Thursday, April 30, 2009

Visitation & Funeral Information for Bob Sussman

Visitation for Bob Sussman will be tonight, Thursday, April 30, 2009 from 5:30 p.m. to 7:30 p.m. at Bradshaw-Carter Memorial & Funeral Services, 1734 W Alabama St., Houston, TX 77098.

The funeral will be tomorrow, Friday, May 1, 2009 at 1:30 p.m. at Woodlawn Funeral Home - Chapel, 1101 Antoine Dr, Houston, Texas.

Tuesday, April 28, 2009

Bob Sussman

I started law school at the University of Houston in the Fall of 1996. I knew I wanted to be a criminal lawyer, but I had about as much direction on how to achieve that goal as a wind sock. Unlike most of my fellow law students, I had no great plans for a clerkship at a Court of Appeals or some equivalent that was career-guided.

I had absolutely no idea how a law student was supposed to fill his Summer Break.

A very dear family friend, Gardner Parker, called and told me that I ought to spend my Summer as a law clerk for the firm of Hinton Sussman Bailey & Davidson -- a criminal firm built of four former Harris County prosecutors with amazing credentials.

Although my ambition was to ultimately to be a prosecutor, I obviously jumped at the chance.

I started in May of that year. I was dating the girl who would ultimately become my (first) wife, and the job was fantastic. Mike Hinton, Bob Sussman, Joe Bailey, and Charley Davidson were some of the best bosses that any aspiring criminal lawyer could ever hope to have. They were very family oriented. They worked hard. They played hard. There probably couldn't have been more of an affirmation that I was seeking out the right line of work.

All of them had legendary cases under their belts, and I found myself in the company of those Giants that I speak of when it comes to Harris County Criminal Lawyers.

As the clerkship began, I found myself primarily working for Bob Sussman. He and Joe Bailey were working on a death penalty capital case against Kelly Siegler and Vic Wisner. I've mentioned the case before on this blog. For the most part, I was doing whatever Bob Sussman told me to do.

Bob was the gruff, labor-intensive attorney who was the Rainmaker for the Firm. His analytical analysis of the case was unparalled, because the man was simply brilliant. He worked every angle of the case from guilt/innocene to mitigation to legal issues that could be brought up on appeal should the case falter.

And the person he had doing the leg work was me.

Bob was, without a doubt, the toughest boss I ever worked for. He was demanding. Challenging. Unrelenting,

And at the end of the day, amazingly successful.

If I ever had someone that approached the fabled Professor Kingsfield of The Paper Chase fame, it was Bob Sussman. What he had me doing on that case consumed my life. We spoke of the Death Penalty and how to fight the case, and he made me realize what being a criminal lawyer was all about. My entire summer was devoted to living up to Bob's expectations.

He wanted to save our client's life and he would stop at nothing short of doing so.

Good God, we fought hard for Brian Gonzalez's life.

And, in the end, we prevailed. Through a bizarre set of circumstances involving a pregnant juror who went into early labor, there was a mistrial, and thus resulted the one case that Kelly Siegler ever sought the Death Penalty and did not get it.

Bob Sussman had been adamant about putting that pregnant juror on the jury.

The man, although seldom warm and cuddly, was quite brilliant. He was the ultimate vision of what a talented and successful criminal defense attorney could be.

Years later, I was the Division Chief of the Justice of the Peace Division of the District Attorney's Office, when Bob called me. He had a client that he wanted to talk to me about. I was so glad to hear from him, because there was a part of me that so wanted to show him what I had become as a prosecutor. I wanted to show him that his piddly-butt law clerk was actually doing well as a member of the District Attorney's Office.

It was great talking to him, and dealing with him as an equal. And during our entire conversation, I knew that a large part of the way I handled myself as a prosecutor was how hard he had driven me when I was his law clerk. I would like to think that I made him proud of me, but whether or not that was true, I knew that I wouldn't have been where I was if it hadn't been for him and his expectations of me.

