A Specific Intent to Kill

I was a 7th grader in Bryan, Texas when I learned a fellow classmate had been killed by a drunk driver.  I didn't know the boy who was killed personally, but I had seen him around school for years.   A female student at A&M had been celebrating the end of finals by drinking all afternoon when she collided with him and his bicycle.

When I read in the newspaper that the driver had been charged with Intoxicated Manslaughter, I was one indignant 7th grader.  It sure seemed like murder to me.  I didn't like to hear the word "accident," since it was no accident that she had gotten drunk and killed a kid.

I was 12 years old back then, so I suppose I can be excused for not understanding the criminal charging process and how critical the levels of intent are when making those types of decision.  In law school, aspiring lawyers are taught the main levels of intent are Intentionally, Knowingly, Recklessly, and Negligently.  The type of crime a person is charged with is often determined by what he meant to do and those four levels are the ones used to describe that intention.

If I had understood the law when I was in 7th grade, I would have known that the actions of that female student were considered reckless.  She had become intoxicated and decided to willfully disregard the potential dangers of driving while intoxicated.  Her recklessness led to a death that she did not intend to happen.  That's why it wasn't a murder.

Generally, murder is a specific intent type of crime.  If you are being careless with a gun and it goes off and kills someone, that would most likely be a Criminally Negligent Homicide.  If you were playing around with a loaded gun and it went off and killed someone, you would probably be looking at a Manslaughter charge for that reckless behavior.

However, if you take a gun and point it at someone and shoot them and they die, you are going to have a hard time arguing that it wasn't intentional and knowing conduct.  That type of behavior will get you a murder charge.  If you intentionally and knowingly do something that is intended to cause Serious Bodily Injury (for example, shoot somebody in the leg) and that results in a death, that can be filed as a murder, too.

I wrote this post back in 2011 about the Jessica Tata case, which explained the concept of Felony Murder.  Felony Murder allows the State of Texas to charge you with a murder, even if you did not intend to kill someone, if that death resulted from you committing another felony.  The classic example being the guy who is speeding away in a stolen car and unintentionally runs over and kills somebody.

The reason I'm giving you this Law School 101 tutorial is because, for the life of me, I cannot understand the charging decision coming out of the Travis County District Attorney's Office over the Rashad Owens case.

Most of you are probably familiar now with the tragic scene alleged to have been caused during Austin's South by Southwest Festival.  Owens is accused of being intoxicated and fleeing from the police when he plowed into an unsuspecting crowd of festival attendees.  Two were killed and many more were injured.  Everything about the case illustrates a classic example of two counts of Felony Murder and/or Intoxication Manslaughter.

However, the Travis County Sheriff immediately announced he was seeking two counts of Capital Murder on Owens.  Surprisingly, the Travis County District Attorney's Office agreed.

Here's the legal problem with that.

Capital Murder is the highest type of crime there is on a State level in Texas.  If convicted of it, there are only two possible sentences a person can face -- Life in Prison Without the Possibility of Parole (or, as we call it "LWOP") or the Death Penalty.  Since it is the highest of all charges, there are very strict and limited conditions that can turn a "regular" murder into a Capital Murder.

A Capital Murder can occur under many circumstances.  It will be a Capital if a police officer or firefighter is killed in the line of duty.  It will be a Capital if there is a child victim.  It will be a Capital murder if the murder was committed in the course of another felony (such as aggravated robbery, sexual assault, kidnapping, or burglary).  It will be a Capital Murder if there is more than one person murdered.

However, there is one thing that must be present for any crime to be a Capital Murder, and that is the Specific Intent to Kill.

If a person is robbing a bank and then intentionally kills the teller, he has committed Capital Murder.  If a person is speeding away from a robbery and accidentally runs over someone in the process, he's just committed Felony Murder.

See the difference?

By charging Rashad Owens with Capital Murder, the powers that be are alleging that when he drove into the crowd, it was his planned hope and intention to kill someone.  They are saying that Owens wasn't just a drunken jackass running from the cops and showing a tremendous disregard for the sanctity of human life.  They are saying that he decided he specifically wanted to end the life of the people in front of him.  It was his reason for being at that moment.

That's a pretty big stretch of the imagination if you ask me.

The allegations against Owens are still tremendous, even without them being Capital charges.  Felony murder carries a punishment range of up to Life in prison.  Intoxication manslaughter can be punished by up to 20 years in prison, and the law allows for stacked sentences in cases of multiple deaths due.

Mr. Owens has a very high probability of never being set free in society again.

But that doesn't make what he did a Capital Murder.

