Thursday, September 22, 2016

Dan Gerson

The Harris County Criminal Justice Community lost one of our legends overnight with the untimely passing of our friend, Dan Gerson.  He had been battling cancer for some time now, and although this loss was not unexpected, it doesn't make it any easier to deal with.  From judges to prosecutors to defense attorneys to police and court personnel, everyone seems to have known Danny and to know the guy was to love him.

In a building that is already brimming with personality, Dan was a standout.  Easily one of the most well-dressed attorneys, he alternated between the laughing friend that you always enjoyed talking to and the formidable attorney representing his client.  He did so seamlessly.  He was thoughtful, perceptive, funny, suave and kind.  A fellow attorney, commenting on Facebook, noted Dan's "quiet grace" and I can't think of a more succinct way to describe him.

He certainly wasn't an over-the-top type of lawyer.  He was quiet, yet gregarious.  Serious, yet bitingly funny.  He told war stories that were engrossing, and I never heard him tell the same story twice.  He was sincere and asked about your family, and he truly wanted to hear the answers.  He adored his family and he loved hearing about his friends' families too.

Dan was also a gateway to the history of Harris County Criminal Justice.  He literally had been practicing law since I was one year old.  He fully grasped how fascinating the cases and personalities that had passed through the hallways of the courthouses were and he would tell the stories.  He always downplayed his roll in them, but he recognized how important knowing those stories.

I've always said that the best thing about practicing in Harris County was that we younger lawyers got the opportunity to walk amongst Giants.  Dan recognized that principle in telling the stories of the old days, but he never acknowledged that he was a Giant himself.  

Dan had battled serious illness before and defeated it.  He made a point to check in with those who went through their own medical battles later on.  He was a kind and caring man.  

He also had a great sense of humor.

Those of us in the courthouse community have known that Dan was quite ill for some time.  Although we all hoped for the best, we have all known for awhile that our time left with him was running short.  Not quite as short, however, as some thought.  A month or so ago, an attorney erroneously notified the HCCLA Listserve that Dan had passed away.  Given Dan's prominent place in the community, word of his passing spread like wildfire.  Fortunately, the information was premature, and Dan took to Facebook to let his friends, family and fans know that the rumors of his demise were greatly exaggerated.

There are few people in the world who could have appreciated the humor of such a false rumor like Dan did.  It also gave all of us an opportunity to pour out our emotions and tell him how much we loved him and were relieved that he was still with us.  If there was ever something positive to come out of a false rumor, I suppose this may have been the one example.

Dan was a true Renaissance man, and he easily had one of the most entertaining Facebook pages on the internet.  The travels with his family and the cool cars and cool places were always fun to see.  Few people possess Dan's self-confidence.  Only he would have the confidence to be a skinny bald man rocking the striped Speedo in the 80s.

The last time I saw Dan, he told me he was having to go back for more treatment and would be out for a while.  As always, he was smiling, upbeat, and funny.  He knew what he was about to start, and he still exhibited that quiet grace.  About a week ago, his wife posted a picture of Dan as he was walking into chemotherapy.  Dapper as always, he was wearing a collared shirt.  He was suave even in the worst of times.

There was a definite sadness in the courthouse about the loss of our friend, today.  He made his mark there and he was truly loved.  The place will truly not be the same without him.

I'm not alone in saying that I will miss my friend very much.




Thursday, August 25, 2016

Fundraiser for Judge Stacey Bond

There will be a fundraiser for the re-election campaign for 176th District Court Judge Stacey Bond coming up next Thursday, September 1st at Ladybird's at 5519 Allen, Houston, TX from 4:00 p.m. - 7:00 p.m.

Judge Bond has been an outstanding judge in her first term in the 176th.  She knows the law, follows the law, and holds all sides to the same standards.  I sincerely hope you will join me in supporting her for re-election!

Thursday, August 11, 2016

Congratulations to Alex Bunin

Congratulations are in order for THE Public Defender, himself, Alex Bunin for being named the winner of the Champion of Public Defense Award by the National Association of Criminal Defense Lawyers today.  The award is given to the attorney who demonstrates "exceptional efforts in making positive changes to a local, county, state, or national public defense system."

