Thursday, April 28, 2011

Buck Files for State Bar President

Normally, criminal law attorneys (whether prosecutors or defense attorneys) don't get all that wrapped up in State Bar elections.  Usually the candidates that are running are civil lawyers that we criminal law folks have never encountered in a professional setting.

This year, however, that has changed with Tyler-based Criminal Defense Attorney, Buck Files, running for president of the State Bar.

I don't know Mr. Files, personally, but I have gotten numerous endorsements of him from both defense attorneys and prosecutors.  My understanding is that, if elected, Mr. Files would become the first Bar President to serve who worked in primarily in the criminal law arena.

So, if you haven't voted in the Bar Election, please hurry up and do so.  It is a rare opportunity for those of us who practice in the CJC to have our interests represented by one of our own.

You can vote by going to this website:

The deadline is May 2nd.

Tonight's Reasonable Doubt (4/28/11)

Todd Dupont and I will be back on the air tonight with Reasonable Doubt at 8 p.m..  Our guest will be the Reverend John Craig Still.  As always, you can watch it online by clicking here.

Wednesday, April 27, 2011

New Chronicle Blog Post

This is probably the most untechnological way of "linking a blog", but there is a new post on my Chronicle website about Charles Sebesta and the Anthony Graves case.  You can get there by clicking here.

Monday, April 25, 2011

Todd Dupont's Eulogy for Tody Dupont

For those of you unable to attend Tody Dupont's Memorial Service last week, you missed a very heartfelt and heartwarming eulogy given to him by his son, Todd.  Todd did an amazing job of saying goodbye to his father, law partner and friend.  I don't believe I could have done the same thing in his shoes, and I greatly admire him for his delivery of this eulogy:

Thank you all for coming.  And “thank you” First Baptist Church, for allowing us the privilege and honor of being able to formally remember Tody in a place he called home.  I am speaking on behalf of all of our family today. I have written many summations in my legal career.  But, having to prepare a eulogy, a summation, for our father’s–my law partner’s–incredible life has truly been daunting.

The truth of the matter is I have always, secretly, hoped to be able to have a lifetime to draft these words. Yet, God had something else in mind. As one can understand, either through imagination or, worse, experience, the loss of one’s father is traumatic–especially when the death is untimely. As I stand before you, please know that my family and I, like the rest of you here, are stunned by his early departure for Heaven.  We are deeply saddened. Most of all, we are profoundly heartbroken. If I could have but one wish, right now, my wish would be to have him back.

I would hastily arm-wrestle God for him.

Aeschylus wrote: “In our sleep pain which cannot forget, falls drop by drop upon the heart until, in our own despair, against our will, comes wisdom through the awful grace of God.” I sure wish I could rush that process.

My father was born on March 4, 1945, in a small Louisiana town, named Plaquemine.  When he was born, Roosevelt was President, Finland had just declared war on Nazi-Germany, and Bing Crosby played on the radio. Bread was 9¢ a loaf, milk 62¢ a gallon, and a gallon of gas cost 21¢–for those that had cars. Money was non-existent, Jim Crow laws were the norm in the deep South, and inequality was the standard operating procedure. There were little chances of success for most people, including my father.
As it was in my father’s case, if you were going to make it, you had to do it on your own.  With your own two hands.  In those times, in that setting, no one gave you anything, unless you earned it.

What the world didn’t really understand at that time, was that this is all the opportunity that a man named Thomas Barker Dupont would ever need. 

The rest is history.

Before I begin, I suspect many of you, like me, might be interested in understanding exactly WHY he was nicknamed Tody?  It’s such an unique, almost obscure, name.  I’ve never met another person named Tody.  Have you?  Many people, who first met him, would need for him to repeat himself, because it such an uncommon name. The true answer is, the jury is still out. Some of his siblings say it was because he was to be nicknamed “Tommy”, but they could only pronounce “Tody.”  Others say it was because, as a child, he had no aversion to picking up toad frogs, and carrying them around.  I’ve always heard he liked to bounce around a lot as a child.   Nevertheless, the name stuck; and as a human, Tody would prove to be as unique as this unusual nickname.