He was a tough man to work for, but he had a Heart of Gold, and I stand here today knowing that he made me a better lawyer.

Bob Sussman died today.

He was coming back from working on a case in Jordan, of all places, when he collapsed at the airport and paramedics were unable to revive him.

The last time I had seen him was in March of last year, and it was good to see him.

It was good to feel the mutual respect from someone that I respected so much when I was just a peon First Year Law Student.

I never told Bob Sussman how much his level of drive and dedication served as an example to me in trying each and every one of my cases, but the mark he made in my mind will never go away.

I am very proud to have worked for Bob Sussman. The things I learned from him were countless. He was a great litigator. He was a great legal scholar.

He was a great teacher.

I can promise that he is very much someone I will never forget, and someone who drove me to be the best that I could possibly be.

God Speed, Bob. You will be truly missed.

Sincerely,

Your Student

CLE Cancelled

Sorry for the notice about the CLE this morning. It was cancelled shortly after my arrival at the CJC this morning and I'm just now getting back to my computer.

I've been informed that it will be rescheduled in the near future.

Free CLE Today

For those of you who don't get the notices from HCCLA about upcoming CLE classes, today there is a free CLE called "Dealing with the Practice" on the 20th Floor of the CJC in the Ceremonial Courtroom.

It's 6.5 hours of CLE, with 2.5 being for ethics.

And as an additional bonus, I'm apparently moderating during the 2:00 to 3:30 session.

You just can't beat that with a stick.

Thanks to HCCLA for putting it on.

Monday, April 27, 2009

An Amusing Morning

I was caught a little off guard this morning walking into the 177th District Court, where I was assigned to work as Attorney of the Day today.

The media was in the front foyer hoping to get some film footage of a locally high-profile murder case that came in last week, and one of the cameramen asked me: "Hey, is your guy going to come out today?"

Now, by "coming out", the camera man wanted to know if the Defendant was going to actually be brought out of the holdover cell to be talked to by Judge Kevin Fine (thus giving them something to actually film). However, when serving as Attorney of the Day, a defense attorney has no idea what cases he will be actually handling until he arrives in the court that morning.

So, basically, I had absolutely no clue as to what case the camera man was referring too.

"My guy?" I asked him.

"Yeah, the student who killed the homeless man," he told me.

"Am I getting that case?" I asked him.

"We talked to you about it on Friday," he responded.

At this point, I was getting confused, because I'm pretty sure that I would have remembered being assigned to a murder case that I had talked to the media about the previous week. I asked him if he sure it was me that he had talked to, and he insisted that I was.

I was now beginning to think that I needed to enter rehab or something if my memory was fading out that badly.

Finally, the situation was resolved when he said: "You are Ed, aren't you?"

Now, everything made sense, because I realized he was referring to prosecutor Ed McClees, who, like myself, is a damn good-looking bald man.

However, I guess I can now claim that I have been discriminated against by a camera man who clearly operates under the long-held stereotypical belief that all bald men look alike.

Or, as my friend David Hilburn assessed this morning's situation by telling me: "Compliment to you. Kind of a slap to Ed."

Friday, April 24, 2009

I'm Just Saying . . .

Today will be the last day for yet another member of the Harris County District Attorney's Office.

Now, before you Lykos fans start applauding too hard about old Patsy and the Gang running off another one of those "lazy, corrupt and racist prosecutor holdovers from the Evil Rosenthal Administration", you might want to know who it is.

Beverly Chambers, who was handpicked by Lykos to be the top Executive Administrative Assistant and brought into the D.A.'s Office on January 1st is now making her exit -- shortly after about 100 days of having the "honor" of working right outside Pat's door. Perhaps you remember her from her role in Secretaries' Day.

No official reason has been provided for her departure after her three month contribution to the job. Also, there's no word from Patsy if Ms. Chambers was being "negligent" or "incompetent" (but then again I haven't read the Chronicle yet this morning).

