Temple Trial Takeaways

As you doubtlessly know by now, the punishment phase of The State of Texas vs. David Temple ended in a mistrial on Friday after jurors failed to reach an agreement on an appropriate punishment for the man they easily convicted of murder.

I've heard from multiple credible sources that the split between the jurors was 10-2, with ten of the jurors demanding Life in prison for the man they convicted of killing his 8-month-pregnant wife, Belinda, by placing a shotgun to the back of her head and pulling the trigger.  The remaining two jurors were holding out for something far less and neither side seemed willing to budge from their position despite almost two days of deliberations.

A jury that convicts but then deadlocks over punishment is not unheard of, but it is fairly uncommon.  Since Temple was convicted of a 1999 murder, the law of 1999 applies to the case.  Back then a person could receive probation for murder, so Temple could technically receive it, as well.  Due to this, there is apparently an argument to be made that Temple could be placed on bond while awaiting his punishment.

If 178th District Court Judge Kelli Johnson elects to give Temple a bond, she will doubtlessly consider the brutality of the case, how many jurors wanted Life for Temple, and the fact that when released from jail in 2016, Temple vowed "for the people that lied and cheated who put me there to be held accountable."  Texas Attorney General Prosecutors Lisa Tanner and Bill Turner will likely point out that these combined factors make Temple a high flight risk with a revenge agenda who has nothing to lose.

Although the hung jury on punishment prevented bringing the 20-year saga of David Temple to a complete close, the fact that he was convicted again will more than suffice for the time being.

It has been a long and winding road that gave David Temple a second chance at getting away with murder, one that most murderers don't get.

Temple was originally convicted and sentenced to Life in 2007 in a trial that pitted Harris County Assistant District Attorney Kelly Siegler against prominent defense attorney Dick DeGuerin.  Despite the fact that the Texas Court of Criminal Appeals affirmed the case, DeGuerin lobbied the District Attorney's Office under then-D.A. (and Siegler's political rival) Pat Lykos to perform an off-the-books investigation into an alternate suspect.

In July of 2012, Pat Lykos was a "lame duck" D.A., having lost her bid for re-election to Mike Anderson in the Republican Primary.  DeGuerin asked then-1st Assistant Jim Leitner to "review" the Temple case before the Lykos Circus left town at the end of December.  Inexplicably, Leitner complied, as I detailed in this post.

Leitner had been informed that newly-minted defense attorney and former Harris County Homicide Lieutenant John Denholm had been sucking up to working for DeGuerin on developing an "alternate suspect" to the murder of Belinda Temple.  Despite the fact that the Court of Criminal Appeals had recently affirmed Temple's conviction, Leitner was more than happy to do DeGuerin's bidding and assigned Denholm's buddy (and current HCDA investigator) Steve Clappart to work on the case.

By September 2012, the dream team of Clappart and Denholm had drafted a Capital Murder warrant for the arrest of a "suspect" named Cody Ray Ellis based on evidence so absurd that I won't even address it in this post.  You can check out the legal document that these two nimwits tried to get signed by clicking here.   (NOTE:  Don't forget to scroll down to the transcript where Leitner testified that he would have signed that warrant.)

Here's a fun fact, in case you didn't pick up on it already:  During the retrial, Stan Schneider didn't even advance Ellis as his "alternate suspect," instead focusing on another teenager from the neighborhood, Riley Joe Sanders.  The juries in both the 2007 and 2019 trials quickly rejected all alternate suspects in favor of Temple.

In the meantime, DeGuerin (now joined by Stanley Schneider) filed an "Out of Time Motion for New Trial or Alternative Application for Writ of Habeas Corpus Based on Actual Innocence, Newly Discovered Evidence, and the Willful Suppression of Exculpatory Evidence." (Stanley apparently gets paid by the word.)  It is worth noting that during all of this, the Lykos Administration never bothered communicating what was going on to the family of Belinda Lucas Temple, which is something I noted here.


