Monday, October 14, 2019

Voice-To-Texting With Clients

Thanks to the miracle of Siri and voice-to-text technology, a road trip to Brazos County can usually provide an opportunity to catch up on returning some phone calls and text messages.

Unless your voice-to-text technology is as bad as the one I use.

ME:  I have already talked to my investigator about your case.  He will be calling you shortly.  His name is Roy Underwood.

SIRI:  Texting [CLIENT]: "I have already talked to my investigator about your cats.  He will be calling you shorty.  His name is Roy Underwood." Ready to send?

ME:  No!  Change message.

SIRI:  Okay.

ME:  I have already talked to my investigator about your CASE.  He will be calling you SOON.  His name is Roy Underwood.

SIRI:  Texting [CLIENT]: "I have already talked to my investigator about your case.  He will be calling you too.  His name is boy underwear."  Ready to send?

ME:  No!  Change message.

SIRI:  Okay.

ME:  "I have already talked to my investigator about your CASE.  He will be calling you SOON.  His name is ROY UnderWOOD."

SIRI:  Texting [CLIENT]: "I have all ready talk to my investigator about your case. He will be calling you soon.  His name is Roy Underwood."  Ready to send?

ME:  Close enough.


Sunday, October 13, 2019

Caseload Overload

Monday's Houston Chronicle had an article from reporters Keri Blakinger and Zach Despart entitled "Harris County judges criticized over pace of court-appointed lawyer reform," detailing Rodney Ellis' and the rest of the Harris County Commissioners' Court's push to have a Managed Assigned Counsel (MAC) Program forced upon the Harris County Criminal District Courts.  (NOTE:  A copy of the article is on the Chronicle's paid content website at this link but I could not locate a copy of it on Chron.com.  If you don't have the paid website, you'll have to get a copy of Monday's paper or just trust me on this one.)
Harris County's felony judges have come under fire from Commissioner's Court members for not moving fast enough to abolish the longstanding practice of judges appointing lawyers to represent poor defendants.
The article details much of what I discussed in this post about the MAC back in July.  As I wrote then, the Harris County Felony District Court Judges by no means have rejected the idea of a MAC, but they have asked for more time to design how it would be implemented.  I also shared my multiple concerns about the initial proposal from the Texas Indigent Defense Counsel.  Several of the Felony Court Judges, as well as representatives of the Harris County Criminal Lawyers Association (HCCLA), have shared the same concerns.

Apparently, Rodney Ellis is not the patient type and has demanded that the Felony Courts blindly accept his ideas without having any say in how they will work in the years to come.  That's just foolish.  If the program is going to be effective and capable of dealing with the multitude of complex issues that go along with indigent defense in felony cases, then the District Court Judges would be crazy not to carefully evaluate all aspects of it.  Ellis just needs to calm down.

That being said, Ellis' strongest criticism of the current appointment system is that there are many attorneys who are carrying far too large of a docket, and that's fair if you are looking at things from a purely statistical standpoint.  However, it also begs the question: Why would an attorney intentionally overload his or her caseload?  Are these attorneys really just blindly accepting new cases for no reason other than they can?

The answer to that isn't quite so simple, and the reality is that many of these attorneys with overloaded dockets are taking on so many cases because they are trying to manage the archaic payment system put in place by none other than . . . the County Commissioners themselves.

In today's world, when people go to work, they normally get paid for that work.  They also get paid in a time period that is reasonably close to the time the work was done.  If one works a job where he or she is paid by the hour, a paycheck normally is paid at the end of every week or two.  If one works a salaried position, there are obviously scheduled payments for when that salary gets doled out.

In the legal world, attorneys usually charge a retainer that gets drawn on during the course of the representation.  A client may pony up a hefty retainer that gets placed in a trust, but the lawyer or law firm only takes the money out of the trust once that money is earned by working on the case. 

The bottom line is that the vast majority of people who work get paid for that work reasonably quickly.

