2009 winter defender

8/11/2019 2009 Winter Defender

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OTALL

BONDSMAN

C N

PROVIDE

OUR

LEVEL

OF PROFESSIONAL

SERVICES

09 FANNIN STREET

H USTON, TEXAS 77002

7

3-223-BOND

(2663)


3/32


4/32

Distribution 1000 copies

per

issue.

For articles and other editorial contributions -

Contact Kathryn Kase at 713 222 7788 or

to place an d contact Earl Musick at

832 448 1148

or

[email protected].

D

THE

EFEII ER
mailto:[email protected]:[email protected]:[email protected]


5/32

a word froln our

r e s i ~ e n t

Ja nrw mUjick

Founded in 1970 and almost 40 years in the making,

HCCLA is the voice for the local defense bar. With many

of the nation's most talented defense lawyers as members,

it is no wonder our organization has grown into the giant it

is

today. Like no other local bar association, HCCLA has

undertaken

to

better the criminal justice system on a daily

basis.

HCCLA provides a daily listserv, an online database of

transcripts and forms, strike force support, regular CLE

opportunities, and a second chair program designed to

help younger lawyers gain practical experience both in

and out

of

the courtroom. In addition, HCCLA is your

liaison to the judiciary, the DA's office, and the public. The

new speaker's bureau provides informational speakers to

community groups and local schools on a consistent basis.

The Defender provides top

quality legal information and

articles with a circulation of 1,000 copies.

ith

everything we offer, it's not

hard to see why HCCLA continues

to gain respect and authority within

the criminal justice system.

That being said, it is sad to report that we must still fight

for the very basics

of

due process for our clients.

We

still

have prosecutors withholding Brady information, either

because they don't realize what Brady means or because

they believe that's how they get convictions.

We still have

judges signing motions ex parte. We still have judges and

prosecutors discussing cases ex parte, even when it's as

simple as which case is more likely to be called to trial

amongst the 10 set that day. Why a judge would believe

the prosecutor

is

to be given an edge on trial preparation

is

unclear, but make no mistake, it is inappropriate no matter

the reason.

We still have courts sanctioning inappropriate and illegal

behavior by calling it harmless error. Error

is

error and

ought not be tolerated, especially when created by those

entrusted to protect the public. Officers and prosecutors

take oaths

to

uphold the law yet they choose when

to

follow

it and, sadly, when to bend it. Is it really that important

that the certificate of service (attached to pleadings filed as

public records) actually recite whether or not documents

were actually served and when? Some think not. Is

it

really

important for the defendant and his lawyer

to

be present

during discussions with the judge? Some think not. Is

it really important where Deputy Pickett went to school

and

what degree he obtained? Some think not. Is it really

important that the officer actually read the DIC-24 to the

defendant prior

to

requesting the breath test? Again, some

think not. But where do we draw the line on this slippery

slope?

As a friend of mine recently stated, we all know the

difference between right and wrong, whether we like it

or not. When someone does something wrong, there are

consequences. Perhaps a defendant goes free because the

officer crossed the line; to do otherwise is to reward the

officer for crossing the line.

In our system of jurisprudence, we give prosecutors

judges and police officers large grants of immunity for

their professional actions, even when they are wrong.

This

is

a good thing for society because it does not hold

these individuals personally liable for mistakes. However

our system does not reward that conduct either. Evidence

should be suppressed when it is illegally obtained. The

suppression serves as a deterrent to the inappropriate

conduct.

With all that HCCLA has accomplished, there is so much

more to do, and we can use your help.

t

is a massive

undertaking but HCCLA stands vigilant. Justice is neithe

free nor easy, but we will continue the fight.

THE

EfEN ER


6/32

Demonstrating once again that eyewitness identification

is

more often wrong than it is right, BARRY

SCHECK

and

five Cardozo School

of

Law students won the freedom

of

Ernest Sonnier fo.llowing nine 0 rounds

of

post-conviction

DNA testing. Sonnier was sentenced to life imprisonment

in 1986 after an abduction victim identified him in a photo

array. Scheck told the news media that faulty testimony

from a Houston Police Department Crime Lab analyst

assisted Sonnier's wrongful conviction.

......................................

And in another case

of

faulty eyewitness identification,

LANA

GORDON

got two aggravated robbery charges

dismissed

in

the 182nd District Court following a thorough

investigation. Two people picked the accused from a photo

spread, but Lana found alibi witnesses and discovered

that the fmgerprints obtained at the scene by police didn't

match her client.

Remember that infamous murder case where

JACKIE

CARPENTER

and

ERIC

DAVIS raised a

atson

claim

because the prosecutors struck all the African American

jurors? When we last left this tale, Judge Jeannine

Barr

had dismissed the jury and re-set the trial date.

The

case

finally did go

to

trial, and Eric and Jackie obtained an

acquittal and gave their client - who was incarcerated

through all this - his life back. How s that for a happy

ending?

...................................... .

Speaking of happy news, BRIAN

WICE

has been named

the Best Criminal Defense Attorney in

Houston

by the

Houston Press.

. ............... .

Warning to prosecutors: Don t play Gotcha with

JOE

V

ARELA

around

to

do the appeal. The defendant pleaded

to

a Class C misdemeanor for disorderly conduct

in

the

belief that no additional charges would be pursued, but the

prosecutor filed an aggravated assault charge. A writ was

taken, 208th District Court Judge Denise Collins granted

relief, and Joe got the relief upheld

in

the Court

of

appeals.

D

THE EFEN ER

After six years

of

prosecution, four indictments, a

week-long trial, an acquittal, re-indictment and an

application for writ

of

habeas corpus,

GORDON

DEES, MIKE HINTON, ALEX MACIAS

and

JOHN

PIZZATOLA

prevailed when the

Fort Bend

County

DA finally dismissed the case against their clients, who

had been accused

of

manipulating the HP website and

purchasing computers for nothing. Robb Fickman, who

won in the early years

of

the case when his client

wasn

re-indicted, praised these lawyers for their tenacious

defense.

.................... ...............

He got death

off

the table for the client charged with capit

murder and, then, DAN SCARBOROUGH got the man

acquitted at

tria in

Montgomery County.

......................................

In a blow for due process and good old

common

sense,

BILL HABERN,

SCOTT

PA

WGEN

and

RICHARD

GLADDEN

convinced a federal court jury in Austin to

find, as a matter

of

law, that the Texas

Board of

Pardons

and Parole acted unconstitutionally in placing parolees

who have no sex offense convictions on sex offender

supervision. Bill notes that the decision potentially affe

between 650 to 1,000 other parolees who

were

subjecte

to the same unconstitutional procedures when the

BPP

placed them on sex offender conditions without benefit

due process.

.....................................

Two years

of

pretrial battling and the defendant's prescie

rejection

of

a 45-year plea offer ended with

STEVE

JACKSON

getting his client acquitted

of

murder

in

the

410th District Court in Conroe.

KELLY CASE

assisted

Steve at trial with blood evidence.

.......................................

Successfully alleging a violation

of

due process,

BOB

WICOFF

won a recommendation

of

a new trial

from Judge Jeannine

Barr

because the

HPD crime

lab

consumed all

of

the sample during

DNA

testing in an

aggravated-sexual-assault-of-a-ch ild case.


7/32

PAULA

SILVER

and GRANT SCHEINER won that

oh-so-rare verdict of not guilty by reason of insanity in

an attempting-to-disarm-a-peace-officer case

n

the 176th

District Court.

..... ....................

..........

.

There are few cases more likely to be death penalty

prosecutions than when a police officer

s

killed. Add n

two foreign-national defendants and a death prosecution

seems a certainty. But CASEY KIERNAN, RUDY

DUARTE, ROBERT

LOPER

and DIANA OLVERA

got death off the table for Andres Nava-Maldonado and

Xiomara Mendez-Rosales after conducting an investigation

that showed the facts supported only a felony murder

charge.

..... ................................

Assistant Federal Defender

P ILLIP

G.

