"The Defender" is a publication of the Harris County Criminal Lawyers Association, a local bar association serving criminal defense lawyers and their clients while educating the public and shaping the criminal justice system.
"The Defender" is a publication of the Harris County Criminal Lawyers Association, a local bar association serving criminal defense lawyers and their clients while educating the public and shaping the criminal justice system.
"The Defender" is a publication of the Harris County Criminal Lawyers Association, a local bar association serving criminal defense lawyers and their clients while educating the public and shaping the criminal justice system.
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NEWS ROUND UP
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READ ABOUT CURRENT WINNING WARRIORS ON PAGE 6eS
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Free Appetizers/Cash Bar @ 5:00 pm :: CLE starts at 5:30 pm :: Last Wednesday of each month
April 16-17 :: Winning Warriors: Training Day :: www.HCCLA.org
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DWI WEEK WITH TCDLA
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Instructor :: Jim Medley =: www.HCCLA.org Pe ed
August 21 :: 13th Annual TCDLA Top Gun DWI Nemec
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CHECK OUT THE LATEST @
HCCLA.ORG
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DOTS eee :CLE Events
Pr 5 :A Word from our President
Christina Appett by Carmen Roe
sue 6 ::Winning Warirs
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es 8 ::HCCLA News Round Up
ee 8: Welcome New Members
‘Bil Hawkins 8:: The Donald Davis Seminar
ee 8: Vetran’s Day Drawing Winner
ie 9:: 2014 Fall Family Festival
Halen 10: Returning the Constitution to the Halls of Justice
by Christina Appelt
. 12:: Winning Warriors Seminar
settee, 15: :Strategy: Donald Rumsfeld & the Unknown
eA by Joseph W. Varela
18: :Practice Pointers
Hee A on ‘A Running QBA by Mark Bennett, Nicole DeBorde, Pat McCann, & JoAnne Musick
ebb races 18:: Juvenile & Felony Sentencing
ahr ey by Steven Halpert, PDO Juvenile Chief, guest writer
eee ON 22 :: What the Welder Taught Me
net by Pat McCann
24: Want vs. Need in Solo IT Set-Up
by Pat McCann
Monae) 26: :Kent Schaffer: A Profile
Pe by Thuy Le
Stanly 6, Scheie
28: :How Do You Do It All?
cia by Lisa Shapiro Strauss
Paha é 29: :Reflections of Gideon's & More
eee aie by Allison Jackson
ren ery
Sed 32:: Mediation? ...In My Criminal Case?
by Jason Truitt
Ce 37::Chess Corner : Control the Middle of the Board!
Cin Or...A study of Houston Lawyer, Dan Cogdell
OU ese by Tyler Flood
Dee ec resy :
reeapead 39: :HCCLA Extras
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Houston, Texas 77007 ezinterlock@yahoo.com‘As criminal defense lawyers, we hold che important roles
of protecting the innocent and ensuring prosecucors
follow their oath co seek justice. A seasoned trial atcorney
in our community said ie best: “Our only job is to provect
the Constitution. That's it!” Of course, this is often easier
said than done,
After listening to Michael Morton, and Anthony Graves at
our recent seminar, I found myself borh inspired and
discouraged. Inspired because these men have been
chrough more injustice than mast will endure in a lifetime
and yet, they are relentless in their uphill battles, finding
extraordinary steengch from the hope of bringing about
even the smallest change.
Talso found myself discouraged as I considered the taxing
natute of our criminal justice system, beating down even
the most determined. Working in the holdover, I've seen
all too often lawyers yell a¢ clients, encourage a plea just
to move to their next case, and simply lack che strength co
keep pushing forward, seemingly patalyzed by the daily
grind of churning out the seme clients with the same bad
cases. We must acknowledge chat our system is hard. It
pushes everyone too fat. It is designed co herd cases like
cattle instead of giving each one the attention it deserves
Despite these obstacles, Anthony, Michael and John attest
to the notion chat whether participant's will breaks
under our justice system is not a matter of “when”, but
"if". Anthony Graves, for instance, refused a plea deal that
offered freedom in exchange for confessing to a crime he
did not commit. Anchony remained unwavering in his
principles, Michael Morton was offered parole more than
once, provided he showed remorse for the crime of another.
He refused. John Raley, not even a criminal lawyer at
the time, spent six years fighting for Michael Morton’s
freedom. With litele experience in criminal law and a d
heavily stacked against him, he persevered and prevail
a
a word from our president
Comer mM Ke
‘Through their stories, each of these men demonstrates a
frame of mind that is necessary for success in our
profession: Never, ever give up. They fought and fought
until they could not fight any more, Then they got up and.
fought again. As a criminal defense attorney, I have
pushed beyond exhaustion, pouring myself into whae 1
believed, only to see it fail, time and cime again. For
what? For who? Does it really matter in the end
Ic always matters, and the mere thought of the trials and
tribulations endured by these men inspire me to continue
fighting, to keep pushing forward. Ie is for this reason,
among many others, we need co interact with chem, leat,
from their struggles, and remind ourselves that they not
only survived, but also prevailed. These men give every
citizen-accused, criminal defense lawyer, and prosecutors
alike a reason to dig a litele deeper and go that extra mile,
While we are all obliged co assise the legal system in
“getting it right", criminal defense attorneys alone have
the inctedible obligation co protect the accused and
Consticution from an overreaching government. Clients
confused, scared and frustrated by our legal system
encrust criminal defense lewyers to zealously fight for
them. Having been trained for the profession, we excel
in this tough environment, relentlessly pursuing the
interests of those less able to fight. When we are pushed,
we never stop pushing back. This is the crue benchmark
of a criminal defense attorney. Anthony, Michael, and
Joho also exhibit these characteristics and for thae reason,
we have much to learn from them. I hope as defense
attorneys we never, ever lose our will to fight for the
Constitution or our clients. Thus, in spite of the flaws
‘and inequities riddled throughout ous legal system, it
is essential we, as criminal defense lawyers, zealouslymea (5 biwu tue:
For 3 years, Kurt Hopke has been fighting for a client
", where the teenager posed online
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charged with ASAC,
as an adult, Kurt scored a trial day plea bary
misdemeanor, Now that’s perseverance!
Missing witnesses and evidence could not keep Russell
Webb from getting the 2 word verdict in the 180th for an
ex-con charged with an aggravated assault that left the
complaining witness paralyzed after a pot deal went sour.
Mark Metzger and Mark Thiessen came away with a not
guilty in a DWI trial CCL 15. Client blew a .14, but the
‘Marky Marks showed the jury the flaws in the outdated
Intoxilyzer 5000 and the jury did the right thing.
Not to let the Funky Bunch have all the fun, Tad Nelson
and Amber Spurlock teamed up in Galveston CCL 3 to
score another DWI breath test victory. Client blew .11,
hit a parked car, and was a weepy basket case on video.
‘Tad and Amber showed the jury that none of this proved
intoxication at the time of driving.
Brett Podolsky and Matt Sharp never let a DW1.16 blood.
‘ease get to the jury in CCL 9, convineing the court to
suppress the evidence based on the outrageous police
‘conduct. Police never sce Client driving, pound on his
door for over 2 minutes after 2AM, and tell Client he
must move his ear because itis illegally parked.
Jackie Carpenter and Juanita Jackson put it to the State
7th, beating a trace case and giving their 40 year old
client with no criminal history her life back.
Ithas been a 5 year battle in Waller County, but Robb
Fickman finally prevailed for his Client on $ counts of
ASAC. Robb got a mistrial on the 3rd day of trial, and a
dismissal of all charges 3 weeks later.
Juan Guerra and Brent Mayr teamed up for a .10 blood
test DWI in CCL 12, and walked the Client.
@® wesc
Despite 3 eyewitnesses, Brett Podolsky and Matt Sharp
heard the 2 word verdict in 183rd, Client charged with
aggravated assault for biting off the finger of CW in a fight.
Brett’s investigation paid off, as he was able to expose the
eyewitnesses for what they are on cross examination,
Alvin Nunnery obtained a dismissal of capital murder
charges for his client in 228th in a convenience store
robbery gone wrong. The State had a paid informant and,
homeless addict, but finally did justice when Alvin and,
his Client refused all offers.
Natalie Schultz and Chris Morton scored 2 not guilty
verdicts in 2 different courts for the same client out of
the same incident on FPW and misdemeanor assaull-fv.
Brent Mayr got a directed verdict in CCCL 4 before the
State rested in a.12 blood test DWI with an accident. The
State had presented all its evidence on a certain point, and
rather than spend 2 more days on the blood test, the court
followed the law and ended the case.
Josh Zeintek got a trial day dismissal in Montgomery
CCL 4 on a .10 breath test DWI, Seems the State finally
Tooked at the dash cam, and decided their officer had
some serious credibility issues.
In a published opinion reversing a 50 year sentence,
Frances Bourliot got a new punishment trial in the 174th.
The courtroom had been closed during the punishment
phase of the trial, in violation of the right to a public trial
Frances gives kudos to trial counsel Rick Oliver and Alan
Cohen for beautifully preserving the error.