But that's not the case with those of who do indigent defense in Harris County.

Before I start sounding too critical of the System, I will point out that I think that Harris County pays well for indigent defense.  Although it doesn't quite approach "free world" payment, it isn't too shabby and it does pay you for the work you've done (eventually).

However, the Harris County payment system dictates that an attorney doesn't get paid on a case that he or she is appointed on until that case has been finally disposed of, and that's a problem.

Let's say that tomorrow, I get appointed on a murder case that is extremely complicated.  As a matter of fact, let's just pretend that it is so complicated that I decide not to take any other cases while I deal with this insanely complex case.  Over the next month, I pour over lengthy offense reports, read cell phone data, watch scene videos, meet with my client repeatedly, talk to my investigator, conduct witness interviews, do scene visits, and attend a couple of court settings. 

Let's say that this one case is pretty much my one and only job for the entirety of the month.  By the end of that month, I have billed over $20,000 worth of legitimate, honest, hard work on this murder case.  It is now the end of the month, and I've got to pay my mortgage, credit card bills, child support, utilities, which should be no problem, right? 

Wrong.  That murder case is still easily a year away from going to trial.  With the backlog of cases and the lingering effects of Hurricane Harvey, in reality, it could be much closer to two or three years before going to trial.  In the meantime, that $20,000 worth of payment that I'm owed continues to sit in the Harris County coffers while I try to figure out how I'm going to make my mortgage and feed my kids.  I did my part, but we are going to have to delay payment on that for a significant amount of time.

So, what am I supposed to do?

Well, the answer to that is generally, sign on to take another case.

So, let's say I decide to sign up for a second case.  Fortunately for me, this one is far simpler.  It's just a crack rock case, a simple State Jail felony.  So, on day one, I get my case and I read the three-page offense report in court.  The case is straightforward and can be worked out, except for one thing -- the lab report on the alleged substance isn't in yet.  I can't plead my client out on a drug case if the State hasn't shown me a lab report proving to me that it is actually an illegal drug.

So, I reset it to wait for labs and I don't get paid on that case this month either.

So, I take another case.  And then another.  And then another. And then some more.  I'm loading up my caseload because I need to get to where I'm on a timeline where payments are coming in.  When I first became a defense attorney, I described how the system worked to my dad.  He likened it to a pipeline, noting that failing to keep the pipeline filled can lead to some pretty lean months.

The attorneys who are overloading their dockets are the ones trying to keep that pipeline flowing continuously, as anyone who dislikes being broke would.  They take the next case and then the next.  Most of those cases may need only a lab report.  Others may be as complicated as that hypothetical murder.  Either way, I will agree that an attorney carrying a tremendous caseload does provide for some pretty bad optics.

An exception to the "pay when the case is done" plan is for those attorneys that take "term" assignments.  They agree to be a Court's attorney of the day or the attorney of the week for a daily rate. For a term assignment, an attorney can be paid on the next pay period.  However, when an attorney is an attorney of the day or week, he or she can be assigned up to five new cases a day, and that doesn't help the caseload overload either.

If I need to get a payment and I need it by the end of the month, I could sign up to be the attorney of the week all month.  Let's say hypothetically, I get an assignment for four weeks straight, and I pick up the full five cases every day.  Suddenly, at the end of the month, I have 100 new cases.

Judges have the power on a case-by-case basis to approve interim vouchers.  If an attorney has worked his butt off on a case and it gets set for trial six months down the road, most judges will approve an attorney getting paid for the work done up to that point.  I can honestly say that I have never been turned down by a judge when asking for an interim payment during that time period.

However, it is definitely not the norm.

The solution to this problem is simple: let attorneys get paid for the work that they do as they do it. 

