The Defender is a publication of the Harris County Criminal Lawyers Association. HCCLA is the largest local bar association in the country serving criminal defense lawyers and raising the bar in the criminal justice system.
The Defender is a publication of the Harris County Criminal Lawyers Association. HCCLA is the largest local bar association in the country serving criminal defense lawyers and raising the bar in the criminal justice system.
The Defender is a publication of the Harris County Criminal Lawyers Association. HCCLA is the largest local bar association in the country serving criminal defense lawyers and raising the bar in the criminal justice system.
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Course Director :: Jani Masell, David Ryan and David Schulman
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March 4, 2016 :: 6.5 CLE:: Includes 1.5 Ethics
Cote eC Cee a ay
Pee Ea Ua ea eee eee ee
Birraporetti's, 500 Louisiana Street, Houston, Texas 77002
Geer ee ea Oe On eee Cee ESS ace
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March 23 :: Troy McKinney :: Includes 0.25 Ethics
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FOR THE LATEST NEWS & MORE10:
12:
16:
22:
27:
30:
34:
35:
= CLE Events
::A Word from our President
‘by JoAnne Musick
2: Winning Warriors
: HOCLA News Round Up
3: Welcome New Members
3 Constitution Day
Holiday Party
Photos by Russell Webb
HCCLA Ethics
Silence is Golden...Sometimes
‘by Robert Pelton
The Lifeguard
‘by Rick Oliver
Practice Pointers
‘A Ring Column of Help its
22: My Client Says He is Innocent,
But He Wants to Take a Deal to Get Out of Jail. What Do | Do?
by JoAnne Musick
23: Effective Plea Bargaining
by Jason Luong
24: EFFiling in Criminal Courts
by Damon Parrish I
The Right Tool for the Joh
by Joseph W. Varela
Getting Appointed Experts and Funding
by Scott Pawgan
Chess Corner
7 Ways to Win (in Chess & Trial)
by Tyler Flood
HCCLA Extras
Ethics Hotline
‘Ad Rates
New Member ApplicationThe new mantra, “rethinking criminal justice,” realy isn’t
all that new. Defense lawyers have known for years chat
‘certain sanctions and programs don’t work. Defense lawyers
hhave advocated for personal bonds for yeuts, For two decades,
HICCLA has spoken out about the abuses in the plea mill and
the over-criminalization of our citizens. HCCLA has
demanded-justice and change. Now, we hear the Harris,
County Criminal Justice Coordinating Council pushing for
change and rethinking the approaches to bond, treatment,
and risk-based assessments.
Ler’s hope their rally for change takes hold, We currencly see
our elected ymney making more diversions
available. But, what about these risk-based assessments and
treatments? We have had a pre-trial services department for
yeats analyzing tisk and making recommendations regarding
personal bonds, yet our judiciary has routinely expressed a
discrust of the assessment and been unwilling to follow ic.
Now, wich newer, updated assessments will they begin to
trust? Our probation department has used various assessment
tools over the years, yet we know chose were flawed. In shore,
‘our system of justice isa mess.
diseeice ace
In February, we realized there are varying policies and
practices among the related (0 assessments.
Surprisingly, some courts allow defense counsel to view the
assessment; some allow defense counsel a copy of the
assessment; all allow the prosecucor a copy of the assessment.
‘As soon as I was apprised of chis practice, I immediately
contacted the judges, probation, and the district atcorney.
Everyone apparently agrees (1) the assessment report, once
complete, belongs to the court and not the probation
department so probation has no input on whether or how it
fs disclosed (however, Dr. May, ditector of probation, highly
recommends all counsel receive a copy of the assessment for
review at least 3 days prior to court) and (2) the courts were
unaware of this practice generally. Ac this writing, we are
working on a standardized solution that allows all counsel
aceess to the report.
Sometimes it is che little things, like getting access 10
reports and information. Somerimes ic isthe big things, like
PR bonds and rethinking practices. Rest assured, big or
small, your HCCLA board is on top ofall of these and will
continue to push for what is just and right
2 our uur president
ICYMI:
HICCLA has been busy! On September 17, HCCLA held our
fest annual Constitution Day celebration by reading the
Constitutional Amendments on the courthouse steps and
handing out pocket-sized commemorative Constitutions.
Thanks co Grant Scheiner, Jen Gaut, Gemayel Haynes, and,
Phil Gommels for organizing and leading this event.
In October, HCCLA, with assistance from TCDLA, held a
two-day Winning Women conference which received rave
reviews as both educational and inspiring, even for the guys!
Thanks co David Ryan and Jani Wood for organizing and
directing this course.
In November, HCCLA again held its annual Donald Davis:
Dealing wich the
inspiring, and profound event. Ie is offered free each year
and provides valuable CLE and assistance, From suicide,
alcoholism, and disaster to planning, protecting, and helping
four speakers. shared their personal experiences, business
practices, nights and prayers for our colleagues
Thanks to Mark Bennett and David Ryan for organizing
another wonderful event. As
ractice CLE event. This isa truly amazing,
aside, we have learned that an
attendee, contemplating suicide, immediately called for help
and realized we all face chese issues and no one is alone or
immune from tragedy. That's one hell of a success for a CLE!
In December, Mak Thiessen again pulled off the party of the
ceneury for HCCLA’s Holiday Parry. In a packed house, our
‘members and guests shated an evening of fun and comsadery.
‘Thanks Mark,
Coming up we have a Search and Seizure seminar as well as
the First Annual Judge Wendell Odom Appellate seminar.
‘The one-day search and seizure event will provide legal
and practical approaches to litigating these issues pre-trial
and during trial. The two-day appellate evene will feature
handling appeals from scart ro finish as well as 2 crial
preservation track (0 set up better appeals. Also, in the
works isa technology course!
‘We have a lot going on with so much more on the horizon!
{I'm excited to watch our organization grow into a powerhouse
shaping the system and having a litle fun. Just check out the
Winning Warriors to see the great work being done by our
members. I grew up being told chat Houston had the best
dlefense lawyers in che country. Man, were they right!We ended the year with a bang.
The FCLD team decided to play games with opening
statements in CCCL 5. No matter, Thuy Le and Erie
Benavides still got the Not Guilty. This dynamic duo
was set to do battle again with the same FCLD team in
another case, but took the offer of anger management,
and dismissal. Lear the lesson — good things can happen,
g0 to trial
when cas
CCCL 10 would not allow CW's history of false reports,
or pregnant CW's new man had whipped the 3 year old
sprog of CW and baby daddy, but let in a picture of CW's,
belly and chipped tooth. Irene Wilson still got a NG in,
10 minutes, changing the defensive theory on the fly that
cident.
it was just an
‘Mike Threadgill welcomed the new ADA in Fort Bend,
CCL 3 with a big Not Guilty in a DWI 2"4 with DRE.
Katie Jo Muncie and Mark Diaz heard the 2 word verdict
on PCS in Galveston 122.
Jed Silverman had a day to remember, as he continues to
wreak havoc on unsuspecting ADAS. In one day; Jed got 3
not guilty verdicts and a mistrial. DV for unlawful restraint
and NGs on assault and Interference with 911 in CCCL 15.
‘The mistrial was a .15 DWI in CCL 5, with the jury 5-1
to acquit
‘Sometimes you've got to ask the hard questions and insist,
on the answers. Pat McCann was appointed after client
revoked in Wharton and sent to TDCJ. Pat learned his,
client had been abused as a child and witnessed his brother
murder his father. New trial granted, probation reinstated,
Paddy Mack was not finished. Thanks to the work of trial
lawyers Dan Cogdell and Cordt Akers, Paddy won a new
trial in 179 on a media road rage case.
Steve Shellist and Peyton Peebles scored a huge NG in
184 on murder. The jury believed it was self-defense, even
though the deceased half-brother was not armed.
Victoria Erfesoglou has been rolling through Fort Bend.
First, Vie scored a dismissal of a criminal trespass in CCL
4 by actually conducting an investigation showing the
police report left out important facts. Then, Vie scored
back to back orders of compliance in CCL 1 and CCL 3
for subpoenas FBCDAO sought to quash. When will they
leam to stop interfering with defense investigations?
