Thursday, July 16, 2015

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.


Anonymous said...

It will be a long time before this plays out either by the CCA rejecting Gist's "Counclusions" of law or by a new trial. In the mean time Gotro and the devotees will rail against evil prosecutors real and imagined. We will also have the lawyer wannabe aka Don Hooper abusing the King's English as he prattles about nothing in his own form of pig Latin.

BTW Murray, great post.

Anonymous said...

The Temple case has given Hooper something to focus on other than his bride's setback in the Fifth Circuit. Funny that there was no mention of that ruling on Hooper's or Big Folly's blog. Hey BJP, "Truth Matters"! Lykos settled in the Culbertson case. That does not equal exoneration. The Fifth Circuit said there is enough evidence for a trial on Palmer's conduct. That is not exoneration. Oh and Don, so sorry you will have to pay lawyers like other regular people who get sued. I am sure it will not be a problem for an energy executive such as yourself.

Anonymous said...

Good post, Murray.

Like it or not, Murray hit the nail on the head here.

Anonymous said...

Murray: As usual you have presented a well written article on the criminal justice system in Harris County and specifically the Temple prosecution. Since this prosecution occurred after my departure from HCDA office I will offer no opinion on the merits of that prosecution one way or another, and particularly since I will give no credence to the media's dribble. However, as to the issue of bond for Mr. Temple unless the law has changed since my departure neither Gist could grant a bond, nor could the HCDA office agree to a bond since jurisdiction for this matter rests in the Texas Court of Criminal Appeals per TEX.CODE CRIM. PROC., art. 11.07. Gist's only function was to act as a fact-finder on the writ of habeas corpus. The HCDA office properly opposed an unlawful bond. In my opinion the Court in Austin could order a bond, however, since jurisdiction resides in that court. A final observation: when did either party have the power to reject a judge in a criminal case - that concept was rejected years ago (Lanford) - the right to do so only applied in civil cases? To modify a phrase from an Indiana Jones movie: if the state was involved in the selection of the judge though "they had chosen unwisely."

Anonymous said...

It looks like some are using your blog in a related discussion on "Off the Kuff's" blog, a local traffic court lawyer arguing that Jolly is as good a resource about the Temple case as here. LOL

Anonymous said...

Well put.

Unknown said...

If Gotro only knew (remembered?) what a friend you've been to her in the past, she would never question your friendship to Seigler. Or your continuing loyalty to her on some subjects.

And without commenting on what Seigler did or did not do (because I have not closely followed the details and was not present for any of the hearings), it is remarkable that a DA would actually assist a defense attorney when investigating the possibility of a new trial. Especially through non-regular channels. I mean, I wish they would do it more often. I wish they did it every time, in fact. But they simply do not. It could only have been done because Seigler was a political enemy, and was someone who may have run again in the next election against Lykos.

It's also funny that Gotro is linking to Hooper's blog--Hooper being the husband of Palmer, whom defense lawyers are supposed to hate.

I guess the enemy of Gotro's enemy is her friend, even when it's her enemy. Makes that righteous indignation of hers a little less... believable.

Oh Jason, you really nailed it with that one, man, hit the nail right on the head.

Yamamoto to Gotro et al said...

"I fear we have awakened a sleeping giant and filled her with a terrible resolve."

Anonymous said...

I recall a great lawyer once saying, "I think that a First Amendment without accountability for wrongdoing weakens the system as a whole, because it fosters bad reporting and poor journalism. I can make a strong case that, when I seek accountability for genuine wrongdoing, it ultimately strengthens the First Amendment.”

Anonymous said...

"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."

You might be surprised how much concern ran through the 6th floor on issues landing on your blog. Leitner, some Lykos, and Bureau Chiefs with their noses up Lykos' rear end.

Anonymous said...

Anon 12:22:
In order to prove that libel has happened, a lot of factors have to be considered. In the case of an ordinary citizen, the individual defamed must prove that the statement was false, caused harm to them, and was made without research into the truthfulness of the statement.
BUT, if the person defamed is a celebrity, things are different; the celebrity still has to prove the first three criteria, but then the celebrity has to prove that the statement was made with the intent to do harm or with "reckless disregard" for the truth.

Unknown said...

I just watched 48 Hours. Casie Gotro seems like a ghetto, hateful person. She doesn't seem like someone that you would want to spend time around. I don't think they have a stable leg for a new trial. It just seems like a bunch of hearsay.

Unknown said...

I just watched 48 Hours. Casie Gotro seems like a ghetto, hateful person. She doesn't seem like someone that you would want to spend time around. I don't think they have a stable leg for a new trial. It just seems like a bunch of hearsay.

Mike Laman said...

I've seen the 48 Hours episode twice on this case. It finally hit me--let's look at the crime scene again. What juvenile would take the time to carefully come up the stairs, shoot someone in the head, and leave? The boy Casey Jo really has NO motivation to do this crime. He had NOTHING to gain from it. If he did it, he would be easily caught. He didn't try to flee the scene or cover up evidence. The person with the most to gain is David Temple. He was already into an affair, his wife was pregnant, he had to cut his losses now and get out. Mr. Temple made the worst mistake he could by contaminating the crime scene. He should have called 911 and waited for the police to enter. The forensics sketchy as they are weigh more heavily against Mr. Temple than the Casey Jo. It's a sad story for all-my deepest sympathy goes to all families involved.