Snow Day!

Most attorneys (and hopefully their clients) know by now the county buildings, including the Harris County Criminal Justice Center, will be closed tomorrow (1/28/14) for the anticipated ice storm coming our way.

It is funny to read the comments from my attorney friends on Facebook.  The responses are eerily similar to the ones all my friends and I had when school was cancelled for a snow day when I was in 6th grade.

UPDATED -- Tonight's Reasonable Doubt (1/23/14)

UPDATE -- Tonight's Reasonable Doubt has been cancelled due to our guest getting bogged down in the weather.  We hope to have Mr. Mims on the show soon.


Please tune in to tonight's Reasonable Doubt at 8:00 p.m. with me, and your host Todd Dupont.

Our guest will be Texas Criminal Defense Lawyers Association president Bobby Mims.

You can watch it live streaming by clicking here.

Judge Brad Hart's Take on the Differentiated Docket System

Editor's Note:  When I started this blog six years ago, I was a prosecutor who wanted to respond to criticism of Harris County D.A.'s Office during the Chuck Rosenthal scandal.  Over the years, as I've switched to Criminal Defense and the blog has evolved, my hope has been that the blog would become a forum where prosecutors and defense attorneys and anyone else in the CJC could share opinions and/or argue with each other without fear of repercussions for speaking out.   Most judges usually refrain from commenting (at least publicly), but I'm always glad when they offer their input.  Judge Hart has commented here before and I was glad to see him be willing to add this commentary about the Differentiated Docket System.  I wish more judges would enter the dialogue here, as well.  

Here's what Judge Hart had to say:

Alright, I'll throw in a few comments or 10. First, I would like to say that I appreciate HCCLA taking comments on the system. I hope that people will take Murray up on his offer, either here or offline. I think those of us trying out this system are more than willing to listen to ideas and comments. I know I am more than willing to listen to any and all constructive comments, ideas, etc. Just saying something sucks, though, with nothing else much to add, doesn't get as far. For years people have complained about this or that about the dockets. I can't even begin to count the number of times I've heard people say, "Something needs to be done." Well, whether you think it is good or bad right now, we are at least trying to do something. I realize that some people are not going to like it just because it is new/different and some people will never give it a chance because of that fact alone. Additionally, this is not something we just made up. We met with the HCCLA Board, the PD's Office and the DA's Office at least a couple of times before this. This particular system has been implemented in several other jurisdictions with much success, even after much initial complaint.  Several of the judges (I was not one of them) went to Ft. Worth to observe this system there. They talked with the judges and attorneys, both sides, and came back impressed, from my understanding, with how well it worked. Having said that, so far, there are several things I like about it, some things I don't and  a few things I am just not sold on. But since it is new and since it is a process, I try to keep an open mind about it, listen to constructive comments and ideas to improve and give it a chance. It is going to take more than a few months for a final verdict. It will also need adjustments, I'm sure, here and there. We have already made a few based on our observations and constructive comments from some.  

What really drives me to comment, though, are what I see as exaggerations and/or misconceptions out there in the public. Let me also say, I am speaking ONLY for me, not any of the other courts. Plus, I don't see the other DCM courts function. I only see what is going on in the 230th. 

Let me say this about ADAs getting their work done. If the extra office days, when they spend the whole day in their office, are not helping them get to do's done then they sure as heck are not going to get those same to do's done with only a half day in the office because the other half they were in court with a full docket. And the comment about ADAs needing to know their cases, I agree, yes they do. The comment about each ADA having 60+ cases a day being too much (easy enough?), not sure what you mean. M-Th we only have the PACA and new arrest MADJs, so maybe 10 or so cases a day that the chief alone comes to take care of. Not near 60 a day each. On my Friday docket day (Super Docket Friday we affectionately call it) I guess it is possible each ADA has 60 cases each but that is a far cry from 60+ each day each. But realistically, I seriously doubt each one has 60+ cases to be familiar with on Super Docket Friday.

