2010 winter defender

8/11/2019 2010 Winter Defender

1/32


2/32


3/32

NTS

4 : :ClE Events

5 : :

Word from

our President

by Nicole De orde

6 : :

Winning

Warriors

9 : :Dealing

with Immigration Detainers

by

Franklin Bynum

13: : CClA

News

Round Up

Running

Fun, Learning growing,

BBBS/Amachi, Homes for Soldiers &

Teen

Law

18: :HCClA

Mailbag

letters to

the

Editor

A Call

to

Colleagues - Juvenile

Certifications

by

Pat McCann

A Christmas Wishlist

by Robb Fickman

23: :Welcome Alex Bunin!

by Chris Tritico

24: :

HCClA

Fall Picnic

Houston's Downtown Aquarium

26:

:The Deer Hunter

by Pat McCann Tucker Graves

29: :Investigative Corner: E-Discovery

by

Jim

Willis

30: :

HCClA

Extras

New Member

Application

& Ad Rates


4/32

UP OMING EVENTS

THE

PUBLIC DEFENDER S OFFICE

TODD

DUPONT'S

LEGISLATIVE UPDATE

ROBERT FICKMAN

STACI

BIGGAR:

Vetran s Court Medical Treatment in

Ja

il

For

more

information on

CLE

Events contact

Ca

rmen Ro

e

7 3 3677

55

ca rmenm ro e ya

hoocom

0

TH

DEFENDER

HCClA ClE s have been better than

ever

this year and include

the expertise of Brian Rose

(HCDAO),

Brian

Wice, Kent

Schaff

Katherine Scardino and Pat McCann .

HCClA

will continue to

provide

our

members with excellence in our

ClE

speakers

and

materials . We are proud

to

provide our

members

with the

benefit of earning

ClE

credit

while learning

the

tricks of

the tra

from the best of the best.

HCClA ClE

2011 will be even better by

continuing

to

bring

great speakers,

more

material

and even more

ClE hours

to

help

our

members meet their State

Bar

ClE requirements .

By

popular demand

we

are

working to

bring

additional ethics

hou

to our ClE

program . In addition, we

are

making

plans

to

bring

our

ClE classroom into the 2 st-century to make it available

through

other

types

of

media.

This

will

provide for the expans

of

our

ClEs

to a greater

number

of our

members

who may no

otherwise be

able to attend live

sessions .

HCClA

continues

to

work

hard

to

bring the

most

up

to date

a

relevant material

to our

members. We will continue th is effor

2011. Don t

miss

out on

all

the exciting

events

to come .

reasonable doubt

CALL-IN TALK SHOW

hosted y todd dupont

thursday nights

@

8pm

Join us

in discussing

criminal justice issues

in Harris

County

with

weekly guests.

Sponsored

by

HCClA.

Houston

Media

Source

Com east (Channel

11)

AT&T U-verse (Channel 99)

www.hmstv.org/streaming.htm
http://www.hmstv.org/streaming.htmhttp://www.hmstv.org/streaming.htm


5/32

a

word

from

our

president

n ote b e B o r ~

The end of 20IO brings exciting new times for the defense

bar in Harris County . Starting on December 6, 2010 Alex

Bunin will be the first Chief Public Defender of Harris

County. While the indigent defense system in our county

will still have many of the same components and enjoy a

hybrid including the same appointment system we have

known for years, the new public defenders office will offer

a new resource for attorneys representing indigent clients

and a new resource for the indigent defendant . The Harris

County Criminal Lawyers Association extends a warm

welcome to Alex Bunin, and we look forward to working

together as a resource to the defense bar. HCCLA also looks

forward to joining NACDL in inviting the legal community

to a social (TBA) where you can all

get

to know him soon

after

he

embarks on this new journey.

After doing some reconnaissance, I have learned a few things

about Alex Bunin and want to share them with those of you

who have not had the opportunity to get to know him yet. In

this addition you will find an article outlining Mr. Bunins

experience.

He

has a reputation for professionalism, brains

and a passion

for

the defense of the indigent accused . Perhaps

most importantly. those who have worked with him report

that he is extraordinarily talented and gives freely of his time

and experience in the interest of his passion: criminal justice.

We

wish him luck and look forward to watching the success

of his team in their endeavors.

HCCLA also continues to enjoy a uniquely productive and

cohesive defense bar. With membership near 500. we provide

a venue for criminal defense attorneys in our community to

turn for advice. both legal and professional.

We

have also become a resource in the community at large

concerning issues of criminal justice concern. For example.

we have had the opportunity to work hand in hand with the

Harris County Sheriffs Department with a goal

of

improving

medical treatment for inmates and

to

help develop ideas

for relieving overcrowding. We have also been involved in

monitoring voucher underpayments and the issue of seeking

proper expense provisions for attorneys taking appointments .

We

welcome your

input

on issues that affect the defense bar

and the citizens accused in our county . When we take the

time and effort to hold ourselves to the highest standards in

representing our clients. hired and appointed, we improve

the quality of the defense bar in the community

as

a whole.

With

everything from quality, free CLE programs for

our

members to wonderful social events for our membership,

HCCLA should be on everyone s list of reasons to be grateful

to practice law in this county. Special thanks to Carmen

Roe and our fantastic list of speakers so

far

this year at our

LE events. Special thanks also to Christina Appelt. Sarah

Wood, Steve Halpert, Mark Thiessen for such hard work

putting together some really fantastic events for HCCLA

members this year. I continue to hear about how much fun

members and their families had at the Aquarium and we are

all looking forward

to

the year s grand finale Holiday Party

at Kobain on December 9th .

I m not sure how

we

can top

20IO

but I am looking forward

to trying in 2 0 n with a great Board and an active defense bar

membership. Cheers, and continued success helping people

and good verdicts to all in lOl l

T fll R


6/32

In a stunning result that made national headlines,

Katherine Scardino and Jimmy Phillips pushed the

State, investigated everything, and achieved the dismissal

of the Anthony Graves case . With work that was not

done in 1992, 1994 or even 2006 (during various stages

of

this lengthy matter), Katherine and Jimmy helped

save an innocent

I

ife. Katherine was overwhelmed by the

victory and thanked all the lawyers who worked on this

case over the years. Without their work, Anthony Graves

would possibly have been executed by now.

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

In Montgomery County,

J.

C. Castillo fought the

govemmentand raised a speedy trial issue. With his

motion granted, his client won a dismissal in his

intoxication

manslaughter

case.

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

Facing an

offer of

8 years,

Jordan

Lewis and his client

raised the stakes and announced ready for trial in Judge

Hill s courtroom. The State folded .... more cards in the

muck pile

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

Big props to Dan Gerson with his dismissal of a kilo of

ecstasy case.

If

you

didn t

see it, you 'd never

know

it as

Dan continues to work quietly behind the

scenes

for all

his clients.

We were

lucky to get these details, sparse as

they are

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

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

Two Times the Winner Cheryl Irvin

won

her second

motion to suppress in a month s time. As a result

of

her

fine lawyering, the officer is being referred to OIG to

investigate his lack of truthfulness in this particular case.

Luckily, her client had the sense to call Cheryl from the

scene and leave a voice mail message which confirmed

the officer ' s untruthfulness

We

hear Cheryl traded the

tape for a dismissal

Baldemar

Zuniga and James McCollum ended

up

wit

a

hung jury

in the 182nd District Court in an aggravate

assault

on

a

peace

officer

case.

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

Our own Benny House

(current member

and

HCCLA Past

President), apparently,

still has it In the

ultra-conservative

McKinney, Texas, Benny

got

a not

guilty on an

aggravated assault

with a

deadly

weapon

case,

and

he litigated a

motion

to revoke probation.

The

court found that 2 counts

of aggravated assault

were simply not true.

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

.

To the shock and dismay

of

court personnel and the

State,

Kate Shipman won

a

not guilty

in the

284th

District

Court. Despite having only 2

weeks

to get

ready for trial

after being

appointed, Kate highl ighted

the problems with the

complainant s

story and walked

her client out of the

Montgomery

County jail a free

man. Kate credits Judy Shields and Scott

Pawgan

for

some great advice. And to top it off, she

won

a

negativ

finding

on

an

ALR

hearing and

quickly

ran out to buy

lottery ticket

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

Those

two magical words

were

heard in Court 3 for

Steven Touchstone and his client following a telephon

harassment case. His client was alleged to have called

and harassed a state senator. Steven put the finishing

touch on the case and walked

out

with a not guilty.

