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Aw ss learn about the page 2 aS FREE :: Attorney Ready Room :: Noon PAO TOO Cg Pete ees Orca y about the ARTIST Sam Pelton was awarded 1st place for his sketch in Milsap Elementary Schoo!’s “Honoring Our Veterans” student art contest. Sam is fifth grade student at Mi'sep and is a real patriot. His sketch appeared on the cover of the school magazine in honor of veterans who had children or grandchildren at his school. He is also the grandson of HCCLA Past President Robert Pelton and proudly attended his frst annual reading of the Declaration of Independence last year with his grandfather. Sam Pelton, age 10 Pictured here with Robert Pelton @ vewene CALL-IN TALK go SHOW [ees Hosted by Todd Dupont a Thursday Nights @ 8pm join us in discussing criminal justice inty with weekly s. Sponsored by HCCLA. Houston Media Source Comeast (Channel 17) AT&T U-verse (Channel 99) www.hmstv.erg/streaming.htm Stay Updated with HCCLA LA PRESIDENT Chuistopher L.Titico SE coca eS Se Ae meen bed TREASURER Stoven H. Halpert COIS simone Pe eon So a heed Ports re air ‘lea FandallL.Kainen Prone PAST PRESIDENTS 1971-2011 aaa are i eased Dan Cogdel ura sca) ey A ac feed Pak EM Ue OUT PL CONTENTS 16: 20: 221 24: 25: 26: 29: 34: 35:: :: About the Artist ‘Sam Pelton ::A Word from the President by Chris Tritico ining Warriors :HCCLA News Round Up 10 :: Welcome New Members! 10 :: Welcome New Student Members! 11 :: HCCLA Big Brothers / Big Sisters 12::: HCCLA Bowwling Team Wins! 13 :: Working to Prevent Teen Dating Violence 14: Welcome New Paralegal & Legal Assistant Members! ‘Storytelling: Closing Arguments ‘by Mark Thiosson & Tyrone Moncrifio 12012 HCCLA Banquet Photos ‘HCCLA Leads the Way by Robb Fickman ‘Hanging the Declaration by Earl Musick ‘Dedication Ceremony by Ear! Musick ‘Girl on the Billboard by Robert Pelton 21 :: Dol Need Permission? by Don Davidson ‘Tyranny & The Bench by Joseph W. Varela ‘Challenge to my Colleagues by Patrick F. McCann HCCLA Extras ‘Ad Rates New Member Application BURNS BAIL BONDS Family owned and operated since 1971 Bilingual staff with over 100 years of experience Shaun, Sohn, Shannon and Shelby License # 74346 *% We advocate a paid in full attorney is a defendant’s best defense * Non-Arrest Bonds - we accompany your client to the jail or from the courtroom 609 Houston Avenue 713.227.3400 Houston, Texas 77007 Interlock An Automobile Ignition Interlock Provider ib John Burns David Girard 609 Houston Avenue 713.223.4424 Houston, Texas 77007 HICCLA’s hanging of the Conscitution, Bill of Rights and Declaration of Independence ac the Jury Assembly Room has long lasting and far reaching implications. The importance of the job of a juror canoe be overstated. Quite simply they stand beeween the government's overreach of the governed. As I said in my speech jury's feeree out the truth. The right of a trial by jury can never be questioned and never altered ‘At the Jury Assembly Room these documents will forever stand 2s a reminder to all who enter there ofthe importance of thei job a a juror and the role they play in preserving our way of life. In 2007 HICCLA began hanging these beautiful replicas. As of today we have given them to the people of Harris County at the Criminal Courthouse, the Javenile Justice Center, the Jury Assembly Room and the Civil Courthouse. The members of HCCLA ste Harris County's protectors of liberty. We stand eall and proud every day to ensure that the words on these documents have meaning. I am proud of HCCLA and the commitment of the membership co stand firm in our zealous represeacation of our clicats and our unyielding commitment to che Constitution and the Bill of Rights ‘The Ceremony at the Jury Assembly Room wat a beautiful service. After my speech Robb Fickman spoke followed by Judge Mare Carter. a word from our president is, Thitico Judge Carter and Robb spoke eloquently about the meaning and purpose of the Declaration of Independence, Consticution and Bill of Rights. 1 was saddened that out of almost yoo members we had less then 100 come to the ceremony. In preparation for the ceremony we invited every Judge in Harris County and the Diserict Attorne) office. Not just the Criminal Judges, all Civil District and County Civil Judges, Juvenile Judges, Juscices from both Courts of Appeal and the Federal Judiciary. Judge Carter was the only judge to make an appearance. Let me say that again, not one Judge in Harris County, the Distriee Attorney or any Assistant DA came to the ceremony celebrating the hanging of our most important documents in the place where our citizens report for jury duty. Next we held a ceremony and dedication at the Civil Court House. At this ceremony Judge Randy Wilson spoke and Judges Mike Englehart, sist District Court and Mike McSpadden, 29th District Court attended. Iknow we are all busy. I squeezed these ceremonies in beeween two trials, however, I can give one hour of my time to a project of this much import. 1 hope hae our members, elected Judges and District Axtorney: can find a little time to suppore the Constitution at important events like these. ' Bditors note; Pat Lykos was the DA when this article was writen ricccemen ©) TTT LC es Mario Madrid and JV Vela convinced a jury to deliver two-word verdict afer only 7 hours of deliberation in a Murder ‘case in Judge Carter's court. Client was accused of strangling his ‘uncle to death after a family celebration, Mario was able to flip, the DNA, Medical Examiner's testimony and hospital evidence ‘on the State and showed that the evidence wasn’t consistent ‘with the State’s story. Mario established an imefutable timeline of events that brought out the inconsistencies and holes in the State's case. Great work! imple math folks. 1 line = 2-word verdict, prof that keeping it simple does the trick! That is if you're Todd Dupont who delivered this one-sentence close on a PCS case: “No one on ‘this planet, much less in Harris County, should be convicted of ‘a felony, with as woak asthe evidence isin this ease." His client was facing deportation after officers found cocaine in the cup bolder right next to the driver's seat ‘Alex Forrest and Jerry Fry got an unbelievable Not Gulty ‘Verdict on a Murder charge in the 182nd. This case involved horrible police work, lack of evidence, a lying cop, and one of the worst ploto incups ever. These two watriors fought hard to save man's if. Way to go guys! Congrats 1 the dynamic duo of Jed Stiverman and Steve Gonzalez for their vietory on a 19 blood test case in Court 8 ‘where the elient had a head-on collision resulting in the CW's broken ankle, Judge Karahan suppressed the blood evidence after Jed ané Steve got the officer to admit that he didn’t know ‘that the CW was injured at the time of the incident and that be basically only said that in order to get their client's blood ‘without a warrant. A policeman lie? Never! Jed and Steve went on to pull out another victory in Court 4 ‘They fought Clinton and the State the entire way. They wisely recognized that the simulator solution was calibrated by a BAT ‘Van and smoothly transformed a normal 0.13 breath test into 2 BAT Van case. The jury did the right thing and retuned a NG! ‘After siting silent in Court 15 on a jury trial with visiting Judge ‘Anderson presiding, Jim Medley finally had the opportunity to try his case before Judge Hughes. Judge Hughes agreed to suppress evidence of drug use, HGN, comments by the arresting officer regarding SFST results and the breath test due to improper observation period. When the State reached fo a nolle, Judge Hughes said not so fast and granted a directed verdict for acquittal. Congrats to Jim! © wera Brian Wiee docs it again with the able assistance of Carmen ‘Roe! Brian and Carmen were able to socure a new tial in aCCA case involving a former Beaumont Police Officer convicted of official oppression in a high-profile case that involved @ video that went viral. Congratulations for this victory on a very difficult case! Craig Stil! won a huge white collar theft case in the 18Sth with the asistane of Nie Hughes. Great work guy! Norm Silverman won another MTS hearing in the 185th, Norm controlled the facts of the case and the law leading to three ounces of cocaine being suppressed for his client as well as the co-defendant 43 Paull was victorious in Brazoria County Court 4 on a DWI 2nd. His client was charged with DW! after a one-car rollover accident, Client admitted to drinking and driving, but JJ got the breath test suppressed sfter proving a 15-minute observation violation. The State reduced the case to reckless driving charge in the middle of trial, We'd call that a win! Congrats to Mark Bennett who won a case atthe [4th Court of Appeals on Padilla retrcactivity. The case was remanded for @ ruling on prejudice. Congratulations to Millie Thompson and Juan Guerra for their vietory atthe Ist COA. The Court held that the defendant's consent to search his house was not voluntary when officers coereed the defendant to come out oP his home in order to arrest him, Well done! Peyton Peebles won a herd fought Padilla writ in Icon County For those of you who do not know Mr. Peebles, he is one hell of a waiter and persuader! Congrats to Troy McKinney for a Not Guilty in Bryan in an assault case where apparently two moms had a bit of @ disagreement at their kids' tennis match Dan Gerson won a Motion to Suppress in a case where not aly did the warrant not list when anyone saw drugs at the target location last, but it mentioned a canine sweep at some point before the application for the warrant with no additional facts, Incredible! Joe Gonyea successfully defended his case whea the Court of Criminal Appeals granted the State's PDR to resolve whether statutory county court at law judges have authority to issue