to admit how powerful the evidence actually is. Remember: involving the client inthe results of the factual investigation goes along way to helping the client understand tha lightning isn’t going to strike at tril and he'll be set free. Crime scene and autopsy photos are a great way of bringing the client (and ifnecessary, his family or support group) to the realization as to how serious the case against himis fier the defense team has concluded that the case should plead, team members should communicate with the client at ‘every meeting that a plea is a good result. Every team member ‘must be on board with this plan. Team members who are not willing to deal with plea issues at every meeting endanger the likelihood of the case settling. There are right ways and wrong ways to discuss a plea with a client and if any of the lawyers are not sure what fo say, the team should brainstorm ways fo: (1) initiate the discussion ofa plea, (2) discuss the advantages toaplea, and (3) bring the client to the point where he can See. that if e wants to live, he has no choice but to plead. continued THE PLEA STRATEGY How to Persuade Your Capital Client that Resolving the Case with a Plea isin his Best Interests Communication among team members about the plea strategy is as important as communication conceming theories of culpability and sentencing. The team should agree on the “hooks” team members will use in conversation, ‘with the client. For example, team members must remind the client that the only choices for a jury are life-without-parole and death. In a punishment retrial case, you might remind, the defendant that “there is no freedom at the end of this, case” and that his only choice is life or death. The death penalty prosecution scheme in Texas is so stacked against the client that in order to get a life sentence, the defense team. ‘must essentially try a case where everything goes just right. Experienced trial lawyers know that it is rare that everything, in a trial goes “just right” and that is one reason why life verdicts are rare. ‘The client must see that if the case is tried, he wins with a life verdict. Why not take a life verdict now ‘and avoid the risk of death verdict? Every meeting with the client should yield a memo — even, if it's in email-message form — that is sent to every team ‘member so everyone knows the status of plea discussions, with the client and new issues raised by the client in ‘opposition to a plea. Keeping everyone updated guards, against “team splitting,” which can occur when the client pits one team member against another. Particular personality types (e.g. borderline personalities) will try to spit the team, feven under ideal situations. The team should not provide such a personality type additional opportunities by failing to ‘communicate with each other or by not presenting a united front on the wisdom of the plea. TLeam the differences in how death-sentenced, LWOP and term-of-years prisoners are held in the system and ‘communicate that tothe cient. Too often, death row inmates say they would have accepted a plea bargain had someone ‘explained to them the significant differences in how prisoners are held on death row (23-hour-per-day lockdown, no TV, no contact visits ever) and how prisoners are held under a less-than-death senfence. Take the time to explain the “differences in housing, visitation, and availablity of parole If you are unfamiliar with the differences in custody levels, ask capital habeas lawyers or read the current Classification, Plan published by TDCJ. If you can get photographs of the various prison levels, use them to illustrate your discussions. Otherwise, a blank sheet of paper and drawings of cells, pods, reereation and visitation arcas can assist in showing clients, ‘and their families in understanding just how TDCS imprisons, ‘those on death row and those serving non-death sentences, Don’t accept““walk me or fry me” bravado. This is a product, of jailhouse conversations with other prisoners who have no idea what death row is like. The bravado does not last long and, when faced with an execution, most if not all death row prisoners want that life offer back on the table. Make sure ‘you explain how executions are set and carried out, and how ‘quickly the State can set a date for that execution. Thanks to AEDPA, a death-sentenced inmate can go from sentencing to execution in as little as six years. Many prisoners think they'll go out in a “blaze of glory” with news stories on all, ‘TV channels. Counter that by asking the client to name the last three people executed in Texas. ‘And, for that rare client who can name the last three people executed by the State, focus on the quality of the news, coverage. Usually, the coverage focuses on the heinousness of the crime committed by the condemned, the suffering of the victims, and how much the condemned deserved to die. Expect resistance from the client. It isn't human nature to ‘give up, even in the face of the worst odds. Casinos bank on, this inclination, Even the Stage IV cancer patient (who has alot in common with our clients) wants to fight the disease. he prospect of spending the rest of one’s life in a small cell is, not an appealing one. The initial response of “I would rather die” isto be expected from most. However, don’t let the client’s resistance discourage you from pursuing a plea. The image in your head should be ‘water dripping on rock. You're the water, the client is the rock. Slowly, you're going to wear him down until that rock ooks like the Grand Canyon. The situation may be that the client, on some level, knows thatthe plea should happen, but ho is relying on your persistence to wear him down. THE GLIENT 1M BENIAL It is not unusual for a person who has committed a horrible crime to be unable to acknowledge his behavior. Very few of us can imagine performing a heinous act, much less carrying fone out. Not only must the client have to come to terms with his behavior, butif thee isa plea he must necessarily acknowledge to others (including his mother) that he is responsible for the death of one or more people. Denial may also be complicated by mental illness and/or mental retardation. ‘Those with mental illness often are in denial as to the symptoms. of their mental illness in addition to their involvement in a capital crime, How can we get through to the client who for whatever reason is in denial of his criminal behavior? Counsel can look to suggestions offered by Xavier Amador, Ph.D., in his ‘book I Am Nor Sick! I Don’t Need Help!: How to Help Someone with Mental liness Accept Treatment (3d ed, 2010). This highly readable text offers a method of structured communication for the mental illness patient in denial. In truth, though, the ‘methodology can be utilized with anyone who is in denial about any aspect of his life Dr. Amador proposes, as a way of effectively communicating, with a mentally ill patient who is in denial, that the listener engage in: (1) “reflective listening” to the client's story, (2) empathize with the patient's situation, (3) agree on certain ‘mutual goals,* and (4) partner to achieve those goals. Using, this process of structured communication with capital clients can help ereate or strengthen a sense of trust between the defense team and the client. Reflective listening in the capital context involves two. important steps: (1) the defense team will provide the client with an opportunity to tell his story, and then (2) aftr listening, patiently, the team member will retell the story (warts and all) back tothe client, so that he knows thatthe eam member 4s listening to him, taking him seriously, and understanding, What the client is saying." When summarizing the clients story and delivering it back to him it is important to include those portions of the story thatthe team member views to be without merit The team member’ eannot be judgmental at this point because the clients story represents how he views the crime and his situation, Ifthe team member and the cient argue over questionable facts, theories or defenses then the barriers to communication and trust go up and agreeing on a plea becomes less likely." ‘After the team member has heard the client's story and repeated ithack to him, iis important forthe team member to convey a sense of empathy withthe client so that he eels understood and respected. A simple “I can understand how you might fee! that way” may bea zood way to begin to convey the team member's apparent sense of empathy with the client. Empathizing with the client may not be to difficult as none of us would want to trade places with the elient under any circumstances! eA UI ETE At this point, the team member should seek-t0-shift the™ © conversation to the client's goals, with an-eye towards © identifying goals tha both team member and the lien cane = ‘agree upon. The team member might ask “What do y want your life to be like when this ease is over?” AL t point, the team member will be faced with answers that may) be unrealistic, such as, “I'll be fiee because 'I-fave beet” Sa. found not guilty” of disheartening, such ns:*1-want WB: ‘on death row." For the client with unrealistie answers f= is important to not judge, but to further explore he why the > client has that goal and how he sees it being achieved. Ask the unrealistic client who wants to be acquitted, “Howido.