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2 ................ . From the President
By Patrick F. McCann
3 ................. Winning Warriors
7 .................Appellate Court Shuffle on Jury Shuffles:
Judicial Voodoo on Who Do the Asking
By Troy McKinney
9 ................ . The Importance of Mitigation
By Bettina Wright, LCSW, LCDC
14.................Strategy: Carpet Bombing the Witness
By Joseph W. Varela
18.................Halloween 2007
HCClA @ ~ ~ ~ ~ ~ ~ ~
PRESIDENT
Patrick f. McCann
PRESIDENT ELECT
Mark Bennett
VICE PRESIDENT
JoAnne Musick
SECRETARY
Nicole DeBorde
TREASURER
Steven H. Halpert
PAST PRESIDENT
Robert J fickman
BOARD OF DIRECTORS:
Thomas Berg
Neal Davis
Christopher Downey
Todd DuPont II
Tyler flood
Tucker Groves
Mark Hochgloube
Rondoll Kollinen
feroz Merchont
Morjorie Meyers
fori D. Musick
John Parros
Robert A. Scardino
Chorles StanPield
Amanda Webb
O. Tate Williams
PAST PRESIDENTS:
1971-2008
C. Anthony friloux
Stuart Kinard
George Luquette
Morvin O.Teogue
Dick DeGuerin
W.B. House, Jr.
David R. Bires
Woody Densen
Will Gray
fdword A.Mollett
Carolyn Garcio
Jock B. Zimmermann
Clyde Willioms
Robert Pelton
Condelorio flizondo
Allen C. Isbell
Dovid Mitcham
Jim LLovine
Rick Bross
Mary f.Conn
Kent A. SchoPPer
Don Cogdell
Jim Skeltan
George J Pornhom
Garland D.MCinnis
Robert A. Moen
lloyd Oliver
Donny fosterling
Woyne Hill
Richord fronkoPP
W,Troy McKinney
Cynthia Henley
Stanley G. Schneider
Wendell A.Ddom, Jr.
2007-2008
~ ~ @ ~ f ~ ~ PRESIDENT
By Patrick F. McCann
Friends,
I want ro wish each and everyone of you a warm and happy holiday. As this calendar
year draws to a close, I wanted to express my thanks and appreciation tor your help and
suppOrt during the first half of my year serving as your President.
It has been... busy. Rarely docs a la\vyer get ro sign three different grievances against three different judges in a
lifetime, let alone a six month period. Yet I promised that your voice would be heard, and when together we said
"Enough" to the callous disrespect to lawyers and to clients shown by some judges, it made headlines across the
state and the nation. I met with the U.S. Attorney and expressed our hope that they will continue to vigorously
pursue bad cops via civil rights prosecution, and that they would, in light of the recent Tyrone Williams case, re-
consider their efforts on death cases. I had the privilege of testifying at the state legislative hearings on the HPD
lab scandal, and having the HCCLA point of view put out in the Chronicle op/ed pages so the public could
understand why this issue is so important.
I have also, as I promised, joined both the Mexican American l3ar Association of Houston and the Housron
Lawyers Association as this goes to press. I urge all of you to consider reaching out to these organizations and
encouraging their members to join us to speak our against unfair treatment of any person, regardless of race,
creed, color, religion , or orientation . Although my initial attempts to get the district court judges to change their
bond schedule that punishes undocumented aliens by increasing their bond beyond reason were unsuccessful, I
hope that with more voices speaking out against this policy we may yet change their minds.
The bond for the jails was defeated. Although I had initially spoken out against this bond at the Harris County
Commissioner's court, I want to acknowledge that during the di scussions I had with the county officials who are
in charge of the new programs and facilities for the mentally ill that I came away with a profound respect for the
dedication and sincerity of the Sheriff's Department and county personnel in their efforts to handle the growing
problems of the mentally ill in the county jail. I will make a pledge to you all here and now that I will continue
ro work with them and with the courts ro try and find new ways to humanely cope with the many tolks who are
in the criminal justice system largely due to their own mental illness.
The defeat of the jails means that we as a group must renew our efforts to try and find alternative, less restrictive
ways to permit the indigent and those who pose no danger ro get bond , and in this part of my message I openly
caU on the district court judges to re-visit their policies regarding personal recognizance bonds on felonies.
Over three thousand people sit in our Harris County Jail awaiting trial on felony charges, and while certainly PR
bonds may not be appropriate in some cases, the statistics for the past several years show that the district courts
effectively no longer grant PR bonds at all, On average less than a half percent of those who are screened for
such bonds are given them, and this has directly contributed to the jail overcrowding that threatens the safety
and the well- being of our c1iems, not to mention that of the deputies who must work there. It is well past time
ro ask that tllis change, and I am asking it now.
Last, we have, as an organization, put on some truly outstanding CLE and social events this year, and we will
continue to find ways to boost our members' professional development and cement tlle fellowship that sustains
us through the year. My heartfelt tlunks go to the l30ard members who are so active in funding, organizing, and
presenting these events, and whose advice has guided me in this busy half year. I am looking forward tonext year,
and to t:very new challenge. God keep YOll and your tdmily sate tllis season, and my best to you all.
THEDEFENDER] WINTER 07
Winning WARRIORS
+
Continuing her phenomenal streak, KATHERINE SCARDINO
scored yet another Not Guilty on a non-death capital murder
in the 184th; the issue was corroboration of accomplice
witness testimony.
+
KATHRYN KASE of the Texas Defender Service made the case
for Death Row client Daniel Plata's mental retardation,
resulting in findings of fact and conclusions of law that
recommend his death sentence be set aside. The 351 st
District Court's recommendation must now pass muster
with the Court of Criminal Appeals.
+
Proving that he somehow finds time to practice law when he
is not doing good works as HCCLA President, PAT McCANN
negotiated a 30-year plea for a Ft . Bend County client in
a case that was originally a death-penalty capital. He and
mitigation specialist PAM STITES submitted an extensive
mitigation evidence that caused the State to waive death and
agree to the lesser plea.
