Sunday, August 11, 2019

Temple Trial Takeaways

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And then came the Reign of Ogg.

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

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

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

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

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

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

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

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

Justice prevailed last week.  

Monday, July 22, 2019

Tales from the Old Days

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

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

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

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

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

BARBARA:  District Attorney's Office.

JIM:  May I speak to Murray Newman?

BARBARA:  No, he's gone for the day.

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

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

She then hung up the phone.

Thursday, July 18, 2019

Conversations at the Elevator Bank

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




ME:  Do you mean Judge Kelley Andrews?

LADY (calming down some):  Yeah!  Her!

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


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

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

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



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

Thursday, July 11, 2019

Discretion and the MAC System

Like many criminal defense attorneys who work in Harris County, my law practice is a division of both retained and appointed cases.  In the ten and a half years that I've been on the defense side of things, my retained cases have increased, but I still take appointments on cases when my caseload can manage some new material.

For those of you unfamiliar with how the appointment system works in Harris County, an attorney who is approved to take appointments has the ability to go on the Harris County website and list himself or herself as available for either an individual appointment and/or a "term" appointment for a day or a block of days on the calendar.  If a court needs an "Attorney of the Day" (a lawyer who will work in the court and represent up to five defendants needing lawyers on any given day) and the attorney has checked the "term" appointment box, that attorney will be eligible to be called up.  If a court needs an attorney for just a case or two, the attorney who put in for an individual appointment would be eligible.

When the coordinator of the court needs an attorney for either "term" or individual appointment, the computer will generate the names of ten different attorneys who have listed themselves as being available.  The coordinator or the judge will then select someone from that ten-person field.  Additionally, the Harris County Public Defender's Office could also pop up as one of the ten options.

It should come as no surprise that the amount an attorney is paid on an appointed case is generally significantly less than what we routinely charge for retained cases.  That's not a complaint -- Harris County pays better than most other counties that I'm familiar with and there was a noticeable increase in the pay scale that went into effect in March.  But the bottom line is that indigent defendants in Harris County get some pretty damn good legal representation for a significant bargain to the County on a daily basis.

Attorneys who take appointments in Harris County find themselves in trial quite often and the more an attorney goes to trial, the better he or she becomes as a litigator.  Some of the very best lawyers that I tried cases against during my time at the D.A.'s Office were appointed and I think that if you ask any prosecutor or judge, they would express the same sentiment today.

Judges and coordinators know what defense attorneys do a good job, and more importantly, they know which ones don't.  Although the Court must select a name from one of the ten names that are provided to them from the electronic "Wheel," the Judges still have the discretion to avoid an attorney that isn't up for the case they are being considered for.  In that regard, discretion is definitely a good thing.

Critics of the current appointment system, however, point out that this discretion is also something that can lead to cronyism and potential abuse, and that is certainly a valid point.  In my earlier days at the D.A.'s Office, there were some judges that I saw appointing mind-numbingly bad attorneys on a routine basis.  I also saw attorneys who were powerful in the Republican Party or big donors that got a lot of mind-boggling appointments.  That being said, I saw that taper off significantly as new judges were elected to the Bench over the past fifteen years or so.

The critics of Harris County's current appointment system, led by County Commissioner and former-State Senator Rodney Ellis, are pushing hard to replace it with a new program known as the Managed Assigned Counsel (MAC) Program. This program would take the power of appointment away from the Judges and Coordinators and give it to a newly created entity that made the appointments in a rotation.   The County Court judges have largely agreed to it, but there is some debate amongst the District Court judges.  The District Court judges have been regularly meeting with each other and members of the Defense Bar to iron out potential details.

The MAC is something that would require a grant from the Texas Indigent Defense Commission (TIDC) and the TIDC is an organization near dear to Rodney Ellis' heart.  His former policy advisor, Scott Ehlers, is Special Counsel to TIDC and would doubtlessly play a large role in bringing the MAC to Harris County.  It is my understanding that the District Court Judges have requested more time from TIDC to research the project, but apparently, Ellis was not on board with this delay.

