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. 

Homeward Bound -- Kind of

As many of you know, my friend and and DWI lawyer extraordinaire, Tyler Flood and I recently started a law partnership up in Bryan/College Station.

I grew up in Bryan and spent two and a half years working at the Brazos County District Attorney's Office when I was going to Texas A&M.  I also spent a few months working at the Brazos County Attorney's Office while I was waiting on my Bar Results.  It is hard to believe that was 12 years ago.

We've been doing a case or two here and there over the past year, but I look very forward to getting back by my hometown more often.  It is always good to go back and visit old friends.

You can check out our website here and on Facebook by clicking here.

Just an Idea

Co-written by Tyler Flood.


Well, it doesn't look like the Fire Marshal's Office or anybody else in control of safety, order, or reason at the CJC is going to be doing anything to help the nightmarish situation that occurs at the elevator banks every weekday morning.

Here's a view from last week at the bank:






And here:

I've been saying somebody would get hurt with all the crowding, and someone finally did. Attorney Mary Moore got one hell of a bruise on her arm by a defendant slamming his way into an elevator that was already filled to capacity. According to Mary, the defendant was unapologetic, but pointed out he couldn't be late for court.

The Commissioner's Court and the Fire Marshals aren't doing too much investigating in the mornings because they are most likely terrified of what the results of that investigation would show:

That the Harris County Criminal Justice Center is a poorly designed and poorly created multi-million dollar building that requires drastic structural changes to make it safe for the public. That would cost millions of dollars that the County just doesn't have to spend right now -- not to mention the havoc that would be created while construction to fix the problems was taking place.

They need about four more elevators on each side of the building and a floor plan that doesn't create the insane bottleneck that we all know and love every morning.

Or, we could re-evaluate some docket scheduling matters that might help it as well.

Why do Harris County Criminal Courts at law make all people on bond come to court every 2-3 weeks? Why don’t the courts give the defendant’s lawyers enough time to investigate the case and then come back to court when they are ready to do something on the case, like plead or go to trial?

This is completely unnecessary and a monumental waste of time for lawyers, defendants (people who have real lives and real jobs yet people who are being forced to take off work for almost a full day while their case is pending, people who are “presumed” at this point to be innocent. Why can’t Harris County follow proper manners and etiquette and extend a little professional courtesy to the people charged with an offense and the lawyers representing them and allow the parties to appear at mandatory court dates less frequently?

In Galveston County, they actually let you come to court about once every 6 months so you can actually have time to work on your case. Montgomery County will give you a 3 month reset. Fort Bend and Brazoria also show the same courtesy. Harris County, however, will make a person come to court about 5 times in a 3 month period.

Why does Harris County do this?

One reason is there are a few judges that are hyper-concerned with the number of cases pending on their docket. There has become a competition between courts to see who can plead out the most cases and have the lowest number of pending cases on their docket. How do you encourage more people to give in and just plead guilty? Make them take off from school and work so many unnecessary times that they risk losing their job or getting kicked out of school. That way, the defendant comes in, throws their hands up and says to their lawyer, “Let’s just get this over with, I’ll plead guilty because I cannot take off any more time to come to court for these settings.”

You know why the court building is unable to handle the number of people there each day?

Because it wasn’t designed to have 15,000 misdemeanor defendants coming to court every 2 weeks. Longer resets would save money on human resources and reduce overcrowding in the mornings. It would also give lawyers time to work on their client’s cases and give the case a long enough reset date to actually matter.

Also, by spacing out the dockets for your on-bond defendants, there is more space to bring in those defendants who are still in custody and having their freedom actually deprived at the moment. These are the ones who need to be working more quickly towards a resolution of their cases.

I know that docket numbers are important to the judges, but have we really examined why? In most instances, a high docket isn't a reflection of poor management by a judge. A judge has to do their job regardless of whether there are 100 defendants on their docket or 1,000. If a case gets reset, it may be because a prosecutor doesn't have some "to do" done, or it could be that a defendant just doesn't want to work out their case.

That's not something to blame on the Judge of the court, is it?

Anyway, it's just an idea.

(EDITOR'S NOTE: Any portions of this post that were written with poor spelling or grammar or that were in any way offensive to a judge were written by Tyler Flood. All the good stuff with immaculate spelling was written by Murray Newman).

Tyler Flood's Experience with the DIVERT Program

My friend and Officemate, Tyler Flood, was kind enough to share his recent experience with Pat Lykos' new, controversial DIVERT program. Tyler, who's criminal law specialty is DWI and other related intoxication offenses details how Bridgwater's "rehabilitation program" really is just a great opportunity for a DWI Defendant to risk getting betrayed and screwed over by the Gang Who Couldn't Shoot Straight.

Tyler describes his experience as follows:

I accompanied a client to a DIVERT interview a week and half ago and met Raymie Hairell-Sweat, the person in charge of this program at 49 San Jacinto. She was very professional and did an excellent job at calming my concerns about what questions would be asked of my client about the actual incident. I was concerned with my client making any admission that could later be used against him. I expressed my concern to Raymie that I didn’t want my client to have to go into details about the incident and she ASSURED me that the interview wouldn’t be that intrusive and that a brief statement of what happened would suffice, such as “I was arrested for DWI.” I was more impressed upon our exit that Raymie actually went to the interviewer and told her to be cautious about asking too many questions about the incident that the attorneys were there and are very concerned.

WELL…on another client, we just received an email from ADA Roger Bridgwater, stating, “It appears his needs exceed the ability of DIVERT.” A Rejection from the program! His SALCE scores weren’t even at the highest 5 mark. They were in the middle and they still rejected him. Mr. Bridgwater attached the interview and it is a complete de-briefing on the incident covering EVERYTHING about what happened, including how much the client drank, admissions of operating, basically everything they need to have a solid case at trial now. They first promised they wouldn’t ask intrusive questions and were not seeking admissions and now not only do they send me a rejection letter into the program but through the interview process they have just prepared themselves for trial at our $202 expense!

After calming down and reflecting, it all makes perfect sense…They claim DIVERT is about rehabilitation and treatment for those that struggle with substance abuse. They also say that they are going to have a ZERO TOLERANCE policy meaning one screw up, one reading of alcohol in the ignition interlock, one relapse, whatever you call it, that person is out of the program and on their way to jail.

The problem is that treatment and zero tolerance are contradicting strategies. Treatment is not about "no mistakes". Treatment commonly involves relapse. This presents a problem to the DIVERT program. It sets it up to have very low success rates. The DA’s office needs for it to appear successful. So how do we fix the problem? By now deciding to reject anybody who they think won’t make a zero tolerance policy. Rejecting everyone who truly needs and could benefit from REAL treatment. Reject anybody who may have a problem and then you’ll have higher success rates. From what I heard yesterday, there was a meeting and it was stated that half of all applicants are in fact being rejected. So much for across the board acceptance for first time offenders.

I was suspicious of this program before, and now I am just angry. I would caution every attorney and client considering taking it and I would urge the attorney’s presence at the interview when possible.