As a child, young adult, and even as a man, I have always remained curious and fascinated by my father.  As a child, I would sneak in to watch him shave.  As I grew older, in the places that I went in life, if someone knew Tody, I would stop what I was doing, and talk to them as long as I could, to fill in the blanks. I would venture to speculate that this phenomenon has happened to all of us here.  Tody had an aura that beamed from him, and that attracted you to him.  No matter your age.  Or gender.  Very few human beings have been blessed with this quality..but Tody was.

Now, don’t get me wrong.  Tody had more than his fair share of quirks: he loved burnt bread (because that’s how his mama made it).  He loved to float in water, swim, and scuba dive.  Dad knew where every Ace was in a deck of cards. He was an voracious reader, and loved to go to the movies.  He was easy to buy a gift for because all he ever asked for was movie gift cards.  In fact, he loved to talk on his cell phone in the movie theater, while the movie was playing.  I would call, and he would answer while the movie was playing,  I would immediately hang up, being embarrassed for him! 
 But he didn’t care.  Blissful oblivion, I suppose.    

Tody loved to play Santa Claus, and bring joy to children.  He loved to make children happy.  This tickled his heart, in a way that only matter to him.  Tody loved to dress to the occasion.  You should have seen his closet.  Interestingly, he is largely responsible for my clothing habits–especially in the courtroom–though we do have different taste in shoes and ties.  Tody loved to eat good food, but he literally didn’t know how to boil water.  He never really needed to.  My dad personalized everything.  I have never encountered another man, like my father, who loved to personalize his personal effects.  This might help you understand where this “D” ring came from. 

Regardless, I am sure that my sisters would agree with me when I say that we have always been compelled to please our father.  We wanted his approval.  We wanted his acceptance.  We wanted his smile and nod when we did something that pleased him.
We went out of our way to please him. Yet, Tody also taught us many more important things about life.  Tody’s word, truly, was his bond, and he preferred, if at all possible, to operate on a handshake–even in the age of one-inch thick, small-typed contracts. Tody could be trusted. If he told you he was going to do something, he did it.  Conversely, If he told you he wouldn’t, he didn’t.  It was really that simple for him.  And that was both refreshing and reassuring for the rest of us.  Tody believed in the ballot box.  He fundamentally believed in the democratic process.  In his core.  I suspect he early-voted in every election he has voted in since he was able to vote. Tody was concerned about racism.  Prejudice.  Inequality.  Injustice.
Deep down, Tody was hardwired to fight for the disadvantaged and the weak.  The outnumbered.  This is where he found strength.  Resolve. This is what got him out of bed each morning.

Simply put, Tody loved being a lawyer.  To him, the words “Tody” and “lawyer” are synonymous.  Tody was his profession.  He worked 7 days and week.  He worked in his sleep.   Tody was 100% committed to profession of being a lawyer.  Serving his clients needs.  He was 100% committed to ethics.  Standards.  Professionalism.  In an age where competition in the law is fierce, Tody was old school, by even old school standards.  Dad didn’t know how to use a computer, nor did he really want to.  He hand wrote everything.  If he had it his way, we would all still be using IBM typewriters, white out, and legal-sized carbon paper.  And I still don’t know what this means to this day, and I have worked for the man since I was 15, but every motion or document that he has worked on, he had saved on “tape.”  Tody had a method.  HIS method.  A method that only HE understood, and the rest of us would bang our heads trying to decipher.
God forbid you moved anything in his office.

His office, literally, had stacks and stacks of paperwork...all over the place.  And he, and he alone, knew where it all went.  Tody did not believe in winning at all costs.  Tody believed in winning by outworking his adversary.  Believe me when I tell you, he has won his fair share of cases; and, he also lost many a case–and when he did, he would lose with dignity.  But if you did get lucky to beat dad, I would guarantee that he made you work for it.  Tody wanted to change people’s lives through the law.  He could read a newspaper, and find five different lawsuits waiting to happen, before most people have had their morning coffee.

He saw the world differently than most people.  He saw the world through the lens of a lawyer.  He dreamed bigger than the rest of us.  He thought longer than the rest of us. He fought harder than the rest of us. 

Tody taught me to fundamentally care about being a lawyer, and to pay close attention to the details.  Look for and see the things that are before you, but also look for and find the things that aren’t.  Those are the things that would make the difference. 

