I did a new post on the Chronicle blog about my thoughts on what should and shouldn't be said to a jury in the aftermath of a verdict.
You can read it by clicking here.
Friday, September 30, 2011
Wednesday, September 28, 2011
The Brian Wice Editorial
In any jury trial, after the jury has returned its verdict, the jurors are told that they can speak with the attorneys on the case if they so choose. My personal policy has always been that I will stay and talk to any jury that wants to talk to me, regardless of whether or not they ruled in my favor. I believe that if the jurors devoted their time to listening to me talk for hours, days or weeks, the least I can do is listen to them for a bit.
Some jurors want to know what will happen to the defendant after the trial is over. Some will be looking for affirmation that they arrived at the right decision. Some will want to know what "the rest of the story" was. I always try to answer their questions to the best of my ability. Jurors get emotionally and intellectually invested in the trials they sit on, and I think they deserve to have their questions answered.
As most of you know, last week local hand surgeon Michael Brown was acquitted of Felony Assault against his wife, Rachel Brown. Yesterday, Brian Wice, who defended Dr. Brown along with Dick DeGuerin, Catherine Baen and Carmen Roe, wrote an editorial criticizing the prosecution team of Jane Waters and Nathan Hennigan for comments they made to the jury and media after the trial was over.
In his editorial, Wice describes prosecutor Nathan Hennigan's comments as "a backhanded slap at Judge Wallace", "cross[ing] the line on both a personal and professional level", and "classless".
Okay, let's look at this for a moment.
Shortly after the acquittal, Dick DeGuerin made a big production of cutting off Dr. Brown's ankle monitor in front of the media before doing a press conference doing a character assassination on Rachel Brown (who, last I looked, wasn't charged with a crime). This type of circus-like production isn't exactly what I would equate with "class" in the first place, so Wice attacking Nathan for talking to the jurors about "the real Michael Brown" rings a tad bit hypocritical.
Brian's description of the prosecutor's comments as "a backhanded slap at Judge Wallace" is ludicrous. Judge Wallace made rulings that affected the integrity of the trial he presided over. Nathan and Jane followed those rules throughout the trial. None of Nathan's comments were along the lines of "We would have won the case if that big old mean judge just hadn't made a dumb ruling." He discussed an extraneous aggravated assault that Michael Brown had been on deferred adjudication for after the trial. Brian claiming that Nathan was giving a "backhanded slap" was designed solely to make Judge Wallace angry with the prosecutor and portray him as disrespectful to the court.
Nothing could be further from the truth.
And finally, Wice alleges that Hennigan's statements as violating Rule 3.06 of the State Bar Disciplinary Rules, because his "post-verdict comments" could harass, embarrass or influence actions in future jury service. He calls it a "thinly veiled attempt to make the jury feel bad about its verdict".
Um, Brian, are you forgetting that your part-time job of being a legal analyst for Channel 2? Don't you regularly make "post-verdict comments" about what you thought was good or bad about a trial? Don't you do analysis of evidence that may or may not ultimately get in front of jury? Aren't you the same guy who appeared in about 5 episodes of 48 Hours criticizing Kelly Siegler and calling her every name in the book as you criticized the verdict in the Susan Wright case?
Are you really suggesting that only us members of the Defense Bar can give our opinions of cases in the aftermath, but the prosecution can't?
Wice wraps up his editorial by encouraging District Attorney Pat Lykos to counsel with her "minions" about their post-verdict statements. If Pat Lykos is any type of leader, she will politely tell Brian where he can put his editorial advice.
I don't know near as many sports analogies as Brian Wice. The lessons I learned from my father and coaches were short and to the point: Play with class and be as gracious in victory as you are in defeat.
Brian Wice took the time out to publicize what he perceived to be a lack of class by the prosecutors in defeat.
Perhaps he should more closely examine how gracious he was in victory.
Some jurors want to know what will happen to the defendant after the trial is over. Some will be looking for affirmation that they arrived at the right decision. Some will want to know what "the rest of the story" was. I always try to answer their questions to the best of my ability. Jurors get emotionally and intellectually invested in the trials they sit on, and I think they deserve to have their questions answered.