Frankly, several of the comments people have made here, if accurate (and by that I mean not guesses or wild exaggerations) I agree with. IF there are 250 cases on a single docket, that is certainly WAY too many, in my opinion. My thought is 120 is about the max it should be. With the exception of the recent holidays, we try to keep it at about 90. We had 88 last Friday and currently sit at 65 for next Friday. That is certainly workable. Also, dockets are staggered 9,10,11. This is something I've heard people wishing about for years. But getting attorneys to actually show up and take care of business at their scheduled time is like pulling teeth. As for the crowd in the audience, I tell the audience almost every week that if your reset says 10 or 11, I do not expect them there until then. But the bonding companies tell them to be there at 8:30 no matter what. So, it still gets crowded. I understand what the bondsmen's issue is but still if the court says 11, 11 is the time to be there. The bailiffs, CLO and clerks not having help is not a good thing. My understanding though is there would be extras on docket days. I know we have extras of each on our Super Docket Friday. I agree standing in line to see everyone is not fun nor productive. Regarding the lines to see me and the coordinator, after a month or 2, we made adjustments, after some people came to me with constructive thoughts that have significantly cut down on both to the point that I am not sure you can even call it a line any more. That's half of the "4 lines" right there. 

Now for the line to talk to the ADAs, this has been and continues to be a problem in my view.  "Forget having any meaningful discussion about your case." "Might as well reset and deal with it out of court." Umm, EXACTLY! That is exactly what you are supposed to be doing under this system. This is exactly the way it works in those other jurisdictions. Do your work, investigations, discussions, requests, to do's, plea negotiations, meetings, etc. OUTSIDE of courtroom. In court should be to update the court, make sure we are progressing to whatever resolution we need to progress to, get the judges input, ruling if needed, etc. This does not happen. Even this past week, 3 different attorneys came by to see the #2 to talk about cases not on the docket, thinking it was a regular docket. We told them she was in her office and would be happy to talk to them down there. GO MEET WITH HER.  Did they do it? Nope. On Super Docket Friday, I've heard attorneys say that the ADA doesn't have time to talk to me. Every time I hear it, I ask them if they even attempted to talk to them before today. The answer is always no. 

For a while, I even took to emailing EVERY attorney, ADA and Defense, on every single case at a certain point in the settings, so they would have each other's emails, 7-10 days prior to their next setting asking them to please have to do's done and  discuss everything outside of court before the next setting to make things go more smoothly. Out of hundreds of emails I sent,  maybe 7 times people told me they actually did it. I have to say, because each week I would ask, it was usually the State who said they called or emailed the Defense and the Defense would admit they never responded, even after admitting they got my email.  But they would then complain about having to wait to talk to the ADA in court. I became so frustrated with spending a lot of time sending those emails and then being told that they were basically ignoring them that I stopped sending them. I have heard from several defense attorneys that they can't get ADAs in other courts to respond to them. I understand and don't doubt that happens. Again, I only know about my court though. Now, every single time the Defense has told me that they have done this or that and the State has not done what it was supposed to do, I have let the State have it. They are indeed held accountable for timely production of records, reports, etc. When the State tells me they will have something done by a certain date, it dang well better be done or they are going to end up with any non-exculpatory evidence excluded. Get it done or lose it. It has generally motivated them to stay on the ball. I've noticed though that when I have gotten on the Defense for not doing what they were supposed to, well, frankly they just didn't care. I've had people tell me that they just basically didn't feel like getting it done, or it doesn't matter to them. "Judge, if you give me a month I will provide XYZ to the State so we can resolve this." A month later, "Judge I didn't do it. My bad. Can I have one more reset to get it done." Heard that 4 times Friday. But Lord forbid you don't do something for them on time. In other words, I understand frustration.

As I mentioned above, another issue is that attorneys refuse to show up for the docket time that THEY picked. I have 9, 10, 11 am dockets. Pleas are set at 9 but otherwise attorneys pick which docket they want to be on. I get out there at 8:30 for anyone who wants to come early. Last Friday was a typical example of every Friday docket for the last 3 months. I came out at 8:30. With a 9am and 10 am docket, including pleas, it was 10:30 before I took a single plea or had someone approach me with something I needed to get involved with. But at 11, everyone shows up and wants attention all at once. Imagine if people came at the time they picked. Might help with the line situation. Just saying. It happens every week though. I point it out to people and next week it's the same thing. I'm sitting there from 8:30 to 10:30 asking the clerk if we have any prospects of work coming our way. That is frustrating also because the coordinator, CLO, clerks and bailiffs are ready to rock and roll by 9 and when nothing happens until between 11 & 1 they are still there way after the attorneys leave, doing things that could and should have been done first thing. Look, stuff happens to make people run late, I get that. People get stuck in other courts, I get that. But if you pick your docket time and you NEVER show up at your time and then complain because you have to wait, I just don't have as much sympathy for you. If you know you have a plea at 9 in the 230th, or wherever, come get it taken care of then on to the rest of your day because, so far, there is usually no line for anyone and ZERO happening then. On rare occasion I've seen attorneys come a day or 2 ahead of time, get plea papers done ahead of time, then have the plea done out of there by 9:15. Plus get paid for the out of court work. By rare, I mean that novel but seemingly awesome idea has happened twice.

