Right to Know vs. Right to a Fair Trial

By now, I'm sure that most of you are well aware of the video of Houston Police Officers hitting and kicking 15-year-old burglary suspect, Chad Holley.  I saw it the morning that Channel 13's Wayne Dolcefino aired it and was saddened and dismayed to see what happened.  As anyone who reads this blog with any regularity would know, I hold police officers in very high esteem.  They aren't flawless, and part of my job is to locate and bring to light flaws in procedures and investigations that relate to my clients.

It makes me sad for what a 15-year-old kid went through, and it makes me sad for the reputations of police in general that are tarnished by association with that video.

However, the release of the video leaves me with mixed emotions regarding the controversy of whether or not it should have been released pre-trial.  As you know, I'm completely against the idea of police officers and prosecutors and other public servants being crucified in the media when they are charged with a crime, simply because of who they are.

Yet, I find myself in favor of this particular video being released, for some reason.

First of all, I think that Quannell X showed cajones of steel by releasing it, knowing that the Federal Courts were attempting to block it.  Furthermore, I think that whatever officer was silly enough to file a libel suit against Quannell when truth is a defense to libel pretty much just waved a red flag in front of a charging bull.

But it is very clear that a release of video of police officers beating a surrendering juvenile is a double-edged sword.  The sanctity of a trial and the right of the Accused to have an unbiased jury is the absolute cornerstone of the jury system.

That being said, there is an even larger interest in the General Public being aware of the fact that there are some police officers who are victimizing citizens suspected of a crime -- either rightfully or wrongfully.

It is not an uncommon occurrence at all for a Defense Attorney to be told by his or her client that the police roughed them up when they were arrested.  Some of those claims are sometimes baseless and no more than an attempt to shift attention away from the crime they are charged with.  But others do have merit, and I think that we only have to look at the video of Chad Holley's arrest to realize that we, as both prosecutors and defense attorneys, cannot just ignore those claims every time they are made.


So, ultimately what we have here is a stalemate.  You have the competing interests of an accused's right to a fair trial versus the public's interest in keeping from being abused.  


What's the answer to resolving that stalemate?  I have no freaking idea.


But, what I do see, however, is yet another double standard coming out of Pat Lykos' District Attorney's Office -- you know, the one that campaigned on the issue of "Transparency".  While Lykos has yet to make a stand on other non-police officer involved crimes being detailed in the media (how many times has she tried to block the release of a surveillance video of a convenience store robbery?), we do see her and the upper Administration trying to block them when Public Servants are involved.


And it isn't just the Holley case where she does it.  If you look back to how Lykos handled the cases against Supreme Court Justice David Medina, Former-District Court Judge Woody Densen, and former County Court at Law Judge Don Jackson, you see that she has already developed a history of trying to protect those she so chooses.  I wrote about it here back in August of 2009.  The investigation into the Densen case seemed to have stalled out completely in the District Attorney's Office before the complainant on the case released the video to the media, as a matter of fact.


The release of the Holley video to the media seems to have once again caught the Lykos Administration with its pants down.

First Assistant Jim Leitner, as usual, wasn't helping matters for the D.A.'s Office with the remarks he made at the recent NAACP Meeting held at Good Hope Missionary Baptist Church.  Good Lord, Jim.  Really?  "You people?"  At this point you should have A-1 steak sauce on your loafers with as often as you put your foot in your mouth.

The charging decision of filing Official Oppression on those officers may have been inevitable.  While the Penal Code does provide that Aggravated Assault by a Public Servant is a First Degree Felony (just as Aggravated Assault on a Public Servant is), there is no corresponding statute for regular Assault by a Public Servant. (NOTE:  however, regular Assault on a Public Servant is a Third Degree Felony).  From what I have seen, it doesn't appear that Chad Holley was the victim of an Aggravated Assault.  No weapons were used and I don't believe he suffered from Serious Bodily Injury (the pre-requisites for an Aggravated Assault).


But there does seem to be a fundamental unfairness in the laws as written that there isn't a higher charge for a police officer, under the color of his authority, committing the offense of Assault.


That being said, the Lykos Administration may be justified in filing only the Misdemeanor charges against the officers, but damn, they could have done a better job of explaining that to the General Public. Instead, Lykos chose to hide the ball from the public, and now it has blown up in her face.  


And given the way she seems to handle cases against Public Officials, one has to wonder what other files are staying dormant in the Public Integrity and Civil Rights Divisions of the Harris County District Attorney's Office . . .

Worser than Worst

What's the only thing more fun than standing in a line wrapped around the building at the CJC?

Doing it in below freezing temperatures.

