Tuesday, September 23, 2014

Sgt. Roger Chappell Retirement Party

My good friend and HPD Sergeant Roger Chappell is retiring from the Department after over two decades of service.

There will be a retirement party for him at the Char Bar, 305 Travis Street, Houston, TX 77002 on Thursday, September 25th at 4:00 p.m.

Come and join us in saying goodbye to a great cop and a great friend as he heads to greener pastures!  Everyone is invited!

Thursday, September 11, 2014

Belief: The Darryl Tindol Case

On January 23rd of 2013, a woman named Susan Harper was seen getting out of her car at Irvington (AKA Robertson) Park in North Houston.  Her shirt and upper torso were on fire.  Two witnesses helped extinguish the fire and called for help.

As they were helping to extinguish her, my client (and Susan Harper's boyfriend), Darryl Tindol came walking up to them from the opposite side of the park from the fire.

Two Houston Police Department officers arrived and asked her what had happened.

"I dropped a cigarette on my blouse and it caught fire," she told them.

They did not believe her.

They asked her what really had happened and noted that their belief was that she had been the victim of an assault.  
"She at first would not say that she was [sic] victim of assault other than she was smoking and caught herself on fire."
But, they persisted with their belief.
"The Complainant was asked by this officer what had really happened to her and they were there to help her and who had done this to her." Emphasis added.
It was then the officer noted that the complainant changed her story and stated that her boyfriend had punched her and thrown a cigarette on her, causing her shirt to catch fire.

Suffering from severe burns over the upper half of her body, Susan Harper would survive in a hospital for another nine months before finally, mercifully, dying in September of 2013.

During those nine months, the police suspected that Darryl Tindol was responsible for her death.  Darryl was a quirky man.  Sometimes homeless, his demeanor was odd to them.   Despite the fact that Darryl had no burn marks (or any other signs of having been near a fire) on his clothes or body, they remained suspicious.  In their belief, he wasn't appropriately upset over what had happened to his common-law wife.  He met with the officers whenever they asked to speak with him, but that still was not enough.
"I did not observe any tears come from the suspect Darryl's eyes at any time while I spoke to him throughout this interview."
Despite their belief that he wasn't showing appropriate remorse, Darryl Tindol's story remained the same each time he talked to the authorities.

Walking around Irvington Park was a regular event for him.  He and Susan would drive there in her car.  She would sit in the car and have a cigarette or two while he walked around the perimeter.  On the morning of January 23rd, as he began his walk, he told her to lock the door.  She told him to pull his pants up.  He was on the diagonally opposite side of the park when he realized something was going on where he had left Susan.  He immediately began heading back that way.

It was the same explanation he would tell me on the day I met him.

Understandably, Susan Harper's family would not let him visit her in the hospital, nor would they update him on her condition.  Why would they?  Their belief was that he had committed the most heinous of acts against their family member.

It wasn't until shortly before Susan Harper's death that charges of Aggravated Assault were filed against Darryl Tindol.  Immediately following her death, those charges were upgraded to murder.

As usual, the commenters on the news websites reacted with bloodthirsty fervor to their belief that Darryl had committed an unspeakable act.  Most advocated that he too be burned to death.  Some argued that he be placed in a woodchipper.  The most creative comments came from London's Daily Mail website:



But the problem with all of these beliefs was that they were wrong.

Darryl Tindol didn't kill Susan Harper, nor did he have anything to do with her tragic and painful death.  Susan Harper died as the result of an accident.

From the day I was appointed to represent Darryl, he told me the same thing.  Every time we met.  He loved Susan.  He didn't kill Susan.  He believed that low blood sugar had caused her to faint and drop the cigarette on herself.  He would answer any question the police had for him and he would take any polygraph.  He would cooperate to the fullest extent humanly possible.

And my belief was that Darryl Tindol was telling me the truth.  His case was set for trial in November.

Assistant District Attorney Greg Houlton would ultimately become the prosecutor handling Darryl Tindol's murder case.  I had dealt with him on a few minor cases here and there over the years and always found him to be a reasonable guy.  He listened to every last thing I said about the Tindol case.  He pulled every last record and report and read them from start to finish.  He listened openly when I told him that I thought it would be physically impossible for Darryl Tindol to have set Susan Harper on fire and then run to the completely opposite side of the park and return to the scene of the fire within a matter of seconds.

It isn't an easy thing for a prosecutor to dismiss a murder.  The victim's family is guaranteed to be devastated and angry.  The police investigators won't be happy either.  Dismissing a murder case is rarely a popular decision.

With such horrible circumstances as a death by burning, it is only human nature to believe that another person must surely be held accountable for it.

But Greg and his Division Chief, Lance Long, set those beliefs aside and looked to where the evidence led them.  They met with arson experts.  They went to the crime scene and met with the witnesses who had first seen Susan Harper.  They had them point out where in the park they had seen Darryl Tindol coming from.

Greg called me yesterday afternoon to tell me they were dismissing the case.  As much as I would like to take credit for a dismissal on a murder case, it was his open mind and willingness to look into the facts independently that brought this sad case to the just resolution.

At some point today, Darryl Tindol was released from the Harris County Jail.  I doubt I'll ever hear from him again.  Like I said earlier, he's kind of a quirky guy.

He was in custody for just shy of a year for a crime he didn't commit.

Friday, August 22, 2014

Where Kim Ogg Jumped the Shark

Back in September of 2013, when Kim Ogg announced her candidacy for Harris County District Attorney, I made the statement "I'm just happy that we have two candidates in the race who actually care about Criminal Justice."  I'd known Kim for years and thought highly of her and her no-nonsense approach to her job.  She was certainly a better candidate than the moronic Lloyd Oliver (whom she easily defeated in the Democratic primary) and she certainly wasn't as mean-spirited and incompetent as Pat Lykos.

