Saturday, March 15, 2014

A Specific Intent to Kill

I was a 7th grader in Bryan, Texas when I learned a fellow classmate had been killed by a drunk driver.  I didn't know the boy who was killed personally, but I had seen him around school for years.   A female student at A&M had been celebrating the end of finals by drinking all afternoon when she collided with him and his bicycle.

When I read in the newspaper that the driver had been charged with Intoxicated Manslaughter, I was one indignant 7th grader.  It sure seemed like murder to me.  I didn't like to hear the word "accident," since it was no accident that she had gotten drunk and killed a kid.

I was 12 years old back then, so I suppose I can be excused for not understanding the criminal charging process and how critical the levels of intent are when making those types of decision.  In law school, aspiring lawyers are taught the main levels of intent are Intentionally, Knowingly, Recklessly, and Negligently.  The type of crime a person is charged with is often determined by what he meant to do and those four levels are the ones used to describe that intention.

If I had understood the law when I was in 7th grade, I would have known that the actions of that female student were considered reckless.  She had become intoxicated and decided to willfully disregard the potential dangers of driving while intoxicated.  Her recklessness led to a death that she did not intend to happen.  That's why it wasn't a murder.

Generally, murder is a specific intent type of crime.  If you are being careless with a gun and it goes off and kills someone, that would most likely be a Criminally Negligent Homicide.  If you were playing around with a loaded gun and it went off and killed someone, you would probably be looking at a Manslaughter charge for that reckless behavior.

However, if you take a gun and point it at someone and shoot them and they die, you are going to have a hard time arguing that it wasn't intentional and knowing conduct.  That type of behavior will get you a murder charge.  If you intentionally and knowingly do something that is intended to cause Serious Bodily Injury (for example, shoot somebody in the leg) and that results in a death, that can be filed as a murder, too.

I wrote this post back in 2011 about the Jessica Tata case, which explained the concept of Felony Murder.  Felony Murder allows the State of Texas to charge you with a murder, even if you did not intend to kill someone, if that death resulted from you committing another felony.  The classic example being the guy who is speeding away in a stolen car and unintentionally runs over and kills somebody.

The reason I'm giving you this Law School 101 tutorial is because, for the life of me, I cannot understand the charging decision coming out of the Travis County District Attorney's Office over the Rashad Owens case.

Most of you are probably familiar now with the tragic scene alleged to have been caused during Austin's South by Southwest Festival.  Owens is accused of being intoxicated and fleeing from the police when he plowed into an unsuspecting crowd of festival attendees.  Two were killed and many more were injured.  Everything about the case illustrates a classic example of two counts of Felony Murder and/or Intoxication Manslaughter.

However, the Travis County Sheriff immediately announced he was seeking two counts of Capital Murder on Owens.  Surprisingly, the Travis County District Attorney's Office agreed.

Here's the legal problem with that.

Capital Murder is the highest type of crime there is on a State level in Texas.  If convicted of it, there are only two possible sentences a person can face -- Life in Prison Without the Possibility of Parole (or, as we call it "LWOP") or the Death Penalty.  Since it is the highest of all charges, there are very strict and limited conditions that can turn a "regular" murder into a Capital Murder.

A Capital Murder can occur under many circumstances.  It will be a Capital if a police officer or firefighter is killed in the line of duty.  It will be a Capital if there is a child victim.  It will be a Capital murder if the murder was committed in the course of another felony (such as aggravated robbery, sexual assault, kidnapping, or burglary).  It will be a Capital Murder if there is more than one person murdered.

However, there is one thing that must be present for any crime to be a Capital Murder, and that is the Specific Intent to Kill.

If a person is robbing a bank and then intentionally kills the teller, he has committed Capital Murder.  If a person is speeding away from a robbery and accidentally runs over someone in the process, he's just committed Felony Murder.

See the difference?

By charging Rashad Owens with Capital Murder, the powers that be are alleging that when he drove into the crowd, it was his planned hope and intention to kill someone.  They are saying that Owens wasn't just a drunken jackass running from the cops and showing a tremendous disregard for the sanctity of human life.  They are saying that he decided he specifically wanted to end the life of the people in front of him.  It was his reason for being at that moment.

That's a pretty big stretch of the imagination if you ask me.

The allegations against Owens are still tremendous, even without them being Capital charges.  Felony murder carries a punishment range of up to Life in prison.  Intoxication manslaughter can be punished by up to 20 years in prison, and the law allows for stacked sentences in cases of multiple deaths due.

Mr. Owens has a very high probability of never being set free in society again.

But that doesn't make what he did a Capital Murder.

I don't know why the Travis County District Attorney's Office elected to file Capital Murder charges where a specific intent to kill seems to be absent.  Maybe there is something about the case that I didn't see in the newspapers.  Maybe Owens sat down with police and told them, "You know, I wanted to wrap up my crime spree by killing some people, so I drove my car straight at them."

I doubt it, though.

What seems a little more likely to me is that the Travis County District Attorney's Office wanted to send a message.  A horrible crime happened that brought national attention to their jurisdiction and they wanted to file the highest possible charge they could -- regardless of whether or not they could ever prove that charge.

As a 7th grader, I think I could be excused for not understanding how the law worked.

I'm not so sure that the Travis County D.A.'s Office can be so easily excused.

Thursday, March 13, 2014

Sandy Melamed

The Harris County Criminal Justice community was caught off guard today with the news that defense attorney Sandy Melamed had passed away.  Everyone that I talked to was stunned and had no idea that he had been ill.

I first met Sandy when I was a brand new Felony Two prosecutor in Judge Ted Poe's court.  I tried my first case "Two case" against Sandy and Olivia Jordan, and we all got to know each other during the trial.  During the trial, Sandy always called me "Murray the K" and was surprised that I knew who the real Murray the K was.  After the trial, both Sandy and Dan Gerson routinely greeted me by that nickname.

Sandy was a good and dedicated lawyer.  He managed a job that is often frustrating and aggravating, but never seemed to let it faze him.  He was a very gentle soul and a very kind man.  He always had a smile on his face and a kind word for everyone.  

Sandy Melamed was a very sweet man and the courthouse will be just a little darker in his absence.

Saturday, March 8, 2014

How NOT to Substitute in on a Case

NOTE:  The subject of this post can thank Mark BennettScott Greenfield, and Kathryn Kase for not being named in public.  They talked me out of identifying her, which I thought I should do as a public service to consumers.

In the criminal defense world, it is not unusual for clients to decide to change attorneys.  As I've mentioned before, criminal defense attorneys are very often the bearers of bad news to their clients, and those clients will sometimes believe that changing the messenger will change the news.  Court-appointed attorneys and Public Defenders are frequently "subbed out" because clients wrongfully believe that a prosecutor will be more intimidated by a "Free World Lawyer" than the one currently assigned to them.

Sometimes, clients who seek to substitute their appointed legal counsel will do their research and make a solid decision on whom they hire.  Sometimes a defendant may hire a lawyer who is a friend of the family that did a good job representing their uncle in his divorce.  Other times, they hire the cheapest lawyer they can find in the Greensheets, because even a cheap Free World Lawyer must certainly be better than a court-appointed one.

I handle both appointed and retained cases in my criminal practice.  On occasion, I'll get subbed out on my appointed cases.  Sometimes I get subbed out by great attorneys.  Sometimes, I get subbed out by . . . well, not-so-great attorneys.

The procedure for substituting attorneys is very simple.  I will get a phone call from the incoming attorney who lets me know that my client (or my client's family) has retained them.  As a matter of course, they will ask for my signature on a Motion to Substitute Counsel, and I will tell them to feel free to sign my name with my permission.  I then ask them to have my former client send me an authorization in writing and I will turn over the client file to the new attorney.  The new attorney then submits the Motion to Substitute to the Court, and everyone is happy.

