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From the Editor
By ShawnaL. Reagin
Winning Warriors
From the President
By MarkBennett
HCClA Hosts 1S
t
All Hallows Eve
Poker Tournament
By Wendy Miller
Strategy-Cross Examination:
Push or Pull
By JosephW. Varela
Tribute to Margy Meyers
By Hon. Keith P.Ellison
Public Defenders Office: Pros &Cons
By Mark Hockglaube& David Mitcham
1984-85 HCClA Board
Motion of the Month
By RobertPelton
HCCLA ~ ~ ~ ~ ~ ~ ~ ~ 2008-2009
PRESIDENT
Mark Bennett
PRESIDENT ElECT
JoAnneMusick
VICE PRESIDENT
Ni cole DeBorde
SECRETARY
1 B. Todd Dupont II
TREASURER
Steven H. Holpert
PAST PRESIDENT
Patrick f. McConn
BOARD OF DIRECTORS
St aci Biggar
Davi d Cunning ham
Tyler flood
Tucker Groves
Mark Hochgl oube
Rondall Kollinen
David Kiotto
Marjorie Meyers
Dovid Mitchom
Roland Moore III
[orl D. Musick
John Parras
Cormen Roe
0. Tote Wi li lOms
Sarah V. Wood
PAST PRESIDENTS
1971 2007
C. Anthony friloux
Stuart Kinord
George luquette
Morvin O. Teague
Dick DeGuerin
W.B. House, Jr.
David R. Bires
Woody Densen
Will Gray
[dward A. Mollett
Carolyn Garcia
Jock B. Zimmermann
Clyde Will iams
Robert Pel ton
Can delario [Iizondo
Allen C. Isbell
David Mitchom
Jim L lovine
RickBross
Mory [, Conn
Kent A. SchoPPer
Don Cogdell
Ji mSkelton
George J Parnhom
Garland D. MCinnis
Robert A. Moen
lloyd Oliver
DonnyEasterling
Wayne Hill
Richard FronkoPP
W. Troy McKi nney
Cynth io Henley
Sto nl ey G. Schneider
Wendell A. Odam, Jr.
Robert J fickm on
Publisher: HCClA Distribution 600 copies per issue.
Editorial Staff: Shawna l. Reagin
For articles and other editorial
Ads &Distribution:JoAnne Musick &Christina Appelt
contributions,contact Shawna L. Reagin
Design &Layout: limb Design
www.limbdesign.com
at 713-224-1641. To place an ad,call
Cartoon Art: Gilly Ross
Shawna L. Reagin at 713-224-1641
FAREWELL ~ ~ ~ I ~ ~ EDITOR
As I preparetomake theleap intomynewroleas judgeofthe 176th
District Court, I have been dealing with a lot ofconflicting emotions.
Although I am happy and excited to be moving on to a different field
ofchallenges and opportunities, I fll1d myselfwrapping up my practice
with a certain bittersweet sadness and regret . Almost 20 years ofdoing
anythingbecomesquiteahabit,andbeingacriminaldefense lawyerwas my
sole ambitionfor mostofmy life [afterIquitwantingtobe Presidentofthe UrritedStates].
Ineverbecamethelawyer Itrulywanted tobe,even though I tried hard. Jurytrial success
continued to elude my grasp, and I lost many appeals I beli eved should have been won and
perhapscould have been won, had I managed todo a little bit betterjob. As I'vesaid many
times, KatherineScardino turnedoutto be the lawyer I dreamed ofbeing; I can onlyaspire
tosomedayfollowin herfootsteps. Although I would like tospend manyyearsonthe bench,
I am cognizantofthe distinct possibility that I will soonerorlater be returned bythe voters
tocriminal defense work.
I will miss editing The Defender and being actively involved in HCCLA more than any
other recent aspect ofmy career. Learning to puttogether a magazine, pretty much by the
seatofmypants,has beensomeofthe mostfun I'veeverhadforfree .Thepowerofthe press
is essential to effecting necessary change, and I like to believe that we have made ourselves
moreof avoice in thelocal criminaljusticesystemthaneverbefore. Byvirtueof acommitted,
intelligent and hard-working leadership, HCCLA has evolved into a force with which to be
reckoned. I have faith thatthe new Editor, Kathryn Kase, \vill carry The Defendel' to greater
summitsyet,with the help ofthese great people.
Iurgeyouall tocontinuetobevigilantagainstabuses by theprosecLltionandthejudiciary.
Expose corruption wherever you tind it. Speak truth to power. Fight incompetence on the
benchandwithin ourownranks.Own thepoliticalprocessand utilizeittoeffectthechanges
you desire .Most ofall, be fearless in your defense ofthose who rely upon you as theironly
hope for freedom and justice.
In closing, I encourageeach and everyoneofyou toadministerwhatever remedy you find
mosteffectiveifyoueverobservemeto have fallen victimtothedreadedBlackRobe Disease.
[1 realize that for some, this will have occurred the moment I fail to rule for the defense.]
Thanks to you all for your help andsupportoverthe years.
___________ _______________Shawna L. Reagin
THE DEFENDER *3
:\fter almost Ilille months of tightillg tll!' his c1iellt, 111
dIStllll\ ' alld ch,lrged \\ 'ith possessioll \\ith intent to
ddi\LT 29 kilos ofcoc,lille ill the District Court,
JOHNNY PAPANTONAKIS pLTsll.llkd theState todismiss thecase.
