Judge Marc Carter wins 2018 Jesse Brown Distinguished Leadership Award

Congratulations are in order (yet again) for 228th District Court Judge Marc Carter, who has been named the recipient of the 2018 Jesse Brown Distinguished Leadership Award by the NAACP Veterans Task Force.  The Award is awarded to an American who works diligently to ensure that all veterans are provided the benefits and service they have earned through the honorable service to their country.

As noted in the Harris County District Courts' press release, Judge Carter voluntarily presides over the first Veterans Treatment Court Program established in the State of Texas.  It was created for veterans in need of mental health and drug treatment by diverting veterans with felony and misdemeanor offenses directly into treatment courts, reducing jail time costs and recidivism.  He has run the Veterans Court since its creation in 2009.

For those of us who have the opportunity to practice in front of Judge Carter, the award comes as no surprise.  He consistently proves himself to be one of the most compassionate and fair judges in the Harris County criminal courts.  In 2016, he was awarded the William H. Rehnquist Award for Judicial Excellence.  In short, he's an amazing judge and human being.  

The Award will be presented to Judge Carter on July 17, 2018 at 12:30 p.m. at the Henry B. Gonzalez Convention Center in San Antonio.

Congratulations, Judge Carter on this well-deserved honor!

Judge Frank Price

Judge Frank Price passed away today after a hard-fought battle with cancer.  He was a wonderful man and judge.  I had the honor of trying cases in front of him and appearing before him on many occasions. 

He was 79-years-old at the time of his passing, but I would venture to say that Judge Price had more street cred than probably any lawyer appearing before him.   He knew the law, but more importantly, he knew people.  He knew how to treat people and he did so with kindness and fairness. 

Judge Price's legal career spanned decades although those of us in our mid-40s or younger knew him mainly through his time as a visiting judge.  His obituary tells of an amazing and storied life.

Frank started his legal career as a prosecutor, serving 5 years as a Harris County assistant district attorney, followed by private practice as a criminal defense lawyer. Frank's exhaustive attention to every case and his strong commitment to justice did not go unnoticed. In 1974, Frank became the youngest appointee in history when he was appointed by Gov. Briscoe to serve as the judge of a criminal court, the 209th District Court. Frank was truly born to be a judge. His gracious temperament, knowledge of the law and sense of fairness made people in his court feel that the system of justice was indeed just. Prosecutors and defense counsel both state that they left Judge Price's courtroom wishing that they could try every case in the level playing field of his court. 

Judge Price presided over some of Houston's most famous criminal trials, such as the trial of Lilla Paulus who was convicted of being a co-conspirator in the "Blood and Money" murder of Dr. John Hill in River Oaks. He stood firm in his convictions and guarded the integrity of the system without compromise or regard for self-interest. He had the courage to make the very unpopular decision to grant a new trial in the front-page case of a man who was convicted of abducting and killing his own niece. Judge Price had learned that evidence had been withheld from the defense. In the end, the new trial served the system well, and also brought a second conviction. Judge Price presided in the trial of the notorious "Candyman" who killed Halloween and his young son with poisoned pixie sticks he handed out to five neighborhood children, seeking to gain $31,000 in insurance. In 1981, Gov. Clements appointed Judge Price to serve on the First Court of Appeals, starting his years of service on the appellate bench. Eventually he served as a visiting judge in both trial and appellate courts, serving over 30 years in the Texas State Judiciary. Judge Price personally wrote every appellate opinion himself, with hundreds of published opinions to his credit. His writing beautifully reflected his goal of perfection in both language and reasoning. He was known for mastering tough issues and cutting quickly to the heart of a case by asking a single insightful question. 

Judge Price was also known to know a little bit about magic.

As a judge, he was reserved and shunned attention. It is impossible, but true, that this same man was guilty of trickery and deceit – he was among the greatest practitioners of sleight of hand and close-up magic, performing routinely as a professional magician at Magic Island and many other venues. Training his hands to betray the closest scrutiny took the kind of discipline that was his forte. He took immense pride in the craft of magic and considered it a noble art, his "other" profession. He served as President of the Texas Association of Magicians and occasionally hosted local meetings at night in his courtroom. He kept separate his two professions, with few exceptions. An attorney who had once recognized Judge Price at Magic Island needed an emergency ruling, so he raced to the club, paid the admission and asked Frank if he could turn a magician into a judge. Frank did. On another occasion, Frank finished sentencing a convicted con-artist and then had him deal Three-Card Monte for 2 hours so Frank could study his reveal.

He was absolutely a character, and an honorable man.  He will be greatly missed.   I am very glad that I got the opportunity to practice in front of him, and I'm proud that I tried a case to him.