‘Sam Cammack was the 4th lawyer for a Client accused of
‘murdering a drunk driver who killed his children in Brazoria,
County, Sam’s Client walked out of the 149th a free man,
after the NG, in a case widely covered in the media.In another media case, Brian Wice prevailed again for
Tom DeLay at the CCA, which affirmed the court of
appeals and vacated the conviction.
The jury took less than 30 minutes to find Joaquin
Jiminez’ Client not guilty of interference with public
duties in CCCL 9. JJ's Client was beaten by 3 assailants
but the cops decided it was mutual combat. When Client
protested, he was arrested.
Andrew Wright got a NG on PCS in Fort Bend CCL 4.
Gang Task Force guys admitted it was a slow night and
were looking for something to do. Cop claims he saw
Client throw something into a trash can and detained him,
to see what it was. The jury said afterward, they followed
their oath,
After 3 days of trial in a no test, no accident DWI, Sam
Adamo Jr. got a 10 minute not guilty in CCL 8
Quinon Brooker got a hung jury on Burglary of a
Habitation in Collin County. Quinon’s Client has mental
health issues and complaining witness could not ID.
Kate Shipman walked her Client on ASAC in
Montgomery County. Kate discovered DPS left out a
profile in its DNA analysis, and the rest of the State's
investigation was literally 15 minutes,
Norm Silverman tried a first degree cocaine case to
the bench in the 179th and got a not guilty based on
inadequate affirmative links. Norm credits the judge
with following the law.
Troy McKinney, Armen Merjanian, and David Ryan
teamed up for a no test DWI with an accident in Fort Bend,
CCL 2. Troy did a masterful job on cross examination,
Dut the case was won in voir dire, as every juror had a
different reason for reasonable doubt.
Troy McKinney and Armen Merjanian teamed up again
for a DWI in Fort Bend CCL 1, Same team, same result,
= not guilty.
David McClure and Annie Scott gota directed verdict in
Fort Bend CCL 3 on a DWI. The State’s wheel witness
could not identify the Client
Tami Pierce and Josh Zeintek got the 2 word verdict on
21 blood draw in Montgomery CCL 5. Tami actually
went and examined the blood vials, which tuned out 10
be vital to defending a Marine home on leave.
Not all wins are not guilty verdicts, and Sylvia Escobedo,
proved that with a 30 year sentence for an ugly aggravated
robbery. Client had multiple pen trips for violent crimes
and the State never offered less than 50 years.
Jay Cohen won a motion to suppress in Montgomery CCL 4
ona DWI, prompting the State to offer a plea bargain where
the DWI was dismissed and deferred was given on PDD.
Bob Loper and Gerald Bourque beat Capital Murder in
Jefferson County, when the jury came back with the lesser
included of Felony Murder. The killing was all captured
on video.
Pat McCann and Lisa Gonzalez. got a directed verdict in
268th on aggravated assault
Joaquin Jimenez got aNG in CCL 9 on assault. 911
calls, pictures, medical records, and cycle of violence
testimony could not shake JJ from focusing the jury on
the facts and rendering a true verdict.
Ed Cheroff got a not guilty in a contentious Brazoria,
County DWI, despite a .26 blood draw being admitted
into evidence, The cross examination of the lab tech
proved crucial,
‘caso @)HCCLA Welcomes The Following New Members:
Sa alae) NEW PARALEGAL /
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Hugh S. Brasher _F. Andino Reynal Ce
SULA aL Peer lain
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Jill Lansden DMs See
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Veterans Day Sketch Honoring
“Women Serving in the Military”
DE Ist Place Award to Annstee Pelton,
Yo Student at Cy-Fair Elementary School
& Granddaughter
JE of HCCLA Past President Robert Pelton
@® wesc@ weston
Returning the Constitution
to the Halls of Sustice
by Christina Appelt, Exéeutive Director
In Harris County, certain "courthouses" have been renaméd “justice centers”. How ironic
‘when at the Haris County Criminal Justice Center, "justice" is as confused and elusive as
the stairwell where tardy defendants are routinely punished for a faulty building design,
Much lke our nation's Founding Fathers, members ofthe defense bar fight everyday for
liberty and individual rights against an opprossive government. Sal, the scales of justice
are tipped against the defense from the grouné floor up.
Upon eniering these Halls of Justi we are greeted by angry security staf barking at us
todisrobe. We pass by five wall plagues displaying names of parents of murdered children
‘meant to taint the hears and minds of every juror in Harris County to “do justice”. We then
‘walk down the allway and wait 20 minutes to life to catch an elevator. Once finally paroled
off the first floor, we pass a window display of abused women or some other “victim of
the day” artwork om the second floor. On another floor we find a Mathers Against Drunk
Drivers plague prominently displayed behind a judge's bench, no doubt meant to influence
every juror ina DWI tral against the defendant
‘These digplays define what “Justice” means to those it power al the “Justice Center" It
is no wonder our county has the highest eonviction rate in the state, possibly the nation,
with the way the walls are adored in our Halls of Justice, They have been sending the
‘wrong message for years to everyone who passes through the building, Sueh images poison
potential jurors into a prosecutotial mindset before they even make it up to the courtrooms,
They serve to strike fear into the hears of presumably innocent citizens, and to encourage
judges, prosecutors and police officers to engage in acts of tyranny and coercion. Mostly,
they remind defense lawyers of the anti-justice system they fight against daly.‘There are no plaques showing names of the wrongfully
convicted, no images of the presumption of innocence
anywhere, Up until 2006 the building was missing any symbols
‘of Freedom, Liberty or Individual Rights,
Robb Fickman was determined to do something about it as,
President of HCCLA. He recognized the need for the courts,
to reflect the fair and balanced justice system our Founding
Fathers had intended. During his presideney in 2006, he urged
the Board to join him in this long overdue effort, He asked
them fo consider donating framed replicas of the Declaration
ff Independence, the United States Constitution, and the Bill,
‘of Rights to display in the criminal courthouse. The Board
‘wholeheartedly agreed it was time for the defense bar to step,
up and neutralize the negative impact of the existing (and.
blatantly) suggestive artwork,
Robb then urged Commissioner's Court for approval to display
the historic documents at 1201 Franklin, JoAnne Musick and
Earl Musick found the artwork and had each picce beautifully
framed to museum-style perfection. Robb continued to
coordinate with the county until finally the documents were
‘unveiled in 2007
CIC visitors are now reminded of the individual rights and
freedoms contained in these sacred documents. This was the
first step toward returning the principles these documents,
represent to the Harris County courthouses, Robb, JoAnne and
Earl continued this effort with Mark Bennett in 2008 with a
second set of famed replicas at the Juvenile Justice Center.
Chris Tritico joined them in 2012 to ensure additional sets
found permanent homes in the Jury Assembly Plaza, and then
the Civil Courthouse
This year on September 17, 2014 (Constitution Day), HCCLA,
held its fifth dedication ceremony when another set! was
unveiled at the historic 1910 Courthouse, home of the First
and Fourteenth Courts of Appeals. This majestic courthouse
‘was restored to its original glory and declared a Texas Historic,
Landmark in 2011, Efforts to display the documents took,
awhile longer due to compliance issues related to its historic,
preservation. As no artwork is allowed on the walls, HCCLA,
agreed to mount the pieces on easels. These historie replicas,
will remain on permanent display to be viewed by visitors
from all over the world on guided tours
Special thanks for this year’s event to: HCCLA members
Earl Musick, JoAnne Musick, Steve Halper,
iris Tritico and Todd Dupont; Dan Rei
who acted as liaison between the county’
and the Texas Historical Commission; Jim Lemond, former
Director of Harris County Facilities & Property Management,
and Mary Edwards, Customer Service Manager; Chief Justice
Kem Thompson Frost and Justice Mare Brown of the Ith
‘Court of Appeals; and Christopher Prine, Chief Clerk of the
Courts of Appeals
Thanks to the vision and leadership of Robb Fickman and the
hhard work of dedicated HCCLA members, the wisdom of our
Founding Fathers is now in every major courthouse (or justice
center") in Harris County, and in the Jury Assembly Room
‘This was a huge and successful effort,
HCCLA has proudly led the way in bringing these symbols
‘of Liberty to the places they belong most. When faced with
plaques of murdered children, abused women and drunk
drivers, it can be easy to forget what "Justice" truly means
‘These constitutional documents remind us there would be no
justice without them. They guarantee us inalienable rights and.
protection from tyranny by a government that persecutes us,
So as you pass through these Halls of Justice, whatever they
‘may be called, please take a moment to pause and reflect on
these framed displays. May all who enter understand their
‘meaning and purpose, and disregard the harmful images
designed to bias them. If you see Robb Fickman, take a
‘moment to thank him as well, It was his vision that brought
this meaningful view of justice to the courts in returning the
Constitution to the Halls of Justice.