DPS maintained 3 pleas for indecency by contact meant
lifetime registration as a sex offender. Mandy Miller
actually read the law, and insisted the plain language of
the statute required 10 years. DPS caved after Mandy
filed a writ, Learn the lesson — read the code!
Paul Morgan won his first DWI trial, with a .20, Paul
thanks Matt DeLuea for sitting 2 chair and Abigail
Anastasio for her assistance. There was some funny
bbusiness with the blood results. Lear the lesson ~ do
DWI right, or do not do itat all. The DWI gurus will give
you advice if asked, and nothing beats the training at
DWICLE.
‘The ADAs in 232 thought they had a whale in an
assault-fv 24 until Craig Still and Amalia Beckner
harpooned their case and got the NG.
‘Alan Macias and Mackenzie “Mack” Schaffer scored
NG on assault-fv in CCCL 9. CW had been hit in the face
with a pipe by a child having a temper tantrum, but told
the jury D threw her across the room 7 times. Alan poked
‘enough holes in that story to convince the jury otherwise,
A .13 blood draw and a bunch of surprise documents,
admitted over objection didn’t stop Troy McKinney
from hearing NG in CCL 1. Troy recommends a more
expansive subpoena to IFS so all documents get produced
before trial
Susan Criss scored a dismissal of Endangering a Child in
185. This was a media case involving a child wandering on
Spencer Highway alone late at night. Mom did not know the
child had left and convinced the State to do the right thing,
measCONTINUED
CAinning CAarriors
Undereover cops, a sting involving multiple transactions,
and D on parole were no match for Feroz Merchant, who
heard the 2 sweetest words in 248.
‘You would think HCDAO would stop trying cases against
‘Tyler Flood. Tyler scored NGs on a DWI 2! 20 blood
in CCL 15, .13 blood in CCCL 7 on DWI 18, 19 blood
DWI 2" in CCCL 11 where the client was clocked at 103
‘mph, in trial dismissal of a .19 breath on DWI 1in CCL,
6, and a hung jury and dismissal of a.12 breath DWI 1°.
Who says DWI gurus cannot try other cases? Mark
‘Thiessen won an Interference with 911 by DV in CCCL
2, and the jury let the State know they had wasted their
time. Then, Mark went to Montgomery CCL 4 and won,
‘an Unlawful Restraint for a Desert Storm vet
Norm Silverman and Daphne Silverman have been on
aroll. They hung the jury 5-5 for their client charged with
SAC, despite inculpatory DNA testing. They got a Not
Guilty in Gillespie County after MTS granted in trial. If
that’s not enough, Normie prevailed at CCA on 38.23
being broader than 4th Amendment and that independent
Courtney Stamper got NG on a .13 DWI in Ellis County.
‘Courtney and his blood expert poked so many holes in the
testing the jury found the testing unreliable.
‘Wendell Odom credits trial lawyer Pat MeCann with
preserving error at trial to score an abatement in a
capital appeal assigned to COA1, Paddy kept asserting
‘competency throughout the trial in 178, and COA agreed
with Wendell that the appeal could not go forward without
a competency exam.
Mark Thiessen had an impressive Fall. The State had,
problems with the .20 blood test on a DWI in CCCL 10,
so they dismissed it,., only to refile it as a 15, It did not
‘matter when the jury came back with a Not Guilty. Mark
then heard NG on 10 blood DWI for a Cuban immigrant
in CCCL 4.
@® wesc
FPW for a true habitual was no deterrent to Michael
Edwards, who heard NG after eviscerating the cops on
cross in 179, Michael thanks Alex Bunin, Erie Davis,
Kirby Taylor, Wade Smith, and the list serve for helping
him reveal the truth
Not all wins are NG. Skip Cornelius and Rudy Duarte
saved D's life with a verdict of LWOP in a death capital
in a media case, There were 3 dead and 2 survivors,
Tyler Flood got bored trying cases in Harris County.
Tyler won a MTS and dismissal on DWI 3% in
Montgomery 9, and then heard Not Guilty in Fort Bend
ccL3.
Brittany Lacayo got an abatement for review from CCA
in a murder and several counts of attempted capital murder
out of Galveston 10,
Cynthia Henley is dismissal machine. Cyn got a robbery
dismissed in 174. The vegan victor followed it up with
aan assault-fv dismissed in CCCL 1, even though CW was
cooperating with the State.
Who says ladies can’t do “big boy” work? JL Carpenter
and Meghan Smith had a Fall to remember. 3 NGs on
assault-fv and 4 felony dismissals would make any of us
happy. The battling beauties then went on the road and
scored a NG on Interfering with 911 in Galveston.
‘Ty Brock and Bill Stradley scored a 10 minute NG in
CCCL 1 for their client on prostitution. The UC claimed
to make an agreement on the street but D drove away and
was arrested a block away. The jury refused to talk to the
State after the verdict
‘The State dared Royce Franzoni and Erik Nelson to go
to trial on an Interference with Child Custody in Galveston
36. The boys from The Woodlands took the State up on it,
and got the dismissal 2 days later. They preceded this with
a hung jury in 184 on DCSMandy Jones has her career offto a great start by scoring,
the 2 sweetest words in the courthouse on a Terroristic
Threat in CCCL 14.
Vik Vij scored a dismissal with the jury in the hallway on
PCS in 230.
Cory Roth
Wade Smith and Troy McKinney scored a DV on a pot,
case in Fort Bend CCL 4. Jury sworn, MTS granted after
Wade impeached the trooper with his own dash cam, The
State had nothing else to offer.
at it again, NG in CCCL 6 on UCW.
Props to the statute slayer, Mark Bennett, who convinced,
COALL to kill another statute (sec. 21.12(a)(3)) on 15
Amendment grounds, Unfortunately, the legislature is not
in session to pass more laws in contravention of the US
Constitution,
Tad Nelson and Amber Spurlock used a flu defense to
hear the two word verdict in Galveston CCL 2,
Mandy Miller, you came and you gave... while taking,
home a dismissal after opening statements on a.30 DWI
where D ran into the trooper's patrol car! Seems trooper
fudged a lot of his facts in his report not supported by the
dash cam or other evidence, Oh Mandy!
Randy Ayers got a reversed and rendered in COA14 on,
a residue case. Randy credits Gemayel Haynes and Jen
Gaut for their fine trial work to preserve the sufficiency.
issue for appeal.
Apparently, state court no longer challenges Jed.
Silverman, who got a dismissal of all charges in a
Jacksonville, FL military court. Jed’s investigation proved
CW wife and CW's lover, the commanding officer,
conspired to trump up 5 counts of sexual misconduct,
Sam Gardner is on a roll, scoring a win in CCCL 10
for resisting arrest. Sam then heard NG from the jury in,
230 on EMV. State offered to reduce to a misdemeanor
pre-trial. The immigrant D can now stay in the US.
Emily Detoto and Mike Driver scored a Not Guilty
on 25-life sexual assault in 262 where the court denied,
continuance after Emily experienced a sudden and
shocking death ofa close friend,
Marjorie Muniz biked her way to a Not Guilty in on
assault-fv in CCCL 12.
Windi Pastorini got a NG in 177 on AADW.
Joaquin Jimenez got aNG in CCCL 6 on assault-fy, CW
did not appear but the 911 tape came in, JJ says the jury
was out less than 30 minutes,
Gus Saper scored a dismissal in CCCL 10 on third tial
setting of DWUFSGI. Gus thanks Brent Mayr for helping,
find the flaws to secure dismissal
Stan Schneider and Casie Gotro so frustrated the ADAs,
in a media ASAC they goaded them into moving for a
mistrial during closing argument in the 176, The trial court,
granted the Double Jeopardy wit to deny the State a retrial.
‘Trinidad Zamora and Jed Silverman convinced the jury
it was manslaughter, not murder. Client was about to take
‘plea to 30 years on murder when the verdict came in, The
jury decided 12 years was appropriate.
David Ryan worked out a pre-trial diversion on a home
invasion with the jury in the hallway in Fort Bend 240.