+
A 3-justice panel of the Fourteenth Court of Appeals
unanimously set aside the gag order imposed by Judge
Devon Anderson in the Ashley Benton case, thanks to
BRIAN WICE'S briefing and oral argument . In re Benton,
_ S.W.3d _ , 2007 WL 3408971 (Tex .App. -- Houston
[14th Dist.] 11/16/07).
+
JIM LAVINE received the 27
th
annual Robert C. Heency
Me1lUJ1"Ud Award by the National Association of Criminal
Defense Lawyers at the association's annual meeting in
San Francisco on August 4, 2007. This award is the most
prestigious honor given by the NACDL and is conferred
annually to one criminal defense attorney who personally
and professionally best exemplifies the goals and values of
the association and the legal profession.
+
LANCE HAMM won a reversal and judgment of acquittal in a
published opinion, Sanchez v. State, _ S.W.3d _ No.
01 -06-0021O-CR (Tex.App. -- Houston [l st Dist.] 2007),
due to HPD chemist Joseph Chu's inability to quantity
the amount of Promethazine in the alleged controlled
su bstance .
+
Following almost three years of pretrial litigation, the team
of JAMES STAFFORD, TOM STICKLER, AIMEE SOLWAY and
mitigation specialist NAOMI TERR convinced the Matagorda
County D.A.'s office to offer two life sentences on the
capital murder and sexual assault of a young girl, despite
really bad facts.
+
In what may be one of last cases of its kind, MARK BENNETT
and TYRONE MONCRIFFE persuaded a jury to recommend
probation for both of their clients convicted of murder in
the 339
th
District Court, despite the prosecutor's plea for
20 years. SARAH WOOD and JEFF DOWNING assisted .
+
After a 4-day trial in CCCL # 14, the jury took less than 30
minutes to acquit CHRIS TRITICO'S client of Class A assault.
CHRIS followed this performance with another Not Guilty
the following week in CCCL #12.
+
TAD NELSON hung the jury in the Galveston County trial
of a bird watcher charged with felony animal cruclty for
shooting a feral cat allegedly adopted by a tollbooth worker;
the case will not be retried, according to prosecutors.
+
Also in Galveston County, J.L. CARPENTER got a Not Guilty
for his client charged with indecency with a child in the
212th District Court.
THE DEFENDER -(:( 3
+
Even though his client hit a police car, the jury found JIM
BUTLER'S client Not Guilty of OWl after the court gave him
an instructed verdict on the twO drug paragraphs in CCCL
#15.
+
DAVID FLEISCHER heard Not Guilty in an assault trial in
CCCL #7 on November 14, 2007.
+
JOANNE and EARL MUSICK hung the jury 11-1, 10-2 and
10-2 for Not Guilty on three counts of indecency in the
180
th
District Court. In October, JOANNE and EARL,
along with AMANDA DOWNING, got a Not Guilty on a family
violence assault in CCCL #4 that had previously hung 5-1
for guilty.
+
MARK THIESSEN celebrated his first jury trial with a Not
Guilty on DWl in CCCL #11 on November 13,2007.
+
In his first jury trial since retiring from the bench, MIKE
PETERS obtained an acquittal for his client charged with
assault in CCCL #5.
+
MARK KELLY won a Not Guilty on a OWl in CCCL #8 on
November 9,2007.
+
A good week in October for STEVE HALPERT started with the
State dismissing a total refusal DWI in CCCL #4 as soon
as the jury was seated. He then picked up a Not Guilty on
a no-test, no accident OWl in CCCL #2 for his client who
was stopped for speeding through a red light with a broken
windshield [busted in the domestic fracas that began the
evening's events], was uncooperative with 911 and had a bad
video, to boor. STEVE thanks TODD LEFFLER for his help on
voir dire, CHUCK STANFIELD for two fine ALR transcripts and
TROY MCKINNEY and JIM MEDLEY for answering emergency
in-trial questions . It takes a village
l
Two months earlier, STEVE bested the Ft. Bend County
proseclltion when the jury awarded his client probation on a
very tough aggravated sexual assault.
+
KELLY CASE got a Not Guilty on a no test, no accident OWl
in CCCL #7.
+
Two separate clients were spared trials when DAN GERSON
and HENRY NGUYEN persuaded the grand jury to return no-
bills on two cases of aggravated sexual assault of a child.
+
The University of Houston School of Law's chapter of Phi
Alpha Delta honored WENDY MillER as Alumnus of the
Year on November 8, 2007. WENDY is the third honoree;
she follows UH Law graduates John O'Quinn and Robert
Sohns in this recognition.
+
A "law and order" jury in CCCL #13 only took 20-30
minutes [lunch included] to acquit SHANDON TONRY'S client
of assaulting her boyfriend's brother, despite the judge'S
refusal to admit any evidence concerning the complainant'S
reputation for violence and prior history of violent behavior,
including a military discharge for being a danger to others.
The jury later opined that the case was a waste of time and
money. SARAH WOOD assisted in voir dire, and RANDALL
KALLINEN and TOM lAKES offered help with last -minute
questions.
+
CHRISTOPHER CARLSON and JOHN FLOYD succeeded in
getting their client no-billed for aggravated sexual assault
of a child, thanks to an extensive investigation packet and
persistently pushing the prosecution.
+
An alleged "total whale" for the State ended in an acquittal
for BRIAN WARREN on a family violence assault in CCCL
#1, thanks to his masterful cross-examination of a "gung ho
cop" and a complainant "who wanted blood."
+
TUCKER GRAVES scored a Not Guilty on a first-degree injury
to a child in the 176
th
District Court.
+
The highly publicized trial of former TSU president Priscilla
Slade ended in a 6-6 deadlock after a tireless effort by MIKE
DEGEURIN and PAUL NUGENT. The case is currently set for
retrial in the spring of 2008.