I am also proud to say that no matter where I went in life, if I met someone who knew my dad, they always had something nice to say about him.  I can’t count the number of times, after these encounters, that I would swell with pride, knowing I was this man’s son.  I am confident my sisters feel the same way. Even his adversaries liked him.  And he like them–especially if he respected them.

The only way I can attempt to describe what my father was like to us is by comparing him to a safety net.  There was simply no question that if we needed something, or even if we didn’t, he was there.  He was a constant in our lives.  Much like the sun.  Being faced with the fact that the sun will no longer be coming up in our sky is a concept that we can’t comprehend yet.

Even though we are all just at the beginning of the grieving process, my overriding fear is that this will be the one thing that we are all going to miss the most. The world is a better place for Tody Dupont having lived.  Tody Dupont was unique.  One-of-a-kind.  There will never be another like him...not in my life time, and probably not in yours.

Chris Sorenson wrote:  “No one ever really dies as long as they took the time to leave us with fond memories.” Some of you knew Tody personally.  Some in passing.  Other’s may have only heard folklore. Regardless, I think we could all agree that there will never be a human being who knew Tody who will be able to accuse him of failing to do this.
Whether intentional or otherwise, Dad, you planted those seeds in the depths of our subconsciousness when we weren’t even looking.

From this day, this hour, this minute forward, remember Tody the way HE would want you to remember him.
Remember the cases that he won or the cases that he lost, and his vigor to litigate his cases to juries in the courtroom.
Remember his love of politics, civil liberties, and community service.
Remember his compassion for justice, and his remarkable and unselfish generosity towards his fellow man.
Remember his zest for life.
When you leave here, and head back on the road of your own journey through life, and find yourself with a spare minute to think about Tody, pause to think about HIM thinking about his next big lawsuit...his disarrayed files, scribbled notes, newspaper clippings, and yellow legal pads scattered about.
 Think about his disarming charisma, and deceptive charm.
 Think about his affable Cajun accent, peppered throughout his lengthy legal narratives or majestic storytelling.
 Think about him blushing when you complimented him.
 Think about and his infectious laugh.
 Think about his smile.
 This is what he would want you to do for him. At the cost of all that you leave behind, dad, you have achieved immortality. We love you dearly; we will miss you sorely; and, thanks to you, we will never forget you.

Rest in eternal peace, dad.

Sunday, April 24, 2011

Mr. Casey Goes to Jury Duty

Rick Casey has a column in today's Chronicle about his recent experience of serving on a jury panel in the 182nd on a drug case.   It is a well-written column, but I can't help but notice how genuinely amazed Casey seems to be with the process of voir dire.  It strikes me as rather ironic that he would seem so out of his element in jury selection considering how often he writes with such authority and indignation over the way "the System" works.

Casey interprets his experience on the jury panel as something very telling of the community's thoughts on the "Drug War", when in reality, it sounds like just another typical day of picking a jury to me.

The article is entitled (in print) as "Conscientious objectors in the war on drugs", and he goes on to describe the First Degree Felony of Possession of a Controlled Substance with Intent to Deliver 4-200 grams as a "low grade felony".

I sincerely doubt that the Defendant on trial (who was facing up to Life in prison) would agree with that description.

He downplays the seriousness of the charge by describing the jury selection as a "fascinating three-hour seminar on how Houstonians feel about the justice system in general and the war on drugs in particular."

He details how he was shocked that they brought over 60 people for the panel, thinking that was too many for the above-mentioned "low-grade felony".  He then marvels at how (after strikes for Cause had been made), the attorneys reached all the way to Juror # 55 on the panel.  This, Casey seems to imply, is due to the controversiality of the "Drug War".

Rick, my friend, that happens on every case, I hate to break it to you.

Try picking a jury on a murder case where self-defense is an issue, or a jailhouse snitch or co-defendant will be testifying.  Or perhaps a domestic violence case where the complainant no longer wants to prosecute.  Want to really see potential jurors get struck for cause?  Observe a sexual assault of a child case where the act was consensual but the age difference made it illegal.

