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. 

The Brian Wice Editorial

In any jury trial, after the jury has returned its verdict, the jurors are told that they can speak with the attorneys on the case if they so choose.  My personal policy has always been that I will stay and talk to any jury that wants to talk to me, regardless of whether or not they ruled in my favor.  I believe that if the jurors devoted their time to listening to me talk for hours, days or weeks, the least I can do is listen to them for a bit.

Some jurors want to know what will happen to the defendant after the trial is over.  Some will be looking for affirmation that they arrived at the right decision.  Some will want to know what "the rest of the story" was.  I always try to answer their questions to the best of my ability.  Jurors get emotionally and intellectually invested in the trials they sit on, and I think they deserve to have their questions answered.

As most of you know, last week local hand surgeon Michael Brown was acquitted of Felony Assault against his wife, Rachel Brown.  Yesterday, Brian Wice, who defended Dr. Brown along with Dick DeGuerin, Catherine Baen and Carmen Roe, wrote an editorial criticizing the prosecution team of Jane Waters and Nathan Hennigan for comments they made to the jury and media after the trial was over.

In his editorial, Wice describes prosecutor Nathan Hennigan's comments as "a backhanded slap at Judge Wallace", "cross[ing] the line on both a personal and professional level", and "classless".

Okay, let's look at this for a moment.

Shortly after the acquittal, Dick DeGuerin made a big production of cutting off Dr. Brown's ankle monitor in front of the media before doing a press conference doing a character assassination on Rachel Brown (who, last I looked, wasn't charged with a crime).  This type of circus-like production isn't exactly what I would equate with "class" in the first place, so Wice attacking Nathan for talking to the jurors about "the real Michael Brown" rings a tad bit hypocritical.

Brian's description of the prosecutor's comments as "a backhanded slap at Judge Wallace" is ludicrous.  Judge Wallace made rulings that affected the integrity of the trial he presided over.  Nathan and Jane followed those rules throughout the trial.  None of Nathan's comments were along the lines of "We would have won the case if that big old mean judge just hadn't made a dumb ruling."  He discussed an extraneous aggravated assault that Michael Brown had been on deferred adjudication for after the trial.  Brian claiming that Nathan was giving a "backhanded slap" was designed solely to make Judge Wallace angry with the prosecutor and portray him as disrespectful to the court.

Nothing could be further from the truth.

And finally, Wice alleges that Hennigan's statements as violating Rule 3.06 of the State Bar Disciplinary Rules, because his "post-verdict comments" could harass, embarrass or influence actions in future jury service.  He calls it a "thinly veiled attempt to make the jury feel bad about its verdict".

Um, Brian, are you forgetting that your part-time job of being a legal analyst for Channel 2?  Don't you regularly make "post-verdict comments" about what you thought was good or bad about a trial?  Don't you do analysis of evidence that may or may not ultimately get in front of jury?  Aren't you the same guy who appeared in about 5 episodes of 48 Hours criticizing Kelly Siegler and calling her every name in the book as you criticized the verdict in the Susan Wright case?

Are you really suggesting that only us members of the Defense Bar can give our opinions of cases in the aftermath, but the prosecution can't?

Wice wraps up his editorial by encouraging District Attorney Pat Lykos to counsel with her "minions" about their post-verdict statements.  If Pat Lykos is any type of leader, she will politely tell Brian where he can put his editorial advice.

I don't know near as many sports analogies as Brian Wice.  The lessons I learned from my father and coaches were short and to the point:  Play with class and be as gracious in victory as you are in defeat.

Brian Wice took the time out to publicize what he perceived to be a lack of class by the prosecutors in defeat.

Perhaps he should more closely examine how gracious he was in victory.