GALLAGHER

convinced a panel (King, Davis and Benavides)

of

the

United States Court

of

Appeals for the Fifth Circuit to

reverse his client's conviction

of

unlawful transportation

of

undocumented aliens. In so doing, the panel found that a

United States Border Patrol agent did not have reasonable

suspicion to stop the client 's car and that because the stop

was illegal, the fruits

of

the inquiry into the passengers'

immigration status should be suppressed.

......................................

In

Harris County Criminal Court-at-Law No.9, DAN

GERSON won a motion

to

suppress and a directed verdict

of

not guilty n an unlawful-carrying-of-a-weapon case

brought after a concerned wife came to the scene to see

what she could see as her husband was being arrested.

.

..............

.......................

MATT SKILLERN obtained a not guilty

n

Harris County

Criminal Court-at-Law No.1.

..... .................... ......... .

PAT McCANN persuaded the Texas Court

of

Criminal

Appeals to grant a new punishment trial to death row

inmate Carl

Wayne

Buntion because his original

punishment trial lacked a constitutional

jury

instruction

on mitigating evidence.

More than one jury was happy to give MARK TIDESSEN

the verdict he loves to hear.

In

Montgomery County

Court-at-Law No.3 with Judge James H. Keeshan

presiding, Mark tried a case to an acquittal. Then, n

Harris County Criminal Court-at-Law

No.7,

Mark got a

IS-minute acquittal n a DWI case where the defendant had

a .19 BAC.

......................................

The State offered the client a shot at the Divert program

and, when he turned it down, the cops testified they had

to jump out of the client's way to keep from getting run

over

at an accident scene. GRANT

SCHEINER

won a

not guilty anyway in this DWI case tried n Harris Count

Criminal-Court-at-LawNo.3.

......................................

How do you say not guilty n Mandarin? DAVID RYAN

and BRIAN WICE heard the two-word verdict n English

after a mere 12 minutes

of

deliberation n a massage parlo

sting case tried in Harris County Criminal Court-at-Law

No.6. Carmen Roe reports that the highlight of the trial

(for her, at least) was when the presiding jurist sent out the

jury and asked the interpreter how to say butt naked n

Mandarin.

......................................

SUNSHINE SWALLERS won an eve-of-trial dismissa

on behalf of a client who was charged with evading for

fleeing a group

of

gun-toting thugs

at

a

UH

event. The

cops never investigated the hooligans, but

Sunshine

did

and discovered that another boy at the scene ended up n

the hospital after being attacked by them.

......................................

What can y u get done n six minutes? TYLER FLOOD

was so persuasive n a DWI 2d case that a Lee County jur

took only six minutes to exonerate his client.

......................................

ROLAND MOORE

III

won a reversal of a murder

conviction from the 9th Court ofAppeals and prevailed

again when the Texas Court of Criminal Appeal s denied

the

State's PDR.

THE EFEN ER

0


8/32

inning

Warriors

The client admitted to drinking a six-pack

and

a 16-ounce

beer, and the cops found another six-pack and an open

16-ounce beer n the car, but

JED

SILVERMAN

and

STEVE

GONZALEZ still obtained an acquittal n

Brazoria County.

...................................... .

JED SILVERMAN

argued involuntary intoxication and

prevailed again n a OWl trial, this time n County Criminal

Court-at-Law No. 4.

............................ .

If the skies seem friendlier, it may be because LISA

BENGE

and

PAUL DAMICO

saved a Continental

pilot's

job

when they got him acquitted

of

three counts

of

aggravated assault with a deadly weapon. The pilot was

charged after brandishing his gun when a suspicious car

with belligerent occupants showed up

n

his neighborhood

after Hurricane Ike hit. Lisa and Paul won the two-word

verdict after showing that the car's occupants had scary

criminal histories and the arresting officer had a rocky

relationship with the truth.

.

His client had two prior drunk-driving convictions, but

DANNY EASTERLING

obtained a fabulous two-word

verdict n a felony DWI case tried before visiting Judge

Brian Rains. A key to this victory? Danny 's discovery that

one

of

the cops had met the client's former girlfriend and

appeared to have arrested him as a favor to her.

........................ .

The client went out for drinks with friends to commemorate

the DWI-related fatality of a buddy, and then got busted for

OWl himself after weaving and driving 30 mph over the

speed limit. He also admitted to having had a few drinks."

Still,

TYLER FLOOD

got a not guilty n County Criminal

Court-at-Law No. 12.

.

.

JAMES FALLON and JOHN

PARRAS

secured a

mistrial n the 230th District Court for a client charged

with two counts

of

aggravated sexual assault of a child .

............. .......................... .

Haven ' t seen

MARK BENNETT n

trial lately? Probably

because he's getting one case after another dismissed.

First, he got an arson case dismissed, then an employee

theft charge. We hear through the grapevine that he's

bagged several dismissals he bagged

n

2009, but when

we asked him about that, he modest ly declined comment.

D

THE

EFEN ER

t looked bleak: the client was on 60 years

of

parole and

picked up his ninth DWI. But SEAN McALISTER

was appointed to represent him and, after 75 minutes

of

deliberation, the jury returned a not guilty verdict. Sean

credits his law partners, Christian Capitaine and Steve

Shellist, for giving wise counsel, Todd Overstreet for

talking him through an HGN strategy, and Troy McKinne

for advice on how to limit what the

jury

heard about the

client's eight priors.

.......................................

PAUL LOONEY

and

JOHN

HARLE

persuaded an

Austin County

jury

to return a not guilty verdict

n

an

indecency-with-a-child case. Key to the victory were

motions in limine motion that crippled the State's case and

a voir dire that prepared the jurors to acquit

if

they agreed

that the defense theory was likelier than the prosecution's.

......................................

After four days

of

trial

n

a murder case

n

the 351 st

District Court and just after the State rested, BRIAN

BENKEN

and

CRAIG WASHINGTON

obtained an

acquittal when they moved for an instructed verdict and

Judge

Mark Kent

Ellis granted it.

....................................... .

LANA GORDON

got a cocaine residue possession case

dismissed

n

the 176th District Court after the client passed

Lana 's drug test. The client swore

he'd

only smoked dope

even though the cops had bagged push rods and a crack

pipe as part

of

the arrest. Judge Shawna Reagin granted

Lana's motion to administer a store-bought drug test, with

Murray Newman serving as witness. T he State dismissed

upon seeing the negative results for cocaine use. Says

Lana, I'll have a few more

of

those throw-down urine

tests ready from now on."

. .

ERIC DAVIS won a very rare reversal n the 14th Court

o

Appeals

n

a criminal case out

of

Jackson County.

......................... .

DAPHNE PATTISON prevailed n a no-test, no-accident

felony DWI case over three police officers who claimed

that her client was acting intoxicated. Judge Mark Kent

Ellis considered the evidence

n

this bench trial and entered

an acquittal.

....... .............................. .

t was a week-long murder trial with two eyewitnesses

and a confession from the client himself, but

JOHN

PETRUZZI

convinced four jurors that the State's evidenc

was wanting. The jury was declared to be hung after it sent

a note stating that the four could not change their minds

without doing violence to their consciences. Amen

................................

.

Out n Jefferson County,

JIM

MEDLEY won an acquitta

without a defense expert

n

a DWI case with a client who

blew.12.


9/32

RON MORGAN inaugurated his HCCLA membership

by obtaining an acquittal for a DWI client in Montgomery

County Criminal Court-at-Law NO.3.

.............. ...................... .

A persuasive motion to quash by SAM ADAMO caused

County Criminal Court-at-Law No.5 to grant rel ief and

dismiss the telephone harassment charge against his client.

..............

...................... .

VIVIAN KING got an acquittal in a family assault case

in County Criminal Court-at-Law No.

14

with RAMONA

FRANKLIN-WILLIAMS as her co-counsel.

.............. ...................... .

TODD DUPONT, with

STEPHEN

TOUCHSTONE

as his co-pilot, obtained an entrapment instruction and

obtained a hung jury on a state jail felony theft/receivership

case. Sunshine Swallers reports that Todd's client was an

irrunigrant who would have lost his status had he been

convicted.

...... .............. .............. .

In the 184th District Court,

BUTCH BRADT

and

ELSIE

MARTIN-SIMON won dismissal

of

an aggravated sexual

assault case. The duo obtained this result after showing that

their client - who was being prosecuted for conduct alleged

to have occurred while he was a juvenile - never was

served with the petition and surrunons before

he

tumed

18

.