Wanting to avoid the appearance of impropriety, Lykos appointed local defense attorney Brad Beers to be a "special prosecutor" on the Temple matter.  There was a small conflict of interest on that, however, seeing as how Beers had previously represented Clappart twice (once in a lawsuit and once on a disciplinary infraction within the Office).

All of this ultimately led to a hearing in 2015 that David Temple wasn't entitled to and that very few others have been the beneficiary of.  During that hearing, Stan Schnieder and then-licensed attorney Casie Gotro got to revisit the entirety of the Temple case.  That rendition of Team Temple rejected at least five judges to hear the extra-judicial hearing before settling on Judge Larry Gist.

As we all know, the multi-week hearing ultimately resulted in findings from Gist that Kelly Siegler had been untimely in turning over evidence to Dick DeGuerin during the 2007 trial, and recommended that Temple receive a new trial.  My opinion then and my opinion now is that Judge Gist wasn't paying attention to much of the evidence that he was hearing.  He certainly wasn't paying attention when he signed off on an order where Gotro and Schneider had slipped in an extra finding.

I know that I'm biased, because Kelly Siegler is one of my best friends, but I will go to my grave feeling that the District Attorney's response to Gist's finding, coupled with Houston Press journalist Craig Malisow's article Unreasonable Doubt: Did Kelly Siegler Really Railroad an Innocent Man Eight Years Ago held far more accurate accounts of the Temple hearing than Gist's findings.

Regardless of how I feel, or how Kelly Siegler's detractors feel, David Temple ultimately got his case reversed.  Due to Kelly's fame as one of the best prosecutors in the State of Texas, the Houston Chronicle writers were ecstatic.  Lisa Falkenberg wrote a really touching article on how Clappart and Denholm were heroic and brave for taking a stand in pursuing the "real killer," despite losing friends.

SPOILER ALERT:  Denholm and Clappart lost friends because everyone knew that they (and their warrant) were full of shit, Lisa.  They were full of shit then and they are full of shit now.  Just FYI.

Brother Denholm even had the audacity to file a grievance against me with the State Bar (with attached affidavits from Gotro and Schneider) for daring to blog about Temple (and try to ruin Temple's fight for freedom).  It got rejected summarily.  I'm still a practicing lawyer, and that's all I'll say about that topic.

And then came the Reign of Ogg.

Kim Ogg took Office on January 1, 2017, and in her inauguration speech, she thanked Dick DeGuerin profusely for all he had done for her and her career.  Within a week, she vowed to be the One Woman Review Team who decided whether or not the District Attorney's Office would retry David Temple.  She appointed Steve Clappart to be her CHIEF investigator, and hired John Denholm to a Division Chief position.  Despite these clear conflicts of interest with Team Temple, Ogg steadfastly refused to recuse herself from the case.

Again, the Houston Chronicle was giddy with the prospect of the Temple Case being dismissed, because, you know, Kelly Siegler cheated!

While in the midst of Ogg's One Woman Review of Temple, DeGuerin even threw her a fundraiser! It was co-hosted by Paul Looney, who had also been a member of Team Temple at one point.

Coincidentally, Team Temple attorney Stan Schneider said that he was "completely comfortable" in whatever Ogg decided.  Gee, I wonder why.  

Ultimately, Kim Ogg relented under public pressure and recused the Harris County District Attorney's Office from The State of Texas vs. David Temple.

And the result? Justice. He was convicted again of Murder last week.

The circus that surrounded his case merely resulted in him getting a two and a half year break from prison that he clearly did not deserve.  Somewhere in the midst of all of this, the prosecutorial team of Lisa Tanner and Bill Turner were able to turn the focus back to the evidence of the case and back to Belinda Lucas Temple and her unborn daughter, Erin.

The postponement of the punishment phase to March will hopefully serve as merely an extremely lengthy epilogue for David Temple.  The real story concluded with the guilty verdict and Temple going back into custody.

Justice prevailed last week.  

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.