Today, I was provided with a copy of TIDC's Recommendations for a Unified Harris County Managed Assigned Counsel Program, a 22 page write up of TIDC's ideas of how the new MAC should be implemented and run.  Although it is doubtlessly well-intentioned, I have numerous concerns about how it would work in Harris County.   In no particular order, here are some of the biggest ones.

1.  The MAC should oversee the appointment and payment of counsel in all misdemeanors and non-capital felonies, as well as appeals and post-conviction matters.  A MAC can also oversee appointments in specialty courts.

So, two big things jump out in this particular recommendation.  The first being that the MAC system will oversee not just the appointment of counsel, but also the payment of counsel.  As it currently stands, when an attorney submits a voucher for the work done on an appointed case, the Judge of the court must approve it, edit it, or reject it.  Generally, that's a pretty good system because, you know, the judge actually observed the attorney handling the case in his or her court.  The MAC system is going to turn over what payments are made to an entity that isn't in court handling the case.  In essence, this is pretty much the same premise as a person's insurance company deciding what medical procedures a person needs, rather than the doctor.

The second issue is that TIDC also wants the MAC to decide who can do specialty courts (i.e., Mental Health Court, Veteran's Court, Responsive Interventions for Change Court, etc.)  These particular courts rely on a stable of attorneys who practice solely in those courts on a daily basis.  These are courts that can be complicated as they are designed to rehabilitate rather than incarcerate defendants.  In these courts, it is absolutely critical that there are long term attorneys who are handling the caseloads and are familiar with how the courts work.  A MAC System that assigns a revolving door of appointments to random defense attorneys would be extremely counterproductive.

2.  Attorneys will generally be assigned to cases on a rotational basis, taking into consideration attorney experiences and expertise.  Investigators will be assigned to cases when requested by attorneys.  Experts will be approved by the MAC when requested by attorneys.

Attorneys being assigned on a rotational basis ensures that every attorney on the appointment list actually gets an appointment every now and again.   The rationale for this being that some attorneys get appointed on more than their "fair share" of cases, while some are never getting called.  This rule is designed to be fair to all of the attorneys.

Here's a spoiler alert:  the Indigent Defense System is not designed to make sure that attorneys are treated fairly; it's there to make sure that the CLIENTS are treated fairly.  Attorneys who get more appointments just might be getting more appointments because more judges have confidence in those attorneys' abilities.  If an attorney is on the list and never getting an appointment, one might want to know if the reason is that judges don't have faith in the attorney to do a good job.  Appointed attorneys are taking a client's life into their hands -- it isn't time to make sure that everyone gets a participation trophy.  Would you be comfortable going into heart surgery and being told "Well, Dr. Smith is the best heart surgeon in Houston, but we're giving you Dr. Jones because he hasn't gotten to do heart surgery lately."

As it currently stands, when a defense attorney wants an investigator or an expert on his or her case, he files a motion with the court for approval of funds to hire an expert.  Those are routinely granted and the defense attorney may then pick the investigator or expert of the attorney's choice.   I've been a lawyer now for 20 years and 11 of those have been as a defense attorney.  I tried a lot of investigators over several years before settling on the one I now use on ALL of my cases.  I've also identified and continue to use DNA experts, psychological experts, mitigation experts, and other experts that I know do a good job and I can trust.

Under this proposal, the MAC would have the power to deem whether or not I was worthy of an investigator or an expert.  If I was to be so blessed by this government entity to receive approval to have an investigator or expert, the MAC would then assign me one of their choosing.

This falls under the category of "are you f'ing kidding me?"  As a lawyer, my duty is to the client and to provide the best defense possible.  This includes me using my knowledge and discretion to choose the personnel needed for the case.  What if I have a personal conflict with the investigator?  Or I just know that investigator doesn't do a very good job?  Tough luck.  The relationship between an investigator and an attorney is absolutely critical.  My investigator (although obnoxious) does an amazing job for me on all of my cases and he's self-directed.  I couldn't get by without him and I don't want to work with anyone else.  That's not a slight to other investigators that I've worked for.  We just work well together.  (Don't get a big head, Roy.)