DEE MCWILLIAMS \\,lS \' i({orious Oil all illjurY to disabled
perSOIl,serious bodih'illjun', ill the 33LJth District Court,
Oil September 5,
"HometO\\lled" at e\'el"\' turll alld th\Llrted by a
prosecutori,lI judge \\ '110 did all the Sute's work, BO
HOPMANN prn'ailed \\ 'ith a <";uilt\, \'Crdict Oil a [)WI-
21ld ill HUllts\'ilk. :\Ithough the elltire defellse celHered
Oil ,1 f,ldual dispulL' ,IS to prob,lbkcause for the stop, the
judgerefuseda illstructioll\\ ' ithout theprosecutioll
n'Cll obje({illg to go'srequested d1.1rge, :\Ild, accordillg
to olle juror's report, the judge \\ ',IS so upset o\'er the
,1cL]uitt,1I th,lI she rail b,ld.tot,lillt the jury\\ 'ith IlC\\S ofthc
,l((uscd'sprior [)\VI (ol1\'i(tioll , Hcll hath 110 fun' ...
TROY MCKINNEY gota ot<";uilt \' Oil all CISC ill CCCI.
:\Iso, the State tillalh' dismissed (asc origillallY tricd
by GARY TRICHTER alld re\ 'LTscd Oil appcal b\'TROY ill Si ll /Oil
1'. Slille, 203 S.W.3d SX I ('['o.:\pp. IIoustoll \14th
I)ist.\ 200(), 110 pet .) Si ll/ Oil \L1S prc\'ioush' rcportcd ill
\V\V - rc\ 'erscd tllr sC\L:ral illappropriate (Ol11mcllts madc
h Judgc Hdm.
:\ 35 \'car murdLT SClllCIl(e \\as rnLTsed h 'ROLAND MOORE
tllr t:lilurc to gi\L' a rCL]uestcd sdf-detl-Ilse illstru(tioll
ill lolm"oll J', Sl llle, _ S.\V.3d _ , 200X WI. -lX21<)20
('['(\ .:\pp. - lkaulllollt , OLJ-O()-S10-(:R, ddi\LTed
5 200X) \ palld op, 2 I \.
Welcotne
NEW Members
Annie Basu JeffLudwig
Michelle Beck Jessica N.Needham
StaceyWebbBond PatrickNgwolo
E. Ross Craft Lloyd W. Oliver
Ted Doebbler James R. Reed
RebeccaB. Fleming Brian M. Roberts
JeromeGodinich,Jr. Fernando(Fred)
J. Rodriguez
Keith S. Hampton
MarcoA. Sapien
AudleyHeath
Jamie Sulla
Page Janik
Joshua R. Willoughby
RonJohnson
Glenn J. Youngblood
JohnJ. Liles
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THE DEFENDER *5
By Mark Bannatt
Who'd've thought that remaining judge in Harris County lnight
require more than the imprimatur of the local Republican Party?
Granted, the process was unpredictable, but so are the lives of the
vast majority of the people who appear before you every day .
. Your future employment isn't looking quite so
certain, but how many people do you know who know
that they'll have the same job four years from now1 How
,many of the people appearing before you know that
.,
they'll have the same job in twelve months, much less
four years1
We may all reasonably wish that the system were a
little more rationaL. If you have any political I ' d
love to see you using it to reform the Election Code so
that judges-those elected officials vvho should be farthest
removed from partisan politics-were chosen by some
method other thah partisan elt;ctions. You've got nothing
to lose if you think you'd keep your jobs on your merits,
without depending on ignoranr straight-party voting.
Until that t:u-off day when our judges chosen for
their capacity for justice rather than their party aftiliation,

the best that we can hope for is races that are close enough
that they are decided by those who are in fact familiar with
the candidates and the offices for which they are running.
Let's be honest. Some of you don't treat the
,
human beings in your courts very well. Some of you are
discourteous; some are downright nasty: to the parties,
to the witnesses, and to the lawyers. You're mostly polite
to the jurors, of course, because in your mind they're
voters. But all of those people appearing in your courts
(except those already serving life sentences) are potential
voters, and none of them are fooled.
THE DEFENDER * 6
I read a CLE paper some years back by a civil judge
who claimed, "jurors love me and they hate you ." You
might share that high opinion ofthe bench; I suspect that's
what jurors politely tell you when you go back to talk to
.
them after a trial. But that's not what they are saying to
us lawyers. Jurors aren't stupid, and no matter how nicely
you trear them they know who the jerk in the room is.
The lawyers know it too; so do your fellow judges.
Has a judge's personaLity ever affected the outcome of a
Harris Coullty judicial election1 Not yet. But if elections
get closer, it might .
The recent election results prove that "make people
afraid" is not always a winning strategy. The Republican
judges' costly collective advertising campaign of fear
didn't carry the day. Nor is "tough on crime" the magic
phrase it once was, swinging wide the doors to the bench .
As we've created more "criminals", we' ve also created
more families of voters who recognize that "tough on
crim'e" means "tough on our fathers, brothers, sisters and
cousins." The voters don!t care about the si ze of your
docket; nor should they-the number of cases on the
i
. docket in a .court has nothing to do with. the fairness and
justice handed out in that court. More than that, though,
there is an opportunity cost to docket control: time spent
t1xated on the length of your bar on the docket size graph
is time not spent doing justice: The legislature creates crimes
and courts; the DA's Office prosecutes pe.ople and can make
plea offers and dismiss cases. Either the legislature or the
DA's Office could reduce your docket size; leave the "docket
cO,ntrol" to them.
So ,,,hat's a judge to do to win over the educated voters?
WAbK HUMBLY.
You were all trial lawyers before you were judges;
we trial lawyers are not renowned for our humility.
But arrogance is unbecoming in trial lawyers, and even
more S? in those whose job is to judge others . Let the
humble black robe remind you daily to walk humbly:
if judges were meant to feel superior, they'd be issued
bespoke suits instead of black housecoats.