Freudian Slip

I received an e-mail today from one of David Temple's attorneys, Romy Kaplan, containing a copy of a motion filed by the Harris County District Attorney's Office today.  The motion, entitled Harris County District Attorney's Amended Motion to Recuse and for Appointment of District Attorney Pro Tem, contained the following pertinent sections:

Now, it is somewhat funny seeing that the Harris County is amending a Motion to Recuse themselves after the original Motion was already granted and new prosecutors appointed.  It's a little bit of "water under the bridge" at this point and I'm not even sure that this Motion has any actual legal bearing.  It would kind of be like me asking to go back and time and claiming that Lykos didn't fire me, because I quit.  

It's a small point.  Obviously the Office was trying to correct the impression that Chief D.A. Investigator Steve Clappart had ever been actually employed by David Temple's defense team.  

Another thing that would have helped them from this impression was, I don't know, NOT STATING IN A LEGAL DOCUMENT THAT STEVE CLAPPART HAD BEEN RETAINED BY TEAM TEMPLE.

But, bygones.  

The Amended Motion goes on to say that an earlier draft of the Motion had inadvertently stated that Clappart was a Temple employee, and that the earlier draft had accidentally been filed by mistake.

Um, okay.  So, at some point early on, the author of the original Motion had been under the belief that Clappart was a Temple employee, but some time later on figured out that he wasn't?  Was there some uncertainty about this somewhere?  I mean, he and his slow-witted friend, John Denholm did accept some Awards on behalf of their work on Temple's defense, and attended the Temple press conference together.

It would seem that in the five months that Kim Ogg had spent "reviewing the Temple case," she might have at least determined whether or not her Chief Investigator was employed by the Defendant.  Seems like kind of a major detail to me, but who am I to judge?

Perhaps it was just a really really humongous Freudian Slip.

NOTE:  Nowhere in the Amended Motion did it mention that Clappart was still actively investigating the Temple case, nor did the District Attorney's Office issue any denials of his ongoing investigation. 

Steve Clappart and The Meaning of Recusal

One of the more interesting revelations from the Harris County District Attorney's Office's Motion to Recuse on the David Temple trial on May 5th was that now-Chief Investigator of the D.A.'s Office, Steve Clappart was actually retained by the Temple defense team.

From the Motion:

Prior to this subtle, yet important, revelation, I think it is fair to say that most of us did not realize Clappart had actually been an employee of David Temple's.  We just thought he was looking into some information on behalf of his buddy, John Denholm.  The fact that the lead investigator for the D.A.'s Office actually used to work for David Temple really begs the question "why did it take Kim Ogg so long to realize the tremendous conflict of interest the Office had?"

Regardless of how insanely long it took Ogg to recuse the Office, she ultimately did do so and the Harris County District Attorney's Office is no longer involved in the Temple case at all.

Right?

Well, maybe not.

I received word from multiple sources this morning that former-Temple-investigator-turned-Chief-Investigator-for-the-D.A.'s-Office Steve Clappart may not have gotten the memo on that.

Apparently, one of the named "witnesses" in Clappart and Denholm's silly alternative suspect warrant picked up a Felony D.W.I. warrant this week in a Harris County District Court.  Despite the Office's self-recusal on the Temple case, those sources told me this morning that Clappart went to the court to inform prosecutors not to allow the case to plead without his approval.  He apparently wants to use the witness's precarious legal position as an opportunity to get some real "truth about Temple" out of the guy.

This presents a couple of interesting questions:

1.  Why is the Chief Investigator of all the Investigators in Harris County, Texas so interested in a Felony DWI case?

2.  Does Clappart think he should be approaching a Defendant charged with a felony and interviewing him?

3.  If the D.A.'s Office is no longer handling the prosecution of David Temple, does that mean they can handle his defense?  That seems to be the angle Clappart is working.

4.  Are taxpayers now paying Clappart to work on the Temple defense?

5.  How did Clappart even know this guy got charged with a DWI?  Hundreds of people get charged with a crime in Harris County each day.  How did he know about this one?  The Office can put a "tickler" on the computer for notifications if a certain person picks up new charges.  Did Clappart or (more likely) John Denholm put a "tickler" for this particular witness?