search warrants to be executsd outside of their own county (EPD officers were calling judges in MoCo 10 get blood warrants), Joe argued the case and ultimately the CCA agreed, This was a big blow to the police officers who have judges from other counties on speed dial Congrats to Mike Driver for an outstanding NG in Court TI! Client was charged with beating his stepdaughter with ‘an extension cord for stealing a car and joy riding in it. Mike successfully argued the corporeal punishment defense to assault on a family member. Congratulations to Brittany Carroll for winning 2 new punishment hearing based on the ineffective assistance of ‘counsel on a ease where the defendant pled guilty to Murder. um Adamo Jr, is one to watch! He just keeps knocking thern ‘out of the park. His latest conquest was a suppressed breath test Of .17 in County Court 13. Video also showed no probable cause for the stop (broken headlight) as the headlights were clearly ‘working fine. Great work! Ine similar case, Jim Medley and Amber Spurlock teamed ‘up in Court 10 on another motion to suppress and successfully ‘argued there was no probable cause for the stop when the video showed there was not a broken tal light afterall! Kyle Johnson was appointed on the appeal of a registered sex offender charged with failure to comply, convicted by jury, and sentenced to 25 years TDC. The Ist Court of Appeals held the ‘evidence was insufficient to support the conviction, entered a judgment of acquittal, and ordered the appellant to be released immediately. A modest Kyle deserves @ huge pat on the back for his hard work! After geting all of his til sontings this year dismissed, Stephen Touchstone finally got to try an assault case thatthe prosecutor ‘thought she had in the bag, Ten minutes after the jury got the ease ste realized the bag had NG writen all over it... Great work! Randy Martin and Franklin Bynum got an acquittal from a jury on an aggravated sexval assault ofa child in the 176th, The defendant turned down 2 years TDCI to go to tral ‘Congratulations to Nathan Mays for his big win in Judge Hoyt’s Court. His client was indicted for Conspiracy to possess with intent to distribute pharmaceutical controlled substances via ‘pharmacy he owned. He had previously been indicted, tried and, ‘convicted in Kansas City, Missouri for eleven substantive coun, as well as a very similar conspiracy count. Nathan used the [prosecution's motions from the Kansas City case to demonstrate that the two separate indictments really encompassed the same ‘conspiracy. Judge Hoyt agreed and granted Nathan's motion t0, dismiss the Houston conspiracy (on double jeopardy grounds) “with prejudice, Mark Thiessen got a 10-minute NG on a DWI in Court 41 ‘Always tough when the judge tells the jury that they will know ‘the feeling when the case is proved. Mark proved otherwise! ‘Cheri Duncan obtained a reversal in Beasley v, State. The Ist Court of Appeals, in a 21-page published opinion, reversed Beasley's convietion for sexual assault duc to jury charge error. Outstanding work! Dustan Neyland got a Not Guilty in Court | on an Indecent Exposure case. great work! With great pride and enthusiasm, we proudly announce that ‘our very own Troy McKinney was made Dean of the National College for DUI Defense, # 1200+ member association of DWI lawyers. As many of you know, NCDD has been a DWI CLE partner with TCDLA for many years on programs such ‘as MSE, Top Gun, and the Stuart Kinard Seminar. NCDD has also sponsored free Texas public defender seminar’ forthe last 2 years. Troy will doa fine job leading them. Danny Easterling finished a murder ial in the 180th where ‘shots from several guns were exchanged in an apartment ‘complex. The jury convicted on the lesser offense of deadly conduct and with a punishment range of 2 to 10 years they deadlocked on punishment and mistrial was declared. Unbelievable result for Danay and his client! CONTINUED: WINNING Warrlors Congratulations to Anthony Osso and Daniel Cahill for winning 4 sexual assault case in the 185th. No easy task. They even pulled off this feat with a former prosecutor on the jury Congrats to Jed Silverman and Doug Atkinson for their victory con less than a gram PCS in the 209th, The jury went out and ‘came back hung 8 to 4 Not Guilty, State dismissed afterwards, Jed's defense was that his client was 100 fat to enjoy cocaine. Unless they cut it with butter. In a rare non-dispositive Motion To Suppress hearing on the "Project X Movie" Trespassing cases, where seven of eleven, high schoo! students rejected PTD and requested atrial because they were not inside the house, Judge Karahan granted the ‘motion after an all day hearing and ruled that there was an illegal detention by a private security director for the homebuilder. All seven cases were dismissed! The leading attomeys were Danny Easterling, Earl Musick, John Denholm, Jim Medley and Charles D. Thompson. Also atthe table were Lisa Andrews, Peter DeLeef and Bud Valdez, ‘The Sth Circuit handed down a bunch of cases vacating sentences for crack after the adoption of the lower mandatory ‘minimums in the Fair Sentencing Act, The defendants had all ‘committed the crime before the law went into effect but were sentenced under the old law. Luckily for Cynthia Cline’s client, she knew that the Supreme Court had granted cert on ‘that issue and took it up afer the Sth Circuit said no. Great work, Cynthia! Congratulations to Brian Wice, once again assisted by Carmen Roe, for convincing Judge Collins to granta motion for new trial without a hearing. This was a seemingly insurmountable task ‘but the judge dic the right thing and granted the motion based on TAC ina case that included more than 16 different instances of ficient conduct. The defendant, a young man with no criminal history, received 25 years from a jury. Brian worked tirelessly on this motion, securing an affidavit from counsel, and getting the State to concede that counsel was deficient William MeLellan got a NG on an Assault-FV in Court Ll in under an hour! He even managed to gct a self-defense charge despite his client not testifying, Congrats to Matt DeLuea for winning a Writ in Court 15 overturning a DWI 2nd on a BAT Van ease! ‘me orenmeR Henry Nguyen is on a roll in Texas! He had a MTS granted in 14 Breath Test case in Collin County. Then in Dallas County in a DWI 2nd, after Henry picked a jury and started the tral, he re-urged his Motion to Suppress after cross examining the officer. After Henry's cross, the judge no longer believed the officer's version of the facts and granted the motion and followed it with an Instructed Verdict of Not Guilty, Jurors told Henry that they did not believe the cop either and intended to acquit, Congratulations to David Bires and Brittany Carroll for ‘winning a Motion to Dismiss (for prejudicial pre-indictment delay) on a habitual aggravated sexual assault of a child case ‘out ofthe 177th District Court In just wo days Danny Gerson managed to geta sexual assault ‘ease n0 billed and the next day a MTS granted in the 232ad on, ‘cocaine and marijuana case. Imagine how much he could get done in a week! Danny Easterling won an appeal in the 14th COA on a Murder ‘ease outof the 176th where the defendant got 60 years. The case ‘was reversed and @ punishment hearing was granted because the court failed o grant the requested jury instruction on sudden passion. Way to go, Danny! Congrats to Christian Capitaine and Sean McAlister (with critical esearch assistance by Peyton Peebles), for an acquittal ‘on 4 juvenile murder case out of the 315th. ‘The client had ‘been in custody for 2 years awaiting tral. Christian was able to ‘prevent certification about a year and 2 half ago. A self defense claim won the day even though the victim was “unarmed” according to witnesses and police. This is the second juvenil murder acquittal for Christian in the past 2 years! Looked Tike Tyler Flood was up a creek on a Class A DW1 in ‘CCCL#14 when his elient’s case was enhanced with a weapons charge, and the jury panel included Sheriff Garcia’s wife, an HPD DWI officer and 2 20-year veteran Austin PD cop who ‘bragged about his hundreds of DWI arrests. But Tyler had his paddles handy and rowed his cliea to vietory with a Not Guilty! ‘Tyler Flood also scored a 10-minute NG on a 2nd offense DWI ‘even though the client did not perform well on the field sobriety tesis and hit the curb as she was being pulled over. How does he do it? He's Tyler Flood! Danny Easterling, Gerald Bourque and Morgan Bourque ‘made their client very happy after a grueling 10-day trial on @ ‘non death Capital Murder in the 338th. Their client circled the block and then picked up the shooter, who got out of the ear to rob and shoot 2 14 year old girl in the back while walking hhome at night. The girl's cell phone and jewelry were found in their clicat’s apartment and he confessed to his involvement. ‘The jury found him guilty of the lesser offense of Aggravated Robbery and gave him 10 years TDC. We stil count that as a vietory! Sarah Wood, with the assistance of Mark Kratovil, did her usval exhaustive and excellent work and won a motion for new ‘rial bearing in Court 5. Great work! Doug Murphy and Danny Easterling at EZIntorlock’s booth Cota ens 713.223.4424 le Rae aloes a ae On any given day, a defense lawyer will be confionted with bullying or petty abuse of authority. If you watch Randy Schaffer in action, you will see a lawyer Who behaves as if these actions are not to be tolerated and are not inevitable. A decision handed down by the Ist Court of Appeals ina juvenile case isa fine example of his refusal to be « party to unfaimess or stupidity. Congrats Randy! Congratulations to Mark Kratovil for winning « new trial for an aggravated robbery client in the 184h who had gotten 5 years TDCI. Client