Danny Easterling heard NGRI on a murder. Danny
thanks Wade Smith and Jason Sosa for helping in a most,
satisfying win,
‘casio @)CONTINUED =:
UGS Teena
CGarriorg
‘A gun, 11 kilos of coke and the DEA did not stop
Priscilla Bush and Chevo Pastrano from getting a not,
Maverick Ray goosed CCCL 14 in COAI on DWI. The
trial judge declined to allow Maverick to put on evidence
to support his MTS and conducted an unauthorized post
abatement evidentiary hearing. ‘The COA found both the
post abatement hearing and denial of MTS unreasonable
Great win... and great balls of fire!
‘Alejandro Macias scored a NG on harboring a runaway
in CCL 3. The information failed to plead
elements of an offense.
Bad facts do not mean there is reasonable suspicion for
the arrest. Steve Shellist and James Kan won a MTS in
CCCL 13 with evidence and a well written brief
Actual innocence does not seem to be a bar to filing
charges. Brett Podolsky did a vigorous investigation that
Jed to the arestof the real culprit, but only after forcing the
State to go visit the eal culprit in the Galveston jail and an
innocent man spent 6 months in jail. The State offered no
apology. Leam the lesson — there's no substitute for proper
pretrial investigation.
Bre LN
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coe Eddrea McKnight pera er en aera)
‘September 17th is Constitution Day, and last year
HCCLA began a new tradition of celebrating our
United States Constitution with a public reading
of the Preamble and Amendments. HCCLA also
provided commemorative pocket constitutions
for attendees and passersby.
This event was modeled after our celebration and
reading of the Declaration of Independence
which occurs each 4th of July and was started by
Past President Robert Fickman,
Special thanks to member Grant Scheiner for th
inspiration for this event and to Grant, Philip
Gommels, Jennifer Gaut, and Gemayel Haynes
for organizing this celebration.
‘acoso (@)HCCLA ETHICS
silence is golden...HCCLA ETHICS
... Sometimes
by robert pelton
Keep your mouth shut. Don’t tell anyone else about it, It
is part of an old proverb “Speech is Silver and Silence is
Golden. Often the best choice is to say nothing.”
‘When your client is the subject of a criminal investigation,
cthically you should warn them to keep their mouth shut and,
remain silent
Your client needs to communicate with you, so it is better
not to be silent with you. It is much better if you are not,
silent with your client, Silence may get you a grievance and
a difficult client. All communications between the accused
citizen and the lawyer are privileged communications.
Many times the client will bring his wife, family members
of friends when the lawyer and client are communicating.
Always advise the client of the privilege. Warn the client
of the potential danger of his best friend or wife or husband
or any other person suddenly becoming his enemy. If the
client insists, write a simple note for the client to sign.
I, Client Name, waive the
attorney/client privilege
and permit my lawyer to
communicate with my
spouse, cousin, friend, etc
My lawyer, Robert Pelton
has advised me that there is
a danger in doing this.
Client Signature
.
Do not
make promises
‘ou cannot keep
If the client is totally
unreasonable then
the best option is
to decline the
case.
Always tel your client not to discuss their case with anyone.
If your client understands and signs this waiver, then you
ccan discuss the status or answer questions, The client may
rot be able to fully explain what is going on and family or
friends may be able to help.
The hotline has received several ealls from lawyers and or
family members or friends, employees secking facts or the
status of the case, Mothers worry about their children, When
1 crying mother, whose son has a lawyer, calls or comes to
your oflice asking for your advice and wanting to know why
the other lawyer won't talk to her, explain the attomey/elient
privilege. We recommend you call the lawyer and advise
the current lawyer of this event. The rules permit this, The
lawyer may have good reason to hide information from that
certain person. If there is no valid reason, then a simple
explanation to the lawyer that he needs to get a waiver from,
his client so the lawyer can tell the erying mother or father
‘what is happening on the case may help. A lawyer who is
serious will not mind that.
Clients in jail get lonely and seared because many of them
do not have many people who really care about them. Try
to see the client who is locked up and encourage people to,
visit the client, Send a letter to just check in if you cannot,
g0 t0 the jail
You are bound by the Texas Code of Ethies. Talking,
in hallways or elevators can be disastrous. It has been
reported that in at least one courthouse in Texas
recording devices have been discovered in hallways
and elevators. A police officer out of uniform was in the
hallway in a Houston courtroom listening to the defendant,
talk with a friend about his case. Of course the officer
told the prosecutor of the conversation and it was very
unfavorable to the client.
caso (@)HCCLA ETHICS
CONTINUED
silence is golden...
... Sometimes
At minimum, when you have a trustworthy person worried,
about their loved one get a waiver from the client to give
information about what is going on with case and court
settings,
Many clients do not take their case seriously. They may
think it is no big deal. Do not make promises you cannot
keep, Ifthe client is totally unreasonable then the best option
is to decline the case,
‘What will the outcome be? You cannot and should not talk:
about the case results until you have all the facts covered,
Investigate the case. Go to the scene of the alleged offense.
Talk to all the witnesses. Even after getting discovery, you
will generally find more witnesses that law enforcement
id not talk to. Law Enforcement people want to close the
case. In a recent capital murder case where our client was.
4 gang member, the deputy talked about all the tattoos and,
‘what they meant. He was very familiar with our client’s life
but when asked about the shooters, he had no information,
When he was asked why there was not an investigation on
the two shooters - he said, “No prosecutor asked us to find
‘out about them.”
You are ethically bound to investigate law and facts, Most
times itis best to have an investigator talk to the witnesses,
first. Tape record and ~-r-memorialize in writing ~ then
you can talk to the witnesses. You will end up being a
witness if the individual who was interviewed claims you
lied or misled them.
@ wesc
by robert pelton
SOMETIMES THE TRUTH HURTS. It hurts more if
you have not done everything ethically to find facts that
‘may help your client, Reach out to a fellow lawyer if you
need advice as a second opinion.
Bobby Mims is now working very diligently and ethically
to find facts that will help him in a capital murder case.
Without doing what Lawyer Mims is doing, his client will
suffer and his case will make bad law which others will
hhave to deal with
One of the hardest lessons to lear is when to keep your
‘mouth shut. Many of us had to learn the hard way. One of
the few times I was in the office of Perey Foreman he g
call from a client in jail. “Keep your GD mouth shut
was his advice. He said many a person has been arrested
and convicted by running their mouth. As soon as you get,
hired or appointed, make it mandatory that your client not,
discuss the case with anyone but you or a member of your
staff, Shut down all social networking sites.
If there are witnesses, and especially the complaining
witness, try to ethically get access to any sites they have so
yyou can sce what they have put in cyber space. Many times
the information you find will help you win or mitigate your
client's case.
When
your client is
tne subject of a
criminal investigation,
ethically you should
warn them to keep
their mouth shut
and remain
silent.Harris County Criminal Lawyers Association
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INFO@BURNSSR22.COMTHE‘Back in the day I was a lifeguard, if you can believe that.”
‘After a hesitant pause, she said, “Not as easy as it looks,
is iv?”
He shrugged to himself. His cyes drifted up and as they did
the phone slid down his chin a bit, He could have heard her
if she were talking. But she wasn't; she was waiting for him,
He took a deep breath and gently probed the darkness. It was
too complete to discem the shapes on the wall, but he wasnt
scared. Itwas his office, after all; had been for the last twenty
years. He could smell his smell in it. Everything he touched
‘was warm and familiar, He could move confidently in the
darkness without offending a shin, This place symbolized his
place in the world. Every stick and scrap was evidence of ora
testament to the career he'd conjured virtually out of nothing,
Stil, he knew, pride isn’t enough to light what's dark.
His was the same sort of erap you see adoming the walls
of nearly every defense attomey's office. Certificates of
accomplishment, laurels earned and laurcls bought, tokens
of appreciation, historical hubris, and the scalps of fallen
enemies, He knew what they were, He knew they were there.
He'd spent what felt like a lifetime among these baubles. He
knew he would recognize them immediately, if only the lights
were on, He sighed and mumbled, “I can only see it when 1
close my eyes.”