Contrary to some of Mr. Casey's prior articles, the Judges, Prosecutors and Defense Attorneys around the Harris County CJC usually have some idea as to what they are doing.  They know that they need to pull about 65 prospective jurors on any felony trial because every felony case is chocked full of legal issues that you might never think of.

Hell, Rifi Newaz and I busted six jury panels trying to select a jury on one murder case.  And the case had nothing to do with drugs, believe it or not!

Casey goes on to list many of the reasons that the potential jurors were struck for Cause.  He details jurors who had bad prior experiences with law enforcement, those who would hold it against the Defendant if he didn't testify, and those who didn't want to participate if they didn't have a say in sentencing (upon conviction).

He makes note of one gentleman who talked in detail about the effectiveness of the "Drug War", and then jumps to the following conclusion.
But the overwhelming message was that about a fifth of the pool couldn't in good conscience take part because they found fault with the way the justice system deals with drug offenders.  They were, in effect, conscientious objectors in the war on drugs.
Wait.  Huh?

He just detailed how about twenty people got struck for Cause for various and sundry reasons like 5th Amendment issues and sentencing issues, and then leaps to the idea that of the 23 people struck for Cause that it was based on them finding "fault with the way the justice system deals with drug offenders"?

I don't follow his logic.  Nor his math.

He only mentioned one or two people who were taken off the panel due to "Drug War"-related questions.

He also goes on to point out that both the Defense and the Prosecution were "able to dismiss up to 10 [jurors] without offering any reason" as if that were some sort of ominous back-room deal designed to do something unseemly.  Uh, Rick, those are called Peremptory Strikes, and nobody who practices criminal law really seems to mind them being around.  The Code of Criminal Procedure kind of provides for them.

I guess in the end, I have to commend Mr. Casey for actually attending a Voir Dire and trying to learn from his experience, but damn, if this was a science project, I'd have to give him a failing grade.  I'm not debating the validity of the Drug War here, but when you have such faulty conclusions drawn from his experience, he greatly diminishes his credibility in his analysis.

For more on Voir Dire and the Strikes for Cause, you can click here.

Thursday, April 21, 2011

New Post on the Chronicle Blog

I've been totally slipping in my duties as a two-timing blogger.  I've been trying to keep up on this website, but the one over at the Chronicle has been lagging.

But, I do have a new post over there that I just put up about Fly-By-Night Internet Law Firms giving out bad legal advice to people seeking to "Clear" their records.

You can check it out by clicking here.

Monday, April 18, 2011

Joe Roach

We were all saddened to learn today of the passing of Joe Roach, a long-time defense attorney, former prosecutor, and Houston City Councilman.

Joe was a familiar face at the CJC and was well-known advocate for his clients.  He was smart, persistent and good in trial.

At the time I first met him, he was long since past his days as a prosecutor and a City Council member, but he loved to tell stories about his time with the Office.  If I recall correctly, he told me that he had made Felony Chief in under four years.

He always had a kind word and always asked about my son.  I always appreciated that.  I will miss seeing him around the courthouse.

My condolences go out to his wife and three children.

Saturday, April 16, 2011

Memorial Service for Tody Dupont

A Memorial Service for Tody Dupont has been tentatively set for Tuesday, April 19th at 10:00 a.m. at 1st Baptist Church of Houston.

I will keep this post updated with details and any possible changes to this plan.

Thursday, April 14, 2011

Tody Dupont

I'm sorry to report that our Criminal Justice Community has lost one of its long-time members today with the passing of defense attorney Tody Dupont.  Mr. Dupont was the father of one of my best friends, Todd Dupont, who practiced with his Dad.  He had been in a car accident earlier this month, but his prognosis had been positive.  Today's news is just as surprising as it is sad.

I wish I could fill a long post here with stories of Mr. Dupont, but I actually only personally met him once or twice at the crawfish cookouts that he and Todd threw together.  I did know his reputation as one of the well-known legends of Decades Past.  Most of your seasoned attorneys around the CJC knew Mr. Dupont and spoke very highly of him.

But more importantly, I know that Todd spoke so highly of his father.  Todd has always been so proud to be working with his father and loves telling stories about his Dad's cases.  I'm a first-generation lawyer in my family, and I've always been envious of those lawyers that have a family history in the law -- especially criminal law.

