Tuesday, June 21, 2016

Aggravated Robbery and the PSI Blockade

NOTE:  The first half of this lengthy post explains the law to people who don't regularly deal with criminal law.  If you already know criminal law, jump down about ten paragraphs and start reading.

Aggravated Robbery.

The name of the charge just sounds menacing.   The first degree felony is punishable by between 5 years and 99 years or Life in the Texas Department of Criminal Justice -- just like a Murder case.  Also like a murder case, there are countless ways that an Aggravated Robbery can be committed -- from the dramatic bank robbery with guns blazing and people injured to the proverbial starving mother who pulls a kitchen knife while shoplifting bread to feed her family.

Because there are so many different ways that an Aggravated Robbery can be committed, it is understandable that such a wide range of punishment is available for the offense.  Some cases clearly merit a higher sentence, while others do not.  However, because Aggravated Robbery is considered such a serious offense, a person who is convicted of it can only be given probation by a jury under Section 42.12 (3)(g) of the Texas Code of Criminal Procedure.  In other words, a Defendant on trial for Aggravated Robbery cannot ask a judge to give him or her probation if they are found guilty.  Only the unanimous verdict of the jury can save them from prison at that point.

The exception to this, of course, is Deferred Adjudication.  For those outside of the legal profession, Deferred Adjudication is where a judge finds sufficient evidence to find a Defendant guilty, but withholds a finding of guilt and places them on community supervision instead.  Since there isn't a final conviction, the Defendant can avoid prison as long as he or she successfully completes the terms of community supervision.  The downside to receiving Deferred is that if the Defendant screws up probation, he or she is only entitled to a hearing to the judge and the judge has the power to sentence him or her up to 99 years or Life in prison.

As a general policy, the Harris County District Attorney's Office will not offer a Deferred Adjudication to any Defendant accused of Aggravated Robbery.  I'm not a big fan of sweeping policies that forbid ever offering certain types of punishment for certain types of crimes.  Any lawyer that has handled felony cases for over a month realizes that there are exceptions to every rule and no matter how serious the words "Aggravated Robbery" sound, there are many some cases where a prison sentence just isn't the appropriate punishment.

Unfortunately, no District Attorney ever got elected on a platform of being "more understanding on violent crime."  I understand why such a policy exists, even if I don't agree with it.

Historically, if a Defendant wanted to get deferred adjudication on an Aggravated Robbery, he or she had to plead to the judge without an agreed recommendation from the State (WOAR).  In essence, that is the equivalent of throwing oneself to the Mercy of the Court.   In some instances, the judge would tell both the prosecutor and the defense attorney that if the Defendant pled to them without an agreed recommendation he or she (the Judge) would give them deferred adjudication.

For this to proceed, however, the State would have to agree to waive its right to a Jury Trial.

Like a Defendant, the State has the same right to a trial by jury.  If the State refuses to waive that right, then the Defendant's guilt or innocence must be determined by a jury.  If that jury finds the Defendant guilty, then the judge can no longer give them probation or deferred adjudication on an Aggravated Robbery (because a finding of guilty has been entered).  As noted above, only the jury can save the Defendant from prison with a probated sentence at that point.

Another way of resolving cases where the prosecution and the defense can't agree on an appropriate punishment for an accused is a Pre-Sentence Investigation (PSI) Hearing.  In a PSI Hearing, the Defendant pleads guilty to the offense and the Community Supervision (Probation) Department does a background check that ultimately results in a report to the judge.  That report can include information about the offense, the background of the Defendant, the criminal history of the Defendant, the feelings of the Victim, the substance abuse issues of the Defendant, and many other factors.  That report is given to the judge and then a sentencing hearing is conducted.

During the sentencing hearing, both the prosecution and the defense (usually) have the option of calling witnesses.  Usually, the prosecution calls victim impact witnesses and the defense calls character references for the Defendant.  At the close of the hearing, the judge has the full range of punishment available to him or her.  In the case of an Aggravated Robbery PSI hearing, the judge can place the Defendant on Deferred Adjudication, or sentence the Defendant to Life in Prison.

A PSI Hearing is generally an educated gamble for a Defendant and his attorney.  However, for a PSI to proceed, once again, the State has to waive its right to a jury trial.  If the State wants to remove the mere possibility of a deferred adjudication being granted to an Aggravated Robbery defendant, all they have to do is refuse to waive a jury trial.

And in recent months, that's exactly what the Harris County District Attorney's Office has been doing with increased frequency.  Refusing to waive a jury causes a jury panel of 65 people to be called to court, so that 12 of them can be selected, so that the Defendant can simply plead guilty to them and then ask them for probation.

Now, keep in mind, there is absolutely nothing dirty, suspect or fishy about an Aggravated Robbery case going to a PSI hearing.  Part of any judge's duty is to determine sentencing for accused in such a hearing if called upon.  Certainly, some judges have reputations for being tougher on punishment than others, but a PSI hearing offers absolutely no guarantees.

Determining an appropriate punishment is what a judge is elected to do.

If at the close of a PSI hearing, a judge determines Life in prison is appropriate, so be it.  If a judge determines that deferred adjudication is appropriate, then that is okay, too.

Over the past several months (and twice in the past two weeks), I've been told in certain courts, the District Attorney's Office would be refusing to waive a jury trial on an Aggravated Robbery case I was handling,  thus prevent me from going to the judge for punishment.  In essence, the message that refusal sends is quite clear:

The District Attorney's Office doesn't trust the elected Judge to do the "right thing" on the case, and therefore, it won't risk going to a PSI Hearing with him or her.