Alex has a lengthy and distinguished career in indigent defense and the Harris County Public Defenders' Office has become yet another one of his many success stories.  As I've said before, when I was leaving the D.A.'s Office, I was petrified of the creation of a Public Defenders' Office and the possibility of available cases drying up.  Alex made sure that the PD's Office was an asset to all defense attorneys practicing in Harris County.  His office routinely puts on CLEs for attorneys and has become an important and respected voice in the CJC.

He's also fielded a team of excellent trial and appellate attorneys who are willing to share their time and expertise with any attorney needing help.

None of this could have developed without Alex's diplomacy and leadership.  He is absolutely deserving of this award, and I'm proud to call him my friend.

Saturday, August 6, 2016

Judge Marc Carter Wins William H. Rehnquist Award for Judicial Excellence

Tremendous congratulations to 228th District Court Judge Marc Carter, whose longstanding dedication and hard work with veterans charged with crime has earned him the prestigious William H. Rehnquist Award for Judicial Excellence.  The award is given to only one judge a year, and is presented by Chief Justice of the Supreme Court, John Roberts, during a dinner ceremony at the Supreme Court in November.

Judge Carter was selected by the National Center for State Courts who awards it to a judge "who demonstrates the outstanding qualities of judicial excellence, including integrity, fairness, open-mindedness, knowledge of the law, professional ethics, creativity, sound judgment, intellectual courage, and decisiveness."

They made a great choice, because Judge Carter is the embodiment of that description.

Judge Carter, who as most of you know, is an Army veteran himself, has been helping lead Harris County's Veterans' Court for years now.  His temperament and background has made him the perfect leader for the program.  He follows the law, but he is truly guided by compassion and a sincere desire to help.  Veterans struggling with mental health or addiction issues are given second (and sometimes more) chances to readapt to society.

Judge Carter's compassion doesn't extend solely to veterans, however.  He has shown time and time again a willingness to save those people who appear before him who have a chance to be saved.  He has the unenviable task of balancing between protecting society and not throwing away people who can still be productive members of that society.  He does so with kindness, compassion, and intelligence on a daily basis.  

With his standard humility, Judge Carter has passed all of the credit for this prestigious award to the staff of both the 228th District Court (and coordinator extraordinaire Vanessa Guerrero) as well as Mary Covington and the staff of Veterans' Court.

The attorneys who practice in the 228th could not be happier nor prouder of Judge Carter.  It is hard to imagine a more deserving recipient.

Friday, July 22, 2016

David Hilburn is still Alive and Well

From our Bad Rumor-Squashing Department . . .

I was asked today by a concerned attorney whether or not beloved former prosecutor (and Brazos County) David Hilburn had passed away.  Since Dave is a really good friend of mine, I was pretty sure I would have heard that news, but I texted him to be sure.

Dave was happy to report that he is still alive and well, but acknowledged that this was the second time this week that someone had texted him to ask if he was dead.

Apparently, another David Hilburn passed away recently and that David was a friend of a friend on Facebook, who had subsequently posted "RIP David Hilburn," and that's where the confusion began.

So, rest easy friends, Dancing Dave is still not dead.

Wednesday, July 20, 2016

Rocks, Hard Places and Writs of Attachment

Last night, Channel 2 KPRC's Jace Larson profiled the disturbing story of a sexual assault victim who had been placed in the Harris County Jail on a Writ of Attachment after having a nervous breakdown in the trial against her attacker.  The details of the story are mortifying:
After a rape victim named Jenny had an obvious mental breakdown while testifying against her attacker, Harris County prosecutors decided the best way to make sure she'd return to complete her testimony was to lock her up in the Harris County Jail.
From there, things went from bad to worse.  The report, paraphrasing the lawsuit filed on "Jenny's" behalf by attorney Sean Buckley noted:
Buckley says his client was put in jail without due process, given a black eye by another inmate while kept in jail for nearly a month over Christmas. Jenny also suffered injuries when she was punched by a jailer after she attacked the guard. Jenny was charged with assault but prosecutors later dropped the charge. 
The idea of arresting the victim of an Aggravated Sexual Assault on a Writ of Attachment is a PR nightmare, isn't it?  It certainly flies in the face of a District Attorney's Office mission statement to seek justice for the victims of crime, right?  Are prosecutors so desperate to win their cases that they will stop at absolutely nothing?  Even if it means locking up a mentally ill victim of rape?