~ = ‘you see yourself being acquitted?” Ask also, “If you were : found guilty, what is your goal?” Ask the client who says & he sees himself being placed on death row how he sees that, happening; ask him how he thinks a death sentence might _— be avoided. For all clients, be prepared to ask open-ended, ‘questions in order to understand how the elient believes the goal is achievable, The team member ean likely agree with, ‘any positive goals shared by the client. If no positive goals ‘can be agreed upon, the team member ean work backwards; with the client and agree on what they do nof want to be. 4 result of the prosecution. The point is to develop some. mutual ground upon which where the parties ean agree: The last step is for counsel to “partner” with the-elient i achieving the goals agreed upon.” The-clientsean be given agrecable tasks to achieve the goal, It maybe as, simple. as behaving in. jail, not talking to the media, taking his prescription medications, a willingness 16 Took at the rime scene photos, a willingness to talk about.how the evidente will be presented at trial, The evidence at trial ean certainly relate o a mutual goal that the client be prepared to hear the evidence in the way in which the state will present it should: the case go to trial, Another common goal might be that the prosecution should not win, At some point you can remind the client that the prosecution only wins witha death verdict and a death verdict is only possible if the ease goes tatrial: ‘Timing is critical in developing the telaionship. with, the client, While most defense teams will not begin ther cient > relationship by talking about a plea, the team must not ~ .” hesitate to communicate the possible outcomes of the case to the client and the opportinities to avoid certain outcomes ‘At the same time, clients must be assured thatthe team is litigating zealously on his behalf. This assurance may figt ‘comme until after the elient watches the lawyer litgite some pretrial motions; the message for defense teams is that they tnust litigate the ease upfront. Those who delay the litigation _ ‘of pretrial motions lose opportunities o establish credibility in the clint’ eyes. Even the loss of ageressivellitigated = motions will send a double message tothe client (FYis-_ team's fighting For hin and (2) even eos wie ea result in defeat fn ie ® 2 continued THE PLEA STRATEGY How to Persuade Your Capital Client that Resolving the Case with a Plea is in his Best Interests ‘The client’s understanding of how difficult obtaining a life ‘verdict in Texas (especially at the retrial) is necessary to be able to realistically appraise an offer to plead. Where the client is impaired as a result of mental itiness ora cognitive deficit, seek appointment ofa consulting expert who can help you communicate with the client. Do not hesitate to make the court spend money on this type of consultation, ‘Our clients are complex and most (if not all) members of the defense team didn't attend medical schoo! or psychology ‘graduate school. Where the defense team needs assistance 10 effectively represent the client, counsel should make this need the judge's problem, and not a problem thatthe defense must shoulder. THE FAMILY. ‘The client’s family and supporters must also understand that, 2 plea isa good resolution. Often, the client feels that the only ‘way to win support from his family and friends is to assert his innocence. It is difficult forthe client to acknowledge the hhorrible facts of the crime and even more difficult to admit to, farnily members that he is responsible, This happens even in ‘cases where guilt is assured because the erime was recorded ‘or the client's DNA is found at the scene and on the vietim. ‘Often, family and fiends don't know all the details of the client's involvement in the crime, will rely on the client's, assertions of innocence, and then use that claim of innocen to bolster the client's decision not to plead. The team must ‘determine how it will respond to family and friends who assert, the clients innocence and who think thatthe best way to fight, ‘that battle isto insist on a trial. Consider secking the client's, permission to discuss the evidence with family and friends, ‘AS With the client who eannot make the difficult decision, to plead, offer to take the difficult act of communicating to family and ftiends how bad the evidence is out of the client's, thands by doing it for him. A surprising number of cients will, authorize you do this because they don’t want to admit their guilt to thei friends and family. ena Another strategy is to use publicly known evidence (e-., evidence set out in prosecution filings or police publicity) to show family and friends that the prosecution can prove guilt. The defense team does not have to say thatthe client is ily Instead, team members should show how the prosecution will prove guilt and that the defense lacks erediblerebutal evidence, Crime scene photos and autopsy photos can be very persuasive to family members when the realization hits that the jurors will be seeing this disturbing evidence. Other times, family and friends wil say things su his decision. Whatever he decides is fine with me. distancing maneuver and it leads to death. When confronted with this maneuver, you must bring the speaker back to reality by pointing out that the client cannot be “abandoned” to make this decision by himself. If there is any feeling at all for the client, the family and fiends must work together to save his lite Discuss what a punishment trial looks like and give the family ‘member or friend an idea of what he'll be asked to testify to at that trial, Family members who know they'll be called on 10 discuss uncomfortable or shameful moments of family history can be motivated to push the client to plead. They can see this as a “win-win" situation. They don't have to testify and embarrass the family and the client gets to live. In their own ‘minds, they can satisfy themselves that they helped to save the life oftheir loved one. Point out that, if the client is sentenced to death, family and friends will have new obligations to support the client in his life on death row. Ifa family member has difficulty understanding what will be demanded of them, consider arranging with a capital habeas lawyer for a family member of executed offender to speak with the client's family. Explain ‘what visitation procedures are like at death row. Make sure the family members and friends know that they will never touch their loved one again, Make sure they understand how difficult life on death row is for prisoners. Knowledge, though heartbreaking, can empower the client's family and friends 10, seek a life-saving resolution for the client. BE PREPARES TO LITIGATE 10 GET THE PROSECUTION TO OFFER A PLEA Texas prosecutors get convictions on 99 percent of the cases tried to death-qualified juries; they get death sentences 85 percentof the time, These high numbers provide a disincentive for prosecutors to waive death and plead the case. The way to get the recalcitrant prosecutor to the plea table is to make him believe he'll lose at trial. Do this by litigating pretrial motions. Make sure you're engaging in a thorough mitigation investigation so that you have something to talk about when you sit down with the prosecutor, ‘A number of barriers can arise between the defense and the plea. Do not let egos become a barrier. The plea is not about ‘you, not about how much you dislike the prosecutor, or how ‘muuch you would like to beat him or her at trial (because itis not likely to happen). Prosecutors like to win, just like defense lawyers do, Be ereative in pointing out ways thar this plea ean be a win for the prosecution while identifying ways to provide political cover to the prosecutor in the difficult case. Give the prosecutor something to “hang his hat on” in agreeing toa plea. Similarly, there’s nothing wrong with giving the prosecutor a public relations angle that can be used to justify the plea to the news media Aggressive pre-trial litigation can wear out the prosecution. Prosecutors usually have plenty to do besides working. on ‘your ease. The more you make a pest of yourself the more ‘the prosecutor will want to get rid of the pest. When you are assured that your client will take a plea, let the prosecutor know that “this case can go away today”. This realization will be in the back af the prosecutor's mind the whole time he is ttigating with you and as you wear her out, the idea of “making the case go away” will become more attractive ATIENCE Anything done right takes hard work, time and patience, Getting the plea is no different. Develop your plea strategy carly on. Hasten slowly. NAS An inheritance nobody wants. a Awe Toas " See American Bar Association, Guidelins fr the Appoint anid Performance of Defense Counsel in Death Penalty Cases; Guideline 10:91 (The Duty o Seek an Agreedetpon Dispostion) & = Commentary (Rev. ed. 2003), reprinid in 31 Hofstra. Rev, 913 (2003) (the obligation of counsel to seek an agreed-upon disposi ‘continues throughout all phases of the ease”), © Xa Ando, MINOT SICK! DON"T NEED LP HOW TONELY SOMEONE WITH MENTAL ILLNESS ACCEPT TREATMENT 72 ded 210) (oligos ‘pach hac op alla ne rea nied el qos tO pO ee om heaal fd, at 80-84, a td, "The Focus here fs onthe “team member” and not merely coun : ‘because clients often choose to talk about dispsition with others on. the team, Therefore, all members of the defense team must understand the plea strategy and be prepared to communicate wth the cent in a siractured way. "Edt $1 (explaining that reiteration ofall key fats oF client/paticn/aved one's story is necessary to create asa environment between the speaker and listen) Hi, 981079. dat 15.6 fee red flag forthe defense team. Such stents can indicate tha es Clients severely depressed or incompetent, adit te defense ea = 40 to detemineithis ste cae. so, counsel ist ake Steps ie ‘aconsiting exper and to consider, after consulation with