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

Let's hear it for

Randy

Ayers who got a not guilty on a

murder in the 338th District Court

on

an appointed case

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

Another not guilty makes it way through the courthouse

this time for JL Carpenter and her client in a DWI in

County Criminal Court at Law #1 JL credits Dustin

King and Joseph Gagliardi for their assistance.

D

THE EFEN ER


7/32

Family Violence? Not here ...just another not guilty.

Congratulations to Michael

Panesar

and his client

following a missing complainant, lots of Crawford

objections and issues, and a trial by jury. Michael thanks

Sarah

Wood for promoting the 2nd chair program and

Judge Harmon for keeping the courtroom fair.

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

Double-teaming it,

Monique Sparks

and

Sunshine

SwaJlers score a not guilty in Galveston County. We've

been told, "They fought the law, and THEY won in a

terroristic threat against a cop."

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

Alvin

Nunnery

wins again! Judge Carter granted a

directed verdict on 23.5 grams. Alvin's persistence paid

off despite

just

having received

Brady

materials on the

day

of

trial.

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

In yet another not guilty, Staci Biggar and

Claire

Connors

win a harassment case

where

the

complainant

was a family court district judge. Their client could

have become just another mental health

court

statistic,

but in challenging the State's evidence, they secured an

acquittal.

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

In State ofTexas v Sean Roberts II (part I ended abruptly

when Judge Keel suppressed the evidence), Mark

Bennett won a not guilty in Judge Denise Collins' Court.

Let 's see: no evidence and still going to trial, yep, that's

a recipe for an acquittal when you mix it up with a great

lawyer like Mark. Mark credits Sarah Wood for her

assistance throughout the case.

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

Was that evidence suppressed? You bet it was!

JL Carpenter strikes again, this time in the 228th

after the deputy could not articulate facts amounting

to reasonable suspicion for the stop in a DWI case.

JL

credits

Jed

Silverman for his advice and guidance in

this issue.

RESE RCH WRITING

The

Law

is

n

Your Side

With ProfessionalBrififi.ng

Briefs, Memos, & Caselaw

Trial Help & Emergency Services

Sarah

V.

Wood

7

1

3.530.6

1

47

[email protected] \1

HCCL Unsung Hero and Member of the Year Recipient

References

&

Writing Samples

Upon

Request

Congrats to Rick Oliver who secured a two word verdict

for his client in Fort Bend #2. Rick was faced with the

possibility of getting small-towned every step of the way,

but the jury came back in 20 minutes with a not guilty .

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

Brian Wice

and

Randy Schaffer

win a pair of victories

in the Court of Criminal Appeals. Brian flipped the

Corpus Christi Court of Appeals in an aggravated assault

of a peace officer conviction with 20-year sentence on

double

jeopardy

grounds in Teeter

v

State And, Randy

got the

CCA

to keep the granting

of

habeas relief

in

the form of an out of time appeal because of appellate

counsel's ineffective assistance intact in an opinion

denying the State's motion for rehearing

in

x parte Miller

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

Hilary

Unger

scores a not guilty for her client in a

shoplifting case where her client turned down an offer of

a class C theft. Hilary performed a horribly excruciating

cross of the loss prevention officer when she wouldn't

even admit the defense photographs were from the store!

The jury saw the loss prevention officer as untruthful.

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

With

another two-word

verdict,

Wayne Heller won

a

DWI in County Criminal Court at

Law

#7. His client

had wanted

DIVERT

and was rejected twice, so they

tried the case. Wayne says, you can't get a hit unless

you swing the bat."

We'd

say

Wayne

hit one out of the

park!

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

Tucker

Graves

scores a lesser included class B theft for

his client, from a jury, after being tried for burglary of a

habitation in the 338th District Court. A great result from

another great lawyer!

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

Congratulations to

Tom

Stickler in convincing Judge

Lowery

to direct out the State in County Court #3.

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

In

what seems

like a rare occurrence,

Joe Gonyea

received a two word verdict in federal court. His client

was charged with

Delaying,

Secreting, and Detaining

the mail in violation

of

18

USC

1703". Jury

was out

7

hours

before

returning to the court with a not guilty.

Joe sends his sincere thanks to Jimmy

Ardoin

and

Josh Schaffer

for they

went above

and

beyond

to help

with the case.

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

Herman

Martinez took down a 0.13 breath test

in

County Criminal Court at Law #11 when technical

supervisor Jorge Wong testified the methyl alcohol found

in

the mercury in sushi and soy sauce could produce a

false high positive on the breath test machine.

THE EFEN ER
http:///reader/full/Brififi.nghttp:///reader/full/Brififi.ngmailto:[email protected]\1http:///reader/full/Brififi.ngmailto:[email protected]\1


8/32

A trio

of

fine lawyers, Todd

Dupont,

Casie Gotro, and

Steve Touchstone heard those magic words, not guilty,

two times in a two count aggravated sexual assault trial

in the 338th.

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

Speaking

of

trios, up-and-coming barrister Carmen

Roe convinced Judge Kevin Fine to grant a motion to

suppress in a trio

of

cases - possession with intent to

manufacture a CS over 400 grams, possession with

intent to deliver a CS of more than 4 but less than 200

grams, and a felon in possession

of

a weapon -- based

on a bad search warrant affidavit. State's offer was

5

to do, but Carmen was able to book-and-page the State

on the law and Judge Fine agreed.

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

Congratulations to new defense attorney

Craig

Still

who got three first degree cases on his true habitual

client dismissed based on a bad search warrant that he

skillfully picked apart. Is it just me or do they not write

good warrants like they used to?

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

Kelly Case caught the trooper fudging the truth,

showed it to the

jury,

and won a two word verdict in

Montgomery County in a DWI trial. Kelly credits

Earl Musick with his closing argument because the

"Superman thing" was spot on for this case.

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

David Ryan secured a not guilty

in

a prostitution case

in

County Criminal Court at Law #12. We re sure he will

happily fill in the details, but this is becoming a regular

result to report for David. Excellent job

Joe

Labella

convinced Judge Anderson to suppress a

.12 breath test on an rdman issue. Joe argued that his

client was psychologically coerced into providing a

breath sample by Officer

Hattan s

threats to draw his

blood ifhe refused a breath test, being that it was the

fourth

of

July weekend and it was a no refusal night.

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

Danny Easterling pulled out another great win This one

in a felony DWI case in the 82

nd

With the client turning

down an offer of one year misdemeanor probation (and

no jail time), Danny picked a jury and tried the case.

The jury was deadlocked at 9 for not guilty and 3 for

guilty. Court declared a mistrial and the State dismissed.

Another lesson in "good things happen when you set

cases for trial"

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

David

Cunningham

and

Jed

SiJverman convinced

Judge Keel to suppress a pound

of

cocaine after they got

two dash cam videos from officers who were involved

on the periphery of the scene. These videos helped

show that the seizing officer was less than candid about

his search. Earlier in the same week, Jed Silverman

convinced Judge Keel to toss out a breath test on another

case because

of

problems with retrograde extrapolation.

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

Congratulations to Tad NeJson for a not guilty in County

Criminal Court at Law #IO Judge Ross was very close

to granting a directed verdict at the close of evidence in

this DWI, but he withheld his ruling to see

if

the State or

the jury would "do the right thing." . .. the jury did.

Sam

Adamo reports, "Tad Nelson, throughout his illustrious

career, has brought to the courtroom an eloquence and

an unshakable conviction that makes him a legend in his

own time."


9/32

As we all know, the requirements of Padilla v Kentucky

are changing criminal defense of aliens quite

dramatically. The urgency

of

the problem the Padilla

court addressed was precipitated largely by increased

immigration enforcement in local jails across the country.

As a result, criminal defense lawyers should now be

prepared to deal with not only an entirely new set

of

substantive law, but also a myriad of practical issues

regarding bonding and detention of alien clients caused

by the presence of federal officials in local jails.

The last issue of the Defender covered some substantive

tips for advising alien clients. The aim of this article is to

describe the mechanisms of immigration detainers, the

authority for and implementation

of

immigration

enforcement by the Harris County Sheriffs Office in its

jails, and practical ways to deal with bond and prolonged

detention.

Immigration enforcement is now active

in

every county

jail

in

Texas. ;; Much of this atiicle should be applicable to

similar programs

in

other counties.;v

INTRODUCTION

TO IMMIGRATION DETAINERS

What Is an Immigration Detainer

An immigration detainer is a written request from the

Department

of

Homeland Security

DRS)

to any federal,

state, or local law enforcement agency requesting custody

of

a person presently held by that agency, for the purpose

of

seeking to remove that person from the United States:

A detainer indicates only that Immigration and Customs

Enforcement (ICE) believes it has probable cause to

commence proceedings against the person

or

that the

person already has an outstanding order

of

removal.