Some attorneys in Harris County, however, focus more on taking money from unsuspecting clients and then not doing the job they were hired for.

Recently, I had a client who retained a young lady to substitute in for me on a criminal case that was already set for trial.  Judges, generally, are not adverse to letting a lawyer sub in after the case is set for trial, as long as the new attorney will be ready on trial day and the substitution isn't for purposes of delay.

In this instance, trial was still a month and a half away, so the new lawyer had plenty of time to get ready on this relatively uncomplicated case.  She called me and told me she was subbing in for me.  I told her she was welcome to sign my name on the Motion to Substitute.  She asked for my file and I told her I would gladly give it to her once I got written permission from the client.  She said she would get it to me A.S.A.P.

A couple of weeks went by and trial grew closer.  About three weeks out, I received written permission from client to give the file to the new attorney.  About five minutes after receiving the written permission, the attorney called me.

"Hi Murray," she said.  "Did you get the e-mail with [client's] permission to give me the file?"

"Yes," I said.  "I'm out of state right now, but I will be back Wednesday and I'll get it to you."

"That will be fine."

"You did file the Motion to Substitute with the Court, right?" I asked, as an afterthought.

"No.  Not yet."

"Um, okay.  Well, until you file the Motion to Substitute, I'm still his attorney.  Obviously, I can't give you the file if I'm still his lawyer.  I'll need it for trial."

"Okay," she said.  "I'll take care of that this week."

So, I get back from out-of-state and get another phone call from her.

"The judge wasn't in, so I couldn't sign on to the case," she told me.  "Can you meet me in court on Monday so we can both sign off on the case?"

At this point, we were two weeks away from trial.  About a month of her time had been squandered by not getting the Motion to Substitute in, but she still had time to prepare.  I told her that I didn't have court on Monday, but if she called me, I would come in.

Monday came and went without a phone call.

On Tuesday, I dropped by the Court to inquire about what was going on.  The Judge had no idea what I was talking about.  I called the attorney.  No answer.  No return call.  I called again.  No return call.

The following week, I dropped by the Court again and was told that the lawyer had finally dropped by.  At this point, trial was one week away.  The Coordinator said that the new lawyer had come in and told the court that she was substituting in and would be announcing "Not Ready" for trial the following week.  The Judge told her that she was welcome to to substitute in, but she would have to be ready for trial on Monday if she were going to do so.

The new lawyer did not bother to call and let me know any of this.  I tried to call her.  No return call.  I called again.  No return call.

At this point, things are complicated.  A person charged with a crime is entitled to hire whomever he wishes to represent him.  This client wished to have the new attorney and not me.  This client's girlfriend had paid the new attorney.  Trial was in five days and there seemed to be no answer over whether or not the new lawyer was going to show up and announce "ready."

I called the attorney again.  No return call.  I called the client's girlfriend who said that she had talked to the new attorney the day before.  She said that the new attorney had informed her that she would be in court on trial day, but wouldn't be ready because I had refused to give her the client's file.  I asked the client's girlfriend to call the new attorney again, since the new attorney was clearly not returning any of my phone calls.  The girlfriend called.  No answer and no return call.

Ultimately, I had the client brought to court a day early so that everyone could figure out just what was going to happen on trial day.  Understandably, he was not a happy camper with anyone involved.  Without going into details, the case was resolved on that day.

The new attorney never subbed in.  The new attorney never did any work on the case.  The new attorney did nothing but create chaos in my client's representation.

Other than collecting a fee, of course.

Wednesday, March 5, 2014

Services for Jon Munier

The funeral for our friend, Jon Munier, will be on Tuesday, March 11th at 11:00 a.m. at Trinity Lutheran Church.  It is located at the intersection of Houston Avenue and Washington Avenue.

Tuesday, March 4, 2014

Jon Munier

As I mentioned a few weeks ago, Jon Munier had been fighting cancer for the past year or so and had recently entered hospice care.

I'm very sad to say that he passed away this morning.

For those of you who never had the honor of meeting Jon, I don't know if I could find the words to adequately describe how loved and respected he was in the Criminal Justice world.  He was a big guy with long white hair and a beard.  Everything about his personality conveyed that he was the type of guy who didn't take any crap off anybody.

But he was a nice man.  Incredibly nice.  As blunt and assertive as he could be, he was also the first guy to call you up and tell you that you did a good job with something.  He was the first to lend a helping hand.  He'd also let you know if he just respected the way you handled something.

Having Jon Munier tell me he was proud of the way I did something is a moment that I will always remember and appreciate.  His words carried a large amount of weight with me.

I've always had a large amount of respect for the person who lets his actions speak -- not just louder than, but instead of -- his words.  Jon embodied that.  I watched him in trial and although he showed nothing but respect for the Court, he clearly had no fear of it.  He was completely himself in front of the jury and it made him an outstanding lawyer.

I had a conversation with Chris Downey last week and he told me that Jon once told him that defense attorneys were, by nature, adrenaline junkies.  That made me laugh, because it seemed to explain so much about Jon.  He liked to do battle.  

He lived life at full-throttle and that was no more apparent than how much he was madly in love with his wife, Marie.  He was crazy about her and everyone in the courthouse knew it.  He had a great sense of humor and comfort in his marriage that should serve as an example to some of the rest of us who aren't quite as good at that particular institution.

Jon was larger than life and it is hard to fathom his passing.

Although there was only one, this world could use a lot more people like Jon Munier.

Monday, March 3, 2014

Eli Uresti

I learned today (via Johnny Bonds) that former Harris County D.A. Investigator and HPD Homicide Investigator Eli Uresti passed away over the weekend.

I first heard of Eli when I read The Cop Who Wouldn't Quit, where he was Johnny's partner at the onset of the investigation profiled in the book.  Although Johnny was obviously the central figure in the story, I was very familiar with Eli (as well as Dan McAnulty) when I arrived at the D.A.'s Office back in 1999.

Eli was an investigator in the Misdemeanor when I first started and he was one of the first people I got to know there.  It was a cool feeling to get to work alongside someone who you had read about when you were a kid.  He was a very nice man who seemed pretty bemused at all of young rookie prosecutors who thought we knew everything there was to know about criminal law.

I liked Eli very much and I'm sorry to hear of his passing.

Friday, February 28, 2014

Last Day to Early Vote

Today, Friday, February 28, 2014 is the last day to early vote in the Republican and Democratic Primaries in Texas.  If you don't get it done by the end of today, you will only be allowed to vote at your designated voting location.

So get out there and vote today!  There are lots of great candidates out there who deserve your consideration.

Go Vote!

Thursday, February 27, 2014

REMINDER: Fundraiser for Tonya Rolland McLaughlin TODAY

I hope everyone will come out today at 5:01 p.m. to Char Bar (301Travis Street, Houston, TX 77002) to help Tonya Rolland McLaughlin in her campaign for Judge of County Court at Law # 10.

Monday, February 24, 2014

Early Voting

We are entering Week Two of Early Voting for the 2014 Republican and Democratic Parties.  If you are Downtown, please swing by the Harris County Administration Building and get it taken care of!

Also, don't forget we are having a fundraiser for Tonya Rolland McLaughlin this Thursday, February 27th at Char Bar at 5:01 p.m.

I hope to see everyone there!

Now go Vote!!!!

Friday, February 21, 2014

Jon Munier

As many of you know, our friend Jon Munier has recently been battling a recurrence of cancer.  I talked to him on the phone today and it is with his permission that I am sharing this link through which gives updates on his progress.  He sounded good and upbeat, too.

I've known Jon since I was a young prosecutor.  Jon is one of my heroes.

I've known very few people in life as honest, funny, smart and tough as Jon Munier.  Not only is he an outstanding trial lawyer, he's also a great mentor and leader.

I hope that you all will keep Jon and Marie and their family in your prayers.

Sunday, February 16, 2014

Primary Endorsements for 2014

Early voting in Texas begins on Tuesday, February 18th, so it is time to get motivated and get your family and friends motivated to get out there and vote.