I don't know why the Travis County District Attorney's Office elected to file Capital Murder charges where a specific intent to kill seems to be absent.  Maybe there is something about the case that I didn't see in the newspapers.  Maybe Owens sat down with police and told them, "You know, I wanted to wrap up my crime spree by killing some people, so I drove my car straight at them."

I doubt it, though.

What seems a little more likely to me is that the Travis County District Attorney's Office wanted to send a message.  A horrible crime happened that brought national attention to their jurisdiction and they wanted to file the highest possible charge they could -- regardless of whether or not they could ever prove that charge.

As a 7th grader, I think I could be excused for not understanding how the law worked.

I'm not so sure that the Travis County D.A.'s Office can be so easily excused.

Sandy Melamed

The Harris County Criminal Justice community was caught off guard today with the news that defense attorney Sandy Melamed had passed away.  Everyone that I talked to was stunned and had no idea that he had been ill.

I first met Sandy when I was a brand new Felony Two prosecutor in Judge Ted Poe's court.  I tried my first case "Two case" against Sandy and Olivia Jordan, and we all got to know each other during the trial.  During the trial, Sandy always called me "Murray the K" and was surprised that I knew who the real Murray the K was.  After the trial, both Sandy and Dan Gerson routinely greeted me by that nickname.

Sandy was a good and dedicated lawyer.  He managed a job that is often frustrating and aggravating, but never seemed to let it faze him.  He was a very gentle soul and a very kind man.  He always had a smile on his face and a kind word for everyone.  

Sandy Melamed was a very sweet man and the courthouse will be just a little darker in his absence.

How NOT to Substitute in on a Case

NOTE:  The subject of this post can thank Mark Bennett, Scott Greenfield, and Kathryn Kase for not being named in public.  They talked me out of identifying her, which I thought I should do as a public service to consumers.

In the criminal defense world, it is not unusual for clients to decide to change attorneys.  As I've mentioned before, criminal defense attorneys are very often the bearers of bad news to their clients, and those clients will sometimes believe that changing the messenger will change the news.  Court-appointed attorneys and Public Defenders are frequently "subbed out" because clients wrongfully believe that a prosecutor will be more intimidated by a "Free World Lawyer" than the one currently assigned to them.

Sometimes, clients who seek to substitute their appointed legal counsel will do their research and make a solid decision on whom they hire.  Sometimes a defendant may hire a lawyer who is a friend of the family that did a good job representing their uncle in his divorce.  Other times, they hire the cheapest lawyer they can find in the Greensheets, because even a cheap Free World Lawyer must certainly be better than a court-appointed one.

I handle both appointed and retained cases in my criminal practice.  On occasion, I'll get subbed out on my appointed cases.  Sometimes I get subbed out by great attorneys.  Sometimes, I get subbed out by . . . well, not-so-great attorneys.

The procedure for substituting attorneys is very simple.  I will get a phone call from the incoming attorney who lets me know that my client (or my client's family) has retained them.  As a matter of course, they will ask for my signature on a Motion to Substitute Counsel, and I will tell them to feel free to sign my name with my permission.  I then ask them to have my former client send me an authorization in writing and I will turn over the client file to the new attorney.  The new attorney then submits the Motion to Substitute to the Court, and everyone is happy.

Some attorneys in Harris County, however, focus more on taking money from unsuspecting clients and then not doing the job they were hired for.

Recently, I had a client who retained a young lady to substitute in for me on a criminal case that was already set for trial.  Judges, generally, are not adverse to letting a lawyer sub in after the case is set for trial, as long as the new attorney will be ready on trial day and the substitution isn't for purposes of delay.

In this instance, trial was still a month and a half away, so the new lawyer had plenty of time to get ready on this relatively uncomplicated case.  She called me and told me she was subbing in for me.  I told her she was welcome to sign my name on the Motion to Substitute.  She asked for my file and I told her I would gladly give it to her once I got written permission from the client.  She said she would get it to me A.S.A.P.

A couple of weeks went by and trial grew closer.  About three weeks out, I received written permission from client to give the file to the new attorney.  About five minutes after receiving the written permission, the attorney called me.

"Hi Murray," she said.  "Did you get the e-mail with [client's] permission to give me the file?"

"Yes," I said.  "I'm out of state right now, but I will be back Wednesday and I'll get it to you."

"That will be fine."

"You did file the Motion to Substitute with the Court, right?" I asked, as an afterthought.

"No.  Not yet."

"Um, okay.  Well, until you file the Motion to Substitute, I'm still his attorney.  Obviously, I can't give you the file if I'm still his lawyer.  I'll need it for trial."

"Okay," she said.  "I'll take care of that this week."

So, I get back from out-of-state and get another phone call from her.