+
NORM SILVERMAN convinced the 232
nd
District Court to
grant a motion to suppress evidence seized under a stale
warrant.
+
A no-test, no accident DWl charge led to a Not Guilty for
DOUG MURPHY in CCCL #7 on October 10, 2007.
+
PAUL DECUIR won a forfeiture action in the 183
rd
District
Court, after the Assistant Attorney General for the State of
Texas testified that the D.A. 's office cannot represent the
state in such proceedings.
THE DEFENDER * 4
+
Two acquittals in a row for TODD OVERSTREET on a .14 OWl
in CCCL #9 and a .14 OWl in CCCL #17. So much for the
infallibility of the lntoxilyzer.
+
ROBB "CZAR" FICKMAN won a no-bill for his client charged
with aggravated assault for allegedly running over his [the
client's] estranged wife's leg.
+
Extensive trial preparation and consultation with experts
rewarded AMANDA DOWNING with a dismissal of injury to a
child charges against her client in the 178
th
District COllrt.
+
Federal Public Defender BRENT NEWTON heard Not Guilry in
Judge Hittner's court when the jury believed his client over
four police officers concerning the alleged violent struggle.
+
BOB LOPER persuaded the jury to acquit his client of capital
murder in the 228
th
District Court and convict on the lesser
of felony murder, then assess punishment at 30 years in
prison.
+
Sweet victory fell to KENNETH MCCOY when the jury returned
a Not Guilty on a murder case in the 232
nd
District Court.
+
Rebounding from the jury's convictjon of his client for
intoxication assault and intoxication manslaughter, SAM
CAMMACK scored the minimum probated sentences and a
negative finding on the deadly weapon issue, despite a prior
OWl conviction.
+
After MAC SECREST reversed a murder conviction with 45-
year sentence, DANNY EASTERLING [not the original lawyer]
retried the case and ended up with a 20-year sentence on
a manslaughter conviction, saving his client 25 aggravated
years. JOANNE MUSICK helped pick the jury.
+
On a motion to quash the indictment, JOSEPH R. WILLIE
obtained a hard-fought dismissal of aggravated perjury
charges the Jackson County D.A. filed against his client
simply because he was convicted after testifying in his own
behalf. [We assume that Jackson Counry is equally diligent
in filing aggravated perjury charges against its own witnesses
whenever an accused is acquitted!]
+
DAVID KIAnA won an acquittal for his client in CCCL #7 on
a D\Vl / PCS charge and, in the process, earned compliments
on his skill and professionalism from the prosecutor.
+
Fast becoming the scourge ofthe Victoria County prosecution,
TODD DUPONT scored two Not Guilry verdicts on aggravated
assaults in the same day.
+
JUANITA BARNER won an acquittal on interference with a 911
call in CCCL #2, even though the complainant was a Harris
Counry deput)' [albeit one who never wanted the charges
to be filed and who had to be threatened with contempt to
testi fy].
+
That same day, Juanita's mentor VIVIAN KING secured a
dismissal for her juvenile client charged with aggravated
assault in the 313
th
District Court.
+
Following two days of deliberations and a defense-requested
Allen charge, ALVIN NUNNERY walked off with a Not Guilty on
a murder in the 35JSt District Court.
+
A total refusal OWl brought a happy ending to NATHANIEL
TARLOW'S first jury trial in CCCL #11, after only 30 minutes
of deliberation. NATHANIEL thanks TROY MCKINNEY and ROBB
FICKMAN for all their guidance and ideas.
+
First beating a capital charge down to straight murder at the
grand jury, CHARLIE BROWN then brought it on horne with
a Not Guilty at trial in the 185
th
District Court, despite a
surviving eye witness; the jury actually credited the accused's
alibi .
+
The jury took only a few minutes to return an acquittal on
a family violence assault case tried by JAMES ALSTON and
AMANDA WEBB.
+
Being on parole and workjng repos would seem to be a
no-fail recipe for trouble, but KYLE VANCE saved just such a
client after he was accused of running over the complainant
with his wrecker during a repossession in San Jacinto County.
JOANNE MUSICK rode shotgun.
TIE DEFUIER ott I
+
JED SILVERMAN got a motion to suppress granted in CCCL # 15
after the arresting sheriff's deputy testified that, "Everyone
I pullover is under arrest at the time I Stop them," then
resisted the prosecution's desperate attempts to re-educate
him. HENRY NGUYEN sat second.
+
DAVID flEISCHER heard a two-word verdict in CCCL #14 on
August 28, 2007.
+
PAULA SILVA and NEAL DAVIS won a Not Guilty on a DWl in
CCCL #6.
+
Having just substituted in four days before trial and been
denied a continuance, MARY GRACE RUDEN and TODD LEFflER
staged a major coup in winning a felony DWI in the 228
th
District COllrt.
+
Arguing that the 1 hour and 45 minute detention was
unreasonable in its scope and unjustified for a mere speeding
stop, tainting any subsequent consent to search if any had
been given, MEKISHA WALKER MURRAY succeeded in having
the \.veapon eventually found under the hood of the car
suppressed in the 182
nd
District Court.
+
The Supreme Court of the United States effectively ended
Harris County's ongoing efforts to enshrine a neon-lit King
James Bible on the grounds of the old civil courthouse by
denying certiorari in KAJ Staley v. Harris County. Ms.
Staley, represented by RANDALL KALlINEN, prevailed at every
level of the proceedings and weathered various threats to
her life and being hung in effigy by some in favor of State-
sponsored religion .
FUTURE WARRIORS
+
October was a good month for RICK SOLIZ, beginning with
his success in obtaining a downward departure that resulted
in probation for his client charged with perjury in the Western
District of Texas - Midland Division. RICK took advantage
of being in Dubya's hometown to argue and brief what was
essentially a Scooter Libby situation. RICK also obtained trial
date dismissals in CCCL #2 for telephone harassment and
CCCL #13 for assault. He wrapped up with a jury hung 5-1
for Not Guilty on criminal trespass in CCCL # 1 O. RICKcredits
the "priceless" advice he gets from HCCLA members.