There aren't too many contested primary elections this year for jobs that are actually held within the Harris County Criminal Justice Center.  However, there are several races that have direct ties to what we do and I hope you will take the time to educate yourself and vote in these races, too.

Let's start off with the contested races inside the CJC.

District Attorney
The Republican side of the race is uncontested, with no one challenging District Attorney Devon Anderson.  The Democrats have Kim Ogg versus Leaping Lloyd Oliver.  This is not a real contest.  Sadly, because Lloyd miraculously won the Democratic nomination in the 2012 election, we actually have to address his candidacy.  Lloyd is a disaster.  He uses these elections to get countywide publicity for himself.  Kim Ogg is infinitely more qualified than Lloyd and she deserves the vote.
Recommendation:  Kim Ogg

Harris County District Clerk -- Republican
The District Clerk's race has incumbent Chris Daniel facing off against challenger Court Koenning.  As most readers of this blog know, I supported Loren Jackson when Chris first ran against him.  Loren started the ball rolling on modernizing the Clerk's Office with amazing speed and vision.  Chris won the election and I was pleasantly surprised to see him keep going forward with what Loren had begun.  Over the past four years, Chris has worked hard to make the District Clerk's Office more of an online presence with eFiling and eSubpoenas.  It is a huge improvement.

Chris has also worked extremely hard to increase citizens' attendance when they have jury duty.

I don't know Court Koenning, but some of his ideas are extremely alarming to me.  First of all, he is singing the inexplicable-Republican mantra of calling for the destruction of the Public Defenders' Office, which ranks very high on my "Stupidest Ideas Ever" list.  Furthermore, he wants to make jury duty accessible by on-line check in, which (as my friend Paul Kennedy has already pointed out) is a subtle way of getting lower turnout from the lower income households.

Both Koenning and Daniel are obviously politically ambitious guys, but Chris has been doing a great job in his position.  Koenning seems to view this position as just a stepping stone to higher office.  His interests don't appear to be those that actually build a better District Clerk's Office as much as they are building a better political resume.
Recommendation:  Chris Daniel

263rd District Court
The only contested primary in the Criminal District Courts is between incumbent Judge Jim Wallace and former-prosecutor and attorney Robert Summerlin.  As I've written before, I am a big fan of Judge Wallace.  The 263rd was the first court I was assigned to in Felony and I have always felt that Judge Wallace is a knowledgable and good judge.  Robert Summerlin is a friend and former-co-worker from my prosecuting days.  I like Robert, but in this race I feel that Judge Wallace is the better candidate.  Although Robert certainly has a background in criminal law, it hasn't been his sole focus during his career.  He has also branched out into civil law and admiralty.  Judge Wallace has been doing Criminal Law now for as long as I've been practicing.
Recommendation:  Jim Wallace

County Court at Law # 10 -- Republican
With longtime Judge Sherman Ross (who is one of my favorite judges EVER) electing not to run again, aspiring judges have come out of the woodwork.  The Republicans have four candidates running for the position:  Tonya Rolland McLaughlin, Ken Wenzel, Dan Spjut, and Mary Heafner.
Yesterday, the Houston Chronicle endorsed Tonya and went so far as to say:
 "Tonya Rolland McLaughlin isn't just the most-qualified candidate in this race -- she's the only qualified candidate."
I agree.  Tonya has been both a prosecutor and a defense attorney.  She was liked and respected as a prosecutor and she is liked and respected as a defense attorney.  Not only is she a trial lawyer, she also works in the appellate field and recently won an appellate decision that will help shape the rules of Search and Seizure in the State of Texas.

In short, Tonya Rolland McLaughlin is the real deal.

The other three candidates in the race don't have her experience.  Most troubling to me is Mr. Spjut who doesn't practice criminal law, but seems to feel qualified to be a criminal court judge anyway.  He has the backing of some deep pocket contributors that apparently don't know anything about criminal law, either.  Tonya needs your support and help.  Make sure you get the word out to your family and friends.
Recommendation:  Tonya Rolland McLaughlin

County Court at Law # 10 -- Democrat

When the Chronicle said that Tonya Rolland McLaughlin was the only qualified candidate in the race, they meant on both sides.  They point out that neither of the two candidates, George Barnstone or John Connolly would receive an endorsement in the race.  John Connolly has been a criminal defense attorney for years and knows criminal law.  Barnstone appears to be a fly-by-night aspiring politician who has never set foot in the CJC.  Although I concur with the Chronicle's opinion that neither are as qualified as Tonya, at least Connolly knows the material.
Recommendation:  John Connolly

Outside of the CJC, there are two Harris County Criminal Justice Center regulars that are running for Courts of Criminal Appeals positions and have contested primaries.

Court of Criminal Appeals, Place 9
Harris County Assistant District Attorney David Newell is running for the Court of Criminal Appeals, Place 9.  I've gotten to know David over the past few months, and he's an awesome candidate.  He's recently picked up the endorsements of the Houston Chronicle, the Dallas Morning News, and the San Antonio Express News.  I strongly recommend him as well.
Recommendation:  David Newell

Court of Criminal Appeals, Place 4
My friend and Public Defender Jani Jo (Maselli) Wood is running for the Court of Criminal Appeals, Place 4.  I've known Jani for several years now and I truly admire her dedication and intelligence when it comes to criminal law.  She has also received the endorsements of the Houston Chronicle, Dallas Morning News, and the San Antonio Express, so get the words out to your friends around the State to vote for Jani!
Recommendation:  Jani Jo Wood

And finally, although the race isn't directly related to the Criminal Justice System, the race for Harris County Republican Chairman is extremely intertwined with who gets elected in our county.

Harris County Republican Chairman
For quite some time, I've been encouraging people to get rid of longtime Republican Chairman Jared Woodfill.  During the last election, challenger Paul Simpson ran a good race but came up a little short.  Now is the Republicans chance to start working on fixing the Party.

For years, Woodfill has used his position to peddle influence and get his cronies elected to positions that many of them weren't qualified to hold.  Although he has no experience in the CJC world, that hasn't slowed him down from promoting unqualified candidates with his influence (for example, a rather mean-spirited Greek lady who used to be the District Attorney).  In his spare time, he has also been able to turn a formerly hard-core Republican county into one that got swept by the Democrats in 2008.

I had the opportunity to meet with Paul Simpson after the last election, and he is the right guy for the job.  Paul isn't looking to the position to help himself.  He wants to help the Republican Party in Harris County and help it return to the prominence it had before Woodfill took over.  Woodfill has had his time and he has blown it.  It is time for him to be fired from the job.
Recommendation:  Paul Simpson

So, there are my thoughts.  Let me know yours.

Most importantly, get out there and vote!

Saturday, February 15, 2014

Awesome Endorsements on the Democratic Side

Tomorrow, I'll be listing my recommendations on the various and sundry races that affect the Harris County Criminal Justice System.

In the meantime, I have to give congratulations to the Houston Chronicle for their use of humor in their endorsement of Kim Ogg over Leapin' Lloyd Oliver for the Democratic Candidate for District Attorney:
"But like the heroine in a bad horror movie sequel, Ogg has to defeat a sad soul who keeps coming back:  Lloyd Wayne Oliver.  Just when you thought it was safe to vote in the Democratic primary, he's on the ballot again for the free publicity. Primary voters should give Oliver the thrashing he deserves for making a mockery of our elections."
I'm glad the Chronicle is aware of what a joke Lloyd's candidacy is.  I just hope the Dem voters do too.

Tuesday, February 11, 2014

Save the Date!: February 27th Fundraiser for Tonya Rolland Mclaughlin

Mark your calendars for Thursday, February 27th at 5:01 p.m.

We will be having a fundraiser for former-prosecutor and defense attorney Tonya Rolland Mclaughlin at the Char Bar.