As most of you know, last week local hand surgeon Michael Brown was acquitted of Felony Assault against his wife, Rachel Brown. Yesterday, Brian Wice, who defended Dr. Brown along with Dick DeGuerin, Catherine Baen and Carmen Roe, wrote an editorial criticizing the prosecution team of Jane Waters and Nathan Hennigan for comments they made to the jury and media after the trial was over.
In his editorial, Wice describes prosecutor Nathan Hennigan's comments as "a backhanded slap at Judge Wallace", "cross[ing] the line on both a personal and professional level", and "classless".
Okay, let's look at this for a moment.
Shortly after the acquittal, Dick DeGuerin made a big production of cutting off Dr. Brown's ankle monitor in front of the media before doing a press conference doing a character assassination on Rachel Brown (who, last I looked, wasn't charged with a crime). This type of circus-like production isn't exactly what I would equate with "class" in the first place, so Wice attacking Nathan for talking to the jurors about "the real Michael Brown" rings a tad bit hypocritical.
Brian's description of the prosecutor's comments as "a backhanded slap at Judge Wallace" is ludicrous. Judge Wallace made rulings that affected the integrity of the trial he presided over. Nathan and Jane followed those rules throughout the trial. None of Nathan's comments were along the lines of "We would have won the case if that big old mean judge just hadn't made a dumb ruling." He discussed an extraneous aggravated assault that Michael Brown had been on deferred adjudication for after the trial. Brian claiming that Nathan was giving a "backhanded slap" was designed solely to make Judge Wallace angry with the prosecutor and portray him as disrespectful to the court.
Nothing could be further from the truth.
And finally, Wice alleges that Hennigan's statements as violating Rule 3.06 of the State Bar Disciplinary Rules, because his "post-verdict comments" could harass, embarrass or influence actions in future jury service. He calls it a "thinly veiled attempt to make the jury feel bad about its verdict".
Um, Brian, are you forgetting that your part-time job of being a legal analyst for Channel 2? Don't you regularly make "post-verdict comments" about what you thought was good or bad about a trial? Don't you do analysis of evidence that may or may not ultimately get in front of jury? Aren't you the same guy who appeared in about 5 episodes of 48 Hours criticizing Kelly Siegler and calling her every name in the book as you criticized the verdict in the Susan Wright case?
Are you really suggesting that only us members of the Defense Bar can give our opinions of cases in the aftermath, but the prosecution can't?
Wice wraps up his editorial by encouraging District Attorney Pat Lykos to counsel with her "minions" about their post-verdict statements. If Pat Lykos is any type of leader, she will politely tell Brian where he can put his editorial advice.
I don't know near as many sports analogies as Brian Wice. The lessons I learned from my father and coaches were short and to the point: Play with class and be as gracious in victory as you are in defeat.
Brian Wice took the time out to publicize what he perceived to be a lack of class by the prosecutors in defeat.
Perhaps he should more closely examine how gracious he was in victory.
Friday, September 16, 2011
David Hilburn runs for Brazos County District Attorney
Last week, longtime Brazos County District Attorney (and a guy I think the absolute world of) Bill Turner announced that he wasn't going to be seeking re-election in 2012. (NOTE: I'll do another piece on Bill as we get closer to his retirement.)
This becomes relevant to Harris County prosecutors as former-Harris County Prosecutor, former-Brazos County Prosecutor, defense attorney, and all-around good-guy, David Hilburn has announced that he is running for the position.
For those of you who are too young with the Office to remember, Dave was an immensely popular and highly regarded prosecutor while in both Harris County and Brazos County. Dave still has a lot of friends in Harris County, so I'll keep you posted as the election season progresses.
He would make a great District Attorney.
Wednesday, September 14, 2011
Guess the Feet
Okay, we haven't had a poll on the blog in awhile, so I decided to run a contest.
Look at the photo below and ask yourself which attorney (defense or prosecutor) was sporting some serious holy socks to court today.
Look at the photo below and ask yourself which attorney (defense or prosecutor) was sporting some serious holy socks to court today.
Thursday, September 8, 2011
The Perils of Blogging
Tonight was Felony Chief Prosecutor Jon Stephenson's going away party. Although Jon wasn't a headline-grabbing prosecutor, he was highly respected amongst his peers and the defense bar as a fair, honorable and reasonable man who truly embodied the meaning of a Public Servant.