6.  If Denholm or Clappart did put a tickler out for parties they believed to be involved in the Temple case, are they flagrantly violating Kim Ogg's Motion to Recuse?

I don't know the answer to these questions, but it does appear that the Office has not completely relinquished control of the David Temple case quite yet. It seems like this is something that Kim Ogg should probably clarify to the public.

Or, at least, clarify it to Clappart.

Clappart's Warrant: Judge for Yourself

While much has been said, about Steve Clappart's warrant for the arrest of Cody Ray Ellis as an alternate suspect in the murder of Belinda Temple, it appears that David Temple's defense team has been reluctant to publish the warrant itself.  Additionally, many of the local media outlets, specifically the Houston Chronicle have decided not to delve into the details of it.

Let's take it page by page --

So, to be clear, in this document, Steve Clappart is attempting to have Capital Murder charges filed against Cody Ray Ellis.  For those of you outside of the legal field, Capital Murder can be punished only by Life in Prison or the Death Penalty.  By signing off on this warrant, Clappart is verifying that he is completely comfortable with this.

Clappart then goes on to explain how experienced he is as a police officer.  He also goes on and on about how experienced John Denholm was as a police officer.  This isn't necessarily abnormal, but it is pretty excessive for a standard warrant.  Clappart is basically just illustrating that he is writing the warrant at Denholm's behest, but it should make no difference, because they are both just amazingly experienced.

Clappart then goes on to state that Denholm got all of his information after being contacted by David Temple's lawyer, Dick DeGuerin.  This was what I criticized Lisa Falkenberg for being so ambiguous about in her article praising Clappart and Denholm.

On to Page Two . . .

Okay, so let's start with the fact that when John Denholm brings this case to Steve Clappart, all the research that he has done into this new "star witness" Daniel Glasscock is watch a video deposition of Glasscock that is conducted by David Temple's attorney, Dick DeGuerin.  As noted, based on solely having watched the video where Glasscock is questioned by a defense attorney, John Denholm has decided that the testimony is credible and David Temple is wrongfully convicted.

Um, okay.  

So, Clappart decided to watch the video deposition, too.  He also decides it is credible, and puts the details into the Probable Cause statement.

Let's breakdown what comes out of that deposition, shall we?  Basically, Glasscock is saying that he went over to Riley Joe Sanders house with a guy named Carlos Corro.  Corro tells them "things were fucked up in a robbery."  While at Sanders house, Glasscock joins a conversation between Corro, Sanders and Cody Ray Ellis, where he hears Sanders tell Corro "that the dog attacked him when he went up the stairs, he shot the dog, heard Belinda [Temple], put the dog in the closet and they panicked and ran."

Let's assume that Glasscock was telling the truth (which is a big assumption to make) and that he actually heard these words uttered by Sanders.  These words are still a far cry away from being a confession to Capital Murder.  This is an admission to shooting a dog, and then fleeing when they hear a person [alleged to have been Belinda Temple].  

Let's also look at the plausibility of this conversation taking place.  Glasscock states that he just wandered out of the bathroom as the three boys were standing around talking about committing a home burglary/animal abuse/capital murder.  Rather than stop the conversation, they keep on talking about it as if they were talking about an Astros game?  At some point, they throw in the name of Belinda Temple, presumably so Glasscock won't feel left out of the conversation?

Clappart notes that Belinda Temple's dog was not in her house at the time of her murder, rather it was closed in the garage.  Many investigators would have found this fact as evidence that Glasscock was not a reliable witness.  Inexplicably, the dynamic duo of Clappart and Denholm find that it somehow strengthens his credibility.

Page Three . . .

Although it isn't clear whether or not law enforcement or Dick DeGuerin had Daniel Glasscock polygraph tested, Clappart notes that Glasscock has shown No Deception to "all pertinent questions asked."  He doesn't list what those "pertinent" questions were, but okay.  He is clearly doing everything he can to portray how amazingly credible Glasscock is.