However, given the fact that during Lykos' tenure as Judge in the 1980s that she ran off more court coordinators than any other judge, it does give one cause to wonder what happened here.

I'm just shocked. Shocked, I tell you. Shocked.

Monday, April 20, 2009

Another Day Another Chief Leaves

Immediately on the heels of Stephen St. Martin's resignation on Friday, the Lykos Administration received yet another resignation from a Senior Felony Chief Prosecutor this morning.

Chief Prosecutor for the 230th District Court, George Weissfisch turned in his two weeks notice today.

George was very much a shining star at the District Attorney's Office from the moment he arrived there. Most prosecutors when they first begin at the Office take several months if not years developing their trial skills, and their win-loss ratios often reflect that. It's not unusual for very talented prosecutors to come out of misdemeanor with a 50% success rate, just due to the level of inexperience and the nature of their cases.

George defied those odds and (if I recall correctly) was undefeated for quite some time in his stint as a baby prosecutor.

He continued to impress people at high levels as he worked his way through the Office. Ultimately, George's reputation as a trial attorney became so impressive that he was promoted to Felony Chief waaaaay ahead of many more senior prosecutors (including myself).

I wish George the best of luck in his new endeavors, but for the second time in two business days, another good chief has decided not to continue working with the Gang Who Couldn't Shoot Straight.

That makes the total of four felony chiefs who have quit rather than work with Lykos in her first four months of Office.

And folks, I think we are just looking at the tip of the iceberg here.

Friday, April 17, 2009

More Experience Leaves the Building

Yet another Senior Prosecutor turned in their two weeks notice to Lykos and the Gang Who Couldn't Shoot Straight today.

Veteran Chief Prosecutor Stephen St. Martin will be leaving the District Attorney's Office and joining the Defense Bar, effective at the end of business on May 1st.

If you will recall, Stephen, along with fellow Chief Prosecutor Lance Long was recently honored by the Federal Bureau of Investigation's Director's Award on April 1st for his role in working with the FBI on the Randy Sylvester case. His dedication to the Office for well over a decade has been a tremendous asset to the law enforcement community. His award was the one where Lykos snubbed both of her prosecutors at the ceremony.

Stephen also has a reputation as a no-nonsense and fair-minded prosecutor that Defense Attorneys find to be reasonable and attentive to their arguments.

Harris County's loss will definitely be the Defense Bar's gain.

I have a feeling that the above phrase will be said many many more times this year as more experienced prosecutors continue to file out of the D.A.'s Office.

Monday, April 13, 2009

Day One

I think that since we now know that Rifi Newaz and Mark Donnelly did, in fact, have race-neutral reasons for their strikes in the Ricky Whitfield case that it stands to reason that Pat Lykos:

1. should reinstate both men to their prior positions; and

2. issue a PUBLIC apology for smearing their reputations in the media.

I'm going to keep track here until she actually does it. Just like I did with Alan Bernstein last year when he refused to run the Yarmulke Story.

It's Day One, Judge Lykos.

You're on the clock.

Thursday, April 9, 2009

The Transcript Is In

Prior to weighing in on the validity of the Batson challenge being granted in the Ricky Whitfield case, I decided to take a very un-Pat Lykos like approach and actually read the transcript. I only ordered the portion of the transcript that dealt with the Batson challenge being made by Eric Davis and Jacquelyn Carpenter and the responses to the challenge to by Rifi Newaz and Mark Donnelly.

It took about one day to get the transcript, and it only cost about $25 for that particular portion. I guess that Lykos really has screwed her budget up pretty damn badly if she couldn't spend the $25 before she decided to try and ruin Mark and Rifi's careers.

So, here's a synopsis of the bench conference regarding the Batson challenge:

Ms. Carpenter objected to the striking of Juror Numbers 2, 3, 10, 13, 18, and 43 and properly made a Batson claim because those six venire members were African-American. As I've mentioned before (for the non-lawyers out there), that once the Batson claim has been made, it becomes the prosecutor's duty to explain their race-neutral reasons for striking the jurors.