Just because an immigration detainer issues does not

mean that the person is removable.

Many aliens, especially Lawful Permanent Residents,

have

relief

available to them.

In fact, even a United States citizen could be issued a

detainer and removed; this happens frequently.v

The physical document that creates the detainer is called

the 1-247: ; A copy of the 1-247 should be on file with

both the local agency and ICE, and should be disclosed

by either pursuant to a freedom of information request.

v

How Long ay the County

Keep Someone with a Detainer

The county must release a person with an immigration

detainer if DHS has not taken custody of the person 48

hours after the person would have otherwise been

released from county custody, excluding holidays and

weekends.;

ho Decides Whether a Detainer Issues

The decision

of

whether to issue a detainer is made by

one several types offederal officials such as Customs and

Border Patrol agents and ICE deportation officers. Note

who does not have the authority to issue detainers: state

and county officials. County employees may screen

prisoners for immigration violations and may then

present a person suspected of an immigration violation to

a federal official, but the federal official ultimately makes

the decision .

THE SECURE

COMMUNITIES

PROGRAM

The federal government has the exclusive authority to

make and enforce immigration law:; The mechanism by

which the federal government allows local government

to

assist in enforcing immigration law

is

described in the

Immigration and Nationality Act at Section 287(g).

Section 287(g) authorizes the federal government to enter

into agreements with local governments to enforce

THE

EFEN ER


10/32

immigration laws under the supervision of federal

officers. The term "287(g)"

is

thus used to refer to a

number of different types of cooperative enforcement,

mostly taking on one of two forms: "task force"

agreements in which OHS agrees to participate in

street-level enforcement with local police; and, more

commonly, the so-called "Secure Communities"

program, which purports to screen jail inmates for

"criminal aliens. ';;

Harris County has participated in Secure Communities

since 2008, and was the first county

in

the nation to

implement sending livescan fingerprints to the federal

government's immigration database.";'

The Harris County Secure Communities

Memorandum

of

Agreement

The document that allows immigration enforcement in

Harris County jails is the "Memorandum of Agreement"

between the County and OHS. That document (the

MOA )

is

provided publicly by ICE on its w e s i t e

For a more in-depth understanding

of

how the program

works, the MOA is an excellent resource.

Why

Does an Immigration Detainer Issue?

The regulations say that a detainer issues when OHS

seeks to arrest and remove a person. However,

removability in eve ), case involves factual and legal

issues. With the large scale of the Secure Communities

program-2 .9 million fingerprint queries in the eleven

months from October 1 through August 31,2010.

are some fairly rigid categories that help officers make

determinations as quickly as possible.

Unfortunately, those categories do not exist in federal

regulations but instead only in a "Standard Operating

Procedures" manual. The manual classifies crimes that

will result

in

detainer issuance into three " levels ." Level

1 crimes are mostly serious felonies. ; Level 2 crimes are

mainly property crimes and Level 3 are miscellaneous

misdemeanors.""

Level I crimes are the most important, because those are

crimes that can result

in

a detainer being issued with a

charge alone; no conviction is necessa )'.

The "Standard Operating Procedures" manual states that

Level 2 and 3 crimes only result

in a detainer if there

is

a

final conviction for one of the listed crimes.

Understanding this

is

essential to helping your clients and

their bonding companies understand what may happen if

the person bonds out. Here are two examples:

Example One

Client entered on a tourist visa, overstayed for ten years ,

and has

one conviction for OWl, a Level 2 offense.

Client

is

then arrested for a second

OWl

and an

immigration detainer issues. Client posts state bond, ICE

retrieves client within 48 hours. Once in immigration

custody, ICE issues Notice to Appear alleging

removability because the visa overstay and sets bond at

$3,000. Client posts bond, and

is

released from

ICE

custody.

Example wo

Client is a Lawful Permanent Resident with no criminal

record and is arrested for aggravated assaUlt, a Levell

offense. Client posts state bond, ICE takes custody of

client within 48 hours. Client

is in

immigration custody,

but ICE does not issue a Notice to Appear because Client

is not removable from the United States: for an

aggravated assault charge to lead to removability would

require jin l

conviction

for the aggravated felony. So

client sits in immigration custody, unable to bond out.

Client misses next state court date, and bond

is

revoked.

What

makes

this second example so troubling is that

there is no relief available to force a bond determination

until OHS files a Notice to Appear,"';;' and OHS may

refuse to file a Notice to Appeal until it has a conviction

record. This situation has not been litigated in federal

court yet, but given the high volume of bodies running

through the system and low competence of both

ICE

and

its private prison contractors, surely it will be litigated

one day.

BOND STR TEGY fOR CLIENTS WIT DET INERS

To

successfully bond a person with an immigration

detainer out of custody requires posting of one bond with

the local authority and one with ICE. Posting the bond

with the state

is

usually the easier part.

THE EFEN ER


11/32

Persons with Immigration Detainers re Eligible t

ond Out

of

Local Jail

Persons with immigration detainers can post bond

if

the

person is otherwise entitled to bond in the state court .'

At the point at which they would be released, the 48-hour

clock begins for ICE to retrieve the person. Once ICE

takes custody

of

the person, it has 48 hours to issue a

Notice to Appear, which will also set an initial bond

amount. Note that

in

removal proceedings, the

prosecuting

agency-not

a

magistrate-sets

the initial

bond amount, and then the detainee may ask the

immigration court" for a bond redetermination.

Procedures for Immigration ond

Once in DHS custody, the detainee can be released on

"conditional parole" (the equivalent

of

release on

recognizance)

or

can be released on bond

; Conditional

parole

is

virtually unheard

of

for a detainee with a

criminal history. The minimum bond amount

is 1

,500.

xxii

When a Notice to Appear

is

filed and served on a

detainee, an attorney can file a bond motion with the

immigration court at 5520 Greens Road

in

Houston. A

bond hearing will be scheduled for sometime within a

few days up to a couple

of

weeks after filing the motion.

In Houston, bond hearings are held before one of three

immigration

judges-Benton,

Rose,

or Greenstein-at

the court on Greens Road. Once the judge sets the bond

amount and the detainee posts a bond, the case will be

transferred, upon a perfunctory motion to change venue,

to

the immigration court at 2320

La

Branch Street in

Houston.

';;;

The

La

Branch calendar is severely

overloaded, and court dates for initial appearances are

routinely set for many months out.

For a client with absolutely no criminal convictions and

who was inspected and admitted upon entry to the

United States, the process

of

getting an immigration bond

hearing

is

simple enough for the criminal defense

attorney

to

handle herself, with only a little assistance the

first time or two from someone with more experience.

heri Schultz onsulting

Probation

Expertise

/ Pre-Sentence

Reports

Mitigation Special ist / Licen

sed

Private Investigator

Mitigation Repon Preparation Motion to Revoke/Adjudicate Expertise

Pre

-S

entence Repon Preparation Former

Coun

Liaison Probation Officer

In -Custody Interviews

Available to Oversee

Pr

e-Sentence In terviews

c h c ri sc

hllit

zc on s

lIitin

g(a g m a ii .c om

713-783-5333

l l i l I 1 \1 11

Mandatory Detention

Broad categories

of

individuals with convictions

of

some

very

common crimes are ineligible for bond . The

following are the most

common

categories

of

crimes

requiring mandatory immigration detention:

two

or

more crimes involving moral turpitude;";'

aggravated felony ;'"

controlled substance conviction;"';

firearms offense;"'

;;

on the basis

of an

offense for which the alien has been

sentenced to a term

of

imprisonment

of

at least one year-

committing a crime

of

moral turpitude witrun five years

of

admission and being sentenced to a year

or

more:"';;;

If

a person has an immigration detainer and a conviction

of

one

of

these crimes, the alien will be categorically

inel igible for

bond

. If the person were to post bond with

the state, the person would be delivered to

ICE

and not

released .

Bond Forfeiture and Immigration Detention

Many bonding companies will not write a bond for a

person with an immigration detainer. This should not be

the case. In nearly all cases you should be able to assure

the bondsman that they will not be liable on the surety

because

of

the immigration problems.

The

key to that

assurance is in Article

17

.16

of

the Code

of

Criminal

Procedure.