Although I still planned on supporting Devon Anderson for District Attorney, I didn't think there would be too much negative to say about Kim.  I was actually looking forward to the debating of the issues the affected Harris County Criminal Justice.

There was a warning sign (at the time of Kim's announcement) that foreshadowed a dirty campaign, unfortunately.  Photos published by Dave "Big Jolly" Jennings on his website here  showed Ogg shaking hands with self-proclaimed "energy trader" (and husband of Rachel Palmer), Don Hooper -- as Palmer's attorney Clay Rawlings and former-Lykos 1st Assistant Jim Leitner smile in the background.  Why exactly would a former Republican candidate for D.A. and a self-proclaimed "Republican Activist" be at a Democrat's campaign announcement?

Despite Kim's affiliation with Hooper and Leitner, I remained optimistic that a good, clean campaign would be run.  Sadly, Kim's press conference yesterday illustrated again that politics bring out the worst in otherwise good people.

Yesterday, the Democratic candidate for D.A. decided to make intellectually dishonest attacks on the Harris County District Attorney's Office over the Office's handling of the investigation into former-HPD Homicide Sergeant Ryan Chandler.

In the interest of full disclosure, I'll tell you right now that Ryan Chandler is a good friend of mine.  His wife, Inger (formerly Hampton) Chandler is someone that I consider to be one of my best friends.  Ryan visited me in the hospital when I was recuperating from chemo, this time last year.  I was invited to their wedding and I gladly attended.  I know what has been written about Ryan ad nauseum.  He is still my friend and he is a good friend.

So, if you want to take the following with a grain of salt, feel free.

When the news of the investigation into Ryan began, District Attorney Devon Anderson recused the Office from the investigation due to the fact that Inger was an Assistant District Attorney there.  It was a no-brainer of a decision and the Montgomery County District Attorney's Office was brought in to handle the investigation.  No criminal charges were filed.

This was standard operating procedure and one that has been frequently done in other instances involving potential conflicts of interest with a prosecuting agency.  The rules were followed and the Harris County District Attorney's Office never became involved with the handling of the case.  The results were entirely out of that Office's hands.

And Kim Ogg knows that.  Yet, she decided to attempt to make a disingenuous argument in order to jump on the wave of attention that the HPD scandal is currently attracting.

As most of you probably are aware, Houston Chronicle reporter James Pinkerton (who is apparently the head of the paper's Ryan Chandler Bureau) has been writing a series of articles about the HPD Homicide Scandal.  In addition to covering the different cases involved and the people affected, Pinkerton has also covered everything from Ryan's grades in guitar class in Junior College to his high school classmates' belief that he would become a radio DJ.  The Warren Commission didn't get this much detail when they looked into Oswald.

Kim knew that all she would have to do was mention Ryan Chandler's name in a press release and Pinkerton would come running with a pen and paper in hand.  She knew that she could make the silly argument that the D.A.'s Office somehow did wrong by recusing itself and he would write the article as if it were gospel.   Kim didn't disappoint him.
"The DA has cut another backroom deal, to the benefit of a political supporter [Chandler], the romantic partner and current husband of the DA's lawyer in charge of her conviction integrity unit."
"Romantic partner and current husband"?  Ooh.  Sounds salacious.  "Backroom deal"?  Sounds dirty.

Devon Anderson removed her Office from all involvement in the case to specifically avoid any questions about the propriety of how it was being handled.  She asked a neighboring county's District Attorney to investigate.

But, wait, Kim Ogg doesn't think that Montgomery County D.A. Brett Ligon should have been the investigating Chandler, either.  Why?  Because Brett Ligon formerly worked for the HPD Police Union.  His ties to representing police officers in employment matters somehow made him an unfair investigator?

That's kind of a funny accusation coming from Kim Ogg, who also has a lengthy history of representing police officers in "employment matters" and brags of it ON HER OWN WEBSITE.  Calling Brett Ligon's integrity into question was baseless and silly.

All of this press conference from Kim Ogg is baseless and silly, too.  Kim has been practicing law since I was in junior high school.  She knows that the recusal of the Office was handled appropriately, yet she deliberately misled the Press for political advantage.

And that's a move straight out of the Pat Lykos playbook.

Kim, you're better than that.  At least, I thought you were.

Tuesday, August 12, 2014

The Sad Reality of Mental Illness

Like most of you, I was genuinely surprised to learn of the death of Robin Williams yesterday.

Although I make no claims of being his "biggest" fan, I grew up watching him.  His career coincided with my childhood and I can remember finding him wildly hysterical when I was younger.  As I grew older, I found him much more compelling as a dramatic actor than as a comedian and I rank "Dead Poets Society" as one of my all-time favorite movies.

Even though I may not have enjoyed many of his zanier roles as much as his more sedate ones, I liked Robin Williams.  I thought he busted his butt to use his celebrity to help good causes.  He had his personal demons, but at the end of the day there was something about him that conveyed he was a decent person.  More so than most celebrities in Hollywood, there was something about Robin Williams that made me, and many others, feel like we knew him.

I think that's why learning that he took his own life yesterday feels so shocking.  It is hard for us to reconcile the wild comedian with the man who took his own life while suffering from depression.

But it shouldn't be.