When the system of not-getting-paid-on-a-case-until-it-was-over was developed, payment vouchers and time logs were all handwritten.  Now, it is computerized.  Making sure that lawyers aren't double billing for hours already claimed and identifying time conflicts can be done with decent software.  It is my understanding that attorneys who do appointed CPS work have the ability to "bill as they go," so why can't those of us who practice indigent defense?

It would definitely have a strong and immediate impact on those attorneys who overload their dockets.  There would be a financial motivation to sit down and focus on a case rather than focusing on getting the next case.  The pipeline methodology of managing a law practice would no longer be relevant.  In theory, cases could be resolved more quickly and the quality of representation would improve as a whole.  There wouldn't be pressure to resolve a case for financial reasons.

In short, it would address many (but not all) of the concerns the Commissioners have listed when advocating for the MAC. 

Sunday, August 11, 2019

Temple Trial Takeaways

As you doubtlessly know by now, the punishment phase of The State of Texas vs. David Temple ended in a mistrial on Friday after jurors failed to reach an agreement on an appropriate punishment for the man they easily convicted of murder.

I've heard from multiple credible sources that the split between the jurors was 10-2, with ten of the jurors demanding Life in prison for the man they convicted of killing his 8-month-pregnant wife, Belinda, by placing a shotgun to the back of her head and pulling the trigger.  The remaining two jurors were holding out for something far less and neither side seemed willing to budge from their position despite almost two days of deliberations.

A jury that convicts but then deadlocks over punishment is not unheard of, but it is fairly uncommon.  Since Temple was convicted of a 1999 murder, the law of 1999 applies to the case.  Back then a person could receive probation for murder, so Temple could technically receive it, as well.  Due to this, there is apparently an argument to be made that Temple could be placed on bond while awaiting his punishment.

If 178th District Court Judge Kelli Johnson elects to give Temple a bond, she will doubtlessly consider the brutality of the case, how many jurors wanted Life for Temple, and the fact that when released from jail in 2016, Temple vowed "for the people that lied and cheated who put me there to be held accountable."  Texas Attorney General Prosecutors Lisa Tanner and Bill Turner will likely point out that these combined factors make Temple a high flight risk with a revenge agenda who has nothing to lose.

Although the hung jury on punishment prevented bringing the 20-year saga of David Temple to a complete close, the fact that he was convicted again will more than suffice for the time being.

It has been a long and winding road that gave David Temple a second chance at getting away with murder, one that most murderers don't get.

Temple was originally convicted and sentenced to Life in 2007 in a trial that pitted Harris County Assistant District Attorney Kelly Siegler against prominent defense attorney Dick DeGuerin.  Despite the fact that the Texas Court of Criminal Appeals affirmed the case, DeGuerin lobbied the District Attorney's Office under then-D.A. (and Siegler's political rival) Pat Lykos to perform an off-the-books investigation into an alternate suspect.

In July of 2012, Pat Lykos was a "lame duck" D.A., having lost her bid for re-election to Mike Anderson in the Republican Primary.  DeGuerin asked then-1st Assistant Jim Leitner to "review" the Temple case before the Lykos Circus left town at the end of December.  Inexplicably, Leitner complied, as I detailed in this post.

Leitner had been informed that newly-minted defense attorney and former Harris County Homicide Lieutenant John Denholm had been sucking up to working for DeGuerin on developing an "alternate suspect" to the murder of Belinda Temple.  Despite the fact that the Court of Criminal Appeals had recently affirmed Temple's conviction, Leitner was more than happy to do DeGuerin's bidding and assigned Denholm's buddy (and current HCDA investigator) Steve Clappart to work on the case.

By September 2012, the dream team of Clappart and Denholm had drafted a Capital Murder warrant for the arrest of a "suspect" named Cody Ray Ellis based on evidence so absurd that I won't even address it in this post.  You can check out the legal document that these two nimwits tried to get signed by clicking here.   (NOTE:  Don't forget to scroll down to the transcript where Leitner testified that he would have signed that warrant.)