Under Article 17.16, when a person is released to ICE

after posting a bond, the surety can relieve herself

of

liability by immediately presenting the Sheriff"an

affidavit stating that the accused

is

incarcerated

in

federal

custody. ",,;, Once the Sherif f verifies that the person is

in federal custody, the surety

is

automatically relieved

of

further liability.'" The Court

of

Criminal Appeals has held

that this procedure is effective to prevent bond forfeiture

when a person is in immigration detention but not

if

the

person has already been removed from the United States

at the time the bonding company applies for a release."' ;

When someone bonds out of state custody and is sent to

immigration detention, one

of

three things will happen:

1) person will bond out of immigration detention and

appear as required for criminal court; 2) person will

not bond out of immigration custody in time to appear

in criminal court, but will not yet be

removed

from the

United States; 3) person will be removed and will likely

not appear again in the criminal court

In every single one

of

those scenarios, a well-informed

bondsman can present some basic documentation to the

Sheriffs Office and relieve herself

of

liability on the bond.

THE DEFENDER


12/32

However, to prevent bond forfeiture will probably take

some

hand-holding with your client's bonding company to make sure

they don't

jump

the

gun

and get a warrant issued for your client.

By

working

with

the

bonding company and keeping them

continuously informed about the progress of the immigration

bond

process, you

can

buy

your

client time to attempt to bond

out of immigration detention. If it becomes apparent that your

client

will not be

able

to make

immigration bond

, the

bonding

company will need to quickly provide the Sheriffs Office

proof that she

remains

in immigration detention.

Ethical Considerations

If

you plan

to

keep

the

bonding

company

appraised

of

the

case's progress, make sure your

clients knows

and gives you

permission to disclose any confidential information.

Commonly, clients

who

face removal at the conclusion of their

sentence ask if they can

"just

be deported." One response might

be that it is up to the judge, jury, or prosecutor, and that mercy

from

any of

them

may

not be forthcoming.

However, being removed without serving a state-court sentence

could be possible in certain cases where removal is a certainty.

Arguably, ethical problems could arise for an attorney that

advises a client to bond out of the criminal proceeding while

reasonably certain that the client would never

appear

before the

state court again.

Those concerns should not stop you, even in

close

cases, from

taking a cautious approach to attempting to gain your client's

freedom

while charges

are

pending.

i Member, HCCLA, the American Immigration Lawyers

Association, and the National Immigration Project of the National

Lawyers Guild . Special thanks to my officemate Amy Martin for

editing assistance and putting up with me all day .

130 S. Ct. 1473 (2010).

iii

Julian Aguilar,

Controversial Program Now Includes

ll

Texas Counties, Texas Tribune (Sep . 29, 2010),

http://www.texastribune.org/immigration -in-texas/immigrationlco

ntroversial-program-includes-all-texas-counties/.

iv ICE maintains an incomplete list of 287(g) agreements on its

website:

http://www.ice.gov/pi/news/factsheets/section287_g.htm. Each

county's signed agreement should be disclosed in response

to

an

open records request.

v See 8 C.F.R.

287.7(a).

vi Search Google for "United States citizen deported."

vii http ://tinyurl.comlfonn247

THE EFEN ER

VII

If

you are seeking an 1-247 regarding a person who

is

a Lawful

Pennanent Resident, DHS will require you to provide the alien's

written consent.

x

8 C.F.R.

287.7(d).

x 8 C.F.R. 287.7(b).

xi This is perhaps a bit of an overstatement, but not as

controversial as it may seem. Tfyou're interested

in

federal power

to preempt state immigration enforcement, follow the United

States v. rizona pleadings on the District of Arizona's PACER

site, under case 10-cv-01413.

xii

"Purports" because the program is being used to remove

massive numbers of non-criminal aliens. See, e.g. Travis County

leads nation

in

deporting noncriminal immigrants, groups find,

Austin-American Statesman, Aug 10, 20 I

O

xiii !DENT/IAFIS Interoperability Monthly Statistics through

August 31, 20 I 0 (Sep. 7, 20 I 0)

(http://www.ice.gov/doclib/foialsecure_communities/nationwidein

teroperabilitystatsaug 10.pdf).

xiv

http ://tinyurl.com/Harris287g

xv "!DENT/IAFIS Interoperability" memo .

xvi "National Security" crimes (sabotage, sedition, espionage, and

treason; terrorist threats; and weapons, arson/incendiary devices,

and bombing offenses); Homicide; Kidnapping; Sexual assault ;

Robbery; Aggravated assault; Threats; Extortion-threat to injure

person; Sex offenses; Cruelty toward spouse or child; Resisting an

officer; Hit and run; and Felony drug charges

x

vii

"!DENT

/IAFIS Interoperability" memo.

xviii Matter of Werner 25 I&N Dec. 45 (BlA 2009).

xix

Castaneda v. State,

138 S.W.3d 304, 306-07 (Tex. Crim. App

2004).

xx

The "immigration court" is the Executive Office for

Immigration Review, a part of the Department of Justice.

xxi 8 U.s.c. I 226(a)(2)(B).

xxii

8 U.s.c. I 226(a)(2)(A).

xxiii Until this summer, cases were automatically transferred to La

Branch when the person was released on bond , but now a motion

to change venue is required.

xxiv

Immigration and Nationality Act

237(a)(2)(A)(ii), 8 U.S .

c.

I 227(a)(2)(A)(ii) .

xxv

Immigration and Nationality Act 237(a)(2)(iii), 8 U.S.c.

I 227(a)(2)(A)(iii) (2006).

xxvi

Immigration and Nationality Act 237(a)(2)(B), 8 U.S.c.

1227(a)(2)(B) (2006).

xxvii Immigration and Nationality Act 237(a)(2)(C) , 8 U.S.C.

I 227(a)(2)(C) (2006).

xxviiilmmigration and Nationality Act

237(a)(2)(A)(i), 8 U.S.c.

I 227(a)(2)(A)(i) (2006).

XXIX

Castaneda, 138 S.W.3d at 308.

xxx

Jd.

xxxi

Jd.

At 310.
http://www.texastribune.org/immigration-in-texas/immigrationlcohttp://www.texastribune.org/immigration-in-texas/immigrationlcohttp://www.texastribune.org/immigration-in-texas/immigrationlcohttp://www.texastribune.org/immigration-in-texas/immigrationlcohttp://www.texastribune.org/immigration-in-texas/immigrationlcohttp://www.texastribune.org/immigration-in-texas/immigrationlcohttp://www.texastribune.org/immigration-in-texas/immigrationlcohttp://www.texastribune.org/immigration-in-texas/immigrationlcohttp://www.texastribune.org/immigration-in-texas/immigrationlcohttp://www.ice.gov/pi/news/factsheets/section287_g.htmhttp://www.ice.gov/pi/news/factsheets/section287_g.htmhttp://www.ice.gov/pi/news/factsheets/section287_g.htmhttp://www.ice.gov/pi/news/factsheets/section287_g.htmhttp://www.ice.gov/pi/news/factsheets/section287_g.htmhttp://www.ice.gov/pi/news/factsheets/section287_g.htmhttp://www.ice.gov/pi/news/factsheets/section287_g.htmhttp://www.ice.gov/pi/news/factsheets/section287_g.htmhttp://www.ice.gov/pi/news/factsheets/section287_g.htmhttp://www.ice.gov/pi/news/factsheets/section287_g.htmhttp://www.ice.gov/pi/news/factsheets/section287_g.htmhttp://www.ice.gov/pi/news/factsheets/section287_g.htmhttp://www.ice.gov/pi/news/factsheets/section287_g.htmhttp://tinyurl.comlfonn247/http://tinyurl.comlfonn247/http://tinyurl.comlfonn247/http://www.ice.gov/doclib/foialsecure_communities/nationwideinhttp://www.ice.gov/doclib/foialsecure_communities/nationwideinhttp://www.ice.gov/doclib/foialsecure_communities/nationwideinhttp://www.ice.gov/doclib/foialsecure_communities/nationwideinhttp://www.ice.gov/doclib/foialsecure_communities/nationwideinhttp://tinyurl.com/Harris287ghttp://tinyurl.com/Harris287ghttp://tinyurl.com/Harris287ghttp://www.texastribune.org/immigration-in-texas/immigrationlcohttp://www.ice.gov/pi/news/factsheets/section287_g.htmhttp://tinyurl.comlfonn247/http://www.ice.gov/doclib/foialsecure_communities/nationwideinhttp://tinyurl.com/Harris287g


13/32

RIIIIIIIII

HCCLA

donated

120

to

sponsor 6 runners

for

the September Run for Recovery fun run

recognizing National Recovery

Month

The

Run for

Recovery

event is

designed

to

promote

addiction awareness and community

connections. Runners

involved

with

the drug

court programs

in

Harris County participated.