The idea of the MAC being the decider of "if" and "who" on investigators and experts is obscene.  Period.

3.  [The MAC will employ] Supervising attorney [to] assist assigned attorneys and ensure assigned attorneys are providing high-quality defense services.  Supervising attorneys should do such things as:  observe attorneys in court and trial and provide feedback on their performance; assist attorneys in preparing for trial, strategizing elements of cases and answering legal questions; serve as second-chair; respond to an investigate complaints about attorneys from judges, clients, and client family members; ensure attorneys are visiting clients at the jail; and conduct annual attorney performance reviews.  Supervising attorneys should also document attorney performance deficiencies, complaints, and disciplinary matters in the attorney's file, as well as begin any necessary proceedings to move an attorney to a lower level appointment list or remove an attorney from the appointments list due to not meeting the MAC's standards of attorney performance.

I don't even know where to begin with this part. So, the MAC will be staffed with "supervising attorneys" who will, in essence, serve as employers for all of the attorneys who take appointments.  They will give performance evals and keep a disciplinary file on us.  Um, a  disciplinary file?  Isn't that what the State Bar is for?

And the Supervising Attorney is going to investigate complaint's from the "client family members?"  Here's a newsflash, TIDC.  Lawyers don't owe a duty to a client's family members -- many of whom are verbally abusive, unreasonable, and not entitled to know a damn thing about a client's case without the client's permission.

More troubling is that the MAC's Supervising Attorney will be an appointed attorney's de facto second chair.  So, not only does an appointed attorney get a random investigator and expert shoved down his or her throat, he or she also gets a mandatory second chair that he or she may or may not even know.  Sounds great!  I look forward to seeing what supervisor I'm going to get.  I wonder who will be supervising Skip Cornelius or Tyrone Moncriffe or Danny Easterling.

I find this portion to be so amusing because the whole idea of the MAC is to make sure every lawyer on the appointment list gets an appointment, but the ones who will be appointed on every case will be the MAC lawyers.  Nice.

At the risk of sounding like the kid who is threatening to take his ball and go home, I've got no interest in continuing to do appointments under the MAC System.  I can't imagine any attorney with a significant amount of experience agreeing to work under those circumstances, either.  If the System runs off the experienced attorneys, guess who that leaves?

If the MAC System is implemented in a manner that even vaguely resembles these suggestions, the quality of Indigent Representation will fall and fall dramatically.

Tuesday, June 18, 2019

Joe Gamaldi's Press Release

The Houston Police Department held a press conference today announcing that they had re-arrested Andre Timothy Jackson for the 2016 murder of 11-year-old Josue Flores.  As noted in the Houston Chronicle:
The indictment comes three years after police first arrested Jackson and charged him with murder — charges that prosecutors later dismissed over concerns they would not win at trial.
Apparently, evidence which had been collected during the initial investigation three years earlier just now provided a DNA link between Jackson and Flores.  It is not clear what piece of evidence that DNA was collected from or who that DNA belonged to, but my educated guess is that a piece of evidence belonging to Jackson may have been found to have Flores' DNA on it. 

Enter Houston Police Officer's Union President Joe Gamaldi. 

Gamaldi has been relatively quiet since his infamous "dirtbags on notice" press conference in the wake of the now-infamous HPD raid that left two citizens dead.  He's been around, continuing his on-going battle with Harris County District Attorney Kim Ogg, but there hasn't really been anything noteworthy to report. 