In the DA's Office, you were probably .taught
to respond to defense lawyers' pleas for mercy with
incredulity. "This defendant doesn't deserve mercy,"
you'd sneer to the jury. But mercy is not something that
,
anyone deserves-if it were deserved, it would not be
mercy. So love mercy not because anyone deserves it
but because nobody deserves it but you shuw it anyway.
..
vVhen you show someone mercy, it says nothing about
him and everythinl?; about you.
Humility and mercy are easy. Justice is trickier.

Introduc
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Part of walking humbly is recognizing that you are not
omniscient, and that your best effort at justice is a
mere approximation. Clarence Darrow suggested that
we cling to charity and understanding and mercy for
this reason. But your job requires you on' occasion to
punish people. Mistakes are inevitable . You can't know
how those mistakes will come back and bite you in the
future. Frankly, I don't envy you the job.
In two and fOUf years all of you-Democrats anq
Republicans-will be opposed in elections. Even those
of you who try their best to do justice, who love
mercy, and who walk humbly will draw opponents, not
because of the job you've done but because the vagaries
of the system might defeat you. Those of you, who do
not do justice, love mercy, walk humbly ,vill draw
determined opponents, because your shortcomings might
defeat you:
In a hundred years all of us-lawyers, judges, and
defendants-will all be.. equally dead. Remember this
the next time you are feeling superior to those who
come before you for judgment.
Even if you don't agree with me that treating peopl e
better you a better judge, consider that people
are fondly remembered after their deaths not for their
toughness but for their kindness; not for the people they
punished but for the people they helped. Start
on that legacy now.
'e

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THE DEFENDER *7.
It'

THEDEFENDER] WINTER 08
By Wendy Miller
liuuzIc,!J0/1,
TO HCClA FOR HELPING TO
MAKE A DIFFERENCE IN THE
LIVES OF CHILDREN'
THE DEFENDER *8
The Poker Tournaments are a fundraiser for our
HCCLA Community Service & Public Relations/ Speakers
Bureau committee. HCCLA has been incredibly active
in this area (such as continue sponsoring events for Big
Brothers Big Sisters Amachi kids & contributing to the
STAR Drug Court Christmas Toy Box/ graduations ). With
its own semi-annual fund raiser, the committee will continue
doing worthwhile projects and sharing HCCLA love .
What
AMACHITEXAS
MENTOR PROGRAM?
The "Big For a Day" events are a wonderful
opportunity to make a difference in the lives of
at - risk youth. The Amachi Texas program provides
one-on-one mentoring for children with one or more
incarcerated parents . The mission of the Amachi Texas
Mentor program is to break the generation-after-
generation cycle of crime and incarceration and help
these children reach their maximum potential through
safe and positive mentoring relationships . On any given
day, 2.2 million people are incarcerated in the United
States, and over the course of a year, many millions
spend time in prison or jail - for an annual COSt of
more than 60 billion dollars . Childre n of incarce rated
parents are five times more likely to commit crimes, and
withoutpositiveadultintervention, will more than
likely follow their parents into prison.
Due to the limited number of adult volunteers in
BBBS, not every child registered in the Amachi Texas
Program in Houston has been assigned a Big Brother
or Big Sister. There are, on average, 70 children
left unassigned every year due to the low number of
volunteers registered to be Big Brothers or Big Sisters .
The" Big for a Day" events help address this problem
by inviting children from the Amachi Texas program
not assigned to long term mentors attend these events
- with adult professionals (attorneys, judges, law
stude nts, etc ) serving as the volunteer mentors at the
event .
In addition to hosting mentor events each year
for BBBS Amachi Texas Mentor Program children
[for example, in the 2007-2008 bar year, HCCLA
helped sponsor for the kids a Tea Time banquet and
the awards for their Tee Time putt-putt tournament],
HCCLA also participates in the annual Bowl for Kids'
Sakes ( BFKS ) hosted by BBBS-Houston . BFKS is one
of the biggest annual fundraisers for Big Brothers Big
Sisters of Greater Houston. Money raised by bowlers
supports all BBBS programs, including Amachi Texas
Mentor Program. The "Houston Lawyer's Bowl" in
2008 took place on July 12th . GO TEAM HCCLA
bowling team! T he 2009 BFKS will be at the same
location on a date in July (TBA) .
THE DEFENDER -(( 9
THEDEFENDER]WINTER 08
S T R AT E G Y By Joseph W. Varela
Cross-Exarnination:
Push or Pull
THEREFORE NO PLAN OF OPERATIONS EXTENDS WITH ANY CERTAINTY
BEYOND THE FIRST CONTACT WITH THE MAIN HOSTILE FORCE.
Field Marshal Helmuth von Moltke
l
CROSS-EXAMINATION has been called the most difficult duty of all those
required of the advocate.
2
Many, if not most, beginning lawyers walk
into court with elaborately structured cross-examinations that read like
dialogue in a play. Their professional education predisposes them to
prepare for and conduct cross in this manner. Students are taught the
value of "preparation" in law school through reading and recitation
in the classroom, and in the stylized combat of mock trial and moot
court competition. These methods of instruction revvard that student
who is most thoroughly "prepared. "3 In most instances "preparation"
amounts to creation and mastery of a detailed formula .
An over-prepared cross can serve as a security blanket . The method
appears to work fine as long as the script remains intact: One scripted
question elicits an expected ans\ver, which prompts the next scripted
question . But what happens when the determined sequence breaks
down? Opportunities that spontaneously arise may be frittered away.
Events earlier in the trial may render a script obsolete . A hostile witness
will refuse to follow the script, and the advocate's entire presentation
can be upset to the extent that he may lose mastery of the witness .
Trials are neither plays nor academic demonstrations; we need
a method of cross-examination that follows the universal rules of
human conflict .