A celebration of his life will be held at Memorial Drive Presbyterian Church, 11612 Memorial Drive, Houston 77024, on May 24, 2018, at 10:00 am. Those desiring to honor Judge Price's memory are welcome to make a donation of choice or to The American Cancer Society.

Services for James Dyer

From the family of James Dyer:

There will be a Viewing Service at Cypress-Fairbanks Funeral Home (9926 Jones Rd, Houston, TX 77065) on Sunday May 20, 2018 from 5-7pm.

A Memorial Service at St. Stephen's United Methodist Church (2003 W. 43rd Street, Houston, TX 77018) on Monday May 21, 2018 at 2pm, reception to follow.

No Jacket Required

PUBLIC SERVICE ANNOUNCEMENT

If you haven't heard the news already, the Criminal County Courts of Harris County yesterday relaxed the dress code for the summer in light of our current conditions:

We suspend the requirement for male attorneys to wear coat and tie, instead requesting a collared shirt and slacks, with comparable attire for the female attorneys, when they attend our bond docket courrooms in the Family Law Center.  This rule shall take efect May 21, 2018 and remain in effect until October 1, 2018, and shall apply to the bond docket courtrooms of all the undersigned judges.

And, yes, it is signed by ALL of the County Court Judges.

It is still advised that, given the concerns of the Fire Marshals at the Old Family Law building,  all occupants of the building dress accordingly.

James Dyer

I was very saddened to learn yesterday of the passing of my friend and longtime criminal defense attorney, James Dyer.  I knew that he had suffered through some health issues fairly recently, but he was still up and covering dockets as recently as last week.  He was a kind man, and I probably learned one of the most valuable lessons I ever learned from him during my time as a young prosecutor.

I wrote about it in this post.  It's a long post, and I think I was having (yet another) blog spat with my friend, Mark Bennett, as well as arguing with that Rage Judicata guy that used to be around the blog (wonder whatever happened to that guy).

Anyway, I was lamenting the lack of collegiality within the criminal law profession, and I cited a moment from early on in my prosecutorial career.

Of course on both sides of the Bar, there are always going to be examples of those who have somehow abandoned the idea of collegiality and replaced it with bravado, arrogance, and often, rudeness. Some prosecutors do it. Some defense attorneys do it. Hell, even some judges do it, I suppose. 

It has been my experience that those members of the legal profession often exhibit rude behavior in their younger and less-experienced years. When you've gone to trial and you've both won and lost many tough cases, you don't really have the need for bravado. You are comfortable in what you've accomplished and you don't really feel the need to go around puffing or treating your opposition like crap just to make yourself feel better. 

I would like to think that by the end of my career as a prosecutor that I was known for treating everyone with respect, but I know that in my younger years as a prosecutor I could be quite a tool. I remember the day I realized what a tool I was being. 

I was giving James Dyer (whom I still fondly refer to as "Chewbacca") a mean-spirited and rude speech. I don't remember what it was about or why I felt my rant was necessary, but I remember what he said to me. He looked at me, sadly, and said "I don't know what I did to make you so mad at me, but whatever it was, I'm sorry." 

I felt like a bully and jerk (which I was). There wasn't any need for it, and in his understated way, Mr. Dyer pointed that out to me. If there was ever any "turning point" in my career and who I wanted to be as a prosecutor or a criminal lawyer, in general, that's the moment I can point to.

After I wrote that post, word trickled back to Mr. Dyer that I had written it, and it apparently made him very happy.  Whenever I would see him around the courthouse, he'd put his arm around my neck and tell whoever was standing nearby: "This guy wrote something nice about me once!  I keep waiting for him to do it again!"

We were always friends after that.  He always seemed to be upbeat and happy when I saw him.  He talked about his family quite a bit.  He always had a joke that was usually the epitome of a "Dad Joke."  If the joke bombed, he just started a new one.  Mr. Dyer always wanted to leave you laughing.

He had a great sense of humor about himself, too.  Back in the days of when Todd Dupont and I were hosting Reasonable Doubt on behalf of HCCLA, Todd went through a lengthy period of time without shaving.  I asked Mr. Dyer if he would help me do a quick video clip, making fun of Todd for his unkempt beard.

Mr. Dyer happily complied.  (NOTE: The video is so old that I can't figure out how to download it and migrate it over to this post.  It's a little slow to load, but check it out.)

Mr. Dyer was a courthouse staple and I will miss seeing him there.  I'll miss his sense of humor and cheeriness.

And I will never forget the lesson he taught me when I was a young, hotheaded prosecutor.