LEARNING growing

During

our

new member's social in August,

HCCLA members generously donated over 500

at Hearsay on August

6

to benefit

the

school

aged children

of

mental health

court

probationers.

Our

own

Staci Biggar was able to use these

funds to purchase backpacks, school supplies,

and lunch kits for families participating and

succeeding in

the

mental health court.

THE EFEN ER


14/32

HCCLA

Big

Brothers/Big

Sisters

HCClA,

in

collaboration with Big Brothers-Big Sisters

of

Greater Houston

I"BBBS"} and the Houston Young lawyers

Association ( HYlA l. hosts events annually - since 2007

-

for

local

children in

the Amachi

program.

Affectionately

nicknamed "Celebrating

Amachi All-Stars," all

events in this

bar

year include a sports aspect with

an

emphasis on

the

importance

of

physical fitness and

leading a

healthy life.

"Celebrating Amachi All-Stars" events in

2011 planned

for Amachi children

are:

Houston Aeros hockey game

(January

16);

Houston Rockets game (February 5); Brunch

Honoring

a local Sports Celebrity (March

19);

and

the

Field Day with

B-B-Q

at a local park (May

7).

"Celebrating

Amachi All-Stars" events are graciously funded and made

possible by child-ticket donations from the Houston Aeros

organization, Houston Rockets player-Brad Miller, a Houston

Young lawyers Foundation grant, and continued

support

from the

Harris

County Criminal lawyers Association .

The time commitment typically required to be an adult

mentor

makes many

lawyers

shy

away

from

volunteering

in the BBBS program, but

the

"Big for a Day" events with

HCClA HYlA

allow

professionals that exact opportunity

- to serve as BBBS mentors. Other than the time needed

to watch abasketball game

or

attend a luncheon, there

are

no

other commitments.

Past

event locations hosted for

Amachi children by HCClA HYlA include the Houston

Zoo,

Downtown Aquarium, Edwards Marq*E

movie

theater,

and a tour

of

the Houston SPCA.

TH

EFEN ER

The Big-For-a-Day events help make a

difference in

the lives

of

local at-risk youth. The Amachi Texas program provides

mentoring

for

children with one

or more

incarcerated parents

guardians.

Children of incarcerated parents are five times mor

likely to commit crimes, and without positive adult interventio

will

more

than likely follow their parents into prison. But

this is a chance to make a difference in a child's life

(and an

otherwise unforgiving cycle). What only takes a

moment

for a

lawyer-mentor

can

impact a lifetime for an Amachi child.

Due to

the

limited number

of

adult volunteers in

BBBS,

not

every

child registered in the Amachi Texas Program in

Housto

has been assigned a permanent big brother

or

big sister. Ther

are on

average

seventy children left unassigned every year. Th

"Big for a Day" events

help address

this problem by

organizing

events specifically for Amachi children without permanent

"Bigs"

. Events are always 100%

free

for

the

children.

Besides

volunteering as a mentor at

an

event, there is anothe

way to

help

support this extraordinary program The lawye

Bowl",

an

annual

bowling-tournament

fundraiser for

BBBS

of

Greater Houston, will

happen

on a Saturday

in

early April

of

2011. HCClA

has

had a team

in

the

tournament of

legal

bowling teams for the

past

four years. HCClA

in

2009 even

took home the prize for

1st Place Help

continue our

winning

streak.

If

interested

in

joining

"Team

HCClA" either as

a bowler or

sponsor, please email [email protected].
mailto:[email protected]:[email protected]


15/32

~ r T R O O P S

[O]]]]lillJ-[[(([(ffi]J

www homesforourtroops org

HCCLA volunteers - Tom Berg, Denise Poole, and Darla

McBride - got down dirty on

behalfof

a disabled war

. HCCLA members volunteered at

the Landscape Clean-Up Day for the new home for a

Houston-area war veteran built by Homes for Our Troops

on June 25-26, 2010.

The new home was built for Naval Petty Officer-Anthony

Thompson and his family, including his young son, AJ.

Thompson was on his second deployment to Iraq with the

2nd Battalion, 7th Marines Fox Company 3rd Platoon near

FaI\ujah, when a suicide bomber detonated an explosive

under an overpass where Thompson and his Marines had

taken up post on April 20, 2007. During recovery efforts

Anthony was found unresponsive on a pile of concrete

rubble.

After being transported to three separate Battalion Aid

Stations, Petty Officer Thompson was finally stabilized for

transport to Landstuhl, Germany. As a result of the blast he

suffered a Traumatic Brain Injury, an incomplete spinal cord

injury and a punctured right lung.

Before his life-altering injuries, Anthony enjoyed playing

and watching football and baseball, bowling, going to the

movies, and listening to music. His wife, Ivonne, believes

that Anthony knows the support that surrounds them. She

says that having a home that the family can come home to

together

is

a dream come true. [A video

on

Thompson and

his

family as

well

as

photos of the completed

new

home can be

seen

at:

www.homesforourtroops .org/thompson.]

BOUT

Homas rOur

Troops

The American Institute of Philanthropy, one of the country's

premier charity watchdog organizations, includes Homes

for Our Troops in their Top-Rated Veterans Military

Charities listing. Homes for Our Troops, a national

non-profit, non-partisan 50

I

(c)(3) organization was founded

in 2004. The organization is strongly committed to helping

those who have selflessly given to our country and have

returned home with serious disabilities and injuries since

September 11, 2001.

Homes for Our Troops assist severely injured Servicemen

and Servicewomen and their immediate families by raising

donations of money, building materials and professional

labor and to coordinate the process of building a home that

provides maximum freedom of movement and the ability to

live more independently.

The homes provided by Homes for

Our

Troops are given at

NO COST to the Veterans they serve. [ Note: n eligible

Veteran

or

service member may receive a Veterans

Administration Specially Adapted Housing Grant up to a

maximum amount of$63,780. Homes for Our Troops'

assistance covers all costs over and above this grant and

works closely with the VA to ensure that when resources are

combined, the home is provided at no cost to the recipient.]

THE

EFEN ER
http:///reader/full/www.homesforourtroops.orghttp://www.homesforourtroops.org/thompsonhttp://www.homesforourtroops.org/thompsonhttp://www.homesforourtroops.org/thompsonhttp:///reader/full/www.homesforourtroops.orghttp://www.homesforourtroops.org/thompson


16/32

TEEN

LAW

SUMMER

PROGRAM

The four-day Teen law summer

program

in 2010 in Houston at

the

Family

law Center and the

Civil

and Criminal

courthouses was

made

possible

by

HARRIS COUNTY

CRIMINAL

lAWYERS ASSOCIATION

in

conjunction

with the Houston Young lawyers

Association

.

HYLA

covered the Family and Civil courthouse duties (July

14

and 16), while

the

focus for

HCClA

efforts

was

the two

days spent by the area high

students at the Criminal courthouse (July 20 and 21). Fourteen teens

from YES

Prep-North

Central and Southeast campuses (grades 10

-

12)

participated

in the program each day

(attendance

was

limited

to fourteen

to allow

the teens

if

invited by

the

courtroom judge,

to

sit

in the

jury

box during courtroom

observation timesl.

From 9

AM-2:20

PM

daily,

HCCLA

volunteer attorneys

escorted the teens

to courtroom observations and, when not in

a

courtroom, conducted in

the 7th-floor Attorney

Ready room crash

courses

for the teens

covering

the basics of criminal

law

court procedures, and the rights of teenagers.

The students were

responsible for their own

transportation

to and

from

the courthouse

each

day,

but HCCLA

organized

the

agenda

each

day

and provided

for

the teens all

materials, lunches, copies of

To

Kill

a

Mockingbird, segment ribbon awards, and Teen Law completion

medals.

SpeCial

THANK YOU to

the following

Judges

and

their courtroom

staff

for

hosting

the

participating

teens

IYou

made the

experience

OUTST ANDING for

the

teens/l: Judge Jay Karahan-Co

.

Criminal

Crt

nO.8, Judge

Jan

Krocker-184th,

Judge Kevin Fine-l77th and

Judge

Shawna Reagin-176th

(Judge

Belinda Hill-230th

also invited

the teens

to

her

courtroom, but

time ran

out

for

the teens during

that session

and

they did not make it to

her

courtroom). For more

information

on the

2010 summer program

and

the upcoming

2011

program, please

send

an

email [email protected].


17/32

Thursday ecember

9 2010

3720 Raymond Street

Houston

TX

77077

{off Washington Heights}

UNDERWRITERS

Arnold S.

Cohn.