I know that Todd treasured getting to work with his Dad for as long as he did, and was so proud to tell people that he was "Tody's boy".

In all honesty, I don't know what better tribute you could give to a Man, than those types of feelings from his son.

My heartfelt condolences go out to my friend, Todd, and all of Mr. Dupont's family.  I will post funeral arrangements here as they become available.

Tonight's Reasonable Doubt (4/14/11)

Tonight's Reasonable Doubt has been cancelled due to the passing of Tody Dupont, father of our host, Todd Dupont.

Wednesday, April 13, 2011

By Reader Request -- "Deferred Adjudification"

Okay, so I'm nothing if not responsive to Reader Requests.

A friend of mine sent me an e-mail suggesting that I do a post on how many different ways people mispronounce "Deferred Adjudication" in court.  I've heard it mispronounced a couple of times over the years, with the most common way, obviously, being "Deferred Adjudification".

As a side note, if you want to mess with a seasoned prosecutor or defense attorney's head, wait until they just finished a bench conference with the judge, walk up to them, and say, "Um, I can't believe you just pronounced that deferred adjudification."  They will deny it, get very embarrassed, and then spend the next fifteen minutes wondering whether or not they really did that in front of a judge.

Trust me, I did it to Denise Nichols once when she was my Three in Judge Davies' court.

But I digress.

There are obviously numerous terms in our system that get blundered by (usually) Defendants, but also by police officers, witnesses, lawyers and judges.

My personal favorite was in a misdemeanor DWI trial, opposing counsel repeatedly spoke of the "Horizontal Glaze Nostalgius" test.  (For you non-lawyer folks, it's the Horizontal Gaze Nystagmus test and it is a staple of any DWI case.  Lawyer humor.)

So, fire away with your favorite mispronunciations here if you've got some.  They are usually pretty funny.

Since we are on the topic, though, I have to confess that it wasn't until 2008 (when I was a District Court chief) that David Cunningham was kind enough to point out to me that the phrase was "for all intents and purposes" and not "for all intensive purposes" as I had been saying for the previous 36 years of my life.

Monday, April 11, 2011

Okay, Let's Talk About Something Different . . .

Okay, my friends, I'm trying to shake off the week-long funk I've been in, and get back to talking about some more Harris County-relevant topics here.

Last week, a popular blog known as "The Daily Beast" (which is somehow affiliated with Newsweek Magazine) published a glowing article on Pat Lykos, calling her the "Texas Capital Punishment Avenger". I was alerted to the article being published by our friend, Brian Wice, who wanted to make sure that I saw his "Joan Collins on her menstrual cycle" comment.

I had known the article was coming, however.  The author of it, Ben Crair, had contacted me and we had spoken between 30 to 45 minutes about my thoughts on Lykos.

Now, keep in mind, whenever I get interviewed by a member of the media about my thoughts on Lykos and the job she is doing, I'm the first person to acknowledge that I've got my biases.  And I did so in my talk with Crair.

I told him of my issues about what she has done to destroy morale at the Office and the mass exodus of good prosecutors -- you know, that stuff that people outside of the CJC don't really seem to give a rat's ass about.

But I also pointed out with Crair that Lykos had done some positive things there, as well.  As you know, I've agreed with her policy of turning over offense reports to defense attorneys, and (although I got some serious flak from my police officer friends) the decision not to file crack pipe residue cases.

Our conversation then turned to Capital Punishment and the fact that the Office is seeking the Death Penalty less and less often.  I told him that even though I was a believer in the Death Penalty, I thought that the addition of Life Without Parole a few years back had alleviated the need to seek it as often as in the past.  I also stated that I think that Society has grown more scarred as a whole and those crimes that truly shock the conscience are fewer and further between.

The one case that truly stands out in my mind of where Lykos pled out a case that, in my opinion, should have gone to a jury to decide whether or not the Death Penalty was appropriate is Randy Sylvester.  I still don't get that one.

But, apparently, at the end of the day, Crair wasn't all that interested in printing anything negative (or even debatable) about Pat Lykos.  He wanted to write a puff-piece that celebrated her for doing what she does best -- play politics.