The reason I entitled this blog "The Perils of Blogging" is that there were so many former prosecutors who turned out for Jon's party that had left the D.A.'s Office in recent months and I failed to write something on this blog commemorating and commending the work they did on behalf of Harris County. Faces in the crowd that I saw were Kate Skagerburg, Leah Shapiro, and Brad Loper, to name a few. Scott Pope and Bill Hawkins were unable to attend, but I remembered that I failed to give them a salute on their departure as well.
Quite frankly, the reason I was remiss in doing an "office obituary" for those former prosecutors (and I'm sure several others that I'm forgetting to name at the moment) is for two reasons. The first and foremost being that y'all are leaving the Office so fast that I can't keep up. The other one being that I've just been busy. On top of my workload, my Little Man started kindergarten three weeks ago (he's only gotten two notes home from the teacher thus far) and I got engaged to My Favorite Editor from New York. So, my social calendar has been slightly pre-occupied over the past couple of months.
To those of you who took the job as an Assistant District Attorney and have left recently, please accept my profuse apologies for not giving you the credit you deserve with an individual write up.
As a prosecutor, I was honored to work alongside you.
As a defense attorney, I was greatly appreciative of the reasonable, intelligent, and well-intentioned way in which you handled the cases I had against you.
I've been trying to tone down my rants against the Pat Lykos Administration over time. At some point, I realized that my railing against her may ultimately make Ted Kazcynski seem even-handed.
But I cannot ignore the fact that some really damn good people have left the Office this year that probably wouldn't have under other circumstances.
Lykos and Crew have gotten some great publicity over the past year for some big cases -- Michael Anthony Green being the most prominent of them. She's flown to England to be honored for her non-death-seeking-stance, and she has basked in the glory. The public has applauded her for it.
But what the public doesn't realize is the value of the damage she has done by causing the mass exodus that she has. They will never appreciate -- and the media will never write a story about -- those prosecutors that made the correct, reasonable, and often merciful decision on those day-to-day cases that can truly make a difference in a person's life.
A rank and file prosecutor will never ever ever be recognized for:
-- offering a misdemeanor deferred on a young person accused of a felony;
-- going to bat for a kid who deserves a pre-trial diversion;
-- simply acknowledging that a case cannot legally be made and dismissing it, despite the angry rantings of a Complainant or an arresting officer;
-- pushing forward on a case that needs to be tried, even if the defendant is buddies with someone in the upper administration; OR
-- fading the heat for someone you supervise if they made a rookie mistake.
But the good prosecutors do (or did) that all. They did it thanklessly. They did it despite a fear of retribution from an Office where public appearance was everything, and there was a threat of retribution for something that would falter in the court of public opinion.
Yes, there will always be big name cases where the spotlight shines brightly and adoringly on the D.A.'s Office . . .
But the real test of character is what one does when the spotlight isn't on them.
For all of you that I mentioned earlier (and the ones I forgot), you deserve a standing ovation for the things you had the courage and character to do during your time at the Office when the spotlight wasn't on you. I'm sorry I got behind in my blogging duties.
For those of us in the trenches every day -- either on the defense side or the prosecution side -- you had (and continue to have) the ultimate respect of your peers.
You did your job and changed many lives for the better based on the simple mantra of "just do the right thing".
Although the general public may not realize it, the Harris County District Attorney's Office is much worse off after your departure.
The reason I entitled this blog "The Perils of Blogging" is that there were so many former prosecutors who turned out for Jon's party that had left the D.A.'s Office in recent months and I failed to write something on this blog commemorating and commending the work they did on behalf of Harris County. Faces in the crowd that I saw were Kate Skagerburg, Leah Shapiro, and Brad Loper, to name a few. Scott Pope and Bill Hawkins were unable to attend, but I remembered that I failed to give them a salute on their departure as well.
Quite frankly, the reason I was remiss in doing an "office obituary" for those former prosecutors (and I'm sure several others that I'm forgetting to name at the moment) is for two reasons. The first and foremost being that y'all are leaving the Office so fast that I can't keep up. The other one being that I've just been busy. On top of my workload, my Little Man started kindergarten three weeks ago (he's only gotten two notes home from the teacher thus far) and I got engaged to My Favorite Editor from New York. So, my social calendar has been slightly pre-occupied over the past couple of months.