PC

Codar Law

Offices

&smyer. Tritico Rainey, LLP

Musick Musick. LLP

Schneider McKinney. PC

Trichter Murphy, PC

SPONSORS",

David Adler, PC

Adrogue

Law

Firm, PLLC

Allied Bonding Agency

James

Abron

Colin B. Amann

Jennifer Bennett

Mark Bennett

Tom Berg

Lori

A.

Borello

Gerald E Bourque

Morgan

A

Bourque

Don R Cannell

Christopher L

Carlson

J.e.

Castillo

Daniel J. Corrigan

Paul J Coselli

EricJ. Davis

Nicole DcBorde

Gordon

Dce.

Dick DcGuerin

Danny Easterling

Michael Essmyer

Robb Fickman

Tyler A

Flood

David

L Gano

T ueker Graves

Guerra

Farah. PLLC

Guerrero Biggar. LLP

Guy L Womack Associates, PC

Steven H. Halpert

Ron

Hayes

Richard Haynes

Thomas

M

Henderson

Bo

Hopmann

SPECIAL

THANKS TO.

Kobain

Chatters Cafe

&

Bistro

Mark Thiessen

Steven Halpert

Christina Appelt

W.B . 'Bennie' House, Jr.

Johnson. Johnson Baer, PC

Kathryn

M. Kase

Paul

A

Kubash

Richard B. Kuniansky

Chip

B Lewis

Melissa Marti n

Scott Martin

Brent Mayr

Kiernan A McAlpine

Patrick McCann

W.

Troy McKinney

Bobby D. Mims

David D Mitcham

Gerardo S. Montalvo

Mary Moore

Richard

L

Moore

Thomas D. Moran

Earl Musick

JoAnne Musick

John

Parras

Michael Pena

Michael H. Pham

Thomas

A

Radosevich

Scott Ramsey

Gary Roth

Joseph Salhab

Katherine Scardino

Kent

A

Schaffer

Stanley G. Schneider

Don

C. Smith

James T. Stafford

Chris T ritico

George

H.

Tyson. Jr.

Jane Scott Vara

as o

time

o primin

"Starting

with

virtually no resources and no support, this

scrappy little group of volunteers and underpaid defenders

have changed 'the capital of capital punishmenf in ways no

one believed possible. I encourage you to support the lifesavin

work of

GRACE.

Their compassion

WId

energy

will

multiply the impact of your gift many times over,"

a charity

for the defense of the indigent -Sister Helen Prejean

Activist and Author of

ead Man Walking

Never

another

sleeping lawyer.

What can you do to help?

Visit our website at www.gracelaw.org .

IHE

EFEN ER
http:///reader/full/www.gracelaw.orghttp:///reader/full/www.gracelaw.org


18/32

;

I ( Cay

t

~ o l l e 1 t g u e ~ "

/ / about Juvenile Certificatiol1

rPat

McCann

\

j

, - '

Every once and a while, ~ m e sees o m e t h i n g being don

(

by

one's friends and colleagues, and one scratches one'

~ a d wondering why l certain thing

is

done this way o

'/ that. Sometimes the answer .is simply "That is ~ way

judge wants it , sometimes there is

no

answer. Sometim

the answer

is

that the w we

o

things

is

wrong. I

about

to

publicly scratch my, head and ask my collea

gu

who p r c t i ~ m j u v e n i l e courts a public question, and

'I h o ~ f n l i n d e e d I am truly asking, that somoone

wilLrespond, perhaps even being kind enough to pen a

response in this magazine for the next issue .

!

I am asking about what appears

to

be the current Harris

County'practice

ef

rolling ove}and never fighting juve

( certification of young

"

'ccused offenders as adults

in

fel

/

matters. I have cometo this question hones,1y, because

have

followed in

the p ~ t I : l

this a ~ p a r e n t rubbe samp

attempt to certify a young.offender for

trial

iii

(

the felony district courts. By that I mean I have

c o m

~

in

'AFTER such a deal was done, and after the young

offender had screwed up on community supervision of

deferred adjudication. I have seen the usual tragic resul

in

such cases, which are that the offender, o n

no mor

than sixteen, is sen,tenced

to

twenty or thirty or forty 'ye

on thep riginal charge of Aggravated Robbery, one of

S

most cOI11Ipon such charges for which

the

State see

certification

)

\

I

am

not going

to

pretend

to

be a juvenile

law

' expert. I

not

board certified in that area. I do not practice in thos

Harris County couds, so perhaps I am ~ s i n g someth

The general explanation I a v e heard o f f e r e d t h e

courthouse coffee shop for not fighting such certificati

is in fact

the

hope that the client w.ill get, due to their

tender years, the exact option of deferred I mentioned,

.'

THE EFEN ER


19/32

J (

/ b

/ /thus

~ r . n e h o w

keeptheirrecord

d e ~

getout

of

.detention,andavoidincarcerationinthe c u s t o ~ y

of

the

TexasYouthCommission.Iamsorry,but if thatisthe

/ r e ~ o n , thenIhave tochallengethelogic,atleastasit

normallyworksout.

(

,

/

Mostteenagerswho

~ n i m i t

felony&imesarenot) ikely

(

gOIng tohavetheskillstoc,ompletealongperiod

of

communitysupervision,particularlyinHarrisCounty,

wheretherevocation/adjudicationrateisfarhigher h ~ n

theaverageinthestate.Teenagershavetroublegettingto

schoolontime; letalonetakirigcaretofulfill-the

\ Q l i g a

i o n s of

adultprpbation.The"prize"

of

gettinga

slimchance{ocompleteanoneroussupervisionisthat

one

e x p o s e

youngmen[thestatisticsareoverwhelming

thatthosecertifiediiiHarrisCountYareblack

or

Hispanic

males]to ~ e n g t h y potentiallylife-long,sentencesfor

minorviotations

of

theterms

of

theirsupervision.The

certainty

of

theirb,ringadjudicatedis.almosta'given.This

(

P

tlze"

of

possible

d e f e

adjudicationisnot'inthe

client'sbestmterests,nomatterwhatthey

or

theirparents

mayask.

J ' of /

f . / . .

( > / .

Thesenearlyautomaticcertificationsalsotakeplace

(

despitesignificantevidence

of

mentalhealthproblems

withmany

of

theseyoungmen.Theseproblemsare /

usuallydocumented

in

theverysamepsychological

evaluationsmandatedbythecourtsforeveryjuvenile!

Thatmeansthattheyareorshouldbeavailabletothe

attorneysonthecases.UndertheFam!lyCodeprovisions

applicabletocertificittion,suchmentalhealthconditid

nS

).

aresupppsedtopreventcertification

and

transfertothe

adultsystem.Oftensomeover:workedcontract

'psycbologistthatdoestheevaluationsfor

u v e n i l e

P r o b a t hasdetermined,despitethe .evidenceof anIQ ,

of

sixtyandthepresence

of

hallucinations,thatthe

youngsteris"competenttobetransferred"toadult

criminalcourt ; .

(

J

'. ) \

Nooneeverseemstofighttlleseassembly .

assessments,or asksformore.timetocontestthe

.certification,

or

getsarealadlitem ~ p p o i n t e d .

if

the .

(parentsarenotprovidinganyhelp

tQ

contestthetransfer

toadultprison,

..

er,Imeantcourts,right. In felonycourts,

oncethevirtuallyinevitableadjudicationtakes\place,this

evidenceoftencomesto1light. It simplycomestolightfar

toolatetohavedonetheclientmuchgood.

I

/

/

Approximatelyahundredor soyoungmeneachyearare

certifiedtostandtrialasadultsintheHarrisCounty

JuvenileCourts. Theseteenagersfacealmostcertain

adjudicationIFtheyobtaincommunitysupervision;

otherwisetheyfacelongstretchesinadultprisonsw}1ere

theyarelikelygoing

to

bepreyforolder,larger,more

violentpeople. Theirchances

of

actuallychangingthe

course

of

theirlifeisvirtuallynil. IrecognizethatTYCis

n o ~ theplaceanyone itwere,orthatanyonewishes

toseeanyyoungoffendersentthere. However,Juvenile

Probation, ~ n d TYC,atleasthavesomeaspects

of

their

programsthat

try

to,ehabilitateorretrain-educatethese

youngmefi. WeknowthatIDCJ doesnotaccomplish

that. Nor istheremuchlikelihoodthatyouthfuloffenders

willhavetheirmentalproblemsgetadequateattention.