Tonya is, without question, the most qualified and experienced of the four candidates running for the Republican Nomination for Judge of County Court at Law # 10.  She is the only candidate who has experience as both a prosecutor and a defense attorney and also the only candidate who actively practices criminal law.  She has also has recently showed her appellate skills with winning a significant ruling on Search and Seizure.

If qualifications alone selected our candidates for judge, Tonya would win this contest with no difficulty.  Unfortunately in Harris County Politics, she needs a lot more than just being the best candidate.

She needs your support to get the word out about her candidacy and she needs your financial support.  Please come out and do everything you can to support Tonya!

Monday, January 27, 2014

Snow Day!

Most attorneys (and hopefully their clients) know by now the county buildings, including the Harris County Criminal Justice Center, will be closed tomorrow (1/28/14) for the anticipated ice storm coming our way.

It is funny to read the comments from my attorney friends on Facebook.  The responses are eerily similar to the ones all my friends and I had when school was cancelled for a snow day when I was in 6th grade.

Thursday, January 23, 2014

UPDATED -- Tonight's Reasonable Doubt (1/23/14)

UPDATE -- Tonight's Reasonable Doubt has been cancelled due to our guest getting bogged down in the weather.  We hope to have Mr. Mims on the show soon.

Please tune in to tonight's Reasonable Doubt at 8:00 p.m. with me, and your host Todd Dupont.

Our guest will be Texas Criminal Defense Lawyers Association president Bobby Mims.

You can watch it live streaming by clicking here.

Monday, January 20, 2014

Judge Brad Hart's Take on the Differentiated Docket System

Editor's Note:  When I started this blog six years ago, I was a prosecutor who wanted to respond to criticism of Harris County D.A.'s Office during the Chuck Rosenthal scandal.  Over the years, as I've switched to Criminal Defense and the blog has evolved, my hope has been that the blog would become a forum where prosecutors and defense attorneys and anyone else in the CJC could share opinions and/or argue with each other without fear of repercussions for speaking out.   Most judges usually refrain from commenting (at least publicly), but I'm always glad when they offer their input.  Judge Hart has commented here before and I was glad to see him be willing to add this commentary about the Differentiated Docket System.  I wish more judges would enter the dialogue here, as well.  

Here's what Judge Hart had to say:

Alright, I'll throw in a few comments or 10. First, I would like to say that I appreciate HCCLA taking comments on the system. I hope that people will take Murray up on his offer, either here or offline. I think those of us trying out this system are more than willing to listen to ideas and comments. I know I am more than willing to listen to any and all constructive comments, ideas, etc. Just saying something sucks, though, with nothing else much to add, doesn't get as far. For years people have complained about this or that about the dockets. I can't even begin to count the number of times I've heard people say, "Something needs to be done." Well, whether you think it is good or bad right now, we are at least trying to do something. I realize that some people are not going to like it just because it is new/different and some people will never give it a chance because of that fact alone. Additionally, this is not something we just made up. We met with the HCCLA Board, the PD's Office and the DA's Office at least a couple of times before this. This particular system has been implemented in several other jurisdictions with much success, even after much initial complaint.  Several of the judges (I was not one of them) went to Ft. Worth to observe this system there. They talked with the judges and attorneys, both sides, and came back impressed, from my understanding, with how well it worked. Having said that, so far, there are several things I like about it, some things I don't and  a few things I am just not sold on. But since it is new and since it is a process, I try to keep an open mind about it, listen to constructive comments and ideas to improve and give it a chance. It is going to take more than a few months for a final verdict. It will also need adjustments, I'm sure, here and there. We have already made a few based on our observations and constructive comments from some.  

What really drives me to comment, though, are what I see as exaggerations and/or misconceptions out there in the public. Let me also say, I am speaking ONLY for me, not any of the other courts. Plus, I don't see the other DCM courts function. I only see what is going on in the 230th. 

Let me say this about ADAs getting their work done. If the extra office days, when they spend the whole day in their office, are not helping them get to do's done then they sure as heck are not going to get those same to do's done with only a half day in the office because the other half they were in court with a full docket. And the comment about ADAs needing to know their cases, I agree, yes they do. The comment about each ADA having 60+ cases a day being too much (easy enough?), not sure what you mean. M-Th we only have the PACA and new arrest MADJs, so maybe 10 or so cases a day that the chief alone comes to take care of. Not near 60 a day each. On my Friday docket day (Super Docket Friday we affectionately call it) I guess it is possible each ADA has 60 cases each but that is a far cry from 60+ each day each. But realistically, I seriously doubt each one has 60+ cases to be familiar with on Super Docket Friday.

Frankly, several of the comments people have made here, if accurate (and by that I mean not guesses or wild exaggerations) I agree with. IF there are 250 cases on a single docket, that is certainly WAY too many, in my opinion. My thought is 120 is about the max it should be. With the exception of the recent holidays, we try to keep it at about 90. We had 88 last Friday and currently sit at 65 for next Friday. That is certainly workable. Also, dockets are staggered 9,10,11. This is something I've heard people wishing about for years. But getting attorneys to actually show up and take care of business at their scheduled time is like pulling teeth. As for the crowd in the audience, I tell the audience almost every week that if your reset says 10 or 11, I do not expect them there until then. But the bonding companies tell them to be there at 8:30 no matter what. So, it still gets crowded. I understand what the bondsmen's issue is but still if the court says 11, 11 is the time to be there. The bailiffs, CLO and clerks not having help is not a good thing. My understanding though is there would be extras on docket days. I know we have extras of each on our Super Docket Friday. I agree standing in line to see everyone is not fun nor productive. Regarding the lines to see me and the coordinator, after a month or 2, we made adjustments, after some people came to me with constructive thoughts that have significantly cut down on both to the point that I am not sure you can even call it a line any more. That's half of the "4 lines" right there. 

Now for the line to talk to the ADAs, this has been and continues to be a problem in my view.  "Forget having any meaningful discussion about your case." "Might as well reset and deal with it out of court." Umm, EXACTLY! That is exactly what you are supposed to be doing under this system. This is exactly the way it works in those other jurisdictions. Do your work, investigations, discussions, requests, to do's, plea negotiations, meetings, etc. OUTSIDE of courtroom. In court should be to update the court, make sure we are progressing to whatever resolution we need to progress to, get the judges input, ruling if needed, etc. This does not happen. Even this past week, 3 different attorneys came by to see the #2 to talk about cases not on the docket, thinking it was a regular docket. We told them she was in her office and would be happy to talk to them down there. GO MEET WITH HER.  Did they do it? Nope. On Super Docket Friday, I've heard attorneys say that the ADA doesn't have time to talk to me. Every time I hear it, I ask them if they even attempted to talk to them before today. The answer is always no. 

For a while, I even took to emailing EVERY attorney, ADA and Defense, on every single case at a certain point in the settings, so they would have each other's emails, 7-10 days prior to their next setting asking them to please have to do's done and  discuss everything outside of court before the next setting to make things go more smoothly. Out of hundreds of emails I sent,  maybe 7 times people told me they actually did it. I have to say, because each week I would ask, it was usually the State who said they called or emailed the Defense and the Defense would admit they never responded, even after admitting they got my email.  But they would then complain about having to wait to talk to the ADA in court. I became so frustrated with spending a lot of time sending those emails and then being told that they were basically ignoring them that I stopped sending them. I have heard from several defense attorneys that they can't get ADAs in other courts to respond to them. I understand and don't doubt that happens. Again, I only know about my court though. Now, every single time the Defense has told me that they have done this or that and the State has not done what it was supposed to do, I have let the State have it. They are indeed held accountable for timely production of records, reports, etc. When the State tells me they will have something done by a certain date, it dang well better be done or they are going to end up with any non-exculpatory evidence excluded. Get it done or lose it. It has generally motivated them to stay on the ball. I've noticed though that when I have gotten on the Defense for not doing what they were supposed to, well, frankly they just didn't care. I've had people tell me that they just basically didn't feel like getting it done, or it doesn't matter to them. "Judge, if you give me a month I will provide XYZ to the State so we can resolve this." A month later, "Judge I didn't do it. My bad. Can I have one more reset to get it done." Heard that 4 times Friday. But Lord forbid you don't do something for them on time. In other words, I understand frustration.