Well, ultimately, although the actions taken by the District Attorney's Office may have been illegal, the motivation isn't quite as sinister as the news article would make it out to be.

The case surrounds the trial of Keith Hendricks, an accused serial rapist who was believed to have targeted homeless women in Downtown Houston.  His case had previously garnered media attention when the media was focusing on the backlog of DNA testing from HPD.  A glance at this article from March 2015 notes:

Another suspect, Keith Edward Hendricks, a homeless man convicted of a 1978 rape in Indiana, is now facing four sexual assault charges from 2006 to 2013.  Officials said Hendricks attacked homeless women, luring them to abandoned buildings and raping them, sometimes while brandishing weapons such as a box cutter.
A kit in the city's backlog first tied him to a 2006 sexual assault.  One year after that alleged rape, he was ordered to submit a DNA sample on another sexual assault charge.  Had officials tested the 2006 kit, it might have spared a victim in an alleged 2013 rape. 
But the women accusing Hendricks of rape may have been difficult to put on the stand, said Jane Waters, head of the district attorney's special victims bureau.  Many of the women were homeless, and some had drug or alcohol addictions. 
Although a brutal crime still is not ever justification for breaking the law, this does give some insight into the scenario that arose around "Jenny."  The D.A.'s Office had evidence indicating that Hendricks was targeting transient and mentally unstable women, and Jenny apparently fit that description.  The prosecutor tasked with handling that type of case has a tremendous challenge of getting his witnesses to just show up.  Obviously there is a public safety interest and justice needs to be served, but that can be easier said than done.

The prosecutor on the case was Nic Socias, who is named in both the KPRC story and Buckley's lawsuit.  I know Nic and I've worked on cases with him.  He is a good prosecutor and an ethical one.  In my experience, he's always been a standup guy.  Unfortunately Nic found himself in the middle of a trial where he was not only prosecuting a man accused of doing horrible things, but also one that was a continuing danger to people just like "Jenny."  Her breakdown on the stand may or may not have been expected, but her unreliability certainly had to have been anticipated.

To take a dangerous man off the streets, Nic had to have Jenny's testimony.  The problem he had was there was no legal mechanism for making sure that Jenny came to court.

As Buckley noted in his Complaint:
Texas state law authorizes a judge, upon request by a party, to issue an “attachment” order and/or a “witness bond” to hold a material witness in custody without bail, or release her subject to posting bail, respectively. An attachment order was unauthorized because [Jenny] was not subpoenaed as a material witness and was not a resident of Harris County. See Arts. 24.12 and 24.14, Tex. Cd. Crim. Proc. Nor could [Jenny] be held on a witness bond, since the applicable statute prohibits jailing witnesses who are, as [Jenny] was, financially unable to post bond. See Art. 24.24, Tex. Cd. Crim. Proc.
Article 24.12 states that a writ of attachment is possible for "a witness who resides in the county of prosecution," but in this instance, Jenny was apparently a resident of Gregg County.  I'm not sure about the allegation that she hadn't been subpoenaed as a material witness, but that jurisdictional issue could potentially be a big problem.  Additionally, Article 24.24 does clearly state that if "any witness is unable to give security upon such bail, he shall be released without security."

What followed after the Writ of Attachment was executed on Jenny was a series of unfortunate events that continuously went from bad to worse.  Although initially Jenny was being housed in a mental health facility, she ultimately ended up in the Harris County Jail.  Once in the jail, Jenny was treated like any other inmate accused of a crime.  She was listed as being there for a Sexual Assault case, and apparently jail personnel missed the designation of her being there as a Witness, rather than as a Defendant.