......

...... ....................... .

His client made racially inflammatory statements about the

arresting officer, but JORDAN LEWIS calmly secured

a not guilty in a DWI case tried in Fort Bend County

Court-at-Law No.4.

...... ............................

.

JOHN FLOYD

and

CHRISTOPHER

CARLSON

have mucho mojo. First, they heard "Dismissed " for

a felon charged with possession of a firearm when

the State agreed that its case had - in Chris' words

" issues." Some weeks later, this dynamic duo heard

Not

Guilty " from a Montgomery County

jury

following an

indecency-by-contact-with-a-child trial. Then, they got a

DWI dismissed

in

County Criminal Court-at-Law

No.8

after showing that their diabetic client was hyperglycemic

at the time of the stop.

... .................................

...

.

A big cheese ADA tried a DWI case to show the lowly

assistants how

it's

done" - and we doubt that he meant

eat an acquittal" but that's what happened when

RICK

OLIVER

defended in County Criminal Court-at-Law

No. 13

.......................................

MARK TIllESSEN won a DWI

in

County Criminal

Court-at-Law No.2 despite facts that included the client

causing a one-car accident and then trying to bite the police

video camera.

First, a female firefighter accused the Houston Fire

Department of permitting sexual harassment, and offere

up evidence of some pretty gnarly scrawled comments .

Then, District Judge Susan Brown entered an order

compelling the female firefighter to be taken into custo

to give handwriting samples. RANDALL

KALLINEN

applied for mandamus in the 14th Court of Appeals and

Judge

Brown

withdrew the order.

........................................

JEREMY DISHONGH

and DEANDRE GIBBS won

an acquittal for a client accused ofDWI in Montgomery


No.3.

..........................

............

And speaking of drunk driving, DOUG MURPHY has

been elected to the 12-person Board

of

Regents for the

National College for DUI Defense. Houston now has tw

people on the august panel, the other being

our

very ow

Troy McKinney.

THE EFEN ER

~


10/32

It took a jury

in

Galveston County Criminal Court-at-Law

No.3

only 10 minutes to acquit TAD

NELSON s

client

in

an assault/family violence case.

..................... .

In a case involving notorious Fort Bend County

Sheriff's Deputy Keith Pikett and his scent-lineup dogs,

WILVIN CARTER

and JAPAULA

KEMP

got four

burglary-of-a-babitation charges dismissed and a fifth

charge reduced to theft when they insisted on going

to

trial.

...................................... .

The immigrant client was charged with aggravated assault

against peace officers and spent

18 months in the county

lockup, but ANNIE BASU got the charge dismissed,

the record expunged and the client's immigration status

re-established . But she still

wasn t

done until she sued the

peace officers for violating her clients' rights and won a

$60,000 settlement.

.................... .

CHERYL

IRVIN got a case dismissed in the 337th

District Court when she, too, insisted on going

to

trial and

all the State had was scent-lineup evidence from Fort

Bend County Sheriff's Deputy Keith Pikett.

.

t

was beginning to seem like the Case That Wouldn't Die,

but KELLY

CASE

prevailed anyway. First, he got the

case dismissed on speedy trial grounds, but the prosecution

re-filed the charges. So, Kelly sought a writ

of

habeas

corpus on double jeopardy grounds and the prosecution

finally saw the light and dismissed.

@

THE EFEN ER

Making it known that she had discovered a credibility

problem on the part of the police, CYNTHIA HENLEY

got a cocaine possession (15.98 grams) case dismissed

right before the suppression hearing in the 228th District

Court.

..................................... .

Just try keeping secrets from

PAUL KUBOSH,

RANDALL

KALLINEN,

and open records lawyer

JOE

LARSEN.

The City of Houston foolishly refused

to disclose documents regarding safety at intersections

controlled by red-light cameras, and this trio persuaded

295th District Court Judge Tracy Christopher

to

order

disclosure of those records.

..................................... .

The jury had been sworn

in


No.8, but EARL MUSICK and

JOANNE

MUSICK

battled hard behind the scenes to win a dismissal of a

family violence case.

.......................................

A fierce three-day battle by DAVID RYAN

in

a family

violence case ended

in

an acquittal for his client

in

Count

Criminal Court-at-Law No.

14

BRIAN WICE and

CARMEN

ROE persuaded the Texa

Court

of

Criminal Appeals

to

grant a new punishment

trial for Susan Wright, who was convicted

of

killing her

husband by stabbing him 193 times, after showing that

she was not effectively defended when she originally was

sentenced

to

25 years in prison.

................................ .

As the ad says, it pays

to

discover.

JED

SILVERMAN

won dismissal

of

a felony possession case (Ecstasy)

in

208th District Court after his investigation discovered tha

the arresting officer had no probable cause for the stop an

that the officer 's inference that his police car

didn t hav

a video camera was untrue.

...................................... .

There were three kilos in the back seat and the cops had

the car on surveillance during the delivery, but ROSA

ELIADES won reversal

of

the conviction

in

the 1st Cou

of Appeals.

.

There are many ways to be an advocate and one

of

them

is to pursue a sentence that a client can live with . So it

was with

CARMEN

ROE who represented a federal

client charged with possessing with intent to distribute

61 kilograms -

or

250,000 tablets -

ofMDMA.

The bas

level was 38 (235 to 293 months for those with little to n

criminal history), but Carmen worked diligently and the

judge sentenced her client to time served, three years

of

supervised release and no fine. And did we mention that

Carmen's client had only one day

of

jail credit?


11/32

HCCL

Shares

To

ill

Mockingbird

with Local Schoo

by Wendy Miller

HCCLA donated 155 copies

of

To Kill

Mockingbird in

May

2009 to

local

high school

students in

recognition

of

the

Harris

County

Public library s

Big

Read summer reading program. Each volume bears a book plate

stating

that

it was donated by the Association.

Students at Yes PREP-North Central, Milby

High

School, and the

High

School

for Law

Enforcement Criminal Justice received

the

Association-donated copies.

Each

school s library

also

received a single

copy of the book for its

permanent

collection.

The

Big

Read

is a

one-community/

one-book reading

event

that

encourages

people to

read

and

discuss

important

issues

raised

in

a single book.

The

Harris

County Public Library, with the

support

of

the

National Education

Agency,

chose

to

highlight Harper Lee s

To

Kill

Mockingbird

proudly

Donated by

County

Criminal

Twenty-five copies

of

the books at the

ams

High School for Law Enforcement

Lawyers

AsSocIatIon

Criminal

Justice are reserved specifically

for underclassman. Several HCCLA

9

member volunteers were

scheduled

to

return in

December

2009

to discuss the

book

and

get to know the students over a

lunch also provided

by

the Association.

The teens are very excited

about

spending

time

with

local

criminal defense attorneys

and expressing what they have

gained

from reading

the

book.


12/32


13/32

by st ci Biggar

At

the beginning

of

2009, Harris County

criminal

district

judges decided

that a full-time mental health court

was

needed given

the

quantity of

defendants

afflicted by

mental health issues in this county. The

judges

designated the 184th District Court and Judge Jan

Krocker

to serve

in

the

capacity

of presiding judge of the

mental health

court.

Approximately

25

percent of the inmates in

the

Harris County Jail

have, or are suffering from, a mental illness - a fact that means the

jail is the largest mental health facil ity

in

the state of Texas. The

criminal justice system has historically ignored mental illness and,

consequently, criminal defendants with

such

illnesses traditionally

failed to get

the tre

a

tment

needed to keep them from ret1lming to the

system.

By

recognizing

the need for

a full-time mental health court,

the

county is recognizing the need to repair a broken system .

Essentially, the mental health court is intended as a therapeutic court

in

which defendants with mental

health

ailments will participate

in

a judicially supervised treatment plan developed

by

mental health

professionals. Prosecutors, defense attorneys, probation officers,

and

mental health professionals , along

with

substance-abuse treatment

providers

and

social workers, will work in a non-adversarial

environment to enable defendants to obtain treatment.

Eligibility would

be

determined at

intake.