To those of you who took the job as an Assistant District Attorney and have left recently, please accept my profuse apologies for not giving you the credit you deserve with an individual write up.
As a prosecutor, I was honored to work alongside you.
As a defense attorney, I was greatly appreciative of the reasonable, intelligent, and well-intentioned way in which you handled the cases I had against you.
I've been trying to tone down my rants against the Pat Lykos Administration over time. At some point, I realized that my railing against her may ultimately make Ted Kazcynski seem even-handed.
But I cannot ignore the fact that some really damn good people have left the Office this year that probably wouldn't have under other circumstances.
Lykos and Crew have gotten some great publicity over the past year for some big cases -- Michael Anthony Green being the most prominent of them. She's flown to England to be honored for her non-death-seeking-stance, and she has basked in the glory. The public has applauded her for it.
But what the public doesn't realize is the value of the damage she has done by causing the mass exodus that she has. They will never appreciate -- and the media will never write a story about -- those prosecutors that made the correct, reasonable, and often merciful decision on those day-to-day cases that can truly make a difference in a person's life.
A rank and file prosecutor will never ever ever be recognized for:
-- offering a misdemeanor deferred on a young person accused of a felony;
-- going to bat for a kid who deserves a pre-trial diversion;
-- simply acknowledging that a case cannot legally be made and dismissing it, despite the angry rantings of a Complainant or an arresting officer;
-- pushing forward on a case that needs to be tried, even if the defendant is buddies with someone in the upper administration; OR
-- fading the heat for someone you supervise if they made a rookie mistake.
But the good prosecutors do (or did) that all. They did it thanklessly. They did it despite a fear of retribution from an Office where public appearance was everything, and there was a threat of retribution for something that would falter in the court of public opinion.
Yes, there will always be big name cases where the spotlight shines brightly and adoringly on the D.A.'s Office . . .
But the real test of character is what one does when the spotlight isn't on them.
For all of you that I mentioned earlier (and the ones I forgot), you deserve a standing ovation for the things you had the courage and character to do during your time at the Office when the spotlight wasn't on you. I'm sorry I got behind in my blogging duties.
For those of us in the trenches every day -- either on the defense side or the prosecution side -- you had (and continue to have) the ultimate respect of your peers.
You did your job and changed many lives for the better based on the simple mantra of "just do the right thing".
Although the general public may not realize it, the Harris County District Attorney's Office is much worse off after your departure.
HCCLA Memorial Service
Please join members of the Harris County Criminal Lawyers Association today as we honor the memories of some of Harris County's defense bar. As readers of this blog know, many of our defense brethren have passed away this year, and they will be honored with their names on plaques in the 7th Floor Attorney Meeting Room of the CJC today at 11:00 a.m.
Come and pay your respects and share your war stories as we pay tribute to the men and women who have given Harris County such a colorful and impressive legal history.
Come and pay your respects and share your war stories as we pay tribute to the men and women who have given Harris County such a colorful and impressive legal history.
Wednesday, September 7, 2011
Rayford Carter
I was very sad to hear this morning that legendary defense attorney Rayford Carter passed away. He had been very ill for quite some time.
When I describe Rayford as "legendary," I think that very few people around the Harris County Criminal Justice Center would disagree with me. Almost every prosecutor, defense attorney or judge in the building has at least one "Rayford story" that they can tell. Hell, I can think of at least ten of them off the top of my head. It is worth pointing out that whenever one tells a Rayford story, it is pretty much mandatory that the storyteller do his or her best to mimic Rayford's gravelly voice.
To be clear, Rayford stories are not ones told at Rayford's expense. They usually involve something incredibly funny or crude that he had the guts to say out loud. One of the cleaner ones I posted here a while back.
At a height of at least six foot six and with a full head of white hair, Rayford was one of those people that you just couldn't help but notice based on his appearance alone. He was always sharply dressed and liked to point out to young prosecutors that he could afford those suits because he made more money than they would in their entire careers. With his deadpan delivery fused with impatience and feigned hostility, somehow Rayford was one of the more endearing characters I ever met since practicing criminal law. The man could berate a prosecutor for disagreeing with him and leave that prosecutor laughing hysterically.