Gently, she said, “What was that, John?”
He shook his head like he was warding off a fly, readjusted
the phone and said, “Nothing.”
“Did you ever save anyone?”
John’s eyes were drawn to the black comer where the inky
dark loomed heavy and substantial. His filing cabinets were
a mausoleum of old voices and the stories that had brought
them here. Of course he had saved some of them. Some he
saved from themselves. Others he plucked from circumstance
and the conclusion it suggested, For those victimized at the
altar of leverage he had found the fulerum and tured the
tide, Too many had been spared the wrath of political guile
masquerading as adversarial zeal, Of course, some of them
were just as guilty as Hell. He saved some of them, too. But,
he hadn't been able to save them all. There were just too
many.
“When you were a lifeguard, I mean.”
John chuckled quietly and said, “Once. But mostly, I worked
‘on my tan. I remember by the end of that summer the sun had
bleached the hair on my arms and legs white.”
HISFILING CABINETS
WERE AMAUSOLEUM
OF OLD VOICES AND STORIES
Instinetively, he reached for his forearm and could remember
the soft blonde fuzz of that summer despite the coarse salt
and pepper of this winter, “My Mother used to boast that the
contrast of those tiny white hairs against golden skin made
‘me seem almost angelic.”
coseCONTINUED
THE
LIFEGUARD
‘T'm sure it was just a trick of the light.”
His laugh was almost a foreign sound, He said, “No doubt.”
“Tell me about the one you saved.”
He took a deep breath and leaned his chair back, anticipating
the soft nasally squeal of rusty spring. He pressed his head
into the rough leather and felt the cold knot of tension that
always seemed to play at the base of his skull
“You ever notice how so much of life is metaphor’
“have to be honest,” she said, “More often I find it to be
allegorical.”
John cleared his throat and said, “I suspect secular dogma is
mostly to blame, for that.”
“How do you figure,” she asked.
"You want to talk about that or you want to talk about the
pool?”
‘Good point,” she said, “Let’s talk about John the Life-Saver.”
“That's probably a bit ambitious, but I'll tell you anyway. 1.“
‘was in my stand, rigidly observing that 10/20 principle they
drilled into your head back then.”
“Ten seconds to scan your area; twenty seconds to get to and
rescue anyone in it?”
‘Very good,” John said, “She was across the pool from me.”
“Tell me about her, if you remember.”
“She was Hispanic. She was there with a few other women
and a gaggle of kids who all bore at least the slightest
resemblance to her. At the time she seemed old, to me.
Looking back, I assume she was in her mid-thirties; a baby.
Her hair was twisted with one of those thick green rubber
bands they use to package broccoli at the grocery store. It
didn’t matter, though, She had the kind of hair whose vibrant
simplicity makes other women jealous.”
“The rubber band is kind of an obscure thing to remember,
Why do you think you focused on that?”
@ wesc
Ihe e)a):
“I was scanning my area when she eased into the pool. You
could tell right away the water made her nervous. The kids
all hollered and cajoled and the adults even clapped as she
went in. The kind of thing that would piss you off, if they
weren't her family, Some of the kids splastied her and you
could tell she didn’t like that; not because of what the water
could do, but because of what it was. I don’t think any of
those kids could understand her fear. 1 know I didn’t, then,
Anyway, she put ona brave face and started bouncing up and
down a little. But, she was careful not to let her head go
under. She was white-knuckling the conerete with one hand
and waving the other around in circles under the surface—a
pitiful attempt to float. That was the start of it. She would
bounce a few times and then float into deeper water, all the
time testing her footing. Bounce and float, bounce and float,
Check for ground, Deeper and deeper. By then no one was
paying attention to her anymore.”
“Except for you,” she said,
In the dark, John shook his head. He looked up at the
ceiling and slowly exhaled a shuddering breath. “Not me
either,” he said.
“What happened?”
Mn my next pass I got to the spot I'd last scen her but she
‘was gone, It took me a second or two to realize she'd gone
under, Got too deep and lost her grip on the firmament, 1
suppose. I hadn’t realized how short she was until she went
under. All T could see were two little hands reaching
heavenward, either side of that beautiful brown hair.”
“She didn’t panic when she went under?”
“Maybe that’s why I didn’t keep as good an eye on her as I
maybe should have, I figured if she got into trouble she'd
start thrashing about and get everybody’s attention, Surely, 1
thought, her family would go in after her and she"d be out of
the pool before T could get out of my stand, But, that’s not
how it happened. I guess not everybody drowns the same
way.”
“Would it be easier if everyone did?”
“I think you're asking a tougher question than you realize,”
After a pause she asked, “Did she make it?”“I don’t remember blowing my whistle but I can still feel
those three sharp blasts in my chest and in my bones,
silencing the din like gunshots as I fell from the stand like a
stone in to water. T hunched over my rescue tube and swam
to her as fast as my arms would carry me, When I got there 1
jabbed an arm in the water and grabbed ahold of her just
above the spot where that thick rubber band was binding her
hair.”
So,” she asked.
1 pulled her up and she coughed a gout of urine-laced pool
water, but the important thing is she was coughing. Anyone
with Kids will tell you that’s a good sign.”
‘So, you pulled her up by her hair and saved her?”
tad"
“Ouch.”
My Father always told me to never confuse safety and
comfort. I figure she learned that lesson the hard way, that
day.”
‘When she didn’t respond John stood up with the phone. He
stepped around the open desk drawer and walked to where he
knew the sideboard was. He jiggled the stopper and set it
next to the decanter, It rolled on its side and settled with a
pleasant clink. He groped for a high ball and when he got it
added three fingers of Scotch, It was reduced to a bony finger
by the time he regained his seat
Can I ask you something, John?”
“Please, do.”
“What was it that reminded you of your lifeguarding days?”
John set the high ball atop his desk and leaned his chair back
again. Slowly, he let his head roll forward and loll side to
side, trying to work out a kink. He said, “Before you could
get hired as a lifeguard you had to pass a couple tests; prove
you were a strong enough swimmer for the job. The first was,
easy enough. It was a timed five hundred meter swim. T
hhadn’t yet leamed how to swim with my head under water,
‘but they gave us plenty of time to finish and I did it without
too much trouble.”
“What was the other?”
John leaned forward and put his elbow on the desk. He
exhaled a breath that came out in a dry fetid rush. He
swallowed the last of his drink, He said, “There was a
separate pool by the diving boards where the water was
deepest; so deep you couldn't make out the bottom. They
took us over there and we saw something odd. Cinder blocks
were spaced out along the edge of the pool; one for every
applicant, They didn’t mention the blocks and we didn’t ask.
We got in the water and they told us all they wanted us to do
was tread water, We started and did that for what seemed like
forever. It wasn’t a problem for any one of us and I think that
‘made us alla bit cocky. I remember a joke or two coming at
the expense of the strength of the application process.”
“You forgot about the blocks.”
“We did. Afler a while we thought surely they must be
satisfied. They told us to swim to the side of the pool. We
thought it was over and we'd passed their test
nicoCONTINUED
THE
LIFEGUARD
It wasn’t and we hadn't. They told us to each grab a cinder
block and wade back out to the center. Once we were out
there a stop watch was produced. They told us to hold the
cinder blocks above our heads and tread water until they told
us to stop, If we dropped the block we were out.”
“You passed the test.”
John nodded and in his solace a single tear tracked his cheek
and settled with a mournful tickle along the base of his jaw
“Iwas a young man, then. The cinder block weighed fifteen,
‘maybe twenty pounds at the most. At the start, [held it up in
‘one hand and with a smirk on my face, Obviously, I was
showing my ass. But, pretty soon it felt as though I was
holding a goddamn elephant above my head and I wasn’t
smirking anymore, My arms and legs and lungs were
burning like fire, but I was determined not to let that cinder
block beat me, I'wanted to impress the ones who were there
who'd already passed the test, And I wanted to wipe the
smug look of satisfaction off the face of the man holding that
stupid stop watch, too.