Only 46 non-violent felony

offenses would qualify a mentally ill defendant to

be

sent directly to

the mental

health

court. A qualifying defendant would

have

to

have

an

Axis I or Axis I diagnosis or a cognitive or anxiety disorder to qualify.

Among the qualifying diagnoses are schizophrenia, bi-polar disorders,

and major depression.) Additionally , defense counsel,

the

prosecution,

and

the

judge would have to agree that a particular defendant qualified

for

the

court

Once admitted to

the

mental health court, the defendant would be

evaluated by a psychiatrist and interviewed by a social worker.

Following

a

needs assessment,

a treatment

plan would be recommended.

Still being worked out are the details of

how

cases would be resolved

upon successful completion of the treatment

plan.

One indication

that

a full-time mental health court can be successful is

found

in the

mental

health

docket that District Judges

Mark

Kent Ellis

and Marc Carter have handled for

four years.

Although the number of

cases handled in

their

courts have

been limited due

to

budget

restraints,

Judges Ellis and Carter have shown

that

individualized attention can

result

in

success for

the

mentally ill defendant.

The

planning

team for the

full-time mental

health

court includes Judge

Krocker

,

members

of

the

Harris

County District

Attorney s Office,

myself, HCCLA President Joann Musick , past-presidents Robb Fickman

and Mark Bennett, and defense lawyers Hilary Unger, Nicole DeBorde

and George Parnham. Others who are providing input include:

the

Harris County

Probation Department, psychiatrists

from

MHMRA

and

private

practice,

social workers,

the

Harris

County

Sheriffs

Department,

HPD Crisis Intervention Team, Pre-Trial Services, treatment

providers,

local

ministers,

LULAC

,

NAACP,

various

political

staff

members

from

several state

and

local politicians , faculty members

and

physicians from

both University of

Texas

Health

Science

Center and Baylor

College

of

Medicine ,

the

Harris County District Clerk s Office, representatives

from

HCPC

and the

Rusk

State

Hospital,

and

the Coalition

for

the

Homeless

.

All participants

have been

vital to the effort to

make

a full-time

mental

health court a reality

n

Harris County.

Pending approval of

th

e necessary funding, the full-time mental health

court is scheduled to

open

in

the Spring 2010

THE

EFEN ER


14/32

V E r l I ~ l l i N S . ~ . ) ( J l l l :

IICtllJil1

Ilctl-c ctS

C;C'llICt

IC'IIICt

BY l'Arl'RICK

F. M ~ C A N N

_

The Texas Legislature last session approved legislation

np -rn tt r o counties

t

create pre-trial diversion courts for

t .....

'n . Harris County hopes to become a pioneer with its plan

J.)pera

t

a veterans court under the supervision of228th

Court Judge Marc Carter.

.... . courts will allow veterans and current armed forces

mem

bers to obtain pre-trial diversion

of

their criminal cases

when they can demonstrate that a service-connected disability

was a factor in the charged conduct. Participants who complete

an agreed-upon treatment program will have their cases

dismissed and their records may be expunged. Because the

prosecution must consent to the diversion, there is a check on

which cases would be deemed eligible for the veterans court.

The idea for a veterans court originated with state Sen. Rodney

Ellis (D-Houston) and was supported by a diverse coalition that

included its House sponsor, state Rep. Allen Vaught (R-Dallas).

HCCLA, the Houston Bar Association, the Harris County

District Attorney' s Office, and a coalition

of

veterans groups

from across the state also supported the legislation. Association

past president Jack Zimmerman, who retired from the U.S.

Marine Corps with the rank

of

Colonel, testified on behalf

of

th

bill, as did his daughter, Marine Lt. Col. Terri Zimmerman.

With them was Judge Carter, himself a former Army Captain

and the son of a retired Lieutenant Colonel in the Army.

TH

EFEI ER


15/32

, , ;.\S 01: this \\f.-itillg, thu ,rntU-IlIiS e ~ o l l l t

In

his testimony, Judge Carter spoke

eloquently about a Marine who had won two

bronze stars, but who appeared before him as a

defendant as a result

of

the invisible wounds

inflicted by war. (These can include

post-traumatic stress disorder, traumatic brain

injury, depression, and frequently, substance

abuse.) Through the extraordinary efforts

of

the court, the defense, and the prosecution, the

Marine was granted a felony pretrial diversion.

The Marine was due to have completed his

diversion contract in December and regained a

clean record.

It was that example - and the unusual

collaboration between many stakeholders in

the criminal justice system - that assisted in

passage of the veterans court bill. It is that

same spirit

of

cooperation that has helped in

planning the pilot program here.

As

of

this writing, the veterans court has been

approved by the district court judges and the

new Criminal Justice Coordination Council

and was slated to be considered

by

the Harris

County Commissioner's Court. The program

will start small. In its first six months, the court

will be limited to not more than 20

or

so

carefully screened eligible veterans or serving

armed forces members.

Participants will be referred to the veterans

court in a variety

of

ways: screening at the

jails, individual referrals from judges or

defense attorneys, and any other way that

makes sense, provided that the candidates meet

the criteria. The veterans must be honorably

discharged

or

currently on active or reserve

duty. They must not have committed any

sexual offenses or any of the 3G offenses

(though aggravated assaults may be considered

on a case-by-case basis).

Server, Worl


16/32

-

If

the enenlY is taking his

ease, harass him; if

quietly

encamped, force him to

move . . . march swiftly to

places where you are not

expected.

-Sun Tzu

l

in the course of his

defense the defender can

fight a tactically offensive

battle by seeking out and

attacking the enemy as

soon as he invades his

theater

of operations.

-Carl von Clausewitz 2

o

trategy

+

o

y Joseph W. Varela

Vivek Ranadive had a problem. He had agreed to coach his

daughter's National Junior Basketball team, essentially the Little

League

of

basketball. But at first glance, it appeared that

h

had

little to work with.

Ranadive was an immigrant from Mumbai. He was a graduate

of

MIT who owned a software company. He had no experience with

basketball. His team, made up mostly

of

twelve-year-old suburban

girls, had two serious players, but the rest had never played the

game. None

of

them had any particular physical talents. He was

competing against well-coached teams

of

girls who played pickup

games every afternoon. The opposition was clearly superior. It

seemed

to

be a recipe for humiliation and defeat. )

Many times, an outsider, working without preconceived notions

or ingrained habits, can discover unorthodox solutions

to

a problem

the existence of which insiders have failed to notice. Ranadive took

a hard look at basketball itself.

He

was perplexed at how after a

team scored, the players would immediately retreat to their end

of

the court and await the opponent, who was allowed to advance the

ball unopposed until the last 20 feet or

SO.4

In fact, the team

in

possession was permitted to bring the ball inbounds unmolested ,

and was further pennitted to arrange its players under the goal and

bring the ball near. Only

in

the last few seconds, when the offense

executed its prearranged scoring maneuver, did the defenders

respond. And this situation obtained at the highest levels of

collegiate and professional play. Each basket is ordinarily worth

two points . NBA teams score

in

triple digits regularly.s

t

was all

offense, no defense, by tacit agreement. Looking at

it

quantitatively,

on a basketball court, for most

of

the time,

in

most

of

the space, the

game was not contested.

6

THE EFEN ER


17/32

Ranadive thought that this style

of

play rewarded the

stronger teams, namely those who had the talent and

experience to better execute prepared plays under the goal.

More accurately, he thought that such a style tended to widen

the gap between the stronger and weaker teams. The problem

was how to narrow, and if possible, overcome that gap. Even

ifhis

players had the physical talents to execute the technical

skills they would need to match the competition, Ranadive

had no time to teach those skills. What he needed was a

stratagem.

Ranadive's solution was what is known as the "full-court

press." This stratagem, reduced to its essence, is to contest

each and every move the offensive team makes, from the

moment it brings the ball into play. t

is

but rarely used in

traditional basketball, and then only briefly. What if,

Ranadive wondered, his team could use the full-court press

every minute and on every inch of the court?