As Buckley notes in his Complaint, what happened to Jenny after that does truly resemble a Kafka novel.
“Someone must have slandered Josef K., for one morning, without having done anything truly wrong, he was arrested.” —Franz Kafka, The Trial.
Ultimately, what happened to Jenny is what we risk when we follow the adage of "well, we've always done it this way."  Uncooperative witnesses who prosecutors know (or believe) won't show up for trial get Writs of Attachment filed on them.  Unfortunately, it doesn't appear that the parties involved looked at the Code of Criminal Procedure before taking Jenny into custody.

In most instances of Writs of Attachment, the witness is held overnight or for a few days at most.  In Jenny's case, there was a break in the trial for the Christmas holidays that led to an extended stay for her.  That's how all Hell broke loose.

Whether or not the D.A.'s Office and all the named parties in Jenny's lawsuit are protected by governmental immunity is something that will be decided by the Federal courts.  I don't practice civil law, so I won't make any predictions.  I do think Jenny's rights were violated and what happened to her compounded an already tremendous tragedy.

That being said, I have a hard time throwing any stones at Nic Socias or the District Attorney's Office.  Prosecutors often have to proceed on cases in the interest of justice, even when the victims don't want to cooperate.  I can recall more than one case I prosecuted where a child was being sexually abused by an adult relative and nobody in the family wanted it prosecuted.  To accuse Nic or the District Attorney's office of not caring about Jenny or other victims of sexual assault is just simply not true.

Unfortunately, the road to Hell is often paved with good intentions, and this whole incident reminds me of the infamous quote from Vietnam that said, "It became necessary to destroy the town to save it."

Whatever the outcome is of this case, I feel sorry for all involved.

Monday, July 18, 2016

The Perils of Politicians Pandering

Ugh, politicians.  They truly can be nauseating critters.

In most cases, the Empty Suit style of shaking hands and kissing babies is innocuous enough.  I mean, if a vote is earned because someone agrees with your gutsy stand that babies are cute, more power to you.  Sadly, the voting public has proven time and again to not be all that hard of a sell when giving up its vote to style over substance.  I could expand on this, or you could just switch over to any major news channel and you'll get the point.

Try as I might, though, I just can't get past the frustration of watching elected officials allow political pandering to seep into the criminal justice system.  As I've written time and time again, partisan politics have no place here.  If a candidate wants to sit on a criminal court bench or run for District Attorney, his or her position on abortion, gay marriage, foreign policy and taxes are irrelevant to their job description.  In theory, those who hold elected positions in the criminal justice system should be governed by the law and only the law.  What they do should be insulated from politics of any kind.

Unfortunately, the horrific events in Minnesota, Louisiana and Texas over the past weeks have practically begged for hardcore Republican politicians to prove to the electorate how pro-police they are.  There's nothing wrong with being pro-police, mind you.  I've never been shy at expressing my admiration for police officers and the jobs they do.  I admired them as a kid.  I admired them as a prosecutor.  And even though I've heard them grumble about my move to the "Dark Side," I continue to admire them now as a defense attorney.

The killing of eight officers in Dallas and Baton Rouge hurt my heart and they make me worry for my friends who are police officers locally and around the country.

And before someone starts asking, "Why are you only talking about the deaths of police officers and not the killings of Alton Sterling and Philando Castile?", bear with me.  I'm not writing this particular post to compare the worth of competing tragedies, but I will talk about them in a moment.

Today, Texas Governor Greg Abbott announced that he would be proposing what he called the Police Protection Act, to the cheers and accolades of all police-loving Republicans everywhere.  If the Act passes (and what good politician would ever oppose a law that protects the police?), if a crime against a police officer is proven to be motivated by the hatred of police officers in general, then that crime can be found to be a "hate crime" and raised to a higher degree of crime.

Uh huh.  Now, let's talk about that for a minute.