the expert = and the Year, whether legal remediés should Be pursued ‘When ficed with ellen’s stated desire be plage on death ros, same defense team members may be templ to conclade that ~ ain ‘tigation need not be developed or thatthe defense team must facilitate the desire wo be sentenced to death. In fet, the AA . Guidelines are clear thatthe defense team mist work to prevent ai voluntcering at all levels ofthe case. See American Bar Association, {Guidelines forthe Appointment and Performance of Defense ‘Counsel in Death Penalty Cases; Guideline 104 (Relationship withthe Client) & Commentary, Guideline 10.11 (The Defense Case ‘Concerning Penalty) & Commentary, and Guideline 10.13.1 Commentary (The Duties of Post-Conviction Counsel) (Rev. s 2003), reprinted in 31 ofsraL Rev. 913 (2003). A clientwha uy States he wants to be sentenced to death presents a challenge forthe’ ee defense team to solve rather than ajustifieation for ending Tite-aving efforts. © Hat 122, how mitigation can help: LOOKING BEYOND THE PUNISHMENT PHASE Frances Y. Bourliot / Assistant Public Defender, Appellate and Mitigation / HARRIS COUNTY PUBLIC DEFENDER'S OFFICE Mitigation is an offen overlooked area in non-capital ‘cases —while most attorneys see this stage of investigation as part of a “hope for the best but plan for the worst” mindset, it can be an essential tool in not only gaining your client's trust but also being able to rationally evaluate the pros and cons of going to trial. A thorough mitigation investigation is as essential as a thorough fact investigation. Done properly, mitigation will help your client trust that you have his best interest in mind and can greatly facilitate any discussion you have with your elient about entering a plea. Every good mitigation investigation should have three goals: {0 gain trust, to humanize, and to evaluate your clients case. gaining trust ‘Whenever a client is making a decision that risks years of thei lives itis critical that they trust their attomey. There are ‘many ways to gain aclient’s trust; mine happens to be “you show me yours and I'l show you mine” approach, I share ‘more information about my own life with my clients than ‘most attorneys because I have found my background allows iy clients to identify with me, trust me, and ultimately share their most private information with me, I fiken my interviews to therapy and, quite often by the time we have finished, the person I am interviewing may feel like they've just visited fn incredibly intrusive and inquisitive shrink, The key is to develop a technique that makes YOU a human to your client, Itis only at this point that your client and his or her family will stop seeing you as a lawyer in a suit and will open up to ‘You and tell you what you nied to know. A very successful and wonderful defense attorney once told me that he feels that his success is tied tothe fact that he ends up loving each client in some way—I completely agree. Your client has to now that he is not just a number to YOU either. He has to hhave alittle pieve of your heart, to know that ifhe ultimately humanizing your client ‘The purpose of mitigation isto paint a picture of your client’ life forthe court. Your jury needs to know how your elient came to end up sitting in the defendants chair and the factors that caused him get off track. Although conventional wisdom holds that proper punishment evidence should portray your client asa wonderful person, well loved, and well especied, hhave found this “Yop down” approach is often not very helpfil Imagine you are a juror, have just found @ person guilty of murder, rape, aggravated assault, ete..and now you sit inthe punishment phase hearing how Johnny had a loving. home, ‘went to church every Sunday, and was a helpful and kind child. You would likely wonder how in the world a person ‘with all ofthis support and love could possibly commit such an awful crime, I prefer a “bottom up” method and I start fiom birt and progsessthrouah a clients life tothe present day delving into both the clients sorrows and successes. You ‘must know the good, bad and ugly about your client in order present the most compelling arguments in his defense, and the jury needs to feel like it has @ complete picture of your client before it will sympathize with him. using mitigation to evaluate your client's case ‘This is one of the most important benefits of @ thorough and honest mitigation investigation, As I gather information about ‘my client’ life, | start to chart what kind of mitigation case | ‘would present fo a court, Sometimes, the (lack of) mitigation evidence makes it perfectly obvious that the client would be better off avoiding trial. But unless you have a complete mastery of the evidenee and your client's trust, your client may feol you are taking the easy way out, Being able to thoroughly explain from both a guilinnocence standpoint 2 detides to goto tral you wil fight just as hard for him gpd mitigation standpoint is therefore crucial. y ‘you'd want someone to fight for you ti The success of a mitigation investigation during trial i preparation hinges completely on the amountof rrusthat you. | q have built up with your client, When you have established a , i hhuman relationship with your elient, when you have shown! a + him that you are indeed on his side, it is much easier for him | ¢ to understand and accept your recorrimended course of action, Rua ; a E R Oris t & Family owned and operated since 1971 Bilingual staff with over 100 years of experience Shaun, John, Shannon and Shelby License # 74346 “+ We advocate a paid in full attorney is a defendant’s best defense 3 Non-Arrest Bonds - we accompany your client to the jail or from the courtroom 609 Houston Avenue 713.227.3400 Houston, Texas 77007 burnsbailbonds@yahoo.com Z Interlock An Automobile Ignition Interlock Provider Se John Burns David Girard 609 Houston Avenue 713.223.4424 Houston, Texas 77007 ezinterlock@yahoo.com HERE TO HELP harris county public defenders office by Mark Hochglaube Less than five years ago the Harris County Public Defender’s Office was nothing more than a nebulous ‘concept with little traction. Even though every other urban area in the nation had already established a public defender system, the thought that defense attomeys might be an integrated part of our courthouse institution was viewed with skepticism and it seemed nearly everyone believed the establishment of such an office was a long time off. So today, as Ist in the Harris County Public Defender’s Office ‘on the 13th floor of the courthouse, it is hard to fathom all, the progress. Our sixteen thousand square feet of space has been built out with a state of the art computer networking system, two kitchens, three conference rooms, a library, an office supply station, five bathrooms, a receptionist lobby, and multiple work stations and storage facilites. ‘The appellate division is fully functioning with eleven attorneys and our trial division, with eleven more, is in place and has begun accepting new cases. The juvenile division has completed its initial hiring decisions and should be fully functional in December. By the close of 2011 the entirety of our office’s initial development plan will be staffed and in operation. To my mind, the rapid actualization of our office is the most revolutionary development in our local justice system since the construction of the Criminal Justice Center and the very existence of our office is proof that Harris County is (finally) embracing a more balanced perspective of justice. Along with developments like the Star Court, the Veteran’s Court and the Mental Health docket, the creation of the Public Defender’s Office demonstrates the county’s growing acceptance of ideas that were once considered outlandish and “defense oriented.” ‘Our community has certainly taken great strides in recent ‘years and, more than any other organization, HCCLA has led the way. The significant changes in our community's perspective that led to this office's existence would not have occurred without HCCLA’s effective advocacy and, for that, the Harris County Public Defender’s Office offers its thanks. As our office transitions out of its development phase and our significant resources become useable, we want to make sure HCCLA members reap the benefits of their organization’s advocacy. Although our primary mission will always be the quality representation of our clients, the PD's Office is also ready and willing to offer previously unavailable forms of assistance to the defense bar at large. We have a crack team of experienced appellate attorneys, ‘who will be happy to take your calls whenever you have an emergency trial question, or need researching assistance with @ discrete legal question. Likewise, our trial division ‘members are happy to help and all have extensive trial and courtroom experience. They will be happy to discuss local court practices, judicial punishment tendencies, and any other questions ‘you may have. Additionally, our administrative personnel can provide informal office services to members of the bar in need. We can a make a private room available for your use when meeting with clients or investigators in the courthouse. With HCCLA’s support members of the bar can retrieve last minute faxes, copies and email print outs, from our in-house machines. Also in conjunction with HCCLA, we will be housing in our receptionist area a ‘motions rack with boilerplate triplicate copies of the most commonly filed motions. ‘When necessary you can grab a blank copy and tailor it to your needs. Additionally, we will be building upon HCCLA’s testimony bank and compiling a testimony and brief bank of our