‘cas i)ALEXANDRE AFANASSIEV
Foster Quan
(713) 625-9225
aafanassiev@osterguan.com
Day one ofthe Winning Warriors seminar began with Alexandre
‘Afanassiev who spoke on immigration consequences of pleas
in criminal cases. Alex's presentation was ric with information
every criminal lawyer should be aware of when representing
clients that are not United State's citizens. Alex spoke on who
can be deported, Inadmissibiity and Removabilty, Conviction
and Sentence, and finally Effective Assistance of Counsel. it
was an eye opening experience to lear about allo the diferent
factors of convictions and sentences that will and will nt affect
a client's immigration status. Alex graciously offered his
assistance to any attorney with question.
CHRIS DOWNEY
Chris Downey delivered an information filled lecture regarding
jury charges. Chris cautioned against using the cours charge
which is always riddled with mistakes due to copying and
pasting by the court reporters from previous charges. The State
Bar of Texas now publishes a book that contains jury
instructions covering the following subjects: crimes. against
persons, Intoxication and Controled Substances, Defenses
and Property Crimes.
@ wesc
ADVANCED TRIAL TECHNIQUES
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NICOLE DEBORDE
Nicole DeBorde spoke about the importance of preparing for
the punishment phase of every trial. The DA's Office throws 10
‘years at the jury like it's nothing. Nicole suggests making the
jury think about the time they are considering for your client.
“Have the jury think about where they were 5 years ago, 10
years ago, 15 years ago. Have the jury think about how they
celebrated Christmas 15 year ago. Most important, you have
to humanize your client.”
BRIAN WICE
In the midst of the media frenzy surrounding the Adrian
Peterson case in Montgomery County, it was the perfect time
to hear tips from Brian Wice regarding how to handle the
media. Brian wams against teling the media you have no
Comment. Instead be prepared to speak with the media at all
times, think before giving an interview. There is nothing wrong
with asking a reporter if you can return their call to allow you
time to prepare a quote. Always have the reporter read back
your quote. Any comments or interviews given to the media
will be out there forever so make sure you fix a misstatement if
printed incorrectly. Stat with the reporter and if that doesn't get
‘you anywhere stating working your way up the chain of
Command. Finally, speak to the media in shor statements. The
media wants sound bites.JOHN RALEY
The most moving and emotional presentation of the day with
Michael Morton sitting inthe front row, John Raley discussed
the battle to free Michael Morton. John Raley took us step by
step through the ups and downs, the battles against an
overzealous prosecutor and judge, the exoneration of Michael
Morton and the journey that lead to the Michael Morton Act.
Michael Morton ended his introduction of John Raley with
this, “I am here telling my story because this could happen to
any one of you sitting in this room today.” John spoke about
the day he received a call from Michael explaining that
Michael was up for parole but would have to show remorse
‘or killing his wife, John explained at that point he had no idea
how to advise his client warning him that if he wasn't paroled
that he may be stuck in prison for if. John said there was a
short period of silence before Michael told John that the only
thing in the world that he had left was his innocence and was
prepared to die in prison before giving that up. Michael was
denied parole. John spoke about a time that he spoke with
Michael ater they received the news that the bandanna found
close to the murder scene contained DNA from Christine and
an unidentified male excluding Michael Morton as Christine's
kille. DA Ken Anderson offered to agree to an order that
Would immediately release Michael Morton it Michael agreed
not to pursue any more DNA testing to try and find a match to
the DNA found on the bandana. John explained to Michael
that if he agreed to this, they will never know who killed
Christine. Again, a shor silence before Michael told John that
he had been in prison over 2 decades and 6 more months
was nothing. John Raley’s face was unforgettable, Finally
and probably most impactful was John Raley's account of
Michael Morton's brevity when requesting that our legistature
pass the Michael Morton Act. After finding out at one point
that there was a split vote, Michael “looked at th
representative opposed tothe bill wth his piercing blue eyes”
and asked them to please explain to him their reason for
opposition. Shortly aftr, the Bill was passed unanimously.
NEAL DAVIS
Neal Davis presented a gfeat lecture on pretrial motions
practice providing motions deadlines and the importance of
having writen mations on fle withthe court Neal also provided
riumerous templates of pretrial mations that should be fled in
all cases set for trial
JIM MOUNT
Day one ended with information regarding grand juries and
rand jury packets. Everyone operates under the assumption
that all Grand Jury proceedings are secret but there is an
exception. Defense Counsel can petton the judge of the court
where the case is pending for disclosure of testimony, upon
showing of particular need
KENT SHAFFER
Day 2 started off with the master of cross-examination, Kent
Shaffer. Kent suggests that you should always stand and move
around the courtroom during your cross-examination. You
have ta let @ witness know right away who's in charge. Don't
ever let a witness get away with not answering a question that
you are asking...no matter how many times you have to repeat
the question, Maintain control ofall witness during tial
ROBERT SWAFFORD
Conducting a mock voir dire throughout his presentation
suggesting multiple ways to get juror struck for cause and
avoiding the dreaded rehabilitation by the judge. He suggested
a variety of ways to ask questions that will lead to important
information trom your prospective panel
cosela
KOTa TTC | ae
HONORABLE MARC BROWN
Justice Brown detailed the law when it comes to obtaining
warrants for search and seizures. As everybody listens intently
tothe way Justice Brown explains all the components of a solid
probable cause atfidavit and warrant nobody really expects
what's coming next. Justice Brown changes slides while he
reaches into his pocket to pull out his cell phone. He shows the
audience his screen saver that reads..."Get a Warrant.”
HONORABLE KELLY CASE
Unfortunately, because of the issues currently pending in his
court, Judge Case had to change his presentation topic
Judge Case did, however, provide insight from the bench on
what distinguishes a good lawyer from a great lawyer. | don't
think any one will be showing up for tral in the Sth District
Court without a binder full of pleading and case law for the
court ever again,
JOSH SHAFFER
‘There are very limited circumstances in which the defense has
the right to file a pretrial appeal. Josh Shaffer provided an
intriguing prospective on those instances and explained how
the defense may even be able to bar prosecution in certain
instances through pretrial appeal, Josh provided a
step-by-step guide to properly fling writs and mandamus’ with
the trial courts and the Court of Appeal.
STAN SCHNEIDER
Stan Schneider called an attorney up to the front of the room
and used the details of her case to layout the proper way to use
impacttul words to open your case. Stan tumed an opening
statement that one would hear around the courthouse on
daily basis into an opening statement that had us hooked and
‘wondering how law enforcement arrested the wrong person.
@ wesc
KATE SHIPMAN
Kate Shipman illustrated the advantages of using a power point
presentation during closing argument. In some cases, power
point presentations are very effective in helping the jury tie
together important evidence that may have been forgotten
through a long trial. Emphasizing evidence postive to the
defense may help in securing an acquittal. Don't forget to end
your presentation with “NOT GUILTY” in the biggest, boldest
font avaiable
TYRONE MONCRIFFE
‘Tyrone’ abilty to deliver a story that you can feelin your soul
is incredible, Tyrone spoke about the importance of your
opening statement. tis the only ime you get o tel your client's
story in most cases. You have to capture your jury and make
them want to help your cient. A great lawyer wil tll stories that,
‘make each juror use all of the their senses as if they were there
as a witness. Tyrone suggests short opening statements that
capture your jury's attention fast.
ANTHONY GRAVES
"My biggest piece of advice is NEVER go looking for the
police!” Anthony Graves jokes. Day two concluded as Mr.
Anthony Graves shared the heartfelt and scary story that lead
Up to his exoneration. Anthony describes Kelly Siegler as his
blessing in disguise. Kelly Siegler was hired as special
prosecutor by Washington-Burleson County District Attorney
Bill Parham to try the case and “make sure that this execution
date stuck.” AS Kelly started investigating the case and
interviewing witness, she made a chiling discovery. Former
District Attorney, Charies Sebesta, withheld two witness
statements from the defense and elicited false testimony during
trial..Anthony Grave's was innocentStrategy:
Donald Rumsfeld
& the Unknown
by Joseph W, Varela
6¢There are more things in heaven and earth, Horatio,
‘Than are dreamt of in your philosophy.??
“Hamlet!
Donald Rumsfeld was Sceretary of Defense during the
administration of the younger Bush. In 2002, during the
run-up to the invasion of Irag, he gave a briefing to reporters
‘about the alleged existence of weapons of mass destruction.
In answer to a question about supposed links between
Baghdad and terrorists, he offered this:
Reports that say that something hasn't happened are
always interesting to me, because as we know, there are
known knowns; there are things we know we know. We
also know there are known unknowns; that is to say we
know there are some things we do not know. But there
are also unknown unknowns ~ the ones we don't know
wwe don't know?
This utterance was widely hooted as yet another
example of Rumsfeldian bureaucratese in a sea of Bush
‘Administration doublespeak. Itwon him a “Foot in Mouth
Award” from something called the British Plain English
‘Campaign.’ Rumsfeld's crities accused him of linguistic
incompetence or, worse, obfuscation of the kind that
bespeaks deliberate falschood,*
Secretary Rumsfeld left) with Russian Defense Minister
‘Sergei Ivanov, 2002. (Department of Defense)
I disagree with the Secretary's critics and contend that
his comment was a succinct restatement of a pervasive
epistemological problem, and that a close reading of it
repays the trial lawyer's attention,
1
Rumsfeld identifies three situations of the four that are
logically possible.