then led to deferred. Very good lawyering by Mari who puts a lot of effort into all his cases! Eddie Cortes fought an uphill battle and prevailed on a POMin CCCL#7. He had to deal with a client who (during testimony) inadvertently lt slip that he had smoked some weed earlier in, the day, bu still denied the weed in evidence belonged to him. Eadie also had to deal with a visiting judge who wouldn't give him anything he wanted in the charge and thea subsequeatly, allowed the State to argue thatthe extraneous admission of the wood fiom earlior in the dey was sufficient to convict him of possessing the weed in evi ‘not on Eddie’s watch! Blood in, blood out. That scems to be Tyler Flood’s motto! One afer the next, Tyler manages to get the State's blood Pumping! One of his clients got a prompt dismissal during trial in Court 10 after winning a MTS for a .10 HPD blood test result because the crime lab failed to follow procedures, In Court 3 the Court suppressed a .13 blood test after officers testified that his client consented to a blood draw and the video told a completely different story. He also won a 20 blood test case in Court 10 where State dismissed after the Court agreed that there were way too many mistakes in the blood warrant and suppressed the blood evidence. Aud most receatly he was able to get a.10 blood test suppressed in Court 14 during trial, based on HPD Crime Lab not meeting the third prong during Kelly Daubert Hearing. Congrats! Danny Easterling finished a murder tral in the 180th where shots from several guns were exchanged in an apartment complex. The jury convicted on the lesser offense of deadly conduct and with a punishment range of 2 to 10 years they deadlocked on punishment and mistrial was. declared, Unbelievable result for Danny and his client! reese @) Ogee erate role HCCLA Welcomes The Following New Members: Pd CO Sad dake Wiliam Asara aed id Sead red eed Sea) es Read rol Se aed Kelly Benavides: Ce ed eed id ea Walter C, Martin, WY hod ad eas aaa ed bali SR aa as Cd Cee Cea ed (Christopher Soileau Seth Aud Cd HCCLA Welcomes The Following New i i Student Members: [ggeewpusleloett-betes Adam Capetito nobody wants. Chase Gall Dariolt $ Kele Garcia Frank Morfin George Picks ‘Who intervention, 70% of children ot Pssoners wil fellow cheir parent into prison themselves. | [pymcte me i pe wone menting with inn whe bea part ore a s Jason Winton erg ning ih en he brs pees Awan TEAS ‘Help us break the chain. Bocome 2 Big Brother or Big Sister today or | WWwOSdighouston org ‘esommend vats the fomiy ofa chia who neds ade qannce (rig) 2712083 @ weer BIG BROTHERS/BIG SISTERS The time commitment typically needed to be an adult mentor makes many lawyers or law students shy away from the volunteering in the Big Brothers Big Sisters [BBBS] program, but the "Big for a Day” events supported annually by HCCLA allow these professionals that exact opportunity ~ to serve as BBBS mentors. Other than the time needed for a round of putt-putt golf or watch a hockey game, no additional commitment is required, The 2012 “T-Time” Big-For-a-Day events were memorable for children in the SBBS of Greater Houston. Sixty-two children total from the BBBS Amachi Texas Mentor Program (ranging in ages 3 to 16) received valuable one-on-one parsonal attention from our volunteer mentors during the array of activities and games. The two “T-Time” events held in the 2012 spring season were the traditional Tee Time putt-putt golf tournament and the brand-new Tee Time golf lesson. Activities at the mini-golf tournament for the mentor-children teams include the tourement awards, driving go-karts, and lots of games and prizes in the video arcade at Zuma Fun Center {including the aiways-popular Skee ball), The agenda for the Tee Time golf lesson at the Hermann Park Golf Course featured for the “golfers” a breakfast buffet, golf-themed games and crafts, and group lessons on the course with a golf pro on the skils of chipping, putting. and driving. HCCLA has proudly partnered with the Houston Young Lawyers Association [HLA] & BBBS to host events for Amachi children since 2007. Big-For-e-Day events strive to make a difference in the lives of local at-risk youth. The Amachi Texas Program specifically provides mentoring for children with one or more incarcerated parents. There is the concer that children of incarcerated Parents will at some point follow their parent and be incarcerated themselves, unless they have positive adult intervention to break the cycle. Due to the limited number of adult volunteers in BBBS, not every child registered in the Amachi Texas Program in Houston has been assigned a permanent big brother or big sister. There are on average seventy children left unassigned every year due to the low number of registered mentor volunteers. The "Big for a Day’ events help address his problem by giving the unassigned children invaluable mentor opportunities until the child receives a permanent “Big”. Between sixty to one hundred extraordinary HCCLA & HYLA volunteers Participate annually as mentors et our Amachi events. if you are interested in volunteering at an upcoming Amachi mentor event, please send ar email to HCCLA Bowling Team “WINS! “Lawyers Bow!" is an annual bowling-tournament fundraiser to benefit the wonderful programs provided by the Big Brothers Big Sisters of Greater Houston [BBBS]. On a Saturday in both June and August of 2012, HCCLA members and other local lawyers spent the afternoon bowling (and having fun) at Palace Lanes. Lawyers Bow is a part of Bow! For Kids’ Sake, one of the biggest annual fundraisers for BBBS each year. BBBS is @ non-profit agency matching adult volunteer mentors with local children to give them a helping hand growing up. Money raised for the Lawyers Bow! specifically helps support the BBBS Amachi Texas Mentor Program for local at-risk children with one of more incarcerated parent/guardian Team HCCLA bowling team had impressive top scores for the 2012 Lawyers Bowl ~ with the outstanding team from the Public Defenders’ Office finishing notably in 2nd place. Team HCCLA, as always, had a rousing time at the event and also contributed $1,035 to the worthy cause HCCLA-sponsored donation ($500) supplemented by personal donetions from Sam Adamo and Wendy Miller) HCCLA hes partnered with the Houston Young Lawyers Association to benefit BBBS since 2007 in the Lavryers Bowl and to host “Big-For-a-Day mentor events for the children without assigned permanent mentors in the ‘Amachi program. The hope is to give the children a fighting chance to not follow in their parents’ footsteps. “Hometown Heroes” is the theme for 2012-2013 mentor events. Events planned for the children include an Open House with EMTs, a Houston Aeros hockey match, a Field Day-BBQ with volunteer firefighters, and a visit to the NASA Space Center. All mentor events are graciously made possible by the Houston Young Lawyers Foundation and the Harris County Criminal Lawyers Association, The next Lawyers Bow! will be an event for Civil vorsus Criminal Lawyers in February 2013. Please watch the HCCLA listserve for the details on joining or sponsoring the Criminal All-Stars bowling team for that event! WORKING mn TO PREVENT be Rr tee) According to the Texas Council on Family Violence, one in five teen girls is physically or sexually assaulted by a dating partner and one in three teenagers report knowing a friend or peer who has been hit, punched, kicked, slapped, choked or physically hurt by their partner. Houston Young Lawyers Association, with the support of HCCLA, presents events surrounding the Teen Dating Violence Awareness committee (TDVA) program “It Shouldn't Kill a Texas Teen to Date.” Topics covered for the teen participants include the differences between a healthy/unhealthy relationship and how to safely handle a break-up with a potentially violent person. The spirit of the program is to help teens make better choices and have “awareness” in dating relationships. The classroom sessions are targeted at not only ‘educating “victims” ~ but also possible “abusers” (ie., teens not aware that certain “behaviors” could be labeled as obsessive or controlling by someone filing for a protective order or making stalking accusations) Valuable supporters for this committee's events, in addition to the continued support of the Harris, County Criminal Lawyers Association, include: Judge Judy Warne (257th Family Court); Judge Lynn Bradshaw-Hull (280th); Associate Judge of 257th-Deboreh Patterson; Former Judge Doug Wame; Reginald Hirsch; Carolyn Mosley, mother of 1:year-old victim-Ortralla Mosley (Austin, TX); Olga Rodriquez, aunt of 18-year-old victim-Daniela Huertas, (Houston, TX); High School for Law Enforcement & Criminal Justice {teacher-Jessica Nolly); LaPorte High School (Communities in Schools coordinator- Lavinia Carbaial); and Deer Park High School (North and South campus, teacherJudy King), For more information on the 2013 Teen Dating Violence Awareness events planned for Houston, please send an email ‘The Harris County Criminal Lawyers Association is now the largest local eriminal defense bar in the United States — and it continues to grow. HCCLA is excited and pleased to announce the new Paralegal/Legal Assistant Membership Program, comprised of paralegals and legal assistants who are assisting HCCLA attorney members work to promote cxcellence and high ideals in the practice of criminal law. Laurie Brantley, Flood & Flood Kimberly Clark-Washington, Harris County Public Defender’s Office Kimberly Coco, Tritico Rainey, PLLC Rachel Davis, Law Otfice of Katherine Scardino Michelle Eutsler, Eutsler Law Firm Sophy B. Gale, The Thiessen Law Firm Vicki George, Harris County Public Defender’s Ottice ‘Amanda Jernigan Henson, Jim Butler Law Firm Noemi Infante, Schneider & Mckinney, PC Sheila