As I mentioned above, another issue is that attorneys refuse to show up for the docket time that THEY picked. I have 9, 10, 11 am dockets. Pleas are set at 9 but otherwise attorneys pick which docket they want to be on. I get out there at 8:30 for anyone who wants to come early. Last Friday was a typical example of every Friday docket for the last 3 months. I came out at 8:30. With a 9am and 10 am docket, including pleas, it was 10:30 before I took a single plea or had someone approach me with something I needed to get involved with. But at 11, everyone shows up and wants attention all at once. Imagine if people came at the time they picked. Might help with the line situation. Just saying. It happens every week though. I point it out to people and next week it's the same thing. I'm sitting there from 8:30 to 10:30 asking the clerk if we have any prospects of work coming our way. That is frustrating also because the coordinator, CLO, clerks and bailiffs are ready to rock and roll by 9 and when nothing happens until between 11 & 1 they are still there way after the attorneys leave, doing things that could and should have been done first thing. Look, stuff happens to make people run late, I get that. People get stuck in other courts, I get that. But if you pick your docket time and you NEVER show up at your time and then complain because you have to wait, I just don't have as much sympathy for you. If you know you have a plea at 9 in the 230th, or wherever, come get it taken care of then on to the rest of your day because, so far, there is usually no line for anyone and ZERO happening then. On rare occasion I've seen attorneys come a day or 2 ahead of time, get plea papers done ahead of time, then have the plea done out of there by 9:15. Plus get paid for the out of court work. By rare, I mean that novel but seemingly awesome idea has happened twice.

As for the length of the resets, the lengths are based on reasonable time frames that cases should move along and are different for different types and complexity of cases. Generally 30 days for the first setting, 60 days for the second, and on out from there until trial setting. Really only one setting that might be less than a month. Again, the idea is to get to an appropriate resolution, whatever that may be, in a reasonable time frame. That is shorter for some types of cases and longer for others. It depends.  

I can't say it enough. I am certainly happy to listen to constructive ideas and make adjustments to help. This system has yet to prevent me from making a change or exception where it is appropriate. Having said that, it is my suggestion that people do their part as well. At least give it a shot. Work on and discuss the cases with the other side outside of court and show up on time for the docket time you pick. Try that out and see if works any better for you. If it doesn't, let me know. Like I said, there are things I like about it, things I don't and things I'm not sure about yet. 

One more thing, since Chris (Downey) brought it up and I have been called out on this in the past -- E-filing was going on in the 230th before I got there. When I got there, I kept it going. I was told that at some point it was going to be mandated by the CCA for all criminal courts in Texas. It is my understanding that it has in fact happened. E-filing will become mandatory for all criminal cases in Jan. 2016. I know it is a ways off but it is coming. So, folks need to start figuring it out. People complain that I will not let the clerks take hard copies. Well, first off, there are signs in the court saying we are an e-file court. We are listed on the district courts' website as an e-file court. If there is any way else to inform people, I am happy to do that. Additionally, despite the fact that yes, I make the State only e-file, I have yet to not take a hard copy from the defense when they "needed" to file it right then or need a signature right then. If something has come up in trial, or whenever, I let people do what they need to do. If they need help, I do my best to help them. If the clerk's or sheriff's office says they can't, I say not acceptable. But since this place is like a high school gossip ring, everyone thinks I refuse to allow any hard copy filing. If you try to file something and the clerk says it needs to be e-filed, if there is an issue with that, all you have to do is come talk to me. No one gets in trouble and everyone usually ends up in one piece. To me, though, being able to sit in your office and e-file a motion for discovery, or whatever, as well as print out certified copies of signed motions is a lot easier that printing off copies and bringing them down to the CJC. Maybe that is just me. Heck, we even finally got it set up were we don't have to print them for my signature. It can all be done online. 

Alright, I've commented enough. Not trying to offend anyone or discount the fact that people are unhappy at the moment about the DCM courts. I'm just giving my view from the elevated seating in the 230th. I've seen the lines and the bottlenecks. We've tried to adjust things to help. I am willing to listen to constructive ideas, etc. that might help. My questions are: have you tried doing things the way it was designed? If so, and it is not any better, will you come tell me why? If you haven't tried it, will you try? 
Thanks for listening.

Brad Hart

Anthony Graves and Charles Sebesta

Most people who follow criminal law are familiar with the names Michael Morton and Anthony Graves.

Michael Morton was the man who was wrongfully convicted of Murder based on prosecutorial misconduct of then-prosecutor Ken Anderson.  He served 25 years in prison.

Anthony Graves was the man who was wrongfully convicted of Capital Murder based on prosecutorial misconduct by then-District Attorney Charles Sebesta.  He served almost 20 years in prison, awaiting his execution date.

In the wake of Michael Morton's exoneration, the Rules of Discovery in Criminal Law have been drastically changed and Prosecutor Anderson was (insufficiently) punished with (minimal) jail time and the loss of his law license.

Charles Sebesta, however, has remained unscathed.  

For reasons unbeknownst to the rest of us, Sebesta never had to face any consequences for his prosecutorial misconduct that almost resulted in the execution of an innocent man.  He has remained defiant over his behavior, attacking both Anthony Graves and Special Prosecutor Kelly Siegler (who ultimately dismissed the charges against Graves) in full page newspaper ads.

Hopefully, Mr. Sebesta's date with Justice is coming soon.

Today, January 20th, at 3 p.m. on the Texas Southern University campus, Anthony Graves will be holding a press conference, announcing the filing of a grievance against former Burleson County Prosecutor Charles Sebesta.  

Mr. Graves will be joined by Senators Rodney Ellis and John Whitmire, as well as State Representative Senfronia Thompson.  The event is also being supported by Kathryn Kase of the Texas Defender Services, as well as attorneys Bob Bennett and Neal Manne.

In my opinion, the actions of Charles Sebesta were even worse than those of Ken Anderson.  I'm hopeful that today is the first step in making him accountable for his actions.

Wednesday, January 15, 2014

Cold Justice Returns

Season Two of TNT's Cold Justice, starring Kelly Siegler and Yolanda McClary premieres this Friday night at 7 p.m. Central.

Unfortunately, I didn't get to participate in Season Two's filming because of being busy with chemo and babies and court and such things.  Eric Devlin and Alicia O'Neill split duties on legal consultant this time around.

The first episode is centered around a disappearance in Altus, Oklahoma and Eric tells me it is going to be an awesome kickstart to the Season.

Make sure not to miss it!

Monday, January 13, 2014

The Docket Control Experiment

As most attorneys who practice in the Harris County Criminal Justice Center know, several of the District Courts initiated a pilot program last fall designed to reduce the amount of settings each case had within a court.  The 177th, 178th, 179th, 230th, 248th and 351st District Courts initially agreed to try the program.

The idea behind the program was that settings would be less frequent and designed to accomplish more than just a monthly check in.  The settings would also be more regimented and less flexible than the status quo most attorneys were used to.

After several months, the reviews of the program, thus far, have been mixed (to put it mildly).

The Harris County Criminal Lawyers Association is currently seeking input on what all attorneys see as the Pros and Cons of the pilot program, and HCCLA's President Todd Dupont (of the Louisiana Duponts) has asked me to help gather this input.

I'd like to hear your input, whether you are a defense attorney or a prosecutor.  I don't care if you want to e-mail off list or post your thoughts here in the comments.  I also don't care if you want to sign your name to the input or remain anonymous.  We are looking for concrete examples of things that work, don't work, or could be improved upon.