own. Soon our briefs will be accessible and topically organized on our website for your researching, purposes. In similar fashion, we will have transcripts of the testimony of police officers and other frequently recurring, ‘witnesses so that you can better prepare for impeachment and cross examination. By the way, if you have interesting transcripts or briefs that should be added to our collection, bring them by so we can include them in our posted collection. ntinued ‘HERE TO HELP S harris county public defenders office Another resource available to you will be access to public defender interns. Our office has created an office intemship program using each of Houston’s three law schools and, by January, we expect to have well screened law students available in the courthouse during business hours. If you need a second (or third or fourth) chair, or you simply want 2 less legally adulterated mind for feedback, our intems will be available here on the thirteenth floor on an as-needed basis. Along the same lines, we are happy to help with HCCLA’s mentoring program and we invite the less seasoned members of HCCLA to drop by and visit. With the concentration of defense attomeys on our floor we will almost always have someone in trial and, even if we don’t, ‘we'll at least be able to get recon about interesting trials and developing second chair opportunities. Additionally, our office will be offering members of the local bar regular, free Continuing Legal Education classes. Eric Davis and Te’Iva Bell are designing a series of trial advocacy focused classes incorporating psycho drama techniques and other skills Eric developed at the Gerry Spence trial advocacy school. Bob Wicoff and the appellate staff are planning for several appellate related classes. And Floyd Jennings will continue to provide the courthouse with criminal mental health related classes. In addition to these offerings, we have several experts on staff to help you with more specialized assistance. Those ‘of you with immigration questions should contact Franklin Bynum, our in-house immigration specialist. He will be more than happy to consult with your non-citizen clients to ensure you are not the victim of a Padilla writ Ben Giannantonio, our intemal computer systems administrator, is available to consult with you in your computer crimes cases. Ben has extensive technological training, knows ‘many other computer experts and, as a member of our office, is defense attomey friendly and easy to find, Frances Bourliot and Carmen Laffey are our resident mitigation experts. If you are looking for interesting and ‘unique ways to minimize your client's punishment they can offer their own insights or recommend other local experts that can be retained. For your assistance in handling clients with mental illness we have a staff psychologist, Dr. Floyd Jennings, as well as five mental health specialist attomeys and two staff social workers covering the misdemeanor and felony courts. They will be pleased to help expedite ‘your requests for MHMRA records and they are qualified to offer advice on the intricacies of Chapter 46, the @ wenn availability of local experts to perform competency and sanity evaluations, and the availability of community resources to help your clients after your representation is concluded. Finally, our developing Juvenile Division will soon be in operation with HCCLA’s treasurer, Steve Halpert, as chief. Once in place Steve and his colleagues will be available to the rest of the bar to offer assistance in anything and everything related to juvenile law. The Public Defender’s Office is obliged to serve the ‘entire community and the criminal defense bar is a vital and vibrant part of the community. Our intention is to do ‘everything in our power to help ensure the quality of our ‘community's representation in any reasonable way and the listed offerings are only the start of our office’s continuing, ‘commitment to the private bar. We want to do plenty more ‘and we want to hear from you about how we might best be of service. Let us know if we ought to be providing other services. If you have ideas for us, sop by any time. If you have concems or questions, don’t hesitate to ask. And if we're doing something wrong, please, bring it to our attention. In the development of an office our size there are bound to be mistakes and we want to correct them as promptly as possible. Working together, the Harris County Public Defender’s Office and HCCLA are enhancing the current defense bar's available resources while simultaneously searching and planning for new ways we can improve the system. ‘The Harris County Public Defender’s Office encourages all local criminal law practitioners to take advantage of our resourees because we want to help you help your client. ‘At the same time, we know that the proven utility of our office will validate the county’s nascent commitment to faimess in the criminal justice system. As the usefulness ‘and beneficial impact of our office becomes apparent, the ‘county will increasingly appreciate the value of quality criminal defense. ‘Over time we expect our success will demonstrate why the county should invest in other “defense-oriented” criminal Justice improvements. To this end the Harris County Public Defender’s Office offers an open invitation for all of HCCLA’s membership to come and visit us. See how we ‘ean help you help your clients, and let’ talk about how we ‘can all continue advancing the quality of justice in Harris County. i BONDS EXPERTS 113-227-1964) a ~~ 1417 CONGRESS ST HOUSTON, TK. 77002 _:;, wes @) HCCLA Ethics B Dane aera Ce Re Beng ce ae Federal law allows recording of phone calls and other electronic communications with the consent of at least one party to the conversation, This is called a one-party consent law. With the consent of one person or party to the conversation, recording the conversation is nota violation of the law. Thirty-eight states and the District of Columbia have adopted "one-party consent” laws and permi iduals to record phone calls and conversations to which they are a party or ‘when one party to the communication consents ‘Twelve states require the consent of every party to @ phone call, or conversation in order to make the recording lawful. These "two-party consent" laws have been adopted in California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania and Washingion. Consent must be obtained from every party to a phone call or conversation if it involves more than two people. Texas's wiretapping law is a "one-party consent" law. Texas makes it a crime to intercept or record any "wire, oral, or electronic communication” unless one party to the conversation consents." But, if you intend to record conversations involving people located in more than one state, you should play it safe and get the consent of all parties." ‘The law does not cover oral communications when the speakers do not have an "expectation that such communication is not subject to interception under circumstances justifying such expectation." Therefore, you may be able to record in-person conversations occurring in a public place, such as a street or a restaurant, without consent. Also, a recording device in plain view is presumed to be used with the consent ofall persons who can see it. May a Lawyer a Telephone Conversation? May a lawyer electronically record a telephone conversation between the lawyer and a client or third party without first informing the other party to the call that the conversation is being recorded? In November 2006, the Professional Ethies Committee for the ‘State Bar of Texas issued Ethics opinion No. 575 and answered the question, The Committee stated that: Ethies opinion No. 575 p.2. The Committee also stated “No provision of the Texas Disciplinary Rules of Professional Conduct specifically prohibits a lawyer's unannounced recording of telephone conversations in which the lawyer participates. ‘The Committee was ofthe opinion that the Texas Disciplinary Rules of Professional Conduct did not generally prohibit 2 lawyer from making undisclosed recordings of telephone conversations in which the lawyer is a party, provided that certain requirements are complied with. ‘The Committee cited Rule 8.04(a)(3) ofthe Texas Disciplinary Rules of Professional Conduct: "(@) A lawyer shall. not: G) engage in conduct involving dishonesty, fraud, deceit or misrepresentation and the Committee stated that it did not believe that an undisclosed recording of a telephone conversation by a party to the conversation could be termed to involve “dishonesty, fraud, deceit or misrepresentation” within the meaning of Rule 8.04(a)3). Thus, a Texas lawyers undisclosed recording of his telephone conversation with another person should not be held to violate Rule 8.04(@)(3). continued May a Lawyer Electronically Record a Telephone Conversation? ‘The Committee concluded that the Texas Disciplinary Rules of Professional Conduct did not prohibit a Texas lawyer from ‘making an undisclosed recording of the lawyer's telephone conversations provided that (1) recordings of conversations involving a client are made to further a legitimate purpose of the lawyer or the client, (2) confidential client information contained in any recording is appropriately protected by the lawyer in accordance with Rule 1.05, (3) the undisclosed recording does not constitute serious criminal violation under the laws of any jurisdiction applicable to the telephone ‘conversation recorded, and (4) the recording is not contrary to ‘representation made by the lawyer to any person. § See Sec. 2511 2} 4) of tile 18 ofthe United States Code: (@) It