At this point, Clappart starts looking into the background of Corro, Ellis and Sanders and notes that Corro and Ellis (along with a third party) had been arrested two months after Belinda Temple's murder for criminal mischief.  He notes that Corro had been driving a white car during the criminal mischief and then points out that a witness had seen two white males "in an off-white or creme or light beige colored vehicle speed away from the area of the murder around 4:30 p.m. on the date of the murder."

So, I guess there are so few white cars in the world that this is somehow incriminating?  Not to mention, the witness seems clear that it wasn't a white car, but an "off-white or creme or light beige" vehicle.  To Clappart, this appears to be immensely damning.

Clappart also notes that Corro and Ellis had committed a burglary along with Casey Goosby, eight days before the murder.  He notes that the target of this burglary was Goosby's mother's boyfriend and was done in retaliation for him cheating on her.  He also notes that shotguns and jewelry had been taken in the burglary.  

I can actually see where Clappart could find this significant.  Burglaries in the area are certainly relevant.  Burglaries are also frequent, and the typical things taken in burglaries are guns, jewelry, electronics and cash.  Clappart then points out that Sanders (who was NOT part of the Goosby burglary) had a grudge against Belinda Temple.  

This seems to be a case of two plus two equalling five, in my opinion.  So, one of the Clappart/ Denholm suspects committed a burglary shortly before the Temple murder and a different one of them had a grudge against Belinda Temple.  If we combine the two, does that point to Capital Murder?

On to Page Four . . .

 Clappart then moves in a strange direction with the warrant, by interviewing Riley Joe Sanders' ex-girlfriend, Niki Biondi Lundes.  Clappart finds some level of significance in the fact that in 1999, Lundes was reluctant to admit that Sanders was her boyfriend.  I'm not sure what that has to do with anything.  Lundes tells him that Ellis, Corro, and Sanders were associates and that they had committed crimes together before.  I don't know that this was really in question.  More significantly, Lundes tells Clappart that Belinda Temple had been a tutor to Sanders on difficult subjects, and that Sanders called her the night of the murder, crying because he had heard Belinda Temple was dead.

Clappart then returns to shoring up his "star witness", Daniel Glasscock.  He interviews Glasscock's father, who states that Daniel had told him about the information he had overheard Corro, Ellis and Sanders talking about.  Mr. Glasscock said that his son had been threatened about not talking, but he encouraged his son to talk to the police, anyway.  Mr. Glasscock said that Daniel ultimately talked to his minister, Jeff Adams, who had also told Daniel to tell the police.

I'm not really sure of the significance of this either?  So, Mr. Glasscock can offer some hearsay evidence about something his son told him he heard?  Maybe Clappart is going for some bolstering here, but I don't understand why it is in the warrant. 

Page 5 (we're almost done here) . . .

Clappart states that he personally interviewed Glasscock on July 16, 2012, and points out that (just in case anyone forgot), he, Clappart has been a police investigator for 44 years.  He points out his experience before deeming Glasscock to be "very credible."   I've read hundred of warrants in my career, but I've never seen this level of Credibility Gymnastics ever put into a warrant.  The reason Clappart is working so hard to make Glasscock seem credible is pretty apparent once Glasscock starts talking.

Glasscock tells Clappart of his own life of crime, but how now he is reformed and teaches gymnastics for children.  He confirms the information from the deposition he gave to Dick DeGuerin.  He recalls coming out of the bathroom at Sanders' house and finding Corro, Sanders and Ellis smoking on the back patio, talking about "shit was fucked up."  Glasscock tells Clappart "'they had broke in the next door neighbor's house' and later in the interview said that Sanders was very panicky and told Corro that they had shot the dog and put it in the closet."

Here's where things get even more ridiculous.

"Your affiant said that Daniel Glasscock then told your affiant that 5 or 6 months ago, Glasscock had learned that the dog had not died and that it was Belinda Temple's body that was found in the closet . . ."

Wait, what?

Clappart is interviewing Glasscock in July of 2012.  The murder happened in 1999.  Glasscock stated that he just learned of the murder in January of 2012?