First, there are the “known knowns.” Rumsfeld defines
these as things we know that we know. This category
presents no special difficulties, If we know that we know
something, that implies that we knew which questions
‘to ask, and got those questions answered. (Of course my
argument assumes the subject matter is relevant to the
problem, and that the answers obtained are true),
Next, there are the “known unknowns.” These are things
that we do not know, but we know that we do not know
them, The fact that’ we know that an unknown exists
implies that it is possible to make that unknown a known;
therefore, the next inquiry is, How can we know? This in
tum prompts an appraisal of why we do not know. We
might not know because we have asked the right questions,
but have not (yet) obtained answers. Alternatively, we might
not know because we do not (yet) know which questions to
ask, but we know that if we find the right questions, those
questions will lead us to the answer, Another possibility
is that we know which questions to ask, but obtaining the
answer is either not possible with available techniques, or
the cost of obtaining the answer outweighs any reasonable
estimate of its benefit. Finally, we may know that there
is a finite mumber of possible outcomes to ant event, and
although we cannot control or predict which outcome will
‘occur, we can at least plan for each contingency; possibly
‘we can even estimate the probability of each outcome.
What distinguishes the professional from the amateur
confronted by known unknowns is that the professional
knows which questions to ask.
casoCONTINUED «:
Donald Rumsfeld & the Unknown
‘Then there are the “unknown unknowns.” These are “the
‘ones we don’t know we don’t know.” We do not know
which questions we should ask, or more precisely, we do
not know that we should be asking questions at all. We
do not know we should be asking a question because we
‘cannot imagine, even in principle, the subject about which
‘we should be inquiring. Simply put, if we cannot conceive
thata thing could exist, we will not look for it. An unknown
‘unknown is the product of a conceptual failure, Our failure
could be attributed to honest inexperience, to hubris, or to
‘what is sometimes called “failure of imagination.”
It is impossible to give an example; but we ean infer the
‘existence of unknown unknowns by observing how people
‘conduct themselves in their presence.
Tl.
‘The more we know, the less certain we are’ This
paradoxical condition is nowhere more true than in that
most consequential ficld of military matters
‘There never was a more serious awareness of unknown
unknowns than in discussions of nuclear war during the
Cold War era. The topic dominated the military-intellectual
complexes of both blocs.
Humanity has so far spared itself from thermonuclear
devastation, but one camp of serious analysts: made
predictions concerning the course and the outcomes of
such a war. The most famous attempt is that by a RAND
Corporation thinker, Herman Khan.‘ Khan posits numerous
scenarios short of “mutual assured destruction” and
purports to calculate, with great precision, the effects of
“limited” thermonuclear exchange. Khan weighs variables,
among them military, cconomic, medical, cultural and
psychological, and concludes that one side could win or,
a he puts it “prevail” in an intercontinental thermonuclear
conflict. Morcover, in a RAND study on the feasibility of
preparing for such a war, far from assuming the apocalyptic
destruction usually envisioned in the aftermath of an
H-bomb shootout,
We concluded that for at least the next decade or so
[the 1960s], any assumption of total world annihilation
appears to be wrong, irrespective of the military course
of events, Equally important, the assumption of total
disaster is not likely to apply even to the two antagonists.
Barring an extraordinary course for the war, or technical
developments not yet foreseen, one and perhaps both
of the antagonists should be able to restore a reasonable
semblance of prewar conditions quite rapidly.
@ wos
‘Typical estimates run between one and ten years for a
well-prepared and reasonably successful attacker and
somewhat more for the defender, depending mainly.
‘on the tactics of the attacker and the preparations of
the defender. In the RAND study we shied away from
optimistic assumptions,”
car woupon tes, (Ever had til that looked like this?)
WS. drm).
A competing faction cautions that “There has never been
anuclear war, and nobody knows what nuclear war would
mean.*” As one of Khan’s contemporaries at the RAND
Corporation observes,
‘There is no base of combat experience with nuclear
weapons, so we work out our predictions to two
significant figures, We have about sixty-five years of
experience with tactical air, so we get one significant
figure. There are about four thousand years of history
of land combat, and you can’t even tell which side will
win a given engagement. It makes you think that the
more you know about a situation, the less confident you
are about predicting its outcome”
Every aspect of nuclear conflict is fraught with unknown
unknowns. As one nuclear physicist said, speaking of
first-strike capability,
Every factor you can think of has been accommodated.
Itis the things you don’t think of that cause the trouble.
The central point is that we could not fire with total
confidence against the Soviet ICBMs, and they could
not fire against ours...Khan's outcomes are based on numerous assumptions, each of |
them quite reasonable; but together they add up to a lot of ifs"
that have to coincide in order to make a thermonuclear war
anything but an unprecedented and indeed unimaginable disaster,
for the human race," As Khan himself admits, in a moment of
pellucid uncertainty,
‘A modern thermonuclear war is, after all, a completely
hypothetical operation. There will always be chilling
uncertainties —some of them completely unexpected."=
‘The unknown unknowns prevent rational political leaders from
calculating uclear conflict, It is noteworthy that in the five
decades since these words were written, there has never been &
nuclear war
Cold-war politicians treated the unknown unknowns of
thermonuclear warfare with greater cireumspection than did
academics. Wenow know that atthe height ofthe Cuban Missile
Crisis, Soviet Premier Khrushchev and President Kennedy
‘exchanged personal letters which struck a different tone from the
diplomatic posturing and the military maneuvering. In one such
letter Khrushchev wrote to Kennedy:
if war should indeed break out, then it would not be in
‘our power to stop it, for such is the logic of war. I have
participated in two wars and know that war ends when it has
rolled through cities and villages, everywhere sowing death
and destruction.”
Reading the recollections ofthe participants on both sides, and
their contemporary correspondence, there is no evidence they
‘considered Khanian calculations. The apocalyptic outcome was
an unspoken assumption of all partis.
Ml.
Lawyers dealin the realms of the known knowns and the known
unknowns. Converting known unknowns into known knowns is
‘a major part of the lawyer’s working day. Indeed, a definition of
“preparation” would largely describe this conversion process,
Going into a tral, or negotiating a plea-bargain, the more known
Kmowns we have, and the fewer known unknowns remain,
the better will our position be. We can read the siatement of «
‘witness oF interview him, and we know what he is saying in the
Statement. Less ceriain is how he will come across on the stand;
‘the experienced trial lawyer understands that its difficult to know
how witness will come off in court until he is there, Thus, the
performance of a witness atthe trial is a known unknown, That
itis an unknown does not excuse the lawyer fom considering it;
indeed, he has a duty to anticipate a range of possibilities and try
to influence the performance to the client's benefit. Tis is but one
‘example of the known unknown which conffont lawyers every
day, and which present orthodox difficulties.
But Secretary Rumsfeld was right. Unknown unimowns do exis,
and they re tenible limits to men’s plans. They await us like land
How is the lawyer to deal with that which he eannol, even in
principle, prepare for?
One partial answer may lie in observation of soldiers, and
particularly those in special-frees units, These picked troops
train constantly for all sorts of missions, and their training
incorporates realistic elements of intelligent. opposition
and chance events. The training emphasizes flexibility and
improvisation rather than execution of planned tasks, The
Army puts its special-ops trainees through the “Robin Sage"
qualification course, which they must pass before becoming
Green Berets. This is rigorous test in guerilla warfare that
takes place over thousands of square miles of North Carolina
forest. To add realism, the “guerillas” are North Carolina
civilians who know every foot of those hills and whose behavior
is unpredictable. There is no set mission, and the would-be
Green Berets find themselves dumped into a complex political
and military milieu where nothing is as it seems. Anyone they
encounter could be a potential ally or an enemy, and could
switch sides without notice, There is no way to rehearse for
this test. Candidates must rely on their abilities, inherent and
acquired, to prevail inthe face of unknown unknowns.
Similarly, the lawyer best prepares for that which he cannot
anticipate, by soaking up all the knowledge he can, and by
Keeping his skills sharp. Assumptions must be kept a minimum,
and it must not be forgotten that every ease is unique. When
an unknown unknown threatens to blow up in his face, he has
something to fall back on,
| Wiliam Shakespeare, The Tragedy of Hamlet, rine of Denmark. 16
2. A ransriptofthe biting can be ound hy searching defense gov
‘Video canbe found by searching youtube.com
3. BRC News, December 2, 2003,
oe hase tin our ly ve? Thote wi the onidene bor of
‘eneance dock dogmatic steel fon banger sche, Thowe of
‘usd wpa econ fs les ety a ak mae gun,
(6 On Thermoniclar War, Pineton Univesity Pree (1960) This book was
‘one ofthe aor itspiations for tale Kabticks fin Dr Srangelove
(196, The fl incorporates some of the concepts nd ined pus some of
Kaas phrases inthe speaker mouths,
7 Khan, op. cit p21
Jame Fallows, National Defense, Random Hote (1981)
9 Ivan Solin uot Fallows op ot
11 ‘The bubonic lagu andes of rope and he Mid East (A.D. S10
se 1347 klled at ea th ofthe population i acted res,
‘Some avn tok centre wo reover, obs Kelly, The Great Mortal,
Harper Calis (2005), Nuclear conflict could equal or enced the pig’
toll o whic it ha been compared, Jck Hier, Diaster and Recovery.