Leisinger, Law Office of Rick Oliver Erika Lucas, The Thiessen Law Firm Laura Minton, Mallett Saper & Berg, LLP @® weno Shirley Melendez, Zmmormann, Lavino, Zimmermann & Sampson, PC Andrea Podlesney, Tyler Flood & Associates, Inc. Maria G. Ramirez, Law Otfice of Alen C. Isbell Irma Reyes, Harris County Public Defender's Office ‘Alma C. Robles, (aw Office of Patrick McCann Cindy Rodgers, Law Office of Scott Ramsey Elise Sartwelle, Richard Haynes & Associates, PC Veronica Silva, Law Office of John Paras voanne Turturro, Tritico Rainey, PLLC Belen Vara, Schneider & McKinney, PC Zaira Villagomez, Greco & Associates, PC Donna White, Lew Office of Tonya Rolland ‘A few months ago Andrea Podlesney, Paralegal to Tyler Flood, approached the HCCLA Board of Directors with a great idea of adding a new membership category specifically for paralegals and legal assistants of attorney ‘members. Special thanks to Andrea and the hard work of Carmen Roe, Secreiary, and Todd Dupont, President Elect, for launching this new program. In an effort to create a community of fellowship, sharing of resourees, and practical assistance among paralegals and legal assistants working in criminal defense law firms, HCCLA now provides these new members with ‘membership benefits that include access to CLE programs, ‘membership certificate, and a private foram, We have established a new listserve for their use, exclusive and separate from the main listserve. This forum gives them access to a network of other paralegals and legal assistants in criminal law practices to exchange ideas, ask questions, gather information/evidence/discovery, ‘and share documents with one another, including forms, motions and other filings, GRACE «charity forthe defense ofthe indigent Never another sleeping lawyer... What can you do to help? ‘We hope these resources will increase their productivity and knowledge of criminal law, while also creating @ positive, professional and social community of shared interests, ultimately benefitting the criminal defense lawyers who employ them and the clients they serve. ‘Membership applications now accepted online for paralegals and legal assistants at or by mailing check to : HCCLA, PO Box 924523, Houston, Texas 77292. + Membership dues for paralegals or legal assistants of regular members is $50 annually + Membership for a paralegal/Iegal assistant MUST include the endorsement of a current HCCLA member ‘ho is their supervising attorney. Benefits include: + Access to CLE programs; + Private forum (HICCLA Paralegal/Legal Assistant listserve); + Invitations to special events; + Membership certificate. For more information, contact: Christina Appelt, Executive Director 713.498.9649 / MHonylelling losing “Arguments “May it please the court, opposing counsel...Ladies and Gentlemen, thank you for listening toll the evidence...” a ee aires nome ns focus, and start day dreaming. You have just lost the jury. Oe eon Sea e NUNS eA a ea something the jury can understand and feel. Closing is the Ce cece coat ig eet tL ken ea Rea ee eS c CUmSs ‘been irresponsible, done evil, or have been no good their ie Oe Seka eary beings who do not care and make them care. You cannot Perce epe eud oe aed ‘them, or hide behind Power Point. Instead, you must PPS hee ee ee an Se Re ete tet ed client. The following are real closing trial stories that wil do just that Onn By Mark Thiessen & Tyrone Moncriffe HUNTING STORY ‘Rush to Judgment, New Officer, Seeing What Bra costo “The first time I went hunting with my little brother, it was an overcast fill weekend. But my litle brother woke me up and said “Come on, I want to shoot a deer.” We bundled ei er) Cee eer a ea a teas eters Roy sudden there they were: deer, appesring out of the woods re eat sr me Une Porites eee one eerie cg is looking through the site on the rifle and then I hear the Ree omic te roe eae “what are you doing?” He whispers, “I'm gonna shoot my first buck.” “What buck?” say. “The one right there at the edge of the trees,” he responds. I reply, “That's just a doe ents accretions tell him, “We are in a one buck county, you shoot that deer, you're gonna have to bury her because I'm not getting in trouble with Dad. Put down thc gun, and just ook through these binoculars.” He puts the safety back on and I hand him the binoculars. He focuses in and just then the deer bends down to eat and leaves her “antlers” in the tree. Because they weren’t antlers, they were just branches. It was my brother’s desire to kill his first big buck that made him beliove a buck was down there; not reality. Just like my brother, this officer, so badly wanted to soe that big buck DWI. He’s been training and riding along with other officers for months, he just wanted to see that DWI so bad. But it’s not a big buck DWI, it’s a doe, I'm going to take off my binoculars and give them to you, ladies and gentlemen, and let you see it for yourself. PUZZLES Beyond a Reasonable Doubc, Complere Investigation, Crucial Evidence ‘When I was young, my mother would make my brothers and 1 put puzzles together before we could go out and play on Saturday momings. I hated it, but we could not go out until we put those awful puzzles together. We had to put every piece together and figure out what went where before a picture would slowly start to develop. 1 did not realize what my mother was doing until years later. She wwas teaching us to think in logical sequence. You cannot force puzzles together if you wanted the right picture. You have to be patient and go step by step in order to complete ‘the image. 1 thought about those puzzles when [ examined the investigation in this case. Did Officer Smith reach a conclusion before he put all of the pieces together? Now the State loves to tell you that you know what the picture is without all the pieces, beyond a reasonable doubt, But the truth is, if you are missing a crucial piece it makes all the difference, i.e. apuzzle of a gun and the missing piece is the tip of the gun which tells you if it’s toy, bb, or real gun, SPAGHETTI Uneruthfal Witness, Impeached Testimony, Rotten Evidence, Snitches ‘When Iwas a litle boy, my mother would cook spaghetti every Saturday. I would watch her as she made her delicious sauce. She would start with the tomatoes and then add the basil, garlic, salt, pepper, Italian seasoning, and lots of ground meat. Then she would stir all ofthe ingredients with a large wooden spoon. One day, while stirring her famous pasta sauce, she saw a cockroach in the pot. Now ‘what do you think she did? Did she just scoop out the part that had the cockroach and let us eat the rest? Or, did she get rid of the whole pot of spaghetti sauce? ‘Now, when Mr. Hunter told you that he was looking ata life sentence and did not expect anything from his ‘cooperation with the State, do we digest that lic with rest of his testimony, or do we throw his entire story out? Tt doesn’t take much to taint the entire pot of sauce. DOC HOLLYWOOD Client is Different, Get to know the Defendant, Punishment ‘The other night, my wife and 1 were watching TV and this old movie came on: Doc Hollywood. It’s a movie from the early nineties where Michael J. Fox plays this big city, LA doctor who wrecks his car and gets stuck in a small town. And, there is this one scene in the movie that really reminded me of this case. I's where this country ‘couple brings in their son and he can barely breathe, he's Just turning blue. Michael J. Fox gets him on a table and ‘examines him and then says “I know what this is, I save it in my training back in LA, it's very rare, it's juvenile acute right ventricle myocardial infarction.” Michael J. Fox stars hooking the kid up to all these machines and the nurse {goes out into the hall to call old Dr. Hogue. She hollers to Michael J. Fox from across the hallway, “Doc Hogue says give him a Coke.” Michael J. Fox goss sliding out of the room and grabs the phone and yells in it “if you don’t get your lazy ass out of bed, this kid’s gonna die,” and hengs up the phone. They wheel the kid out ofthe litte hospital and the old ambulance is there waiting for Life Flight to ‘come in, when Doc Hogue's old boat of car comes sliding toa stop; spraying up the gravel in the parking lot. Doe Hogue lumbers out of his car and he’s dressed only in a robe. He goes up to the kid, looks down at him, and asks “you been taking that antacid I gave you” The litle kid's face is covered up by an oxygen mask. The kid nods his head up and down. Doc Hogue then asks him “you been getting in to your daddy’s chaw?” The kid doesn't move. Doe Flogue leans closer and asks again, louder “you been geiting into your daddy's caw?!” Slowly the litte boy staris nodding his head up and down, Doc Hogue raises the mask off the little kid’s face and onto his forehead. Then, Doc Hogue reaches into the pocket of his robe and pulls, ‘out a can of Coke. He opens it, He raises the little kid's head and the kid takes a sip. He exhales, “aaahhhhh” and the color rushes back into his face. Doc Hogue locks at the worried parents and says “That'll be 35 cents.” Doc Hogue then grabs Michael J. Fox by the arm and walks him a bit aways and tells him “Next time, before you crack a little id's chest open, why don’t you get to know your patient.” And that’s exactly what happened in this case. The police, relying on all their big city training, and rules and ‘procedures, forgot to take five minutes and get to know Mr. Smith. You see Mr. Smith i different, he’s not intoxicated. ‘And it’s not illegal to be different. Now, you've gotten to know Mr. Smith pretty well and yall don’t have to erack his chest open, you can just give him a Coke, men @) continued Siorylelling losing“Arguments BIRD IN THE HANDS Punishment ‘recently heard an old Chinese proverb that made me think bout this case. Is about this cheeky boy who