stall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, on, or electronic communication ‘where such person is a party tothe communication or where one ofthe partie othe communication has given prior consent to such ‘interception unless such communication is intercepted forthe purpose ‘of commiting any criminal or tortious act in violation of the Constitution or laws ofthe United States or of any State 5 District of Columbia makes i crime to record « phone call oF conversation unless one party to the conversation consents. See D.C. (Code § 23-542. Georgia makes it a crime to secretly record a phone call or in-person conversation "orgiatfng] in any private place” unless ‘one party tothe converstion consents. See Ga. Code §§ 16-11-62(1), 16-11-66, New Jersey makes ita crime to inteoept or record an ‘n-peron or telephone conversation unless one party to the conversation consents. NJ. Stat. §§ 2A:1S6A-3, 4. New York makes ita crime to record to record or eavesdrop onan in-person or telephone conversation unless one party tothe conversation conscns, N.Y. Peal Law §§ 250,00, 250.08. North Carolina makes ita crime to interceptor reord ‘any "wire, ral, or electronic communication” usless one party wo the conversation consents. N.C. Gen, Stat, § 1SA-287, Ohi law makes ita crime to interceptor record any "wir, oral, or electronic communication” unless one party tothe conversation consents. Ohio Rev. Code § 2933.52. Virginia makes ita erime wo interceptor record any “wire ora, or electronic communication” unless one party to the ‘conversation consents. Virginia Code §19.2-62 California makes ita crime to record or eavesdrop on any confidential ‘communication, including a private conversation or telephone call, ‘without the consent of all parties to the conversation. See Cal. Penal (Code § 632. Florida makes it crime to interceptor record a "wire, ‘oral, or electronic communication” in Florida, unless all parties tothe ‘communication consent. See Fla, Stal ch. 934.03. liois makes ita crime to use an "eavesdropping device" to overhear or record a phone call or conversation without the consent of all parties tothe ‘conversation. See 720 Il. Comp, Sit /14-1,-2. Massachusetts makes ita crime to secretly record an in-person or telephone conversation ‘without the consent of all partes to the conversation. See Mass. Geo. Laws ch, 272, §99, Pensyivania makes it crime to intercept ‘or ecord a telephone call or conversation unles al partes to the conversation consent. See 18 Pa.CS.A. § $704(4). Washington makes ita crime to interceptor record a private telephone cll, in-person conversation, or eletronic communication unless all parties tothe ‘communication consent. See Wash. Rev. Code §9.73.030(1). See Texas Penal Code § 16:02 (Its an affirmative defense 10 prosecution under Subsection (b) that: (4 person not acting under color of lw intercept a wire, oral, or electronic communication if the person i a party tothe communication or if one ofthe partes to ‘the communication has given prior consent fo the interception unless ‘the communication is intercepted forthe purpose of commiting any ‘riminal or tortious actin violation ofthe constitution o laws ofthe United States or ofthis state or forthe purpose of commiting any other injurious act Caveat: This analysis does not cover international phone calls or recording of electronic video communications, eg, Skype Video calling (a software application that allows users to make voice and ‘ideo call and chats aver the Internet) “ See Texas Crim, Pos. Code § 1820 (2) "Oral communication” means sm oral communication ured hy a person exhibiting an expectation thatthe communication isnot subject to interception under cireumstanoes justifying that expectation. “hep: vw lah edlibraries/ethics/opinions/S01-600/60S7S pdf “The Commie sso stated “Moreover, applicable law does not ‘enerally prohibit such recordings in Texas by a participant to telephone conversation, whether or not the participant recording the conversation is lawyer. See section 16.02 et seq. ofthe Texas Penal Code snd section 2511 of tle 18 ofthe United States Code.” Here Be Dragons INTERNET MARKETING FOR HONEST LAWYERS Mark Bennett Between the recession on the one hand and a glut of civil lawyers taking criminal cases (because they seem like an ‘easy way to turn a quick buck) on the other, it feels like it’s getting harder every year to make @ good living defending paying clients. If you're like most criminal-defense lawyers, you don’t even have a website. The Internet is uncharted territory for your law practice. You know there are clients out there somewhere, and every other day you get emails or telephone calls from people ‘who promise to get us more business on the Internet. “We'll put you on page one of Google,” they say, “we'll get you more hits," “we'll get you more leads." Could one of these callers be the cure for those down-low crowded-courthouse recession-time blues? ‘Short Answer: No. Route their emails to spam and hang up on them when they call Longer Answer As a criminal-defense lawyer, your stock in trade is not your time. You are selling your advice, yes (Lincoln was hhalf-right), and your intellectual output: your words, your tactics, and your strategies. Your most precious resource, though, is something that you can't sell: your reputation, Just as you have a reputation in the real world, you have (or will soon have) a reputation online. You want your online reputation to be as good as your real-world reputation. ‘There are paying clients online, but they don’t find lawyers the way you think they do. That is, they don’t find lawyers the way the marketers want you to think they do. Clients—sophisticated clients, clients with money—who use the Internet to find lawyers don’t google “Houston criminal lawyer” and pick the first lawyer they see. Instead, they get a few names from one place or another (including googling “Houston criminal lawyer”) and then google each one. Google your name (with the word “lawyer” if your name is a common one); what do you sce? That's what your potential clients see too. That is your online reputation. If you hire someone to do your web marketing for you, you are outsourcing your online reputation, giving someone else control over your most precious asset. Those who call you on. the phone or email you to sell their services are not lawyers. ‘They are advertisers and marketers, with litle understandi of legal ethics and litle concer for your reputation. Even if they are honest, they only want to get your name on the first page of Google search results. “Getting your name on the first page” and “preserving your hard-earned reputation’ are goals that often conflict." Do you trust the marketers? Don't. They will write badly on. your behalf, will plagiarize other people's writing, and will presenta deceptive picture of you, all in the name of “getting ‘you more leads.” T'll take those one at a time. Bad Writing. Your product is your intellectual output, including your writing, One local criminal-defense lawyer's actual website reads in part: [Lawyer] has worked in the Harris County and Surrounding counties for years to offer rigorous representation in defense of criminal charges. If you give us the opportunity, hewill leave nothing left to chance and no stone unturned in our pursuit of justice. He defends adults and juneviles against felony and misdemeanor criminal charges in state courts. Do you want potential clients—good clients, clients with knowledge and wisdom and, most importantly, ‘money—reading something like that about you? Ifyou don’t, you'd better write the copy for your website yourself But what if Tean’t write? Seriously? You're in this business and you can’t string words together into coherent sentences and paragraphs? It's probably best that you not have any more clients CONTINUED Here Be Dragons INTERNET MARKETING FOR HONEST LAWYERS Plagiarism If your marketer puts copy on your website that reads like you ‘ight actually have written it, chances are good that he stole it from someone else or recycled it from some other website he wrote. The same copy—crappy or otherwise—appears time after time afler time on commercially produced websites. Yodle is a habitual offender, selling lawyers all over the country the same cookie-cutter website with small changes to text or images, ‘Chances are that nobody cares that you ike hundreds of other lawyers, have the following reeled text on your website: In adaition to having stellar record a [typeof law] attorney, [name] has [number] years of experience, giving him the intricate understanding ‘of legal procedures necessary to develop a winning strategy for your ease Our commitment to you isto go the extra mile to win your case, and we take that pledge very seriously. So. when you [describe legal necd], choose an attorney that not only knows your rights, but will do everything in [hisher] power to protect them. Choose (name) (Actual text from a large number of Yodle websites.) But you probably don't have a “stellar” record, so the text is deceptive. Now, nobody is likely to file a grievance against you for claiming a stellar record when you don’t have one (except in ‘your own mind), but there are worse things than bar grievances. Ifyou let your marketer make false claims about you, you're lying. At best your colleagues will know that you're a fraud, At worst the world will find out, If your marketer steals your content, and steals it from the wrong person, you're in deep trouble. There are several lawyer/writers who wall pillory you if they find that you've used their writings without their permission. They have widely read and linked-to blogs, which means that Google places them hhigh in search-engine results. If they say something about you that is not nice—something like, “Joe Schmoe is a no-good plagiarizing son of bitch whom I wouldn't trust to defend my cat," it's going to tum up right where clients are looking when they're trying to decide whether to hire you. @ wens But in that scenario I didn’t plagiarize anything. My marketer did. No good. You don’t get deniability. You're the lawyer, and you're responsible for what people do in advertising on your ‘behalf. And besides. Deception ‘When someone else ghostwrites your online content, even if they do it well and don’t steal, they're misrepresenting you. Remember: what you're selling is your intellectual product. ‘Your online writing is like a free sample; the potential clients judge you on it, and should be able to trust that content represented as being written by you (for example, content ‘written in the first person) was written by you. Aside from writing, web marketers often have problems with images. More than a few lawyers have been caught using stock photos to represent them on their websites. When your website looks like this: and you're not that pugnacious-looking grey-haired white dude, you've gota problem. This, another Youle ste, doesn’t explicitly say that the sleek guy inthe grey suit is the lawyer, but that’s the implication, and it violates the Disciplinary Rules.