L

BeforeanyonethjnksIamunqulyweep! aboutthis,letme

remindyoutheseyoungmen,whomighthavebecome

peacefulcitizensunderjuvenilesupervisionor inTYC,

...

willgetout

of

prisononevday.Theywillstillbequite

young,angry, ~ t r e a t e d uneduca1fl.andvirtually

unemployable. >

- ) " .

/

U ,

Iknowtheact

of

askingthisquestionwillirritatethose

whodonotwishtoquesnbnthewaythingshavealways

workedor thosewhobelieveIamnGtqualifiedtoask

/

thesequestions.Idonotwish

to

hurtfeelingsbutIdonot

knowawaytoaskthiswithoutcausingsome

consternation. However,asmyfatheroncesaid

to

me.{

"son,

if

youneedlove,youshouldHavebeenafireman." I

hopethatmycolleagueswhopracticen juvenilecourts

willjointhis,debate,a n ~ answerthesequestions;Whyare

weinsucharushtoputsomanyyoungjuvenilesonthe

fasttracktoprison? Whyaren'tthesecertificationcases

foughtmoreor debatedmoreinthejuvenilecourts?',

Pat McCann is a past president ofHCCLA. He is certified to

handle death penalty cases in Texas and has taught on death

.

penalty appellate law

aniJ.

criminal procedure as an adjunct

professor at

hurgood

Marshall Scliool

9f

Law

. He has served

as a Board member or the Fort Bend Criminal Defense Lawyers

ppcigtion

and

is Chair

of

the AdvisoryBoardfor the Fort

BendMental Health Defenders. .

Offices o fPatrick F. McCann I

909 Texas Ave Ste. Houston:Fexas

7"7002

.;J

3-223-3805

' /

J

/

/ /

THE

EfEN ER


20/32

Letters

to the Editor

9

I sent my Christmas wish list to our judges two years ago.

Some of them are stiLi talking to me.

T9 lJI 'W Ft twt J

t./:

First, let me say I am a big fan of all our Federal Judges

The fact you are all appointed for life, has nothing to do

with it Seriously, 1 like the fact that in federal court we

are not saddled with the ugly partisan politics that we

fi

nd

in state court.

But, I still have a Christmas wish of you: How about

allowing lawyer voir dire?

On a misdemeanor OWl with a maximum punishment of

six months, a county court will give me 30 minutes to

voir dire. On a federal fraud case, where my client is

looking at

1

years without parole, I get no voir dire.

I know federal law allows this, but is this really fair?

Potential jurors are intimidated by federal court.

When a federal judge asks questions, potential jurors

lUlderstandably tend to be mostly quiet

or

agreeable.

Even the nicest Federal Judge can be intimidating to a

potential juror, simply by virtue

of

his

or

her position.

Maybe it 's the robe, I don't know.

1do know that allowing me one measly hour of voir dire

ttb

1ere is

so much at stake, (particularly when the

QitltmneIlt has spent months

or

years investigating),

hardly bring the wheels

of

justice to a halt. So, for

.l .ICIi3. my wish is for you to consider allowing

IR W

V f r voir dire.

T9

lJl W

f

fiAtt;

~ U t . 1

~ u - v t

i ~ ~

I know you all, and know that while we have our ......

1.; 1

.....

differences, you are in

my

opinion well-intentioned. I

know that being a state judge must be very difficult. 1

would not want the job. I once told

my

friend, Judge

Caprice Cosper, It must be very hard to be fair .. .ALL

DAY LONG "

You may recognize some of these Christmas Wishes;

that's because they were on my

2 8

Christmas Wish

List. I am hoping they will not still be onmy

2 12

Christmas Wish List.

1.

Grant Pre Trial Release Bonds

This issue came up during our recent election and is

finally getting the attention it deserves. again urge our

District Court judges to grant PTR bonds to non-violent

first offenders, particularly on state jail felonies like small

possession cases.

We

are exporting pre-trial detainees,

chained humans, to Louisiana. Granting PTR bonds is

fair and it will help solve the problem

of

jail

over-crowding and save the county hundreds

of

thousands of dollars.

In County Court, please stop the dismal practice of

denying PTR bonds to poor people, thereby keeping these

same poor people in jail on misdemeanors.

A presumptively innocent person, charged with a

non-violent misdemeanor, should not have to stay in jail

because they are poor. Ifyou deny a

PTR

bond to a

person on a misdemeanor, we all know the Hobson'

choice" they will face. They will be told, "You c

an

plead

guilty today and get out in 30 days,

or

you can reset your


21/32

cbOose're plead

than to

fight their

nvr

They plead guilty

to get

ou tofjail. They

- . J to secure their liberty. My wish is for all

Co

urts to stop this insidious practice. When you

poor people PTR bonds and then an hour later

their guilty pleas (all of whom are represented by

or maybe two lawyers) is justice really being served?

Stop the Plea

MUI

in County Court

My wish is to stop taking mass pleas from a chain

of

defendants, most ofwhom just met their lawyers that

mo

rning, on the first setting in court. Your Federal

Brothers and Sisters might be shocked by the Plea Mill

at

12

01

Franklin. What effective investigation has been

ne for these indigent folks? re they really pleading

guilty because they are, or do they just want out ofjail?

Federal Judges and some of our more distinguished state

judges, take guilty pleas very seriously. They are all on

the record. The judges ask detailed questions to ascertain

whether the defendant has received effective assistance of

counsel. There is no such inquiry when our County Courts

accept mass pleas of guilty each day. If the defendants

were asked how many times did you meet with your

lawyer? The answer would most often

be

Once today,

for 5-10 minutes or even Who is my lawyer?

A Federal Judge would rightfully reject such a plea; so

sbouldyou.

3. Stop

x

Parte Communications with the ADA

My wish is that State and County Court judges would stop

long standing practice of ex parte communications

r u J l the Assistant District Attorneys assigned

to

their

'II '.

t

is not fair. Could you imagine the outrage that

occur

on

a civil case iflawyers from one fmn were

-given non-stop ex parte access to the judge? Sometimes

the communication is simply about which trial might go

first but

tlrls gives the prosecutor the advantage of

owing which to

pr

epare and gives the appearance of

" l ' D ] : I r : i e 1 t y

that

we should all seek to avoid.

4.

P

JI)

Appointed

awyers

for

Their Work

My wish is that State and County juages would

arbitrarily cut vouchers for court appointed

I H U i

I I I I I

Arbitrarily cutting their vouchers serves only

to

~ i d I I I

other good lawyers from participating in the co

urt

appointed system. Lawyers must be reasonably

compensated for their work. If we think there are too

many court settings . ..well, see wish #5 .

5.

Justice is Not Measured

by

the Size Your Docket

My wish is that judges stop worrying so much about the

size of their dockets. Please remind your Colleagues to

care more about the quality ofjustice in their court and

less about the size of their docket; their place in history

will depend far more on the former rather than the later.

Please, consider all of the above as simply one lawyer's

Christmas Wishes on how to make the Criminal Justice

System a better system. I mean no offense by my

suggestions. and I make them in good faith in the hope

that someone out there with a robe on will be less

affronted and more inspired. We must lean toward the

future

if

we are ever to get there.

Robb Fickman is a past president

and

current board

member ofHCCLA with

27

years ofexperience zealously

defending people charged with criminal offenses in state

and ederal court. He is reputed to have invented the

Molotov cocktail in a former life.

[email protected]

I

713 655 7400


22/32

BURNS

B IL

BONDS

Shaun, John, Shannon and Shelby

License 74346

Family owned

and operated

since 1971

Bilingual staff

with

over 100 years of

experience

.:. We advocate a paid in full attorney

is

a defendant's best defense

.:. Non-Arrest Bonds - we

accompany

your

client to

the jailor from the courtroom

713 227 340

exas 77007 [email protected]


23/32


24/32

With its annual Fall Picnic, the Harris

County

Criminal

Lawyers Association proves

to be

a

progressive

organization. I remember when our

events used to be in the

banquet

room at

the

Holiday Inn, said attendee

Mark

Bennett. Yeah,

and

it

would just

be

the guys with their dates,

said

Jen as she

helped

the kids

to rainbow

bowls

of Dippin' Dots ice

cream.

We've

come

a

long

way, baby.

Our job

sets

us

apart from all others. Criminal

defense

s

meaningful

and

rewarding - but

it

s also controversial, and it s definitely not PG

rated.

With

the

Fall Picnic,

we

set out to

generate

good

will

and unity. Welcoming families and

friends with open arms and creating some good

wholesome fun nicely

balances out the

radical

aspect

of

our profession.

At

heart, the nature

of

our

group s to be

supremely generous

and

compassionate, particularly for the less fortunate.