Your assistance would be appreciated.

Friday, January 10, 2014


I first wrote about my high school friend, Joel Morris, five and a half years ago in this post and again two years later here.  When he killed his father the following year, I wrote about it here.

The long saga came to an end in a courtroom today as he was sentenced to spend the rest of his life in prison for the murder of his father, Bob Morris.

The result is not surprising.

I had been subpoenaed by his attorney to testify, but after talking to him, he decided that I probably wouldn't be helpful to Joel's case.  He was probably correct in making that decision.

I've thought a lot about Joel this week.  I was a sophomore in high school when I first met him.  We had our ups and downs over the years but he remained one of the most intensely loyal friends I've ever had.  If I had not watched him mentally deteriorate with my own eyes, it would be impossible to reconcile the Joel I knew with the person who murdered his father.

I loved him like a brother.

Since that fateful day in April of 2011, I've wondered what I would feel when a jury ultimately handed down a verdict on Joel.

I was surprised to find that the feeling was largely relief.

As much as I loved him, I was scared to death of the idea of ever seeing him out on the street again.

Wednesday, January 8, 2014

Reasonable Doubt Returns

Hello and belated Happy New Year!  Clearly writing more on the blog was not one of my New Year's resolutions!  I'm hoping that once the enormous 10-week-old boy of mine enters daycare that I might have a slight bit more free time on my hands.

In the meantime, Reasonable Doubt returns this week (Thursday, January 9th) with your hosts, Todd Dupont and me at 8:00 p.m.  Our guest this week will be the amazing trial lawyer (and one of my former law school Trial Advocacy professors) Tyrone Moncriffe.  Tyrone is an outstanding lawyer and one of my favorite people.  It is going to be a great episode.

So please join us at 8:00.  As always, you can watch live streaming on the internet by clicking here.

Sunday, December 22, 2013

Top 10 Tips for the Texans to Boost Attendance Next Season

As my son and I get ready to our final home Texans game of the season (mercifully), I noticed on the ticket that today is "Fan Appreciation Day" at Reliant Stadium.  Every year for the last game, they call out a few rows around the stadium at random and those folks win a prize.

So, it got me to thinking about what exactly the Texans will need to do to show enough fan appreciation for people to want to buy tickets for next year.  So, I came up with this:

Top 10 Tips for the Texans to Boost Attendance Next Season

10.  New head coach:  Ryan Secrest

9.  Player of the Game gets the Game Ball.  Worst player of the game must enter Thunderdome.

8.  Two Words:  Open Bar

7.  J.J. Watt continues his involvement with schools by doing every kid in H.I.S.D.'s homework all year.

6.  Team members valet park all season ticket holders' cars.

5.  Every halftime show involves a member of the coaching staff being voted off the island.

4.  Show newly released movies on the Jumbo-Tron while the game is on.

3.  For every game, a lucky will fan will be selected to be Offensive Coordinator.

2.  Arian Foster leads pre-game yoga class to help deal with the stress of upcoming game.

1.  First Round Draft Choice:  Miley Cyrus

In the meantime, I just wanted to thank Luke for being a good sport and going to all the games with me this season!

Tuesday, December 17, 2013

The Dedication of the Mike Anderson Memorial Courtroom

As I mentioned a while back in this post, the Harris County Commissioners' Court unanimously voted to name the Drug Court's courtroom after late District Attorney Mike Anderson.

Today (December 17th) at 2 p.m., the official celebration of the dedication of the Mike Anderson Memorial Courtroom will be held in Room 14144 on the 14th Floor of the Harris County Criminal Justice Center.

Mike Anderson devoted a lot of heart and soul into the STAR Court program and I'm so glad to see that the Commissioners are honoring and recognizing all that he did.

Please come by for the ceremony if you can.

Thursday, December 12, 2013

Judge Catherine Evans Investiture

The formal investiture of Judge Catherine Evans will be held on Monday, December 16th.

The ceremony begins at 2:00 p.m. in the 180th District Court on the 18th floor of the CJC.  Everyone is invited to attend.

Tuesday, December 10, 2013

Victor Blaine

I was very sorry to hear of the passing of defense attorney Victor Blaine today.

He was an extremely distinguished lawyer that I had the honor of knowing since I was a baby prosecutor in 1999.  He had been around just a little longer than I had.  According to the State Bar website, he graduated from the University of Mississippi in 1952 and had been practicing in Texas since 1955.

I don't have any specific war stories about the man that I always called "Mr. Blaine."  He was a constant presence around the CJC and was always the model of a true Southern Gentleman.

He embodied all that was honorable about the legal profession.  He was polite, knowledgeable, and professional at all times.  There was nothing flashy about him, yet his presence conveyed a formidable opponent through the entirety of his career.  When I was a prosecutor, setting a case for trial against Mr. Blaine was not something I took lightly.

Up until a few weeks ago, Mr. Blaine was still a regular at the courthouse, and I had no idea that he was ailing.  Despite his age, he moved easily and comfortably.  His mind was as sharp as ever.  He was friendly and always had a smile on his face.

Victor Blaine was a reminder of attorneys from the past and a sterling example to attorneys of the present and the future.

Rest in peace, Mr. Blaine.

The 2014 Election Field

NOTE:  I believe this is a complete listing of the candidates on the Republican side.  I'm not 100% positive that the Democratic website is fully up-to-date at this writing.  I have linked those websites that are readily available on the Republican Party website.  Unfortunately, the Dems didn't link to anyone.  I will add links if you send them in.

Yesterday, December 9th, at 6:00 p.m. was the filing deadline for all candidates wanting to be on the ballot in 2014.  There were a couple of minor surprises here and there, but for the most part it looks like primary season will be relatively quiet in 2014.

Here is what we've got:

Harris County District Attorney

Republican Devon Anderson- for the first time since 2004, the Republican nomination for District Attorney is uncontested.

Democrat Attorney Kim Ogg will be facing semi-lovable goofball Lloyd Oliver in the battle to be on November's ballot.

NOTE:  Nobody should be surprised by Lloyd running again for District Attorney after he stunned us all in 2012 by getting the Democratic nomination over the vastly more qualified Zack Fertitta.  Lloyd, who likes hopping from party to party between elections, may have finally decided to stick with the Dems since he got so much love from them last year.  I did note that the Dems' website has added Lloyd's middle name of "Wayne" to his official listing.  He's now "Lloyd Wayne Oliver" on the ballot -- kind of like John Wayne Gacy.

In all seriousness, Kim Ogg is the clear choice in the primary.  This contest is a referendum on whether or not Democratic voters pay attention.

The District Courts

With the exception of the 263rd District Court Republican race (see below), none of the primaries for Criminal District Court Judge are contested on either side of the ballot.

180th District Court Incumbent Republican Judge Catherine Evans will be facing off against Democratic candidate and former-Judge Randy Roll.

182nd District Court Incumbent Republican Judge Jeannine Barr currently does not have a listed opponent according to the Harris County Democrats' website.  I don't know if that is accurate or not.  I'll keep you posted.

183rd District Court Incumbent Republican Judge Vanessa Velasquez also does not have a listed Democratic opponent.

184th District Court Incumbent Republican Judge Jan Krocker will be running against Democratic candidate, defense attorney, and all-around good guy, Mark Thering.

185th District Court Incumbent Republican Judge Susan Brown will be running against Democratic candidate Garland "Mack" McInnis, who ran as a Dem for the 351st District Court in 2012.

208th District Court Incumbent Republican Judge Denise Collins will be running against Democratic candidate Chuck Silverman.  I had never heard of Silverman and so I did a little research.  He appears to be a civil attorney who ran for a civil court bench in 2010.  I don't know why in the world he's running for a criminal bench.

209th District Court Incumbent Republican Judge Michael McSpadden also does not have a listed Democratic opponent.