Pretty soon two of my fellow applicants dropped their blocks
and kicked for the side where they clung to it, defeated, Stll,
kept kicking and thrashing, In the beginning I was high and
strong and able to keep my chin clear of the water. As time
passed I could feel myself beginning to sink. It was such an
‘odd sensation feeling your strength flag in such tiny but
‘meaningful increments,
“What do you mean?”
@ wesc
INA ela):
“I was drowning; that’s what I mean, I was just doing it
slowly and against my will, I realized it when [fell the water
‘on my checks. It tickled a little and forced me to blow air out
my nose so I could breath. I had to kick hard every so often
to get clear of the water so I could take a full breath, The
water didn’t care. It was ready to accept me dead or alive;
docile or thrashing. And then it was tickling my earlobes. I
could barely force a kick hard enough to clear the water for
air. Still, kept kicking and sinking. When it started to sting
my eyes I cried out of frustration. I set my jaw and stared
blurry lasers at the man counting the time. I believe I would
have gone right down to the bottom holding that block over
my head, if it had come to that.”
“But it didn’t
“Fortunately, no
What do you think gave you the strength to endure?”
“Tknew I could drop the block.
“Whats so diferent now, John’
John lowered his head until it was touching the desktop, He
whispered, “I can’t drop the block. Not anymore, No matter
how heavy it gets or how far under I go. There's no rest and
no break. No stop watch and no end.I can only see one way
to get out from under it, anymore.” He started to ery; silent
and wracking sobs. Blindly, he reached inside the open desk
drawer and gripped his pistol, Like everything else in his
office it felt comfortable and familiar. It felt easy and light,
and with it the promise of a dream, With his eyes closed, he
could see it perfectly“John?”
He clamped his mouth shut to stifle a sob and didn’t trust
himself to speak. He thought about ending the call. He
‘wondered whether it had been a mistake to begin with
“John? Are you still with me?”
John was able to manage a confirmatory squawk.
“Get up and tum on the lights, John.” The hardened edge to
her palliative tone caught him off guard, He looked up and
wondered through tears how she knew he was sitting in
darkness,
“How did you know the lights were off?”
“Turn them on, John,
Confused, but obedient, John pushed himself back from his
desk and went to the wall switch. Light bathed his office and
he winced, As his eyes adjusted the frames on the walls
retumed slowly to focus.
ote
“1'm here.”
“The block is your life and it's heavy because it's
‘meaningful. You don’t have to drop it, John, You don’t have
to drop the block and you don’t have to carry it alone. Are the
lights on?”
oe
“Look around.”
Tetchily, John said, “It's my office. I know what's here.”
“I think you've forgotten, John. Look around. Look around
and remember what all you've accomplished; who all you've
helped, Take things down or pick them up and dust them off,
examine the details. Re-experience them, John. Those things
add weight to the block, too. And those are things you
shouldn’L want to let go of.
You're lonely; not alone. When you lose contact with the
faces and the places and the love, of course it’s just you
holding a cinder block overhead in a big dirty pool of hungry
water. Once you realize that, the block will start to feel
lighter and lighter. You may even feel strong enough to show
your ass, a litte.”
He hung on every word, trying not to fall vietim to what he
so often accused others of: not listening. He wanted her help,
‘That's why he had called. He breathed deep and steadying
breaths, He looked around his office, Somehow, it felt both
familiar and new. He saw faces and could hear their voices.
It wasn’t all laughter. There was pain, too. But it filled him
up and forthe first time he began to feel grounded and whole.
Emotion welled up and he wondered how he could have ever
considered escape. He moved from picture to picture; bauble
to bauble, He had no idea how much time had passed;
another welcome fecling. He realized she was still on the
other end, waiting for him to come back.
For the first time in as long a time as he could remember, he
smiled a smile of genuine appreciation, Not just for her voic
but for the voices she helped awaken, “Thank you, Hope.
“L'm glad you called, John.”
John started to drop the phone but stopped. “Hope?”
“Vm still here, John.”
“That's not your real name, is it?”
He smiled as she giggled from the other end.
“Have a good night, Jon.”
TEXAS LAWYER'S
ASSISTANCE PROGRAM:
IFYOU NEED HELP
CALL ANY TIME
DAY ORNIGHT
(800) 343-8527
cose @)a running column of helpful hints
So, your client who maintains his innocence wants
to “take a deal” in order to get out of jail. Can you
allow your client to enter a plea of guilty, even
though he maintains his innocence? Let’s start
with the ‘Texas Disciplinary Rules of Professional
Conduct.
Rule 1.01(b)(1): A lawyer shall not neglect a matter
entrusted to him or frequently fail to cary out
completely the obligations that the lawyer owes the
client.
Rule 1.02: A lawyer shall abide by a client's
decisions in a eriminal case, after consulting with
the lawyer, as to a plea to be entered, whether to
waive a jury trial, and whether the client will testify
Rule 1.02 Comment 2: A lawyer shall disclose
offers to settle (proposed plea bargain offers in
criminal cases).
Rule 1.03: A lawyer shall keep a client reasonably
informed about the status of a matter and promptly
comply with reasonable requests for information.
A lawyer shall explain a matter to a client so that
the client can make informed decisions about
representation.
First, you have an obligation and a duty to your
client. Ifthe prosecutor has made an offer, you must
relay that offer to your client. You must also explain
the offer sufficiently for your client to determine
whether or not to proceed to trial or accept a plea
offer. It is imperative that you not only convey
offers and discuss whether to proceed to trial but
also consult with the client the consequences of
each decision. The client must understand the
trial process and its pros and cons along with the
evidence that is likely to be admitted.
Aan Oa rehmsre até
He is Innocent
But He Wants
to Take a Deal
to Get Out of Jail,
What Do I Do?
RO CUCR SCY
Secondly, you must remember that it is the client
‘who decides what plea is to be entered. He may
plead guilty or not guilty. That decision is his
and his alone. You should advise him as to the
consequences of his plea, but the decision to enter
plea rests solely with the informed client.
Outside the Rules, you must consider the plea itself
Remember, the client maintains his innocence, yet
hhe wishes fo enter a guilty plea and take advantage
of a plea-bargain. While a judge does not have to
accept any plea of guilty (thereby forcing a trial
wherein the client could plead guilty to the jury), the
Judge can accept a plea even where the defendant
asserts innocence,
‘The Supreme Court held in North Carolina
¥. Alford, 400 U.S. 25 (1970) that there is no
constitutional bar preventing a judge from
accepting a plea where a defendant maintains his
innocence while admitting that the prosecution
hhas enough evidence to convince a jury beyond a
reasonable doubt that he is guilty. Thus, his plea
stands regardless of his stance that his is innocent,
So to answer our original question, the answer is
simply you can most likely allow your client to enter
aplea of guilty (to a judge or jury) despite the fact
he maintains his innocence. Once the client is fully
informed, the decision of the plea to enter (guilty or
‘not guilty) rests solely with the client.Effective Plea Bargaining
ete
In the movie Searching for Bobby Fisher, Laurence
Fishburne plays a streetwise veteran chess player
named Vinnie who teaches a classically trained
13-year old chess prodigy how to play street chess.
In a critical moment of mentorship, Vinnie sternly
admonishes his young mentee: “Never play the
[chess] board, Always play the man. You've gotta
play the man playing the board.” Similarly, trial
guru Gerry Spence wams us, “If you're trying
‘your case on the facts, you're going to lose every
time.” I would expand this principle further. Being
a good advocate for your client means more than
just being a court room lawyer. It means learning
how to effectively influence those people who will
likely decide the result in the vast majority of your
ceases—that is, the prosecutors,
According to a 2011 report by the U.S. Department
of Justice, approximately 90%-95% of all state and
federal criminal cases resulted in a plea bargain,
As trial lawyers, much of our focus is on how to
be a better and more effective courtroom lawyers,
which is a worthy goal. But the reality is that most
of your cases will be decided on how effectively
you can influence the prosecutor in the plea
bargaining process.
One of the most time tested books on human
behavior and salesmanship is Dale Carnegie’s book
How to Win Friends and Influence People. Written
in 1936, this book is a primer on the basic art of how
to influence people. I read this book once a year.
