HCCLA and the Former Prosecutor

As I've always said (and truly believed), Harris County, Texas is home to some of the greatest criminal litigators in the Nation -- on both the prosecution and defense side of things.  Therefore, it stands to reason that Harris County would also be home to one of the best (and largest) criminal defense lawyers' association in the form of the aptly named Harris County Criminal Lawyers' Association (HCCLA for short).

Historically, HCCLA has been a highly respected organization with a Who's Who of distinguished and prominent criminal defense attorneys, as well as Lloyd Oliver, on the list of past presidents.  They sponsor numerous CLE seminars that are free to members, have a Strike Force to help attorneys who find themselves on the wrong side of a contempt charge, and a Christmas Party that is the social event of the Criminal Justice Season.

And then there is the Listserve.

In theory, the Listserve is a message board for attorneys to assist each other with legal issues or to ask for advice.  Oftentimes, that actually is what it is used for, and longtime defense attorney Troy McKinney serves as HCCLA's greatest asset when it comes to giving outstanding legal advice to those who seek it.  The Listserve is more often used for gossiping and complaining about prosecutors and judges, and although everyone on the Listserve is sworn to utter secrecy, information leaks out of it like water through the Titanic.

When I left the D.A.'s Office, Mark Bennett and Tyler Flood (who is, coincidentally now HCCLA's President) strongly encouraged me to join the Group.  I did, and I was glad that I did.  I became involved and after a year or so, I ran for the Board and won.  A year or so after that, incoming President Todd Dupont asked me to run for Secretary, which I did and also won.  Despite having a baby on the way and dealing with chemotherapy, I did the best I could with the position.  I co-hosted HCCLA's weekly television show, Reasonable Doubt.  I even planned a CLE from my hospital bed with my then-friend and President-Elect Carmen Roe sitting in the room, helping me.

But my position on the Board didn't sit well with some of the more senior members of HCCLA.  One in particular really didn't like me working as a legal consultant on Cold Justice.   When I ran for Vice President the following year, my good friend Carmen and some others made sure I had opposition.  Incoming President Roe wrote a mass email encouraging people to vote for Mark Bennett over me.  Somehow, I wasn't included on the e-mail and didn't find out about it until somebody else told me.  To this day, I've never felt more betrayed by a closer friend.  We haven't spoken since.

Mark won the election, and I was the first to congratulate him.  I then resigned from HCCLA over his encouragement not to.  I knew it looked like sour grapes, but I just couldn't bring myself to pay membership dues to an organization run by Carmen Roe and others who clearly didn't want me involved in it.

That was three years ago.  I didn't write about my reasons for leaving then.  I still thought that HCCLA was a good organization.  It just wasn't for me -- clearly.  Despite my personal experience, I still encouraged new criminal defense lawyers to join.

But I was reminded of my negative experience with HCCLA this week after the organization's treatment of recent HCDA alum, Nathan Hennigan.

Hennigan, who was one of the 38 prosecutors fired not offered positions under the Ogg Administration, was vocal in the wake of his termination.  He was a senior prosecutor and a District Court chief with a good reputation with the vast majority of the Defense Bar. Shortly after Nathan's termination, the hosts of Reasonable Doubt invited Hennigan to appear on the show and share his thoughts.

The next day, the hosts told him they had to rescind their invitation because someone high up in HCCLA didn't think he needed to be on the show.  The reason he was given at the time was that he wasn't an actual member of HCCLA and therefore their rules prohibited him from being on the show yet.

Of course, that whole thing about having to be a member of HCCLA to be a guest on their show is a bunch of crap.  I should know.  Not only was I one of the hosts on the show for a good chunk of time, I was also invited to be a guest on the show two weeks ago.  As noted above, I'm not a member, either.

Hennigan applied to become a member of HCCLA and his membership came up for a vote before the Board of Directors this week.

His membership was rejected.  When he shared the rejection on his Facebook page, the CJC community went nuts.  Several Board members posted that they had voted for him, although nobody gave any details as to what had happened.  Other members expressed outrage that Hennigan's membership hadn't been approved and encouraged him to reapply.