228th District Court Incumbent Republican Judge Marc Carter also does not have a listed Democratic opponent.

230th District Court Incumbent Republican Judge Brad Hart will be running against Democratic opponent and defense attorney Greg Glass.

232nd District Court Incumbent Republican Judge Mary Lou Keel also does not have a listed Democratic opponent.

248th District Court Incumbent Republican Judge Katherine Cabaniss will be running against Democratic candidate and former Judge Shawna Reagin.

262nd District Court Incumbent Republican Judge Denise Bradley will be running against Democratic candidate and defense attorney with the Public Defenders' Office, Jules Johnson.

263rd District Court The only contested District Court primary is between Republican Incumbent Judge Jim Wallace, who has drawn a primary challenger with defense attorney Robert Summerlin.  The winner of the primary will face off against Democratic opponent and former Judge Herb Ritchie in November.

The County Courts at Law

The County Courts are also going to be relatively quiet during the primary season, with the exception of County Court at Law # 10, where longtime Republican Judge Sherman Ross has chosen not to run again.

County Court at Law # 1 Incumbent Republican Judge Paula Goodhart does not appear to have a Democratic opponent according to the Harris County Democrats' website.

County Court at Law # 2 Incumbent Republican Judge Bill Harmon has drawn a challenger in Democratic candidate and defense attorney Harold J. Landreneau.

County Court at Law # 3 Incumbent Republican Judge Natalie Fleming also does not appear to have a challenger.

County Court at Law # 4 Incumbent Republican Judge John Clinton will be facing off against Democratic candidate Nikita "Niki" Harmon.  I'm not familiar with Ms. Harmon, but it appears that she is a City of Houston Municipal Judge from what I can tell from the Web.

County Court at Law # 5 Incumbent Republican Judge Margaret Harris will be running against Democratic challenger and defense attorney Ramona Franklin.

County Court at Law # 6 Incumbent Republican Judge Larry Standley will be running against Democratic challenger Linda Geffen.  I'm not familiar with Ms. Geffen, but found this interesting story about her when I looked her up on the web.

County Court at Law # 7 Incumbent Republican Judge Pam Derbyshire will be running against Democratic challenger and defense attorney Sheila Acosta.

County Court at Law # 8 Incumbent Republican Judge Jay Karahan will be running against Democratic challenger and District Court Chief Assistant District Attorney Kelli Johnson.

County Court at Law # 9 Incumbent Republican Judge Analia Wilkerson does not appear to have a Democratic challenger.

County Court at Law # 10 As noted above, with the retirement of Judge Ross, there are a host of candidates who will be running to fill an open bench.  On the Republican side, four candidates will be running:  former prosecutor and defense attorney Tonya Rolland McLaughlin, Deputy Constable Ken Wenzel, attorney Dan Spjut and defense attorney Mary Heafner.  On the Democratic side, two candidates will be competing for the nomination:  George Barnstone and John Connolly.

NOTE:  There will be a lot more discussion about this race in the days to come, but I'm going on record early as saying Tonya Rolland McLaughlin is the best candidate here.  She's going to need a lot of help in running against the politically active Spjut, so if you've got the time and the resources, Tonya's campaign is a good one that could use your help!

County Court at Law # 11 Incumbent Republican Judge Diane Bull does not appear to have a Democratic challenger.

County Court at Law # 12 Incumbent Republican Judge Robin Brown also does not appear to have a Democratic challenger.

County Court at Law # 13 Incumbent Republican Judge Don Smyth will be facing off against Democratic challenger, former prosecutor and defense attorney Jason Luong.

County Court at Law # 14 Incumbent Republican Judge Mike Fields has drawn a challenger in Democratic candidate, former prosecutor and defense attorney David Singer.

County Court at Law # 15 Incumbent Republican Judge Jean Spradling Hughes has a challenger in Democratic candidate and defense attorney Raul Rodriguez.

The District Clerk

Over the past several years, the position of District Clerk has become more and more relevant in the daily lives of defense attorneys, prosecutors and judges.  Republican incumbent Chris Daniel will be challenged by Court Koenning, a former Harris County Republican Party Executive Director.  The winner of this battle will face Democratic candidate Judith Snively.

Harris County Republican Party Chairman

Although not directly related to the business of the CJC, the leadership of the Harris County Republican Party under incumbent Jared Woodfill has a huge effect on who runs and wins in Harris County.  In my opinion, Woodfill and his friend Gary Polland have been running it into the ground at an alarming pace.  Challenger Paul Simpson is running against Woodfill, as is Wendy McPherson Berry.  Paul ran a good campaign against Woodfill last time and I'm glad to see him running again.

If Republican voters want to make some positive changes in their party, starting at the top is a good place.  I hope you'll support Paul Simpson if you are voting in the Republican Primary.

Sunday, December 8, 2013

Of Chemo and Diapers

So, tomorrow (Monday, December 9th) is the filing deadline for the 2014 elections, and I imagine that things are about to get hopping around the blog again with the different candidates.  Before we get into the grind of that, I thought I would do a quick update on why things have been so quiet here for the past couple of months.

Although I've posted very brief posts here and there on a couple of occasions, I've been pretty neglectful over here.  I've had several outstanding reasons, I promise!

As I posted here back in September, I had a brief and successful battle with leukemia over the summer.  I was officially declared to be in remission when I wrote that post.  However, as part of the complete treatment, I had to do eight follow up weeks of treatment with a drug called Rituxan to help ensure that the leukemia didn't come back.

The follow up treatment was no big deal, whatsoever.  I had about a three hour IV drip that I did on eight consecutive Mondays.  Since Rituxan sometimes causes an allergic reaction, the nurse would administer an IV drip of Benadryl prior to the Rituxan, and the Benadryl would usually put me right to sleep.

I've often thought that my life seems to play out like a long-running TV series.  I get done with one season of drama and roll straight on into the next one.  This was going to prove to be no exception:  My last scheduled treatment was on Monday, October 28th, which was a good thing since my wife was due to give birth on Wednesday, October 30th.

The week preceding the 28th only added to the drama.  I tried a week-long murder case in the 185th and the jury had found my client guilty that Friday (October 25th).  When we broke for the weekend, my client was testifying on his own behalf under my direct examination.  Judge Susan Brown had told the jury to come back the following Tuesday, so that I could make my Monday afternoon chemotherapy appointment.

My oldest son's birthday was that weekend and we had scheduled a costume party in the backyard at his mom's house.  The party was on Sunday and Luke's grandfather spent a large amount of time setting up tables and decorations outside in the yard all day Saturday.  Everything was set up for an easy start to the party the following day.

Of course, on Sunday morning at 6 a.m., I woke up to the sound of a torrential rain storm that seemed just slightly less ferocious than Hurricane Ike.  In all of our planning for the birthday party, none of us had bothered to check the weather.  That was a really really big oversight.

Miraculously, the rain started to taper off around 10 a.m., and Luke and I went to his mom's house to begin the world's fastest clean-up operation.  By that, I mean he watched television and ignored requests to clean his room while Sylvia and I frantically dried off every item in her backyard and moved it to the dry land of her driveway.

Amazingly, we pulled it together in time for the party and we had a successful celebration.  By Sunday night, I went to sleep exhausted, but proud of the effort.

On Monday morning, I had to be up before the crack of dawn to travel to Brazos County for a quick case setting.  The prosecutor and Judge Travis Bryan were more than accommodating as they let me reset my case quickly and get back on the road to Houston in time for my afternoon chemo.

My wife had a routine check up with her OB/GYN in anticipation of being induced into labor two days later on Wednesday.  Her appointment coincided with my chemo treatment, so I couldn't accompany her.  I went to the Oncology Consultants and started the Benadryl drip.

And that's when things got interesting.

Shortly before zonking out, my wife sent me a text saying that they wanted to move up the induction date to Tuesday and she was not happy about it.  I didn't blame her -- we still had a lot of stuff to do to get ready for a new baby.  I didn't have much time to respond before I fell asleep.