The Black Death it Westra Europe, BAND Corpaatin (1968).
12 Khan op. itp 191
3 Quod in Michael Dobbs, One Mim to Midnight, Alife A. Knopf, 2008— | have often repeated to many of my juvenile
% clients’ parents, "Be thankful. If little Johnny was
going to be charged with a criminal offense, at
least it happened while he's still a juvenile.” Why
is that? Because in Texas, ita juvenile is charged
with a criminal offense (Class B misdemeanor or
higher), the most exposure that juvenile faces in
the Juvenile Justice system is a probation until the
age of 18 years' or incarceration in juvenile prison
known as the Texas Juvenile Justice Department
(TJJD) until the age of 19 years.” And this brush
with the Juvenile Justice system can never morph.
into an adult case. And regardless of the offense,
a juvenile has the opportunity to seal, or expunge,
his criminal history information, thus preventing
both private and governmental entities from ever
seeing the juvenile’s past history. Most of the time!
‘SO WHAT HAPPENS THOSE OTHER TIMES?
Suppose you get appointed or hired to represent
a 13-year old charged with Murder, or a 14-year
old charged with Aggravated Robbery, or a
15-year old charged with Robbery. Because of
the severity of the offense and the age of the
juvenile at the time of the commission of the
offense, the state of Texas can seek to enhance
the punishment scheme available to juveniles in
the Juvenile Justice system, or worse, seek to
have the juvenile’s case transferred to criminal
court where adult punishment ranges apply.
The former scenario falls under the Texas
Determinate Sentencing statute,* and the latter
occurs when a judge grants the state's Motion
to Waive Jurisdiction, more commonly known as
Certification «
CERTIFICATION
Texas is one of 46 states with a discretionary
certification scheme. In other words, regardless
of the severity of the alleged offense, a juvenile
always begins and remains in the Juvenile Justice
system uniess and unti he is removed to a criminal
court by order of the Juvenile court The earliest
age for certification in Texas is fourteen, as long as
the alleged offense committed is capital murder,
"a first degree felony, or an aggravated controlled
~ substance felony.* For all other felonies (including
“state jail felonies), the juvenile must be at least
"fifteen years of age at the time of the commission, >) al
of the offense.’ To be eligible for certification, the
juvenile cannot have been adjudicated for the offense
prior to the certification.
The process begins with the state filing a Motion to
‘Waive Jurisdiction with the trial court After the juvenile
receives the required notice of the state's intention to
certify, the court will set a non-jury hearing designed
solely to determine certification,’
The timeframe from the filing of the motion to the
actual hearing falls within the court's discretion
There must be enough time to allow the juvenile to
undergo a complete diagnostic evaluation study 50
that the court can review any documents pertinent
to the juvenile’s social history. In Texas, the juvenile
court is required to order the diagnostic study be
performed, but there is no requirement for a juvenile
to participate in the evaluation."®
There are basically two prongs to the certification
hearing, First, a judge must determine that probable
cause exists that the juvenile committed the charge
in question. A typical scenario will involve the state
calling as their sole witness a law enforcement agent
to testify to the facts of the offense. The juvenile’s
right to confrontation is generally not provided for
in a certification hearing, as the court can consider
written materials from probation officers, consultants
and other court employees.” Thus hearsay testimony
is not considered inadmissible, although a juvenile
must be provided in advance any written materials
the court intends to rely upon during the hearing.’?
Once a judge has determined probable cause exists,
the cout next looks at statutory factors to determine
if certification is appropriate
mm Whether the alleged offense was against person or
property, with greater weight in favor of transfer
given to offenses against the person;
m2 The sophistication and maturity of the child;
mS. The record and previous history of the child; and
mast The prospects of adequate protection of the public
and the likelihood of the rehabilitation of the child
by use of procedures, services, and facilities
‘currently available to the juvenile court."
~~
JoAnne Musick
Again, the court can hear live testimony as well as
review written materials prepared by probation officers
and other court personnel to determine which factors
lean for or against cerlification. This part of the hearing
will most closely resemble a defendant's presentation
of character evidence during the punishment phase
of a criminal trial. While the state has the burden of
convincing the court to certify, in reality the defense
will need to provide altemative evidence as to why the
juvenile should remain in the juvenile system and avail
himself of services there.
In July, 2013, the First Court of Appeals of Texas
reversed a murder conviction after ruling that the
case should not have been transferred to criminal
court because the juvenile court abused its discretion
when it waived jurisdiction." In Moon, the court of
appeals emphasized that certification hearings are
not supposed to be mere rubber-stamp proceedings.
The appellate court criticized the juvenile courts
boilerplate certification order for placing almost
exclusive emphasis on the seriousness of the alleged
offense to the exclusion of the other statutory factors.'*
‘case almost identical to Moon is currently before the
Fourteenth Court of Appeals, challenging the same
type of boilerplate checklist for the statutory factors
used by the juvenile court as factually and legally
insufficient to support certification."
if the juvenile court grants the motion to waive
jurisdiction, the juvenile is then transferred to the
adult county jail, although a county juvenile board
can establish local policy to allow a certified juvenile
under 17 years of age to remain in a certified juvenile
detention facility.” A transferred juvenile will be
eligible for bail and to have an indictment returned
against him just as any adult offender is afforded
when charged with a felony offense. Once certified,
a juvenile is treated as an adult for all purposes of
criminal court.”
What happens if a juvenile judge denies the state's
motion to waive jurisdiction? The juvenile is in
the exact same position he was in just before the
state sought certification. His case remains an
indeterminate juvenile case with limited punishment
ranges discussed earlier.
‘wc orenoekPasa Eas
CONTINUED =:
But if the state felt the offense alleged was serious
enough to warrant screening for certification, the state
will almost always take the next route available to them
to secure an enhanced punishment scheme against
your client—determinate sentencing. There is no legal
impediment to the state seeking determinate sentencing
after having a certification denied by a juvenile court. In
other words, your client is not out of hot water yet!
DETERMINATE SENTENCING
When a juvenile is charged with any one of seventeen
enumerated categories of offenses in the Texas Family
Code,® the state can present the charging petition to
a grand jury for approval for determinate sentencing,
‘This decision to present to the grand jury is in the sole
discretion of the prosecutor. Onea the grand jury approves
the petition for determinate sentencing, the case retums
to juvenile court with one caveat: the juvenile punishment
scheme discussed above for most juvenile cases no longer
applies. A first-degree felony” will now carry a maximum
punishment of 40 years in TJUD, a second-degree felony
carries a 20-year maximum, and a third-degree felony
a 10-year maximum. Each sentence carries with it a
possible transfer at a later date to the Texas Department
of Criminal Justice (TDC), depending on the juvenile's,
age and conduct at TJJD. Note that state jail felonies and
misdemeanors are not among the enumerated offenses
eligible for determinate sentencing, thus this enhanced
‘sentencing scheme is relegated to only the most serious
penal code offenses.” Oddly, or intentionally, however,
Robbery and certain classes of Sexual Assault are
Noticeably missing from the enumerated offenses,
But there is no minimum age requirement to be eligible for
determinate sentencing. Unlike minimum age requirements to
certify a juvenile, a ten-year old child is eligible for determinate
sentencing. And unlike every other juvenile, or indeterminate,
case, a juvenile who sets his determinate case for trial is always
entitled to a twelve-person jury pane! and may select the jury to
assess punishment following an adjudication of gu.
we ere
Now imagine after a jury tial in Juvenile court, your 13-year
tld charged with Murder has been found to have Engaged in
Delinquent Conduct (Juvenile Justice terminology for Guilty)
and sentenced to 35 years in TJJD. How can a 13-year old
serve 35 years in juvenile prison? On a first-degree felony
such as Murder, your juvenile will be sent to a TJUD facility to
begin his sentence, with a three-year minimum length of say
(MLOS) required before he becomes eligible for parole.”
Had the offense been Aggravated Assault with a Deadly
Weapon, a second-degree felony, the MLOS is two years.
Third-degree felonies cary a one-year MLOS. The sole
discretion to grant parole rests with TJD.
‘And if Johnny does not avail himself ofthe services TJJD has
to offer, a representative of TUJD can request the trial court
judge to transfer the remainder of Johnny's sentence to the
DCJ.” In order to be transferred to adult prison, a juvenile
must be at least 18 years of age, and have either violated his,
parole or have served atleast 6 months in a TWD facility while
hot conforming to specific behavior criteria The decision
to transfer to TDCY rests solely with the committing juvenile
court?" Once transferred, all the rules involving good time
credit and parole that apply to adult inmates also apply to
transferred juvenile inmates,
What if Johnny received a probated sentence instead of TJD.
incarceration? He wil intialy be supervised by his county's.
juvenile probation department. Assuming his probation term
would exceed his 19th birthday, the state of Texas can
request a hearing in the trial court prior to his 19th birthday to
‘ask the judge to transfer that portion ofthe probated sentence
that would extend beyond the 19th birthday to a criminal court
to be supervised by the adult probation department The trial
‘court has the discretion to terminate the probation rather than
transfer any remaining portion to a criminal court.