CONGRATULATIONS TO ALL
THESE WINNING WARRIORS!
MARCH MICHAEL flOOD, 7 Ibs., 2 oz., joined proud parents
Tyler and Aimee Flood and 2 -year-old big brother Senator, on
October 30, 2007.
Doug and Kelly Murphy welcomed ELLIOTT MARSHALL MURPHY,
8 Ibs., 5 oz., on November 14,2007.
Todd and Kay Dupont added another little beauty to their
bevy of belles when AVA KATHLEEN DUPONT bowed in on
November 20, 2007, weighing 6 Ibs ., 4 oz.
THE DEFENDER * 6
THEDEFENDER]WINTER 07
APPELLATE COURT SHUFFLE ON JURY SHUFFLES:
JudicialVoodooON
WhoDo the Aski
g
By Troy McKinney
IN TREJOS V.STATE,__S.W.3d _ _2007 WL 1500276 (TEX.APP.-- HOUSTON [1 STOIST.] 2007,PET.REF' D) [NOT DESIGNATED
FOR PUBLICATION], DEFENDANT CHALLENGED THE TRIAL COURT'S GRANTING OF ASHUFFlE REQUESTED BY THE STATE AFTER
THE TRIAL JUDGE HAD QUESTIONED THE PANEl BUT BEFORE THE STATE HAD BEGUN ASKING ANY QUESTIONS. IN REJECTING THE
DEFENDANT'S CLAIM OF ERROR IN GRANTING THE SHUFFlE REQUESTED BY THE STATE,APANEl CONSISTING OF JUSTICES TAFT,
ALCALA,AND HANKS CONCLUDED:
In a case, as here, a motion toshuffle is timely as long as the motion is
m de before the State actually starts questioning the jurors in its portion ofthe
oir dire. DeLeonv. State,731 S.W.2d 948,949 (Tex. Crim. App. 1987);
MUiams v. State, 719 S.W.2d 573, 577 (Tex. Crim. App. 1986).
8iJJardJesso/the/.enotb ordetailo/thetrial courrsquestiomtothe
.:pn1wepanelina non-capitalwe,thelniDht-lineruleisthatthe
nwtiontoshufflethevenireistimelywhenitisnu:uJe biforethe
Statebeginsquestioni1lJJ thepotential jurors. See WiUiams,
719 S.W.2d at 577 (holding motion to shuffle venire timely
although for forty minutes, "the trial judge introduced
herselfand made introductory remarks, identified the
attorneys, pointed out the appellant and his
defendant,RaymondJackson,discussed thedivision
of offensesinto felonies and misdemeanors,gave
examples offelonies ofthe first, second and
third degree and the applicable penalties,
discussed capital murder and its penalties
and the high fines now available in
cases of'drug trafficking,' read the
instant indictment to the panel ,
told them the offense was
formerly known as aggravated
rape, discussed jury strikes,
the order of trial, the charge,
jury deliberations, verdicts, and
referred to certain principles as
presumption of innocence,burden
ofproof, reasonable doubt,etc.").
THE DEFENDER 1'< 7
both
The State's motion to shuffle was timely in this non-capital case because it was made before the State began its voir dire.
See DeLeon, 731 S.W.2d at 949; WiUiams, 719 S.W.2d at 577. We hold that the trial court did not err by granting
the State's motion to shuffle the jury panel.
Trejos at 4. (Emphasis added).
Of course, this "bright-line rule" was no so bright when a citizen claimed that the trial court erred in declining to allow him a
jury shuffle under the same circumstances; that is, after the trial judge had questioned the jurors but before the Stdte begdn its
questioning of the panel. In Railsback v. State,
1
95 S.W.3d 473 (Tex. App. -- Houston [l st Dist.] 2002, pet. ref'd), a panel
of the same court consisting of Justices Taft, Radack, and Alcala (two of the three justices who decided Trejos) held:
We cond ude that, because of the nature and circumstances of the of the voir dire proced ure in this case, the tridl court
did not err in denying appellant'S request for a jury shuffle on grounds of timeliness. In Wdliams, which held that
voir dire did not commence until the State had begun its examination, the trial judge did not engage in a detailed
questioning of the panel. WiUiams, 719 S.W.2d at 574. The trial judge introduced herself, introduced the parties dnd
their attorneys, explained that there were divisions between offenses, and that there were different penalties that could
be applicable, read the indictment, discussed how the trial would work, and defined various legal terms that were used
during the course of a tridl. ld. The trial judge in WiUiams then asked 3 questions: 1) whether anyone recognized
the names of the parties, or knew the facts of the case, 2) whether anyone had questions as to what the State would
have to prove, and 3) ifanyone felt that they could nOt give a punishment within the range allowed by law. Id. Here,
the trial court went well beyond the mere introductory remarks and
began asking questions of the venire members traditionally asked
by the State and a defendant during voir dire proceedings. For
all intents and purposes, voir dire in this case began when the
trial court began asking questions of the panel that were no
longer related to introductory and administrative matters,
and would have traditionally been asked by the parties
themselves.
The divergent views of the import of the decision in WiUiams and
the divergent views of the brightness of the alleged bright-line rule are
facially and irreconcilably inconsistent. This might be understandable if
these decisions were from different courts or even from different justices
on the same court, but they are not . The majority of the justices on
panels (Justices Taft and Alcala) are identical. Conspicuously, Trejos does not
even mention, much less reconcile , Railsback.
The only difference between these two cases is which side won. The real rule from these cases is that judges may give the
State relief and deny it to a Defendant under legally identical circumstances and the appellate courts are unlikely to provide any
relief when the Defendant complains of the error and the inconsistency. The real rule from these cases is that appellate justices
will likely view prior cases in whatever way is necessary to affirm a conviction and it matters not that they have said something
different in prior years and cases.