wanted to challenge the old wise man in town. The boy went into the woods and caught a little bird. He then took this bird ‘back into town and went to see the old wise man. The boy ‘cupped his hands perfectly around the little bird to make sure that you couldn't see what was in his hands. He went up to the old wise man and said, “Old wise man, please tell ‘me what I have in my hands.” The old wise man replied, “You have a bird, my son.” The boy was furious that the ‘old wise man got it right. So the boy thought for a minute and then asked, “Old wise man, if you're so smart, now ‘ell me is this bird alive or is it dead?” The old man was silent and the boy knew that he finally had the old wise ‘man, Because if the old wise man said the bird was alive, he would simply squeeze his hands together and crush the litle bird. And if the old wise man said that the bird ‘was dead, then the boy would just open his hands and let the bird fly free. There was no way that the old wise man could be correct. The old wise man was still silent, and ‘then finally responded, “Well that is entirely up to you, my son. Afterall, the bird is in your hands.” And just like that little bird, Mr. Davis and his life are in your hands. You 6/12 jurors will decide whether you let ‘him go and see what great heights he can achieve or crush the life out of him. But ultimately, his life, his future, and his family’s lives and futures are in your hands. SNAKE Gruesome Violence, Unlikesble Complaining ‘Wieness or Decedent When I was little boy, my brothers and I would go out in the back yard and throw rocks at each other. One day ‘we were throwing rocks and a big snake slithered over ‘and curled up at the base of the gate preventing us from ‘getting out of the yard. We screamed and screamed until 4 neighbor noticed and ran to get my mother. My mother ‘was also afraid of snakes, but she got a shovel and she ran ‘out to protect us. She took that shovel and then hit that snake, and she hit that snake, and when that snake pulled ‘away, she hit that snake again and again, @ weve Even when the snake was dead she continued to hit that snake, We had to finally grab her to stop her. Mr. Smith, the man killed by my client, was a snake. COBY Snitches, Unecuthfal Wienesses, Trust your Gut Those who have dogs know they are amazing animals. Thad a dog named Coby. I reised Coby from a pup until he died of old age. Coby could tell whea T came to the yard with a leash whether [ was taking him to the vet, taking him to get washed, or just taking him for a walk to the park. He scemed to sense something in me that I could not see myself. I've learned that we all have that sense but most of us never use it For example: when Ms. Smith, the lady with the red hair, said she had never seen my client before that evening, what did you sense? When Officer David said he could ‘smell ‘marijuana as my client passed in his car, in the opposite direction, what did you sense, ete... You heard what they said but what did you really sense? You arc ellowed to, and should, follow your senses. WIFFLE BALL Proper Investigation, Rush to Judgement, Priors, Punishment Every summer, my younger brother and I would go spend about a month with my grandparents in West Texas. Now, it wasn’t a big town and we knew all of the kids in the neighborhood. And every summer we'd spend the days playing wiffl ball baseball. My brother and I were always pretty athletic so we were never allowed on the same team. ‘The neighborhood guys always loved having extre guys on the field so we could play on the big field with the railroad track at the back edge. But when we played on that field anything on or over the tracks was considered a homerun, because you had to look both ways and take time before crossing the tracks. Well, one day, it was 2 real close game. It came down to the bottom of tie ninth with two outs and my team was winning by one run. My litle brother, was the last up to bat, one man on third, and I was pitching, He ‘kept taunting me and calling his shot, and switching sides to bat fom. Bat li CoN em: Meller) Ree ny eMC ec es Beemer » Custom schedule & range settings BNE ate) Bag eae) » Color picture verification »Court-ordered test schedule yes Been tars cad Barry Bene ie Tr) Call Shannon or Shaun LMC) A. e' Corse DD aay eae ee Cee Finally we settled down, and I hurfed that wife ball with all my skill right down the pipe. Whap! He connected. I don’t know how, but he did. The ball went flying way ‘over my head. It cleared the second bascman, and landed Just before the tracks and bounced over. The centerfielder ran all the way back, looked both ways and grabbed the ball. Ground rule double, right? No, his whole team was screaming to keep running and he didn’t stop at second. ‘He was rounding third by the time the throw came in to second. I went to cover the catcher at home. The ball and Adam came in at the same time. His team came out ‘screaming with joy. My team ran from the field towards hhome plate screaming that it hit before the tracks. Everyone is screaming back and forth, and my brother out ‘of nowhere, who was just so happy he won the game, ‘became so upset that he grabbed the wiffle ball bat and ‘whacked me behind my knees. Everyone fell silent. The ‘blow crippled me and he took off running. It scemed like an eternity, but I got up, grabbed the wiflle bat and tore off after him, He ran all the way through the neighborhood with me chasing him with the wiffle bat. I was about to ‘catch him as he blast through the side door fence into the ‘back yard of our grandparents house. He ran right past my ‘grandma who was in her tomato garden, Her head perked up and she saw me coming full steam ahead, red faced, crazed look in my eyes, waiving a wifile ball bat. She ‘grabbed the bat from me and began to paddle me on the bottom with it, esking why I always had to torment my litle brother and why was I always picking on him? never forgot that, Why? Because the only thing worse than being punished is being wrongfully punished. Had my ‘grandmother just been there, had she just asked one of the 15 or 16 other kids, had she just asked my brother, asked me, done some sort of investigation..... But she didn’t. ‘And just like my grandma, these police officers didn’t do a proper investigation either, Now the State is asking you to punish Mr. Smith without having the whole story. But you ‘can’t find him guilty or punish him without investigating ‘and knowing the circumstances surrounding this case. ‘Remember, the only thing worse than being accused of a crime, is being wrongfully accused of a erime. ‘We all have barriers that prevent us from truly connecting with other human beings. I'm too fat, skinny, bald, old, ‘tc... 1 am not perfect. When a lawyer stands up to address a jury, everything that lawyer has over done and everything that lawyer ever intends to do stands before that jury. ‘The lawyer is just as much a part of the story as the story itself: You are the narrator, so your credibility is always an issue. If the lawyer cannot tell their own story, how can they tell their elient’s story. The most important part of a final argument is to be genuine. Whether you adapt one of these stories or create your own, make sure it’s genuine. In order to make a great closing argument you must tell a ‘compelling story, and the story starts with you. meson @) Pe OOH cloc ", HCCLA Leads the Way This year the Harris County Criminal Lawyers Association ‘once again led the way in the Public Reading of the Declaration of Independence. What started in Houston in 2010 is now becoming a national tradition. 1n2010, I had the idea that we should read the Declaration ‘of Independence in front of the Courthouse on July 4th in honor of the principles we fight for daily. Then President Nicole DeBorde supported the idea. I twisted some arms and about 20 good criminal defense lawyers showed up toread. In tum we each read a section of the Declaration. ‘Our voices were strong and rose as we read. None of this was planned. Reading the Declaration was empowering for each of us. When we were done reading we all were quite moved. Immediately we agreed to make the Reading ‘an annual event. In 2011, HCCLA President Earl Musick embraced the Reading. Earl organized a big event and around 100 of us showed up. Earl added the names of the signers to the Reading, which was great touch. Thirty-cight of us read. Robert Pelton read the last section. As Robert read he raised his hands up and spontaneously we all read the last section in unison. Again everyone was quite moved. In 2011, TCDLA President Gary Trichter, embraced ‘what we were doing in Houston. Gary and TCDLA’s, Joseph Martinez and Melissa Schank got the word out to, TCDLA members. In 2011, what we started in Houston, spread across Texas. There were Readings in 20 or more ‘Courthouses across Texas by criminal defense lawyers. This year, HCCLA President Chris Tritico again supported the Reading. Additionally, this year ICDLA President Gary Trichter and Incoming President Lydia Clay Jackson supported TCDLA’s full involvement. Joseph and Melissa were again fully involved. [joined with Longview criminal defense lawyer David Moore enlisting TCDLA Board ‘members across the state to organize Readings. Earlier this year I decided that it was time to take what we started in Houston and make it national. TCDLA’s Joseph Martinez, Alabama Criminal Defense Lawyers ‘Assoviation’s Ann Cooper, Georgia’s Jennifer Mackall and ‘The National College of DWI Lawyers joined in spreading ‘the word. @ wear by Robb Fickman On July 3rd, 2012, HCCLA again Icad the way in Reading the Declaration. President Chris Tritico led 38 members in the Reading. Chris added a podium and an American Flag. HCCLA’s Reading was posted to YouTube. You ‘can watch your fellow HCCLA Member’s