Thursday, February 28, 2013

Loretta Smith's Last Day

Big congratulations to legendary HCDA Administrative Assistant Loretta Smith of the 209th District Court on her retirement today after 17 and a half years.

I first met Loretta after my second year of law school, when I did an Academic Internship in Judge Michael McSpadden's court back in 1998.  She and Investigator Suzanne Jones helped me figure out what in the hell I was doing back then.  The next year, they helped me get hired by the Office as an Assistant District Attorney.

Loretta, Me & Suzanne
Loretta is a legend and a fixture in the D.A.'s Office.  Everyone who worked in the court became a family member to her.  She remembered every last detail of your personal life and she was never shy about giving you advice -- whether you asked for it or not.  Her sarcastic wit and sense of humor made her a perfect fit for that office and the place won't be the same without her  and her monthly notices on the 25th of how many months away from Christmas we are.   

Congrats on your well-earned retirement, Momma Lo!  Somehow, I have a feeling you'll keep in touch with everyone.

Just a reminder to everyone, her retirement party is THIS AFTERNOON at Gloria's Restaurant at 2616 Louisiana Street at 5:01.

Tonight's Reasonable Doubt (2/28/13) - UPDATED

UPDATE:  Due to a previously unscheduled opportunity to spend the evening with my son, Robb Fickman will be handling the co-hosting duties this evening.  I apologize in advance for my legion of fans who had planned to bask in the light coming off of my scalp.

Please join me and our host Todd Dupont for tonight's Reasonable Doubt where our guest will be defense attorney extraordinaire Troy McKinney.

The show starts at 8:00 p.m. and you can catch it live streaming by clicking here.

Wednesday, February 27, 2013

Judge Ryan Patrick's Investiture

The Investiture Ceremony for Judge Ryan Patrick of the 177th District Court will be held this Friday, March 1st at 12:00 p.m. in the Ceremonial Courtroom on the 20th Floor of the CJC.

A reception will follow in the 177th Courtroom.

All are invited to attend!

Tuesday, February 26, 2013

The Bunker Mentality

As you may or may not be aware by now, the mandatory ethics training hosted by the Harris County District Attorney's Office on January 31st has recently come under attack by political pundit and die-hard Pat Lykos fan, David "Big Jolly" Jennings.   Big Jolly says:
"Immediately after the conclusion of newly elected Harris County District Attorney Mike Anderson's first training session for Assistant District Attorneys several [emphasis added] people that were appalled by the "training" asked me to look into it."
Gee, I wonder who those "several" people were.

Now (after I get this image of "Super Jolly to the rescue!" out of my head) let me point out a couple of things that I think are relevant before we break down his interpretation.

First off, David Jennings isn't a lawyer.  I'm not saying that makes him less intelligent -- Dave is very intelligent -- however, he often misses finer points of law.  At the early part of last year, I spent an hour trying to explain to him what the legal problem was with the DIVERT program, and the information just wasn't taking.  His allegiance to his particular candidate caused him to shrug off the law I was trying to explain to him.

Second, from the Missing the Forest for the Trees Department, did we forget the point that the new administration, in the first month of their regime, held a mandatory training session on Ethics?  If I recall correctly, the first mandatory training hosted by the previous administration was given by a paid speaker who talked about how the primary job of an Assistant District Attorney was to make their boss "look good."

Don't even say it, Rage.  I'll move along.

Big Jolly posted his article last Wednesday, and felt so strongly about it that he felt the need to do a follow up post on Friday where he cherry picked his favorite snippets of dialog from the lecture.  To be fair, he acknowledges his own bias in both posts.  In the meantime, the article picked up some traction and has been addressed by Scott Henson's Grits for Breakfast and Paul Kennedy's The Defense Rests (where in typical non-inflammatory Kennedy style, he refers to the D.A.'s Office as "a cult.")

I haven't posted on it before today because I thought I would actually take the time to watch the entirety of the video before commenting.  I know Big Jolly watched it all.  At the time of writing his article, Grits acknowledges that he had not watched it all.  Paul doesn't say whether or not he watched it all.  It is lengthy -- about 1 hour and 40 minutes.

My take on it is kind of tepid.  It certainly isn't the most awesome Continuing Legal Education seminar that I've ever watched.  I think that it could have used a lot more specific examples of what is Brady (exculpatory evidence, for you non-lawyers) material and a stronger emphasis on the fact that the duty to disclose Brady material extends to collecting it from police officers.