# ‘fabricate a reputation out of whole cloth. [know people who hhave tried, and when it backfires it leaves them worse-off than if they had stayed away from the Internet." ‘keep picking on Yodle, but the names that you know are not to be trusted with your reputation either. Three local lawyers got online notoriety when FindLaw (a division of ‘West Publishing) published a website with some wikily inappropriate pictures, like this on illustrating “Child Sexual Assault & Internet Solicitition [sic] of a Minor”: ‘Now when you google the lawyers’ names, two years later, articles critical of the advertising still show up on the first page. In case you think that any publicity is good publicity: no, it’s not. This is not like TV, where people remember having seen you without remembering what it was about. "Teanga gre he nga ee move down off page one, but they'll always, be there and acy lLalways be unfavorable" Doo’t trust the marketers. Even if the marketers make wiat ‘sound like the right noises (“We are a strictly ‘white-hat” SEO firm and will never use unsavory or risky techniques”), they ‘may be promoting you by spamming blogs with comments, linked beck to your site, like this actual spam comment that HighlySearched com was paid to leave atthe top criminal-Iaw ‘blog—on bebalf of one ofits Houstoa DWI lawyer clients: The dark tint can be s method used by criminals to get away with criminal activity, so in this case it is ‘understandable that it should be against the law if tis ‘tpodark. However, many officers use this as an excuse ‘0 pull over innocent people. which just goes to show that cither HighlyScerched.com ‘are Tying (ihe truth ean be of no more than secondary importance when your highest priory is to make money) ‘when they soy they “will never use unsavory or risky ‘echniques” or they don’t understand which online techniques (ike posting idiotic “comment spam” to repulable blogs in ‘your field of practices) are unsavory or risky. Bither way, do ‘you want your reputation in their hands? ‘So what is an ethical lawyer to do, if he can’t trust the ‘marketers, those supposed expert guides to the arcane secrets, of the Internet? Pay someone to set up a website for you. Until you get your bearings, you don’t want any bells or ‘whistles. Since you can’t trust the marketers, you want to ind a web designer. You can pay more than $10,000 for this service, oryou can get the same product or better fore couple ‘grand or loss. Create 2 site for clients to find when they search for “Houston lawyer [your name],” so that you ace in ‘control of what they see frst. Write your own content. (On the Internet, content is king for two reasons. First, potential clients are looking for information; the Intemet isnot just an online version of the yellow pages, and the website that says how great you are (stellar) without ‘educating readers about the criminal-justice system* is not doing oven half its job. ‘Second, search engines (like Google, Yahoo, Bing) prefer sites with lots of high-quality content, The quality of content is measured by the number of high-quality sites that Link tot, you waite dreck (or let someone else waite dreck for you), nobody is going to read it, much less link to it, By writing your own content, you can avoid the marketers” problems of bed writing, thett, and deception, and provide potential clients with interesting, useful information that ‘demonstrates your expertise and specialized knowledge. ‘Asa bonus, if you write good content that other lawyers who ‘write online find interesting, they may link to it and discuss it. Ifpeople link to it and discuss it, more people will link to ittand discuss it, and soon it will be part of your reputation Patiently and without expectation of pay show what you now, how you think, and who you are, and—if you're worth adamn—people will find you and star to trust you. Just like {in the real world. Tell the truth, Does this really need to be said? On the Internet, nobody mows you're a dog. So what? You're not a dog, and if you lie you will get caught. Misrepresentstion is lying. ‘Exaggeration is lying. Leaving reviews for yourself lying. Pretending that you wrote something that you didn’ tis lying, ‘oven if you paid someone to write it for you. Talk to people who arrived before you. ‘That is, lawyers whom you respect in the real world who also happen to have some online presence. They aren't going to sive you rosy promises of untocking the doors of internet ‘wealth for you. They will probebly talk to you about blogging, bout producing content, about telling the truth, about joining ‘the conversation, about being patient. veep (@) @ CONTINUED Here Be Dragons INTERNET MARKETING FOR HONEST LAWYERS Finally Don’t despair. The Internet is not the Promised Land; itis the Wild West, a new world being constantly remade. Google revises its algorithm periodically to stay ahead of the marketers who ‘are trying to game it* The search-engine-optimization ticks that work for the marketers this year will not work for them next year, As Google gets better and better, content (Which is, already king) will become more and more important. Keeping readers engaged — educated and enetaned—will matter even i Potential clients are not “leads. cold-called and taken advantage of. See, eg. Glengarry Leads are suckers to be Glen Ross. Do not entrust your reputation to anyone who thinks you want “lea ji HighlySearched.com writes, “It is our highest priority is to help our clients grow their business and make more money. That is what everything boils down to and why not!” http://www highlysearched.com/about-us.himl, Why not? Because we're lawyers, different rules apply 10 us than to those selling penis-growth drugs. Since our own, highest priority is not to grow our businesses and make more money, it ean’t be our agents See Tex. R. Disc, Proc. 7.04(g): “In advertisements in the public media, any person who portrays a lawyer whose services or whose firm’s services are being advertised, (oF who narrates an advertisement as if he or she were Such a lawyer, shall be one or more of the lawyers whose services are being advertised, iv Bar rules apply to advertising “in the publie media.” Tex. R. Disc. Proc. 7.04 Y_ One Houston lawyer went a step further, and posted false negative reviews online for some of his colleagues. That did not work out well for him—two years later, a blog post asking if he’s a “total fraud” still comes up on the first page of Google results. ‘mc orenoER vi There is no safe way to remove unfavorable mentions from online, Demanding their removal—or, worse, filing suit—brings more unfavorable attention, vii The scope of this article doesn’t include a wide discussion, ‘of things like spamming that are not ethical violations, but that will bring the Wrath ofthe Intemet down on you nonetheless, viiiDiny little seeret: the guy taking $10,000 from you for website design is going to offshore it to somebody in South Asia who will design your website for $200, Lawweb.info Will help you set up a website for $20 a month, ix Don’t pay extra for a “keyword-rich” domain name, one that contains words like “criminal” or “lawyer” or “DWL" Such gimmicks are of little—and diminishi ‘compared to quality content x And maybe cn entertaining them a bit sontent in the form of increase your visibility xi Thave in mind particularly w a blog, which can—if done right onlin xii See the classic New Yorker cartoon at http:/tinyurl.com/3zvjind, xiii The more gameable a search vo searchers. wis, the less useful it is strategy Losing Battles, Resistance is a form of action aimed at destroying enough of the enemy's power to force him to renounce his intentions. Clausewite! ‘We've ll heard the old cliché about winning battles and los ‘vars in all manner of contexts. Let's turn the eliché around and discover if it is possible for defense lawyers to win wars by Tosing battles. Ithas been observed many times thatthe Ameticans never lost ‘abate in Viemam2 The U.S. and its allies had at thee disposal allthe sophisticated weaponry that a superpower's money could 3 officers who had succeeded in World War ind Korea. Some of the brightest minds in America, both military and civilian, assembled in the White House to offer their advice to the political leadership? In myriad engagements large and small, U.S. forces