Robin Williams was suffering from the mental illness of depression.  It should be no more shocking that he took his own life as a result of it than it would be to learn that a person suffering from cancer has died of it.    Please don't misconstrue what I'm saying -- it doesn't make his death any less sad.  It just shouldn't be surprising.

I say this because it is my belief that the majority of people in our society pay lip service to mental illness, but they never really take time to grasp the reality of it.  We can nod sympathetically when we hear of a friend suffering from bi-polar disorder or depression, but do we ever truly give it the understanding that we would a more recognized illness?

Take a moment and ask yourself if you would give the same credence to both of the following statements:

"Bob can't come to work today because he has the flu," and "Bob can't come to work today because he is having a psychotic episode due to previously diagnosed schizophrenia."

Do you consider both of those sentences the same?  I doubt it.  Nobody would blink at someone missing work due to the flu.  However, a mental illness excuse, at best, would draw skepticism.  At worst, it draws fear.

As most of you know, issues of mental illness are very personal to me because of a heartbreaking experience that occurred a few years ago with a friend from high school.  And  earlier this year I found myself looking at mental illness from a more clinical perspective when I (unsuccessfully) utilized the Insanity Defense in my representation of a defendant in a murder case.

The death of the victim in the case was brutal and indicative of someone out of control of his "right" mind.  There was no motive, but there was explanation.  My client had extreme mental health history dating back for over twelve years.  He had been experiencing auditory and visual hallucinations coupled with homicidal and suicidal ideations since his early teenage years.  He was diagnosed as paranoid schizophrenic and had repeated admissions to psychiatric facilities throughout his life.

His most recent trip to the psychiatric hospital had ended in his release the day before he killed the victim.  Immediately after her death, he attempted to check himself back in to a hospital -- telling the admitting staff that people were trying to kill him and that he believed he may have killed one of them.  He asked that the police be sent to investigate.

In a trial in Texas where the Defense utilizes the Insanity Defense, the jury is not allowed to be told that a "Not Guilty by Reason of Insanity" verdict results in the Defendant being sent to a lockdown mental health treatment facility.  The Code of Criminal Procedure states:

"Art. 46C.154.  INFORMING JURY REGARDING CONSEQUENCES OF ACQUITTAL.  The court, the attorney representing the state, or the attorney for the defendant may not inform a juror or a prospective juror of the consequences to the defendant if a verdict of a not guilty by reason of insanity is returned."

In trial, the Defense has to prove an Insanity Defense beyond a preponderance of the evidence, meaning that there is a better than 50% chance that "as a result of severe mental disease or defect," the defendant "did not know that his conduct was wrong or was incapable of conforming his conduct to the requirements of law."

With the mental health background of my client, the expert testimony of the doctor who examined him, the facts of the case and the assistance of my friends and fellow attorneys Michael Edwards and Jason Truitt, I felt I had an outstanding example of a true insanity defense.  Judge Susan Brown gave us a fair trial and prosecutors Tameika Badger-Carter and Denise Oncken were above board and great to deal with throughout.

But the jury rejected the Insanity Defense.  My client was found guilty and sentenced to 25 years in prison

Why?  I can't say for sure.

Maybe I did a bad job conveying it or maybe it is just sour grapes after the fact, but I don't feel that my client's mental illness was given the true consideration that it deserved.

I would surmise that the brutality of the crime was frightening and upsetting to the jury.  Something as intangible as "mental illness" could never excuse such a heinous act.  Unlike cancer, pneumonia, Ebola, or even the flu, you can't see mental illness.  You can't put it on a slide and put it under a microscope and confirm its existence.  There is nothing concrete to prove to a juror how real it is.

But it is so very real.  It isn't just a topic that we should pay lip service to.  It is something that needs much more than just a sympathetic nod that comes with no attempt at true understanding.

If it weren't real, then why on Earth would a successful and seemingly joyful person like Robin Williams choose to end his life?

Robin Williams did a lot of good things for a lot of people during his lifetime.  He was one of those celebrities that seemed to constantly be leading the charge when a cause needed assistance.

Maybe in his death, he can continue that legacy by bringing true understanding and assistance to those suffering from mental illness.


Monday, August 4, 2014

An Important Breakfast

In the Spring of 2009, I met my friend and mentor, Pat McCann, for a drink at Char Bar.  We talked about all of those things going on in our lives, and he was genuinely interested in what changes in perspective I had now that I had left the District Attorney's Office.

"I think you need to do a blog on the differences between being a prosecutor and being a defense attorney," he told me.

"I've been a defense attorney for about five minutes," I replied.  "I don't really think I've got the depth of experience on this side to do that blog post quite yet."

Over the past five years, I've revisited that conversation frequently.  There have been times that I thought I could write a big, overarching blog post that could point out the minutia of differences in the job of a defense attorney versus that of a prosecutor.  It could even be humorous.  I've started THAT blog post several times, but the end product was so cheesy that I couldn't bring myself to publish it.  Not to mention that a post about the difference between prosecutors and defense attorneys was prime to alienate both of those groups of people -- leaving me with no friends, whatsoever.

In the back of my mind, however, I did have an idea for a blog post.  It focused on one simple theme.

That theme was brought home to me this morning when I had breakfast with a client of mine in a small county outside of the one most of us regularly practice in.

I'm not going to give any details of my client's case.  They aren't really relevant -- other than to say he was charged with a low level misdemeanor.  My client was a blue collar guy.  He was quiet and polite, but, outside of the facts of his case, I didn't really know all that much about him.

A couple of months ago, as we were leaving his court appearance (after yet another reset because of a delinquent offense report), he asked me if I wanted to go grab breakfast.  Unfortunately, I had to be back in Harris County for a setting, and declined.