Here's a fun fact, in case you didn't pick up on it already:  During the retrial, Stan Schneider didn't even advance Ellis as his "alternate suspect," instead focusing on another teenager from the neighborhood, Riley Joe Sanders.  The juries in both the 2007 and 2019 trials quickly rejected all alternate suspects in favor of Temple.



In the meantime, DeGuerin (now joined by Stanley Schneider) filed an "Out of Time Motion for New Trial or Alternative Application for Writ of Habeas Corpus Based on Actual Innocence, Newly Discovered Evidence, and the Willful Suppression of Exculpatory Evidence." (Stanley apparently gets paid by the word.)  It is worth noting that during all of this, the Lykos Administration never bothered communicating what was going on to the family of Belinda Lucas Temple, which is something I noted here.


Wanting to avoid the appearance of impropriety, Lykos appointed local defense attorney Brad Beers to be a "special prosecutor" on the Temple matter.  There was a small conflict of interest on that, however, seeing as how Beers had previously represented Clappart twice (once in a lawsuit and once on a disciplinary infraction within the Office).

All of this ultimately led to a hearing in 2015 that David Temple wasn't entitled to and that very few others have been the beneficiary of.  During that hearing, Stan Schnieder and then-licensed attorney Casie Gotro got to revisit the entirety of the Temple case.  That rendition of Team Temple rejected at least five judges to hear the extra-judicial hearing before settling on Judge Larry Gist.

As we all know, the multi-week hearing ultimately resulted in findings from Gist that Kelly Siegler had been untimely in turning over evidence to Dick DeGuerin during the 2007 trial, and recommended that Temple receive a new trial.  My opinion then and my opinion now is that Judge Gist wasn't paying attention to much of the evidence that he was hearing.  He certainly wasn't paying attention when he signed off on an order where Gotro and Schneider had slipped in an extra finding.

I know that I'm biased, because Kelly Siegler is one of my best friends, but I will go to my grave feeling that the District Attorney's response to Gist's finding, coupled with Houston Press journalist Craig Malisow's article Unreasonable Doubt: Did Kelly Siegler Really Railroad an Innocent Man Eight Years Ago held far more accurate accounts of the Temple hearing than Gist's findings.

Regardless of how I feel, or how Kelly Siegler's detractors feel, David Temple ultimately got his case reversed.  Due to Kelly's fame as one of the best prosecutors in the State of Texas, the Houston Chronicle writers were ecstatic.  Lisa Falkenberg wrote a really touching article on how Clappart and Denholm were heroic and brave for taking a stand in pursuing the "real killer," despite losing friends.

SPOILER ALERT:  Denholm and Clappart lost friends because everyone knew that they (and their warrant) were full of shit, Lisa.  They were full of shit then and they are full of shit now.  Just FYI.

Brother Denholm even had the audacity to file a grievance against me with the State Bar (with attached affidavits from Gotro and Schneider) for daring to blog about Temple (and try to ruin Temple's fight for freedom).  It got rejected summarily.  I'm still a practicing lawyer, and that's all I'll say about that topic.

And then came the Reign of Ogg.

Kim Ogg took Office on January 1, 2017, and in her inauguration speech, she thanked Dick DeGuerin profusely for all he had done for her and her career.  Within a week, she vowed to be the One Woman Review Team who decided whether or not the District Attorney's Office would retry David Temple.  She appointed Steve Clappart to be her CHIEF investigator, and hired John Denholm to a Division Chief position.  Despite these clear conflicts of interest with Team Temple, Ogg steadfastly refused to recuse herself from the case.

Again, the Houston Chronicle was giddy with the prospect of the Temple Case being dismissed, because, you know, Kelly Siegler cheated!




While in the midst of Ogg's One Woman Review of Temple, DeGuerin even threw her a fundraiser! It was co-hosted by Paul Looney, who had also been a member of Team Temple at one point.