That's a pretty arrogant stance to take with an elected official.  It also belies the underlying feeling that a judge should merely be an extension of the prosecution.  Unless that judge is guaranteed to not even consider something so dastardly as a a deferred adjudication (if appropriate) on an Aggravated Robbery case, then that judge shall not be entrusted to determine punishment.  In other words, unless the judge is definitely going to do what the prosecution wants, that judge should not be trusted.

Apparently, judicial neutrality is not something that is valued by the D.A.'s Office.

In one of my instances, I was told that the State would not agree to a PSI on an Aggravated Robbery in the trial court, unless I agreed to let the case be removed to Impact Court where a different judge would be presiding.  I pointed out to the prosecutor that this was the equivalent of the D.A.'s Office giving the middle finger to the trial judge.

The irony of this is that the District Attorney's Office has the power to block a judge that they feel is too lenient, while a defense attorney who feels that a judge is too harsh is just shit out of luck.  Additionally, it completely disrespects the fact that the judge, like the District Attorney, is also an elected official who was chosen by Harris County voters.  If the voters trust a judge's judgment, why doesn't the District Attorney?  A judge is an independent entity and not an extension of the prosecution.  Sadly, this is an idea apparently lost on the Office at the moment.

On occasion, some judges find themselves at odds with the District Attorney's Office.  For instance, when former Judge Kevin Fine declared the Death Penalty to be unconstitutional, the District Attorney's Office more or less went to war against him.  Without commenting on what side I was rooting for in that battle, it was at least understandable as to why the battle was occurring.  Recently, it appears the D.A.'s Office is ready to fight with a judge over every instance where it disagrees with that judge.  Judges who disagree with the Office (or take them to task) risk being labeled as the next Kevin Fine by the prosecution.

Perhaps the District Attorney's Office should take a moment to remember that almost every single criminal judge in Harris County is a graduate of the District Attorney's Office (including two of the judges that the D.A.'s Office indicated they would block PSIs to).  If a former-prosecutor-turned-judge has a different outlook on criminal justice than the current prosecution, maybe it shouldn't be entirely disregarded.

Not to sound cliche here, but if a prosecutor's duty is to see that justice is done, perhaps that same prosecutor should come to terms with the idea that he or she is not the ultimate arbiter of justice.

Theoretically, that person should be the neutral judge.


Tuesday, May 17, 2016

Early Vote for Judge Mary Lou Keel

Early voting began yesterday (Monday, May 16) for the May 24th runoff election.

The most important one, by far, is the Republican race for the Court of Criminal Appeals, Place Two, which pits Harris County District Judge of the 232nd District Court, Mary Lou Keel, against Ray Wheless from Dallas.

I've known Judge Keel since I first started at the D.A.'s Office.  I have tried cases in front of her as both a prosecutor and as a defense attorney.  She defines the very idea of the tough but fair judge.  She calls balls and strikes on issues of the law and draws from her decades of legal experience.  She knows the rules of law and procedure off the top of her head and she is Board Certified in Criminal Law.

She would make a tremendous addition to the Court of Criminal Appeals.

Her opponent has run a disappointingly misleading campaign.  He has tried everything in his power to distract from the very obvious fact that Judge Keel is the more qualified candidate for the position.  He has tried to tap into Party Politics rather than examining ability for the job.  He and his surrogates have run an extremely misleading campaign that has tried to tie the actions of a neutral Grand Jury to Judge Keel.

The irony is that anyone with even the slightest understanding of the law would remember that Grand Juries are now selected from a neutral jury pool (as Judge Keel had been doing long before it was mandated) and have no personal ties to the Judge of the court.  Wheless and his cronies have tried to argue otherwise.  While politicians might fall for that type of argument, it is a shame to see that a man seeking the job of Justice of the Court of Criminal Appeals would be so intellectually dishonest.

Please tell your family and friends around the State to remember to vote for Judge Keel in this statewide race.  She had the largest amount of votes back in March, but we all know that the biggest enemy to a qualified candidate is low voter turnout in the runoff.

Make sure you vote too and spread the word.

Monday, May 16, 2016

Services for Robin Mitchell

There will be a celebration of life for Robin Mitchell on Saturday, May 21st at 3 p.m. at St. Mark's United Methodist Church, 600 Pecore, Houston, TX 77008.

As you know, we lost Robin last week to pancreatic cancer.

A fund has been set up to help support medical costs, as well as education costs for his children.  If you can, please donate at this website.

Wednesday, May 11, 2016

Farewell to a Friend

Last October, I went for my semi-annual check up with my oncologist.  I was expecting good things.

First of all, the type of leukemia that I dealt with two years earlier has an extremely low recurrence rate, so other than natural mild paranoia, I wasn't too concerned about getting some bad news.  Additionally, at the last appointment, my doctor told me that he would be moving to annual visits if I got the "all clear."

Not that I minded the blood draws twice a year.  After going through chemo in 2013, I'm pretty used to needles.  Moving to a once-a-year visit is more of a symbolic thing, really.  It kind of signals that the doctor thinks you are sufficiently out of the woods that he doesn't need to keep such a close eye on you.

As expected, my reports were good.  As promised, my doctor told me that I wouldn't have to come back for another year.

Before I left, he asked me if I'd had my flu shot yet.  I hadn't.  He recommended I get that taken care of while I was there.  No problem.  Like I said, I had no problem with needles.