That just ain't right.

Safety Alert

There were some scary moments this morning for a female ADA when she pulled into the Harris County Parking Garage.

An African-American male, approximately 5' 10" - 6' approached her before she got out of her vehicle, and he was carrying a black pistol.  The unknown person was wearing a blue coat, scarf, and was wearing slacks.  Fortunately, another Assistant D.A. was pulling into a parking space nearby, which apparently scared off the male.  All of this happened on the 10th floor of the garage.

I know that the District Attorney's staff has been alerted to what happened and an office-wide e-mail has gone out warning folks to be careful about their surroundings.

Obviously, the same warnings apply to everyone who parks in that garage.  If you have any information that could be helpful, contact a District Attorney's investigator.

Trial as a Condition

I was having a drink discussing legal issues with my friend John Craig Still after work today, when he mentioned that a court he was working in this morning was in trial on a murder case with some fairly graphic crime scene photos.

It brought to mind different times in my career (both as a prosecutor and a defense attorney) where I was trying cases when a morning docket was still in progress, and the interesting phenomenon occurred where there would be defendants charged with completely unrelated offenses who found themselves very intrigued by the case on trial.  On some occasions, defendants would even approach me and the other lawyers involved in the case and either ask questions or offer words of encouragement as the trial progressed.

The point that Reverend Still mentioned to me was that the prosecutor on the case had cautioned the audience that graphic photos were about to be shown in the courtroom, and that actually made me think of an idea.  Ideas are sometimes few and far between for me, so I thought I would post on it.

With budget cuts rampant with the County, and programs like Boot Camp becoming long a thing of the past, why don't judges order that defendants (especially younger ones) watch the entirety of a trial as a condition of their probation (should they receive it)?

Especially a murder trial.  Especially especially a murder trial that has some gang ties to it.

So often (as a defense attorney), I find myself explaining to a defendant how a trial would proceed for them if they elected to take their case to trial, and I find them looking at me like my dog does when I try to teach her math.  Having to watch a trial would be a tremendous civics lesson to a person who has already found themselves entwined within the Criminal Justice System, and it would be something that they could do at no cost.

It would be a hell of a lot less strenuous than community service, if you think about it.

Let's look at just some of the upsides:

#1 -- if the probationer is watching the Judge of the court of which they are on probation out of, they get a feel for what the Judge would do to them if they were to violate the terms of their probation.

#2 -- they learn the procedure of what can and what can't be done for them when they are charged with a crime.

#3 -- if the case is a violent crime with victims, they get to see something from an outsider's perspective on the effect of violent crime.  This could potentially vastly differentiate from their view of crimes related to them, because they have no ties to the case they are watching.  They will see scene photographs, pathologist testimony, and victim impact.  They might actually identify with the complainant of a case rather than the accused.  At a bare minimum, they would get to witness the loss a family can feel.

#4 -- by attending (especially in the court that their probation originates out of), the Judge becomes familiar with them, and they no longer become just a case, but more of a person to that Judge.

I'm feeling a little overly-Pollyanna here with this post, but my experience with those who watch trials is that those same people become emotionally invested in those trials and the outcomes.  Those on probation who are involved in gang life can get a nice preview of what their lives would be like if they don't deviate from their current pattern of behavior.

Anyway, it was just a random thought I had, and maybe I'm rambling, but what would be the downside to making a trial a condition of probation for those probationers that we can still reach and make a difference in their lives?

NOTE:  For those who would say that it would make them take time out of their jobs or school, etc., I would say that jurors have to take time out of their jobs to serve every day of the week, and for those in school, the condition could be served during their Summer Vacations.

What do y'all think?

Great Article on Alicia O'Neill

For those of you who don't get the Houston Chronicle, there is a fantastic article this morning on Alicia O'Neill.  It talks about her childhood and being friends with Jessica Cain and the work she does now with the Harris County District Attorney's Office.

If you haven't read it yet, check it out.  As always, Alicia continues to make everybody proud of her.

Great job, Alicia!

Please Vote No on the Texas State Bar Referendum

EDITOR'S NOTE:  Unless you are a practicing attorney, this article is going to mean nothing to you.

Back when I was a prosecutor, I generally paid little to no attention to what the State Bar of Texas had going on within its ranks.  The Office made it easy to do that.  When it came time for Bar Dues, the Office paid them.  If there were elections, or Bar Poll rankings, there was usually an Office-wide e-mail letting us know that we needed to vote or otherwise participate.

Other than that, there was very little interaction.

That changes when an attorney goes into private practice.  You no longer have someone else to act as a liaison between you and the State Bar, and you have to keep a close eye on those votes and referendums that they propose.