Regarding Juror Number 2, Rifi Newaz cited the fact that this potential juror had a previously dismissed theft charge, and currently had charges pending on a Class C-Issuance of a Bad Check case. In addition, Rifi noted that when the entire panel had been asked their opinion of "what should the main purpose of the criminal justice system be - punishment or rehabilitation?", the juror had difficulty making a decision. Rifi made the argument to the court that the State didn't want an indecisive juror.

Regarding Juror Number 3, Rifi noted that the juror had successfully completed a deferred adjudication for the offense of theft in 2006, and that the juror's case seemed to be involving an employee theft.

Juror Number 10 was also struck for being indecisive on the issue of whether or not the focus of the criminal justice system should be punishment or rehabiliation, and again the cited race-neutral reason was based on wanting to avoid a juror that could not make a decision.

Juror Number 13 was struck for having seven Class C Issuance of a Bad Check cases, and also could not make a decision on punishment versus rehabilitation.

The prosecutors had tried to have Juror Number 18 struck for Cause regarding that juror's inability to follow the "One Witness Rule". This juror, however, did not make a firm enough stance on the issue for Judge Barr to have granted the challenge for cause, but it certainly gave prosecutors grounds to be concerned over her ability to follow it. They used a peremptory strike on her.

And finally, Juror Number 43 also stated that they could not follow the One Witness Rule. On this particular juror, the State had moved to have her struck for cause, but the request was denied. This left the prosecutors with only the option of striking her from the panel.

NOTE: If you are still reading this post at this point, congratulations. You are now officially more informed about this case than Lykos was when she called the Chronicle on her people.

Look, the bottom line is that when six out of ten peremptory challenges are used on African-American venire members, it absolutely looks bad. That is further compounded when it leaves absolutely no African-American jurors. It looks absolutely horrible, and I completely understand Judge Barr being very aware of that fact. I also sincerely doubt that Judge Barr had anticipated what Lykos would do in response to the Batson challenge.

Then again, most sane people do generally have trouble anticipating what Lykos will do next.

But the bottom line is that Rifi and Mark fulfilled their obligation and provided race-neutral reasons for every last African-American juror that they struck. Eric and Jacquelyn did their jobs by making the challenge, and I imagine that Judge Barr was being very well-intentioned by granting the challenge rather than risk that bad perception. I think she meant well.

But, what she didn't count on was Lykos and her speed-dial to the Chronicle.

I've said it before and I will say it again. When decisions start getting made based on perception rather than the actual facts, the Judicial System becomes no better than a lynch mob. Rifi and Mark felt this in full effect two weeks ago - first in the Batson ruling itself, but then more importantly, when Lykos offered up their heads to the Chronicle.

So, folks, how are we feeling about an elected-D.A. that still believes in Lynch Mob Justice?

Monday, April 6, 2009

A Letter to Pat Lykos

Former Bureau Chief of the Appellate Bureau under former-District Attorney Johnny Holmes, Calvin Hartmann, sent the following letter to Pat Lykos in response to the scandal she created regarding Mark Donnelly and Rifi Newaz and the Batson controversy. It is reprinted here with his permission.

March 30, 2009

Patricia Lykos
District Attorney, Harris County Texas
Harris County Criminal Justice Center
1201 Franklin, Suite 600
Houston, Texas 77002

District Attorney Lykos:

Approximately nine years ago at a campaign debate between Chuck Rosenthal and yourself for the office of the Harris County District Attorney, being vacated by the retirement of John B. Holmes, Jr., I stated to you that if you were elected that it would lead to numerous departures of the professional staff and that you ultimately would destroy the employee morale in the office. In three short months following your election in November 2008 that prediction unfortunately has come to fruition. The purpose of this letter is twofold: 1) to educate you on what I will call “lawyering” in light of the fact that to my recollection you have never litigated a criminal case except as a “cop-out” lawyer in the early 1970’s and 2) to educate you on what a respected administrator does and does not do. Hopefully, you will take these constructive comments in the vein in which they are offered, that is to insure that the office over which you administer is able to employ and retain the best legal talent for the taxpayers and voters of Harris County – that only will occur, however, when those employees respect you in the manner that they did John B. Holmes, Jr.