This morning, we were set for one of those "plea or trial" settings, where my client had to make the decision whether or not he wanted to take the prosecutor's plea bargain offer or set the case for trial.

We had met two weeks ago in my office and we had gone over every last detail of his case.  I answered all of his questions and at the end of our meeting, I told him that I thought it was in his best interest to take their deal.  In the terms of factual evidence, it wasn't a very debatable point.  Despite my clear advice, he said he wanted to think about it.  I understood.

We talked on the phone a week ago and he said that he was still mulling it over.  He said he would call me back later in the week and let me know what his decision was.  I told him that was fine.

We talked again over the weekend and yesterday, he asked me if I would have time to go have breakfast with him before court today.

So this morning, we met for breakfast at a greasy spoon restaurant.  I got there before he did and ordered a coffee.  He arrived a few minutes later.  We talked briefly about the pros and cons of his case and I gave him my advice.  He listened intently, but he didn't really say much.

There was an uncomfortable silence while we ate our food.  I didn't want to press him for an answer as to whether or not he wanted to take the prosecutor's plea offer.  I knew he was processing the information.  Anyone who knows me at all, however, knows that I am terrible with uncomfortable silence.  So, I made small talk with him.  The more small talk I made, the more I realized how very little I knew about my client's personal life.

"You know," I said.  "I don't even know if you are married."

"I was," he said.  I was about to make a joke about how many times I "was" married, but for some reason, I refrained.  I'm glad I didn't say anything.

"We were married for 29 years," he continued, "but she died of breast cancer in 2009."

"I'm sorry to hear that," I said, and we talked about cancer and treatment for a little bit.

"I broke my back in two places in an accident the next year," he said.  "I haven't really been able to move right since."  He went on to tell me about a cancer scare that he had gone through earlier in the year and how he had to have a surgical procedure later on this month.  He wasn't trying to elicit sympathy from me.  He was just telling me about himself.

He told me about his two grown children and how his granddaughter liked to play with his iPhone if she could get her hands on it.

"Yeah," he laughed, "I wasn't paying attention and she messed with it so much that I got locked out of my security screen!"

At the end of breakfast, I picked up the check.  He thanked me for breakfast, but more importantly for meeting him for breakfast.  When he did so, I realized that I should have taken the time to have breakfast with my client long before "plea or trial" day.  As we were leaving, he told me to see if I could work on a few of the conditions of his plea offer, but otherwise he would take the deal offered by the prosecutor.

When we got to court, I talked to the prosecutor.  Objectively, she was reasonable.  She said that she would agree to a "time served" offer, but she was going to raise the fine significantly.  I told her about the different hardships my client had in his life, but she felt firm in the fairness of her offer.  She wasn't all that interested in what he had going on in his life.

And the case was resolved.

So, what does this have to do with the conversation that I had in the Spring of 2009 with Pat McCann?

What I have slowly learned over the past five years as a defense attorney is that prosecutors have a tendency to take a part (i.e., the alleged crime) and apply it to the whole.  Generally, their judgment of a person is based on the crime they are charged with.  I don't say that in an accusatory manner.  That was how I operated as a prosecutor when I held that position.

As defense attorneys, we look at the person accused as a whole -- not just the crime he or she is accused of or even their entire criminal history.  We get to know our clients.

Or at least we should.

I should have done a better job of getting to know my client long before "plea or trial" day.  I could have done a more effective job of letting them know that I was representing a good man who got arrested having a bad day.  I could have done a more effective job of letting them know that the raised fine they were so arbitrarily slapping on would result in countless hours of work for him.

I could have done a better job of letting them know that my client was not defined by the crime he was charged with.

So, I guess the short -- but by no means "simple" -- answer to Pat McCann's question is that as a Defense Attorney, I look at cases in terms of the person charged, as opposed to the act.   A Prosecutor has more of a tendency to look at the act alleged and then judge the person.

That's the difference.  Everything else flows from that.

Sunday, August 3, 2014

Max Christiana Schaffer

My thoughts and prayers are with my friend and fellow attorney, Kent Schaffer, on the loss of his daughter, Max, who passed away last week at the age of 28.

Although I don't know Kent as well as I know some other attorneys at the CJC, my wife and I had the opportunity to meet Max one time when she was at dinner with Kent.  The pride and love that Kent had and continues to have for her was very evident as he introduced us.

As a parent, I don't even want to begin to imagine all that he and his family are having to come to terms with.

I wish that there was something more that I could say that was more eloquent than this, but I hope that Kent knows that everyone in our criminal law community's heart is aching for his loss.

Please keep him and his family in your thoughts and prayers.


Friday, July 25, 2014

Memorial Service for Mrs. Albert Davidson

On Tuesday of this week, Albert Davidson, mother of our friend, Charley Davidson, passed away at the age of 98 years old.

There will be a memorial service for Mrs. Davidson on Thursday, July 31st at 2:00 p.m. at Chapelwood United Methodist Church, located at 11140 Greenbay, Houston, Texas 77024.

Please keep Charley and his family in your prayers.

Thursday, July 24, 2014

Fundraiser for David Singer this Saturday

There will be a fundraiser this Saturday, July 26th for David Singer, who is running as the Democratic Candidate for County Court at Law # 14.

The event is from 1 p.m. to 4 p.m. at the Sam Houston Race Park Jockey Club.  It is open to whoever wants to attend and food and drink will be provided and people should have a fun time doing a little wagering on the races!

Monday, July 21, 2014

Will Womble, Eat your Heart Out

I'll admit it.  For years, I was totally jealous that my dear friend Will Womble had this.