At my oncologist's office, there are three sections for patients:  the waiting room, the lab and the treatment center.  The treatment center is where I'd gone for chemo.  I hadn't been back there since I'd rung the bell on October 28, 2013.  That's where they sent me for my flu shot.

I was kind of glad to go back there.  I wanted to say hello to some of the nurses that had worked with me.  I particularly wanted to say hello to Kathy, who had been my "main nurse" during the chemo days.

She was busy when I went back there.  I could see her tending to another patient who was getting chemo.  It wasn't lost on me that while I was just getting a flu shot, every other patient in the treatment center was receiving chemotherapy.  As much as I wanted to say hello, it was better to get my shot and go on without bothering anybody.

I had to wait a while for the shot.  I didn't mind.  Any time you walk out of an oncologist's office without bad news is a good day.  After a wait, I got my flu shot and I got ready to leave.  I could see Kathy was talking to a patient and I tried to catch her eye just to wave to her.

When I did move around to wave, I saw the patient she was treating and my heart sank.

The patient in the chair was a friend.

A friend and fellow defense attorney who I had known since my prosecutor days.  A guy with a perpetual smile who was always ready to laugh with you at even the slightest joke.  Not someone that I was particularly close with, but someone that I would always stop and talk to when I saw him.  I had last seen him a month earlier, when I was driving with my 10-year-old and he was out jogging around 610 and Shepherd.  We had pulled over and talked to him, and I told him that my son had asked if he was homeless -- which had cracked him up.

We looked at each other and almost simultaneously said, "What are YOU doing here?"

We talked for a second and he smiled the whole time.  Then, his smile faded a little and he said he had pancreatic cancer and it had metastasized. When someone tells you that, there isn't much else to say other than "oh shit."

So, I said, "Oh shit," and he chuckled.

"Well, you're in good hands," I said.  "Kathy is the best."

He nodded and said he was staying upbeat.  He told me about the different things the doctor said were treatment possibilities.  I gave him my card and cell phone number and told him if he needed ANYTHING to call me.  He said he appreciated it, and he asked me not to say anything about it at the courthouse.

And I didn't.

I saw him at the courthouse a few weeks later.  He was still upbeat.  He said that he and his wife had driven to Austin to tell his daughter the news.  He said that in a way, he was glad for the excuse to go see his daughter and spend some time with her.  He asked me for Johnny Bonds' phone number, because he knew Johnny and knew about Johnny's own battles with cancer.

He laughed as he told me that the doctors wanted to continue with his course of treatment for a year to see if it was working.  If not, they would change it.

"So I told them, 'So you're saying I've at least got a year!'" he laughed.

I saw him a month or two ago at the courthouse.  He had lost some weight but still seemed relatively upbeat.  He said the cancer treatment wasn't going that great but he was still plugging along.

Today,  I was sitting down to lunch with some friends, one of them asked me, "Did you know Robin Mitchell?"

Again, my heart sank.  I knew what was coming next.

Yes, I knew Robin Mitchell, and I was lucky to.  If you're reading this, I hope you knew him too.

He was a tall, gangly guy with prematurely white hair, who always had a smile on his face.  Despite the depressing place that the CJC can so often be, he always seemed happy.  Even when he was going through such a tremendous struggle.

I thought about Robin a lot ever since I saw him at the oncologist's office.  I think the part that made it so sad to me was the fact that Robin always was so happy when I saw him.  There is just something that makes you feel better when you hang around somebody that is always on the cusp of that next laugh.  He brightened up a normally dark place.

My heart goes out to his family.  I will truly miss seeing his smile around the courthouse.

Wednesday, May 4, 2016

Portrait Unveiling for Judge Mary Bacon

Tomorrow, May 5th, 2015 at 12:00 p.m., there will be a portrait unveiling for retired 338th District Court Judge Mary Bacon on the 20th Floor of the Criminal Justice System.

Judge Bacon has been retired for some time now, but I had the pleasure of trying a case in front of her when she was a visiting judge.  Not only is a great judge, she is one of my favorite people.  I'm very glad to hear about the portrait unveiling.

Please come by if you are in the neighborhood and have the time.

Thursday, April 21, 2016

HBA Presents Miranda v. Arizona

The Houston Bar Association is presenting a re-enactment of the United States Supreme Court arguments in Mirnada v. Arizona.  The re-enactment will take place on Friday, April 29th at 2:00 p.m. at the Harris County 1910 Courthouse.

There will be some very familiar faces in the cast, and the event is free.  It also counts as an hour of free CLE, so it is definitely a win-win situation.

For more information, click here.

Wednesday, April 20, 2016

Help Neil Krugh Raise Money to Fight Alzheimer's Disease

Our friend, and all around good guy, Neil Krugh is raising money to help the research of and fight against Alzheimer's Disease.  Of course, he's doing it in a pretty fun way, by agreeing to be the head coach of a Powder Puff football team in a charity match, but it still counts.

Please help this great cause -- as well as Neil's coaching career -- by donating at his website.  You can check it out by clicking here.

Wednesday, April 13, 2016

The Catch-22 of Domestic Violence

Domestic violence was the focus in The New York Times over the weekend, as they profiled the March 7th murder-suicide of Nadia Saavedra at the hands of her estranged husband, Alejandro Uribe.  Although the murder of a woman at the hands of an estranged husband or boyfriend is, sadly, a frequent occurrence, the tale of Ms. Saavedra and Mr. Uribe was front page news.  It also drew the attention of Mayor Bill de Blasio’s administration.