There is an old adage among lawyers that bad facts make bad law. Undoubtedly the Supreme Court decision in Batson made bad law – bad law not from a philosophical, theoretical or equitable perspective, but from one of practicality, patently because lawyers are not race or gender blind (for sake of brevity these terms hereinafter will be referred as “minorities”). Although none of us are born into this world with biases and prejudices, these attitudes are instilled in us as the result of personal experiences and societal and environmental factors. Setting aside all of the laudable goals and objectives mandated by Batson the rationale underlying the decision is predicated upon a logical fallacy, namely that the exclusion of minorities from a jury panel is prima facie evidence of blatant discrimination.

This rationale immediately has a chilling effect on the questioner, and is difficult to harmonize with the real world of advocacy, to which you were never seemingly exposed, since when all the high principles and accolades are given their due, the primary
objective of one in voir dire is to seat a jury that is biased and prejudiced in your client’s favor and adverse to that of your adversary. Unfortunately the victim or the complaining party (the State) in a criminal case is not entitled to Due Process, but the accused, in practice, can select a jury employing discriminatory calculus with little or no consequence. The Texas Legislature has provided the mechanics, that is essentially the three stage process for Batson scrutiny in TEX.CODE CRIM PROC., art. 35.261. Little would be gainsaid except to direct you to that provision for your further education.

At first blush the prosecutor is cast upon the horns of dilemma, since to strike minorities would automatically expose one to a claim of invidious discrimination, and a prima facie violation of Batson in every case. Moreover, it again ostensibly would lead to an assertion by you that the prosecutor was incompetent and negligent without a regard to the facts. It is suggested, however to the contrary, that a prosecutor would be incompetent and negligent to intentionally fail to strike minorities if their responses during voir dire in any wise suggested a potential juror displaying a bias and prejudice in your adversary’s favor, merely to preclude or survive a Batson challenge.

Contrary to myth popularized by members of the defense bar, during my fifteen plus year tenure as the training coordinator for the District Attorney’s Office prosecutors were not taught techniques as to how to successfully discriminate against minorities in voir dire selection. What prosecutors were taught was the manner in which to address unsubstantiated or unfounded claims of invidious discrimination in voir dire such that it was clear to the trial court and ultimately to an appellate court, if there was a conviction, that the State of Texas had accorded the accused Due Process. There is no reason for the undersigned to believe that this policy and aspirations somehow have changed.

Based upon the information available to me, and most particularly the trial judge’s comments in chambers to the effect that the defense had failed to demonstrate a violation of Batson, but it “did not look right” for the minorities to have been excluded from the jury panel, we have now reached the position where you have thrown two well respected prosecutors by their peers under the proverbial bus ostensibly based solely on an effort to please those disciples of “political correctness.” These two prosecutors were merely doing their job, apparently believing, based upon information and responses of these minorities that to seat any one or more of them would result in a hung jury, if not an out right not guilty in a case in which the prosecutors patently believed supported a guilty finding. They were “lawyering”, a concept apparently unknown to you.

The most troubling aspect of this whole unfortunate scenario, however, is your ready willingness to air this matter in the press, exposing these prosecutors to public ridicule and hatred in some quarters, clearly for your own self aggrandizement and without a wit of concern to their future legal careers, whether within or outside the office. As stated earlier you have “thrown them under the bus.” Regardless of the facts, good administrators do not conduct their assessment of employees in the press; good administrators conduct administrative matters in private. Quite candidly one would wonder whether even bad ones would do otherwise. Therefore, it is difficult to discern where that places you. It is clear that this exercise was undertaken solely for the media in order to again attempt to please those people at the Chronicle and their rapidly diminishing readership as to what a politically correct prosecutor that you are. It is suggested that it demonstrates something else, however, namely that the voters made a terribly wrong decision in November 2008.