For some reason, I was notified just this week that I now had this.

My life is now complete.

NOTE:  I've now worked on 10 different episodes of Cold Justice.  I don't know why I'm only getting credit for one.  I will have to take this up with the Screen Actors' Guild, I guess.

Saturday, July 19, 2014

Tunnel Vision & The Falkenberg Articles

If you pay attention to the goings on at the Harris County Criminal Justice Center with any regularity, you are probably already aware of Lisa Falkenberg's two outstanding articles on the Harris County Grand Jury that indicted Alfred Dewayne Brown for the Capital Murders of Houston Police Officer Charles R. Clark and store clerk Alfredia Jones.

Part One of the column ran on Thursday.  Part Two ran Friday.  As of this writing, we are still waiting on Part Three.   NOTE:  If the Chronicle's "premium content" website is blocking your access, the Washington Post did a pretty decent synopsis you can read by clicking here.  My friend, Scott Greenfield, has also weighed in on the columns here.  The attention these articles are garnering is just beginning, in my opinion.

The very condensed version of events are as follows:  Alfred Brown was suspected of being part of a group of males that robbed a check-cashing business and murdered the clerk and a police officer in the process.  Brown stated as his alibi that he was on the phone (landline, not cell) with his girlfriend, Ericka Jean Dockery, at the time of the offense and when Ms. Dockery tried to confirm that to a Grand Jury, they threatened her with financial, legal and even child custody repercussions.  She ultimately changed her story, but Harris County prosecutor Dan Rizzo filed Aggravated Perjury charges on her anyway.

Lisa's column is very much on point about the secrecy of the Grand Jury -- a fact that seems to have given several Pat Lykos/Rachel Palmer supporters new life in their never-ending war against the 185th Grand Jury Investigation of 2012.  Politics really do make strange bedfellows when you've got Lykos supporters rooting for a person accused of killing a police officer.

The bigger issue that Lisa's column covers is the extreme lengths that some people in the Criminal Justice System are willing to go to when they are suffering from Tunnel Vision.

As a former prosecutor, I can attest to the fact that Assistant District Attorneys are inclined to believe the version of events that are initially presented to them by police officers.  There is nothing wrong with that -- the System would come to a screeching halt otherwise.  Can you imagine if all calls from the police went like this:
OFFICER:  I stopped a vehicle for speeding and running a stop sign . . .
PROSECUTOR:  Oh really?  Are you really a police officer?  Was your radar calibrated?  Where was this stop sign?  Did anybody else see this?  Why don't you put this person that you are accusing on the phone and let me ask him what really happened.
 I can't fault prosecutors for believing the initial version of events presented to them by an investigating agency.  Where things become troubling is when they believe those events so strongly solely because they came from the police officer.

I think that if you ask any practicing criminal defense attorney if they know any prosecutors that suffer from Tunnel Vision, you will be in for a very lengthy conversation.  I'm not naming any names of prosecutors, but I was once told by a prosecutor that he was "insulted" that I would tell him I believed a client I was representing was factually innocent.

Insulted.  Not only were they not interested in examining my reasons for believing my client was not guilty, they were insulted that I would even dare approach them with it.

We used to joke about a prosecutor that was so determined to NOT dismiss a case that if you provided her with video footage of your client sitting behind the President during the State of the Union Address at the time of the alleged offense, she would only offer you a better plea offer on a lesser charge.

Of course, the prosecutorial counterpoint to my argument would be, "You have no idea how many B.S. stories we hear on a daily basis."  Yes, I do know.  I did that job for nine years.  I once had to call a very -- shall we say "country" -- gentleman and ask him if he had, in fact, "donated" his pride Dually pick-up truck to the very crack-addicted felon who was charged with stealing it.  My eardrum still twitches at the angry yelling I had to listen to in response.

But I made the call because that's what the defense attorney told me his client was claiming.  Sometimes you have to look down a lot of rabbit trails to avoid Tunnel Vision and unfortunately, that's part of the job of being a prosecutor.  You have to rule out Reasonable Doubt -- even if it doesn't seem that "reasonable" to you.

The prosecutor who believes an investigator's version of events so much that they shut down even the mere possibility of a contradiction becomes the most dangerous person in the courthouse.

Charles Sebesta shut down the possibility that Anthony Graves wasn't involved in the murder of six people in Somerville.  Ken Anderson shut down the possibility that Michael Morton didn't kill his wife.  Now, Dan Rizzo, with the backing of a Grand Jury, is on the hot seat.

To be fair, there are several people within the Harris County District Attorney's Office who have told me that although they agree Alfred Dewayne Brown deserves a new trial, they still believe he is factually guilty.  That was District Attorney Mike Anderson's position when the Office agreed that Brown deserved a new trial.

What is so frightening about Ericka Jean Dockery's case is that Rizzo filed Aggravated Perjury charges against her because he and the Grand Jury didn't believe her.  There wasn't a concrete piece of evidence that contradicted her.  There wasn't a change of story that had come from her own volition (change of stories based on extreme coercion doesn't count).  At the end of the day, the decision to file felony charges (of moral turpitude) against Ms. Dockery flowed from Rizzo and the Grand Jury's opinion that she wasn't being truthful.

Put yourself in the shoes of a person accused of something for a moment.  You have an alibi witness.  That witness is willing to testify and clear you.  However, that witness is told by prosecutors, in no uncertain terms, that not only do they not believe her testimony,  they will file felony charges against her for daring to back you up.

Take a moment and ponder how truly frightening that is.