Army Lt . Col. Robert Leonhard offers a theory of military
command and control that may be useful to the triallawyer.
4
Leonhard
identifies two antithetical methods of tactical command. The first
is variously known as "detailed control" or "command push.'"
Here the top command works Out an elaborate plan in which the point
of contact with the enemy is preselected. Each unit has a predestined
part to play, and subordinate commanders are expected to follow
orders minutely. Command push emphasizes planning, obedience and
perseverance . Risk and uncertainty are minimized. Resistance by the
whathappens
WHEN THE
DETERMINED SEQUENCE
breaks
down?
enemy attracts reinforcements. The attacker's strength may be hurled
against the enemy's strength. (Fig. 1).
THE DEFENDER *10
FIG. 1. COMMAND PUSH (AFTER LEONHARD)
The antithesis of command push is "directive
control" or "recon pull." It describes a system in 'which
commanders give to subordinates broad statements
of their intent and the results desired. Subordinate
commanders in the field work Out their own methods and
send force-reconnaissance units to probe the enemy.
EMPHASIZES FLEXIBILITY,
INITIATIVE AND IMPROVISATION.
Recon units make contact with the enemy "surface."6
When a 'weakness is spotted, other units are "pulled"
to the gap in order to exploit it. (Fig. 2). Recon pull
empbasizes flexibility, initiative and improvisation.
A certain amount of risk is accepted . Enemy resistance
is bypassed if possible.
7
Tbe attacker's strength is
directed against the enemy's weakness
8
0 0
[2]\/
[2] -----7 0 1\0
1
[2]
[2] 0
0
[2]
---7
[2]
[2] -----7
~ [ 2 ]
[ 2 ] ~ [ 2 ]
IS ABOUT CONCENTRATION OF
[2] [2]
FORCE TO CREATE AGAP
0
0
[ 2 ] ~ [2]110
,\
0 0
FIG. 2. RECON PULL
In a nutshell, command push is about concentration
of force to create a gap; recon pull is about finding
and exploiting gaps.
I think this idea applies directly to cross-
examination.
The lawyer who prepares his cross-examinations in
great detail is engaging in command push cross . It is
required in certain situations, such as those in which cross
is used to prove lack of probable cause or affirmative
links, or to establish an element of a defense. The cross-
examiner knows in advance what he needs to elicit from
the witness, and hammers (or pries or coaxes) away
until he gets it. A script must be written and the witness
compelled to follow the script. The cross, if represented
graphically, would look like Fig. 1.
THE DEFENDER *11
My limited expenence In civil trials indicates
that civil trial la'""yers use command pu.sh almost
exclusively. You can watch civil trials and see little or
no recon pull. The lawyers, even the good ones, plod
ahead in a predetermined sequence, predictably and
methodically. This may be partly due to the nature
ofcivil discovery; when a witness has been deposed
by question and answer, and a transcript is available,
command push makes more sense, or at least may be
more tempting. It may also be a product ofa civil-
lawyer culture that stresses methodical preparation
and execution and fears improvisation.
BlIt I thinkall trial lawyers, and especially criminal
la'vvyers, should make more use ofrecon pull cross.
Recon pull cross could look like Fig. 2. Any
weaknessthewitnessshowsmustbeexploited. Doeshe
begin toglanceattheprosecutorfor support1 Doeshe
showangerwhenaparticularsubjectis broached1 Does
he begin to contradict or qualify his earlier assertions1
Abandon thescript and start probing for gaps.
I recentlytriedacasein which aconstabletestified.
He was wearing his uniform. As an afterthought, I
asked him if he was on duty. There was no harm in
either answer. Sure enough, he was not. I then asked
him ifhe normally wore his uniform offduty. No, not
usually. Why today1 Because the prosecutorasked him
to.Whichprosecutor1Theonesittingrightthereatthe
table. vVhy, because it made him look more credibld
At this point the objection vvas sustained, but I had
what I wanted: Evidence ofthe prosecutor's attempt
to manipulate the jury. This is a small example of
finding and exploitinga "gap" via recon pull cross.
Understanding military command and control
theory and applying both techniques properly will
give beginnerand veteran alike the means to plan and
execute cross-examination thatsurvives contactwith a
hostile force.
Abandon
AND START PROBING FOR gaps .
"1'1.111 o()l'lT.lliOIlS," (IX71), Sloltke Oil the Art of\V,lr:
Sl'klled Writillgs, tr.1I1S, .1I1d cd. 1).1I1id J, II1Ighl's .1!1d 11.11'1'\'
Ikll (I'N3), ,\Ioltkl' is ottl'll Illisqlloted .IS s'I\'illg ":-\0 1'1.111
sllniH's lirst (Olll.l(t \\itll thcCIlCI11\',"
2 Fr.1I1(is Welllll.lIl, Thl' ArtofCross- FX.lI11ill,lliOIl (I()()3),(h. 2.
3So it \\ '.IS .1l TO\\lll'S 11.111. If\'ollrs(hool ofil:rni l1lorc PLIllic11
tr.lillillg, \'our lllik.lgc 111,1\' "'IJ'\',
-J. Rohl'rt l.lolll1.lrd, Thl' ,\rt of ,\l.lIlClIHT: ,\l.lIIClI\ 'lT-\V.lrtClre
Thcon' ,1I1d Airl..ll1li Ihttk(I()() I), (h, -J.,
:'I Thl'se tlTlllS "'lTl' l)rl'\iollsh' .lrti(lIl.lled h\' .1 (i\ili.11l lllilit.IJ'\'
thl'orCli(i.lIl. Scc\\'illi.lI11 S, [.illd, ,\L1I1l'lI\ 'lT\\'.lrIClI-c 11.1I1dhook
(I<JX:; ), "Ikt.likd ((lIllrol" 'lIld "direllin: (olltrol" ,Ire
t 1'.111S1.1liOlls ()fClTlll.1I1 terlllS, l.illd lISCS "(OI1lIl1.llld l)lIsh" .llld
"re(OII I'llII."