Whenever I mentor young lawyers, whether as a
prosecutor or now as a defense attorney, I always
tell my mentee to read this book.
The philosophy of this book is simple: Suecess
requires the willing cooperation of other people
and winning that cooperation means learning how
to focus on the actual self-interest of the other
person. One of my favorite quotations from his
ook illustrates why we often get crosswise with
prosecutors in the plea bargaining process:
6 Personally, lam very fond of strawberries and
cream, but I have found that for some strange
reason, fish prefer worms, So when I went
fishing, I didn’t think about what I wanted. I
thought about what they wanted. I didn’t bait
the hook with strawberries and cream. Rather,
I dangled a worm or grasshopper in front of
the fish and said: “Wouldn’t you like to have
that?” Why not use the same common sense
when fishing for people? 9?
If you're focusing only on the strengths and
‘weaknesses of your client's case but ignoring the
real, every day, and mundane things that motivates
prosecutor, then you are ignoring a whole area that
is influencing the outcome of your client's case. For
example, most felony #3°s, especially new ones,
are overwhelmed, live in fear of screwing up and
just want to feel like the work that they are doing
in meaningful. When dealing with a #3, 1 often
preface my dialogue by saying, “I need your help.
I'm trying to move this case. Would you consider:
?” As simple as it sounds, by starting with “I need
your help”, you dramatically change the tone of the
dialogue and the result for your client. You have
made the prosecutor feel as if they are in control.
Sometimes, rather than saying, “Will you give my
client 2 years. He's a really good guy and his wife
is expecting a baby.” A more effective approach
is to say, “Will you let my client do 2 years, so
that I can look like a hero?” Again, this is a subtle
shift in tone that can mean the difference between
your client doing 4 years or doing the minimum.
Whether it be a need (o feel empowered, the need
to feel important or simply the need to feel good
about the work they did on your case, structure
your communications to subtlety focus on meeting
the prosecutor's needs. You are not compromising
your client's interests, and you are not giving away
your defenses. You are getting the deal that your
‘client wants by selling it in a way that recognizes
how people really make decisions,
Good luck and good fishing.
Inyejay yo uwinjoo 6
icone @)E-Filing in
Criminal
by Damon Parrish 1
In 2012, the Supreme Court mandated e-filing in
civil maiters and they probably thought it would be
great cost venture for local governments, an
easier way to modemize filing systems and make
public records easier to access. For the most part in
Harris County, this has been the result of the e-file
mandate. Attorneys have casier access to court
files and records, and we have the ability, to e-file
motions, pleadings and other documents via the
comfort of our office.
There are problems with the e-file system, such as
inconsistencies on how pleadings should be filed,
the complicated method of actually preparing your
documents to be e-filed and the lag time between
when you submit a pleading and when itis actually
accepted. For the most the part these issues exist
largely in the civil world and have little impact on
ur criminal practice in Harris County. But times
there are a changing we can reasonably expect
e-filing to soon be mandatory in our criminal
courts as well. So lets get started.
First, you must select @ provider and luckily a
website has been setup to help attomeys find
e-filing providers, www.EfileTexas.gov. This
website list all electronic filing service providers
(EFSPs) for Texas, but do not confuse this with
FreeFax which is only available for filings in Harris
County and then only for specific types of filings,
There are many EFSPs to choose from, some are
free and others have a small charge to use their
services. After sampling a few of the EFSPs I
believe EfileTXCouris.gov is the best option. It is a
free service, relatively easy to understand and very
easy to use, Once you have selected your EFSP,
simply register with your attorney information and
credit card, then you are ready to begin,
Courts
Now in Harris County we have the FreeFax
E-Filing System which allows defense attorneys
to e-file subpoenas and subpoenas duces tecum
in criminal cases only; attorneys cannot use
the FreeFax system to file any other pleadings
nor can it be used for any other area of the law.
If you are registered on the District Clerk's
website, www.HCDistrictClerk.com, then you
are registered for the FreeFax e-file system as
well. To access the FreeFax system, simply go
to www.HCDistrictClerk.com and navigate your
way to FreeFax by clicking on the FreeFax link
‘Once you are in the FreeFax system you will see
something like the image on the opposite page
‘The fields are self explanatory and after you input
the jurisdiction; misdemeanor or felony, and the
case number, the remaining fields will auto populate
with the style and your contact information.
‘Then you must enter information pertaining to
the witness such as: whether the witness works
for the government, is under 18 years of age, has
a confidential name or address, name, address,
telephone number, fax number and vocation of
the witness. Select the option for duces tecum if
this is the type of subpoena you are requesting and
then you can either upload a document containing
the instructions for the witness or write your
instructions for the witness in the “Witness Special
Instructions” location. Lastly, just select how you
‘want the subpoena served, private or peace officer
and submit your application,
‘The process of using the FrecFax system is
relatively easy to use and understand, but the
problem lies with its execution. After you submit
your FreeFax subpoena, it is sent to the district
‘lerk’s office where a county employee copies
your subpocna application to another program and
your subpoena is generated from the information
‘that employee inputs into their system,Ontense Report:
‘Any OFRecors
‘ny Ba
‘Ay int:
‘ay Prone:
* wetness County:
‘As a result, almost all of my subpoenas have my
address information listed as that of the District,
Altorney’s Office or the actual court itself. So
basically the material I request via duces tecum,
is being sent directly to the D.A.’s Office and
remains in their possession until I show up for
court and see my subpoenaed material attached
to their file. Of course by the time I get to court,
the D.A. has already reviewed my subpoenaed
information so if I was hoping to get some slam
dunk surprise the A.D.A, material for trial, the
surprise is over.
(Felony
case Number: [FRR7TSEDTOTO ~ court: 251
Sie ‘The Stat of Texas va. TURNER, CARL ALEXANDER (SPH: 02482369)
TiSTEBSEES
Requestor Eat: Gian
(Haris County
a
EERE
For that reason, I do not recommend using the
FreeFax system for subpoena duces tecum and
if possible I would still use the print method. If
you are in court where e-filing is required then
ibe mindful of the fact that the A.D.A. might get
your requested material before you do and will
undoubtedly review it before court. So as much
as possible be careful what you subpoena and
if possible exhaust other methods of getting the
desired materials if possible.
a
8
3
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eyFamily owned
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since 1971
Bilingual staff with
over 100 years of
experience
License # 74346
+ We advocate a paid in full attorney is a defendant’s best defense
% Non-Arrest Bonds - we accompany your client to the jail or from the courtroom
609 Houston Avenue 713.227.3400
Houston, Texas 77007 burnsbailbonds@yahoo.com
Z Interlock
An Automobile Ignition Interlock Provider
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John Burns David Girard
609 Houston Avenue 713.223.4424
Houston, Texas 77007 ezinterlock@yahoo.comTHE
RIGIIT
TOOL
FOR
IIE
~ JOB
r by Joseph W. Varela
‘THenale nb nhortage of materials available
to the defense lawyer to help him defend
“his clients, It has always been truc that
‘whey can prinuit faster than you can read
it" When some of our older colleagues
begat, practicing, and for centuries
beford that, books were the only source
of help. Now more than ever, the sheer
number and variety of works threaten 0
overwhelm us. There are printed books,
live seminars, videotaped seminars,
inteme-based, research, “blogs,”
websites, email lists, and other forms
of delivery of information. For content
there ate annotated statutes, summaries
of case law, digests, legal encyclopedias,
‘specialized how-to manuals, practice
tips, discussion groups, form-books, and
almost any other kind of help the lawyer
can imagine. There is even a computer
game that teaches evidence
But how to use all these tools? Wrong
J) se of a tool may forfeit any benefit that
hight have been obtained.
caso @)¥
CONTINUED
THE RIGHT TOOL FOR THE JOB
THE WRONG TOOL.