Monday, July 14, 2014

Guest Post on Clerks from Feroz Merchant

Since I am sadly way behind on writing anything these days (blame the 25 lb., 8 month old individual who lives with me), my dear friend, Feroz Merchant, asked if he could do a guest post to share his thoughts about some of our often overlooked court co-workers.

As an attorney that practices regularly in the criminal justice center here in Harris County, I get to meet and deal with a great number of people. In my 14 years as an attorney, I’ve been a prosecutor and a criminal defense attorney. This means being in court almost very morning. What I’ve noticed is that the clerks (sitting by the Judge) are always busy. They seem to get there before anyone and are there long after most have already left. They often spend lunches at the desk working and that too after continuously working and responding to several people at the same time. It’s multitasking that really amazing to watch. These folks are one of the hardest working people out there.

I decided to look up their job description and was amazed at what they are responsible. Since I work primarily in the criminal justice center, I have first hand knowledge about the clerks that practice there; having said that, I’m confident that the those in the other courts (civil, family & juvenile) work just as hard (where several trees worth of paper need to be sorted and filed).

They clerks are responsible for keeping the records of the court safe, record proceedings, enter all judgments under the direction of the judge, record all executions issued and the returns issued on the executions, keep an index of the parties to all suits filed in the court, and make reference to any judgment made in the case, keep track of who is on the jury panel, track those that are selected, take in all subpoenas, motions, attorney fee vouchers, determine and enter jail credit and to respond to all the attorneys various inquires while the courts in session. And all this has to be correct. And that too all the time, for every case. A mistake could affect someone’s liberty or a victim’s right to justice. This is a job that demands perfection and dedication.

I then decided to look up what someone in that position makes. I was shocked to learn that even after a few years on the job the pay is still at around $13/hour. Some may say that it’s a job and one should be grateful. I believe we are all grateful for what we’ve been blessed with. But a position of clerk, with all its responsibilities does require recognition; when one has been charged with great responsibility and they fulfill it each and every time – there has to be just compensation.

I think they deserve a raise. Not sure what is possible with budget constraints. And I’m sure the elected district clerk is aware and is in the process of doing something about it.  But I think they do deserve a raise, its something that needs to be acknowledged and I along with my fellow criminal defense attorneys thank them for always being there and doing a great job. Your commitment to your job and the community is appreciated.

Wednesday, July 2, 2014

Rachel Palmer Turns in Notice

Rachel Palmer turned in her two-weeks notice to the District Attorney's Office.  It is my understanding that she is going to work for a civil law firm.

It is a move that is probably best for all involved.

Although there are probably many who would like to use this opportunity to dredge up the events of the past, I don't see much point in doing that from this end.

I wish her the best of luck in her future endeavors.

Tuesday, June 10, 2014

Celebration of Life for Don Rogers

On Monday, June16, 2014 from 3:00 p.m. to 4:30 p.m., there will be an informal celebration of life for Assistant District Attorney and former-Defense Attorney Don Rogers, who passed away early last week.  The event will be held on the the 17th Floor in the Reception Room of the Harris County Civil Courthouse.

Don wanted something informal that would be a chance for his friends, family and fellow Harris County Courthouse folks to reminisce about him.  To keep with those wishes, his friends from the District Attorney's Office have organized the event.  A few of his close friends and Don's nephew will begin with their memories of Don and others will also be encouraged to bring their stories, as well.

Don did not want a solemn event, but a celebration of his life.  Please attend this and share your memories of a respected and loved member of our CJC community.

Thursday, June 5, 2014

Don Rogers

The Harris County Criminal Justice world was shocked on Tuesday by the unexpected passing of former-defense attorney and Appellate Division prosecutor, Don Rogers.  Don passed away at his home of natural causes.

During our time of overlap at the Office, I did not know Don well, but he seemed like a very nice man from the little that I did know.  My friends in the Appellate and Writs Division, as well as the rest of the Office and the Defense Bar have written many kind things expressing their sadness and surprise at his loss.

Don was in private practice as a trial and appellate attorney for twenty years before joining the District Attorney's Office in 2000.  Part of his impressive career included working for legendary defense attorney Racehorse Haynes from 1994 until 2000.  He even served on the board of directors for the Harris County Criminal Lawyers Association.

The arrangements are still pending for his services and I will keep you updated as they become available.

Monday, May 19, 2014

Early Runoff Voting Begins: Two Very Important Elections

Today begins Early Voting for the runoff elections across the State of Texas.  Unlike the early voting period for the earlier primary elections, this period of early voting only lasts for ONE WEEK.

Please, please, please do NOT procrastinate in getting to any local polling location and casting your vote, because there are two very important elections that need your attention in the Republican Primary.
Remember the Rules of voting in the Runoff for a Party Primary:

1.  It is NOT a requirement that you voted in the earlier election in March to be allowed to vote in the Runoff.

2.  The only reason you could NOT vote in the Republican Runoff is IF you voted in the Democratic Primary election in March.

So, don't use "well, I didn't vote earlier, so I can't vote now" as an excuse.  You absolutely CAN VOTE and SHOULD.

Now, onto the Races:

COUNTY COURT AT LAW # 10 - Republican Primary Runoff

Former-prosecutor and current Criminal Defense Attorney Tonya Rolland McLaughlin is running against family lawyer Dan Spjut.

As I've said before, Tonya is the real deal and the Houston Chronicle described her as not only the most qualified candidate in the race, but the only qualified candidate in the race.  Tonya has the experience and perspective of having worked for both the prosecution and the defense.  She also works in the appellate law field, which keeps her knowledgable and up-to-date on the latest case law affecting criminal cases.  She is widely respected by the judiciary, the prosecution and the defense and is the clear choice for the race.