During your brief tenure in office you have amazingly proven two things not subject to conjecture, that is you are not a leader and that you are a blatant narcissist I worked for John B. Holmes, Jr., for twenty-three (23) years. John B. Holmes, Jr., intimidated the members of his staff, but that intimidation was born of respect, respect that he was fair and that he would not ask you to do something that he would not do. You likewise have intimidated the members of your staff, but that intimidation is born of fear, fear of unabated arbitrariness, fear of an ever expanding “1984 Orwell” atmosphere within the office.

One can only hope that there will remain some semblance of this once proud and respected office when the 2012 elections roll around.

Sincerely,


CALVIN A. HARTMANN

cc: Honorable Mark Donnelly, Assistant District Attorney
Honorable Rifian Newaz, Assistant District Attorney
Brian Rogers, Houston Chronicle


Well said, Calvin. Much better than I could have!

Wednesday, April 1, 2009

Shameful

Well, one has to give credit to our gal, Patsy -- she is consistent.


When she doesn't like her prosecutors, she makes no bones about throwing them under the bus or distancing herself from them in both the good times and the bad. We all know what she did to Rifi Newaz and Mark Donnelly last week, and knowing the shameless politico like we do, it wasn't really all that surprising.

But today was a day that was actually a day that would shine a positive light on the Office, as Andrew R. Bland, Special Agent in Charge of the Federal Bureau of Investigation's Houston Office, came to the CJC to personally give awards to Assistant District Attorney's Lance Long and Stephen St. Martin on behalf of the FBI.

Lance and Stephen were both Chief Prosecutors in the Special Crimes' Major Offenders Unit for years until Lykos promptly kicked them out of the Division due to her political cronyism. These guys, along with others, worked day and night, drafting search warrants, arrest warrants, and providing advice to any law enforcement agency dealing with major cases. If you want an analogy, the Special Crimes' Major Offenders Unit is like the Navy Seals of the District Attorney's Office, and prior to their transfers, Lance and Stephen were two of the Division's All-Stars.

In recognition of their work, Special Agent Bland had organized a ceremony on the 6th Floor of the CJC in an effort to show the FBI's gratitude. Stephen was recognized for his work on his several cases, including the Randy Sylvester case (NOTE: Stephen was actually present at the crime scene when police recovered the bodies of Sylvester's children. That is dedication that will break your heart.). Lance was recognized for his work on the Roderick Fountain case, helping investigators trying to recover the body of 3-year-old Kendrick Jackson.

Apparently, getting the District Attorney's Office to participate in honoring two of it's own was a little more difficult than one would have thought, as Pat Lykos and Jim Leitner had little to no interest in actually participating in the plans. Ultimately, however, a ceremony was ultimately planned and it occurred today on the 6th Floor of the CJC at 1 p.m.

Special Agent Bland gave a speech, giving heartfelt thanks to Stephen and Lance, and at some point, Pat Lykos was called upon to say something kind about her prosecutors.

Now here is where I would have guessed wrong -- I would have assumed that Pat would have jumped to the front of the crowd and loudly proclaimed credit for all Stephen and Lance had done.

Instead, she refused to speak or acknowledge their accomplishments.

The situation went from bad to worse, as Lykos was then asked to stand up for pictures with her two prosecutors, which would be a no-brainer for any politico like Lykos.

She refused to have her picture taken with them.

It is worth pointing out that the way I learned of this latest shameful behavior by Pat Lykos was a phone call from a person who does not work for Pat Lykos, but was so horribly offended by her behavior that they felt compelled to call and let me know about it.

How much more is Harris County going to have to take from Pat and her Gang?

On a happier note, congratulations to Stephen and Lance! What an incredible award! Having worked with both of you guys on different occasions, I couldn't be happier for you both!