(Photo by author)
| want to focus on three very different books which I consider essential items in
the criminat'defense lawyer's tool box. They are Sun Tzu’s Art of War,’ Edward
J. Imwinkelried’s Evidentiary Foundations,? and Todd Dupont’s O'Connor's
Texas Crimes-and Consequences." Every-eriminal defense lawyer should have
these works ad should use them. The beginner should have these three; if he”
hasno otherseln thisdiscussion they will serve-as archet
5; what is said about
them could be applied by the lawyer to any work that might help him, #10 matter
the form or content. Let’s open the tool box apd. examine each in tum-to see
‘what they are aiid how they should be used,
TOOLS OF THE TRADE:
(Photo by author)”
ros
od
SUN TZU, IMWINKELRIED, DUPONT.
Cy
preeeretet
ore cy
This greatest book of strategy consists
of thirteen short chapters, It can
at once be read through in half an
hour and can serve for a lifetime of
contemplation. Upon first encounter,
it might appear to the uninitiated 10
be little more than a compendium of
truisms or slogans. It merely states
its propositions and offers no logical
proofs, dialectical reasoning, ot
historical examples. But the Art of
War is truly deceptively simple: every
passage is packed with meaning, and
should be savored, and each ean serve
as a springboard for strategic thought.
It can be read when considering @
specific problem or contemplated at
leisure for gencral inspiration. The
‘great appeal of Sun Tzu, and why this
extraordinary work is still in print
after*25-centuries, is its universality
It is"@ book about war written by a
{general which also applies to business,
poker, politics, boxing, chess, dating,
bicycle racing, litigation’ — any human
conflict or competitionImwinkelried’s
Evidentiary Foundations.
This is @ handbook which shows
us how to lay predicates. It is not a
‘rcatise and contains no case citations.
‘The common problems in evidence
are broken down into sections. Each
seotion starts with a brief statement
fof the doctrine which*sets_out the
problem, followed by a list of the
elements of the foundation. Finally,
and most usefully, there is a sample
direct or —cross-examination in
question and answer form, including
some objections and how to mect
them. The’sample looks just like the
reporter's record of axreal hearing or
trial, Let’s say you want to introduce
a tape recording into evidence. You
must lay the proper predicate in
order to overcome. an authenticity
objection. Simply turn to the section
that considers tape recordings, and
read the-doctrine and listof elements
to familiarize yourself with the
problem. Then prépare your questions
for your witness based on the Sample
examination, varying it as necessary
to fit your situation. Imwinkelried
does not substitute for reading of
‘your jurisdiction’s rules of evidence
and case law, but it does save you
from re-inventing the.wheel when
you're facing a fiesh problem. It will
also aid the experienced lawyer as a
checklist so he can ensure not to miss
any element of the foundation
Dupont’s
Crimes and Consequences.
This is, in a word, thevultimate “cheat
sheet.” Dupont analyzes the Code of
Criminal Procedure, Penal Code, and
other relevant statutes and abstracts
them into succinct lists and charts
which enable the practitioner to
negotiate complex statutory schemes
at a glance. For instance, the-Penal
Code varies the penalty ranges
for theft by the amount alleged
to be stolen, and Dupont suppli
a chart that shows the gradations;
but also shown are the ranges for
exceptional thefts (e.g. livestock) and
enhancements for repeat offenders.
Elements of each crime are laid
out. Defenses are cross-referenced.
Pethaps the most useful feature of
Dupont isthe collateral consequences,
such as license suspensions and
probation eligibility. Absent are
attempts at detailed analysis of case
Jaw or practice tips. Dupont offers
no food for intellectual stimulation
whatsoever; itis simply an analysis
of statutes which renders them down
to the density of plutonium in a small
volume that can be carried anywhere
and quickly ~ consulted. ‘There is
no point in. “reading” this book
because the whole idea is that the
lawyer doesn't have to memorize the
contents, just know how to look it up.
Therefore, perusing it enough to know
how the information. is laid out and
hhow the index works should suffice.
Now to consider how to use each,
A cheat shect is uscless if it is not
always at hand, Dupont must be
with you in the courtroom or it is
not useful at all, Dupont is consulted
when you are preparing to do a
plea, in order to properly advise
the client of consequences such as
the range of punishment and parole
cligibility. Imwinkelried’s handbook
on evidentiary predicates must. be.
used in the planning stage. When
you are preparing for a hearing-or a
itial, go to it to help prepare for the
witness. If you are in need of its help
during a trial, chances are you haven't
done your homework, Sun Tzu, in
contrast, should be read and meditated
upon generally in order to create the
guerrilla mind-set necessary for the
defense lawyer to internalize.’ Dupont.
can’t tell you how to think when
outgunned, but neither can Sun Tzu
tell you about license Suspensions.
‘There you have it
‘Dupont in your briefease;
Innwinkelried atthe officoys
Sun Tzu by your reading chaif or bedside.
Shes PP, 2008
Voae or the Defoe fae 2ETSHAATITOW-VHNTUTTNTAcHOM (11)
and Funding
EC)
You have a client charged with aggravated sexual assault
of a child, There is DNA evidence, a SANE nurse exam
and a forensic interview of the child at the child assessment
center. In addition, there are potentially witnesses that may
be to provide rock solid alibis for some ofthe oc
sexual assaults are alleged to have taken place.
Through your preliminary investigation you realize
you need experts to deal with with the
‘eross-contamination of the DNA evidence, the SANE
nurse possibly misinterpreting medical evidence in the
SANE exam and you recognize issues with the CAC
interview. In addition, you know you will need assistance
to be able to locate and interview those alibi witnesses.
Court appointed, or even in most cases retained, you may
wonder how to get the funds to put on a proper defense. If
done properly, the Court is going to have no choice but to
help fund your defense.
YOUR CLIENT'S RIGHT TO COURT APPOINTED EXPERTS
In its seminal case Ake v. Oklahoma, 470 USS. 68 (1985),
the United States Supreme Court recognized that is patently
unfair to not give indigent defendant's access to funds for
their defense, if a need was shown for the funds, simply
because the defendant was indigent and could not afford
the funds for experts and investigators. The Court went on
to say it was patently unfair that the state/government had
unlimited resources to get experts, testing and investigators,
that the indigent defendant simply could not afford.
@ wesc
‘The Supreme Court specifically held in Ake, that upon
a particularized showing of need, a trial court had to
provide reasonable funds for the defense to hire experts or
investigators. The Supreme Court also realized, to make
this particularized showing of need, a defendant would
necessarily have to divulge trial strategy and facts maybe
not known the state/government, Thus, the Supreme Court
stated that due process required these requests could be
made ex parte,
The Texas Court of Criminal Appeals, in De Freece v
State, 848 S.W.2d 150 (Tex. Crim. App. 1993) adopted the
holding of the United States Supreme Court in Ake, In the
Williams v. State, 958 8.W2d 186, 191 (Crim. App. 1997,
reh'g denied) the Court of Criminal Appeals also held,
consistent with Ake, that these requests were to be ex parte.
‘Then the issue arose, what happens if you have an attorney
that has been retained, but the family or defendant either
has ran out of money or cannot afford the necessary expert
or investigative costs. In Ex Parte Briggs, 187 S.W.3d 158
(Tex. Crim. App. 2005), the Court of Criminal Appeals
stated it was ineffective assistance of counsel for retained
defense counsel, with a defendant who could not afford
sary expert or investigator, not to seek the funds
from the Court. While not explicitly holding that a court
had to give defense counsel of a retained defendant who
cannot afford the expert or investigator costs, it would
not be ineffective assistance of counsel if it was not
reversible error for the Court to refuse funding an expert
or investigator for a Defendant with retained counsel who
cannot afford to pay for those experts and investigators,PROGEDURE TO GET COURT FUNDS IN APPOINTED CASES
In order to get funds, there needs to be a particularized need
demonstrated to the court. A particularized need means, in
the case of an expert, showing the issue will be contested
at trial or of importance to the defendant's case. In the case
of an investigator, a particularized need will be shown by
demonstrating why the investigator's service is needed to
prepare or further the defense.