6l.illd, 01', (il.I', IX,
7 (;clllT.II (;l'()rgl' S, 1'.lltoll, PlTh'll'S the Allics' gt'L'.llest t.l(tic.1i
(Ollllll'1I1der, ('llkd g,lps "brc.1ks" '1I1d ordered his di\ 'isioll
(oll1ll1.1I1dlTS to "b\'!),lSS resistall(c," l.adisLls F.1L1go, 1\1llOll:
ordL'.1I '1I1d Tl'illl11!)h (1()63), (h, 2(), Hc 'Ilso cx(elled ill
illlprm'is.llioll ",here hisgrL'.H ri\'al, hcld Sl.Jrsh.II ,\I()l1lgo111l'rI ',
cl11!)h.lsil.ni pLlllllillg; bllt if pl.1I1s "'Cllt .I\\T\' (or sll((enkd
too qlli(kh' !), thc Llttel' \I'.IS less ahle to illlf)("(II'ise, Id"
(h,36,
XOr, as SUIl 'l';u put it, 2:;00\'c.lrs .Igo:
The.1nll\"SIl>rlll.uioll is likc \LHcr. The\l'.lln's1<>rIll,lliOll .I\'oid,
rhe high .1I1d rushcs to the lo\\', So .111 .lrl11\,'s 1<>rIll.lli()1l .I\'oid,
the srrollg .1I1d rllshcs to rhe \\'cal;., Art of\V.1r, (h, () (tr.1I1S,
sOllshi,(Ol11),
THE DEFENDER 1:< 12
TributeTO
MargyMeyers
On November 17) the Federal Bar Association for the
Southern Distt'ict of Texas celebrated with a gala event
headlined by Antonin Scalia) Associate Justice of the
U.S. Supreme Court. Also that evening) the Association
honored Federal Public Defender Margy Meyers with its
Michael Taylor Shelby AlVard. U.S. District Judge Keith P
Ellison conferred the award with an eloquent speech that is
reproduced here. - Editor
By Hon. Keith P. Ellison, U.S. Federal District Court Judge
The Michael T. Shelby Award was created In honor of
a man who served with distinction as U.S. Attorney for
the Southern District ofTexas, and was taken from us
far toosoon.The recipientoftheShelbyAward this year
is Marjore Meyers, who has spent almost the entirety of
her career at the offi ce ofthe Federal Public Defender
for the Southern District.
As theirrespectivepositionssuggest,MikeandMargy
played on opposite sides ofthe net. Nonetheless, it can
be said-and I do so, with all seriousness-that Mike
..
and Margy agreed on everything except their opinions .
By that , I mean Mike and Margy stood as one on the
primacy ofthe rule oflaw. Likewise, both expected of
themselves and those who worked with them absolute
ethical rectitude, "to the punctilioofan honor the most
sensitive ."1 Bothwerecommitted to the propositionthat
their clients deserved zealous representation and both
ensured that they received precisely that.
But,from theseshared principles, theydid form very
different opinions-on the proper scope ofsearch and
seizure, the interpretation and application ofsentencing
guidelines,thejustnessandefficacyofcapitalpunishment.
And, in an adversary system, that is just as itshould be.
Margy has told me that her career path was set in
high school when she read Gideon's Trumpet,Anthony
Lewis's magisterial account of the case that led to
the Supreme Court's decision that indigent criminal
defendants deserved court-appointed counsel.After
bigh school, Margy earned degrees, with honors , at two
different Ivy League universities. She won a fistful of
different prizes at each, and-as a capstone-received
a highly coveted judicial clerkship with Judge Carolyn
Dineen King ofthe Fifth Circuit . Carolyn has warmly
supported Margy's nomination for the ShelbyAward.
After her clerkship, Margy joined the Federal Public
Defender's office here in Houston. Except for a brief
interlude in private practice, she has remained there
ever since. In 2004,she succeeded Roland Dahlin as the
head ofthe office.
Margy has longenjoyed the reputation as oneofthe
ablest criminal defense lawyers in the state. In addition
toherworkon behalf ofclients ,Margyhas beenactive as
a lecturer and mentor. She is in demand for conferences
and training sessions all over the country. Among her
many appearances, I will note only one. At a recent 5
th
CircuitConference,Margywas partofan instructive and
fascinating panel discussion on post-Booker sentencing.
Her fellow panelists were Justice Scalia and our own
Judge Sim Lake. In all ofher teaching, Margy reminds
us to embrace those who seek the truth, and abjure
those who claim to have found it.
Choosing the life work she has chosen, Margy has
forfeited in lost wages a total that is certainly in the
millions ofdollars. Her compensation comes instead
in a fulfilled heart and a restful conscience.
There is much more to be said abollt everything
that Margy has done in her career. To me, she has
always personified the ancient wisdom that the small
courtesiessweeten life while the largeronesennobleit.
As tothesmallcourtesies,sheis unfailinglygracious,even
to opponents who are given to Rambo-like outbursts.
She is gracious even to federal judges who appear to be
in the terminal stages ofblack robe disease.
As to the larger courtesies) Margy has taught me
the meaning of words that I had thought I already
understood, words like sacrifice, courage, and -
especially- compassion .Shedemonstratessuch qualities
1 Meinhard v. Salmon, 249 N.Y.458,463-464(1928) (Cardozo,J.).
THE DEFENDER * 13
*
We are very lucky
In the course of representing clients whose needs
regularly require all those qualities and many more. Her
representation of defendants facing deportation deserves
particular note.
