Ed McClees' Going Away Party

My friend and (much skinnier) stunt double, Ed McClees, is leaving the Harris County District Attorney's Office this week to join the private sector.  His departure is a huge loss to the Office.  Ed is one of the most well-liked and highly respected prosecutors they have, as well as being an outstanding trial lawyer.  He's also one of the funniest guys I know, and he seems to have more than a passing knowledge of SEC football.

The Office's loss is going to be the Defense Bar's gain.

There will be a going away party for Ed on Thursday, July 30th at 5:01 p.m. at the OKRA Charity Saloon at 924 Congress Avenue.  All are invited.

The Houston Fire Department is Awesome

I was walking to my car from my office this morning when I came across two people standing over a person laying on the sidewalk.  We were at the intersection of Prairie and Fannin, which is a fairly crowded area, yet only two people seemed to have found a person sprawled out on the ground to be a reason to stop.

The man on the ground appeared to be in his mid-twenties.  He was laying on his right side, and in the fetal position.  His eyes were open, but not moving nor blinking.  Other than the fact that his rib cage was moving ever so slightly, he appeared to be quite dead.

When I walked up, one of the two people who had stopped was just getting off the phone.

"Did you call 911?"  I asked.

"Yes," he said.  "I was walking right behind him when he just went down."

I tried shaking the guy by the shoulder.  He didn't react in the slightest.  He was wearing a medical bracelet of some sort.  I looked at it, but it didn't have a name on it.  I shook the guy by the shoulder again, and he didn't move.  I could tell by his appearance that he was homeless.

I moved my finger in front of his eyes, and there was nothing.

I mean nothing.

I was glad that he was still breathing, and also (embarrassingly) relieved that I didn't know CPR.  If he hadn't been breathing, I would have been in a real moral quandary over performing CPR on the guy.  As it stood, I had pretty much used up all of my medical training.

Within a few minutes, a fire engine pulled up with a crew of three men and one woman.  They reacted swiftly and calmly.

"Oh," said one of them.  "It's him again."

"You know him?" I asked.

"Yep," he replied.  "See the bracelet?"

As one of them began unpacking their equipment, the Captain leaned over the downed man and tried to get his attention.

"Hey," he said.

I'm not trained in CPR, but I think I also said "Hey" when I was trying to wake the guy up, too.

The Captain then made a fist and started rubbing it on the downed man's chest.

The downed man started moving around like my 20 month old when I tickle him.  I'm pretty sure that he was growling, too.

They put an oxygen mask on the guy and the Captain kept doing that thing on his chest every time the man seemed to slip back out of consciousness.  Soon, they had him sitting up.

I asked another one of the firemen if I needed to stick around for any reason -- I was on my way to the jail to visit one of my misunderstood clients.  He told me "nah" and I left as the ambulance was arriving.

It wasn't that dramatic of a moment, I guess.  Fire Fighters rush into burning buildings and do heroic things on a much more epic scale quite frequently.

But seeing the confident and competent way those three men and one woman handled the situation impressed the hell out of me.

Sometimes it's the small things that serve as nice reminders that there are people out there to to help pick you up when you fall down.

No matter who you are.

That Awkward Moment . . .

. . . when you are complimenting yourself on your own blog post and forget to change your on-screen identity . . .

The Flip Side of the David Temple Findings

While much has been said about the findings of fact in the David Temple hearing, there seems to be a couple of items that haven't been fully explained by mainstream media.  Contrary to some of the early headlines by the Houston Chronicle, the findings by Judge Gist don't automatically mean that David Temple is getting a new trial.  What Gist has basically written is his evaluation of the hearing and the earlier trial as a summary to the Court of Criminal Appeals.  The Court of Criminal Appeals does have the power to overturn the case, but they also have the power to disagree with Judge Gist's findings.

It could be several months before the Court of Criminal Appeals reaches that decision.

In the meantime, Temple's attorneys, Casie Gotro and Stanley Schneider, have approached District Attorney Devon Anderson and requested that she agree that Temple should be granted bond while awaiting the Court of Criminal Appeals' decision.  Although the law does provide that the D.A.'s Office could agree to a bond during this waiting period, there is nothing that demands they do so.   Anderson declined to agree to a bond, which sent Ms. Gotro and Mr. Schneider into a screaming tizzy.  They held a press conference at Stanley's office, demanding that the District Attorney's Office recuse itself from the Temple case.

Now, I'm a little bit curious.  Did they want the D.A.'s Office to recuse itself before or only after Anderson refused to agree to a bond on Temple?  I mean, if they thought Anderson was cool enough to approach about a bond, did they only change their opinion when they didn't get their way?