“Nadia Saavedra’s death underscores the urgent need to intervene well before violence happens,” said Sarah Solon, the spokeswoman for the Mayor’s Office of Criminal Justice.

The Times seems to have focused on the Saavedra murder because there was virtually no police involvement for the couple prior to the murder, which according to the article, is not uncommon.

As murders in New York City have fallen to record lows in recent years, domestic killings have come to make up an ever larger part of detectives’ workloads.  The cases often take shape out of the Police Department’s view – less than one-third of victims and abusers in domestic homicides have had previous contact with officers – frustrating an agency that is trying to home in on the most violent and vulnerable people.

The focus of the article seems to argue that a lack of police presence in the life of Alejandro Uribe was the cause of Ms. Saavedra’s murder.  It notes that the only time Saavedra had called the police in regards to her husband was on January 28th, when Uribe was threatening to kill himself.  The focus of that police interaction was not on Saavedra’s safety, but on her husband’s.   The following day, officers responded to Saavedra’s apartment when she reported Uribe was trying to break in.  He was taken to a hospital to treat self-inflicted cuts to his arm and no charges were filed.

Other than responding to Uribe’s suicide attempts, the only other legal interaction relevant to the case occurred the following day, when Saavedra filed a temporary order against Uribe in Family Court.  Again, The Times seems to take issue at the lack of police (or other governmental agency) involvement.

By the morning of March 7, the order had not been served.  It indicated Ms. Saavedra needed to “arrange” to have it served by contacting the authorities, but police records show that she never did – a reflection of the onus placed on victims to secure their own protection, say counselors who work with domestic violence victims.

The statistic that  “less than one-third of victims and abusers in domestic homicides have had previous contact with officers” is somewhat surprising.  Prosecutors routinely attend domestic violence seminars that teach of cycles of abuse and patterns of escalation in violence.  Although domestic violence is certainly underreported to authorities, the idea that two-thirds of all “domestic murderers” had zero prior contact with the police is a staggering statistic.

Police officers in the South Bronx are trying to break through the shame and fear that often keep victims from reporting abuse, visiting them repeatedly even if the slam the door.
The killing of Ms. Saavedra, who lived in a private, five-story walk up building, emerged from the same swirl of jealousy, mental instability and silence that makes it difficult for investigators across the city to anticipate domestic violence.

The fact of the matter is that even when police and prosecutors do become involved in domestic violence cases, that involvement can often do more to exacerbate the situation than remedy it.  Although domestic violence is serious and can potentially have lethal consequences, the manner in which the cases are handled generally do very little to actually help.  While law enforcement may have the best of intentions in helping a situation, the collateral effects can very easily lead to a Catch-22.

The most common scenario where police become involved in a domestic violence situation is when the violence is in progress.   The majority of these incidents involve a female, fearing for her safety, calling 911.  Officers respond, arrest the (usually male) offender, and take him to jail.  At some point during the next few days, the fear and intensity of the incident begins to fade and the unfortunate reality of life sets in.

The reality of life is that while the abuser sits in jail, awaiting charges of assault or domestic battery, he or she isn’t at work.  When he or she isn’t at work, a paycheck isn’t being earned.  If money is tight, the idea of bonding out is far out of reach.  A few days of missed work will, more often than not, lead to a lost job.

People without jobs are more likely to abuse their partners, counselors say, in part because they lose their stake in following social norms.  Around 40 percent of domestic homicide victims in New York City from 2004 to 2013 lived in communities with high poverty, compared to about a quarter of the city’s population over all.

In addition to losing “their stake in following social norms,” abusers are likely to also lose their homes.  When abusers lose their homes, they aren’t the only ones; the victims of said abuse (and their children) usually lose that same roof over their head.  These circumstances, coupled with fear, lead so many victims of abuse to do everything in their power to drop charges against their abusers.  The phenomenon of the recanting domestic violence victim is so prevalent that many District Attorney’s Offices have specialized divisions that are specifically tasked with prosecuting domestic violence cases without the cooperation of the victim.

Defense attorneys often criticize prosecutors who are reluctant to dismiss domestic assault cases and accuse them of meddling in private relationships.  Yet, those who prosecute domestic violence cases against the wishes of the victim aren’t doing so to make life difficult for them.  They have a genuine fear that some day the victim of a misdemeanor assault case will end up like Nadia Saavedra, and no prosecutor wants that on his or her conscience.  The unintended consequences of job loss, economic devastation, and increased hostility from the abuser are unfortunate, but acceptable, collateral damage.

In the Fall of 1994, I was an investigator’s assistant at the District Attorney’s Office in Brazos County.  I vividly recall a woman who came to the office on an almost daily basis, lobbying to drop charges against her common-law husband, who had physically assaulted her.  Ultimately, the prosecutor handling the case realized it couldn’t be proven and dismissed the case.  The afternoon the case was dismissed, we responded to a murder scene.  The common-law husband had stabbed the woman to death in front of a playground full of children.  As he stabbed her, he repeatedly yelled to her: “Was it worth it? Was it worth it?”

That cold afternoon in November has always served as a reminder to me that there is no easy solution or prevention when it comes to domestic violence.  Although the New York Times may level the blame for Ms. Saavedra’s death on a lack of police intervention, the unfortunate truth is that police intervention often has the story ending in the exact same way. 


That’s the Catch-22 of domestic violence.

Tuesday, March 29, 2016

Seeking a Police Blogger

As many of you know, I also do a little bit of blogging over at Mimesis Fault Lines.  Scott Greenfield and Lee Pacchia have a great line up of bloggers over there to write about the criminal justice system.