Reading. As of this writing 467 other folks have watched our Reading, On July 3rd, TCDLA and Texas followed HCCLA’s cad. Criminal Defense lawyers throughout the state held Readings in front of courthouses in places like Dallas, ‘Austin, San Antonio, El Paso, Lubbock, Fort Worth, San Angelo, Uvalde, Kerrville, Longview, Tyler, Athens, Nacadoches, Lufkin, Huntsville, Conroe and Fort Bend. TCDLA & Texas shined! CLIENTS NEED AN SR22? Not sure where to send them? WE HAVE THE ANSWER!! Contact Christie Guess at ‘512-784-0085 | += Mostoniine websites have a significant wait” ‘before you receive your SR-22. Ours is instant ‘Its Fast (5 minutes or fess) ‘= Non-Owners Policy. (doesnt terminate current policy) ‘+ Attorney and DPS get a copy via ema «+ Inexpensive and Convenient + You have access to the insurance spedls's (ver 80 years worth of combined insurance experience) ‘Qur team is available to come to your next Bar luncheon or event! ‘We will provide + hour of CLE ‘at no Cost to you. On July 3rd, what 20 of us started in Houston in 2010, spread across the country in the “First Annual Criminal Defense Bar's National Reading of the Declaration of Independence”, Criminal Defense Lawyers held Readings in San Diego, Salt Lake City, Grand Junction, Albuquerque, Wichita Kansas, Little Rock, Lansing, Washington DC, Jackson, Mobile, Montgomery, Atlanta, Macon, Savannah, Charlotte and many other cities and towns, Gary Trichter organized a Reading in Wyorning among, the cowboys, The heirs of our Founding Fathers are not politicians, political parties, pundits or political movements that wrap themselves in the flag and call themselves patriots. Calling oneseifa patriot does not make one a patriot Inthis country, the true patriots are those ‘who fight tyranny and fight to preserve the Bill of Rights. The true patriots in this country are the Criminal Defense Bar, like HCCLA. The Criminal Defense Bar, is the only group that daily fights against the tyranny Jefferson so eloquently condemned in the Declaration. We are the only group that fights daily to preserve the Bill of Rights. Daily, inside courthouses across the country, criminal defense lawyers fight mini-tyrants who would rob men and women of their liberty. So it is only right that the Criminal Defense Bar, standing shoulder to shoulder across this great country, read the Declaration of Independence, It is @ good reminder to us of our Oath and Duty. It is a good reminder to all others, that the criminal defense bar has never been more united in our fight against any who would rob our counirymen of their liberty Tam proud we started all this right here in Harris County. Our days of being quiet are long over. hanging the declaration by Earl Musick On October 26, 2012, the Harris County Criminal Lawyers Association presented copies of the Constitution, the Bill of Rights and the Declaration of Independence to the citizens of Harris County. ‘These three important documents were hung in the Harris County Jury ‘Assembly Room during « special ceremony. HCCLA members were present as the Honorable Mare Carter, President Chris Tritico and Past President Robb Fickman explained the importance of these documents ‘our day to day practice ofthe law. Our guest speaker Judge Carter reminded us, the criminal defense lawyer, how important it is to defend the Constitution and the rights of the accused, Although every member of the bar has a duty to support ‘and defend the Constitution, our role is more important because we stand between the powers of the State and sometimes an innocent client, During the ceremony honoring these historic documents our speakers reminded us of the oath we all took as we entered the practice of law. “1 do solemnly swear that I will support the constitution of the United States, and of this State; that Iwill honestly demean myself in the practice of the law, and will discharge my duties to my clients to the best of my ability. So help me God.” It was 2 very rewarding experience for the members wino took time way fiom their busy schedules to attend this special event. Every member has an opportunity to participate in making HCCLA a grest ‘organization and we urge you to get involved, you will be glad you did. @® weve dedication ceremony by Earl Musick ‘Most members of the Harris County Criminal Lawyers Association (HCCLA) realized something was missing at the Harris County Criminal Justice Center. Lawyers, representing the accused, witnessed more and more individual rights being taken away by the Courts and the ‘government. HCCLA, with the help of strong leadership, fought to stop the constant eroding of our individual rights and we grew stronger and larger as an organization in the face of this adversity. Past President Robb Fickman brought it to the attention ‘of the Board that a copy of the Constitution and the Bill of Rights were nowhere to be found displayed in our Halls ‘of Justice and made a motion that we buy replicas of these important documents, have them framed and demand the ‘County display them for all to see, Robb’s motion was approved and HCCLA made a concerted effort to remind the goverament of our oath to support and defend the Constitution and the rights of the accused. Photos by Bob Rosenberg Robb organized public readings of the Declaration of Independence and our movement even gained national recognition, Thanks to HCCLA, we are making gradual progress reminding citizens that government belongs to, “We the people” and the replicas we displayed serve at that reminder. Because of HCCLA, replicas of those famous documents now prominently hang in the Criminal Juvenile Justice Center, the Jury Assembly Room and the Harris County Giyil Court House (Civil Courts). On November 16, 2012, over 50 Criminal Defense Lawyers took time away from their busy schedules to attend our Dedication Ceremony at the Civil Courts building. Judge Randy Wilson, Chris Tritico, Robb Fickman and Earl Musick ‘were speakers for this special ceremony. Also honored at this special ceremony was Past President Danny Easterling, who received a special Icadership award for the hard work he has done for HCCLA and the ‘Texas Criminal Defense Lawyers Association, i lar on the Rillcavd ‘by Robert Pelton ‘When I drove from Houston to Huntsville to see aclient, it ‘was a tossup on who bad the most billboard ads: lawyers or fried chicken places. Was it the smiling faces of lawyers and their staff, or someone eating a chicken log? Secing those billboards reminded me of the song “Girl on the Billboard.” “Girl on the Billboard” is a song about a truck driver who falls in love with a picture of a scantily clad ‘woman he sees on a billboard along his daily freight route on Route 66. As hesees this young woman daily, the truck driver begins to fantasize about having a relationship with her. One day, the truck driver goes to the home ofthe artist ‘who painted the billboard and asks for the young woman’s contact information. The painter then informs him that the “girl wasn’t real” and that he'd “better get the (censored) on his way.” Brokenhearted by the reality that his fantasy sirl was not real, the truck driver goes along his way on. the highway wailing “You'll find tiny pieces of my heart scattered every which a way.” Sound familiar? When I drive from Houston to Abilene I see billboards by lawyers stating that they are the “Slammer”, the “Jammer,” the “Hammer,” “‘we win our cases,” and “we dont plead ceases out.” Then I walk in the walls of the prison and see the results of some of these lawyers. While waiting for my client, I talked to several inmates who were mopping the floor and checking in laundry who told me stories of what their lawyer told them and then what happened. All public media advertising must comply with Rule 7.02 of the Disciplinary Rules of Professional Conduct in that it cannot be false, misleading or create an unjustified expectation about the lawyer's qualification or services. ‘The Rules were created to protect the public. When Thear from an expert on advertisements that the majority of ads do not meet the criteria set by the State Bar, I can’t help ‘but remember those men I met at the jail. Remember, we are dealing with living breathing human beings ‘who were sent to prison like caged animals, so when it comes to advertising we must be careful not to create ads that would Icave prospective clients brokenhcarted like the truck driver. Most ads have to be reviewed to comply with ethical rules. ‘The contact information for the State Bar advertisement review is 1-800-566-4616 or Do I Need Permission? ‘by Don Davidson of Bedford, Texas ‘A person walks into your office and wants to talk about hiring you. You quickly ascertain that this person already has a lawyer with whom he or she is dissatisfied, and is therefore looking 10 replace that lawyer. You instantly remember that Rule 4,02(a) of the Rules of Professional ‘Conduct prohibits an attomey from speaking with person who is represented by another attorncy without that other attomey’s consent. What do you do? Do you have to call the other attomey and get his permission to talk to his Cissatistied client? Fortunately, the answer is no. Rule 4.02(¢) expressly tramps 4.02(a). Rule 4.02(@) says: “When a person . . . that is represented by a lawyer in a matter seeks advice regarding that matter from another lawyer, the second lawyer is not prohibited by paragraph (@) from giving such advice without notifying or seeking ‘consent of the first lawyer.” The comment to Rule 4.02 is even more explicit: “Paragraph (2) ... does not prohibit a lawyer from furnishing a second opinion ina matter to one requesting such opinion, nor from discussing employment. in the matter if requested to do so.” (Emphasis added) Ofcourse, Rule 4,02(4) presumes thatthe client approaches the lawyer, and not the other way around. So soliciting a represented person to change lawyers would not fall ‘Within this exception to 4,02(2). In addition, the comment reminds us that we must still comply with Rule 7.02, ‘which prohibits a lawyer from making false or misleading ‘communications about (1) the lawyer's qualifications or services, or (2) another lawyer's qualifications or services. 