Inconsistent decisions just do nOt get much worse than these two decisions. Maybe if we shine some light on these kinds of
judicial inconsistencies, these bright-line rules will get applied equdlly in the future. One can only hope, though the past provides
little basis for validating the likelihood that such hope will become reality.
W. Troy McKinney is a shareholder in Schneider & McKinney, P.c. He is one of three lawyers in Texas who is Board Certified in DWI
Defense by the National College for DUI Defense, where he is a Regent. McKinney is a past President of the HCClA. He teaches
throughout the country_ is regularly published and is the coauthor of Texas Drunk Driving law (lexis 4th Ed). McKinney maintains an
active trial and appellate practice.
THE DEFENDER -(:( 8
THEDEFENDER]WINTER 07
IN LIGHT OF RECENT COURTDECISIONSAND THEABA GUIDEliNESREGARDING THE IMPORTANCEOF DISCOVERINGALL REASONABLY
AVAILABLE MITIGATING EVIDENCE ON BEHALF OF ADEFENDANT, CRIMINAL ATTORNEYS ARE FINDING IT ANECESSITY TO ENLIST
MITIGATION EXPERTS TO HElP, AT THE VERY LEAST, IN THE PUNISHMENT PHASE OF THEIR TRIALS.
THE MITIGATION SPECIALIST
It appears now that judges will expect a comprehensive and
reliable mental health evaluation to be conducted in notonly
capital cases but in criminal felony cases as well. Mitigation
speciJlists who have experience as well as graduate degrees
in Social Work or Psychology possess the skills, insight and
abilities tocompletesllchevaluationsand interviewdefendants
and their significant others in such a way that they obtain
information thedefendantand othersmay be unlikely toshare
with the attorney. They also have the expertise to uncover
and recognize mental illness or retardation that the client has
gone to great lengths to hide. The specialist'S interviewing
techniques mightelicit sensitive oreven humiliating evidence
that the defendant has never shared before. It's obvious that
these defendants would not be where they are ifthey were
adequate communicators and had good relationship skills.
Mitigationspecialistscan see beyond these deficits and getthe
information required for acomprehensive defense. Depraved
conduct does not develop out ofthin air. There are causes,
and causes found lead to evidence in mitigation. Counsel is
going to need a theory thatwill be effective in both the guilt
and penalty phases ofthe trial. Your mitigation specialist can
help define that theory.
THE DEFENDANT'S BIOLOGY AND ENVIRONMENT
When looking at what might constitute mitigation in capital
as well as felony cases, attorneys can turn to mental health
practitionerstounderstandhowdysfunctional humanbehavior
must have contributed to this mess in which the defendant
finds himself. The male pronounis appropriate because these
defendants are predominantly male. However, the theory
applies to women as well. Their gender certainly doesn't
provide immunity from childhood abuse and neglect.
THE DEFENDER -(,: B
It is common for the defendant to be a young male in
the range of 17 to 29 years of age and no one should be
surprised by this . The background of young males raised
in poverty, abuse and neglect fosters violence and emotional
immaturity. These young men are chronologically of legal
age but emotionally they may be operating at much younger
developmental stages. This is evidenced by their short attention
span, their poor decision- making abilities, their lack of awareness
of the basic rights and boundaries of others, their explosive
entry into emotions, and their tendency to blame others for
their problems - all of which can be documented by records
and interviews.
Another telltale sign of emotional immaturity is their persistent
need to protect their abusers, usually parents or grandparents.
Some will even go so far as to be protective of former foster
parents. Children (and psychologically these defendants are
still children) desperately want to make their caretakers seem
loving and caring. They do this to avoid having to acknowledge
that those persons who were supposed to protect them actually
were the people they should have feared the most. That level
of sel fish ness and lack of empathy in a caretaker is very hard
for a child to absorb. The terror inherent in that knowledge
is unmanageable. Blaming the adult is too painful. That's why
children take responsibility for things they couldn't possibly
have foreseen or caused or prevented. When the time comes to
discuss with the defendant the mitigating reasons the attorneys
plan to use in his defense, he may be very distrustful. This is
when he must embrace the reality about his parents and/or
caretakers. The mitigation specialist can help him separate the
act of loving one's children from the job of parenting them.
There is a widely recognized psychological theory that explains
human development over the life span and is taught as basic
theory to Psych 101 students. It was framed by renowned
20th century psychoanalyst Erik Erikson (1902-1994). This
theory divides the life span into stages and attributes a specific
developmental task to each stage. The tasks required for healthy
development through childhood and early adolescence include
trust, autonomy, initiative, identity and individuality. When
one or more of these tasks are not successfully accomplished
in one stage, the child continues to grow chronologically but
his emotional development is damaged. In the case of severe
abuse and/or neglect , it's very common for more than one
developmental stage to be derailed. Abuse that begins early
in childhood, such as in infancy, damages the child's ability to
discern empathy. A toddler (age 2-4) is famous for imitation.
If the toddler's caretakers are smoking dope and never leave
the sofa except to hit each other or conduct a drug sale, the
jury needs to appreciate what they would have imitated. Four
to six year olds are developing a moral compass, self-es teem
and a sense of group interaction. If the jury hears that the
defendant was left alone for long periods of time during his
childhood, they can recognize how the defendant's sense of
self became profoundly skewed. Six- to twelve-year- olds are
focused on skill building and concrete operations - things
they won't learn if they are not attending school regularly
or able to absorb what's being taught. Early adolescence (up
to age 18) is famous for peer pressure and the need to lit in
\vith same age peers. If the only examples of peer relationships
documented in their caretakers and in their neighborhoods are
gang members, criminal associations or "tricks", the jury will
empathize \vith their choice of fiiends. Later adolescence (up
to age 22-25) involves identity formation. The good news here
lies in their emotional immaturity. Many of these young men are
still stuck in a chronologically inappropriate developmental stage.
Therefore, their identity is still up for grabs. The jury must hear
that intervention at this stage can truly be life changing.