I was honored to be invited to be a writer for them, and I get to write alongside some of the best bloggers in the country.  Not that I want to boost Scott's ego anymore, but having him as an editor has been a tremendous gift that I couldn't have gotten anywhere else.

Scott and Lee are always looking for talented writers to join the ranks of Fault Lines, and they are looking for people who write from differing viewpoints.  We currently have a Federal judge, a card-carrying prosecutor, a former-police officer/defense attorney, along with some very prominent names from the defense blogging community.  Most recently, JoAnne Musick has joined the ranks as a regular contributing writer.

We are currently looking for a blogger to write from a police officer's perspective.  Retired or active.

It isn't a commitment to enter into lightly.  Anyone interested would be writing once or twice a week (depending on what you agree to with Scott and Lee).  They want a post that comes in around 1000 words and it needs to be on a topic that is relevant, current, and interesting to a national audience.  Most importantly, they want it to be smart and offer an insight that people don't get when just reading the newspaper.  Scott is a tough editor, but his corrections and suggestions will make you a better writer.

The deadlines that you commit to are firm. Having a bad day, the sniffles, or feeling just too tired to write something are not sufficient excuses for not having something on your scheduled day. Trust me, I've tried! If you are interested, please realize that they are very very serious about that.  You will also have to have a thick skin when people call you out when their opinions differ from yours.

On the plus side, the people that read your stuff are interested in your opinions.  Some of the things we've written have been quoted in newspapers across the world.  It is a fantastic opportunity to have your voice heard.

In short, it is a tough gig, but one that I'm proud as hell to have.

If you are interested or have any questions, feel free to shoot me an e-mail at murray@murraynewman.com or leave a comment.

Tuesday, March 22, 2016

R.I.P. Dr. Newman

Truth be told, I've never been a real big fan of my name.

Don't get me wrong, I like the legal one.  Louis is just fine by me.

Unfortunately, I'm the fourth person to have the name Louis M. Newman in my family.  When I arrived on the scene, my three predecessors had already claimed "Louis," "Lou" and "Louie" and there apparently weren't any other natural derivatives of the name.  For some reason, my parents took my middle name which is Murat (here's where that name came from) and came up with "Murray" as my street name.

It aggravates the hell out of my mom when I tell her I don't like my name.  I'm not alone in my dislike for it.

As the Internet came to be, I, like everyone else, googled my own name and learned that there were at least two other Murray Newmans out there who were much more prominent than I ever thought of being.

One was an Australian football player who seemed to get in trouble with the police quite a bit.

The other, was quite a bit cooler.  He was a Canadian gentleman who was the founding director of the Vancouver Aquarium.  He was also one of the world's foremost experts on Killer Whales.

Kind of made me feel like the name might be just a little bit cooler.

Dr. Newman passed away on Friday, at the age of 92.  From what I've read, he leaves behind an utterly amazing legacy in his marine studies and conservation.  I've been reading up on my namesake for years, and I found myself surprisingly sad to learn that he passed away.

So, here's to you Murray.  I enjoyed sharing a name with you.  Rest in peace.

Friday, March 11, 2016

A Very Nice Article on Anh Reiss

In case you missed it, there is a very nice article in the Houston Chronicle today on Anh Reiss, the wife of my friend and Harris County Assistant District Attorney Josh Reiss.

It was a beautiful life and a beautiful ceremony to celebrate that life.

You can read the article here.

Tuesday, March 1, 2016

The Lawyer and the Legislator

Few cases in recent memory have taken as many bizarre twists as the case of Shannon Miles, who stands accused of the murder of Harris County Sheriff’s Deputy Darren Goforth on August 28, 2015.  Deputy Goforth was shot fifteen times as he was walking to his patrol car at a gas station, and there was no apparent motive for it. 

Detectives with the Sheriff’s Office made a swift arrest within twenty four hours, and Sheriff Ron Hickman and District Attorney Devon Anderson gave press conferences about Police Lives Matter.  A huge funeral for Deputy Goforth was televised across Houston, and Governor Greg Abbott was in attendance.  Although D.A. Anderson did not declare it officially, seeking the death penalty on Miles seemed like an inevitable conclusion.

The first twist came within a month, as Miles’ defense attorney, Anthony Osso, told announced to the media that the evidence indicated that Goforth may not have exactly been “on duty” at the time of his death.  There was information that perhaps Goforth was there to meet a female, other than his wife, for personal reasons.  Osso wasn’t muckraking; for a murder to qualify as a Capital offense in Texas, the officer must have died in the line of duty. 

The next twist would occur in October, when it was revealed that one of the Sheriff’s Office Investigators, Sgt. Craig Clopton, had begun a sexual relationship with a witness involved with the case.  That witness?  The above mentioned female who Deputy Goforth had been meeting at the gas station.  As if this stunning piece of information wasn’t bad enough, earlier this year, two additional Harris County Sheriff’s Deputies lost their jobs for inappropriate contact with that same exact witness.

As the Sexual Sideshow of the State’s Star Witness continued to play out in the media, Osso challenged his client’s mental competency to stand trial.  Miles had a history of mental illness and his competency had been challenged in some of his earlier arrests.  On February 9th, Miles was found mentally incompetent to stand trial.  As per the standard procedure, Miles was ordered to Vernon State Mental Hospital for a 120 day evaluation to see if his mental competency could be “restored.”  Due to the size of Harris County and the limited availability of beds, Miles found himself behind about sixty other inmates waiting to be sent to Vernon from the Harris County Jail.