And who exactly do they think would be an acceptable Special Prosecutor if they don't want Harris County?  I'm just going to go out on a limb here and guess that Gotro and Schneider want it to be a defense attorney running that prosecution.  They objected to the first couple of judges to try their hearing, so it would probably be expected that they would be pretty choosy about who they got for a prosecutor.  I would imagine that if Anderson did decide to pass the case off to, say, the Montgomery County District Attorney's Office, that Gotro and Company would pitch a fit.

But, see, here's the deal -- Defense Attorneys don't get to pick and choose who prosecutes their cases.  Trust me, if they did, there would be many prosecutors dying of loneliness because nobody wanted them on their case.  As Gotro and Schneider have now taken their case to the media via press conferences and Gotro's highly bombastic Twitter account, I still haven't seen any compelling reason why the Harris County District Attorney's Office should just hand the keys to the courthouse over to the Temple defense team.

While everyone has focused on Gist's findings as they relate to Kelly Siegler, most have failed to notice a couple of other points from the findings.  Specifically, the fact that Gist found that Temple's "newly found" star witness, Daniel Glasscock, wasn't credible.

You remember Mr. Glasscock, don't you?  I wrote about him back in 2012 in a blog post entitled "David Temple and the Dereliction of Duty."  Now, the fact that I wrote that blog post along with this one and this one earned me a little time on the stand in the Temple hearing, too.  I testified for several hours about the blog posts, my education, my marriages, and my salary for working on Cold Justice.  In that blog post, I basically accused Jim Leitner of doing whatever he could to help Dick DeGuerin get the Temple verdict overturned.

I specifically accused him of allowing then-District Attorney Investigator Steve Clappart to run a covert investigation on some "exculpatory evidence" that Clappart's friend (former Harris County Sheriff's Office Homicide Lieutenant and current Defense Attorney) John Denholm had discovered.  That newly discovered evidence came from Daniel Glasscock.  This is what I wrote in 2012:

Clappart has been shopping around a warrant for the arrest of the (then) teen for the Capital Murder of Belinda Temple.  He cites the testimony of a new witness [Glasscock] who, per the warrant, had only learned of Belinda Temple's death (which happened in 1999) only "5 or 6 months ago."  Furthermore, that "Smoking Gun" evidence that this new witness has involves him overhearing one of the three (then) teens admitting to shooting a dog during a burglary and throwing it in the closet.

Yep, you read that right.

There isn't some new confession to the murder of Belinda Temple.  There's the confession of shooting a dog that Clappart and Denholm would like to extrapolate into a Capital Murder warrant.  There are no fingerprints.  No DNA.  No confession.  Yet a licensed peace office and a former licensed peace officer would like a judge to arrest someone for Capital Murder because he stated that he once shot a dog.

Now, apparently the fact that I wrote that blog post back in 2012 really offended Ms. Gotro.  She took to the Twitter airwaves with this:

The only problem with that was that what I wrote wasn't a lie.  How do we know that?  Well, ironically, we know that thanks to everybody's favorite lovable lunatic, Don Hooper.  Don decided it would really put me in my place if he ran a transcript of my testimony, as well as the testimony of Jim Leitner's during the hearing.  I'm actually thankful to him for doing so.  If you want to read them, here they are.  Mine is pretty much just me pontificating on why I thought the way Leitner was handling the investigation was wrong.

However, Leitner confirms pretty much everything I accused him of:

•     On pages 11 & 12, he confirms that early on in the Lykos Administration, he was approached by DeGuerin and Schneider about reviewing the Temple case.  He confirms that he had the Temple files brought to his office.

•    On page 15, he acknowledges that he didn't want Roe Wilson, the head of the Writs Division, to supervise the Temple investigation.

•    On page 16 & 17, he begins talking about how Steve Clappart came to him with the "newly discovered evidence" on the Temple case.  Here's where it gets kind of funny.  Leitner then says:

"So I didn't know if somebody set me up to put something in Murray's blog or something else again, so I said "Wait a minute, Steve," and I believe it was right then and there when he in the office, I called -- I believe I called DeGuerin or I called DeGuerin's office and said, "I have just been told that there's evidence that has to be Brady evidence that exists in the Temple case.  I want you and whomever you want to be with you to come to the DA's office so we can sit down and as they line it out to me, they're lining it out to you at the same time, so nobody can ever say that I've kept anything from you that's Brady."

Um, okay.  So apparently, my blogging skills back in the day were so powerful that whenever someone spoke to Jim Leitner, he assumed it was some kind of trick that I had initiated.  Setting aside how hysterical that is, am I the only person here who finds it a little unusual that the second Clappart says a word to Leitner about a case (that Leitner just so happens to coincidentally have in his office), that the 1st Assistant of the Harris County District Attorney's Office stops EVERYTHING to call Dick DeGuerin?

•    On page 18, he acknowledges that he wanted Clappart's investigation kept quiet, so he intentionally kept it away from the Conviction Integrity Unity, who should have had jurisdiction.