At the Fall Picnic, our

members

bestowed

considerable

donations

on

the Gulf Region

Advocacy

Center (GRACE), a Houston based

charity providing

high

quality capital

defense

services, and Friends of BARC, a

non-profit

organization

rescuing innocent

animals from

capital punishment at the Houston pound.

Todd

Dupont graciously

donated

a brand new

O'Connors Criminal Codes

and his book, Crimes

and

Consequences, to the highest bidder. Thanks

to

Robert Pelton

for

his generosity as he

topped

the

charts in

bids.

With over 200

members

and friends in

attendance,

criminal

defense

lawyers overran

the

Downtown

Aquarium on October

24th.

W e

pet

stingrays and watched

white

tigers bat pumpkins

around like balls. We took

a

train under

water

with

the

sharks and

sawall of

downtown from th

top

of the ferris wheel. For this, we

are all

stronger

and

happier.


25/32


26/32

Since moving to Texas 20 years ago, I have gradually

taken up hunting. Aside from providing a great way

to spend time outdoors and forget the problems at the

office, this hobby has occasionally provided some

food for the holidays and good times with friends. I

will confess, however, that when I started doing this

I was terrible. Over the years, through pointers from

friends, one

o

whom was Tucker, a fine sportsman

and an avid shooter. I have progressed from being a

true tenderfoot

to

actually being a mild threat to an

unwary deer, provided it was distracted and taking

medication from a feeder. Even a few slow and

straight flying ducks have wound up in my stew pot.

One thing both Tucker and I have agreed upon over

many conversations is that hunting can teach much to

criminal defense lawyers. This article is an attempt to

distill a few principles that apply

to

both good hunters

and good lawyers. Any mistakes are mine, and frankly

any wisdom is Tucker s, who truly distilled these

thoughts into a usable format.

Good

hunters like

good

lawyers

.

are quiet observers.

Would good hunter bririg a Blackberry or an iPhone

to the tree stand? Probably not, and therein lies a good

lesson for the novice lawyer. Put down your smart

phone in court for a moment. Don t lie and pretend

you are not texting while the bail iff or the judge is

busy.

Now

.look around. Which ADA is in a bad mood?

Observe your surroundings. Is the judge irritated and

sentencing a defendant with a case eerily similar to

yours to a long term

o

years? Listen. What is the

trial case load like for this court? Look. Is the court

probation officer saying something tq another attorney

about what rehab programs this court prefers? Watch.


27/32

Is the bai liff trying to

be

kind

to

an accused's family

member? These are things we all need to know , and

frankly given our busy dockets and time pressures often

do not pay attention to. Try this

just once in an unfamiliar

court,

or

even a

court

you think you know well, and I

promise it will be worth the fifteen minutes you will be

unable to answer email.

Good hunters

are

patient

If your experiment above results in a situation where you

realize it

is

just a bad day to be in court...leave. Sign the

reset and do not attempt to stay -

it

is

just

not

your

day.

There will be another. Do not risk a terrible offer

or

a bad

result when you can return to the deer stand another day.

This also applies to dealing with Assistant District

Attorneys. These are an underpaid, often over-worked, and

harried lot. Realize that they have good and bad days , may

be following policies that they do

not

agree with, and may

not have had time to actually examine your case. Do you

want to approach them on unfavorable ground, where the

shot conditions are bad? Or do you want to pick a better

spot, where the shot is clear and the wind is right, say, at

their office over a cup

of

coffee? When you read a case

file, do you know when you are going to need a bit more

investigation to convince the ADA that your case

is

much

better than they realize?

e

the patient hunter, and do not

fall victim

to

wanting

to

get this matter resolved. A good

result for your client is worth the wait,

just

as a good buck

or a fine meat-doe is worth the patience.

Good hunters pick their shots

There is a moment in the day, usually right at dusk, when

the wind stills, the light is soft, and the insects buzz dies

way, when every sense in your body tells you a deer is

about to show. These moments happen

in

a trial , and

they happen in court every day,

when

the people are

ready to listen, you have the good reasons handy

why

your case should be dismissed or reduced to a very small

misdemeanor, and that is when you, the good hunter,

should take your shot. If that

moment

is not there, then

do not shoot. Sometimes this is hard, and requires a great

deal of the patience mentioned in point 2, but with

diligence, investigation, and a knowledge

of

the ground

and the winds, you will have a much better chance of

getting that deer

or

that dismissal.

y

the way, there is a corollary

to

this - the prey has the

right

to

get away, if one is following the rules. The duck has

the right

to

be swifter than you, and the deer more clever.

Try reminding your friends of this when the situation

arises, whether on the defense side or the prosecution.

Good hunters practice

There is a reason good hunters spend time at the shooting

range, and in walking the ground they will hunt,

or

in

reading about deer

or

other animals' habits. It helps.

Good hunters spend time honing skills so they can depend

on them when the time comes. Good lawyers do the

same. They spend time at CLE, reading the law, talking

with other lawyers who have hunted the same courtroom

ground, and learning the facts of their case so they can

depend on their knowledge and skills when the time

comes.

Good

hunters

are

careful

The

things I watched good hunters do that impressed me

most was

how

deliberate they often are. These habits

make good

sense

around firearms, in bad

weather

, and

in unfamiliar

ground.

They

make

just

as much sense

in

court.

As an example, one of the better hunters I ever saw [and

I am still learning] would check and walk every part

of

his lease several times a year, doing nothing other than

observing.

He

laid out his camp and his gear exactly the

same way every time he set up. I even knew which pocket

he kept a small first aid kit

in

[something he shared

in

case an accident happened]. Good success comes from

good habits. This hunter was methodical even in the way

he field-dressed game, taking care

to

never spoil the meat

or endanger himself because of acting without thinking.

This has implications for us in so many ways. Do you

know enough about your client to truly recommend what

is best for him? Are you methodical about gathering the

information in your case? Are you careful to inform your

client fully about every possible down range complication

in

your case, such as the implications for immigration

or enhancement

ifhe

takes a deal? Doctor s take an oath

whose first precept is Do

no

harm. When we slow down

and think for a moment about the things we do, it usually

works out better. Having done lots of thoughtless things I

later wished I had not, trust me on this one .

THE EFEN ER


28/32

The Deer Hunter by Pat McCann and Tucker Graves

Good

hunters

work hard

to

preserve their

hunting grounds and improve them.

Ever seen a hunter plant some oats on his lease for the

next season?

Or

remove some brush that could be a source

of

potential fire problems?

Or join

a hunting group, like

Ducks Unlimited, to be certain his voice is heard with the

legislature? Lawyers, like hunters, need to preserve and

improve the places we hunt, which means

COUltS.

t

means that , yes,

we

should

join

professional

organizations.

We

should work with the legislature and

the state bar

to

improve how we do things.

We

should

treat

judges

and adversaries

with

respect and try to gi ve

them the tools they need to help us.

Plant some

oats. You

may be surprised

at

the results.

Good

hunters are teachers.

would never have gotten a duck or a deer without

someone

to

teach me.

[

am fairly certain that some

of

the

folks who tried were pretty frustrated with me most days]

would never have gotten a not guilty verdict or a reversal

or a good plea or a dismissal without someone to teach

me. When you get those things, you have an obligation

to

pay them forward . Give a pointer

to

another lawyer. Tell

someone what the court they are heading into is like. Be a

mentor. Share what you know, whether at a

CLE

,

or

over

coffee at the courthouse, or a beer after work .

Good hunters

know

that last season's trophies

won't help you this season.

Trophies are great for memories and offer teaching

moments. They do not move tomorrow's cases. They are

proof of past success, but not of today's efforts. Trophies do

not make a hunter - work, patience, practice, and hunting

make a hunter. Hunters hunt. Talkers brag about trophies .

Good

hunters are

always

trying

t learn

and try

new things that may work.

This seems counter-intuitive to being careful ,

but

it is not.

Good hunters regularly test and evaluate new gear, try

new places to shoot from,

or

apply a friend's suggestion

to

improve their shooting,

or

new recipes for cooking and

enjoying the fruits

of

their hunting. [Cooking up a new

recipe for deer tender loins for

my

family was

one of

the

ni

cest hunting moments have had.]

What

works is kept,

what does not

is

ruthlessly discarded, as it should be.

Each good hunter, like each good lawyer, is a constant

THE EFEN ER

laboratory for their own improvement.

We

should not fear

new things, we

just

should evaluate them

in

the tough

laboratory

of

reality that we all work within.

Good

hunters are humble

but

confident

A realistic tempering

of

one's view

of

one's

own

2010 winter defender

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