Margy is so very often the person who has to explain
to a defendant what awaits him: a prison sentence,
followed by indefinite detention by immigration officials,
then deportation. No, it does not matter that his wife
and three children are American citizens . No, it does
not matter that he came here with his family when he
was only two years old and that he has no memory of
his home country, and cannot speak even a word of its
language. No, he will never be able to come back, even if
a family member is sick and dying. To see the despair on
the faces of these defendants, and their families, makes
me embarrassed to think of the emptiness of my own
notion of despair.
I know, I know, that the law must be respected and
must be upheld. We all took oaths to that end. I certainly
do not suggest that lawyers or judges have, or should
have, a roving commission to re-write our nation's laws
in difficult cases .
But...but, Margy also understands that, after
justice has spoken, humanity must have its turn.
Her understanding and compassion for her clients give
us reason to recall that our profession used to be known
as that of attorneys and counselors-at-law. Margy sees,
better than anyone I know, what happens when the hard
edge of the law collides with the soft tissue of human
circumstance . She brings to mind "Valt Whitman's self-
description of his work as a nurse in the Civil War:
"I do not feel sympathy for the wounded soldier;
I become that soldier."
The award presentation to Margy cannot, though,
end on quite such a somber note . Instead, and because
this evening is for those who practice at the federal bar,
I want to make a historical point. One of the thoughts
I have long entertained, since well before I started law
school, concerns the possibility of our nation's founders
paying a visit to contemporary society, to see how their
handiwork had turned out. Imagine any or all of the 56
men who signed the Declaration of Independence, or
the 39 who signed the Constitution viewing, forexampJe,
the guarantees of the Bill of Rights as reflected in
THE DEFENDER * 14
contemporary practice. I think they would be at least
bewildered by-not dismissive or disapproving of-but
bewildered by what had happened in the name of the
First Amendment. They would not understand radio, TV
or movies, much less text messaging and the Internet.
As to the Second Amendment, they would likewise
be perplexed by the variety and sophistication of the
weapons that are now available . And, with respect to the
Fourth Amendment, the founders would not understand
wire taps, because they would not understand about
telephones. They certainly would not understand Global
Positioning Systems, or heat detection devices .
But then we come to the Fifth, Sixth and Seventh
Amendments, all dealing with one aspect or another of
the right to jury trials, the only right, as Justice Scalia
has pointed out, expressly mentioned in both the
Declaration and the Constitution . I imagine the founders
walking into tbe middle of a jury trial , preferably in
the Southern District, but, if not, anywhere else in our
country. I am convinced that they would understand
immediately and fully what is going on. They would
see an elevated bench, and a judge sitting on it with his
slightly comical costume. They would see 12 citizens,
sworn and true, sitting in the jury box. And they would
see opposing counsel performing that most sacred of
duties - representing the totality of another person's
legal rights in a proceeding tried to a jury of his peers.
The founders would see all of this and say to themselves:
"We did all right; we really did all right. Eleven, twelve
generations later the system we put in place endures
without any material modification."
But, my ultimate fantasy, is that the founders
walk into the middle of a jury trial at which Mike and
Margy are representing their respective clients. The
founders would then say, "We did better than all right .
We did extraordinarily well - we put in place a system
that allows individuals of integrity and brilliance to
flourish . "And, the founders would say to us, "And, how
extraordinarily lucky you are that you had - however
briefly - these two individuals as your colleagues and
your friends."
And, once again, we would conclude that the
founders had gotten it 1 00% right - We are very lucky.
A Public Defender's Office Opinion ______________
Editor's Note: Both of the following are presented without changes to contmt. By David Mitcham
for A PUBLIC DEFENDERS' OFFICE
Imagine having a library of testimony from every police
officer and every State expert at your disposal. Imagine
having canned briefs, citing the First and Fourteenth
Courts of Appeals, on virtually every significant criminal
law issue. Imagine all indigent defendants having an
"appella te section" for research on the fly d uri ng trial-
just like the DA's Office. Imagine the chronically mentall y
ill being processed out of the criminal justice system,
and into a medical facility, within days of their arrest.
Most importantly, imagine the indigent defense bar having
a meaningful, institutional voice in the government of our
criminal justice system. Right now the indigent defense bar
is hundreds of isolated voices, scattered across the courts,
and largely without any influence over local justice policy.
A public defender office promises to change all of that.
Detractors say such an office will hurt the defense bar
financially. They say Commissioner's Court will never fund
such an office properly. They say the current appointment
system already works and, therefore, it shouldn' t be changed.
None of this is true .
The establishment of a public defender office is not
going to hurt the defense bar financiall y. The current outline
for a county PD Office would be a pilot program, putting
attorneys in only four of the twenty-two district courts. Even
in those four courts, the public defenders would handle a
minority of the indigent case load and the rest would still be
handled by the wheel. Moreover, the attorneys working for
the public defender office will almost certainly come from
the ranks of the current indigent defense bar. Virtuall y
every case assigned to a public defender will be a case
that the same attorney could have accepted as a private
practitioner. In essence, in the small number of cases
handled by the PD's Office, the net result will be a zero
sum gain to the defense bar at large . Even assuming
the office is successful and grows, it will be many years
before the size significantly affects the private indigent
defense bar. In Dallas, the office has been in existence for
over twenty years and it still handlesless than 50% of the
county's indigent caseload. Cont 'd on page 16
WHY THE HCClA "UNDECIDED" SHOULD DECIDE against
A PUBLIC DEFENDER IN HARRIS COUNTY
The recent "poll" of the membership suggests that , as
to the question of whether or nOt Commission's Court
should establish a public defender' s office in Harris County,
HCCLA is divided into three roughly equal groups: a third
of the members are for a PD, a third is against a PD, and a
tbird is "undecided." As I am of the opinion that installing a
PD office in Harris County is not a good idea, this opinion
piece is directed toward those lawyers among us who are
"undecided," as well as those who presently believe they are
in favor of a PD, but still have an open mind.