On February 10th, the case of Shannon Miles took yet another bizarre twist when Texas State Senator John Whitmire inserted himself into the case.  By his own admission, Whitmire contacted the staff at Vernon State Hospital to expedite Miles’ transfer there from Harris County.  Avoiding the potential ninety wait that Miles was expected to be facing, Vernon agreed to take the accused cop killer within a week.

“He’s a sick person, and where do you place sick people?  In a hospital, not a jail,” Whitmire said.

Senator Whitmire, who serves as the Chair of the Senate Criminal Justice Committee, has long been active in shaping the policies surrounding Texas Criminal Justice.  Historically, his actions in the Senate have been regarded as being dedicated to helping ensure the rights of the accused and he frequently finds himself clashing with prosecutors.  This time around, however, Whitmire finds himself in conflict with Miles’ defense attorney, who had no desire to see his client’s move to Vernon expedited.

On February 12th, Osso filed a Motion to Halt the Expedited Transfer of Defendant From the Harris County Jail to the State Mental Health Hospital.  Taking issue with Whitmire’s involvement in the case, as well as Whitmire’s claim that he contacted Vernon State Hospital for Miles’ safety in the Harris County Jail, the Motion stated:

. . . Mr. Miles has been incarcerated in the Harris County Jail since the time of his arrest in August 2015.  For the past 5 ½ months the senator has shown no concern for the safety of Mr. Miles, nor has he secured an alternative location for the inmate in the event his competency is restored and he is subsequently released by the state hospital back to the Harris County Jail.

One would think that at this point, Senator Whitmire would realize that his assistance in the Miles matter was no longer desired.  It does not appear that anyone in particular had requested his intervention in the first place, and now counsel for the accused has specifically trying to stop his attempt to expedite the transfer.  Surely, the senator could take a hint and bow out, right?


“I do this every day,” the Houston Democrat [Whitmire] said of the most recent case in which he has injected himself.  “I’ve heard that the lawyer is going to try to block my involvement.  Good luck on that.  He’s not even going to slow it down.”

Holy Arrogance, Batman, it appears that Senator Whitmire has been watching a little too much Donald Trump.  Osse responded to Whitmire’s refusal to back down by filing a Motion to Preclude Senator John Whitmire from Interfering in the Prosecution of Shannon Miles.  Lest one think that the conflict had degenerated entirely into a Texas-sized pissing contest, Osso actually raised very valid points to keep Whitmire out of Miles’ business.

Senator Whitmire’s interference in the process of competency restoration raises serious questions about whether doctors can evaluate Mr. Miles fairly and independently, free from outside influence.  In securing a bed for Mr. Miles, he has indicated that he wants to see Mr. Miles brought trial quickly, at whatever cost.  He has sent a strong message that competency must be restored, and quickly.  As a powerful political figure, doctors will surely take note and potentially err on the side of finding competency restored.

He also noted:

As part of the Texas legislature, Senator Whitmire holds the purse strings to the funding of state-sponsored mental health facilities.  As a result, he has considerable influence over the staff at these facilities – one disagreeable move by the staff, and a department could lose funding.  His interference in this prosecution therefore places a thumb on the scale of finding competency restoration.  Particularly if the case is a close one, doctors may feel pressured to conclude that Mr. Miles can assist his legal team when he cannot.  This Court should therefore order Mr. Whitmire to refrain from interfering in this prosecution.

Osso also cited the separation of powers principles and noted that Whitmire was acting “well beyond the scope of his authority.”  He’s absolutely correct about that.
A hearing in front of Judge Susan Brown is scheduled for Wednesday, March 2nd.

Senator Whitmire has a long-standing history of trying to improve the Criminal Justice System and he’s never been afraid of backing down in the face of opposition.  Based on his track record in Congress, one could easily give him the benefit of the doubt in assuming that his uninvited involvement in the Miles case was inspired by good intentions.  However, once Miles’ attorney has asked him to back off, it is incumbent upon the Senator to do so.  His refusal to back away from the case is befuddling.

Anthony Osso is a good lawyer who also has a reputation of not backing down in the face of opposition and he has certainly has no reason to back down from defending Shannon Miles.  In almost any other situation, Osso and Whitmire would most likely find their interests being aligned, but  for some inexplicable reason, that is not the case here.  Osso’s rationale for his opposition to Whitmire is well articulated and understandable. 


Whitmire’s involvement, at this point, is unjustifiable.

Saturday, February 27, 2016

Paul Motard

My first "official" foray into the world of Criminal Justice was my Junior year at Texas A&M when I got an academic internship at the Brazos County District Attorney's Office in April of 1994.  I started working there after my dad had happened to bump into Bill Turner, the elected D.A. back then, and told him that I was really interested in becoming a prosecutor.  Bill offered me an internship with the office and put me under the supervision of his one and only D.A. Investigator,  retired HPD Homicide investigator Gil Schultz.

For the next two and a half years (right up until I left to go to law school in Houston), I worked for Bill and Gil.  Gil became like a second dad to me and he took me to crime scenes, autopsies, witness interviews, and trials.  He told me war stories about his days with HPD -- a career where he served ten years in patrol before serving sixteen in homicide. Whenever Gil talked about his days in Homicide, he would talk about his old partner, Paul Motard.

They had worked on the infamous case profiled in Daddy's Girl and Cold Kill together, as well as countless others.  Gil, who redefined the term "outgoing personality," described Motard as much quieter and more straight-laced than Gil was, but as a phenomenal investigator.