There are so many young men from abusive, poverty stricken,
neglectful family systems about whom one might say, "There
but for the grace of God, go 1." It's probably true that none
of us gets out of childhood without a scratch. Everyone enters
adulthood Jacking something because no parents are capable of
doing their job perfectly. However, the problems commonly
seen in criminal defendants usually stem from more bad luck
than one person ought to experience. Psychological theory
indicates that development is a product of inherited factors, life
experiences, personal choices, societal expectations and chance.
These defendants are victims of thei r biology and genealogy.
Unfortunately for them, these are tllings over which they have no
control. The jury wiU value hearing what the defendant was exposed
to in his childhood. Here's a ust of the most common things:
Drug addicted caretakers
Drug dealing caretakers
Prostiultion as a career choice in caretakers
Criminal activity used as a means to pay the bills
Mental illness and/or acute emotional disturbance
in caretakers
Severe poverty
Lack of supervision
Sporadic school attendance
Frequent changes in caretakers
Whereabouts of biological parents unknown
Physical abuse of self and/or siblings
Sexual abuse of self and/or siblings
Numerous changes in residence
The jury would certainly have been moved to hear that, while
working at Children's Protective Services, I had a case in
which an elementary school aged child came home to find his
family's apartment empty. His mother failed to mention she
was moving that day. True story.
DISEASE AND/OR INJURY
The mitigation specialist'S research into a defendant's
medical history may reveal injury or disease that the medical
establishment readily acknowledges causes some degree of
neurological damage or disturbance. The injury may, in fact,
have been caused by physical and/or sexual abuse of the
child. Testimony regarding this history from a medical expert
can be gripping to the jury and give even just one member
justification for lenience.
THERE ARE SO MANY YOUNG MEN FROM
ABUSIVE, POVERTY STRICKEN, NEGLECTFUL
FAMILY SYSTEMS ABOUT WHOM ONE MIGHT
SAY, "THERE BUT FOR THE GRACE OF GOD, GO
I." IT'S PROBABLY TRUE THAT NONE OF US GETS
OUT OF CHILDHOOD WITHOUT A SCRATCH.
THE DEFENDER 1:< 11
THE MOSTCOMMONADULTDIAGNOSESFOUND INTHESE DEFENDANTS INCLUDE
MOOD DISORDERS (DEPRESSION, ANXIETY,. ETC.); POST TRAUMATIC STRESS
DISORDER; AND DISSOCIATIVE, ADJUSTMENT AND PERSONALITY DISORDERS
SUBSTANCE ABUSE AND DEPENDENCE
Drug abuse and dependence can also explain what mitigates
rhe defendant'scriminal actions. The mostcommonlyabused
drugs include alcohol, stimulants, marijuana and opioids.
Whar follows are some basic details ofwhat the jury probably
doesn't know about the effects of these commonly used
drugs.
1. ALCOHOL
Alcohol affects practically every organ in the body and alters
the activityofmostmajorneurochemicals. Itproducesadose
dependent decrease in cognitive and motor functioning. As
Blood Alcohol Concentration (BAC) rises, the impairment
increases. People rarely look obviously intoxicated at BAC
levels thatproduce impairment. Oneofthe mostpronounced
effects ofalcohol is on divided attention tasks.
2. STIMULANTS
Itis well known that tolerance tostimulants develops rapidly.
Evidence exists that prolonged use ofstimulants seems to
bring about sustained neurophysiologic change in the brain.
This physical damage to the cells ofthe brain actually affects
how the brain functions. Chronic use can produce toxic
psychosis characterized by confused, disorganized behavior,
paranoia, hallucinations anddelusions.
3. MARIJUANA
Short-term memory and the ability to make emergency
decisions are greatly impaired by marijuana use. Impairment
ofcoordination, judgment and perception oftime can last
well past the feeling ofbeing high produced by marijuana.
Impairment of cognitive functions such as judgment and
problemsolvingcanlead topoordecision-makingwithregard
topresentand future outcomes.
4.0PIOIDS
Opioids are distributed throughout the body including the
central nervoussystemwhere they have a psychoactive effect.
The primary use ofopioids is as an analgesic - a pain reliever.
The bio-behavioraleffectsincluderespiratorydepression,nausea,
impaired memory and attention. There may be little or no
observableimpairmentin someone intoxicatedonopiates.
THE DEFENDER *12
SElECTING EXPERT WITNESSES
The mitigation specialist works with counsel to develop rhe
explanarion rhat will demonstrate and support rhe diagnosis
presented in court by the Expert Witness. Their research
underscores the fact that abuse and neglect contribute to
psychological and mental disorders. This constitutes a basis
for minimizing one's culpability in high stress situations such
as thecommissionofaviolentcrime. Themostcommonadult
diagnoses found in these defendants include Mood Disorders
(depression,anxiety,etc.); PostTraumaticStressDisorder;and
Dissociative, Adjustment and Personality Disorders. Research
into their historyoften uncoverspreviouschildhooddiagnoses
ofAttentionDeficitHyperactivityDisorder,ConductDisorder,
Oppositional Defiant Disorder and learning disabilities, as
well. Ofcourse, it's common to find a history of physical
and sexual abuse ofrhe defendant and/or his siblings. What
the jury needs to hear is that these conditions could often
be improved with counseling and a structured environment.
Time and again, efforts at intervention have been made by
Children's Protective Services, Texas Youth Commission or
other agencies. Often, services have been offered or even put
in place. However, the services may not have been sought out,
followed through on or completed by the caretakers. Many
times there is clear evidence of a "Treatment Plan" having
been developed that was never implemented by the caregivers
(who had their own deficits) or by the agency staff charged
with insuring that the services were delivered. This is another
situation over which the defendant had no control as a child.
This information supports a case for leniency and needs to be
shared with the jury.
To gather the information needed to chronicle the
developmental problems in a defendant's childhood, the
mitigation specialist uses interviews with him, family members
willing to make themselves available and records such as
Children's Protective Services, Texas Youth Commission,
Texas Department of Criminal Justice, school districts, and
whatever else can be found. It's not uncommon for records
collection to extend to other states or even other countries.