713°518°1738 Staffed by HCCLA Past Presidents ee aa one Rn Ree eae IL BONDS EXPERTS 113-227-1061) ~~? 1417 CONGRESS ST HOUSTON, TK. 77002 138-227-5625 «=~ @ woos Ifa tyrant took power in America, how would the bench react? ‘A German lawyer, Ingo Mailer, tells us what happened in Germany: Amid the general lawlessness and economic upheaval of the Depression, the Reichstag fire spurred the parliament to pass the Enabling Act, giving virtually unlimited legislative power to Hitler. Civil liberties hitherto enjoyed by German citizens were indefinitely suspended. Hitler quickly moved to bend the existing legal system to his will, The judiciary had a history of suspicion towards the Weimar Republic and for the most part embraced the new party line when the Nazis ascended in 1933. This process was known as coordination (Gleichsckaltung) Coordination included the dismissal of judges and the disbarment of lawyers who were Jewish, who had ties to the Social-Democratic or Communist parties, or who were otherwise deemed racially or politically unreliable. At a stroke, the bench and bar were Aryanized and Nazifie. AA few judges resigned or took early retirement but the overwhelming majority joined a now organization called the Federation of National-Socialist Jurists and swore an cath of loyalty to Hitler. These judges acquiesced in the obliteration of the German constitution and the abrogation ofthe ale of law. ‘They enthusiastically cooperated with the new government's poticies including the Gestapo’s systematic hounding of domestic political enemies, the enforcement of racial purity laws, and the eugenics Program, ‘The law itself suffered from the Nazification of the courts. This was particularly true in the area of criminal law. Nazi legal scholars expounded theories of criminal liability based not on whether the accused had done an act that violated a statute, but on such fuzzy legal doctrines os the “will of the Fuehrer,” the “spirit of the Volk,” and “evaluation of criminal types.” Muller quotes a leading Nezi thinker, @® wwe General provisos, admission of analogy, recognition of healthy popular opinion as a source of law, and admission of direct and immediate recognition of what is just... are criteria of National Socialist criminal law. Another argued that the penal code could be dispensed with. The recognition that tis impossible for individual legal norms to cover all possible cases suggests that it would be preferable to do without a list of specific offenses and to provide the judge with guidelines in the form of 1 few general principles, according to which he must determine the criminal nature of an offense. As if the Nazification of the existing courts were not enough, Hitler established new revolutionary tribunals. They were the Special Courts and the dreaded People’s Court. These courts were designed specifically to prosceute political crimes. Their jurisdiction included whatever Hitler considered to be espionage, treason, economic sabotage, undermining of morale, and insulting the Nazi Party Maller deseribes their workings: Judges were required to sign all orders for arrest presented by prosecutors; defense atiomeys had no right to demand proof of charges, and the court could determine the extent of evidence to be considered entirely as it saw fit. Defendants right to sppeal verdicts, which became enforceable at once.* It should be no surprise that legal standards slipped. In one trial a dog was allowed to “testify” via hearsay. A German, police dog was stabbed; there were no witnesses. Suspicion focused on one man, When he was arrested, the dog was brought to the scene. It immediately attacked the suspect. This evidence was beld sufficient to convict and obtain a death sentence * Mauch the most feared of these tribunals was the People’s, Court (Volksgerichishof). It served as the forum for Hitler's political show trials. It handed out death sentences fiely. Its chief justice was one of Germany’s leading legal scholars, Roland Freisler, a man with a solid resume in private practice and government service. Freisler brought to the bench 2 brutality never before seen in a German courtroom. His harangues were legendary. Muller describes one conspiracy trial: As the presiding judge, Freisler reduced all the other participants in the trial—the accused, their court-appointed defense attorneys, the prosecutors, and even his colleagues on the panel—to mere extras. He berated, vilified, and mocked the conspirators... .£ ‘At this same trial, when it was necessary to consult the German penal code, no copy could be found in the ‘courtroom. ‘The purpose of the entire Nazi court system, and in articular the revolutionary People’s Court, was the furtherance of state terror.” It was one more German instiation converted into a machine of mass death.* Judge Roland Preiser (et) of the People's Court Where were the defense lawyers? ‘No profession suffered more in the Nazification of the German court system than that of the criminal defense lawyer. A memorandum published by the Nazi Minister of Justice describes the defense lawyer’s role in the new. ‘Nazi state: ‘As counsel for the defense, the attorney has taken up a position closer to the state and the community. He has become a member of the community of guardians of the Jaw and lost his position as a one-sided representative of the defendant. Whoever cannot accept this completely and unconditionally in his own mind and be ready and willing to act upon itat all times should not don the robes of a German attorney or appear in the role of defense counsel. So it came to be. As Muller puts it, ‘And the sad culmination of this development came later in the actions of the specially selected defense counsel at the People’s Court, who frequently delivered speeches apainst the defendants they represented. The defense attorney for General Hoeppner, for example . . . expressed horror at his client's actions and closed by demanding the death penalty for him.’ The pre-existing German judicial system was a modern post-Enlightenment Western institution featuring the rule of law, separation of powers, comprehensive codes and professional lawyers and judges. That it quickly placed itself at the service of a totalitarian police state ‘whose penchant for terror was almost unrivalled is a sad indictment of the individuals who comprised it I So, what would happen in America? ‘Tho American bench has never faced such a test. No political leader has ever exercised, or attempted to exercise, all the powers of a dictator. During the civil war years, President Lincoln took on unprecedented personal power. The writ of habeas corpus was suspended by presidential proclamation and by the Habeas Corpus Suspension Act." Further, Lincoln bypassed the regular courts by having military ‘commissions try thousands of Norther citizens for various war-related offenses. Lincoln also used these powers to intimidate Democratic Party political ‘opponents, shut down newspapers, and silence dissenters. In Ex Parte Milligan,” the Supreme Court considered ‘whether the president hed the power to establish military ‘commissions and try citizens under martial law. As the petitioner framed the question: Has the President, in time of war, upon his own ‘mere will and judgment, the power to bring before his military officers any person in the land, and subject him to trial and punishment, even to death? The proposition is stated in this form, because it really amounts to this. ‘enero (67 ‘The Supreme Court could have passively acquiesced to the President’s actions, but it declined to do so. The (Court held that although the suspension of the privilege of the writ was constitutional, trial of citizens by military commission was not, when the civilian courts were open and civil administration was not deposed by war.** In the words of Justice Davis, The Constitution of the United States is a law for rulers and people, equally in war and in peace, and ‘covers with the shicld ofits protection all classes of, men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any ofits provisions can be suspended during any of the great exigencies of government. Such a doctrine Ieads directly to anarchy or despotis.'* ‘A more recent example was contemporaneous to the Third Reich: That ofthe imprisonment, without process, of Americans of Japanese ancestry during the Second World War. fier the bombing of Pearl Harbor, President Roosevelt, backed by Congressional legislation, madc orders affecting 110,000 people of Japanese ancestry; such orders included restrictions on movement and the requirement to vacate Western states. Most of the affected were American citizens, many of whom spoke no Japanese.” They were housed in hastily-built concentration camps which were surrounded by barbed-wire fences and patrolled by armed guards. Conditions in the camps were Spartan and crowded. Food was monotonous and medical care rudimentary."