Hang on, Glasscock has an explanation:

"Glasscock told your affiant that one night in May 2012 he could not sleep and woke up and turned on the television and was flipping through the channels when he saw a television program on the Temple murder and then recalled what he knew and what he had heard and began to think about what it would be like if Glasscock's father was in prison for a crime that he did not commit."

Well, I guess if you put it that way, it makes perfect sense, right?

Finally, Page 6 . . .

So, to summarize, Glasscock, an ex-criminal (per the warrant) didn't know about the murder for twelve years, sees a TV show, remembers an obscure conversation from twelve years earlier, and contacts a convicted murderer's lawyer with some new information about shooting a dog.

Yep, that's what Capital Murder warrants are made of, according to John Denholm and Steve Clappart.

Upon reading the entirety of the warrant, it should become obvious why Temple's team didn't want it published.  It should also become obvious why no judge in the courthouse would sign it.  

It should also be noted that no prosecutor in the District Attorney's Office, other than Jim Leitner thought it was should be signed.

But, then again, Leitner was having the Office recuse itself in favor of Brad Beers -- who had been Steve Clappart's attorney.  That makes it more fair, right?

If you're a prosecutor reading this, would you have taken Capital Murder charges based on that information?

If you're a judge, would you have signed the warrant?

And if you're a defense attorney, what would your reaction be if your client got arrested on a warrant like that?

The Denholm and Clappart Column

For those of you who have subscriptions to the Houston Chronicle, you may have seen that Lisa Falkenberg had a column yesterday morning praising defense attorney John Denholm and his friend, former Harris County District Attorney's Office investigator, Steve Clappart.  In a moment of very dramatic titling, the headline reads "Former officers saw through evidence, sought truth in Temple case."  ( NOTE:  Unless you have access to the Chronicle's premium content, I don't believe you can read the full article online.)

I talked to Lisa on Friday about the article and gave her my thoughts about Clappart and Denholm.  Although Lisa is a friend of mine, this was one of those many moments where we agreed to disagree.  I've read her article a couple of times now, and I think she misses the mark on many, many points.

To be clear (again), I am very biased on this topic.  John Denholm and I are not friends and we don't care much for each other (to put it mildly).  I used to be friends with Steve Clappart and I like him as a person, but his actions on the Temple case have made me question his judgment.  That being said, I still fail to understand what the big contribution was that Clappart and Denholm are alleged to have provided to the Temple investigation.

Clappart and Denholm were chomping at the bit to get a young man arrested for Capital Murder based on the word of a guy named Daniel Glasscock.  As I pointed out in this post and this post, in 2012, Glasscock had a "sudden memory flashback" to a conversation he had overheard in 1999.  In that decade old memory, he seemed to recall having overheard three of his then-teenage friends talking about killing a dog and throwing it in a closet during a burglary.  Clappart and Denholm surmised that they were really speaking "in code" about the murder of Belinda Temple and tried to get a Capital Murder warrant signed against one of the teens.

No judge in the Harris County Criminal Justice Center would sign that warrant.

In Judge Gist's (now infamous) findings of fact on the Temple case, he specifically rejected Glasscock's testimony as being inconsistent and not credible.  So, although Denholm and Clappart are getting a very large column on the front of City/State section of Sunday's Chronicle, Gist's findings dismissing their findings are never mentioned.

Despite this invalidation of their investigation, the column treats Clappart and Denholm as tragic heroes who lost friends and colleagues for their dogged pursuit of justice.  The article claims that they were ostracized for daring to question the ruling by "Siegler loyalists."

It is very true that Denholm and Clappart lost friends and were ostracized by former co-workers.  A detective I know mentioned to me a few weeks ago that he doubted the Sheriff's Office could "drum up enough people to carry a casket" for Denholm.  However, stating that they earned these feelings simply because they went against Siegler loyalists is simply false.  It was the way they went about it that earned them the distrust and alienation that they now lament.