It's important to go back and look at the specific details of
charges made against the defendant, especially in juvenile
situations . The events may actually be a lot less offensive
than they are made to sound. Picture a defendant who, at
age 10, has been charged in a juvenile case with assaulting a
police officer who was trying to take him into custody. When
looking at the narratives describing the situation from the
CPS perspective, the explanation was right there in black and
white. He didn't know where the police were taking him.
He watched other officers take two of his siblings inside a
building and they didn't come out. He kept saying he wanted
to go home. What he didn't know was that his parents had
already refused to come and get them. It is imperative that the
jury hear such a story.
The mitigation specialist is helpful in bringing the Expert
Witness and the evidence together. Their mental health
background will be particularly significant in helping counsel
decide who the best experts will be. Your mitigation specialist
can help find experts who are willing and able to testify to only
what the defense needs and not be inclined to take control of
the situation.
Armed with all of the information obtained by the mitigation
specialist, the attorney has a variety of options regarding how
to use the information. The attorney can use it to:
Seek a plea agreement
Select a jury sensitive to the issues relative to the case
Elicit supportjve testimony during cross examination of
witnesses
Present a compelling story at punishment phase
In the effort to find a settlement, certainly, attorneys don't
want to unnecessarily reveal details of mitigation evidence
before trial. However, the duty to seek a plea for life must be
at the center of the defense team's goals in capital cases. That
evidence will come trom your mitigation specialist's research.
With the decision in Miller vs. Dretke, mitigation is becoming
important in all felony cases. Familiarize yourself with
mitigation specialists.
THEY ARE YOUR TEAM MEMBERS AND THEY KNOW THAT
MITIGATION IS NOT AN EXCUSE; IT'S AN EXPLANATION.
E
THE DEFENDER '* 13
THEDEFENDER]WINTER 07
./"
/"
/
/
I
STRATEGY
Carpet -B9mbing
THE WItness
By Joseph W. Varela
FOR EXAMPLE, TAKE THE CENTER OF ALARGE CITYAND IMAGINEWHAT WOULD HAPPEN AMONG THE CIVILIAN POPULATION
DURING ASINGLE ATTACK BY ASINGLE BOMBING UNIT. FOR MY PART,IHAVE NO DOUBT THAT ITS IMPACT UPON THE
PEOPLE WOULD BE TERRIBLE ... WHAT COULD HAPPEN TO ASINGLE CITY IN ASINGLE DAY COULD ALSO HAPPEN TO
TEN,TWENTY,FIFTY CITIES ... IN SHORT,NORMAL LIFE WOULD BE IMPOSSIBLE IN THIS CONSTANT NIGHTMARE OF
IMMINENT DEATH AND DESTRUCTION. Giulio Douhet, The Command of the Air (1921)
HOW FAR CAN ACIVILIZED INDIVIDUAL
- OR NATION - GO WHEN ENGAGING IN
SERIOUS CONFLICT?
Newark defense lawyer Seymour Wishman
was visiting in a hospital one evening. A
nurse tried to attack him, screaming "That's
the lawyer, that's the motherf- --ing lawyer!"
He had represented her alleged rapist in
a trial a few months before, in which his
client was acquitted. Wishman reproduces
his cross--examination in his book: I
Wishman: Isn't it a fact that after you met
the defendant at a bar, you asked him if he
wanted to have a good time?
COMPLAINANT: NO! THAT'S ALIE!
Q: Isn't it true that you took him and his
three friends back to your apartment and
had that good time?
A: No!
....
Q: And, after you had that good time, didn't you ask tor money?
A: No such way!
Q: Isn't it a fact tbat the only reason you made a complaint was because you were furious for not getting
paid?
A: No! No! That's a lie!
Q: You claim to have been raped and sodomized. As a nurse, you surely have an idea of the effect of such
an assault on a woman's body. Are you aware .. . that the police doctor found no evidence of force or
trauma?
A: I don't know what the doctors found.
Q: Isn't it a fact ... that you got what you bargained {c)r?
A: No.
Q: Then isn't that why you made the complaint to the police- you were angry that my
client hadn't paid you, that you hadn't gotten what you bargained for?
Reflecting on the events, Wish man broods:
Maybe I hadn't done anything unethical-legally unethical. In fact, I might have been doing what I, as a
lavvyer, was required to do.. .I had ignored the larger moral and emotional implications of my actions.
2
The question ofemotional and moral responsibility for my actions was beginning to dominate my thoughts .
I was concerned about the moral legitimacy of my own behavior in ways I had never seen before, and it
was disturbing ....3
Are there moral limits to conflict?
It is well known that during World War II , the Allies bombed cities in Germany. Air Marshal Arthur
Harris, chief of British Bomber Command, was a follower of
interwar theories of combat that stressed the
war-ending capability of destruction of enemy
cities by air.
4
The Royal
Air Force flew almost exclusively at night,
and practiced what they called "area bombing,"
which amounted to bringing large numbers
of heavy bombers over densely populated cities
and letting go. 5 No attempt was made to
restrict targets to those of military importance;
the bombing was designed to break the German
citizens' morale. 6
R.AF Avro Lancaster heavy bomber
THE DEFENDER -(:( 15
The air war over Germany is still the subject of controversy six decades after the fact. Two recent books
consider the moral dimension. British historian Robin Neillands examines the evidence and concludes that
the British carpet -bombing was militarily justifiable.? World War II was a conflict of the highest stakes,
one in which Britain's existence and the survival of its subjects were in doubt. Germany had declared
total war, and its practices included siege warfare,8 carpet-bombing of cities, and industrial mass murder.
Neillands argues that once Germany started total war, any method that could be justified in military
terms was admissible, the more the better, to end the war quickly. The bombing of Germany's heartland
arguably hindered its military capability. That it killed 600,000 civilians
9
was incident to the war.