Coincidentally, Team Temple attorney Stan Schneider said that he was "completely comfortable" in whatever Ogg decided.  Gee, I wonder why.  

Ultimately, Kim Ogg relented under public pressure and recused the Harris County District Attorney's Office from The State of Texas vs. David Temple.

And the result? Justice. He was convicted again of Murder last week.

The circus that surrounded his case merely resulted in him getting a two and a half year break from prison that he clearly did not deserve.  Somewhere in the midst of all of this, the prosecutorial team of Lisa Tanner and Bill Turner were able to turn the focus back to the evidence of the case and back to Belinda Lucas Temple and her unborn daughter, Erin.

The postponement of the punishment phase to March will hopefully serve as merely an extremely lengthy epilogue for David Temple.  The real story concluded with the guilty verdict and Temple going back into custody.

Justice prevailed last week.  

Monday, July 22, 2019

Tales from the Old Days

From time to time, I'm reminded of a funny story from my days at the District Attorney's Office and I think that they might make for a decent blog post.  I was reminded of one of those moments this morning by former-HCDA investigator Steve Januhowski on Facebook, so I thought I'd share.

Back when I was a new-ish prosecutor, a group of prosecutors routinely got together on Wednesdays after work for Steak Night at the Little Woodrow's on W. Alabama (sadly, it has since been demolished).  I coordinated Steak Night and I was pretty religious about attendance.  We usually had anywhere between ten to thirty people show up.

I never missed.  If I didn't leave early from work, I was out the door at 5:00 sharp on Wednesdays.

During my tenure as the Chief of County Court at Law #5, my secretary was the one and only Barbara Eaglin, who was a true institution of the Office.  She had been around for decades, if not centuries and was well known for her good-natured battles with the smart ass baby prosecutors that came through the misdemeanor.  In addition, if a thought entered Barbara's mind, it immediately came right out of her mouth, and it came out loudly.

One Wednesday, my godfather, Jim Cox, called the Office looking for me.  Jim was an older attorney, who was probably in his mid-to-late-60s when this happened.  He didn't practice criminal law and he didn't know Barbara, nor did she have any clue on earth who she was talking to when she answered the phone.  As he would tell me later that the phone call went something like this.

BARBARA:  District Attorney's Office.

JIM:  May I speak to Murray Newman?

BARBARA:  No, he's gone for the day.

JIM:  Oh, that's right.  It's Wednesday.  He must have left early for steak night.

BARBARA:  No.  He left early because it's raining outside and shit floats.

She then hung up the phone.

Thursday, July 18, 2019

Conversations at the Elevator Bank

While standing at the elevator bank at the CJC this morning, a highly agitated lady waded into the crowd of people waiting, yelling out questions to no one in particular.

LADY:  WHERE IS ANDREWS?!?!  CAN ANYONE TELL ME WHERE ANDREWS IS?!

CROWD:  (SILENCE)

LADY:  THEY SAID SHE'S ON SIX BUT I WAS JUST UP THERE AND SHE AIN'T THERE!  IT'S BULLSHIT!  SOMEBODY AROUND HERE'S GOT TO KNOW!

ME:  Do you mean Judge Kelley Andrews?

LADY (calming down some):  Yeah!  Her!

ME (trying to remember what floor Court 6 is on):  Well, she's Court Six, so . . .

LADY:  I JUST WENT TO SIX AND SHE ISN'T THERE!

ME:  Well, there's a difference between the sixth floor and Court Six, I'm trying to remember . . .

ANOTHER ATTORNEY:  I think Court Six is on the 11th floor.

LADY (to other attorney):  THANK YOU!  That's all you had to say.

LADY (giving me a dirty look):  I DON'T NEED SOME ARROGANT ASS LAWYER TALKING TO ME LIKE I'M STUPID.

ME:  [SPEECHLESS]

NOTE:  This post reminded me of my favorite post that I ever wrote about the CJC Elevator Experience, so I decided I should relink to it here.