I'm telling you this because first thing tomorrow (Tuesday) morning, voting begins on the State Bar's 2011 Referendum on the Texas Disciplinary Rules, and even if you are a prosecutor, I'm hoping you will take time out of your schedule to vote "No" on them.

CLICK HERE TO GO TO VOTING.

If you are anything like I was when I was a prosecutor, you are more than likely asking yourself "why the hell would I care about a bunch of rules that only pertain to lawyers in private practice"?

The simple answer is because sometimes you might end up in private practice.  Even if right now you are pretty sure you are going to be a Prosecutor for Life.

Now, the rules that concern me aren't the ones prohibiting sexual contact with clients.  If a lawyer is stupid enough to enter into a romantic relationship with a client or (God forbid) take sex as a payment for services, then that lawyer has got more freaking problems than the State Bar can regulate.

The ones that concern me are the others, which, if implemented would basically collapse private practice as we know it.  If you are hoping to someday come into private practice, the Regulations that the State Bar's referendum is currently trying to pass will make it more complicated and more restrictive.

And trust me, starting a new law practice is already complicated as it is.

Mark Bennett has been doing an excellent job of covering and analyzing why the proposed new rules are so bad.  Starting with the first proposition that would essentially ban the taking of flat fees from clients an attorney represents.  As Mark put it, the effect of this would ensure that "only the wealthy will be able to afford competent counsel in criminal cases."  Paul Kennedy also does a good job of illustrating what the problem is with this post.

The new rules would, in essence, prohibit a criminal defense attorney for quoting a fee for representation and replace it with hourly billing that (in most cases) is going to cause costs to go up for a person charged.  

For example, let's say I typically quote a client a flat fee of X amount of dollars to represent them for a Possession case.  I think it is the fair amount.  If I resolve the case quickly -- great for me (in a business capacity).  But if I get into a quagmire and I spend a lot more time than I had anticipated (and quoted my fee based on), then the client isn't going to get screwed by me going over (a time) budget.  He has a pre-arranged fee and he isn't obligated to pay me any more money.

The new rules would prohibit that and require hourly billing.  The downfalls of that are numerous.  I'm not going to re-invent the wheel by regurgitating what Mark and Paul (and a host of other attorneys across the State) have written, but I strongly encourage you to educate yourself to the Referendum.

Once you do, I'm pretty sure that you'll see that a vote of "No" is the only appropriate vote if you think there is even the slightest chance that you will ever end up in private practice.

Walter Waldhauser & The Cop Who Wouldn't Quit

One of the many reasons that I was excited about getting to work for the Harris County District Attorney's Office back in 1999 was that I would finally get to meet some of the heroes that I had read about in True Crime books as I was growing up.  As I've mentioned before, there are many books about famous and notorious crimes that happened in Harris County.

Out of all the books that I read, my hands-down favorite was The Cop Who Wouldn't Quit by Rick Nelson which was written about then-HPD Homicide Detective Johnny Bonds.  The book outlines how Johnny investigated the murders of John, Diana and Kevin Wanstrath, a husband and wife and their 14-month old son.  I highly recommend reading the book, if you can find it in print.

Johnny became one of my biggest heroes after reading it. The case had originally been ruled a double-murder/suicide until Johnny spent two years proving it was a murder for hire.  Along the way, he also proved that the killers involved in the case had also murdered Diana Wanstrath's mother.

The crimes were horrific and they were all for money.

Ultimately, two men would receive the death penalty on the case -- one was the shooter and the other was the person who hired him.  A third person, however, received 30 years in prison.

Which is why I'm writing this post today, on Johnny's behalf.

That third person's name was Walt Waldhauser, who after paroling out for the four murders he was responsible for, changed his name to Michael Lee Davis and began operating financial scams out of Dallas.  If I recall correctly, those scams involved him bilking terminally ill AIDS patients out of their insurance money.  Those actions landed him back in prison for 60 years, but he's already up for parole again.

Johnny and I (and pretty much anybody who is opposed to quadruple murders for money that also involve the deaths of small children) are hoping that YOU will help keep Waldhauser in prison by contacting the parole board and letting them know that you, John Q. Citizen, oppose his release.

Brian Rogers did a great article on the Waldhauser situation with this article yesterday, and KHOU also did this piece on the story.  (NOTE:  Watch the video on the KHOU story.  You'll see some familiar faces involved in the case.)

Both pieces are great, and I hope you will want to contact the Parole Board to let them know that anyone who would show no remorse over the murder of four people (including a 14-month old child) doesn't deserve to be paroled.