Gil and I would come down to Houston every couple of months for one reason or another.  He even took me apartment hunting when I moved here for law school, because he was worried I'd move to a dangerous part of town.  Every time we came to Houston, I'd ask him when was he going to introduce me to this Paul Motard guy.

For two and a half years straight, I never met Motard.  Every time we'd come to Houston, he was either out of town or in the middle of an investigation.  I began to think that he was a figment of Gil's imagination.

I came to Houston for law school in August of 1996 and started at the Harris County District Attorney's Office in August of 1999.  I worked there for about three years before attaining the rank of Felony Two, which is when a prosecutor finally gets to start trying murder cases.  I had been trying murder cases for a couple of years when I moved to the 185th District Court under Judge Susan Brown.

Judge Brown's court is a very "high trial" court, and there were plenty of great murder cases waiting for me when I arrived.   One of the cases was the high profile murder of a TSU student on campus, and the other involved two murders that had occurred around the Roadrunner and Red Carpet Inn.  The investigators on the cases were C.P. "Abby" Abbondandolo and the elusive Paul Motard.

I had worked on several murder cases with some great homicide cops prior to getting to work with Abby and Motard, but these two set a new standard for me.  The amount of detail and work they put into their cases was extraordinary.  On the TSU case, the case had initially been handled by another law enforcement agency that had alienated almost all of the witnesses at the scene.  When Abby and Motard came in, they had the difficult task of reestablishing trust with those witnesses and tracking down a killer who had ended the life of a completely innocent victim.  They did so with ease.  

They were able to develop enough leads to track down the shooter's cousin, who led them to the shooter.   He was identified and a very solid case was built.  However, it wasn't solid enough for Motard and Abby.  The one thing that they had not gotten was a confession -- the suspect had invoked his right to an attorney.  Despite the fact that I didn't need a confession because of the great work they had done, Motard and Abby kept telling me "next time we'll bring you a better case."  That was just their standard and work ethic.

These guys were Old School Homicide cops, and damn, they were good at what they did.  

Abby retired a few years ago and moved out of state.  I got to work with him on a couple of episodes of Cold Justice last year, and he is still just as awesome as he ever was.

But getting to try those cases with Motard felt like I had come full circle.  With as close as Gil and I were, I was so excited to be able to tell him I tried some cases with his old partner.  It was a great experience and I'm very honored to say that I tried cases with a guy who is truly a legend of HPD Homicide.

Paul Motard retired this week.  He'd been a cop since 1974.  I believe that 36 of those years were in Homicide.  At his party, the guys from Homicide gave him his "field notes" from his first case.  It was a stone tablet engraved with the words:

      VICTIM:  Abel
      SUSPECT:  Cain
      WITNESSES:  Adam & Eve
      WEAPON: Rock

A lot of the legendary names from the Homicide Division's past came to wish Paul well, including old Gil.  It was a great time, and I was happy to be invited to attend.


Back when I was interning for Gil, he told me that I had to get out of Brazos County and go work in Houston.  Harris County had the best prosecutors, defense attorneys, and cops in the country.  He was right about that.  And one of those best cops finally took a very well-deserved retirement.

Congratulations, Paul!





Monday, February 22, 2016

Sgt. Bobby Roberts Retires

I'm happy to announce that my friend, Sgt. Bobby Roberts of Houston Police Department, is taking a well deserved retirement this week after 30 years as a police officer.

I first met Bobby when I was at the District Attorney's Office.  He was the lead Homicide detective on the one and only Death Penalty Capital that I ever went to trial on (okay, I was just second chair with Lance Long, but it still counts).  As we prepared for trial, I got to be good friends with both Bobby and some other dude named Roger Something or Other, and we've stayed friends ever since.

Bobby went on to work in the Narcotics Division and I went on to work at the, um, well not at the D.A.'s Office anymore.  I got to deal with him on the Defense side of things it was always great to get to work with him on this side of things.

There will be a retirement party for Bobby on Friday, February 26th at 11 a.m. at the Houston Police Officer's Union (1600 State Street, Houston, TX 77007).  

Congratulations, Bobby!


Tuesday, February 16, 2016

Early Voting Begins Today

Election season seems to be moving quickly this year -- probably because of the entertaining (and frightening) sideshow in the Presidential race -- and early voting for the primaries snuck up on me.  It begins today and I hope everyone will get out and vote.  Those folks working Downtown can quickly and easily vote over at the Harris County Administration Building.

Remember, you can vote at any polling location during Early Voting, but on Election Day (Tuesday, March 1st), you can only vote at your designated polling spot.

There aren't too many contested primaries in the Criminal Justice elections this year.  I'm going to break them down by Party, although I covered all of the races earlier in this post.  I won't be mentioning the non-contested races.