Dan Spjut, on the other hand, doesn't practice criminal law, although he seems to feel qualified to run a court.  I couldn't disagree more.  He is a former police officer who seems to have tunnel vision that he would bring to bench.  At a recent campaign event, Spjut heavily criticized Tonya for the mere reason that she had dared to practice as a criminal defense attorney.  He expressed a disdain for the profession which is highly troubling.  If we have a judge on the bench who thinks that the defense attorney profession is so disgusting, one can only imagine how he would feel towards the rights of the Accused.

Tonya Rolland McLaughlin needs your support and she deserves it, too.

311th DISTRICT COURT -- Republican Primary Runoff

Normally, I don't delve into races that aren't directly related to criminal law, but a Family Court bench does have tangentially related issues to what goes on at the CJC.  Furthermore, this race is so important that it needs your urgent attention, as well.

If you follow the news, you have probably heard about embattled former-judge Denise Pratt.  Her bizarre and unethical behavior during her brief stint as judge of the 311th caused her to ultimately have to resign her bench.  Unfortunately, she didn't resign in time to have her name from the Runoff ballot and she is option to vote for.  (NOTE:  Pratt has announced that she has suspended her campaign, but we need to make sure that this message gets to all the voters.)

By contrast, Alicia Franklin is a highly qualified candidate who is liked and respected by all who deal with her.  As I've mentioned before, I don't practice family law, but many of my friends do and they unanimously sing the praises of Alicia.  Let me put it this way -- when I have my ex-wife and my last divorce attorney telling me that I need to vote for a candidate, I think I've come up with the very definition of a consensus!

Pratt shouldn't be on the ballot and this shouldn't be a contest, but it is.  The same applies for the McLaughlin/Spjut race.

Get out there and vote People!  This is an important one!

Tuesday, May 13, 2014

My Travels with Comcast

Ok, this one has nothing to do with the CJC, but I have to do some extreme venting.  It may be tangentially related to a life of crime, because I could see someone snapping after being forced to deal with Comcast for a prolonged period of time.

As most of my friends know, my family and I moved to Oak Forest last weekend.  We had been looking forward to living in the new house and had been very organized in our planning for the move.  One of the things on the our "to do" list for the move, obviously, was transferring service for cable and utilities, etc,  For the past several years, I've used Comcast/Xfinity as my cable, internet, and phone provider.  Although we experienced some issues with Comcast when we added their home security to the mix last year, for the most part, things had been okay.

So, I made the ill-fated decision to bring Comcast on over from the old house to the new house.

Huge mistake.

Our moving day was Friday, May 2nd. A few weeks in advance, I called Comcast and told them I would like to transfer service.  We agreed to shut off service at my 5th Ward townhouse that Friday and their technical folks would come set up cable, internet, phone and security on Saturday, May 3rd.

Comcast sent three techs out to the new house on Saturday.  Two guys were doing the phone, internet and cable, while the third guy was there strictly for security.  The phone, internet and cable guys got in and got out fairly quickly and everything was working fine.  The security guy would prove to be a bit more problematic.

He began by telling us that he was a specialist at installing the fire/smoke detectors and that we must have ordered that (more expensive) addition to our security system.  When I told him that we didn't need fire and smoke protection from Comcast, he acknowledged that we had not previously ordered it.  He was basically just trying to con us into it, I suppose.

He spent the next few hours installing gadgets around the house and then attempted to bring it online.  To make a long story short, all of his attempts to get the security system online failed.  He blamed it on the fact that the service was being transferred and he was getting really angry with the people he kept calling on the phone.

Ultimately, he gave up.

"Look," he told me.  "You've got two options here.  You can sign this paperwork and say that we've correctly installed everything and then get somebody else out here to fix it next week.  Or, you can refuse to sign and I'm going to have to take the equipment down and take it with me."

Seeing as how I'm a lawyer and such, I told him I wasn't going to sign a piece of paper stating that everything was installed correctly when, in fact, it was not.

Well, that pissed him off.  He took down the alarm monitor and the wireless router for the alarm and left without another word.  He didn't reschedule an appointment to correctly install the alarm system.  He just left.

Once he left, I immediately noticed that the internet was no longer working.  So I called Comcast.  Over the next three days, I probably spent easily four hours on the phone -- holding and being transferred from one department to another.  Techs tried to walk me through rebooting the internet.  We got the internet working, but for some reason the modem wouldn't communicate with my home wireless router.  Ultimately, we determined that our friendly neighborhood tech had somehow disabled it when he left in his snit.  They said that they would send me a new modem with the wireless router built in.

They told me that last Wednesday.

In the meantime, I had to call and spend another couple of hours on the phone trying to reschedule somebody to come out and install my home security system.  For some reason, getting another tech out seemed to require an act of Congress.  Seriously.  It was ridiculous.  I spent a good forty five minutes on the phone with a lady who told me she would have to call me back before she could schedule a tech to come out and install the damn security system.

It was totally shocking when she never called back.  When I called back for a follow up, the automated answering service informed me that they had scheduled an appointment for me for Wednesday, May 14th some time between the hours of 8 a.m. and 8 p.m.   Somehow, nobody from Comcast had bothered to check with me or inform me that I would be taking the day off from work to meet someone at my house to fix their screw up.

In the meantime, I'm still anxiously awaiting the arrival of my new modem/router that they promised to send me last Wednesday.