First, consider the recent disturbing media reports that
reveal how PD offices across the nation are in a full blown
financial crisis and appear in large measure to be falling
apart at the seams. Second, the court- appointed system
of indigent defense, with all its faults, is still superior
to a PD system in that it can be improved with reform
measures and is ultimately accountable through the
democratic process. Finally, the collateral consequences
of installing a PD office can be economically devastating
to the independent private criminal defense bar, which
has traditionally functioned as the institutional guardian
of the right to counsel and the fundamental protections
contained in the Constitution and Bill of Rights .
The lead front page story in the Sunday, November 9,
2008 New York Times began with the headline: "Citing
Workload Public Lawyers Reject New Cases-Revolt in
Seven States - Fears That the Quality of Defense for the
Poor is Eroding." The article noted that current state
budget cuts and rapidly rising workloads have pressed
PD offices to the breaking point. The Times reported
that Public Defende rs are "notoriously overworked and
their turnover is high and their pay low," but that now
they are in "open revolt." Lawsuits have sprung up across
seven states wherein lawyers in public defender offices are
suing the state governmental agencies that employ them,
complaining that the sheer volume of cases they are required
to take renders them incapable of ethically provid.ing effective
assistance of counsel. Cont 'd on page 17
THE DEFENDER * 15
_____________________________ _
popcdation gmwth,
and the certainty that criminal case filings ",rill rise with the
population, rest assured that the private indigent defense bar
will have tremendous job security ",rith or without a public
defender's office.
Proper funding is also not likely to be a problem in the
foreseeable future and, in any event, a public defender will be
in an improved position to address money issues relating to
indigent defense. Senator Rodney Ellis and the state's Task
Force on Indigent Defense are committed to making sure
the start-up costs of a public defender office are absorbed by
Austin. For the first five years of its existence, the financial
burden on Commissioner's Court would effectively be halved
by an influx of State money specifically directed to a PD
Office. As a result, the current plan for payment parity with the
District Attorney's Office is realistic and likely to be followed .
To be sure, proper hmding and case load management will
require constant vigilance. But that would be true using any
indigent defense system and a unified, internal government
voice, like a public defender, will be in a better position to
lobby Commissioner's Court, Austin and the various other
grant providers for the benefit of the entire indigent defense
bar. The public defender's mission v.ri.ll include improving the
quality of indigent defense throughout the courthouse, nOt
just within the public defender office. Part of that mission
wiJI be to seek proper compensation for all local indigent
representation including the private indigent defense bar.
Lastiy, tile current system is not, and will never be,
good enough to mal(e change obsolete. Change, progress
and experimentation will always be necessary in our justice
system. The proposal being studied by Commissioner's
AUTHOR BIOGRAPHIES
Court represents noiliing more than an experiment to see
if and how a public defender office might work in Harris
County. Public defender offices are used in every other major
American city and they are generally accepted in otiler legal
communities as essential and hmdamental to quality indigent
defense. There is no evidence that such an office should be
uniquely inapplicable to Harris County. If our community
wants to credibly claim an interest in protecting the rights of
tile indigent accused, we are obliged to at least try what has
worked in so many other jurisdictions. No one is suggesting
we destroy the current appointment system and no one wants
an ineffective public defender office just to have it. The idea
is simply that we try something, on a very limited basis, tilat
might lead to improvements in our justice system.
Our organization, HCCLA, has always been committed
to improving tile quality ofjustice in our community. Through
tilis commitment to justice we have, ever so slowly, developed
credibility and influence on criminal justice issues with local
political stakeholders. Ifwe, as an organization, seek to prevent
a public defender office, these stakeholders v.ri.ll assume our
opposition is motivated by financial paranoia. We will appear
greedy, disinterested in the fate of the indigent accused , and
we ,viLl risk squandering our hard won credibility. Further, I
suspect a public defender office, in some form, already has
the requisite political support and will be enacted with or
witilout our involvement. If true, our opposition to a public
defender office would not only tarnish our reputation as an
advocate for justice, but eliminate our influence over the
office's development. In sum, supporting the creation of a
pilot project public defender office is not onJy the right thing
for our community, it is the right thing for HCCLA.
A 1998 graduate of the University of Houston
Law Center, Mark Hochglaube is an HCCLA
board member and the HCCLA representative to
the Harris County Commissioner' s Court Publi c
Defender study team. He is a solo practitioner with
a 99% indigent appointment practice.
DAVID MITCHAA1, Past President of HCCLA
(1988-1989 ) is a graduate of the University of
Texas School of Law, licensed since 1979 and Board
Certified in Criminal Law by the Texas Board of Legal
Specialization since 1985. A former prosecutor with
the Harris County District Attorney's Office in the
early 1980's, he was also the recipient of HCCLA's
Attorney of the Year Award for hi s "Dedication to the Principals and
Ideas of American Justice" in June 2001.
THE DEFENDER -(:( 1&
cons
In a Florida case, it was reported that the Miami-Dade
County PD's office was requiring their attorneys to take on
caseloads of 500 felony cases or 2,225 misdemeanor cases
on an annual basis.
The paper quoted Norman Lefstein, a Law professor at
the University of Indiana and an expert in the field, that in
his opinion, "There should be hundreds" of such lawsuits
by attorneys in PD offices across the nation.