As for the length of the resets, the lengths are based on reasonable time frames that cases should move along and are different for different types and complexity of cases. Generally 30 days for the first setting, 60 days for the second, and on out from there until trial setting. Really only one setting that might be less than a month. Again, the idea is to get to an appropriate resolution, whatever that may be, in a reasonable time frame. That is shorter for some types of cases and longer for others. It depends.  

I can't say it enough. I am certainly happy to listen to constructive ideas and make adjustments to help. This system has yet to prevent me from making a change or exception where it is appropriate. Having said that, it is my suggestion that people do their part as well. At least give it a shot. Work on and discuss the cases with the other side outside of court and show up on time for the docket time you pick. Try that out and see if works any better for you. If it doesn't, let me know. Like I said, there are things I like about it, things I don't and things I'm not sure about yet. 

One more thing, since Chris (Downey) brought it up and I have been called out on this in the past -- E-filing was going on in the 230th before I got there. When I got there, I kept it going. I was told that at some point it was going to be mandated by the CCA for all criminal courts in Texas. It is my understanding that it has in fact happened. E-filing will become mandatory for all criminal cases in Jan. 2016. I know it is a ways off but it is coming. So, folks need to start figuring it out. People complain that I will not let the clerks take hard copies. Well, first off, there are signs in the court saying we are an e-file court. We are listed on the district courts' website as an e-file court. If there is any way else to inform people, I am happy to do that. Additionally, despite the fact that yes, I make the State only e-file, I have yet to not take a hard copy from the defense when they "needed" to file it right then or need a signature right then. If something has come up in trial, or whenever, I let people do what they need to do. If they need help, I do my best to help them. If the clerk's or sheriff's office says they can't, I say not acceptable. But since this place is like a high school gossip ring, everyone thinks I refuse to allow any hard copy filing. If you try to file something and the clerk says it needs to be e-filed, if there is an issue with that, all you have to do is come talk to me. No one gets in trouble and everyone usually ends up in one piece. To me, though, being able to sit in your office and e-file a motion for discovery, or whatever, as well as print out certified copies of signed motions is a lot easier that printing off copies and bringing them down to the CJC. Maybe that is just me. Heck, we even finally got it set up were we don't have to print them for my signature. It can all be done online. 

Alright, I've commented enough. Not trying to offend anyone or discount the fact that people are unhappy at the moment about the DCM courts. I'm just giving my view from the elevated seating in the 230th. I've seen the lines and the bottlenecks. We've tried to adjust things to help. I am willing to listen to constructive ideas, etc. that might help. My questions are: have you tried doing things the way it was designed? If so, and it is not any better, will you come tell me why? If you haven't tried it, will you try? 

Thanks for listening.

Brad Hart

Anthony Graves and Charles Sebesta

Most people who follow criminal law are familiar with the names Michael Morton and Anthony Graves.

Michael Morton was the man who was wrongfully convicted of Murder based on prosecutorial misconduct of then-prosecutor Ken Anderson.  He served 25 years in prison.

Anthony Graves was the man who was wrongfully convicted of Capital Murder based on prosecutorial misconduct by then-District Attorney Charles Sebesta.  He served almost 20 years in prison, awaiting his execution date.

In the wake of Michael Morton's exoneration, the Rules of Discovery in Criminal Law have been drastically changed and Prosecutor Anderson was (insufficiently) punished with (minimal) jail time and the loss of his law license.

Charles Sebesta, however, has remained unscathed.  