Rayford loved bantering back and forth with prosecutors. Trading insults and potshots with him was almost a rite of passage for any young prosecutor. I always enjoyed the verbal sparring with him. As a matter of fact, I used to enjoy arguing with Rayford so much that when I was a Two in Judge Davies court, she would have her coordinator make me go in the back when Rayford came in the courtroom. Apparently our insult swapping became a distraction to court business.
I can remember on at least one occasion towards the end of a docket where half of the audience left in the courtroom was listening intently as he and I went back and forth. All of them were laughing hysterically.
By the way, I never won an argument with Rayford.
The only way to even call a draw in an argument with him was to make him laugh, but that was not an easy thing to do. To my recollection, I was only able to do it once.
Although his name was known by every prosecutor, judge and defense attorney in the building, he rarely bothered to learn anyone else's name. Once in Judge Poe's court, he wanted a deferred adjudication on a burglary of a building case. I told him that if he could tell me the names of five prosecutors that I would give it to him. He could only name Chuck Rosenthal and Ira Jones.
Sometime after that, I saw him in the hallways and he called me by name. I nearly collapsed from shock. When I told him how flattered I was that he remembered my name, he told me I was stupid for getting such a big head and that I wasn't really important enough for him to learn my name. He never called me by it again.
His method of negotiation with prosecutors was the mentally exhaust them until they ultimately just surrendered and gave him what he was seeking. He was remarkably successful with that line of attack, too. Rayford also wasn't afraid of going to trial, either, and the one time I saw him do a closing argument, I was amazed by his courtroom ability.
Over the past few years, his health took a turn for the worse and he developed lung problems that were ultimately so severe that he had to be in a motorized wheelchair. All of this just added to his legend, as he cruised through the hallways and courtrooms, barking at people that were in his way. He never let his illness keep him from working.
Rayford Carter was a true icon and legend of the criminal defense world. He was controversial, gruff, and a curmudgeon of epic proportions, but I don't know of a soul in the courthouse who wasn't deeply saddened to hear of his passing.
I know that I will miss seeing him very much.
When I describe Rayford as "legendary," I think that very few people around the Harris County Criminal Justice Center would disagree with me. Almost every prosecutor, defense attorney or judge in the building has at least one "Rayford story" that they can tell. Hell, I can think of at least ten of them off the top of my head. It is worth pointing out that whenever one tells a Rayford story, it is pretty much mandatory that the storyteller do his or her best to mimic Rayford's gravelly voice.
To be clear, Rayford stories are not ones told at Rayford's expense. They usually involve something incredibly funny or crude that he had the guts to say out loud. One of the cleaner ones I posted here a while back.
At a height of at least six foot six and with a full head of white hair, Rayford was one of those people that you just couldn't help but notice based on his appearance alone. He was always sharply dressed and liked to point out to young prosecutors that he could afford those suits because he made more money than they would in their entire careers. With his deadpan delivery fused with impatience and feigned hostility, somehow Rayford was one of the more endearing characters I ever met since practicing criminal law. The man could berate a prosecutor for disagreeing with him and leave that prosecutor laughing hysterically.
Rayford loved bantering back and forth with prosecutors. Trading insults and potshots with him was almost a rite of passage for any young prosecutor. I always enjoyed the verbal sparring with him. As a matter of fact, I used to enjoy arguing with Rayford so much that when I was a Two in Judge Davies court, she would have her coordinator make me go in the back when Rayford came in the courtroom. Apparently our insult swapping became a distraction to court business.
I can remember on at least one occasion towards the end of a docket where half of the audience left in the courtroom was listening intently as he and I went back and forth. All of them were laughing hysterically.
By the way, I never won an argument with Rayford.
The only way to even call a draw in an argument with him was to make him laugh, but that was not an easy thing to do. To my recollection, I was only able to do it once.
Although his name was known by every prosecutor, judge and defense attorney in the building, he rarely bothered to learn anyone else's name. Once in Judge Poe's court, he wanted a deferred adjudication on a burglary of a building case. I told him that if he could tell me the names of five prosecutors that I would give it to him. He could only name Chuck Rosenthal and Ira Jones.
Sometime after that, I saw him in the hallways and he called me by name. I nearly collapsed from shock. When I told him how flattered I was that he remembered my name, he told me I was stupid for getting such a big head and that I wasn't really important enough for him to learn my name. He never called me by it again.