And so he spent what little practice time was available

teaching his girls how to press, how to steal the bal1 how to

block passes, how to make only short shots. He spent most

of

the practice sessions making the girls run, thereby building

the endurance conditioning necessary for such sustained

action. He taught his team

to

contest every foot of the court,

to

stick

to

the other team like glue, to be everywhere at once,

to concede nothing. It was a style of play that allowed effort

and energy to substitute for skill.

They crushed the opposition. Regardless

of

the superior

experience and talents of the opponents, Ranadive's team

instantly dominated the games, jumped out to early leads and

held them. They upset the practiced plays

of

their opponents,

spoiled their timing, forced turnovers. They rattled the

opposing players, made them angry, made them panic, ran

them out of breath.

7

In one game when only four of their

players showed up, they lost by only three points. They

moved through the regional championships and into the

nationals, where they were final1y eliminated; but they had

played at a level far beyond that which their meager

resources should have predicted .

There are lessons for the defense lawyer.

When a criminal case commences, how is the defense lawyer

to react? Too many defenses resemble the traditional style

of

basketball play. They concede the prosecution's opening

moves, fall back, and await the prosecutor's next move. The

case is reset over a period of weeks and months, and little

work is accomplished . Meanwhile the prosecutor is getting

ready for trial.

What would a "full-court press" look like? Like Ranadive 's

girls, the defense lawyer must put forth great effort

immediately. Witnesses must be located and their statements

taken. Where applicable, visit the scene and get pictures,

before the scene changes. Crucial pretrial motions must be

filed and, where applicable, hearings held. Discovery should

be sought immediately; most Harris County state courts have

standardized discovery orders which the

judge

will enter

even before motions are filed; while these are by no means

complete discovery, they are a start. The criminal records of

all witnesses must be found. Legal research on critical issues

must be accomplished.

A steady stream of this kind of work

is

a full-court press. f

nothing else, the defense lawyer should be outworking the

prosecutor from the outset, and must be seen doing so. As

with Ranadive's basketball team, effort on the part of the

defense can compensate for the government's superior

resources. A prosecutor aware of such a vigorous defense

might think twice before tangling with

it.

'THE ART OF WAR, chap.VI (James Clavell, trans. 1983).

20N WAR Book VI, chap. 9 (trans. Michael Howard Peter

Paret 1976).

JThe story is told in Malcolm Gladwell, How David Beats Goli

ath, THE NEW YORKER, May 11 2009. This author wishes

to

thank Mr. David Adler for bringing it

to

his attention.

4I've wondered about this myself. What iffootball teams, after

turning the ball over to the opposition, fell back to their own 20

yard line and awaited events?

5Th ink about baseball, a game in which the defense dominates .

Imagine if a typical Major League Baseball score was 53-48.

6

In

a very different sport, imagine a Tour de France in which the

cyclists agree not to compete until the last

10

miles

of

each stage.

Of course

it

does not work this way; attacks can and do happen at

any time.

7As this essay went to press, the University of Houston Cougars

were applying this stratagem to football See Steve Campbell,

Coogs enjoy cramping opponents style: UH sfast-paced attack

often leaves defenses winded,

HOUSTON CHRONICLE, October

21 , 2009, at http://www.chron.comJdisp/story.mpl sports

Icollege/houstonl6679741.html (last visited Oct. 28, 2009).
http://www.chron.comjdisp/story.mpl!sportshttp://www.chron.comjdisp/story.mpl!sportshttp://www.chron.comjdisp/story.mpl!sportshttp://www.chron.comjdisp/story.mpl!sportshttp://www.chron.comjdisp/story.mpl!sportshttp://www.chron.comjdisp/story.mpl!sportshttp://www.chron.comjdisp/story.mpl!sportshttp://www.chron.comjdisp/story.mpl!sports


18/32

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19/32

Part

n

Investigating

the

Draw

Most defense attorneys think that a DWI

prosecution

based

on

drawn blood provides

no

avenue for a defense

and

that the

drawn

blood

is

an evidentiary "lock." I have fmUld

this

to

be

far

from true

when

time and effort

is taken to develop these

cases properly.

Soon after being hired on a blood-draw DW I you must set up

an

interview with

the person responsible for taking your

client's

blood.

The interview with

the

vampire

(with

apologies

to

Anne Rice) should take place soon

after

your

client hires

you. You want

to

interview

the

vampire as soon after

the

blood

draw, as possible. Memories fade very qillckly, especially

for

a nurse who

is

drawing blood 5

to

10 times a day. So don't

delay

.

Trying

to

talk

to

merucal

personnel

can be

ilifficult.lfthe

draw

was conducted by

a

hospital, they will want

their legal

counsel

to get involved. Their legal counsel

will

want you to arrange

all interviews through them. Don't agree to that

and

don't do

it. The

nurse is

a witness

in

a criminal matter. They cannot

keep the nurse from

talking

to

you,

provided you have

a

valid

HIPAA release signed

by your

client.

For

them

to

advise the

nurse

to

not talk

to you

woul violate

the rules

o professional

ethics.' Criminal

and

civil rules are ilifferent

with regard

to

obtaining witness depositions

and

there is a

long

line o

criminal cases that give you

the

right

to talk to any witness,

without

interference.

by

elly

w Case

f the nurse will not return your phone calls or will not agree

to

talk to you while

on

video, request a deposition. A witness'

refusal to iliscuss what they

know

with

you

is

grounds for

a

deposition requesU

Bring

a

video

camera

and

explain to them

that you

want to

focus on talking

to

them and not have

to

take

notes.

This will

be much quicker for them, too, since you will not have

to

write

everything

down,

word

for word.

You are trying

to

detennine:

1) What procedures do they normally follow when drawing

blood. Do they really know the correct procedures?

2) What

specific

procedures

ilid the

nurse use when drawing

your client's blood?

The purpose o

this

interview is similar

to

an ALR hearing.

You want to record

the

witness

for

later

use,

i f necessary, to

either refresh their

memory or

rebut any

testimony

that may

have changed by

the time

o trial.

Develop

your questions

before you meet

with

the

witness.

I

use

a checklist

o

the

procedures found in

Phlebotomy

Essentials)

to make

sure

I

can quickly and efficiently utilize the time allotted with

the

witness.

IRE

I ElDER


20/32

Part

ll Investigating

the

Draw

Before beginning your

blood lab

quest, you must have

copies of

necessary

infonnation, either through subpoena or discovery

motion, in order for your time

at

the lab to be productive for

you

and your client. If you are

going

to be dealing with the DPS

Crime

Lab

located

at 12230 West

Road, Houston, Texas

77065-4523),

use a subpoena The items

you

should

request

can

be found in

Troy McKinney s

blood discovery motion.

4

Send

the

lab a copy of the signed court order in

which

you should have

included

language

authorizing

you

to review

the

evidence the

evidence

at

the

lab.

Take the time to learn

what

you are asking for in your discovery

or subpoena. You will receive a CD from the lab with

approximate 1,500 to

2,000

pages of

material.

Once you have

fully

reviewed the lab documents and

know

what questions

you

will have

about

any

issues or discrepancies, call

the lab to

schedule an appointment to review the kit.

A major part of your trial preparation is inspecting the

kit

and

contents

at

the lab. The kits

look similar to

this:

There are three dates you must determine: the kit expiration

date,

the

individual

blood

vial expiration date, and the swab expiration

date . Swab packaging often

is

discarded at the time of the blood

draw so

you must

swiftly

secure this

evidence and preserve it for

inspection through a

motion

to preserve.

5

Can

you spot

the

differences

Take

a look at these items from a testing kit.

Call you

spot the differences?

" O"OE"

NO., BUK200

EXP. DATE: MA .

aI

,

200t

LOT NO., lOl7

The

kit expiration

date

is stated as

uMarch 31,

2009,

the

blood vial

expiration is 2()()9.{)3

and the swab

expires

on

02/2010.

THE

EFEN ER


21/32

Check the expiration dates against the date that the blood was

drawn, as

well as the date the blood was

tested.

If the blood was

drawn after the expiration of the

kits

, the manufacturer's warranty

will not guarantee aviable

test.

Likewise, if the blood

was

drawn,

but not

tested

witlUn

one

year of the

draw, the test

should not

be

admissible.