However, I don't think it resonates with the "cult-like" "bunker mentality" that Big Jolly is hoping it is portrayed to be.  I'm not going to go into as much depth on the class as Big Jolly does in his pieces, but I encourage you to watch the video yourself if you've got the time to kill.

In the end, I think the biggest problem with the seminar was that the wind up lasted about ten times longer than the pitch did.  Rob Kepple, Mike Anderson, and Johnny Holmes spent more time talking about how the "day and age" had changed more so than they did explaining how to adapt to it.

Anderson introduces the program, and points out the fact that the Innocence Project thinks of prosecutors as something "less than pond scum."  I suppose that is inflammatory, although I didn't think it was designed to rile up the audience of prosecutors against the Innocence Project.  I thought it was more a word of caution that prosecutors (and how they handle their cases) are under the microscope.  The message was very clear:  if a prosecutor thinks they are going to get away with fudging on facts because they operate under the delusion that everyone considers them the guys in the "White Hats," that belief is mistaken.

I can understand the interpretation that it may cause an "us vs. them" mentality, but hasn't the Defense Bar always wanted the prosecution to know that they are being watched when it comes to their ethics?

Mr. Holmes' appearance at the class was clearly an effort to get prosecutors fired up about doing their jobs, again.  He was the cheerleading opening act to Kepple's speech.  If some would take offense to the idea of getting the ADAs excited about prosecuting, there isn't much I could say to rebut their feelings.  He tells a story about trying a case against defense attorney Mike Ramsey, where Ramsey acknowledged that he was arguing some flimsy material.  His point is that prosecutors don't get to argue flimsy evidence when defense attorneys can.

The keynote speaker of the engagement was TDCAA's Rob Kepple.  I know Rob, but I've only met him on a couple of occasions.  Did I think his speech could have been better?  Yes.  Do I think it was as evil and conspiratorial as others have made it out to be?  Um, no.  Not even close.

Kepple begins by saying that times have changed and that the public doesn't have that blind love of prosecutors and law enforcement that they did back in the 1980s.  Is he lamenting?  I don't know.  Probably.  Who cares?  He then cites reasons that there may have been a change in attitudes from then to now.

He talks about how prisons were built and people got locked up.  People began to feel safer.  Fighting crime was no longer a priority in their minds.  He does cite the fact that formerly supportive business groups now regard the District Attorneys' Offices across the State as just another part of "big government" and aren't as supportive as they used to be.  Again, is he "lamenting"?  Who cares?

He cites the Pedro Oregon case, but he isn't applauding anyone.  He is simply pointing out that prosecutors have to make decisions that are often wildly unpopular in the public.

But after this is where Kepple's speech gets really misconstrued by Big Jolly.  Kepple readily acknowledges that prosecutors have not helped their own public perception by the way they've reacted to change.  He cites Mike Nifong and "Nifong Charlie" Sebesta for their over-aggressive and unethical prosecutions.  He talks about the Michael Morton case and Ken Anderson and John Bradley.  He acknowledges that John Bradley was his friend, but points out that Bradley's antics cost him his job in the primary in an extremely pro-prosecution county.

Does he call Michael Morton "lucky" because he got retesting done which ultimately freed him?  Yes, he absolutely does, but he doesn't do it with sarcasm.  He points out that many prosecutors have been opposing retesting of DNA and that fortunately Morton got his done and was exonerated.  He wasn't belittling that by any stretch of the imagination.  He stated that his hope is that Mr. Morton will come speak to TDCAA in the future about what happens when exculpatory material is withheld.

He does talk about how in sports, incidents of cheating are often forgiving, but his point is to show that this type of mentality does not work in prosecutions.  Prosecutors have a higher standard.  There should be no fudging.  There should be no cheating.  The example he gives of Billy Jack is of the prosecutor who wins their case with the material they are given and don't have to do anything sneaky to succeed.

Maybe I missed it, but I didn't see Kepple telling any of the prosecutors anything other than to do their jobs fairly and to be proud of the work they did.  He told them people are watching the job they are doing so they better do it right and they had better do it ethically.

Isn't that kind of what the Defense Bar has been wanting them to do since, I don't know, the beginning of the Legal System?