When I woke up two hours later, there were a lot of text messages piled up in my inbox.  That was a bad sign.  As it turned out, her blood pressure was high and the doctors were keeping her for observation.  She was optimistic that she might get released.  I wasn't.  There was no way the doctor was going to send her home when her due date was so close.

By the time I finished the chemo drip, I had marching orders to go straight home, pack our bags and come back to the hospital immediately.

In the space of two hours, I was able to drive home in Houston traffic, pack our bags, text Judge Brown and the prosecutors (telling them that I might not be able to make it to trial in the morning), pick up dinner and get back to the hospital.  Once we ate dinner, they began giving my wife the induction drugs.

We were both up pretty much all night and active labor started around 4 o'clock the next morning.

Right around 8:30 a.m., my wife delivered a healthy 9 pound, 4 ounce boy.  We named him after her late father.

About an hour later, I got a call from the 185th District Court wanting to know when I was going to be there for trial.  In all the excitement, I hadn't confirmed that I wouldn't be coming in.  Oops.

Luckily, everyone understood.

So after a few bumps in the road, it looks like everyone in my family is healthy and happy.  Luke loves his new brother, Smith, and Smith seems relatively content in life.  He's growing exponentially and seems to love sleeping -- as long as it isn't at night.

I don't know if it was the leukemia or just the fact that I'm 8 years and 3 days older than I was when Luke was born, but this parenting stuff is EXHAUSTING!  My energy level was much higher during chemo than it is with our little bundle of insomniac joy.

All in all, however, life is fantastic.  I'm tired but still grateful and happy for all the blessings in my life.

I know this post doesn't have anything to do with the CJC, really, but now you know where I've been lately.

I'm sure the new election season will have me writing much more frequently.

Monday, November 25, 2013

Rise of the Machines: The E-Subpoena Edition

Back in 2010, when Chris Daniel ran against my friend and then-incumbent Loren Jackson for the job of District Clerk, I was not a supporter.  Loren had done such an amazing job in such a short amount of time with the technology in the Clerk's Office that I felt there was no way Daniels could continue at such a pace.

Although it took some time, Chris has won me over.  He and his staff have worked very hard at bringing so many records online for easy viewing.  They have also made exponential leaps in making E-Filing more and more convenient and accessible for attorneys.

As much as I love all the new technology, there are still a couple of kinks in the system that have to be worked out -- for instance, if you need a quick Motion for Continuance in a Court and they only accept e-filings, how do you get that done when you are away from your computer?

Today's complaint is about the E-Subpoena -- not so much about how the District Clerk's Office handles them, but how the Sheriff's Office does.

I've only filed an E-Subpoena on a handful of occasions.  The first one I did was pretty straight-forward until I got to the portion that asked how I wanted the subpoena served.

In my case, I had a subpoena duces tecum (a subpoena for records).  I wasn't expecting a problem, so having the subpoena served by standard channels was fine by me.

I selected "Peace Officer" and got this response:

Well, I wasn't requesting personal delivery.  Mailing the subpoena or however they wanted to do it would have been just fine with me.  So ultimately I clicked "Private" and just had my investigator pick up the damn subpoena and serve it.  

A few weeks later, I had a case where I decided that I needed personal service on it.  I'll change the facts up a little for Attorney-Client privilege purposes.  

Let's say that the client was accused of stealing something at a place of business where there were security cameras around.  One of those security cameras is right where the crime was allegedly committed.  So, I send a subpoena to that business asking for the video footage.

I ask for the Sheriff's Office to file it.

I never hear anything back from the business, so after a few weeks, I call them for a follow-up.  The very nice lady on the phone tells me that she had already contacted me and let me know that there was no such video footage.  She insists that she e-mailed me at the listed e-mail address on the subpoena.

I asked her if she would mind forwarding that e-mail to me at and she agreed to do so.

As she noted, she very dutifully had notified the e-mail address on the subpoena:

Now, there are two problems with this e-mail she sent.  First of all the "name written on the subpoena" was my client's name.  The Defendant's name is always on the subpoena.  My subpoena had requested film footage.  It wasn't specific to a person -- it was specific to a place.  The business clearly misunderstood and did a records search for my client and found nothing.  That was no surprise to me, since my client would not have any legitimate purpose for being there.

The second problem is that they weren't e-mailing me about the problem, they were e-mailing the Sheriff's Office.

That could have been handled easily if the Sheriff's Department had forwarded along the e-mail.

Instead, they did this:

Um, yeah, the ADA (Assistant District Attorney) didn't subpoena those records.  The Defense Attorney did.  Additionally, it wasn't an incorrect filing.  It was perfectly fine.  It was just misunderstood.

None of this information would have ever been learned if I hadn't called the business and asked what was going on with my subpoena.

This is definitely a kink that needs to be worked out between the Sheriff's Office and the District Clerk.  If subpoenas are going to be issued solely by E-Filing, then they need to be reliable.  If I had been issuing a subpoena for a person's attendance in court (rather than records), I would have been asking the Judge of the Court to issue a Writ of Attachment for the missing witness.

I don't know that a Judge would have been comfortable in doing so with such an unreliable system in place.

I'm all for the E-Filing and E-Subpoena System.  It is so much easier to issue subpoenas from my office rather than handwriting them out in court.  Chris Daniel and the Clerk's Office are headed in the right direction with it.

There are just some things that need to be fixed and fixed quickly.

Thursday, November 21, 2013

The 248th Breakfast Invitation

Judge Katherine Cabaniss and the staff of the 248th District Court are hosting a Holiday Party: Coffee with the Court tomorrow morning, November 22, 2013 from 8:30 a.m. to 10:00 a.m.

Everyone is invited to stop by for kolaches and coffee and kick off the holiday season!

Monday, November 18, 2013

The Results of the Softball Game

As I mentioned last month, the second softball match up of the year between members of the Harris County Defense Bar and the Harris County District Attorney's Office was held on October 19th.  One of the added features of this particular game was that five generous donors had agreed to donate $100 per run to the Harris County Drug Court in the name of Mike Anderson.

I'm happy to report that the results of the fundraising were a tremendous success and raised a whopping $12,500!

Those donors (Chip Lewis, Paul Doyle, Will Womble, Walter Umphrey and Kristi Schiller) all combined for an outstanding tribute to an outstanding cause in the name of an outstanding leader and man.

In a related story, the County Commissioners unanimously voted to name the Drug Court's courtroom earlier this month.  It has now been officially named the Mike Anderson Memorial Courtroom.

Congratulations to everyone involved!

Monday, November 11, 2013

Happy Veterans Day

Happy Veterans Day to all those who served in our Nation's military.

A few years ago, I wrote this post which included a letter that my grandfather wrote to my father, Louis M. Newman III, when Dad was just a baby.

As I mentioned in that post, Dad went on to serve as a United States Marine who completed three tours of duty in Vietnam between 1967-1969.  He won two Purple Hearts, one Bronze Star and a Silver Star.

For those of us who have never served in the military and earned the title of Veteran, the idea of being in an actual combat situation is something that we cannot begin to comprehend.  It should not be lost on us that the reason that we cannot comprehend combat is because of the men and women who fought for us.

My Dad is proud of his time in the Marine Corps and the men he fought alongside in Vietnam.

But he isn't nearly as proud of his service as I am of being his son.

Tuesday, November 5, 2013

Candidate Signing Gathering on Wednesday

There will be a signing get together this Wednesday, November 6th for four Republican Judicial candidates at the Hotel Icon main floor bar.

Please join us from 5:00 to 7:00 p.m. to sign petitions for Justice Marc Brown and Judge Catherine Evans, as well as Texas Supreme Court Justice Jeff Brown and Civil District Court Judge Grant Dorfman.  Justice Ken Wise will also have petitions there.