Despite the animosity between me and Denholm, I actually identify with his motivations in several aspects.  He was a law student (as well as a Lieutenant with the Sheriff's Office) when Kelly Siegler asked him to take part in a mock trial as she prepared for the Temple case.  Like any law student would be in that situation, he was motivated to do a good job and dazzle the Office's best prosecutor with his skills.  As noted in Lisa's article:

"Denholm told Siegler her case had problems.  Her response, according to Denholm's sworn affidavit, was that most of his questions were improper and she would have objected to them anyway.

"'You know, to me,' Denholm says, 'if it's about procedure and not justice, that's a big problem right there.'"

Well, that's a bit disingenuous, isn't it?  Kelly told him that many of his questions were objectionable and, in her opinion, inadmissible, and he had a problem with that?  I understand the hubris of being a law student in a mock trial.  Trust me, I do.  Those pesky rules that keep us from making the points we want to make, however, are the Rules of Evidence that we have to follow.  With all of the allegations being hurled at Kelly Siegler right now, I think it is kind of ironic that Denholm would make such a statement.

Lisa's article goes on to point out how Denholm bashed his fellow detectives for their shoddy work on the Temple investigation.   It does not point out, however, that he told Kelly Siegler and his co-workers he would have gotten a confession out of Temple, if he had been running the investigation.  Denholm's surprise that he is no longer beloved by his brethren at the Sheriff's Office is amusing -- everybody loves a co-worker who tells you how much better he is than you!

Denholm was very proud of the job he felt he had done during the mock trial.  As he transitioned from Homicide Lieutenant to defense attorney, he was not shy about telling people of how he had made short work of the State's case during a mock trial on David Temple.  Nobody faults him for that.  When you are a defense attorney in private practice, you should be able to proclaim your courtroom prowess.  That's just good business.  I would have done the same in that situation.

Eventually, Denholm's tales of his mock trial skills got back to Temple's trial attorney, Dick DeGuerin.  DeGuerin, who believed Temple's conviction and subsequent Life Sentence were wrongful had a golden goose with Denholm.  The Harris County Sheriff's Office's Homicide Division had investigated the murder of Belinda Temple, and here he had a former Lieutenant of their own Homicide Division talking about how insufficient the evidence was.

Lisa's column is highly ambiguous about Denholm came to be involved in the re-investigation into the Temple case.

"Years later, in 2012, Denholm heard that a new witness had emerged, someone who'd overheard one of the youths confessing to the murder."

Hmm.  I wonder how Denholm heard that.  You don't suppose Dick DeGuerin called him up, by any chance, do you?

Don't get me wrong -- DeGuerin was doing what a good defense attorney should do.  He was capitalizing on a person who had the pedigree to give his client's innocence claims a higher level of credibility.  He would have been a fool not to contact Denholm and ask for his help.  However, Lisa spinning it like Denholm was just sitting around stewing over the injustice done to David Temple is misleading.

And stating that the one of the youths was "confessing to the murder" is an outright lie.

Enter Daniel Glasscock -- the witness who allegedly overheard someone confessing to a murder.

In 2012, thirteen years after the murder of Belinda Temple and five years after David Temple's conviction for that murder, Glasscock came forward after having his memory "jogged" by a television show covering the murder.  Glasscock was claiming that he had forgotten about a conversation that he had overheard thirteen years earlier between three friends of his.  Glasscock stated that he had only learned of Belinda Temple's murder in 2012.  The conversation he was now remembering was one where the three friends admitted to burglarizing a house, shooting a dog and throwing it in the closet.

Under DeGuerin and Denholm's belief, Glasscock's information was a confession to the Capital Murder of Belinda Temple.  (NOTE:  If you agree that this was, in fact, a confession to a capital murder, then you might as well stop reading now.)   Pretty much everyone else (outside of David Temple's circle of supporters) thought that was the biggest stretch of logic that the Harris County Criminal Justice Center had ever seen.