For reasons unbeknownst to the rest of us, Sebesta never had to face any consequences for his prosecutorial misconduct that almost resulted in the execution of an innocent man.  He has remained defiant over his behavior, attacking both Anthony Graves and Special Prosecutor Kelly Siegler (who ultimately dismissed the charges against Graves) in full page newspaper ads.

Hopefully, Mr. Sebesta's date with Justice is coming soon.

Today, January 20th, at 3 p.m. on the Texas Southern University campus, Anthony Graves will be holding a press conference, announcing the filing of a grievance against former Burleson County Prosecutor Charles Sebesta.  

Mr. Graves will be joined by Senators Rodney Ellis and John Whitmire, as well as State Representative Senfronia Thompson.  The event is also being supported by Kathryn Kase of the Texas Defender Services, as well as attorneys Bob Bennett and Neal Manne.

In my opinion, the actions of Charles Sebesta were even worse than those of Ken Anderson.  I'm hopeful that today is the first step in making him accountable for his actions.

Cold Justice Returns

Season Two of TNT's Cold Justice, starring Kelly Siegler and Yolanda McClary premieres this Friday night at 7 p.m. Central.

Unfortunately, I didn't get to participate in Season Two's filming because of being busy with chemo and babies and court and such things.  Eric Devlin and Alicia O'Neill split duties on legal consultant this time around.

The first episode is centered around a disappearance in Altus, Oklahoma and Eric tells me it is going to be an awesome kickstart to the Season.

Make sure not to miss it!

The Docket Control Experiment

As most attorneys who practice in the Harris County Criminal Justice Center know, several of the District Courts initiated a pilot program last fall designed to reduce the amount of settings each case had within a court.  The 177th, 178th, 179th, 230th, 248th and 351st District Courts initially agreed to try the program.

The idea behind the program was that settings would be less frequent and designed to accomplish more than just a monthly check in.  The settings would also be more regimented and less flexible than the status quo most attorneys were used to.

After several months, the reviews of the program, thus far, have been mixed (to put it mildly).

The Harris County Criminal Lawyers Association is currently seeking input on what all attorneys see as the Pros and Cons of the pilot program, and HCCLA's President Todd Dupont (of the Louisiana Duponts) has asked me to help gather this input.

I'd like to hear your input, whether you are a defense attorney or a prosecutor.  I don't care if you want to e-mail off list or post your thoughts here in the comments.  I also don't care if you want to sign your name to the input or remain anonymous.  We are looking for concrete examples of things that work, don't work, or could be improved upon.

Your assistance would be appreciated.

Epilogue

I first wrote about my high school friend, Joel Morris, five and a half years ago in this post and again two years later here.  When he killed his father the following year, I wrote about it here.

The long saga came to an end in a courtroom today as he was sentenced to spend the rest of his life in prison for the murder of his father, Bob Morris.

The result is not surprising.

I had been subpoenaed by his attorney to testify, but after talking to him, he decided that I probably wouldn't be helpful to Joel's case.  He was probably correct in making that decision.

I've thought a lot about Joel this week.  I was a sophomore in high school when I first met him.  We had our ups and downs over the years but he remained one of the most intensely loyal friends I've ever had.  If I had not watched him mentally deteriorate with my own eyes, it would be impossible to reconcile the Joel I knew with the person who murdered his father.

I loved him like a brother.

Since that fateful day in April of 2011, I've wondered what I would feel when a jury ultimately handed down a verdict on Joel.

I was surprised to find that the feeling was largely relief.

As much as I loved him, I was scared to death of the idea of ever seeing him out on the street again.

Reasonable Doubt Returns

Hello and belated Happy New Year!  Clearly writing more on the blog was not one of my New Year's resolutions!  I'm hoping that once the enormous 10-week-old boy of mine enters daycare that I might have a slight bit more free time on my hands.

In the meantime, Reasonable Doubt returns this week (Thursday, January 9th) with your hosts, Todd Dupont and me at 8:00 p.m.  Our guest this week will be the amazing trial lawyer (and one of my former law school Trial Advocacy professors) Tyrone Moncriffe.  Tyrone is an outstanding lawyer and one of my favorite people.  It is going to be a great episode.

So please join us at 8:00.  As always, you can watch live streaming on the internet by clicking here.