The

tubes

are only warrantied for

one year after the

date of the blood

draw

since their integrity is compromised

during the draw itself and because

the

preservative and

anticoagulant cannot

stop contamination,

but only slow down the

process. After a year, any testing will

not be

accurate, according

to Sirchie

Labs.

Send

a

letter tto all law

enforcement

in

your

county

requesting

that

all

of

the original

instructions

and packaging

be

kept and

maintained

as part of the body of evidence in your case.

Specifically, ask for all

of the original contents

of

the

kit

to

be

preserved

including but

not limited

to swab cover

and

all

instructions

of use." The Texas kits are different and contain

different instructions than the manufacturer insists upon Similar

to the Intoxilyzer 5000,

Texas has

substituted

its own instructions

in these

kits.

The Texas kits require several inversions of the vial after the

draw

is complete.

The

manufacturer

states that

the

tube must be

inverted

precisely eight

times.

n inversion

is

equal to turning

the

tube upside down and returning it to the original upright position.

l is must

be

done precisely

five

times,

no

more,

no

less, in order

for

the preservative and anticoagulant to

be mixed

sufficiently,

but

not

cause hemolysis, according

to

BD Vacutainer

instructions.

6

Attach

the

letter and

green card receipt to your motion for

spoliation suppression when it is inevitably determined

that

the swab packaging and instructions have been discarded

and you will have

a

viable

argument

based on assie v State

that you

have

been denied the right

to independently verify

the expiration

date

on

the swab

.

Set up your appointment for evidence review

by

sending

the lab

a

copy

of

your order authorizing

you to

review

the kit. The DPS Crime

Lab

in

Houston

will accept faxed copies

.

Call the lab for

a

date

and time for your review. Be on

time

and bring a legal

pad,

camera and your lab file, which should at a minimum contain

the lab report for your case. This report will contain the

lab

number and

assist in locating the kit

When you get

to

the lab, you will check in at the main desk and

be given a visitor pass to go to

the

lab. You

will go

to

the

lab entry

area and wait for the lab personnel to remotely unlock the

door.

Introduce yourself

to the

lab personnel and be ready with your

questions and your file so

they can pull

the test kit. Most of the

time, they will have

the kit ready for you, but bring your file

in

case

they need

their lab number to pull the kit.

Ask

for and use the rubber gloves the

lab will

provide, or bring

your

own.

You

will

be

handling human specimens, which require

you to adhere to the universal precautions for bloodbome

pathogens. Be

aware

that this can be dangerous

material

and treat

it accordingly.

When you

first see

the kit, look for dates and writing on the

outside before opening. Look

for the "kit"

expiration date on the

outside of

the kit

and note it in your records before you

start

cutting through the tape. Photograph the date, if possible.

Look also at the

labels used

to

mail the

kit. Postal regulati

ons

8

require

that

human specimens must have this label affixed to the

outside of the package before

they

can be

mailed:

If your

kit

does

not

ha

ve this

sticker

on

the outside,

get

a photo

of

the kit without the sticker. By violating postal regulations, the

arresting officer

has

given you grounds

for

suppression. File

your

motion to suppress

based

on the evidence (specifically, the lab

results) being obtained in violation of 18 U.S.c. 1716(jXl).

THE

EFEN ER


22/32

DWI

Blood Defense:

Part

n,

Investigating the Draw

For

those in

jurisdictions where law enforcement physically

delivers the

kits

to the

lab,

you should check

the

date

the

blood

was drawn against the date the

lab

received the kit. It is not

unusual for

kits

to be kept in the tnmk of he officer's "unit" for

several months before being used

to

collect blood. Nor

is

it

unusual

for the kits used for

blood draws

to

remain

in an

officer's

trunk

for

over a month before being delivered

to

the

lab.

Ask

about the location of

he kit both

before and after

the

test in your

ALR hearing so

you

know what sort ofcondition

the kit

was in at

the

time.

Don't be deterred when the officer tells you that no

contamination could possibly have occurred even though the

blood spent a month

in

a car

tnmk

during one

of

Houston's

summer months

In fact,

unless drawn blood is refrigerated inunediately, the

accuracy of any testing is suspect. When questioning your lab

analyst about their rules for refrigeration and

the

time frame they

must follow upon receiving the kit, ask whether a kit that can

remain unrefrigerated

for as long

as your

kit, is

still considered

accurate.This can counter the Trooper's fallacious assertions that

blood does

not

have to be refrigerated and can provide you

enough of a defense that your ADA will decide to not prosecute.

You will

find forms

and labels such

as

these within the blood testing kits. Each

fann should be filled out

completely

so

there are no questions

to

be asked.

PLACE

OVER

BOT7l.E

CAPISLOOD

TUBE

STOPPER)

(PLACE OVER

BOTn.e CAPISLOOD

TuSE

STOPPER)

(PLACE OVER

BOTTlE CAPI8LOOD

TUS

STOPPER] .:

THE

DEFENDER

If the

State really wants to take one of these "disappearing"

kits

to

trial

make sure that you obtain the documentation necessary to

attack the chain of custody. There is much fertile ground here

because records are not kept very well about the location where

blood

is

stored . I am not aware

of

any police agency - even DPS

substations - that have

the

capacity

to

refrigerate blood. But

you

will need to

know specifically where the blood was stored, for

how

long , whether it

was

mixed with other vials, and whether

the kit

packaging and labeling were thrown out to save space. The ALR

hearing should be the place to learn this, not

trial.

Nex

t, you

will open the box kit

and

look at the written contents.

These

are the forms and labels

that came

with

the kit

and

should

be

completely filled out

so

there is

no

question about whose blood

was drawn, who drew the blood

and

who took possession of

the

blood

vial

after

the

draw. These are also a part of the chain of

custody and should be properly maintained. The arresting officer

is

supposed to fully complete all of the written contents and labels to

correctly

identifY

the blood vials

as

belonging

to

your client. I have

never seen

the

written forms fully completed, so

you

should note

this

fact. It

may assist you in developing

the

"sloppy police work"

argument to a jury. Again, photograph the written materials or

anything that you believe to be suspicious or missing.

CONSENT FORM (BLOOD)

POLICE OFFICER'S REPORT (BLOOD )

TI' .IE

NP-/.IE Of SUBJECT

0 1

OFFENSE__ T ME__ AM.

Pa I

O

ATE Of IN

CIDE

NT

_

nAMC OF SUBJECT ,PFbN1 1

PO

LI

CEO

FFICE

R - -

.-.M.p,.

I h il'Je gran teci pe rmi SSion 10f blood samples 10

DAle BLOOD DRAWN_ 1IME__

lak en .

LCCJ\l IQN OF DRA WI HG -

BLOODDR

AW

N BY Sir.I JA1

IJ

RF O f s u8J fC T

CONSENT

FORM

(URINE)

MPM

1

'

:

OA

TC

I/ !\Mt! U f s u J E II ' ' ' N - I

ra

nled perm

ISS

Ion lor un ne samples

SIJ:lCHIE

C4T.

NO

. 8UfC2S0

S Q..f'E

C4T. NO 8U.

. n2S0


23/32

Verify

that all fonns have been completed and photograph

them

or

note the

name

of the form and

all

of the

information contained

thereon.

Check

this

information

against the chain-of-custody

docwnents to detennine if dates

have

been

listed

incorrectly or

there are any

defensible

issues

such

as

missing

chain

of

custody

witnesses. While chain-of-custody issues

often

go

to

weight and

not admissibility, you may be able

to

raise doubt with jurors and

sufficiently frighten

the

prosecutor so

as to improve the

offer for

your

client.

The blood vial itself should be wrapped in the white cotton lining

inside a plastic baggie within the kit. Carefully open by

unwrapping

the

lining

and

make note ofany blood contamination

that may have leaked

out on to the

white cotton lining. Dried blood

can sometimes resemble

bits

of dried, brown grass clippings,

so

pay attention

and

note

any

discolorations on

the

cotton lining . If

you do note

anything

that appears

to

be

blood, or anything

else,

ask

the

lab

personnel if

they

will

test the cotton \-vrap with a

presumptive

test for hwnan blood. Sometimes they will do

this

and sometimes

they

won't; it

depends

on who

helps

you.