For that lesson, I'm profoundly grateful.

Rest in Peace, my friend.

Lisa Falkenberg's Alfred Brown Double Down

Lisa Falkenberg and I have always had a bit of an up and down friendship.

To be fair, I may have been a little bit antagonistic during the heated 2008 D.A. Election when I referred to her as Pippi Longstocking.  To her credit, when I actually met Lisa a year or so later, she was very gracious despite some of the potshots I took at her on the blog.  Although we didn't agree on many issues, we shared the common interest of the Harris County Criminal Courthouse.  Despite the opposing views, I like her and consider her a friend.

When she first began writing about the Alfred Dewayne Brown case, she asked me a couple of questions here and there about the Grand Jury process for background information.  I was more than happy to share my thoughts, and I thought she was on the right track.  I was happy for her when she won the Pulitzer.  Even though I didn't know enough about Brown's case back then to form an opinion on his guilt or innocence, I agreed with Lisa that the Grand Jury system had been abused and that needed to be brought to light.

I've never had a problem being friends with somebody that I disagreed with -- something that irks some of my friends in prosecution/law enforcement from time to time -- and I disagreed with Lisa on several issues over the years.  Unfortunately, we had a falling out over her coverage of the David Temple case.  She wrote an article singing the praises of John Denholm and Steve Clappart, and I responded with this post, pointing out that I felt they were dishonest morons.

Lisa sent me a tersely worded e-mail, blasting me for my response and telling me I had my facts wrong on Clappart and Denholm.  I disagreed.  I was (and am) pretty comfortable in my assessment of those two.  That exchange was pretty much the last time we spoke.

The reason I write all of that backstory is that I want to make it clear that I don't feel any animosity towards Lisa for what she writes.  Whether I think her point is correct or incorrect, I think she usually writes from a place of intellectual honesty.

But I think that she's gotten too close to the Alfred Dewayne Brown case and it is drastically coloring her perspective on it.

Just to clarify, I write from a completely biased perspective every time I write something for the blog.  I try to justify what I'm thinking with logic and I also acknowledge counter-views, but I'm biased as hell.  It would be silly to argue otherwise.

But I'm a blogger with small to medium readership --not a Pulitzer Prize-winning columnist for a newspaper in a major metropolitan area.

Earlier this month,  Lisa wrote a column demanding that Harris County hurry up and pay Brown for all the years he "wrongfully" spent on Death Row.   The column itself didn't surprise me.  It is natural for Lisa to feel tied to the Brown case -- it won her the Pulitzer, after all.  I thought it was a little strange that an investigative journalist was criticizing the idea of John Raley looking further into the case.  What really surprised me, however, was a pretty gross misstatement of the law and facts that Lisa made in that article.  She strongly insinuated that Brown had been found practically innocent by the Court of Criminal Appeals, which couldn't be further from the truth.  I called out the misstatement in this post.

Last week, the news broke that the Harris County Attorney's Office was in strong disagreement over Brown's innocence. Their argument was that a phone call that could have potentially exonerated Brown, actually proved his guilt.

Given Lisa's closeness to the case, I was curious as to what she would have to say about Mr. Brown now.  This morning, she answered that question quite clearly by doubling down on her belief in Brown's innocence.

In a column entitled "It's Harris County Attorneys, not Alfred Dewayne Brown, bluffing in federal court," Lisa assails the County Attorney's allegation of Brown being guilty as a "ridiculous claim."

If the records didn't help Brown's defense, then the county attorneys reason that they weren't exculpatory, and so Brown's prosecutors didn't violate his rights by withholding them.  Thus, they conclude Brown's conviction shouldn't have been reversed, and he lacks a civil rights claim as well.

See, I told you they got creative. 

Not exactly.  As one of my commenters in the last post noted:

Brown's lawsuit is demanding compensation because he was factually innocent.  The County Attorney's response is counter to that.  A person can be factually guilty and still have his rights violated.  If that happens, he deserves a new trial.  A new trial doesn't make one factually innocent and thus entitled to millions of dollars.  

And Lisa knows that.  

Lisa's article is attempting to equate the fact that Brown deserved a new trial to his factual innocence.  She's vilifying the County for not wanting to pay cash money to Brown and saying that they are arguing he should have never gotten his case reversed, either.  I haven't seen the entirety of the County Attorney's pleadings, so I don't know if they are arguing that exact point.  If they are arguing that he didn't deserve a new trial, they are wrong.  