Obviously I wasn't there, but as I mentioned before, confidentiality within HCCLA is about as leak-proof as the Titanic.  There has been word that a senior defense attorney sent one of his lackeys to convey the message that if Hennigan were granted membership, the senior defense attorney would quit the organization (God forbid).  What happened after that is anybody's guess.

The thing that is interesting about this is that nowhere in HCCLA's Mission Statement does it mention that it only helps defense attorneys that are universally loved.

And apparently, in HCCLA, some members are most definitely more equal than others.

At the end of the day, there are plenty of us who are not members of HCCLA that are doing just fine on our own.  That doesn't mean it isn't a good organization, but it isn't critical to survival.  The Texas Criminal Defense Lawyers' Association offers outstanding support and help like HCCLA does, just without the petty backroom drama.  The Houston Bar Association also has a drama-free Criminal Law section.  As of this writing, my understanding is that President Flood is much more concerned about figuring out how the details of the Hennigan Vote got leaked rather than the larger issue of why one attorney gets to dictate membership.

Ultimately, I'm not sure why any former prosecutor would want to be a part of HCCLA if this is going to be the example the organization sets. 

HCCLA Memorial Service

Please join members of the Harris County Criminal Lawyers Association today as we honor the memories of some of Harris County's defense bar.  As readers of this blog know, many of our defense brethren have passed away this year, and they will be honored with their names on plaques in the 7th Floor Attorney Meeting Room of the CJC today at 11:00 a.m.

Come and pay your respects and share your war stories as we pay tribute to the men and women who have given Harris County such a colorful and impressive legal history.

The Declaration of Independence

HCCLA members and all others who are interested (and encouraged) to attend will be joining in front the Harris County Criminal Justice System this morning, Friday, July 1st, at 11 a.m. to read the Declaration of Independence.  This was an event that began last year with HCCLA and is the start of a wonderful and noble tradition.

In fact, the tradition is spreading across numerous counties in Texas this year and will hopefully grow as the years go by.

I know that it is easy to get cynical in the old CJC, but I think it is important to take a moment and realize the principles our Nation is founded upon and how much the legal system and criminal justice system play an every day role in maintaining that.

Special thanks to Robb Fickman, HCCLA President Earl Musick and all the other dedicated members of HCCLA for putting on this event.

The Defense Bar As Police

Rick Casey wrote a column earlier this week about the difference in sentences for disgraced ex-TSU president Priscilla Slade, and her (arguably less culpable) co-defendant, Quintin Wiggins. I think that the article brings up an interesting topic, although I think it makes an incorrect assessment in doing so.

Priscilla Slade, earlier this week, pled to a 10-year Deferred Adjudication with a significant amount of restitution. Her former chief financial officer, Wiggins, on the other hand, got ten years "to do" in the Texas Department of Criminal Justice. Casey acknowledges in his article that Wiggins had a criminal history (while Slade did not), and he even ventures that new District Attorney Ken Magdison may be a factor in plea deals without prison time (I'm not sure I agree with that premise much).

Casey, in my opinion, overlooks the biggest factor on why Slade was offered deferred adjudication: the case had already gone to trial and resulted in a hung jury after weeks and weeks of testimony. That may be a good topic for another day ("The Effect of a Hung Jury on Plea Bargain Negotiations"), but it's not what I want to address at the moment.

Casey writes:

The main difference: In hiring a defense attorney Wiggins went low-rent and Slade went name brand.

Slade had Mike DeGeurin. Wiggins had a lawyer that I'm not familiar with named L. Mickele Daniels.

Now, call me picky, but I'm always highly suspicious of our legal brethren that have the one letter initial at the start of their name. Casey is more than just suspicious, and he lists a series of grievances and concerns about Mr. Daniels.

I'm not going to address his competency to try the Wiggins case, because I wasn't there and I don't know what kind of job he did.

But as a broader, farther reaching topic, we all know that there are some attorneys that dwell in the CJC hallways that don't have any business being there. I'm not going to name any of their names, because I don't want them to sue me (and quite frankly, I would only be able to hire someone of their caliber to defend me). But, I do feel comfortable in pointing out the legendary C. Tom Zaratti as a classic example of exactly what I'm talking about.