I bring

my

cell phone

and

photograph

the

contents and any

contamination for later

review.

The

lab

personnel

do

not mind, so

be thorough

and

precise

when reviewing this evidence. I also

dictate

everything I witness as I am opening the kit because

it is

difficult

to

take notes with

rubber gloves

on.

After you

remove

the

cotton

lining,

the blood vial with two types

of tape covering it -

will

remain.

The

DPS

Crime ab uses

evidence

tape

to

cover

the

blood tubes,

after they

have

tested the contents. They cover the

tube

top

and

sides with this tape. This

is

in addition

to

the manufacn.rrer s tape,

which

is

placed over the blood

vial

after the draw. It should be

labeled with

the

subject's identifying information such

as

name

and

date

of

birth,

at

a minimum. This evidence tape is very strong

and

will adhere and tear the underlying manufacturer's

identification tape

and the

labeling

and expiration dates

on your

tube, so

you

must be extremely careful

when

peeling it back

during your inspection. Ask for Mr Gibson's help

so

that

he

can be

the one

to

destroy

the

label, not you. possible, read through the

tape, to

detennine the

expiration

date on

the

blood

vial.

You

are seeking client's identification

on the tape

covering

the

blood tube,

as

well

as the tube's expiration

date.

Both

may be

covered by

an

additional layer

of

evidence tape.

Note

all

of

he

additional contents

of

he

kit.

If

you

are

lucky, the

kit

instructions will be

included.

Ask for a

copy

of these instruc

tions and compare them

to

the manufacturer's instructions for the

kit

and blood

vials

.

Close the

kit and

return it to the

lab

personnel. They

will

tape it

shut. Clean your work area for

the next person

. The last thing we

want to do

is

make the

lab

personnel clean up after us

and

thereby

cause a problem for the

next

person with a blood case.

ITex

. Disc .R of

Prof. Conduct,

Rule 3.04(e).

2Tex. Code ofCrim Proc. art. 39.02 .

3Ruth E.

McCall and

CatheeM Tankersley,

Phlebotomy Essentials,

4th

Ed.

(Wolters

KJuwer

Publishing 2(08)

(ISBN

978-0-7817

6138-3).

4 Contact me at [email protected] for a copy of he motion

that

McKinney drafted

and has

so

graciously made available.

5

See Kelly

W.

Case,

DWl

Blood Defense: Part

I,

Initial

Client

Contact

and

Discovery, The Defender,

at 12

(Fall

2(09) (discussing

motions

to

preserve

evidence).

6 For the inversion

instructions, refer

to Becton, Dickinson and

Company's guide on its website at

http://www.Ixl.com/ca/pdfslVSS729

4%200rder%200fOIo20Draw%20Jun%2004.pdf(last

visited

Oct. 28,

2009).

72008 Tex . App. LEXIS 2442 (Tex.

App

.-

Houston

[lstDist.] Apr. 3,

2008) (not designated for publication).

818 U.S.c.

1716U)(1),

which

states: Whoever knowingly deposits

for mailing or delivery.. .unless

in

accordance with the

rules

and

regu

lations authorized to

be

prescribed by the Postal Service,

shall

be fined.

..or imprisoned. Violation of his law is a federal misdemeanor.

Kelly

W Case

is

an experienced criminal dtfense lawyer

who

practices in

Galveston

Harris and Montgomery counties

This

is

the second a series articles on D

WI

prosecutions based

on blood draws.

THE EFEN ER
mailto:[email protected]://www.ixl.com/ca/pdfslVSS729http://www.ixl.com/ca/pdfslVSS729http://www.ixl.com/ca/pdfslVSS729mailto:[email protected]://www.ixl.com/ca/pdfslVSS729


24/32

n Pursuit

of the

Snow Leopard

by Patrick F Mc ann

The greybeard leaned his long, wizened frame

against the rock around the campfire. The

young faces turned towards him eagerly,

seeking the wisdom for which he was famous.

They had come

t hear

o

a legend, a legend

they could only dream about as none o them

had actually seen this mythical creature. The

greybeard cleared his throat, and his deep

gravelly voice boomed out over the flickers

o

flame. Let me tell you, children, about the

personal recognizance bond ..

The personal recognizance bond is, to put it frankly, dead in

the district courts here, against all law, reason, and

constitutional history.

t

is in better shape in the county

courts, although better in a cancer ward is a relative term.

There one can still occasionally find it, though in far less

numbers than they should be issued. In this article, the writer

hopes to illustrate just how bad the situation has gotten,

based upon public information released by the Harris

County District Clerk's office. This article will also put

forward a proposal

to

help improve tills situation, which the

author believes has directly contributed

to

the enormous

over-crowding in our Harris County Detention Center.

A personal recognizance bond is exactly what it states : a

bond where someone is released upon their promise

to

show

up, with no cash posting to offer surety for their appearance.

At one time PR bonds were conunon. f a court could not

find a rational bond amount, it would conduct a screening of

the person's

job

history, residence, and the person's

possession

of

a phone and car to ensure they could get down

to

the courthouse. These bonds are provided for in law, and

in

tradition, established during a time when the goal

of

the

courthouse appeared to be geared a bit more towards a fair

and humane dispensation of justice as opposed

to

our

current plight. In case you younger lawyers are confused,

that screening was the reason Pretrial Services was

established - not

to

administer drug tests on people who

have already posted cash bonds or to help ICE locate

undocumented inunigrants.

TH

EFEN ER

This began

to

change after the 1994 elections.

t

was no

immediate, but gradually the issuance

of

these bond

became less and less common. That brings us

to

th

situation today, and it is a grim one. In 2007, the last yea

information had been completely compiled, the issuance o

pretrial bonds in the district courts fell

to

less than one

ha

of

one percent of those screened. That is correct: one halfo

one percent. Of the 30,121 people screened by Pretria

Services in 2004, only 109 PR bonds granted. In 2005, onl

110 PR bonds were granted out of 3 ,345 defendant

screened. For 2007, the percentage was slightly bette

running at .043 percent.

Looking at the data another way, this means that you

chances

of

being struck by lightning in your lifetim

(slightly greater than lout of 500) are much greater tha

your chances of being granted a PR bond on a felony case i

Harris County. While this may not be comforting to golfers

it should be truly disturbing for those who represent th

indigent in the Harris County criminal courts.

The county courts fare only slightly better, but the reason fo

this may be that many bonds there are much lower than i

the district courts; the working person may find county cour

bonds more in reach, and thus a smaller number

o

defendants may be seeking PR bonds in the county courts.

For 2004 to 2007, the county courts issued, on average

about 7 percent of their bonds as PR bonds . This actuall

went up as a trend, going from 6.75 percent in 2004

to

8.3

percent in 2007. As a whole, the county courts also plac

fewer people on cash or surety bonds on release under PT

supervision, both in real numbers and as a percentage. Th

number of people who were supervised on county cou

dockets actually went down as a percentage, going from 4.

percent down

to

3.9 percent from 2004

to

2006. In rea

numbers they were also less than the cash/surety folks tha

the district courts supervised under

PTS. For example,

i

2004, the district courts placed 2,998 people on PT

supervision, and the county courts placed 2,114. O

average, the district courts placed about 10 percent of the

cash/surety bonds on PTS supervision. This has created th

phenomenon of pre-trial probation that has become s

onerous, and led to a revocation rate for bonds far highe

than normal in the district courts.


25/32

For example, in 2006, the district courts revoked pretrial

release for 918 of defendants who had posted a cash or

security bond. Only 198

of

these revocations were for

failing drug tests, and as anyone who practices here knows,

there is no real pretrial drug treatment available for clients,

only the happy option of failing a test administered by

harried and overworked public servants who probably

thought they would be doing something more positive in

this agency.

County court revocations, by contrast, were only 159

in

2006, for the nearly 2,000 people they had under pretrial

supervision. The yearly average for district court

revocations appears to be approximately 650

or

so

individuals who had already paid a bondsman.

What does all this data mean?1 It means that if you are

indigent, you will stay in jail. It means that even

if

you post

bond, the judges in district court often will revoke your

bond. If you are looking for a reason the jails are

overcrowded, let me lay this problem at the feet of those

who have largely2 caused it: our district court judges, too

many of whom have gone so long without actually looking

at these cases for genuine granting

of

a

PR

bond that they

have frankly forgotten such things exist.