I guess the thing that still just continues to befuddle me is how Lykos is able to remain such a darling with hard-core Republicans while at the same time pandering to the Anti-Death Penalty groups so strongly that she gets the label of "Texas Capital Punishment Avenger".  I mean, Lykos plays both sides of the fence better than Mata Hari.  (NOTE:  I know that analogy is not near as good as Wice's Joan Collins analogy, but give me a break.  I've had a bad week.)

In the end, it is the same old story that it has always been with Lykos.  She is a media darling.  She always has been.  She always will be.  The day of judging a candidate for their true substance and leadership is lost amongst soundbites and media agencies celebrating the candidate that best conforms to their own agenda.

Crair's article is nothing new.

Saturday, April 9, 2011

Mental Health

I went to the funeral yesterday in Waxahachie for Robert Morris.  He was my friend's father and a man that I had spent a lengthy amount of time on the phone with about his son.  As I've documented over the past few posts, we worked very hard to prevent the events that ultimately transpired, and we were unable to do so.

I've received numerous phone calls, e-mails, and posts on the blog from friends and strangers over the past week, offering words on consolation and encouragement.  I appreciate them all so very much.  But one of the phrases that I've heard from many was encouragement to not blame myself and that I should know I did all I could.

At the risk of sounding arrogant, I am terribly saddened by what happened, but I don't blame myself. I've gone over all of the options in my mind to see if there is anything I could have done differently, and I've literally come up with nothing.  Bob Morris and his wife did even more than I could have possibly done.  They consulted with me and exercised all the options provided to them under the law to protect themselves, but at the same time tried to balance that with caring and loving Joel.

The problem is that the brutal fact of the matter may be that protecting one's self and still caring for the interests of a mentally violent person may create an irreconcilable scenario.

The funeral yesterday was very poignant.  A dear friend of mine from high school and I made the four hour trip from Houston to Waxahachie and back and we talked at length about it.  The minister was a tremendous speaker, and surprisingly, he pulled no punches in talking about what had happened to cause Bob's death with candor.

He spoke of the Prodigal Son and pointed out that Bob had certainly been the loving and welcoming father, but that Joel just couldn't ever remain the remorseful son who wanted to return home and seek forgiveness.

The minister couldn't have been more accurate in his description, and the service truly seemed like a funeral for both Bob and Joel.

But the words that were uttered several times through the service were "the System failed Bob".

And ultimately, I suppose it did.

The "System" is a complicated machine.  Mental Health Care is convoluted and confusing when applied to the Criminal Justice System.  It is literally an element of criminal law that just can't seem to do anything right.  It is either being blasted for being too insensitive to the reality of Mental Illness when it comes to punishing people (as in the case of Andrea Yates).  Or it is being too "Politically Correct" and failing to take the bull by the horns to stop dangerous mentally ill people (Joel).

The whole situation has me very flummoxed.  Bob and I tried to get Joel locked up into a mental health care facility on several occasions over the past three years, and we often succeeded.  I think that we were both hopeful that the incident with Joel in the elevator might have actually been the key moment that we finally were able to make some progress with both Joel and the legal system.

When he tried to stab his eye out, he had proven himself to be a danger to himself and others.  He was put into psychiatric treatment custody.  No one had been permanently injured and Joel was finally getting the treatment he needed.

The problem was that Joel responded to his treatment.  He took his medication (against his will) and got back to being a rational human being again.  And Bob, like any loving father, welcomed his Prodigal Son back home.  Bob had gotten a protective order against Joel, as I had advised him to, but Joel had no home and no job.  He gave Joel shelter and a job.

And Joel had several good months, before he went off of his medication.

And then all Hell broke loose.

We exercised all the remedies available to us.  But the only true way to have kept Joel from hurting anyone would have been to lock him away somewhere that would guarantee that he never went off his medication.

We all know that would never have happened.

I guess what I'm saying here is that the reason "the System" fails so often in mental health issues is that because it is faced with an impossible situation.  How do you balance a dangerous person without just throwing them away for life?  Especially when they haven't committed a violent crime yet?

There are certainly things that the mental health system could do better.  And it should.  There should be more opportunities for the mentally ill to receive treatment if they can be guided toward it.

But in the situation with Joel, I just don't know.  He had a support network that cared about him and that support network did guide him to almost everything the State of Texas and mental health professionals could offer him.