"The judge wasn't in, so I couldn't sign on to the case," she told me.  "Can you meet me in court on Monday so we can both sign off on the case?"

At this point, we were two weeks away from trial.  About a month of her time had been squandered by not getting the Motion to Substitute in, but she still had time to prepare.  I told her that I didn't have court on Monday, but if she called me, I would come in.

Monday came and went without a phone call.

On Tuesday, I dropped by the Court to inquire about what was going on.  The Judge had no idea what I was talking about.  I called the attorney.  No answer.  No return call.  I called again.  No return call.

The following week, I dropped by the Court again and was told that the lawyer had finally dropped by.  At this point, trial was one week away.  The Coordinator said that the new lawyer had come in and told the court that she was substituting in and would be announcing "Not Ready" for trial the following week.  The Judge told her that she was welcome to to substitute in, but she would have to be ready for trial on Monday if she were going to do so.

The new lawyer did not bother to call and let me know any of this.  I tried to call her.  No return call.  I called again.  No return call.

At this point, things are complicated.  A person charged with a crime is entitled to hire whomever he wishes to represent him.  This client wished to have the new attorney and not me.  This client's girlfriend had paid the new attorney.  Trial was in five days and there seemed to be no answer over whether or not the new lawyer was going to show up and announce "ready."

I called the attorney again.  No return call.  I called the client's girlfriend who said that she had talked to the new attorney the day before.  She said that the new attorney had informed her that she would be in court on trial day, but wouldn't be ready because I had refused to give her the client's file.  I asked the client's girlfriend to call the new attorney again, since the new attorney was clearly not returning any of my phone calls.  The girlfriend called.  No answer and no return call.

Ultimately, I had the client brought to court a day early so that everyone could figure out just what was going to happen on trial day.  Understandably, he was not a happy camper with anyone involved.  Without going into details, the case was resolved on that day.

The new attorney never subbed in.  The new attorney never did any work on the case.  The new attorney did nothing but create chaos in my client's representation.

Other than collecting a fee, of course.

Services for Jon Munier

The funeral for our friend, Jon Munier, will be on Tuesday, March 11th at 11:00 a.m. at Trinity Lutheran Church.  It is located at the intersection of Houston Avenue and Washington Avenue.

Jon Munier

As I mentioned a few weeks ago, Jon Munier had been fighting cancer for the past year or so and had recently entered hospice care.

I'm very sad to say that he passed away this morning.

For those of you who never had the honor of meeting Jon, I don't know if I could find the words to adequately describe how loved and respected he was in the Criminal Justice world.  He was a big guy with long white hair and a beard.  Everything about his personality conveyed that he was the type of guy who didn't take any crap off anybody.

But he was a nice man.  Incredibly nice.  As blunt and assertive as he could be, he was also the first guy to call you up and tell you that you did a good job with something.  He was the first to lend a helping hand.  He'd also let you know if he just respected the way you handled something.

Having Jon Munier tell me he was proud of the way I did something is a moment that I will always remember and appreciate.  His words carried a large amount of weight with me.

I've always had a large amount of respect for the person who lets his actions speak -- not just louder than, but instead of -- his words.  Jon embodied that.  I watched him in trial and although he showed nothing but respect for the Court, he clearly had no fear of it.  He was completely himself in front of the jury and it made him an outstanding lawyer.

I had a conversation with Chris Downey last week and he told me that Jon once told him that defense attorneys were, by nature, adrenaline junkies.  That made me laugh, because it seemed to explain so much about Jon.  He liked to do battle.  

He lived life at full-throttle and that was no more apparent than how much he was madly in love with his wife, Marie.  He was crazy about her and everyone in the courthouse knew it.  He had a great sense of humor and comfort in his marriage that should serve as an example to some of the rest of us who aren't quite as good at that particular institution.

Jon was larger than life and it is hard to fathom his passing.

Although there was only one, this world could use a lot more people like Jon Munier.

Eli Uresti

I learned today (via Johnny Bonds) that former Harris County D.A. Investigator and HPD Homicide Investigator Eli Uresti passed away over the weekend.

I first heard of Eli when I read The Cop Who Wouldn't Quit, where he was Johnny's partner at the onset of the investigation profiled in the book.  Although Johnny was obviously the central figure in the story, I was very familiar with Eli (as well as Dan McAnulty) when I arrived at the D.A.'s Office back in 1999.

Eli was an investigator in the Misdemeanor when I first started and he was one of the first people I got to know there.  It was a cool feeling to get to work alongside someone who you had read about when you were a kid.  He was a very nice man who seemed pretty bemused at all of young rookie prosecutors who thought we knew everything there was to know about criminal law.

I liked Eli very much and I'm sorry to hear of his passing.