As noted in the Governor's press release, police officers (in their capacity as public servants) are already treated as a protected class under the laws of the State of Texas.  If you punch me in the face, the worst you are looking at is a year in the county jail, and perhaps an enthusiastic hug from Pat Lykos.  If you punch a police officer in the face, you are looking at spending the next ten years in prison.

If you were to take a gun and shoot me in the leg, you would be looking at a maximum of twenty years in prison.  If you shoot a police officer in the leg, you would be looking at Life in prison.  If you shoot me and kill me, the worst thing that could happen to you is Life in prison.  If you shoot and kill a police officer, the Death Penalty is most likely going to be sought.

The point is, Texas Law already has very harsh upgrades in punishment when the victim is a police officer.  Abbott's proposals under the Police Protection Act will have very few practical upgrades in punishment, but damn, it sure does show how much he loves police officers, doesn't it?  Okay, if you punch a police officer in the face solely because you hate police officers, you could be looking at up to twenty years rather than ten.  Of course, the prosecutor is going to have to prove up that hatred of police officers was your sole motivation  -- not as easy as it might sound.

But it isn't as if an Aggravated Assault on a Public Servant can be upgraded from a first degree felony to a capital offense without a fatality.  The big thing that Abbott's proposal does is call for police officers to be treated as a "protected class."  However, police officers already are a protected class.  The Act is 99% pure pandering and Republicans are loving it.

Although I'm not a big fan of Governor Abbott in general, one can forgive him for his pandering.  Even though he is the former Attorney General of Texas and should be a little embarrassed over it, "Feel Good Legislation" is part of a Governor's job description, I suppose.

That can't be said for Criminal District Court Judges, however.  An honorable Criminal Court Judge is the one guided by the law and only the law -- public opinion be damned.  Law above politics no matter what the fallout, right?

Apparently not if you are Judge Kerry Neves of the 10th District Court of Galveston County, who made a post on his Facebook page today, which read as follows:

I have just signed an Order which goes into effect immediately in this Court. No plea bargain agreements for deferred adjudication or probation involving Assault on a Public Servant, Evading Arrest, Resisting Arrest or any other offense in which a member of Law Enforcement is threatened or placed in danger will be approved. In the event the State and the defense attorney believe there is compelling evidence to support such an agreement, the Court may consider it if presented with such evidence. Approval will require a sincere written statement of apology to the officer or officers involved, and agreement from the officer or officers involved to the plea bargain agreement. Prior criminal history will play a big role in whether any such agreement is approved.
If approved, the defendant will be required to read the statement in open Court.
I may only be one person, one Judge, but I will do what I can to stop the disrespect and aggressive behavior against our police officers. If you are an officer, spouse of an officer or know an officer, make sure they know of this change in my Court.

I love the last paragraph.  "I may only be one person, one Judge . . ."  Martyrdom is a lonely business.  "If you are a registered voter an officer, spouse of an officer or know an officer, make sure they know of this change in my Court."  At some point, there seems to be a very fine line between showing solidarity in the wake of a tragedy and capitalizing off of it.

What better way for a judge to announce that he has prejudged the credibility of absolutely every officer that will ever testify in his court and graded that credibility as Immaculate?  What better way to announce that, as an elected judge, you cannot be open to the full range of punishment on any case where a law enforcement officer is the victim?

So, the kid that runs three feet from a police officer before getting tackled doesn't get probation, huh?  The guy that elbows the officer in his bulletproof vest is looking at a minimum of 2 years TDCJ in your court?  That Facebook post pretty much assures us that there are no shades of gray in Judge Neves' court.  As my friend Jeremy Gordon pointed out, if you are a defense attorney in Judge Neves' court, you better have a Motion to Recuse ready, unless you want to be ineffective.  Politics have forced out any minimal appearances of judicial neutrality.

Which brings me to the killings of Alton Sterling and Philando Castile.