(One unfortunate consequence of a determinate adjudication,
regardless i probation or incarceration is ordered, is thal your
lent is forever prohibited from sealing, or expunging, his
criminal history information *
CONCLUSION
While the Juvenile Justice system was designed to insulate
juveniles from the “taint of criminality’ inherent in the adult
system, prosecutors have unfettered discretion to seek
a transfer or punishment scheme that will likely remove
the juvenile from the protection of the juvenile courts and
thrust him into the punishment-oriented adult criminal
justice system, The role of defense counsel in certification
and determinate proceedings is a crucial one. You are
Conceivably the last bastion of hope for your juvenile client to
allow him to become rehabilitated within the Juvenile Justice
system and avoid life-long consequences consistent with an
adult criminal history.A Runnin
‘Texas Family Code §54 04()
‘Texas Human Resources Code §246.151(¢)
‘See gonorally Texas Famiy Codo §53.045,
‘Sve generally Texas Fanly Code §54.02
In ation o discretionary transfer, some states have @ mandatory
transfer scheme as well hat comes in play when a vende isa certain
‘298 ore alaged to have commited corn offenses, Soms states wih
thes scheme alow vitualy no defense to defeating atrensfr as
long as the courts satsed the juvenile mooi the slatuorly mandated
requirements, Texas oes allow for mandatory ranfer, but onl in
‘he speci instance when a juvenile has prevcusly been cored and
nas somehow commited analnercertiable offense while sb 8
kvenie. Soo Texas Family Code §54,02(m). Texas alsa has &
provision ins caticaion salute where a juverle as young as ten
{years of age can be cere’ as an adult forthe eimes of capita
mutir or murder, bul this scenario only occurs wien an individuals
‘over the age of eightoan when the slate so0Ks corieation fr one
of those eflenses and oer salon roquoments are met
‘See Texas Family Code §54 024).
8 Texas Family Code §54.0212\A)
7. Texas Family Code §54.0212)8)
8 In Haris County, ator the fing ofa serous flory, the distict
attomey’s offen bogins a sezeonng process whore the
assigned prosecutor wiles an extensive summary of the
‘ase and makes a recommendation as o ertiaton
This sereening is then sent on to a umber af more senior
prosecutors who review and make recommendations
for certeation
9. Texas Family Code §64.02(c)
10 Texas Family Code §64.02(4)
11 Texas Famiy Cade §64.02(e). Fora thorough dscussion on he
History ofthe right of confrontation in certfeaion proceedings, 866
21'S. Tex. LJ. 80, 91-95 (1980-7961), Analysis ofthe Juvenie Courts
Dseretonary Power in Walver of Juedition Hearings, An, Ot,
Jo Ann. LJ. (1980-1981Power in Waiver of Junsacton
12 Texas Family Code §54.02(e)
13 Texas Family Code §64.02()
44 Moon v, State, 410 S.W.te (Tex App Houston
et pending)
15. AS of January 1, 1996 ll appeals of crifctions ar heard ulimately
by the Texas Court of Criminal Appeals athe conclusion ofthe
crminal cout proceedings. Texas Code of Criminal Procedure, Arlo
4447(a(b). Moon curenty before the Texas Court of Chmial
‘Appeals ater the slate'sPeiion for Diseroionary Review wa granted
16. Brit of Appoint, Guero v. Stato, No. 1419-00101-CR
(Tox App Houston ~ itn Dist Doe 31, 2013), A copy of Appellants
Dil, prepared by Cheri Duncan of the Hams County Puble
Defenders
‘Oe, attached to ths anil,
17 Human Rasourest Code §152.0015
‘tis, 2013,
ett, Nicole DeB
JoAnne Musick
18 While adult punishment ranges apply toa vanstered juve,
‘ane punishment thats ierent volves the charge of
Capa! Murder. An indidva! under te age of 18 wheter ceried
toermnal cour as a juvenie or charged in eximinal cour as 217
yar 0) who fs convicted of eaptal murder must serve a sontencs
8 Life in the Texas Deparment of Criminal Justce (TCM) win the
possibty of parole aftr foty years. An individual who commited
{he same offense ater tne age of 18 yeas, where the sates
not seeking the death penalty, must serve Life without the
possibly of parle upan conviction. Texas Penal Code §12:31(a)
‘Texas Goverment Code §508.145()
20 Fora complete list of offenses,
00 Texas Famiy Code §53.085(aK1}(17)
+ This includes a capita felony, a felony ofthe fst dogres,
or an aggravated controled Substance felony
22 Texas Famiy Code §54,04(6}(3)A}(C)
23. Whon tho Determinato Sontoncing Act was fst onacted in 1986,
ant sh enumeratod ofenses (Captal Murder, Attempted Capital
Murer Murder, Aggravated Kidnapping, Aggravated Sexual
‘Assault, and Deadly Assault ona Law Erfercement Officer)
24 Texas Family Code §53,045(6), 8 long asthe ven s no more
‘than thre years older than the complainant
25 Texas Family Code §54.03(c)
26 Texas Family Code §54.04(a)
27. Texas Human Resources Code §245.051(¢)
28 See generally 37 Texas Administative Code §380.8559,
‘A juvenie wil be released to TJJD parole upon discharge unless
has within two months prior ois Toth Btheay in whieh case |
willbe transferred othe TOCL parce division.
29, Texas Human Resources Code §244.014(a)
[The department may refer the cto te juvenile cour that
‘entered the order of commitmant for approval ofthe chie's
transfert the Texas Department of Criminal Juste for
confnement
(1) the eld has not completed the sentence; ana
(2) the ohil's conduct, garda of whether the
‘ld was rleased under supervision under
Section 245.05, indicates thatthe welfare ofthe
‘community requires the ranser
20 87 Texas Administrative Code §280.8585(0)(1}(2)
31 57 Texas Administrative Code §380.8585((9)
32 Texas Family Code §58,003(0)
33, Texas Family Code §51.01(1)6)
‘coco @), >) al
My father was a lot of things in his life. He was a pipefitter
for the Navy, and welding helped pay his way through
engineering college after the service. He worked for
Cabot Corp in the oll and gas industry, and later became
an attorney to understand oil and gas leases. He took a
summer two-cradit course as a criminal defense attorney
and he was hooked, He left his business after selling out to
his other partners and set up a criminal practice. He died
in 2009, but even when | was a kid following him around
he was always stil welding. He had kept his tools and stil
helped others on projects lke building racecars and cutting
pipe. The things he taught me about this practice are many,
but much of what he taught me he actually leamed as a
‘tradesman and a sailor. For what its worth, | hope you find
these things useful
SHOW Ub, SHAT UP, AND DO YOUR DAMA JOB.
Perhaps the single most important lesson he ever gave
me, and one | believe he fervently wished most lawyers
‘would learn. A good welder is known by his work, and the
‘work speaks for itself. Did you ever see a good tradesman,
bricklayer, plumber, electrician, or welder, that needed to
tell you how good they were? Laypeople can see a bad job
a mile off, and the more time spent leaming one's craft and
the less time bragging about how much one knows, the
better. Plus, no one wants to listen to you anyway.
YOU WORK WITH HOT METAL AND LAME: YOLe WILL
GET BURNED, CET USED TO THE PAIN, 62 FIND A
DIFFERENT OCCUPATION,
This actually came about when | was helping him. | get
bumed holding a stick of flux - he looked at me and said
‘Get used to it, shrugged, and | went back to holding the
stick while | got showered with sparks, He always made
me wear the mask and eye protection and the gloves, but
forearms were simply something God had created to absorb
‘embers. So, as a metaphor, this job has a lot of pain that
comes with it, sometimes other peoples, sometimes ours
Get used to it figure out a way to handle it without cocaine
or sleeping with your partner's wife, or find another job,
A MASTER If AN APPRENTICE WHO HAS
LIVED LONGER THAN YOU
You quit leaning on any job, and you become THAT guy or
gal, the one who tells stories and does not work anymore,
Not really. Talent does not replace effort and work, ..ever.
Knowledge is fleeting, and often becomes outdated. As soon
‘as someone calls you a damn master, get back to the shop
and start practicing how to draw a steady bead on the weld.
~~
JoAnne Musick
GO HOMEAT THE END OF THE SHIFT
| never leamed this, to be truthful. As | become somewhat
less of an ass as | get older [itis frankly a journey, and it
has lots of side paths] this makes better and better sense. It
seems the most simple way to avoid some of the ridiculous
things we lawyers get ourselves into, but as I said, | am still
working on this one. Hell,| am still working on all of them.