But in the end, it was Joel who failed, and now he looks at the very real prospect of being locked away for the rest of his life where he can't hurt anyone else.  I don't think that any one of us wants that to be the only option, but it seems to be the only safe one.

I've been notified that Joel did have a "list" when he was arrested and that I was on it.  His father had been first on that list.  I was third.

I want Joel to be okay, but I want to be safe, too.  I want to always be there for my little boy like Bob was for Joel.  I want Joel to get the help he needs.

In the end, selfishly, I have to hope that he never sees the Light of Day.

But I don't feel guilty for wanting that.

I just can't.

Wednesday, April 6, 2011


First of all, I want to say thank you to my friends and family members who have been very sympathetic, encouraging and supportive over the past three days in the wake of the tragedy of Sunday.  As upset and sad as I am about what happened between him and his father, my pain can only be a fraction of what his family is going through.  The struggles that they have gone through were so much more monumental than anything I did.

The factor that is probably the most difficult to deal with is the feeling that no matter what, despite the best efforts of so many people, that we failed.

The night I found out what had happened, I went to my sister and her husband's house.  There were a lot of tears cried, cigarettes smoked, and beers drank.  I think there can be a very helpless feeling when you know that you tried to give your best effort to something to make it work and it just doesn't happen.

I was feeling pretty jaded on Sunday night.  I wrote a post that night, sitting by my sister's pool, long after everyone in the house had gone to sleep.  It was after God-knows-how-many beers, and I at least had the wherewithal not to post it in my condition at the time.  I only shared that post with one person, and I won't be sharing it with anyone else.

But I kept it to go back and read.

I was feeling pretty damn beat to hell that night.  The world, as a whole, just seemed like a very bad place and it was very easy to think about the futility of trying to make it better when the odds seem so very stacked against you.  Especially when the results of the failure are so devastating.

When I woke up the next morning, next to my five-year-old, it was light again.  Lo and behold the sun had risen.  I got up to face the day.

At 7:30 that morning, I got a call from a police officer on a case where I'm trying to help another kid out of a bad situation.  The officer was very kind on the phone when I told him why there wouldn't be anything I could do on the case that day.

Moments later, I heard a thud from upstairs in my sister's guest room.  My boy had fallen out of bed and was crying.  I went and picked him up and made it better in the way that only Daddy or Mommy can.  I talked on the phone to people from my past and people from my present  I went to lunch with my Dad and Sister before coming home to Houston.

After dropping my son off with his Mom, my friends were waiting for me in Houston to take me out and cheer me up.  My group of friends here, and you know who you are, aren't really the type to get mushy and sentimental, but I hope they know how much that helped.  It was the first time since learning about the tragedy that I at least cracked some semblance of a smile.

And yesterday, I was back at work.  Hopefully trying to help somebody else.

The point of this rambling and probably overly-personal post is that in life, we all tend to pick each other up when the other falls down.

Or at least we try to.

It is just responding to the Better Angels of our Nature.

You can throw yourself headfirst into a situation that seems insurmountable, whether it be a case, a relationship, or just trying to help a friend who was long-since salvageable and still fail.  There are no guarantees on what the outcome of any situation will be when human nature is a factor in it.

But, as cliched as it may sound, even when you do fail, you simply must not quit trying.  You may lose your case.  You may lose your relationship.  You may lose your friend.

But the sun will still rise in the morning and there will be other cases, other relationships, and other friends that you can contribute to.

You only truly fail when you quit trying.

Monday, April 4, 2011

Saturday, April 2, 2011


One of the truisms about being a trial lawyer is that we all steal.

That is, we all steal from each other when it comes to good ideas and arguments to use in front of juries or judges.  Prosecutors steal from other prosecutors.  The closing phrase of "Find him, guilty, folks.  You won't be telling him anything he doesn't already knows" has been used in many a trial.  Vic Wisner claims to have coined that one, but I think he was just looking for royalty payments.

And defense attorneys steal from other defense attorneys, copying different analogies that underline what Reasonable Doubt is.