If you have time, please let the representatives of the Parole Board know how you feel.  You can contact them by e-mail victim.svc@tdcj.state.tx.us with a reference line of "RE: DAVIS, MICHAEL LEE TDCJ ID: 00933173".

Alternate means of contacting them are calling 1-800-848-4284 or 512-406-5900.

You can also write a letter to:

Angela McCown, Director
Victim Services Division
8712 Shoal Creek Blvd., Suite 265
Austin, TX 78757-6899

Guys, Johnny has battled cancer and is fighting it off a second time.  If he's got the energy to mobilize and try to keep this guy in prison, writing a quick e-mail doesn't seem so much to ask.

Luci Davidson's Birthday

Happy 50th Birthday to my former-Division Chief, current Officemate, and friend, Luci Davidson.

I told her that to make her feel better after turning a half-Century old that I would try to come up with some things older than she was, but so far, all I've come up with are:

1.  Dirt
2.  Sin
and
3.  Pat Lykos

Feel free to add to this list, and if you see Luci, wish her a happy birthday.  Just don't startle her.  You know, at her age .  . .

Felonious Phraseology

Heard a new one today when an offer was made to a client who had never been convicted of a felony. The offer was the ever-elusive 12.44(a) time (which is a felony conviction where the client serves misdemeanor time):

"You know, it would be one thing if I had already gotten an 'F' on my report card before, you know what I mean?"

No Rest for the Weary

Just when it seems like we finally got the 2010 elections out of the way, and our newest members of the Judiciary sworn in, we are already hearing talk about the 2012 election.

As you all know, the 2008 Election swept out all but one of the Republican Incumbent Judges and replaced them with their Democratic challengers.

And, of course, 2008 also gave us Pat Lykos -- the gift that keeps on giving.

Even though we are just in 2011, and the election of 2012 is, uh, about 23 months away, speculation and announcements have already begun.  Clearly, the Republicans will be seeking to regain the benches lost, and there are rumors and innuendos flying all over the place about who is going to run for what bench.

Thus far, the only person I know who is "officially" running is Felony Chief Prosecutor Brad Hart, who has announced he will be running as a Republican for the 339th District Court.  There are very strong indications of others running as well.  You need only to look at the comments section of my previous post for that.

I have to say that I was amused that somebody posted there were only "certain courts" that the Republicans were "targeting".  Give me a break, man.  The Republicans will be targeting all of them!  That's just politics.


I imagine that whatever happens in Harris County will depend much more on what is going on in Washington than what is happening here locally -- no matter how many ads Gary Polland runs of Judge Kevin Fine's tattoos.  I have spoken to several people whom I consider to be much more knowledgeable about the Harris County political climate than I am, and I have heard them all speak with absolute certainty that their party was going to win.

In my opinion, guessing what the November 2012 election is going to turn out like has about as much chance of being accurate as predicting the 2013 Super Bowl, at this point.

Of course, the biggest question on everybody's mind (at least those who read this blog) is going to be the race for the District Attorney.  With all of the butt-kissing that Pat Lykos has gotten from the Houston Chronicle and her die-hard Blue-Haired supporters within the Republican Party, she is is probably feeling pretty invincible.

The big question on that is, will Kelly Siegler run again?

I don't know if she will or not, but I certainly hope so.   If you add up all the votes that Kelly got in the general primary and the run-off against Lykos, she crushed Lykos by thousands of votes.  My friend Black Ink seems to be pretty optimistic about the idea with this post.

If Kelly doesn't run, I'll be praying for a Mike (Anderson) Christmas (Announcement).

The bottom line is this, however -- focusing on who is going to run for what office can drive us all crazy all year.  There are so many different factors that can change between now and the filing deadline at the first of 2012.  People can announce.  More people can announce.  People can drop out.  People can change races.

It is all very entertaining to watch and learn, but absolutely impossible to predict the outcome.

My advice to you (as always) is get involved.  There will be some great candidates that deserve your support.  Don't take for granted that the rest of the public will know what you know about them.  Get politically active and let your friends and family know that you'll have recommendations and thoughts for them when it comes to voting.  Start an e-mail chain.

If you've got good candidates you support, help them campaign and raise money.

More importantly, if you know of bad candidates, run against them.  Or find somebody who will.

The election of 2008 showed us all what happens when apathy infiltrates the System.  The election of 2010 showed us what we can do when we get off our butts and work for good candidates.

My hope is that 2012 will look a lot more like 2010 than 2008 and that good candidates on both the Republican and Democratic sides of the ballot get into office.

Now, let the gossiping about who is running for what office continue . . .