I've watched the videos on both shootings and I've read the different articles (and multitude of personal opinions) on them.  My personal opinion is that it looks pretty damn bad for the police officers involved.  I'm not a police officer and I wasn't there, but what I've seen merits a trial.  I've been disappointed in those who have tried to drag Sterling and Castile's reputations through the mud rather than address the actions of the police officers.  

I recognize that police officers have dangerous jobs and risk their lives on a daily basis.  They also have special training and equipment that is designed to minimize the risk of death for all parties involved in a police encounter.  Just as a surgeon would be held accountable if he or she were to act outside of his or her training and cause a death, so should a police officer.  This isn't a call for conviction.  It's a call for examination and accountability.

I can't imagine any rational mind looking at the videos of the deaths of Sterling and Castile and thinking that neither of them deserve any level of scrutiny.  To feel that way exposes a level of bias that is contrary to the principles of criminal justice.

It's apparently a level of bias that Judge Kerry Neves is quite comfortable with.

Friday, July 8, 2016

Simple Tragedy

Like most of you, I've been stunned by the events of the past several days.  The deaths of Philando Castile and Alton Sterling followed by the attack in Dallas have illustrated that there is now a clear war between those who support #BlackLivesMatter and those who support #BlueLivesMatter.

This is the moment we've been waiting for, right?  The official declaration of war?

For years, every time a black male died at the hands of the police, it indicated a war was coming.  Every time a police officer died at the hands of a black male, it was a war coming.  The events of this week have surely removed all doubt that we now have a full-fledged war, haven't they?  Clearly the videos graphically depicting the deaths of Castile and Sterling prove a systematic targeting of black males by homicidal cops.  Correspondingly, no one can argue that sniping 12 cops from an elevated position isn't "targeting."

We obviously have two very homicidal groups of people clashing with each other now, don't we?

To find sympathy and understanding towards one of those groups is to most decidedly turn your back on the other.  If you think that Castile and Sterling should still be walking the Earth today, you are quite obviously a Cop Hater.  If you think that Micah Xavier Johnson was nothing more than a coward and a murderer, then clearly you have no sympathy or understanding for the plight of African-Americans who face police brutality on a daily basis.

You simply must chose a side, for better or for worse.  Failure to do so only earns you the disdain of both sides of this war.

Many moons ago, when I was in college, I took a sociology class where the professor made the off-hand comment that the only taboo that was acknowledged in all cultures was treason.  Initially, the statement seemed overly broad.  However, if you think about it, it makes sense.  Across the globe, there are some cultures in some places that will condone killing, stealing and raping.  None of those cultures, however, will tolerate betrayal.

As a former-prosecutor-turned-defense-attorney who still holds a great general admiration for the people of law enforcement, I think about that statement often.  When I blog in defense of a police officer (or prosecutor), I'm occasionally treated as being quite treasonous by the Defense Bar.  I used to be a member (and board member) of the Harris County Criminal Lawyers Association, but my ties to old friends from the D.A.'s Office and my work on Cold Justice ultimately led to the end of that relationship.  Conversely, when I criticize decisions of the District Attorney's Office or the police department, I suffer the same level of ire and criticism.

Man, it's rough out there trying to think independently.

But, I digress.

At the end of the day, in the immortal words of Obi-Wan Kenobi, "Only a Sith deals in absolutes."

Although it may be more satisfying to pick one side or the other, there are no such things as absolutes when it comes to humans.

Some of the most honorable, intelligent, brave, and selfless people I have ever had the honor to know wore a badge.  I may not have always agreed with them, or wanted to hear what they had to say, but in the vast majority of cases, I didn't doubt their honesty.  On the other side of the coin, I've spent the past seven and a half years of my life representing people accused of crimes -- from the innocuous to the heinous.  Some were guilty.  Some were innocent.  All were humans that had a story to tell and a reason for being in the position where I first found them.

None were the monsters that prosecutors often believed them to be.

The events that led to the deaths of Philando Castile, Alton Sterling, Lorne Ahrens, Michael Smith, Michael Krol, Patrick Zamarippa, and Brent Thompson were events that are a sad reflection of what the world is like today.

But they aren't a reflection of a "war."