Let's take a moment and pretend that instead of Glasscock's highly attenuated story, DeGuerin had come across a story that had more teeth to it.  Tweak the facts of Glasscock's testimony just a little bit and pretend that instead of hearing his friends admitting to killing a dog, he overheard them admitting to actually killing Belinda Temple.  Don't you just know that DeGuerin would have bypassed Denholm and gone straight to the media?  He would have had Glasscock interviewed in an exclusive news story and made sure there was an outpouring of support to have David Temple released from his Life Sentence.

But the reality is you gotta dance with who brung ya, and at the end of the day Glasscock's story was a steaming pile of crap.  Denholm was an experienced Homicide detective and he knew that.  That's why he pitched it to the only person who might indulge this incredible stretch of a story -- his dear friend of 20 years, Steve Clappart.  As I mentioned in the earlier blog posts, Clappart shopped the new information to Jim Leitner, who wanted it kept quiet -- a strange position for the 1st Assistant to a District Attorney that had campaigned on transparency.  One of the lesser publicized portions of Kelly Siegler's transcript during the Temple hearing was when she spoke of Clappart calling her on her cell phone, crying, and saying that Leitner and DeGuerin were forcing him to look into the Glasscock story.

After I ran a blog post exposing the secret investigation, Leitner decided a Special Prosecutor was needed.  The District Attorney's Office passed the investigation off to Brad Beers, who had once been Clappart's lawyer when Clappart "had been the subject of what he calls a couple of baseless accusations of wrongdoing."  Team Temple did not see any conflict of interest or anything wrong with that.  I wonder if they would feel the same if Devon Anderson recused the Office from Temple now and appointed me as a Special Prosecutor now.  I'd be glad to help out!

Clappart and Denholm sang "woe is me" over how many friends that they lost because of the Temple investigation.  Those damn Siegler Loyalists are a bitter bunch of people, right?   Lisa's column painted a vivid picture of misunderstood law men with the courage to go against the grain in their unbending pursuit of true justice.

"'Someone blew this woman's head off,' Denholm says.  "Why wouldn't you want to find him?"

To the prosecutors and Sheriff's deputies who worked on the case, "this woman" was a pregnant mother named Belinda Temple and they very much wanted to find who did it.  As a matter of fact, they believe strongly that they did find who did it -- her husband.  A jury agreed in record time and now David Temple sits in prison.

The lack of respect and friendship that Clappart and Denholm are experiencing now isn't because they "went against the grain."  It is because they tried to use such a weak story to free a convicted killer.  The fact that they were going about it through back channels made it all the more distasteful. The fact that they were willing to let somebody else go down on a Capital Murder charge for it is terrifying.

Whether or not David Temple gets a new trial will be up to the Texas Court of Criminal Appeals, of course.  They have many things to mull over.  The information provided by Denholm and Clappart is not something that is likely to be a factor in that.  Judge Gist was quite clear that the newly found Glasscock information was not reliable.

Apparently, the folks at the Chronicle haven't been very interested in hearing any other side to the David Temple story, unfortunately.  That's not surprising, since it is run by an editorial board that took it upon themselves to run an entire editorial dedicated to bashing Kelly Siegler with the ridiculous accusation that she intentionally prosecuted an innocent man just to get a television show.  Apparently the idea that Kelly prosecuted David Temple because the evidence showed he murdered his pregnant wife was not something the Chronicle editors were interested in examining.

To my knowledge, neither Lisa nor Brian Rogers has interviewed anyone from the Harris County Sheriff's Office, the Harris County District Attorney's Office, or Belinda Temple's family about their perspective on the case.  I know that none of the concerns that I shared with Lisa on Friday managed to make it into the article.

When I talked to Lisa, she did ask me what would be the incentive for former Homicide guys like Denholm and Clappart to do what they did on the Temple case.  I told her that Dick DeGuerin was a highly respected defense attorney who was considered one of the best (if not THE best) in Houston and Texas -- being in his good graces had benefits.

Having a Sunday morning Houston Chronicle article painting you like God's gift to criminal justice is a pretty good benefit too.

It makes for a better story that way, I guess.

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.