•    On page 105, Leitner begins talking about how Steve Clappart had written an affidavit for an arrest warrant for an individual named Cody Ray Ellis. [NOTE:  This is where the information from Glasscock comes in.  Glasscock said he remembered a conversation from 12 years earlier where Ellis and some others had talked about breaking into a house and shooting and killing a dog."  Not a woman.  Not Belinda Temple.  A freaking dog.]

Leitner's response to Clappart's ridiculous warrant is frightening:

"I have read it and you asked me to look at that, and in my own honest opinion, if I had been a judge, I would have probably signed the warrant."[p 110 & 111]

Just so we are clear here, Leitner has just now admitted that if Clappart had brought him a warrant saying that he heard from a dude who heard it from another dude that a dude shot a dog, he would sign a warrant for CAPITAL MURDER, despite the fact that somebody else was already sitting in prison for that very same murder.

Are you freaking kidding me?  Mental note:  don't vote for Leitner for judge!

I know the Defense Bar is celebrating Gist's Findings of Facts and his recommendation for a new trial right now, but is the Defense Bar really thinking that is sufficient for a Probable Cause for a Capital Murder warrant?  I mean, seriously.  Throwing out some good old fashioned reasonable doubt on a case is one thing, but Clappart and Denholm wanted to go arrest somebody for Capital Murder!

As noted above, Gist found that Glasscock was not credible and noted, "Glasscock substantially varied the facts originally given to Trial Counsel.  In substance, Glasscock repudiated the most important details to the extent that his future credibility as a witness is significantly impaired."

I guess it's a good thing Clappart couldn't find a judge who would sign an arrest warrant on Cody Ellis, isn't it?  Turns out their star witness in that super secret investigation was full of crap.

None of that slowed Clappart and Denholm down from showing up at Gotro and Schneider's press conference though.

So, despite the press conference and Ms. Gotro's warpath on Twitter, it shouldn't really be surprising that Devon Anderson won't agree to a bond on David Temple.  From the prosecutorial perspective, they don't believe that they have the wrong guy in prison. 

At the end of the day, they believe that the person who cornered a pregnant Belinda Temple in her own closet and shot her in the head with a shotgun was her husband, David Temple.  

As much as Ms. Gotro and Mr. Schneider would like for you to believe that David Temple is the next Anthony Graves or Michael Morton, the Harris County District Attorney's Office does not agree -- nor do they have to.

As I said before, whether or not David Temple gets a new trial remains to be seen.  The Court of Criminal Appeals does not have to accept Judge Gist's findings.  If they review the record and concur with Judge Gist's findings, then he most likely will receive a new trial.

If he does get a new trial, a prosecutor with the Harris County District Attorney's Office will most likely be trying it.  Although I'm sure Ms. Gotro and Mr. Schneider would like designate their own prosecutor, they know better than to think that would ever happen.  

That's just not how the System works.

Kelly Siegler and the Temple Decision

Over the past several days, I have been contacted many times by many people -- on the blog and off the blog -- wanting to know when I was going to write something about Kelly Siegler and the David Temple decision.  I have steadfastly declined because I am entirely too biased to write anything.

Although the Criminal Justice world is currently bashing Kelly, she remains one of the best friends I've ever had in my life.  She is an altruistic friend whom I've known for eighteen years.  She's been around for some of the worst times and best times of my life.  She is truly like the big sister that I never had.

If there is anyone who thinks that I would ever turn my back on a friend who has meant that much to me and my family, they clearly should reevaluate what the meaning of friendship is.

For those of us who know and love Kelly, regardless of what anyone else is saying, it is painful to listen to the things being said about her.

I'm sure that the mere fact that I dare to say anything positive about my friend will unleash a storm of additional outrage from those who were plenty outraged to begin with.   I'm sure that my loyalty to the defense attorney profession will be called into question by those same people -- they tend to do that when they don't agree with me.

But Kelly Siegler is one of the best people I know, and nothing that her critics say about her will ever change that in my opinion.

A New Blogging Opportunity

I was recently invited by my friend, New York attorney and blogger, Scott Greenfield, to become a contributing blogger to a new project he has begun called Fault Lines.  The project incorporates several different attorneys from around the country who write about trending topics and news stories in the Criminal Justice arena.  He invited me because I'm semi-literate and can hopefully draw on my experiences from my prosecutor days for a different type of perspective.

Followers of this blog know that I don't normally comment on national news stories here, sticking to what I know best: Harris County Criminal Justice.

However, the opportunity to work with Scott on a project is too good to pass up.  He is the preeminent criminal law blogger and I'm honored to be invited.

And I'm not just saying that because he bought me a beer once at Char Bar.

So, here's my first shot at it.  I hope you'll contribute to the discussion over there.