In onder to preserve the issue for review, the particularized
need needs to be detailed. Defense counsel will have to
identify what either the defendant's theory of the case,
‘what the defenses are, and how the expert or investigator
are necessary and material to furthering your theory or
furthering your defense. The only way to do this is either
attach a detailed affidavit to the motion, detail the facts
within the motion itself or in chambers on the record in
a sealed record, demonstrate to court why the expert or
investigator is necessary and material to your case. Without
this dotail, the appellate court cannot properly evaluate
if the trial court committed error by denying the funds to
defendant.
As stated above, the motion to get funds needs to be done
ex parte, Williams v. State specifically states the defendant
is entitled to pursue expert funds ex parte. Defense counsel
should not file the motion until counsel has had the judge
sign the order to seal the motion. Otherwise, if the judge
refuses to sign the order, then defendant’s trial strategy
becomes a matter of public record for the state to be able
to discover by simply going to the District Clerk’s office.
Even if the court denies the request for funds, it is rare a
court refuses to sign the order sealing the motion.
To ensure that defense counsel secures enough funds,
always contact the expert and find out how much they
require to complete the necessary work and testify if
necessary (if travel is necessary for the expert to testify,
the Comptroller's office pays those expenses). For an
investigator, get an estimate for completing the work
and being available during trial to assist if matters come
up during trial you need the investigators assistance, In
addition, since the investigator is the one interviewing
the witnesses, they will need to be present during trial to
possibly impeach said witnesses.
Ifa judge refuses to sign an order to seal the motion, even
if he/she denies the request for the additional funds, the
judge can be subject to a mandamus action, Signing the
order is a ministerial act, that if not performed, there is no
adequate legal remedy available to the defendant, Quite
the opposite actually. If the order is not signed sealing the
motion and order, then it will cause irreparable damage
to the defendant. In addition, ifa judge is refusing to sign
an order sealing the order, even if the access to funds is
denied, should make the judge subject to recusal
It however will tum into a strategic decision if defense
counsel pursues the mandamus. In order to do so, defense
counsel will have to file the motion and proposed order
and thus give the state access to defendant's trial strategy
‘or access to facts, potentially detrimental to defendant's
cease, the state may not have been aware of already. The
author would suggest only pursuing a writ of mandamus if
‘you pursue recusal and your recusal is denied.
In more rural counties or with newer judges, defense
counsel should bring a copy of Williams v. State with them
when they approach the court for ex parte funds. Usually
judges in these situations are not aware of the law entitling
defense counsel to an ex parte hearing and defense counsel
has to educate the judge on defense counsel’s right to the
cx parte hearing.
PROCEDURE TO GET COURT FUNDS IN RETIRED CASES
The Court of Criminal Appeals has made clear that simply
because a defendant is represented by retained counsel does
not mean that the defendant cannot qualify as indigent for
other purposes. See Abdnor v. State, 712 S.W.24 136,
142 (Tex. Crim. App. 1986) (“Outside sources such as
relatives and even employers are not to be considered unless
they are legally bound to pay for defendant's appellate
expenses.”" (citation omitted)). In fact, the Court of
Criminal Appeals has found retained attomeys ineffective
when they have failed to seek funding for necessary experts,
in cases where defendants have become indigent but where
the attomeys were previously retained. Ex Parte Briggs, 187
S.W.3d 458, 463 (Tex. Crim, App. 2005)
coco Gi)CONTINUED
Getting Appointed Experts and Funding
Dre
Just as in court-appointed cases, in retained cases, to get
court paid for experts and investigators, there needs to be
a particularized need demonstrated to the court as detailed
above, However, an addition step in a retained case would
be to show the court that the defendant is now indigent or
do not have sulficient funds to pay for the expert or
investigator
The procedures for seeking the funds for a now indigent
retained defendant are as described above. The additions to
the application is to attach an affidavit of indigence for
defendant and an affidavit explaining why defendant is
now indigent or now not able to afford the necessary expert
or investigator.
Ifthe court refuses to enter the order funding the expert or
investigator, or fund these experts and
investigators for a defendant with retained counsel,
retained counsel must consider filing a motion to
withdraw. While the court has likely committed reversible
error by denying the funds since the defendant had retained
counsel, the Court of Criminal Appeals held in Ex Parte
Briggs it was not only ineffective for not seeking the funds
Dut it was also ineffective assistance for counsel not to seek
to withdraw if counsel could not obtain the necessary funds,
to fund the defense.
will not
@ wes
ONCE THE COURT APPROVES THE FUNDS
Once the motion and orders are file stamped, defense
counsel should get a certified copy of the motion for his
file. In addition, defense counsel should get at a minimum
3 certified copies of the Order appointing the expert or
investigator. This allows defense counsel to provide a
certified copy to the expert or investigator, keep a copy
for defense counsel’
needed.
file and have an extra in case it is
The next step is to contact the expert or investigator and
notify them the court has signed the order appointing them,
Defense counsel should give them any deadlines that might
exist. Finally, defense counsel should get them either access
to the client and/or any documents and materials needed for
the expert or investigator to get there work completed,
ILis also critical defense counsel emphasize the expert is
1 defense expert, even though the court is paying the fee
Itis helpful to send a cover letter with the order clarifying
this relationship.
CONCLUSION
Following these simple steps, you should be able to
properly fund your client's defense at court's expense.BEM aS
Information Is Available
Srna
Pera
Guidelines
Cer aed
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or WR ke Reet boll Molto se red oreo LEE UE ea Aon)
Mee CR)
Motion to
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Se)Chess COPNEL wien yrer mood
I'M_NOT PERFECT,
BUT I'M LOYAL
‘There is a French Proverb that says "You Cannot play at,
Chess if you are kind-hearted." Don't let fear stand in the
way of success,
"YOU HAVETO HAVE THE FIGHTING
SPIRIT: YOU HAVETO FORCE MOVES
AND TAKE CHANCES...”
BOBBY FIScHeR
This job we signed up for requires a deep down passion
for righting the wrongs we see happening every day in
the criminal justice system. If we don fight to protect our
rights, who will? Nobody. We are the rebellion against the
First Order. Grab your light saber and go to battle
Recently, a young-ish trial lawyer found himself in a
tough spot that required him to do some soul searching.
He was in trial when the State's key officer, who was
3 months pregnant, was rushed to the hospital due to
‘complications with the baby. She had miscarried before
and she thought it was happening again. The witness
became unavailable after the jury was sworn. The Court
id not declare a mistrial sua sponte but instead urged
the defense lawyer to request a mistrial on his own. A
difficult position to be put in. The lawyer had the night to
weigh his options. The Court and the State were putting
4 tremendous amount of pressure on the defense lawyer.
The State even made terrible comments to the lawyer,
among other things, threatening him that they would
never agree to any continuances from him ever again in
the future for anything and they tried to guilt him into
putting the police officer's interests before his client’
Being a reasonable and compassionate man, the lawyer
‘was deeply tom. As much as he wanted to help the officer
with her medical situation he decided that the right thing
to do would be to remain loyal to his client. He politely
and sincerely conveyed his sympathy to the Court and to
the State but told them he just could not agree to a mistrial
‘and would not be requesting one.
@ wesc
‘The Court granted a continuance request from the State
from Wednesday to Friday to see if the officer would be
available so the trial could proceed. The officer saved the
baby and recovered well enough to appear on Friday and
testify. At 9:30 pm on that Friday night, the jury came
back with a Not Guilty verdict.
Being a trial attorney is not for the weak at heart, It
takes strength and courage to do this job the right way.
We often find ourselves in frightening situations and
we have to hold our chin up and face our fears head on.
Sometimes we are put in positions where there is great
pressure to compromise our ethics and our integrity.
‘These are the moments that define who we are. Our
decisions set examples for lawyers young and old. In
the face of adversity, be strong and stand up for what is,
right. You can make lasting impressions on others that
will empower them to be strong when the time comes.
Most importantly, do the hard things and fight the tough
battles for the one who matters the most...You!
"THE ONLY REAL LAWYERS ARE
TRIAL LAWYERS, AND TRIAL
LAWYERS TRY CASES TO JURTES"
—CLARENCE DARROWo7.NGI
ethics hotline
Pw
An inheritance
nobody wants.
a
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MEMBERSHIP APPLICATION
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