There is no dispute in my mind (or the minds of prosecutors or defense attorneys) that Brown deserved the remedy of a reversal of his case due to the exculpatory evidence being hidden.  The dispute arises over whether he should receive a nice lump sum payment in addition to the reversal . . . or another trip back to Death Row.

Lisa concludes this morning's column with this:

A prosecutor has a duty not to convict, but to do justice.  The moment Rizzo realized he had evidence that had even the potential to help Brown, he was bound by law to turn it over.  He didn't.  He sat on it, and then claimed years later the phone record was lost inadvertently.

That's a violation of Brown's rights.  That comes across loud and clear.  The rest is just static. 

Now, who's being creative?

In essence, this is what has happened:

HARRIS COUNTY:  Mr. Brown did not receive a fair trial so his case should be reversed.
LISA:  Pay him millions, too.
HARRIS COUNTY:  Slow down, Lisa.  We are going to see if we have enough evidence to retry him.
LISA:  Pay him his millions.
HARRIS COUNTY:  Doesn't look like we are going to be able to try his case again, so . . .
LISA:  So, you're going to pay him his millions?
HARRIS COUNTY:  No.  For him to get his millions, we have to believe that he actually didn't commit this crime.
LISA:  That's ridiculous.  Pay him his millions.
HARRIS COUNTY: We don't think he deserves his millions.
LISA:  You're all idiots.  You violated his rights.  Pay him his millions.
HARRIS COUNTY:  After looking at these phone records, we actually think we may be able to prove he's guilty.  We may even take him back to trial.
LISA:  You're just being difficult.  That's impossible.  Pay him his millions.

The first blog post that I wrote about Lisa's coverage of the Alfred Dewayne Brown case was entitled "Tunnel Vision & The Falkenberg Articles."  In that post, I criticized people who have tunnel vision to the degree that they aren't willing to examine any other possibility than the theory they believe in.  In that post, I was talking about Rizzo's tunnel vision, but I could borrow that same title for this post.

Lisa's articles on Brown reflect an absolute inability to consider the possibility that he may actually have been responsible for murdering Houston Police Officer Charles Clark.  In the picture accompanying today's column, she is literally seen hugging Brown as he is released from custody.  This case is the one that won her the Pulitzer.

Maybe Lisa is the one suffering from a little bit of tunnel vision now.

Leave the Money and Run

Remember that time I pointed out that I thought Harris County District Attorney Kim Ogg's words about the Alfred Dewayne Brown case seemed to be a little cagey for her?

I believe I said something to the effect of:

Ogg leaving the door open to the idea of re-prosecuting Brown is shocking to me. There's no chance in hell that Ogg doesn't know the facts of the case.  She may not have the time to delve into it as deeply as she feels necessary, but I guarantee you that she has more than a passing familiarity with it. I have no doubt that she has formed an opinion on what needs to be done.

Houston Chronicle reporter Keri Blakinger just published this bombshell of an article, which details that the notorious phone call that is the heart of Brown's alibi may actually not be quite as exculpatory as Brown's legal team would like the general public to believe.

To recap (extremely) briefly, Brown claimed he couldn't have committed the Capital Murder that he was sent to Death Row for because he was at his girlfriend Ericka Dockery's home at the time.  The phone records (withheld by Dan Rizzo, apparently) in question showed a landline phone call from Dockery's home to her place of work.  Dockery claimed that this phone call was Brown calling her from her home.  It was this piece of evidence that got Brown off of Death Row.

That same piece of evidence now may become the thing that puts him back there.

From Blakinger's article:

But now, the county is alleging the phone call doesn't prove Brown's innocence because it was actually a three-way call, showing he was at the scene of the slaying. The shifting interpretation of the old records stems from a new expert analysis that Brown's attorneys have already begun calling into question.

Hmm.  As I mentioned before, Brown's actual innocence may not be quite the well-settled issue his legal team would like the public to believe.

Brown's civil attorney, Cate Edwards had this to say:

"The county's '3-way call' theory is simply incorrect," [Edwards] said, "and is inconsistent with Ms. Ogg's recent actions referring Mr. Rizzo to the Texas State Bar and appointing of independent counsel to determine whether Mr. Brown is actually innocent."

This statement is the legal equivalent of Donald Trump yelling "Wrong!" every time he doesn't like what he's hearing.   In actuality, Ogg's recent actions are perfectly consistent with this information.  Whether the calls were three-way or not, they still should have been turned over to the defense.  Ogg referring Rizzo to the Bar is still the right move on that level.  Her referral of the case to John Raley is also perfectly consistent with having an outside set of eyes look at this situation from a neutral standpoint.