As for the "Bunker Mentality" and thinking that other people are out to get them, one of the comments on Grits' post may have provided some insight into why prosecutors feel that way.  An anonymous poster wrote the following information, referencing the murder of Kaufman County prosecutor, Mark Hasse:

That was over 48 hours ago, and (as of this writing) there hasn't been one single comment even arguing with that poster's logic.

To me, that's a hell of a lot more offensive than anything said during the Ethics Training Seminar.

Monday, February 25, 2013

The Inheritance - UPDATED

UPDATE:  Since the writing of this post, I have been informed that the District Attorney's Office has recused themselves from the Chiofalo cases.

Grits for Breakfast recently reported that when newly-elected Williamson County District Attorney Jana Duty took over her new position from outgoing D.A. John Bradley, she found a welcoming gift in her desk drawer of a headless corral snake.  This idea of a joke was clearly unprofessional, juvenile and mean-spirited; however, when considering the welcoming gifts provided during the Harris County District Attorney transition, it may pale in comparison.

When Mike Anderson took over for Pat Lykos on January 1st, he knew that he had a long road ahead of him.  The prosecutors' morale was down after four years of working under Lykos, Jim Leitner and Roger Bridgwater.  The Office's relationship with county-wide law enforcement agencies was strained.  The budget and the Office's Asset Forfeiture fund had been radically depleted.

All of this were things that Anderson knew he would be inheriting when he took the helm.  What he had not anticipated, however, were some of the scandals that had occurred under Lykos' Administration that suddenly were revealed under his tenure.

None of these scandals are more prominent than the FBI's arrest of former-Harris County D.A. Investigator Lonnie Blevins and the investigation into Blevins' partner, Dustin Deutsch for allegations of stealing high dollar evidence in a pending criminal case.

For those of you have somehow missed the story, Blevins and Deutsch are former partners with Harris County Fire Marshal's Office, who were hired to be D.A. investigators by Lykos at the beginning of 2012.  Prior to being hired by the D.A.'s Office, they had served in a liason-type capacity with the Office.  Both men were assigned to the Special Crimes Division, where they worked in Major Fraud.

In the vast majority of the investigator assignments with the D.A.'s Office, an investigator is very much a utility player in the course of day-to-day operations.  They hunt down witnesses on upcoming cases for trials.  They pick up evidence.  They accompany prosecutors any time the prosecutor has to go out in the field.

Being an investigator in Major Fraud, however, is a much more pro-active assignment.  Investigators like Deutsch and Blevins are routinely the police officers in charge of actually investigating allegations of criminal wrong-doing.  They draft search warrants.  They interview all the involved witnesses.  They collect the evidence.

Most importantly, they are the Affiants when charges are filed.

The D.A. Investigators for the Major Fraud division of Special Crimes file the vast majority of the cases that Division will handle, which makes the recent investigation into Blevins and Deutsch crippling.

Blevins was arrested for stealing (and subsequently selling) a large amount of valuable collectible comic books.  The problem was that these comic books were also evidence in the high-profile case against Anthony Chiofalo and his wife, Susan.  The bigger problem was that the investigating police officer who actually filed the charges against the Chiofalos was Blevins' partner, Dustin Deutsch.


Let's just take a moment and see how this case plays out in trial.

A prosecutor has to put on Deutsch as a witness to testify about the wrong-doings of the Chiofalos.  Deutsch testifies passionately about how those terrible people stole all of that money.  The prosecutor then passes the witness to the defense attorney who asks Deutsch about how much money and collectibles he and Blevins stole as well.

See the problem here?

The fact that Deutsch and Blevins are under investigation isn't just relevant to the Chiofalo cases.  Theft is a crime of moral turpitude and it calls into question every case they ever touched.  There is a big difference from being a D.A. investigator who served a subpoena on a case, and being the one who actually filed the case, itself.  Their level of involvement in all of those Major Fraud cases calls every last one of the cases into jeopardy.

Additionally, as a friend of mine pointed out, think about all of the cases that Deutsch and Blevins handled as Arson investigators with the Fire Marshal's Office.  How easy would it be to walk through a burned up house and see an expensive watch, or even cash, laying around and steal it -- only to put in your report that all valuables had burned up in the fire?

The damage from the Blevins and Deutsch incident will affect not just pending cases, but potentially every one that they ever handled.

The District Attorney's Office did the right thing a few weeks ago when they said they were "freezing" 125 active cases handled by the Blevins and Deutsch.

But that's not enough.