To be fair, our bar also has forgotten how to

ask

for these

bonds in felony courts. There are certainly individuals

whom everyone agrees, no matter what their poverty, should

not be on the street as they are a public danger.

However, as the reader sits perusing this article over a cup

of coffee, there are over 3,000 felony accused awaiting trial

in the Harris County jail on any given day. Not convicted,

awaiting triaL Surely there are sufficient resources available

to divert some Pretrial Services folks from their current odd

purpose

of

seeking to catch unwary bonded folk to their

original reason for being, which was to assist the indigent

accused

in

meeting the obligation to get to court. Even if the

revocation rate decreased it would make at least some dent

in

jail overcrowding, which has now resulted in our clients

being shipped

off

to Louisiana or to distant counties in

Texas, making communication with them all but

impossible.

What, if anything, can we do about this sad state of affairs?

I. sk for

these bonds.

Ask, and keep asking until the

courts weary of

telling you no .

2. File the pre-trial habeas writs which would allow us, in

meritorious cases, to put this local policy on trial before the

appellate courts.

3 Put these

judges

on the

spotfor

this election. Ask

them

repeatedly at every bar association

or

luncheon: Why won t

you grant more

PR

bonds?

We

as a group, and as individuals, must also speak out about

this problem at

Commissioner s

Court, at the

new

Criminal

Justice Coordination Council, and at every church and

community function

we

attend . We must ask our county

commissioners and state representatives why the Pretrial

Services agency is being ill used, and why it cannot be

returned to its original mission?

The data does not lie These bonds are virtually extinct,

much like the snow leopard mentioned in the beginning of

the article. Ifwe as a bar and as a communi ty wish to restore

a measure

of

sanity and respect for the poor

who

are trapped

in

this system, then we are the only ones

who

will raise this

issue. And

we

must raise this issue or the death of the PR

bond will be a very real thing that

we

will see in our

professional lifetimes.

IThis data is available from

the District Clerk's Office.

Readers who wish to view it

in the form in which it was

sought should contact

HCCLA.

The

collapse

of

our mental

health system also bears some

measure of responsibility for

jail overcrowding.

Patrick

F

McCann thanks

Robb Fickman and Amanda

Webb

for

their diligence in

gathering information upon

which this article was based.

Forensic Science

Resources

Crime

Scene

RecallSUaCUan

flrenslC SCIIlCe cansulll1l81

111 analY is

CaDlulllllln

Crime

ScenellMllllllUln

alee.llbi

PIthIm IIIIYSIs

SIIle.llllldenUflcatJan

Hair

Ex tlan Cansanatlan

lItelt"erarllltDlllle.me

..

SerellIY

AnalvSls

George

Schiro.

MS,

FIIC

C

IIIIII forenSic lcIentllt

33113222124

E-mail:

[email protected]

TH

DEFENDER
http:///reader/full/Dlllle.mehttp:///reader/full/Dlllle.memailto:[email protected]:///reader/full/Dlllle.memailto:[email protected]


26/32


27/32


28/32

For Judge 1B 4th C riminal

Distr ict

Court

Richard "Race Horse" Haynes

Steering Committee Chair

Committee

Members

.. Dick DeGuerin*

. .

Dan Cogdell*

..

Robert

Fickman*

Gerald Bourque

Lana Gordon

Stanley Schneider**

..

Kent Schaffer** Brian Wice

. .

Troy

McKinney*

Cynthia Henley*

..

Mark Bennett*

Robert

Morrow

Robert

Scardino

..

JoAnne Musick*

. .

David Bires**

Randy Schaffer

Ten 10) Presidents o/HCCLA & Three (3) Presidents o/TCDLA**

Current

HCCL Member Supporters

Jennifer Hodges Kahn Adrian Almaguer Carmen

M

Roe Bill

Habern

Kimberly J Samman

D Bret

Evans

Daucie Shefman Richard Kuniansky Doug Murphy Jan L Fry Mary Moore David Kiatta Leorah Kahn

Russell Webb Margurite Hudig Chris Trit ico Chip Lewis Gary Roth

J L

Carpenter

W B

"Bennie" House*

Sarah

V Wood Carl

R

Pruett Melissa Martin

Robert

H Tuthill Sunshine Swallers Geoff L Womack

Clay S Conrad Thomas

A

Radosevich Gilbert Rodriguez Scot Powgan

D

L Recer James Stafford

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S

Cohn George

o

Jacobs Rober t Alton Jones

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Locklear Gary Roth

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P Papatonakis

Michael

P

Fosher

Ted

Trigg Joe Varela Jaime Acosta

JOIN TOGETHER IN SUPPORT

OF

RETURNING

JAY W BURNETT TO THE BENCH

You Can Join Our Growing Supporter List

By

Sending

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To:[email protected]

Donations Should Be Made Payable to Burnett 4 Judge Campaign Mailed

To:

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77002

Pol Adv by ay W. Burnett for Judge Campaign, ay W. Burnett, Treasurer, 1419 Franklin, Houston, TX 77002 Internally Generated.

l bor donated - In compliance with the volunt ry limIts of the Judicial Fairness Act.

THE EFEN ER
mailto:To:[email protected]:To:[email protected]


29/32

allen

Wat rior;s

Clyde Woody

Clyde Woody, known for his successful advocacy

in

the United States Supreme Court and his high-profile

clients, died on October 3,2009, from the complications

of

Alzheimer's Disease. He was 89 years old.

Among his many appellate triumphs, Woody briefed,

argued and won Aguilar

v

Texas 378 U.S. 108 (1964),

which established one prong of the Aguilar-Spinelli test

for evaluating probable cause.

He

also obtained vacatur

and remand on his certiorari petitions alone in Barnes v.

Texas 380 U.S. 253 (1965) and Etchison v Texas 378

U.S. 589 (1964). And, as

proof

that the gods do have

a sense

of

irony, Woody was on the defense

brief in

Illinois v. Gates 462 U.S. 213 (1983), which replaced

Aguilar-Spinelli with the totality of the circumstances

test for probable cause.

Woody and Marian Rosen, his law partner for 5 years,

were celebrated for helping secure an acquittal - with,

as Brian Wice noted, the considerable help of Percy

Foreman - for Candace MossIer and her nephew,

Melvin Powers, after the two were accused by the state

of Florida of murdering Mossier's millionaire husband .

During his 45-year practice, Woody's client list included

Judy Garland, Baron Enrico DiPortanova and Harris

County Sheriff Jack Heard.

Clyde was the first boss I ever had, Wice recalled. In

the year that I worked for him, Clyde taught me how to

read a record like a detective novel , looking for clues to

how the trial was unfair, how to write a brief that told a

compelling story and how to always win the moot court

round at the oral argument.

In 1989, Woody's wife, Paula, joined his law practice

until his retirement in 1991. In addition to Paula,

Woody is survived by two sons, Allen and Todd, three

grandchildren, one great-grandchild, and

Woody's

brother and sister.

The

family requests that donations

be made

in

his memory to Alzheimer's Research,

640 Jackson Street, Mail Stop 112018 , St. Paul, MN

55101-2595.

Esteban Steve Pena

Esteban Steve Pena, who had a busy criminal defense

and civil practice, died unexpectedly on September 4,

2009.

He

was 35 years old.

Pena graduated in 2000 from the South Texas College

of

Law

and plunged into the practice

of

law in Harris

County . He was a frequent sight at the Harris County

Criminal Justice

Center,

in the family courts and in the

county's

civil courts.

Pena is survived by his wife,

Xi

omara, his parents, Martin

C

and Lourdes B. Pena, his and his brother , Obed.

THE

EFEN ER


30/32

Computer-Ease

by

Mark Hvizdos Lester Lavin

What is the

best

way

to

provide security

for

my system?

This can get quite detailed, but, in short, security must mitigate the risk

of

catastrophic events that may compromise your sys

tem

and data whether due to

internal , external, or environmental events. System passwords, antivirus software,

data back-up routines and regular update proce

2009 winter defender

Documents