REPUBLICANS

County Attorney -- yeah, I know that the County Attorney isn't really part of CJC life, but since Jim Leitner is running, I've got to talk about it.  Leitner is facing off against Chris Carmona.  Leitner has been touting his experience as 1st Assistant under Pat Lykos at the D.A.'s Office, but he's neglecting to mention how widely disliked and distrusted he was in that position by those he supervised.  He also apparently neglected to mention how he's not really all of that strong of a Republican -- having worked for Democratic Sheriff Adrian Garcia (before being terminated by Republican Sheriff Ron Hickman) and supporting Democrat Kim Ogg's campaign for D.A.
Recommendation:  Not Jim Leitner  Chris Carmona

178th District Court--four candidates are running on the Republican side:  Xavier Alfaro, Phillip Gommels, Nile Copeland and Bash Sharma.  Really, only Alfaro or Gommels should be considered.  Copeland appears to be a Lloyd Oliver in training, as he tends to hop between Democratic and Republican primaries, and position to position.  Copeland also does not seem to practice any criminal law.  I'm not real sure who Bash Sharma is.  His name and face are not familiar so he must not do an overabundance of criminal practice.
Both Alfaro and Gommels practice exclusively criminal and both are qualified for the job.  Alfaro is generally well known and has been around longer than Gommels.  He has the edge when it comes to experience.
Recommendation:  Xavier Alfaro

339th District Court--two Republican candidates are vying to challenge Democratic Incumbent Judge Maria T. Jackson in November:  Assistant District Attorney Mary McFaden and defense attorney Antonio Benavides.  Both have been licensed approximately the same amount of time, but Mary has been a prosecutor and exclusively handling criminal law her career, while Benavides seems to cover many different aspects of law.  Mary is also a chief prosecutor which gives her the edge on experience.
Recommendation:  Mary McFaden

Court of Criminal Appeals, Place 2 --  232nd District Court Judge Mary Lou Keel is running for the Court of Criminal Appeals.  She has two opponents, and quite honestly, I'm not even familiar with their names.  I do know Judge Keel, though.  I've tried cases in front of her as both a prosecutor and a defense attorney.  She defines being fair and "by-the-book."  Her knowledge of the law and her unbiased application of it make her an excellent candidate for any judicial bench.  I'd hate to lose her in Harris County, but she would be outstanding at the Court of Criminal Appeals.

Vote for Judge Keel and get the word out to your friends in other counties to vote for her.
Recommendation:  Judge Mary Lou Keel

DEMOCRATS

Harris County District Attorney -- Former Texas Court of Criminal Appeals Justice Morris Overstreet is running against Kim Ogg.  Oh yeah, and of course, Leaping Lloyd Oliver.  Based on his past experience and positive campaign message, I would recommend Overstreet over Ogg.  Ogg, who ran for District Attorney in 2014 has had some troubling issues in her campaign and her legal practice that concern me.  Kim seems to adopt that Pat Lykos-style of campaigning of jumping on and supporting every bandwagon that she believes plays to her political advantage, regardless of the legality of that bandwagon.  Although pandering has become an expected activity in political campaigns, promises of prosecutions to get votes is a scary trait that she exhibits often on the campaign trail.
Recommendation: Morris Overstreet

174th District Court -- current Democrat, Judge Ruben Guerrero is not running for re-election and three candidates are running to replace him on the Dem side:  Garland McInnis, former-Judge Hazel Jones, and Raul Rodriguez.  Jones lost her bench in 2012 after serving only one term.  Her reputation on the bench wasn't extremely bad, but it wasn't very good, either.  She had strange policies on attorneys working out of court hours on their clients' cases and her knowledge of the law wasn't considered to be strong.  I've known Garland McInnis for a long time now.  He is smart and would make a good judge, but he has been out of the criminal law loop for awhile now while working at the County Attorney's Office.   Raul Rodriguez has maintained a steady criminal law practice for as long as I can remember and I believe that experience with criminal law is what matters.
Recommendation:  Raul Rodriguez

176th District Court -- former 176th judge Shawna Reagin is running to retake the bench she lost in 2012.  She's running against Niki Harmon, a municipal court judge.  Although Reagin was a controversial on the bench for her demeanor, I never had a personal problem with her and generally found her to be a good judge.  She is most definitely qualified and has vastly more experience with felony cases than her opponent.
Recommendation:  Shawna Reagin

177th District Court --  two candidates are vying for the Democratic nomination to most likely get crushed by run against Republican Incumbent Ryan Patrick.  David Singer and Robert Johnson are both defense attorneys who practice regularly at the CJC.  Singer has the edge in this case based on tenure and devotion solely to criminal practice.
Recommendation:  David Singer

178th District Court --  with sitting Democratic Judge David Mendoza not running for re-election, Assistant District Attorney Kelli Johnson is running against Democrat Lori Gray,  As I've said before, I'm biased because Kelli is a friend, but her experience speaks for itself.  She's been a prosecutor practicing exclusively criminal law since 1999.   She would make a fantastic judge.
Recommendation:  Kelli Johnson

179th District Court --  former-Judge Randy Roll is running to retake the bench that he lost in 2012 after serving for one term.  His opponent is Assistant District Attorney Stephen Aslett.  It is very telling that Aslett got the Houston Chronicle's nomination over the former judge, and I've had some serious questions about the validity of some of Roll's campaign claims about his judicial record.  Roll was known for being a little over-aggressive in encouraging plea bargains in his court during his time on the bench, which raised eyebrows from both the defense and the prosecution.  Aslett, on the other hand, seems to have the right mentality for running.
Recommendation:  Stephen Aslett

351st District Court -- defense attorneys Greg Glass and George Powell will be facing off in the Democratic Primary to see who will be taking on longtime Judge Mark Kent Ellis.  I know both Greg and George and consider them both friends.  They are both equally qualified to be judge in my opinion.
Recommendation:  Both choices are good

That may be the shortest write up I've ever done in the primaries, but that's probably a good thing.  I'm looking forward to the fields for November getting settled.  I think that whoever ends up as the Republican nominee will pretty much decide what happens here in November.

Now Go Vote!!!!