Examining the same evidence, British historian and philosopher A.c. Grayling concludes that the R.A.F.
night-bombing was a war crime.1
0
Grayling holds that any force in any conflict, to be moral, must be
both necessary and proportional. Grayling condemns the British night area bombing as neither. He finds
that its contribution to the war effort was minimal, and that the suffering it imposed on civilians was
disproportional to the danger to Britain.
li
This is not the place to decide among the claims concerning the conduct of the war. RAther, the discourse
informs criminal lawyers of the moral considerations when contemplating the destruction of a witness.
Grayling would ask: Is the intended treatment of the witness both necessary and proportional ? Only if
both questions can be answered "yes" should we proceed. Neillands would have us look at the intended
action without benefit of hindsight, and determine whether it would help the defense; if so, it must be
done. 12
Criminal trials frequently involve high stakes, particularly for defendants. A loss can mean years in prison
or even death. A defense lawyer, at least as much as any other kind, owes a high duty to his client to
advocate his client's interests.
13
The rules of professional conduct provide:
.. . a lawyer should act with competence, commitment
and dedication to the interest of the client and with zeal
in advocacy upon the client's behalf. 14
As advocate, a lawyer zealously asserts the client's position
under the rules of the adversary system. 15
Reading these rules, it would seem that carpet-bombing
a witness, Wishman-style, is always justified if it is in the
interest of the defendant . This is essentially Neillands's
view of British bombing.
Hamburg, summer 1943
Is there room for the defense lawyer to ask Grayling's questions ofnecessity and proportionality) Consider these
provisions ofthe disciplinaryrules:
Alawyeris a representativeofclients,an officerofthelegal systemand a publiccitizen havingspecial responsibil.ity for
the quality ofjustice. Lawyers, as guardiansofthe law, playa vital role in the preservation ofsociety.l6
A lawyer should use the law's procedures only for legitimate purposes and not to harass or intimidate
others.
17
Can the lawyer balance his duty to his client against the damage to anotherthat might be caused by
suchcross? Doesthelavvyerowesomeobligationtothesocietyatlarge? Doescarpet-bombinglower
thecriminal justicesystem in theeyesofthe public? Ifit does, should lawyers be concerned?
Wishman, mullingovertheseissues,concludesthat"'Preservingourcriminal-justicesystem,'worthy
as that goal might be, was becoming far too narrow and abstract a concept to provide me any
comfort . "18 Not long after publishing his introspections, he retired from the law and became
presidentofFirst Run Features,a distributorofindependentlyproduced films.19
SeymourWishman,Confessions ofa Criminal Lawyer (1981),chapter I.
2 M. chapterIV.
3 M., chapterVIJJ.
4 The hypothesis that concentrated urban bombardmentcould end wars almost instantl y
was advanced in Giulio Douhet ,1/ dominio del/'aria ( 1921) ,trans .by Dino Ferrari as The
Command ofthe A,r ( 1942). Douhetargued thatan air force shouldconsistentirelyofheavy
bombers aimed at civilians. ApioneeringAmerican theoristadvocated a more balanced
force directedagainstmilitaryand industrial targets. See Willi amMitchell, Winged Defense:
The Development and Possibilities of Modern Air Power. Economic and Military (1925).
5 Also call ed,perhaps more accurately, "carpet bombing"or"saturation bombing."
6 The U.S. ArmyAir Force in Europe practiced "daylight precision bombing" It was
anyt hing but precise, and civili an collateral casualties were high, but the targets were
military, transportation and industryand it made avit al contribution toendingthewar.
7 Robin Neillands, The Bomber War. The AllIed Air Offensive Against NazI Germany
(2001).
8 The siege of Leningrad caused over amillioncivilian deaths by sta rvati on and disease.
See HarrisonSalisbury, The 900 Days' The Siege of Leningrad (1969).
9 Neillands, QU. ci t .,chapter 17.
10A.C. Grayling,Among the Dead Cities: The Hi story and Moral Legacy ofthe WWI/ Bombing
ofCivilians in Germany and Japan (2006 ).
11Grayling,Q!2. cit., chapters 7 and 9. Grayling acquits Am<::rican daylight bombing, but
he al so indicts American area bombing in Japan. In a nine-month campaign, including
Hiroshima and Nagasaki,900,000civilians were killed , Neill ands,'41. cit. chapter 17.
12As Col. Paul Tibbets, who flew the Enola Gay to Hiroshima, put it , "You' v<:: got to
take stock and assess the situati on at that time. We were at war. . You use anything at
yourdisposaL" Julie Carr Smyth,"Pilot ofPlane that Dropped A- Bomb Dies," Homlo
Chronicle, November 2, 2007.
13Prosecutors haveadi ffe rentobligati on: "It shall be the primarydutyofall prosecuting
attorneys, includingany speci al prosecutors, nottoconvict, buttosee thatjusticeisdone."
Tex. Code Crim. Pro.Art. 2.01.
14 Tex.Disciplinary R.Prof.Conducl Rule 1.01 Competent and Diligent Representation,
Comment6.
15 Tex.Disciplinary R.Prof.Conducl Preamble: A Lawyer' s Responsibilities 2. Accord,
Monreal v. State, 923 S.W.2d 61 (Te x. App. - San Antonio 1996) (Hardberger, ).,
disse nting): " Rut adt:fensecounsel has oneoverriding responsibility: to provide the most
effective assistance to herorhis client that they are ca pable ofgiving."
16 Tex.Disciplinary R.Prof.Conduct Preamble:ALawye r' s Responsibilities1.
17 Tex.Disciplinary R.Prof.Conduct Preamble:ALawyer'S Responsibilities 4.
18 Wishman,'41. cit. chapter IV.
19 Peter M. Nichols, "Finding a Place for Small Movies in the Rig Picture," New York
T,mes, June 14, 1998.
TilE DEFENDER 0(( 11
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Notes
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THE DEFENDER *" 20
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