There are horrible police officers out there who will use their badges as a license to lie, cheat, steal, brutalize, and sometimes, murder.  It cannot be denied that this happens, much more than we are comfortable admitting.

And of course, there are citizens who will lie, cheat, steal, brutalize, and sometimes, murder, albeit without the protection of a badge.  These are things that cannot be effectively prevented, unfortunately.  As much as we try, wish, train against, pray for, or teach about, there is no way to wipe out those who seem to truly enjoy harming their fellow man.

We flock to causes in the delusional belief that we can, though.

Yesterday, prior to the attack in Dallas, I watched a Facebook skewering of an individual who had dared to say "All Lives Matter" in response to a friend who had posted about #BlackLivesMatter.   Man, it was brutal.   This person was clearly going to perpetuate more deaths with an "All Lives Matter" posting, and thank God, Facebook was there to shout her down.

Four hours later, I was reflecting on the fact that five police officers went to work their shifts that day and never came home.  They said goodbye to their families with the assumption that they would see them again in a few hours, but those simple reunions would never happen again.

The families of Philando Castile and Alton Sterling would sympathize.

I'm rambling.  I know.  But in my opinion, none of this should be described as a "war."

It may make us feel better to pick a side and run with it, but that solves nothing.

This is simple tragedy.

Wednesday, July 6, 2016

Just an Observation

I was talking to a friend and fellow defense attorney today.  He told me about a recent experience with a younger prosecutor who had claimed being ready for trial and announcing that a case was "first up."  As it turned out, the prosecutor was not only not ready for trial, but also knew that the court wasn't going to trial that week -- the bold announcement of being "ready" and "first up" were merely ploys to get trial counsel to take a plea bargain.  The ploy failed, although the defense attorney spent his three-day weekend prepping for a trial that the prosecutor knew damn good and well wasn't going to be happening.

This particular maneuver by a prosecutor isn't a new one, but it is definitely chickenshit.

Our conversation then turned to the departures of three felony Chiefs and one very senior Felony Two from the D.A.'s Office in the past two weeks.

"You think they (the four departing prosecutors) ever would have pulled that shit?" I asked, referencing the younger prosecutor's maneuver.

Of course the answer was no.

The prosecutors leaving the Office right now are the exact types of people that shouldn't be leaving, and something needs to be done to stem the bleeding.

That "something" may not win any additional votes, but it goes a long way towards fulfilling that oath about seeking Justice.

Tuesday, June 21, 2016

Aggravated Robbery and the PSI Blockade

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

Aggravated Robbery.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Theoretically, that person should be the neutral judge.


Tuesday, May 17, 2016

Early Vote for Judge Mary Lou Keel

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

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

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

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

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

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

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

Make sure you vote too and spread the word.

Monday, May 16, 2016

Services for Robin Mitchell

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

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

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

Wednesday, May 11, 2016

Farewell to a Friend

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

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

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

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

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

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

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

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

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

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

The patient in the chair was a friend.

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

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

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

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

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

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

And I didn't.

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

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

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

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

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

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

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

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

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

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

Wednesday, May 4, 2016

Portrait Unveiling for Judge Mary Bacon

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

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

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

Thursday, April 21, 2016

HBA Presents Miranda v. Arizona

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

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

For more information, click here.

Wednesday, April 20, 2016

Help Neil Krugh Raise Money to Fight Alzheimer's Disease

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

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

Wednesday, April 13, 2016

The Catch-22 of Domestic Violence

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


That’s the Catch-22 of domestic violence.

Tuesday, March 29, 2016

Seeking a Police Blogger

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

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

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

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

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

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

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

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

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

Tuesday, March 22, 2016

R.I.P. Dr. Newman

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

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

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

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

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

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

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

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

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

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

Friday, March 11, 2016

A Very Nice Article on Anh Reiss

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

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

You can read the article here.

Tuesday, March 1, 2016

The Lawyer and the Legislator

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

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

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

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

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

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

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

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

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

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

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


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

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

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

He also noted:

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

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

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

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


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