On the individual level, the news story highlighted the
experience of 30-year-old PD attorney Arthur Jones who
"spent a frantic morning in court" handling the cases of 23
felony defendants charged with offenses such as burglary,
drug possession, and grand theft. The paper described his
docket as a "treadmill of frustration." Most of his clients
had never met him prior to their day in court, where their
felonies were to be disposed. And Mr. Jones was paid a salary
of $44,000 a year for his labor as a PD lawyer; not enough
to support his family and pay his education loans. So Mr.
Jones quit his PD job on the following Monday after the
story went into print and headed off into private practice.
Now to all those "undecided" HCCLA Lawyers, I
sincerely ask you, is this the situation that we need to install
here in Harris County? Isn't our long-standing court-
appointed system, with all its admitted imperfections,
substantially better for the clients, the lawyers and Justice
itself than the sorry state of affairs that now exists in PD
offices all across the countr y as was so recently reported in
the New York Times .
I would further argue that the court-appointed system
is superior to the PD system if for no other reason than
because in the court-appointed system there is democratic
accountability. Whatever problems exist in a court-
appointed system they are ultimately judge problems .
The buck stops at the bench and the person in the black robe
is the responsible party. Since we can elect, and un-elect,
our judges here in Texas there is a sure remedy available at
the baltot box for any egregious court-appointed problem.
On the other hand a PD's office is a permanent governmental
bureaucracy that once put in place is not thereafter ever directly
accountable to the voters or the democratic process.
NOW, WHO DO YOU dee d?
THE DEFENDER * 17
Finally, I would ask the "undecided" third of us to
consider that Harris County has long enjoyed a strong
and independent criminal defense bar that has historically
protected the rights of accused individuals. Court-
appointed Ja\vyers are all individuals in private practice.
They do not work for the same government that seeks
to prosecute their accused clients. They are individual
la'vvyers protecting individual rights. To displace and
replace them with government employed attorneys,
answerable to their PD bureaucratic superiors, with their
bureaucratic perspectives and concerns, will, over time,
systematically undermine and erode the criminal bar's
collective commitment to individual liberty.
As to the economic dimension of the controversy,
a PD's office will, by its very nature, be an expanding
governmental entity, ever poised to increase turf in order
to justify greater future budgets for higher raises and
promotions. It will begin by taking over the docket of
court-appointed lawyers and then go on to encroach on
the working class and middle-class clientele of presently
retained counsel. Displaced court-appointed lawyers that
do not enter other fields of law, or go out of business
altogether, wilt flood into the retained market further
depressing legal fees for those attorneys who remain in
private practice. Eventually most retained defense lawyers
will be forced out like their court-appointed brethren
before them. There are many jurisdictions in the country
today where there is no criminal defense bar, like there
is in Harris County, wherein a lawyer can make a living
practicing criminal defense . It is highly instructive that
they call it the "Public Defender's Office" rather than the
"Indigent Defender's Office." For like "Public Education"
or "Public Transportation" the ultimate bureaucratic
vision is to defend "the Public" not just the poor. Now,
who do you defend?
For the above reasons, and for others that time and
space do not here permit recounting, r urge that all
"undecided" HCCLA members investigate the facts,
exercise a skeptical judgment, and reach a reasoned decision
against the establishment of a public defender's office.
,ntUfFENDER1WINTER 08
UNITED STATES DISTRICT COURT WESTERN
DISTRICT OF TEXAS MIDLAND-ODESSA DIVISION
UNITED STATES OF AMERICA
v. ) CR. NO. MO 123456
)
JOHN J. GRINCH
DEFENDANT'S FOURTH MOTION FOR CONTINUANCE
and
be continued for the
Now comes Robert Pelton, counsel for Defendant,
respectfully request the above styled case
following reasons:
'1'IJ
a
s1he
CHRISTMAS
(Twas the week before Christmas and all through the land;
The courtsare all quietexcept in Mid-land; In all the high
courts it's quiet as a mouse; Judge Thomas and Scalia are
both at their house;
My grandkids say "Paw Paw where will you be?"
"Its up tothe Judge, I'll justwaitand see";
Santa is loaded and \vaiting to go; When will he leave...
I really don'tknow;
National security IS not at stake; Please, your honor,
Give us a break;
Since taking this case, I've tried my best; Please give me,your
Honora much needed rest; \Ve've been here three times and
never been late; Please re-set this case 'til Marchof'08.
Respectfully Submitted,
Robert Pelton, President
1610 Richmond Avenue
Houston,Texas 77006
713.524.8471 phone
713.529.2999 fax
II Sorry,Santa,butournaughty-or-nice
surveillance gotcutshortthis year.II
DEFENDER
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THE DEFENDER * 18
CENSORED
CENSORED
REASONABLE DOUBT
TODD DUPONT
APPLICATION
Applicant:
Mailing address:
IN BECOMING AMEMBER?
HCClA
~ Promotes aproductive exchange of ideas and encourages
better communication with prosecutors and the judiciary.
~ Provides continuing legal education programs for improving
advocacy skills and knowledge.
~ Promotes ajust application of the court-appointed lawyer
system for indigent persons charged with criminal offenses.
~ Rles amicus curiae briefs in support of ~ e e o m and
human rights.
Telephone:
Fax:
Email:
Website:
Firm Name:
Date admitted to bar:
Law school:
Professional organizations in which you are a member in good standing:
Type of membership:
o Student ($25 annual fee)
Expected graduation date: ____
o Newly licensed (first year) attorney ($75)
o Regular membership ($150)
Date:
Signature of applicant:
Endorsement:
I, a member in good standing of HCCLA, believe this applicant
to be a person of professional competency, integrity and good
moral character. The applicant is actively engaged in the defense
of criminal cases.
Date:
Signature of member:
Member name:
MAIL THIS APPLICATION TO:
HCCLA
P.O . Box 924523, Houston, Texas 77292-4523
713.227.2404
TEXAS
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