Anthony Chiofalo's attorney, Paul Doyle, has called upon the Office to recuse itself from his client's prosecution, and he is absolutely right to ask for that.  There is too much involvement from Office personnel that jeopardizes the integrity of the case.  It is also worth noting that while the D.A.'s Office has "frozen" these cases, many of the defendants are still sitting in jail waiting for their cases to be "unfrozen" -- including Anthony Chiofalo.

Recently, the District Attorney's Office recused itself from handling the cases of any officers charged in the Chad Holley beating.  The reason given for that recusal was that Devon Anderson, the wife of District Attorney Mike Anderson, had represented an officer involved (but not charged) with the beating.

I agree that the Office's self-recusal was appropriate in the Holley case.  However, if it was appropriate in that case, then it is absolutely appropriate in the Chiofalo cases.  Quite frankly, at this point, the District Attorney's Office probably needs to recuse itself from any case handled by Blevins and Deutsch.  It just looks bad, otherwise.

NOTE:  As an interesting side note, Lonnie Blevins has hired Dick DeGuerin to represent him on his Federal case.  Dick is a great (and expensive) defense attorney.  Mr. Blevins dealt with Dick before on the highly publicized arson case of then-Texas Supreme Court Justice David Medina.

The bad acts allegedly committed by Deutsch and Blevins did not occur during the Anderson Administration and they don't reflect on it, either.  That being said, how this Administration handles the fallout from this scandal absolutely reflects on them.

They inherited this problem, but they can very easily bypass their inheritance by simply recusing themselves from further involvement.

I don't understand why they wouldn't want to.

Tuesday, February 19, 2013

REMINDER: Judge Kristin Guiney's Investiture Thursday

Just a quick reminder that the Investiture for Judge Kristin Guiney will be on Thursday, February 21st at 12:00 in the Ceremonial Courtroom on the 20th Floor.

There will be a reception following the ceremony in the 179th District Courtroom.

All are invited to attend!

The DAO vs. Defense Bar Softball Game

When Mike Anderson came on Reasonable Doubt shortly after winning the election in November, one of the things he stated he would like to do was to boost the spirit of collegiality between the prosecutors of his Office and the Defense Bar.  One of his ideas was to get a softball game going between prosecutors and defense attorneys.

HCCLA has responded to the challenge and a DA vs. Defense Attorney softball game is now being planned under the supervision of Rick Detoto.

The time and place of the game has yet to be determined, but Rick is starting to get a roster together.  All interested members of the Defense Bar should contact him at

I haven't heard who is handling the recruiting on the D.A. side, but I will let you know as soon as I hear.

Saturday, February 16, 2013

Mark Your Calendars

There are a couple of upcoming social events coming up from within the D.A.'s Office that I've been asked to make you guys aware of.

On Thursday, February, February 21st at 5:01 p.m., there will be a D.A. Office Reunion Happy Hour for current and former Harris County Prosecutors on the second floor of Treebeard's on Market Square.

The following week, on Thursday, February 28th at 5:01 p.m., there will be a Retirement/Going-Away Party for the legendary Loretta Smith.  Momma Lo' is retiring after 17.5 years at the District Attorney's Office, where she has been the Administrative Assistant for the 209th District Court prosecutors ever since I can remember.  I'll be writing more about her later!

Loretta's party will be at Gloria's (formerly Ruby Tequila's) located at 2616 Louisiana, Houston, TX 77006.  Those interested in making a donation/contribution to party expenses can contact Tammy Ratley.

Friday, February 15, 2013

Katherine Cabaniss named 248th District Court Judge

I was excited to hear yesterday afternoon that my friend and former chief Katherine Cabaniss has been named by Governor Perry to replace Joan Campbell as the new Judge of the 248th District Court.

I had the opportunity to work for Katherine when she was my chief in the 174th District Court under Judge George Godwin.  Those were some of my favorite days of my career at the D.A.'s Office.  Of all the chiefs I worked for, she was one of my favorites (if not THE favorite).

Katherine was always the picture of poise and professionalism as a prosecutor.  She fought fiercely for her cases, but would look into any claim a defense attorney brought to her attention.  She was compassionate and kind when the case called for it, but could be tougher than nails when that was called for as well.  Regardless of the case she was handling, she treated everyone that she talked to with respect.