THE JOB MATTERS, NOT THE BULLEHET
The quality of your work is the only thing you actually
control in’ this world, whatever one's self-delusions
otherwise. The effort matters, the heart you pour into
what you do matters. You will have bad bosses, drunken
co-workers, miserable warking conditions [keep in mind
that his definition of that was cutting pipe in a water-filled
ditch in the winter in New England or in a sea-tossed
destroyer in the middle of the Atlantic in a storm] and all of,
that is bullshit. None of it keeps you from doing your best
work; only you do.
THE JOB MATTERS, NOTTHE BULLIPET.. AGAIN
He worked on pipes that had to carry explosive gas; if
he screwed up people got hurt, That was a simple and
Powerful lesson - the job, every job, matters. The clerk
who gets your voucher through and gets you paid, the
investigator who finds the one good witness for your case,
the mechanic who fixes your brakes, and yes, you, the
lawyer who makes the difference between a kid with a clean
record and one who gets deported... matter. Remember
that, and remember that people count on you to help them
recover and repair their lives. If you remember that, then
maybe you too could be a welders lawyer.
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‘casio @)Want vs. Need
in Solo IT
Set-Up
by Patrick F. McCann
| am a luddite, defined as a person who opposes
technology, | am not opposed to all things, just mostly to
the need to obsess over the latest gadget or app [such
as a "Fitbit” for instance; do you really need a wrist band
to tell you that you are getting fat and lazy? That is what
spouses and sarcastic friends are for! The zombie apps
come to mind, although they are at least funny.) | liked
the wheel, for example. It seemed a good idea, ike baked
bread, and dogs, So, | believe | am uniquely suited to help
you young smarty-pants phone toting new lawyers the
difference between what you need, and what you want
when it comes to starting up your IT suite. Here goes!
Let me start with an example - you want a BMW M3 series,
You need a good reliable car, or a BUS pass.
See the difference?
For a young solo starting out, who wants to work within
the incredibly debt-plagued, shoe-string, ramen-eating
existence you all appear to inhabit, here is what you
want vs. what you need in your home-office to help you
get started
@ wens
‘You want an Ipad with Skype. You need a PC laptop or
desktop with a decent monitor, and bundled with MS Office.
‘You want a multi-function scanner-printer-fax machine that
will communicate with the International Space Station and
make espresso. You need a good laser jet printer ike an
HP1022, one that functions reliably and flawlessly and does
not cost $0 much for toner, and an e-fax account that goes
to your email
‘You want the IPhone 6. You need a good reliable phone that
can give you some of the more useful apps like One Note,
Dragon Dictation, or Fast Case.
4
You want cloud storage. You need a good portable
hard-drive with a huge amount of storage for backing up
your inevitable lost data or laptop failure.
You want a sophisticated online management solution for
your practice, like Clio or Abacus. You need Outlook, which
by the way comes with MS Office. It has contacts for your
client info, task manager for keeping you on top of your
deadlines and projects, journal and notes for detailed online
memos or tracking your biling activites, a calendar function
that frankly, despite all the hype, no one has actually beaten,
and a mail management system that, while itis a bit of a
pain, can do some pretty cool things in terms of helping
‘organize your research and make your day flow smoothly.
You want Westlaw. You need to leam to use the free
search engine provided by the State Bar or Google Scholar
advanced search, or, god forbid, use the free county law
library or the one at the local law school down the street,
land make time to go there.
Total cost for what you want - 4k
For what you need? About $700.00. Want vs. Need
Everyone clear now?don't always-send
incompete
Floyd L. Jennings, J.D., Ph.D.
Harris County Public Defender’s Office
Scenario
‘A. defendant, having a long history of mental health
treatment and admissions, picks up another case, Counsel
is appointed and quickly realizes that @ competency
evaluation is needed. The standard order is issued and the
examiner opines the defendant is incompetent, ‘The State
and counsel for defense appear before the bench and there
isan agreed order for restoration treatment under Tex. Code
im, Proc. art, 468.073, However, the facility determines
that the defendant is not only incompetent but unlikely to
bee restored, As the State does not wish to dismiss, a Tex.
Code Crim, Proc. art, 468.102 commitment ensues and the
dofendant is sent to Rusk for @ year. A year later, Rusk
also opines thatthe defendant is not competent and unlikely
to be restored, but also does not meet criteria for inpatient
‘mental health services,
Comment:
Upon reviewing the facts in the foregoing, the following.
was discovered:
In 2012, the defendant was found incompetent, unlikely
to be restored and ultimately found to be permanently
incompetent.
Jn 2013, the very next case was that described in the
scenario, but the prior incompetency was not discovered.
What's wrong with this picture?
First, upon a finding that a defendant is incompetent
and unlikely to be restored, then in the next charge, the
defendant has an unvacated adjudication of incompetency.
By Manning v. State, 730 S.W.2d 744 (Tex. Crim. App.
1987), there is both a change in the presumption of
competency anda burden shift. The defendant is presumed
to be incompetent, And, the State has the burden 10
prove that the defendant is competent — and to a beyond a
reasonable doubt standard. See also Arnold v. State, 873
S.W.2d 27 (Tex. Crim, App. 1993); Hutch v. State, 922
S.W.2d 166 (Tex. Crim. App. 1996).
t restoration:
Second, the competency examiner must examine such a
defendant from an entirely different perspective. That
is, rather than look for evidence of incompetency that
might rise to a preponderance level, the examiner must
instead look for evidence of competency, and to a beyond
a reasonable doubt standard,
Third, failure on the part of an examiner to opine on the
issue of the likelihood of restoration in the foreseeable
future (ie, the time frame available to the court in the
‘matter, 60-120 days with a possible 60 day extension),
coupled with the failure of the court to ask for such an
opinion, sets up the condition wherein a defendant is
improperly sent for restoration — costing the county and
additional $30-S40k ~ inasmuch as Tex. Code Crim. Proc.
art 46B.071(b) would prohibit such a commitment. Not to
say that the person was hospitalized for almost 18 months,
and at least a portion of that time was prohibited by statute
Suggestions:
It is important upon accepting an appointment to do a
ook-back to ascertain if the defendant most prior case was
dismissed with a finding of incompetency (and lack of
restorabilty), as the person is ineligible for an additional
restoration commitment unless the State can establish —
beyond a reasonable doubt ~ that the person has regained
competency. In short, don’t always send an incompetent
for restoration without such a look-back
As well, it is important to craft an oder, or add an
addendum to any competency order, such that an
examiner will be advised of the unvacated adjudication
of incompetency, that the person is presumed to be
incompetent and the examiner's task isto look for evidence
‘of competency ~ and that beyond a reasonable doubt.Kent Schaffer was a drama college major at the University,
of Texas when he saw Richard “Racehorse” Haynes
cross-examine a Texas Ranger. For the next four days,
Schaffer would skip his classes to attend the trial, At the
end of the trial, Haynes offered Schaffer a job. Schaffer
showed up at the job the day after classes ended and for
the next three summers he would continue working as an
investigator for Haynes until he decided to be a lawyer.
He graduated from the University of Houston Law School
in 1981.
‘Schaffer has represented high profile clients such as Farrah
Faweett, Congressman Craig Washington, and R. Allen
Stanford. He's most recently been in the Tom Sizemore
short film “Pieces” and was one of the producers of the
Michael Morton story.
Q: It seemed like you enjoyed being an investigator
for Haynes. Why law school?
A: Iwas always in and out of trouble as a kid. I'd often get
in trouble for saying things that were on my mind, So it was
always one of those ‘it takes one to know one...” I always
enjoyed trying to find out something about someone that
‘they didn’t want me to find out
Q: Did being a drama major in school help you
with being a lawyer?
‘A: Being in trial is similar to a dramatic production. You
have to get their attention and interest and you have to learn
to make things interesting to someone, In drama you learn
the tools to make people want to listen and pay aitention. 1
don’t get stage fright. I enjoy the performance.
Q: How has going to trial changed from when you
were first practicing?
A: Now, it's a lot harder to take cases to trial, There's not
‘that many cases that get to trial. The federal sentencing
guidelines are insanely high, When I first practiced, there
‘was no talking tothe police. Now a lot of people are snitches.
A lot of people want to cooperate to get that probation or year
instead of going to tral. The [State] threatens to hammer you
if you go to trial so there aren’t a lot of lawyers willing to go
to tral.
Q: How have you seen the jury system change
over the years?
A: Now it’s an ADD generation, You can't be too emotional
and jurors have more mistrust ofthe lawyers, Jurors are more
skeptical and conservative. They know the police lie, they
know there’s an inherent racism in the system. They've seen.
CSI and in a case where there’s an absence of forensics, it
ccan seem as though there's no evidence. Lawyers need to be
cognizant of their audience and pick members [of the jury]
that are closer to the defendant. You have to adapt to a jury
and [ have to frame a case to that audience.
: How are judges different now than when
you first started?”
A: It scoms a lot of people are in a hurry. You have to take
the time to get your story out there; you can’t speed up
the trial for the sake of brevity. Now we're being told you
have to speed things along. Judges compare the size oftheir
docket as though that matters. Why does that make a quality
judge? The quality of a judge is where justice is meted out
‘and not how quickly they proceed through a case. Federal
judges are different.
