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!  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 which gives updates on his progress.  He sounded good and upbeat, too.

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

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

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

Sunday, February 16, 2014

Primary Endorsements for 2014

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

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

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

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

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

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

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

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

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

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

In short, Tonya Rolland McLaughlin is the real deal.

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

County Court at Law # 10 -- Democrat

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

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

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

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

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

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

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

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

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

Most importantly, get out there and vote!

Saturday, February 15, 2014

Awesome Endorsements on the Democratic Side

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

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

Tuesday, February 11, 2014

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

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

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

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

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

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

Monday, January 27, 2014

Snow Day!

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

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

Thursday, January 23, 2014

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

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

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

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

You can watch it live streaming by clicking here.

Monday, January 20, 2014

Judge Brad Hart's Take on the Differentiated Docket System

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

Here's what Judge Hart had to say:

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

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

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

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

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

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

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

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

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

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

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

Brad Hart

Anthony Graves and Charles Sebesta

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

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

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

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

Charles Sebesta, however, has remained unscathed.  

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

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

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

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

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

Wednesday, January 15, 2014

Cold Justice Returns

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

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

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

Make sure not to miss it!

Monday, January 13, 2014

The Docket Control Experiment

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

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

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

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

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

Your assistance would be appreciated.