The bottom line is that Alfred Brown got his freedom from Death Row, but ultimately decided that wasn't enough for him.  He wanted compensation.  His highly publicized attempt to get that compensation is what brought this information to light.

In retrospect, he probably should have just left the money and enjoyed his freedom.

Actual Innocence and Alfred Brown

Harris County District Attorney Kim Ogg announced yesterday that she was asking attorney John Raley to lead an independent investigation into the "actual innocence" of former-Death Row prisoner Alfred Dewayne Brown.  It was a wise move for a couple of reasons.

For starters, Raley is a highly respected attorney who has dealt with claims of factual innocence on previous occasions, most notably, the case of Michael Morton, who was wrongfully convicted for the murder of his wife, Christine. As most of you know, Raley's work on that case led to the exoneration of Mr. Morton, which, in turn, brought Christine Morton's actual killer to justice.

More importantly, it keeps the Ogg Administration from potentially being boxed into a decision that would not be well received by the Harris County Defense Bar.  As I've noted before, Ogg is in a tight spot with this.  If Ogg declines to declare Brown factually innocent, it isn't going to sit well with the Defense Bar. Ogg would be put in the awkward position of acknowledging that Brown is legally not guilty but not deserving of the money paid out to those proven factually not guilty.

Chronicle columnist Lisa Falkenberg characterized the Raley investigation as an unnecessary delay to Brown's desired compensation, asserting her belief that Brown has already been proven factually innocent . . . more or less.

That standard [for a legal finding of actual innocence] is roughly similar to the one that led the Texas Criminal Court of Appeals to toss Brown’s conviction due to constitutional error. An inmate must show that the constitutional error at trial “probably” resulted in the conviction of one who is actually innocent and that no reasonable juror would have voted to convict in light of the new evidence.

Um, maybe in the same sense that Sesame Street is "roughly similar" to The Wire.  Both deal with life on the streets in an urban area, right?

Brown's case was overturned based on a Brady violation when the D.A.'s Office realized that the defense had not been provided with a copy of telephone records that supported Brown's alibi by his girlfriend, Ericka Dockery.  The D.A.'s Office agreed that Brown deserved a new trial and the Court of Criminal Appeals signed off on a Writ of Habeas Corpus.

I'm not sure why Lisa is insinuating that the Court of Criminal Appeals practically made a finding that there was a constitutional error at trial that "'probably' resulted in the conviction of one who is actually innocent."  That is not the case.

In fact, whether or not Alfred Dewayne Brown is factual guilty is very much up for debate.

I've spoken with a couple of the prosecutors who handled the Brown case after it came back from the Court of Criminal Appeals.  Without hesitation, they will gladly state unequivocally that he deserved a new trial.  There is no debate that the evidence withheld by Rizzo was exculpatory and should have been turned over to Brown's defense counsel during trial.

But they will also tell you that they fully believe that Brown is factually guilty.  So will every HPD Homicide investigator that worked on the case.  I don't know enough about the details of the case to form my own opinion on Brown's guilt or innocence, but I will say that there can be a tremendous difference between legal innocence and factual innocence.

There can also be a tremendous variance in the strength of alibi evidence.  Some alibis can unequivocally exonerate somebody.  Others are less definitive.  The people who I've spoken to about the phone records that supported Ericka Dockery's story acknowledge that they were evidence of an alibi, but they were far from definitive.  They say if Rizzo had just turned over the phone records, he could have easily explained them away at trial.

Despite Brown and Falkenberg's protestations to the contrary, Brown's factual innocence isn't quite the no-brainer they portray it to be.

I'm going to hazard a guess that D.A. Ogg was a little concerned about Brown's innocence herself.  Having watched how she has handled this case, as well as others, I believe that she would have loved nothing more than to declare Brown factually innocent while lambasting the "toxic culture" of previous administrations.  She certainly had no problem notifying the press of other shocking developments on the case.

But I found this paragraph in Falkenberg's column to be very interesting:

But if Raley does not find Brown “actually innocent,” Ogg said she may have decide whether to charge him again in Clark’s murder. She chose Raley, she said, not to pass the buck, but because she felt the case needed an independent, fair review by someone outside the DA’s office.

Ogg leaving the door open to the idea of re-prosecuting Brown is shocking to me. There's no chance in hell that Ogg doesn't know the facts of the case.  She may not have the time to delve into it as deeply as she feels necessary, but I guarantee you that she has more than a passing familiarity with it. I have no doubt that she has formed an opinion on what needs to be done.

I'm not accusing her of "passing the buck;"  to the contrary, my guess is that she wanted a credible voice such as Raley's to support whatever decision is ultimately made.

That's just smart politics.