So, I made yet another phone call to Comcast, and after being transferred three times, I ended up on the phone with a reasonable enough person.  I told him all the trauma and drama we had been going through just to get a damn tech out to the house, and I told him that I thought that enough malfeasance had occurred that they were in breach of the three year contract I had with them for security.  He ultimately agreed to let me break out of the contract with no penalty fees.  I would just need to allow a representative from Comcast come collect the remainder of the security gear.

No problem -- we set that up for Friday, May 9th.

In the meantime, I'm still anxiously awaiting the arrival of my new modem/router that they promised to send me last Wednesday.

So, on Friday, a tech from Comcast shows up to collect the security equipment.  He was a nice guy.  He looked around my house and then asked where the router and security panel were.  I informed him that the first tech had taken it with him when he left in a snit.  The new tech told me that the first tech had never turned the equipment in and that I was going to be billed for it.  When I calmly explained to him that this was a tremendous crock of shit, he seemed sympathetic.  He told me he would send an email to his supervisors when he got back to the office.

In the meantime, I'm still anxiously awaiting the arrival of my new modem/router that they promised to send me last Wednesday.

So, the weekend rolls around and it was relatively busy with Mother's Day and all.  Our living room looks like R2-D2's intestines with the ethernet cords that we have dragged around the house.  Since we only have one modem and ethernet cord, my wife and I have to take turns using the computer.

It's like we're Neanderthals, people!!

In the meantime, I'm still anxiously awaiting the arrival of my new modem/router that they promised to send me last Wednesday.

On Monday, I get anxious about why I haven't gotten the new modem/router, so I call Comcast to check its status.  That phone call lasts about 45 minutes.  The nice lady that I talked to fluctuated between telling me that the order had not shipped yet and that it had.  Ultimately, she convinced me that the order had shipped and I should be getting it at the new house at any moment.

So, there was much excitement this afternoon (Tuesday, May 13th) when UPS knocked at the door with a box from Comcast/Xfinity.  The family was like a group of kids at Christmas!  At last, wireless internet had returned to our home and we could leave the Stone Age.  No one seemed to notice that the box was relatively small from one that was supposed to contain a modem.

We all anxiously gathered in the kitchen as I ceremoniously opened the box.  As I cut away the tape and opened the box, I found . . .

Nothing.

NOTHING!  The jackasses at Comcast had literally sent me an empty box.  The only contents inside were styrofoam, a mailing label, and instructions on how to mail back my Comcast equipment.

So, I made yet another call to Comcast.  It was easily my 10th call in the past 10 days.  The nice young man at the other end of the line found a record that they were supposed to send me a new wireless router/modem, as well as the packing material to send back my old modem.  As he looked at the order form, he told me "Well, it looks like the only thing they sent you was the old modem's return box."

He then modified that statement to say that what the return box was actually supposed to be for was my alarm equipment.  I had to explain again that the angry first tech had taken all that equipment with him when he left.

The man on the other end of the line said he's sending a new tech out tomorrow to fix my wifi.  I asked him if he would have the wireless router/modem.  He told me that all the Comcast techs have that equipment with them for installation at all times.

In the meantime, I'm still anxiously awaiting the arrival of my new modem/router that they promised to send me last Wednesday.

So, if you actually read all the way through this lengthy post, I thank you.  I needed to write it more than you needed to read it, so thanks for bearing with me.

In the meantime, if ever presented the option of another cable company or Comcast, always choose the other company.

In fact, if ever presented the option of Comcast or living as the Amish do, you might want to purchase a bonnet and get ready to start churning some buttermilk.

Sunday, April 27, 2014

Human Trafficking CLE - May 9th

My friend Amanda Peters asked me to share the following information about an upcoming CLE at South Texas that may be of some interest to both Criminal Defense Attorneys and Prosecutors.

On May 9th at noon, the Just Ethics CLE will be put on by ADA Ann Johnson, Naomi Bang and Amanda Peters.  The focus will be on human trafficking cases and the ethical considerations that surround them.  They will also be talking about prostitution cases when the defendant may be a victim of human trafficking.  They will be covering immigration law and both state and Federal criminal law.

Naomi Bang works as Of Counsel for Foster Quan and is an adjunct at South Texas, where she is also the Director of the Human Trafficking Clinic.  Amanda has taught Human Trafficking classes and published a couple of law review articles on the subject.  Ann Johnson is the Human Trafficking Specialist for the DA's Office.

The CLEs come with lunch and are located on the top floor of the library building.  The cost is $50 for attorneys, but there will be a $35 rate for any government attorneys (DA's offices, Public Defender's offices, U.S. Attorney's office, etc.)


Thursday, April 24, 2014

Trying to Get Back in the Saddle

Okay, so I really don't want to become one of those bloggers that just posts once every month to promise to write more, but that's what it seems like I've been doing lately.

As usual, I have my excuses.  Luckily, (as opposed to last year) the excuses are happy ones.  Emily and I are continuing to have our hands full with our enormous baby boy.  He turns six months old at the end of this month and he weighs over 22 pounds -- and I thought that I ate a lot!


We've also had our house on the market since January 1st, which has been a tremendous pain in the rear end.  There is nothing like keeping a three story townhouse clean and ready for showing at a moment's notice with a dog, an eight-year-old, and a baby.  Hopefully, the end is in sight for that ordeal and we should be moving next week!

I've also been in trial and all of those other work-related explanations as well.  

There are several things on the agenda that I want to write about in the near future, including the Insanity Defense, the upcoming Runoff Election, and some upcoming CLEs.  In the meantime, I just wanted to let you know I was alive and well!

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 CaringBridge.org 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.