inflicted staggering casualties on the enemy yet never seemed to get ahead. The more batles America won, the more enemy they killed, the farther away seemed ultimate victory. Ultimately US. forces withdrew in 1973, leading tothe defeat of the South two years later-+ Were the communists able to win a war by losing battles? Perhaps more than any other event, the Tet Offensive illustrates this principle. In January 1968 the U.S. mission was atthe peak oF ts strength, about 550,000 men. The world was being told that not only Was the war winnable, it was being won, with the NVA and Vietcong pushed hack on their heels by superior irepower, But on Vietnamese New Year in January 1968, Communist guerrilla forces estimated at over 80,000 attacked in over a hundred locations and achieved tactical surprise, It ‘Was a coordinated eampaign in which battles broke out all over the country. The capital, Saigon, which should have been a ‘was shaken by numerous guerilla attacks the most ing at the U.S. Embassy building, where 19 Vietcong fighters penetrated the lighily-guarded defenses before being wiped out’ Although the NVA and VC mostly stuck to their traditional hit-and-run tacties, there were atleast two protracted battles in the north (Khe Sanh and Hue) which cost many Vietnamese lives? ‘Tet was @ military defeat for Communist forces, The counterattack crushed the Vietcong guerrillas, who never fully recovered, and the loss of the big northern battles stymied regular NVA forces from invading. But on the home front, Tet strained the credibility of America’s top military and political leadership past the breaking point Ifthe Communist forces were all but defeated, Americans asked, how eould they launch a country-wide coordinated attack and fight sustained battles? American public opinion, already nervous over the ‘mounting casualties, had reached a turning point’ From then fn, escalation slowed dramatically and the U.S. began looking fora way out Joseph W. Varela ‘North Vieinam fought the war on the stratewie offensive, by ‘employing the tactical defensive. In other words, they strove to take over the entire country not by mass invasion from the North, but by fighting a thousand small battles of attrition. In doing so they wore out the Americans and achieved ultimate politcal victory Can the defense lawyer learn from Vietnam? Can lost battles ‘act your client closer to victory? Here's a small example. 1 had a client charged with two misdemeanor drug cases, Because of his record the prosecutor was offering a plea agreement consisting of jail time on one, and a sill probation on the other, This was not acceptable to the client and didn’t seem reasonable to me, considering that there was an issue withthe “plain fee!” search,* We tured the offer ‘down and set 2 suppression hearing, I expected the trial court to averrule the motion and atthe hearing, sure enough, it di. Based on the testimony of the officer, it appeared that we had ‘4 good shot on appeal, Instead of approaching the prosecutor and trying to work the ease out, I just set it for trial. Although wwe hal lost the battle of the motion to suppress, in fighting it ‘we had cost the State time and trouble and laid the groundwork for future litigation. Ata meeting a couple of weeks later, the prosecutor had re-considered, and now offered time-served on ‘one ease and to dismiss the other. This was quite acceptable to the client and we did the ples. In fighting the battle we had positioned ourselves to win the war, the objective being to get the client an acceptable plea bargain. 1 Ca von Clausewitz, On War (1832), ans, Michael Howard and Peter Pare, Princeton Universiy Press (1976). 2 This els not wwe. The NVA dosisively rn US, Fores ot of ‘RipcordFirshase. Soe Kekth W. Nolan, Ripcord Sereamie Eagles Uae Sige, Viena 1970, Presi Pres (2000) 3 David Halberstam. The Best and he Brightest Random Hous (1972). “4 Good genera istries ae A.J. Langguth, Our Vicmam: The War 19541975, Sinon & Scnster 2000}, and Staley Kamow, Viemam: 4 istry, Viking (1083) 5 The Noch Vietnmese Army is more property known es the People’s Anny of VietNam (PAVN), and the Vietcong gers were the ‘atonal Liberation Front (NLF). coin io use the common tems, 6 Dale Anderson, The Te Oforsive- Turning Point of the Pernam War, Compass Pont Books (2006) 7 Earle Ric ie, The Ter flrs, Lucent Books (1997 8 Anderson, pit 9 Minnesota v. Dickerson, 508 US, 366,113 SC 2130, 1241 Bad 334 (1993), Carmouche v. State, 10 S.W 34 323 (Tex. Crim. App. 2000). ‘wean 3) Into Motions By Patrick F. McCann It is always a nice thing when a colleague shares a hot new Published appellate case with his or her fellow defense bar members. What is even better is when the case is relevant to ‘something that is on one’s own docket. The real hurdle [for me at least] is converting a good published case into a motion that, makes sense for that case on your own docket, and your judge. So, let's break down how we as legal eagles can do this on any ‘good case, and see what makes sense in tems of cra reasonable motion ina timely and useful way, shall we? ‘To do this we will need a sample published case. ! am choosing, ‘one at random from the reading that comes out ofthe Courts of Appeals each week [available via email subscription or download ‘from their own websites at Texas Judiciary Online), so lets take the recent ease of Bryant v. State, an Eleventh Court of Appeals ‘ease from Midland, Texas, No. 11-10-00145-CR where the Court ‘of Appeals held it was an abuse of discretion for the trial court 10 adjudieate Mr. Bryant and revoke his community supervision, for failure to pay the full restitution of $197,000.00 dollars and change when the tral court did not consider the factors listed in Antcle 42,037(h) of the Texas Code of Criminal Procedure, which provides: Ifa defendant is placed on community supervision ois paroled of released on mandatory supervision, the court or the parole panel stall order the payment of restitution ordered under this article 2s a condition of community supervision, parole, or mandatory supervision, The court may revoke ‘community supervision and the parole panel may revoke parole or mandatory supervision if the defendant fails to ‘comply with the order. In determining whether to revoke ‘community supervision, parole, or mandatory supervision, the court or parole pane shall consider: (1 the defendant's employment status; (2) the defendant's current and future earning ability; (@) the defendant’s current ane future financial resouroes; (4) the willfulness of the defendant's failure to pay; (5) any other special circumstances that may affect the ‘defendant's ability to pay; and (6) the vitim’s financial resources or ability to pay expenses incurred by the vietim asa result, of the offense We should also note under the Bryant case that the Appellant hhad faithfully paid restitution of $300.00 dollars per month ‘every month for almost ten years and that the State presented no, ‘evidence of willful failure try and pay something every month, So, let us suppose that we represent a man who is on community supervision, and who was assigned twenty thousand dollars of restitution fora theft ease. @ wens ‘That man has completed a drug rchab program and has been on supervision for two years, reporting faithfully, but he has been. unable to obtain a job in the current economy. No or very litle ‘restitution has been paid. The probation office has requested and, the Assistant District Attorney has filed a Motion to Adjudicate ‘or revoke, and the trial court has set a hearing, or is going to at, ‘the next setting, How do we use this case to present a motion to the trial court? Well, every motion has some parts that are ALWAYS the same. Every motion has the cause number and style, and has a prayer ‘that the motion be granted, usualy a request for a hearing on the ‘matter, and your signature block and tthe cetificate of service. So, starting with what is always there, we know those things and ‘they should go into the skeleton of the motion. So it will look. something like this: Cause. 1234567 Inthe Distret Court ‘of Somewhere County *9goth Judicial District [orf these two] ‘Motion asking for something Respectfully submited, Attorney and signature block (CERTIFICATE OF SERVICE [We gave histo DA) State of Texas * John Doe < soepimen sur sou ct ee ere ‘There, now you have a framed house, and need to fill it with ‘the warm legal wording that will make the trial court grant your roquest. The walls and roof come next, and these ae taken right, from the ease. Since the case reversed trial court [and nothing inritates tril courts more] and since the trial cout has discretion to dismiss or deny the State’s motion to adjudicate, one can style it thusly:_Motion to Dismiss the State's Motion to Adjudicate under Bryant v. Stat, ‘Now both the trial court and the State know exactly what you ‘want, and even have the style ofthe ease to go check and see ‘whether you are making up this citation, However, you are not, done yet. ‘You should also tell the trial court why its that you ought to win under this case, and the section of the Code it cites. So, sinee the Bryant case cites Anticle 42.037(h) of the CCP, you should add the next line: “Pursuant to Bryant y. State, [citation] and Article 42,037(h) of the ‘Texas Code of Criminal Procedure, John Doe respectfully pray’ that this Honorable Court will dismiss the State's Motion to Adjudicate as Mr. Doe is unemployed, has diligently sought employment for the past ‘two years but been unable to obtain a job, and has strugeled to pay some minimal amount each month [there is over four hundred dollars of | restitution in the Court’ register or probation office restitution account} faithfully but been unable to pay the full amount of $20,000.00. See attached copies of the Courts register account statements or probs office account statements, se also the affidavits of Mr. Doe, Mr. Doe's spouse, eters of rejection from multiple companies, a letter of support from the Texas Employment Agency's counselor lane Smith stating Mr. Doe comes in every week and checks for job leads, Mr. Doe's bank records, copies of his rent and grocery bills, tc.” So, now your motion should fook like this: Cause. 