Today's press conference over the arrest of Andre Timothy Jackson, however, provided Gamaldi the opportunity to do two of his favorite things: 1) tout the awesomeness of the Houston Police Department; and 2) bash District Attorney Kim Ogg.  Gamaldi released the following press release:

There's nothing wrong with Gamaldi giving HPD Homicide a shout out for their hard work and dedication to this emotionally grueling case.  However, Gamaldi wasn't content with just giving his officers an attaboy and going about his business.  He decided that he needed to fire a couple of shots at Kim Ogg in the middle of this otherwise feel-good arrest story.
However, what has not been reported today is the defense attorney for Andre Jackson filed a motion several months ago to have all of his property/evidence returned to Mr. Jackson.  This included the key piece of evidence that the DNA would later be extracted from and would be material to any future trial.  In an act of what can only be described as gross incompetence, the Harris County District Attorney's Office inexplicably did not oppose this motion.
In this, Gamaldi is correct.  If the District Attorney's Office dismissed the case against Jackson in 2016 but hoped that further investigation would allow prosecution at a later date, then they absolutely should have fought tooth and nail against any motion to restore property to Jackson.  Their failure to do so is, as Gamaldi put it, gross incompetence.

But Gamaldi didn't stop there.
. . . Andre Jackson would be free to pick up his property and all the evidence belonging to him, that the Houston Police Department had in its custody.  Which Mr. Jackson actually attempted to do.
Please pay close attention to wording such as "his property" and "all the evidence belonging to him."
If not for the Houston Police Department Homicide Division and Chief Acevedo, who stated that "the items would only be returned over our dead bodies" opposing the motion from the judge, key pieces of evidence would have been turned over to Andre Jackson and lost forever.
So, here is a quick law tutorial for Mr. Gamaldi:  Judges don't issue "motions,"  they issue Orders.  As in, legal orders to do things, like say, return someone's property to him because the case against him got dismissed.

Failure to follow a Court's order is breaking the law. 

A very strong argument can be made that any evidence obtained from Mr. Jackson's property, which was being held by HPD in violation of a judge's order, was illegally obtained.  If a judge were to find that the evidence was illegally obtained, then a judge might find himself or herself well within his or her rights to suppress that evidence.  That same judge would also then suppress the results of any testing done on those items.

Gamaldi's press release indicates that key evidence belonging to Jackson was at the center of today's arrest.  Reading between the lines, that seems to spell out to me that a piece of property belonging to Jackson had DNA belonging to Josue Flores on it. 

So, let's throw out a hypothetical scenario.

Jackson gets arrested in 2016 and the police take clothing belonging to him during the arrest.  The case gets dismissed and Jackson files a motion to get his clothing back.  The District Attorney's Office says; "Sure, have your clothing back.  We don't care!" and a Judge signs an order that says, "HPD, give Mr. Jackson his clothing back."   Mr. Jackson goes to get his clothing and HPD basically says, "We don't care what the Judge's order says, you aren't getting your clothes back."  HPD then sends those clothes to a lab, and finds Josue Flores' DNA on Jackson's clothes.

If I was Jackson's defense attorney, I'd be arguing that all of those DNA results should be suppressed at trial because they were illegally obtained from property that HPD had been lawfully ordered to surrender to Jackson.

Gamaldi's press release is so mind-numbingly stupid, because (in his attempt to slam the D.A.'s Office) he basically acknowledges that HPD was breaking the law.  In fact, he seems downright giddy about it.

This would be akin to Tom Brady giving a press conference after the 2015 AFC Championship game and saying, "The Patriots did a great job today thanks to me ordering our equipment guy to deflate the game balls."

Let me be clear here.  I agree completely with Gamaldi's assessment that it was absolutely gross negligence that the D.A.'s Office didn't oppose the return of Jackson's property.  They should have fought with all of the Office's might to prevent that from happening.  But they didn't.

As wrong as that was, it doesn't give HPD the license to ignore a Judicial Order, however.

Personally, I think the remedy would be to exclude the evidence.  I may end up being proven wrong on that.  Several of my former prosecutor/current defense attorney colleagues think that the remedy would be to simply hold HPD in contempt for failing to return the evidence.  They may be correct but isn't holding them in contempt an acknowledgment by the Court that the law was violated?

How it ultimately plays out in court will be interesting to observe.

What isn't in dispute is that Joe Gamaldi didn't do the Houston Police Department any favors with his press release today.