NOTE: To those of you who aren't personally familiar with the CJC, none of the attorneys that I'm thinking about are allowed to do criminal appointments. They are much more likely to be roaming the hallways, soliciting clients, or using other unethical means to wrangle in the ill-advised.

They cause problems for both the defense and the prosecution. Believe it or not, prosecutors don't like trampling over a Defendant's rights just because they can. Prosecutors have to go above and beyond their usual duties and actually hold the hand of an incompetent defense attorney to make sure that a miscarriage of justice doesn't take place.

The Defense Attorneys hates what the incompetent attorneys do to destroy the reputation of the Defense Bar and the Criminal Justice System in general.

I can personally guarantee that every defense attorney and prosecutor that is reading this blog knows exactly who I'm talking about, too. (NOTE: But please don't post their names on the blog. Like I said, if one sues me, I'll have to hire one of the others to defend me!)

So, I guess the big question is, who should police the bad and incompetent attorneys?

Can anyone do something to stop them?

If so, what?

If "so" and "what" is identified, then who should be the ones who do it?

If the prosecutors do it, they will be labeled as "going after the defense attorney, because they just can't get the defendant".

If an individual defense attorney does it, he or she could be regarded as a traitor within their profession.

And is it all the Sound and the Fury signifying nothing? (Yes, I really like using that phrase).
Can a case be made? Can the State Bar do something? Will they do something?

Dare I say it (cue Superman theme song), Is this a job for HCCLA?

Pat Lykos on Reasonable Doubt

Pat Lykos is going to be on HCCLA's Reasonable Doubt on Thursday night, February 28th at 8 p.m. And I'm not sure if it is on Channel 17 or 19 (Mark, can you help me out on this?)

Its a call-in show (although the number changes from show to show for some reason, so I don't have the number available at the moment), so feel free to call in and ask her the tough questions. For example:

1. During Eldridge v. State, 731 sw2d 618, you revoked a Defendant's probation without a hearing and without his attorney being present. Could you explain how this is somehow not a massive civil rights violation?
2. Would you care to explain why you didn't let a witness wear a yarmulke in your court?
3. Did you ever apologize for it?
4. What's your criteria for deciding which of the Assistant District Attorneys you are going to fire?
5. Why were your Bar Poll Ratings always so low? (NOTE: When she says because she "didn't play favorites, proceed to Question # 6)
6. Then why were Judge Poe's ratings always so high?
7. Why is a 60 year old woman still getting written up on her evaluation because she can't get along with others (much like a grade schooler)?
8. If you observed the ADAs striking so many jurors based on race when you were on the bench, why is there no record anywhere of you ever calling them out on it?
9. Why do you refer to yourself as a "litigator" when you've never tried a case?
10. Have you ever gone by the street name of "Snookems"?

By the way, good luck getting a call in on the show. Lykos typically arranges for her friends to call in and throw her softball questions that she can answer in a politically stunning manner.

HCCLA Makes a Stand

The Chronicle is reporting that the Harris County Criminal Lawyer's Association has sent a letter to Governor Perry requesting that a Special Prosecutor be assigned to investigate Chuck Rosenthal; and that he go ahead and appoint Chuck's replacement.

Although I like the principled ideals behind the request, I'm not too optimistic about Perry paying any attention to it. Especially not in regards to a quick appointment for the replacement.

My prediction is that Perry will ultimately appoint the winner of the Republican Primary after it is decided, so that person can run against Clarence Bradford, as an incumbant. There's no political incentive for him to do otherwise, actually. It doesn't benefit him. It doesn't benefit the Republican Party.

And Bert has been the "acting D.A." for three days now, and he has still yet to accidentally burn down the building. He's a steady hand who can hold things together until the governor gets around to making an appointment.

Another reason I'm not optimistic about the Governor moving too quickly on an appointment is my memory of how long the 228th, the 183rd, and the 178th sat open without him appointing anyone.

As to the issue of the Special Prosecutor to look into Rosenthal's actions, that's a little different. I'm not certain that the governor was the right person to send that particular request to.

It seems to me (if memory serves me), that the District Court judges have always been the one who appointed a special prosecutor if an Assistant District Attorney was accused of criminal wrongdoing. Why would that be different if it was the elected?

I'm just curious.