1234867 State of Texas. * Inthe District Court . + of Somewhere County John Doc * 996th Judicial Diatct [or Rip these wo} Motion to Dismiss the State’s Motion to Adjudicate under Bryant v. Stat. 4 Shiflett nd why we shoul tt Pusunt Ben ie, etalon Ae 2.0 ; : Ail 42070 of th Tens ide of Crna rca, nin Dee topecly ae ete Honore Coun wil dais te Sass Motion Ajcisee is mcnpied bs digenly sept eoloymat cna tej Bn be 6 tin jb, an! he app py Ses dead moe och moni nae nn cain ae an’ i orp ran ecu bl eo teal yh fl ann of $2000, Sex ature ore oe egret sateen orpeatanocsesn ee se: the alii of Mr. De, Me D's penton sf een multiple companics, a leer of 1 ee spr rh Tens Fg Astor's cock Ine Sth ating Me. Doe comms nce ek ad hooks for job leads, Mt: Doe's ak cords ted hc records, opis of hie rn a 1 Why we ar jas ik the guy in a Ee eye Dying win depiehe Respectfully submitted, Attorney and signature block. CERTIFICATE.OF SERVICE [Weeive init DA} Request/ORDER SETTING A HEARING [We vont ic whine abo this publi) ORDER GRANTING MOTION (The Cont is tired of listening o yo, and gras this request in onder for ‘Yu to goaway and leaveitalone [Notice that I added a second section but did not fill tin yetLUnder Roman numeral I! above goes the arguments you would make, both faetwal and legal. Le. “Unless this Honorable Court wishes to suffer the same inglorious fate as that way-coffthe-reservation tral cout in Midland, it should seriously dismiss the State's motion or hold 1 hearing. on this matter because my client is almost tical to the poor schleb in Bryant, and this Court can see that from all the cool proof items we added as Exhibits, which will also be reviewed by the appellate courts." Then one can make reference to fact items in the Exhibits, such as the hypothetical spouse's cries about cold and hungry children the family will have to soll on Ehay if the court sends him away or makes them pay more restitution, or the kindly state employee who actually remembers your guy coming in and looking for ‘work and gave you an affidavit about it. Atthe end of tis, ‘one simply asks the trial court to grant the motion or set it fora hearing, So each motion you craft has two key sections that make fferent and ease specific the first explaining what ‘you want and citing your legal authority with a reference to your factual proof, and the second section [see Roman numeral IT above] containing your arguments as to why the cited authority applies, and why your persuasive facts ‘make you spevial and entitled to relief. So, its as easy as, fone [put together your skeleton}, two, [ask for what you ‘want with supporting facts and authority} three [argue ‘why your situation is similar to the facts/authority you cite). At the end of the day, a motion is not magical ~ it is simply a formal request for relief from the court with supporting legal arguments and facts that should be persuasive fo a reasonable mind. In this sense itis not unlike following a recipe in a cookbook, and like an enticing recipe it may even, ifdone well, make the State ‘ant fo taste a sample of the cooking and discuss an alternative to revocation. The things that are always present, your signature, the certificate of service, are the flour, eggs, and butter. The things that lend new flavor, the ease law, faets supporting, and citations, are thus the spices and meat in this already over-worked food analogy. Good luck, snd to finish the food analogy completely, like chicken soup, a good motion from an appellate case eannot ever hurt. Harnessing the LSI-R ‘Two years ago, while I was sitting at that long open table in the “ttle Baker Street Jail” where we have our attomey/client ‘meetings, a woman three chairs down was almost shouting atthe ‘other side of the glass divide, I couldn’t block out the noise of her questions. It was a rapid fire, demanding, interrogation. ‘When leaving, I saw a young man who was obviously ‘bewildered by the event, and trying, without visible success, 10 ‘give answers that would please the interrogator. I asked what she ‘was doing. She told me: “The LSI-R Interview." That started my interest in the Level of Service Inventory ~ Revised, What is the LSI-R and How Reliable is it? ‘The LSER is a brand of “risk assessment instrument,” a set of. questions that creates an inventory of biographical factors intended to predict recidivism. Points are assigned to each factor, and the points result in a total score, which is then categorized into a particular “risk level” of high, medium, or low. Harris County judges often order the LSL-R test prior to sentencing. Under the rules promulgated by TDCJ, probation departments ate required to administer a risk assessment instrument to each person when beginning probation or parole and to give the test again every 6~ 12 months thereafter: If you have a client whois receiving probation, being paroled, or going to the judge for punishment, they will likely be administered the LSER. Harris County has one of only three probation departments in, ‘Texas that does not exclusively use a version of the “Wisconsin instrument,” the preferred risk assessment test recognized by the State of Texas Instead, Harris County uses the LSI-R. Harris ‘County had to apply for a special waiver from the rules to be allowed to use the LSER in place of the standard Wisconsin, instrument. Whereas the Wisconsin instrument is free, Harris County has to pay the required $5.00 per use fee for the proprietary LSI-R Originally developed in Canada inthe 1970's, LSI-R materials and training are now sold by a private for-profit Canadian corporation, Multi-Health Systems Inc. (MHS.com). The MHS ‘website promotes along list of MHS products and services. The printed LSL-R Users Manual, questionnaires, nd forms can be purchased on the interet-The founder and CEO of MHS is a three time winner of the “Profit 100” award for the fastest ‘growing companies in Canada." ‘The LSE-R has received criticism for its impracticality. ‘Whereas the Wisconsin instrument focuses on 11 primary risk factors, the LSL-R is longer and purports to examine @ wrsoo By: Edward Mallett and Sarah Wood 54 factors (je, criminal history, family relationships, financial, employment, attitudes, ete). However, as Mare Levin of the ‘Texas Public Policy Foundation points out, “more factors is not, necessarily better."" A study in 2008 found that relatively few of the LSI-R factors had significant correlations with outcomes." Moreover, researchers were able to produce a dramatic, ‘improvement in accuracy by using only eight of the 54 LSL-R. factors, So with the LSLR, probation officers may be spending, ‘more time and thus more government resources to administer a needlessly inaceurate and lengthy tes. A major criticism of the LSI-R is thatthe results are unreliable because it requires too much subjectivity from the test-giver ‘The 2003 LSI-R study included an assessment of inter-rater reliability in scoring the LSL-R. The researchers had different testgivers conduct the LSI-R on the same inmates to ascertain, whether the results would be different depending on which testgiver calculated the score. The study found an alarmingly high level of disagreement between the conclusions of different testgivers. The final scores varied so dramatically that in 30% of cases the test-givers disagreed not only on the numerical results, but on whether the inmate should be classified as high, ‘medium, or low risk.* ‘The unreliability of the LSLR is not surprising upon review of the factors and questions imposed. For example, from the question, “What kind of things did you do in your leisuretime?” the test-giver is supposed to rate whether the inmate “could ‘make better use of his/her time."* The rating for this particular {actor only produced agreement between different test-givers, about 50% of the time." Also, in one of the final questions, the test giver is to inguie, “Tell me the worst thing you have done to someone.” Much room for misunderstanding exists, particularly in questions like, “What do you think of people who Tead basically conventional lives?” From these queries, the test giver is supposed to score whether the inmate's attitude is supportive of rime and whether it is unfavorable to convention, ‘Such open-ended questions are bound to generate confusion. Researchers in the 2003 study determined that more consistency between testgivers could be attained by providing the testgivers with more taining; however, even with the additional instruction, many of the items on the LSI-R continued to be scored subjectively and with no reliability They concluded, “It is critically important that staff lean to administer the LSI-R in a fashion that results in consistent scoring across staff members. Without this reliability, it will be extremely difficult to monitor the system's on-going effectiveness in properly assessing the risk to public safety." ‘The high tamover rate emongst community supervision officers ‘does not work to instil faith in the wecuracy of LSI-Rs in Harris County. Within the last free years, nearly one quater of ‘ul-time Texas probation officers have been in their curent job