On a personal note, Katherine was my chief when I was expecting the birth of my son.  She was like having a big sister during that time.  She was so supportive and excited for everything going on in my personal life.  When she moved out of the court we remained good friends, and I was sad when she told me she was leaving the Office for CrimeStoppers.

Over the past several years, Katherine has worked tirelessly at Crime Stoppers -- coordinating events and raising money for that organization.  I have no doubt that they will miss her very much over there.

But Katherine never got so busy that she wouldn't make time for an old friend.

I had no idea that Katherine was in the running for the 248th Bench, so I was just as shocked as I was happy when I heard the good news yesterday.

She's going to make a fantastic judge who will rule fairly, compassionately, and intelligently.

And hopefully, she'll still have time for lunch with an old friend from time to time, too.

Thursday, February 14, 2013

Signs Your Old Division Chief Doesn't Want to Be Seen with You

I decided this week to invite my old Division Chief to lunch.  I've mentioned him on the blog before but to protect his identity, I've given him the codename of Greg Couldhart.  I referenced him here back in 2008 as the "Play It Off Guy" in an addendum to my all-time favorite post: Stupid Elevator People.

So, I shoot him a text message, inviting him to lunch.  He accepts and we decide on a place to meet the following day after I get out of court.  NOTE:  If it isn't already apparent, my writing is in blue and Goodhart's Couldhart's is in white.

Please note the meeting point that he suggests.

The following morning, I confirm lunch plans with him.

To which he replies:

I'm starting to think he doesn't want me to swing by his office.  

I decide to firm up the time, and he replies with:

At this point, I've begun to develop a complex, so I decide to mess with him.  This attempt goes right over his head.

Finally, I just give up.

I did have to fire off one last parting shot to him, however, when it came time to meet ON ONE.

Tuesday, February 12, 2013

Back in the Saddle Again

I got a phone call from a friend of mine last night who asked me if the FCC had shut down my blog yet for being too boring.  I can't say that I fault him much for his question.

I was in trial for the better part of last week, and we had picked a jury the Thursday before that.  I'm not saying that being in trial monopolizes all of my time, but it does seem to quash any desire that I have to write anything on the blog.

As it always seems, whenever I don't have the ability to write something, a ton of stories that I want to write about pop up.

I was in the middle of jury selection when I was informed about the murder of Kaufman County prosecutor Mark Hasse.  I got several text messages and e-mails asking me why I hadn't posted anything on him.  Please know that it wasn't indifference.  I honestly don't know what to say.
Obviously any time a public servant is killed in the line of duty -- whether it be a police officer, a fireman, a prosecutor or a teacher -- it sends shockwaves through the community.  When you happen to hold the same occupation as the person killed, it becomes all the more sobering.  I didn't know Mark Hasse, but he sounded like a brave prosecutor.  It becomes a very frightening world when public servants aren't killed just in the line of duty, but because of the line of duty that they have chosen as a profession.

My thoughts and prayers are with his family and those who knew Mr. Hasse from the Dallas County District Attorney's Office and the Kaufman County District Attorney's Office.  I hope those responsible for his death are brought to Justice.

The other topics that I've been wanting to write about can wait.  I will get to them soon, hopefully.

If the FCC doesn't shut me down first . . .

Thursday, February 7, 2013

Tonight's Reasonable Doubt (2/7/13)

Please join me and our host Todd Dupont for tonight's Reasonable Doubt with special guest Carmen Roe.  Carmen was scheduled to be on a few weeks ago but we had a last minute change of plans, so please tune in tonight at 8:00 p.m.

As always, you can catch us live streaming by clicking here.

Wednesday, February 6, 2013

Memorial Plaque Ceremony

Tomorrow (Thursday, Ferbruary 7th) there will be a ceremony at 11:00 a.m. on the 7th Floor Trial Ready Room of the CJC honoring those members of the Harris County Defense Bar who have passed away over the past year.

Those who will be remembered with a ceremonial plaque are Michael Barrow, Rayford Carter, Suzie Chambliss,  Fred Heacock, Claude Hippard, Bennie House, Travis Johnson, Jim Lindeman, Michael Mapes, Ray Montgomery, John V. O'Sullivan, Charlie Portz,  Thomas Preston and Jim Steele.

HCCLA President Chris Tritico and President-Elect Todd Dupont will be speaking, along Robb Fickman and the Honorable Jay Karahan.  Refreshments will be served afterwards and all are invited to attend.

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 ...