His method of negotiation with prosecutors was the mentally exhaust them until they ultimately just surrendered and gave him what he was seeking. He was remarkably successful with that line of attack, too. Rayford also wasn't afraid of going to trial, either, and the one time I saw him do a closing argument, I was amazed by his courtroom ability.
Over the past few years, his health took a turn for the worse and he developed lung problems that were ultimately so severe that he had to be in a motorized wheelchair. All of this just added to his legend, as he cruised through the hallways and courtrooms, barking at people that were in his way. He never let his illness keep him from working.
Rayford Carter was a true icon and legend of the criminal defense world. He was controversial, gruff, and a curmudgeon of epic proportions, but I don't know of a soul in the courthouse who wasn't deeply saddened to hear of his passing.
I know that I will miss seeing him very much.
And Don't Let the Door . . . Nevermind
Today marks the final column from the Houston Chronicle's Rick Casey. I haven't been so saddened since alleged journalist Alan Bernstein jumped ship for the Sheriff's Office.
Oddly enough, I remember reading Casey's first column many years ago, where he introduced himself to the community. Long before there was the Rosenthal scandal and the election battle of 2008, I remember thinking that the new-to-town columnist seemed to think very highly of his own wisdom and intellect.
Don't get me wrong, he wrote many columns over the years that I did like. On occasion, I would even send an e-mail in complimenting the articles. There has even been a time or two on this blog that I've agreed with him publicly.
But Casey has also had his bumps and blunders over the years, as he has spoken with such authority about facts that he didn't have a complete grasp on. My favorite question remains how a 24-year veteran of a Metro beat apparently went to almost the end of his career without ever going to jury duty. Along the way, Casey also managed to libel Sam Siegler, write a bizarre "fantasy" piece about Kelly Siegler, and apparently do a little borderline plagiarism on the side.
But, thank goodness, he always let us know that he knew what was best for Houston --
No matter how ill-informed he was about so many issues.
Oddly enough, I remember reading Casey's first column many years ago, where he introduced himself to the community. Long before there was the Rosenthal scandal and the election battle of 2008, I remember thinking that the new-to-town columnist seemed to think very highly of his own wisdom and intellect.
Don't get me wrong, he wrote many columns over the years that I did like. On occasion, I would even send an e-mail in complimenting the articles. There has even been a time or two on this blog that I've agreed with him publicly.
But Casey has also had his bumps and blunders over the years, as he has spoken with such authority about facts that he didn't have a complete grasp on. My favorite question remains how a 24-year veteran of a Metro beat apparently went to almost the end of his career without ever going to jury duty. Along the way, Casey also managed to libel Sam Siegler, write a bizarre "fantasy" piece about Kelly Siegler, and apparently do a little borderline plagiarism on the side.
But, thank goodness, he always let us know that he knew what was best for Houston --
No matter how ill-informed he was about so many issues.
Saturday, September 3, 2011
Another Random Question
Okay, I've really enjoyed reading what you guys have read the most times over, so I'm following it up with another question.
What are you reading now?
I've got a couple of books I'm in the middle of including Daniel Silva, Tom Clancy and (fine, I'll admit it) Charlaine Harris, but mainly I'm focusing on George R.R. Martin's A Clash of Kings, which is the follow up to Game of Thrones.
Don't worry, I'll get back to criminal law and CJC stuff as soon as I can think of something worth writing about.
What are you reading now?
I've got a couple of books I'm in the middle of including Daniel Silva, Tom Clancy and (fine, I'll admit it) Charlaine Harris, but mainly I'm focusing on George R.R. Martin's A Clash of Kings, which is the follow up to Game of Thrones.
Don't worry, I'll get back to criminal law and CJC stuff as soon as I can think of something worth writing about.
Thursday, September 1, 2011
Tonight's Reasonable Doubt (9/1/11)
Regular viewers will be devastated to know that I will not be co-hosting tonight's Reasonable Doubt with Todd Dupont, as I will be replaced by the Usurper Franklin Bynum for the evening. I suppose, if you really and truly STILL want to watch the show, it will be on with a great guest -- Bob Wicoff.
As always, you can tune in by clicking here for live streaming video at 8 p.m. tonight.
As always, you can tune in by clicking here for live streaming video at 8 p.m. tonight.
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