It is a regular occurrence to find that if an attorney is passing through a court when closing arguments are about to commence, that attorney will stick around to watch them.  Sometimes they watch to observe the style of the opposing attorney they might be facing soon in trial.  Sometimes they watch for sheer entertainment value.  Sometimes they stay to lend moral support on a tough case.  But every time they do stay, there is the opportunity to pick up ideas to use in trial down the road.

As a litigator, I've never been a big fan of the grandiose, carefully polished closing argument.  I think that closings that sound more akin to the Mark Antony eulogy of Caesar and fire-brand Baptist sermons often prove to be the Sound and the Fury signifying nothing.  A closing argument is where each side has the final chance to reach the jurors, and it shouldn't be overshadowed by an attempt to get yourself into a Great Quotes of the 21st Century book.

The reason I'm bringing this up is that I read a recap of the (1st) closing arguments done on the Jerry Eversole case in Federal Court last week.  Rusty Hardin, who is regarded by many as being one of the best (if not the best) defense attorneys in Houston, did something that I had never seen, heard of, or thought of in his closing.  It was brilliant in its simplicity, and I am so stealing it the next time I do a closing argument.

The defense had not put on a case after the prosecution had rested, instead electing to rest immediately behind them.   The Chronicle reported a portion of Rusty's closing as follows:
"He [Rusty] showed a chart of 18 people who were interviewed by federal agents but not called by prosecutors.  Hardin said the witnesses, including three other commissioners and a former county judge, would have hurt -- not helped -- prosecutors."
Think, for a second, about what that mode of argument does.  The Defense still can rest behind the Presumption of Innocence and point out a completely proper reasonable inference from the evidence that a large amount of witnesses to the alleged offense had nothing implicating Eversole in wrongdoing.  To me, that's powerful stuff.

The reality is that in most trials, the prosecution rarely calls every single available witness.  Some may be duplicative in their testimony.  Others may be too easily impeachable.

But that's not the Defense's duty to explain to the jury, because the Defendant has the Presumption of Innocence.

(NOTE:  I tend to think that if Rusty had put on a defense case and called witnesses that the prosecution would have potentially been able to respond accordingly with a "the defense called witnesses too, and you didn't see them calling these people either."  What do y'all think about that hypothetical?)

Keep in mind, that this isn't the first time that Rusty has done something brilliantly simple and insanely effective in a high-profile criminal case.  In the 2004 trial of Calvin Murphy, Rusty called Murphy to the stand near the end of a month-long trial that was filled with numerous and lengthy allegations of Murphy sexually abusing his children.  Most people anticipated that Rusty would do a lengthy direct examination of his client.

Instead, Rusty spent a total of three minutes on direct.  He read the charges and then simply asked Murphy if he did what he was accused of.  Murphy issued an emphatic denial.

And it was extremely effective.

Much more so than tediously going through every last bit of the preceding testimony and then putting Murphy in the position of having to attack his daughters' credibility on the stand.

There have been other great examples that I either have stolen from or plan to in the near future. The list is long and distinguished, but I would include some of the following:

-Michael Turner's explanation of the standards of proof in criminal cases (during voir dire).
"Even if you are Clearly Convinced that my client is guilty, you can't convict him . . ."
-Ted Wilson's argument for the maximum sentence on a Possession of Child Pornography case.
"I know you all know that if you sentence Tom Zaratti to 10 years and $10,000 won't stop child pornography from happening . . . but you will have done everything you can."
And bringing this post full circle, yet another (self-claimed) argument from Vic Wisner:
"Folks, if you're going to find him not guilty, just remember to make room on the elevator when you leave, because he'll be riding down with you." 
There are plenty of others, and I invite you to share them with us here.

In the meantime, to all of you trial lawyers out there, remember to keep on stealin'.

Friday, April 1, 2011

New Post on Jessica Tata on the New Website

Okay, I'm not a full-fledged tech geek, so I'm not entirely sure what cross-posting is exactly, but I just published a new post on Criminal Background on Jessica Tata.

You can read it by clicking here.

For my more blawgosphere savvy friends, does that count as cross-posting?

Episode Seven: The Voters Awaken - A One Act -Sci-Fi Play

SCENE:  The Death Star orbits over Downtown Houston. [INTERIOR] The Imperial Council Chambers. EMPRESS OGG sits at the head of a long table ...