* Hirabayashi and Korematsu were U.S. citizens subjected to this order. They failed to comply, Hirebayashi by violating a curfew, and Korematsu by refusing to go into custody for transportation and imprisonment. Both were convicted. In contrast to what was going on in the German courts at the same time, they were afforded all the processes of the civilian court system and were represented by zealous counsel. The lower courts gave ‘them a hearing and expedited the appellate process. @® ween A majority of the Supreme Court held the President’s ‘order to be constitutional as incident to war powers.” Even with the war's outcome far from certain, three members of the Korematsu court dissented. Justice Murphy found that the race-based transportation order “goes over ‘the very brink of constitutional power’ and falls into the ugly abyss of racism.” He criticized the majority in stinging language: 1 dissent, therefore, from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life, . . All residents of this nation are cin in some way by blood or culture to a foreign land. .. They must accordingly be treated at all times as the heirs of the American experiment and as entitled to all the rights and freedoms guaranteed by the Constitution, Justice Roberts distinguished Hirabayashi, which ‘concerned a curfew violation, finding that imprisonment in a concentration camp without trial violated the Constitution: ‘This is not a case of keeping people off the streets at night... On the contrary, itis the case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry conceming his loyalty and good disposition towards the United States. If this be a correct statement of the facts disclosed by this record, and facts of which we take judicial notice, I need ‘hardly labor the conclusion that Constitutional rights, have been violated, Justice Jackson, presciently, argued that the Court ran the risk of establishing a rule of deference to the executive ‘whenever military necessity was invoked: A military order, however unconstitutional, is not apt to last longer than the military emergency. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial iscrimination in criminal procedure and. of transplanting American citizens. The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need, In the wake of September 11, the Bush Administration claimed the power to designate any American citizen as an “‘enemy combatant” and imprison him indefinitely without charges or judicial proceedings. Hamdi, a U.S. citizen, was captured in Afghanistan and Kept in custody without process. Hamdi challenged his imprisonment and the Supreme Court held that he was entitled to notice and some kind of impartial procedure with which to challenge his status. The Court observed that “a state of waris not 2 blank check for the President when it comes to the rights Of the Nation's citizens.” ‘The jury is still out on the reaction of the courts to the creation of the surveillance-state since September 11." Il erin pepe ds etn ceeene less whether the petitioners in the American courts won ce va as Voge corsa cee oO bench in the face of executive power. The petitioners in Rae es aieaesieceieunl a geen pecan to which they were entitled in the challenges to their aay Aor tienen hs doe from rebellion or foreign military expansion, the judges and lawyers, or at least some of them, did not abase themselves before executive power as did their German eae One cannot predict whst would happen in America based solely on the German experience, German jurisprudence before Hitler differed significantly from the ‘Anglo-American tradition with which we are familiar Notably, Bismarck’s constitution of 1871 contained rho bill of rights guaranteeing individual liberties. The ‘Weimar Constitution of 1919 did have a bill of rights similar to some of our Amendments, but most of these rights could be suspended by the President in event of disorder» Judges were not elected, nor appointed for life, but instead were career civil servants. There ate other organic differences which set the two nations apart. From the historical record we can conclude only that in the past, the American judiciary has to one extent or another maintained independence in the face of executive seizure of power. 1 The Dictos: He's Germany, Sans Rusa, W'W.Novion {Compare 204 2 Hie’ atc: The Cuts he Third Rich 1987, Tras Deborah Lise Steer Hie Unive Pr, 1991 + Ofc knowns th Law toReove th Danger th People snd he ic, 4 Mls, opt, cater 8 2: This was alo ho avin Texas cary inthe twenty icrury. Winton State, 78S.W34522 (TexApp- loon [14 Dis] 202, pte, SE Winey v Sta 323 Sa £75 (Tex. Cin, App 2010 in ‘alone logy ); ndStatev. Domingue, _SW:d 7 No.1 T0008 CR (Tex App-—Housn [i Dat July 2, Ba pet ed) «Nall. cuter 17, Bventhe Namie ofa iad riser rately bain et eral oflcue in court 1 Judge reser ace salogue Andre Vyshinay, Sain’. prscarrat he Mewow Tals + Mallets 80,00 copia sexes in cents oh ox major ‘Asispowers. Nisoks's Spc! Trvanal adel dwncrly 29 dos ‘ertnon in over SOD als. Japan's cou ston enous cy wo the USSR’s mast py Rist Sorge ris Jpanse Ilr Mal opt ptr 2 9 1d, duper 8, Hoeppne ase cospir inte bonb plot again Hide, Salincontmporneaus err segine ec tlower rns, Mpomble 1128.75 (1869). ‘BMak E, Neo, J The Pte of Liber: Abraham Lincoln and Chi ies Ox invert Pros, 191 »71U5.2086. 1US.Const Ar 1 Sion 9 “The Prep ofthe Wit ofHabeas Cops stare supe ns wenn Ces of Rebel or Irvaon he ble Sey may ogre” Tex. Cont Ar Seon 1, wich ‘revistat “Th wt ohabes corps wifi and all eV esspenda” 2: Accor Duncan v. Kahanamokn, 227 US. 34 (1946 hoking tat ‘clarion of mut law dos net pace sizes under miliary court [rc fo offses relate to airy mato, the matey camot ‘Sapendand spade clean var outs ‘ex Parte ligase, ‘Suse Dudley Gold Kero United Snr: Japenese American Inderonet Martie Hench, 3008 s*Keren Also. Koren: United Stes: Japanese-tmerican Intranen Gangs. Eosow Tbk, 198. Tobe us condoes in he canpsin go way resembled the bly inflicted bye Ans Doves iaDosian Mouths and Chang. But tins diction Fer to purpose ofthe preent zusen Hla - Untied Stat, 329.1 (149); Koreas y, Unlled Sates 3250S 24194). 2» Hama. Runs, 12 US. 5072001) 21 For xa, Sos 121 and 022 of be Naa Defi ‘Aeron Act 2012 LR. 1540) appear the Prien told ay itn malta casein ‘2 Weimar Constiion of 1919, At. 48. Cons is wih he US. Consnsten whch aly prvi rsnpensn te prlegect habe corps rmescenn @) by Patrick F, McCann ‘As we approach this holiday season and schools take a ‘welcome break so that families can spend time together, 1 wanted to offer a small challenge to my friends on the bench, whether in County or District Court. It is a simple challenge, one that I hope someone will take up, but I doubt anyone will. I will rely on the honor system, and take any judge at their word that they completed it. The prize is luneh, on me. The challenge could not be simpler. Leave your badges and garage passes home for one week. ‘Yup, that is it. Pat down the special access cards that ‘grant one privileges and speedy access to parking, o one's ‘own private elevator, and to bypassing the metal detectors in the ground floor entrance. Drive a regular car or take a bus, park it in common parking somewhere nearby the courthouse, and walk to the entrance. Stand in tine. Go through the ridiculous metal detectors which change in sensitivity each week so that it is almost impossible to get through them, Ride the equally ridiculously overcrowded and poorly designed elevators in the morning and whenever you need to leave the building for lunch, and return the same way. Why do I esk this? Well, while I respect those of my friends in the bar who get an access badge for ease and speed, I do not have one, and elthough | am loathe to say never, will likely not get one. The reason for this isnot that reputed incident with a goat in Singapore many years ago, though apparently one may now view similar incidents on ‘YouTube, nor that rumor that I am actually in hiding from. the Irish mob in Boston due to an old misunderstanding, regarding the point spread on the 1986 Superbowl, though that game was certainly rigged. Nope, it has to do with none of those things, though they make good stories. It hes to do rather with a notion that if one has special access it tends to remove one from the actual world, sometimes to the detriment of one's ability to relate to others. Case in point - the rather draconian and frankly unusual habit, based upon statewide practices I have observed, of revoking bonds or placing citizens into the "dock" of either the jury box or the holdover cell because they are slightly late for court. Now, we all want dockets to flow smoothly, and for our clients and witnesses and jurors to show up, but is there any lawyer in this courthouse who does not believe thatthe practice has gone from edmonitions to actual abuse ‘on the part of some of our good friends on the bench? Hence the reason for my challenge. [have a naive belief that if one walks a mile, or in this case, stands en hour in the rain or heat and the metal detectors and the elevators of our large factory of injustice at 1201 Franklin for a while in the shoes of those who enter the courts, it may possibly have the effect of softening the attitude of our Judicial brethren towards the very real obstacles of time ‘and access and crowds that make getting to any court by 8:30 am a nice and pleasant wish, at least for those who must arrange child care, help old folks get fed, get to ajob or get permission from a job first to attend, and park. Woe unto all of us if any attorney or, heaven forbid, magistrate were held to the same punishment for failure to show up promptly at 0830. So, lunch is before the bench. [ am making « public offer to settle up based upon the honor system. All I'am asking for isa little excreise in putting oneself inthe other person's shoes by a very busy judiciary for one week, one whole ‘business week before the end of summer and everyone has to get back to shuffling children back and forth. The Fourth of July does not count, though I respect the effort of clever lawyers to try. I doubt anyone will take me up on it, though. Afterall, privileges, once grasped, are so very hard to let 0, don't you think? Pawrick F. MeCann Law Offices of Patrick F. 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