Q@
‘A: There’s a lot of people who are in the criminal justice
system who should not be there, We criminalize things we
should not, When I went to St John’s, I would get five pops
for talking in class. Then when I got home, my parents would
spank me for getting in trouble in school. I got spanked
so much that I thought it was an S&M movie. We need
‘more accountability from the family. In Aspen, the Sheriff
recommends milder forms of marijuana, The deputies will
protect the marijuana growers. The police there protect
people unlike here where they're kicking in the door to get a
bag of weed. We will be the one of the last states to legalize
‘marijuana. The electorate is not an intelligent group because
wwe have a lat of people from West and East Texas.
Vhat about the system itself. How has that changed?
: Is there a lawyer who you admire?
A: Gerry Goldstein. He enjoys life everyday. A lot of
lawyers’ lives revolve around work. I don’t have a lot of
passions but I enjoy photography, art, film, travel, and
people. I’m not a good loner. Being @ good lawyer is
knowing people. You need a real appreciation for people.
Q: What advice do you have for the younger lawyers
out there?
‘A: Always keep your word even though you don’t want
to, People come to you and trust you. You made them that
promise that you will give them a hundred percent of your
time and talent. We're like surgeons. People are on the
table. You take the shortcut: that’s inexcusable because
you want to go play golf. You can't have it all It's hard
to be all things to all people, When you have a profession
instead of a job, you have to putin the time and keep your
word. No shortcuts
Q: You'll be 60 years old on August 22.
What would you be doing if you weren't a lawyer?
A; I'ma Jew; we've always wandered the desert, If I'm not
practicing law, I'd want to own the Bellagio.“how do you
aS
Every working Mom has heard this question, from either our
friends who are not working or those without children. This
is one of the greatest challenges young women face. Just a
generation ago, most women did not work outside the home
Tull time. While some of these apply to men as well, there are
issues that are uniquely facing Moms at home (whether single
Moms or married Moms),
Fortunately, I had @ fantastic role model. My Mom was a small
business owner, politician and community volunteer. On top
of that, she raised 3 children, ran carpools, cooked meals and
‘made it all look easy! However, she was probably unraveling
undemeath the surface and hanging on by a thread at times.
She didn’t have many friends in her similar circumstances to
can on in stressful moments. Talk to your peers - go out for a
glass of wine, unwind and vent your frustrations!
In our generation, things have gotten better as men take more
responsibility at home with children and housework. However,
Tine item in my budget is to pay someone else to do the
housework and laundry for my family of five, There are too
‘many people looking for work that can take these jobs off your
plate. I never want to feel guilty abotut spending quality time
with my kids because there isa sink full of dirty dishes staring
at me. Your time per hour is so much more valuable speat
‘working or with your family.
Prioritize your extra-curricular activities. When my children
were babies, I gave up volunteer opportunities and was nat
available for evening meetings. There were a few volunteer
positions I wanted to hold onto, but realized I wasn’t helping
anyone if | coulda’t fulfill my coramitments. The time comes
when you ean take on more activities, but it needs to be once
you are ready and your family can handle having you away
‘rom home.
@ wesc
do it all?”
by Lisa Shapiro Strauss,
Attorney at Law, Mother of 3, & Rabbi's Wife
You have to spend time every single day taking eare of yourself,
both physically and mentally. Get up early to take a spin class
‘or break out of your routine carly and go to yoga or for a walk.
love being done with my exercise by 6:00am before my kids get
up, so I can make lunches and get them out the door. However,
‘you have to get enough sleep so you don't run your body down,
‘You know what works for you, but you need io add it on your
permanent schedule.
‘Ona practical note, I could not live without my iPad, scanner
and Dropbox. [have all my contracts, offense reports, photos,
‘witness statements and other evidence scanned into Dropbox.
Each Client has a folder in my Dropbox. I upload their videos
‘and photos. Ihave access to my entire ease file no matter where
Tmay be in the world. [have done business on vacation (sadly),
‘but more importantly, in my home, Any client that calls or issue
that arses, [have the whole file at my fingertips 24/7. This is
a lifesaver for a Mom on the go, driving carpool and siting at
baseball games.
You cannot be the best lawyer, best Mom, best wife, bestfriend
and best volunteer. Something, has to give and you need to
ddecide which ofthese you value the most. Superwoman doesn't
exist and don't fool yourself into thinking you are the first who
will be able to do it all,
‘At the end of the day, tun off your ringer and enjoy your
family. Our children’s well-being affects us and ours affects
theirs, We are inexplicably connected. The quality of the ime
‘we spend with them matters, We cannot hear our children
while we are face booking, texting and watching the news at
the same time. Spend time unplugged!
We all need to stop and enjoy the fruits of our labor (no pun
intended)! Before we blink, our babies will be gone and all
those clients will be a faded memory. Cherish every moment
you have with your kids so you don't regret this time later. The
kids will remember your presence and it does make an impact
‘on their future,: ee GIDEON'S
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strangers and in a hotel conference room in Birmingham,
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practicing law for less than a year, and though Nick and
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in practice finding piecemeal gigs working for other
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about as long as I had but had handled hundreds of cases
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Nick and I were both agreed about Gideon's Promise.
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make fifty-nine new friends. Nick and I were our own
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We had heard about some of the kum-bai-ya-ing and the
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short introductory talk, about who we were and how we
came to be in this room in Birmingham on this August
afternoon. I had waited until the very end to go, outof fear
Pertenece een
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sent to prison for way too long instead of being offered
help. A wrongful conviction. The death of a parent who,
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opinion you don’t care about is intimidating enough, but,
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like a confession to this group of strangers,
Uhm...1’m Allison, I'm from Houston...And, uhm. I
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everything started coming into focus. Across the street
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first in a long line of things I would be compelled to do
at that two-week training that made me uncomfortable
and caused me to share more of myself than I thought I
wanted to, It was also the first in a long line of things
that I did that gave me considerably more confidence
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would not be the word I would use to describe those
two weeks. It was work. And exhaustion, And stupid
team-building activities that I hated. And bonding with
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hated, too. And frustration and deep embarrassment
and exceptional pride, and a few crises of self.
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relationships in the short time we had left.
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even an intense two weeks, are not the same as
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between our first session with Gideon's Promise and
‘our second session, some of those relationships started
PON tsiSa
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It was during theJanuary session in Atlanta that my
life changed completely. One-night, someone pointed
out that an attorney on the Gideon's Promise-email
listserve posted about a job for an Assistant Public
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Gideon”s Promise who work in severely underfunded
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‘most important things I took out of Gideon's Promise
and FACT are the things I thought I didn’t need as
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incredible people that I hope to have for the rest of my
ee Renin ae eee ae ed
with knowing you have a group of warrior advocates
standing behind you at all times, even when you are in
renee en eee ao tas
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INFO@BURNSSR22.COMIt’s kind of like chocolate in your peanut butter. At some
point someone did it, and it timed out to be a pretty good
thing. Will mediation ever be quite that good? Of course
not, Will it solve the problems this organization has taken
upon itselfto lead the charge against, such as the lack of PR
bonds, the long lines headed into the CIC, or the multiple
needless client appearances at the courthouse? Nope. But as
part of a comprehensive plan, it ean help make a difference
in the number of cases flooding the courthouse on a daily
basis by limiting the number of times a defendant has to
return for settings in the same case. It can certainly make a
difference to an individual defendant, and even a victim’
Mediation can embody some of the best parts of what we
know of as Restorative Justice. We don’t see that term in
action much, and most examples of it that are mentioned on
the listserv usually have to do with some other state fa from,
Texas in miles, and certainly in mentality. We hear stories
of families of a murder victim praying for the defendant,
something I saw in person not too fong ago while helping
try a murder case.
But here in Harris County, mediation is still a new idea to a
lot of people even if we've mediated criminal cases" in the
past. But since it's going to be thought of as a new thing,
let's examine it from start to finish,
@ wesc
BY TASON TRUE TT
Clearly the defendant and the victim both have to be
there. Although the victim (or their family, in a case
involving a death) participates, they cannot contest any
sentence eventually handed down (§56.02(13)(@)), which
is hopefully more lenient than it otherwise would have
been without mediation
In some places, such as Nueces County, the prosecutor
attends. Nueces County has a program where several cases
are mediated on a single day, with mediated plea bargains
reached, I view the Nueces County model as the Wal-Mart
of criminal mediations and as litle more than an accelerated
plea mill It does not appear to take individual eases in to
account and from what I can tell is probably a mediation
version of the Harris County bond schedule where “crime
X” gets “mediation deal Y” in almost every instance, In
most venues the prosecutors do not participate, and the
state is even exempt from attending mediation pursuant to
§26.13(0."
‘The court does not participate, other than ordering and/or
considering the result of mediation. ‘The court is not
bound by the results of mediation any more than it is a
recommendation on sentencing from the State in any other
plea agreement.ae D
eee 2
Sure we do, or at least have. For years the Harris County
Dispute Resolution Center (“DRC”) has mediated cases that
are collateral to the criminal system, such as truancy cases,
and, to a lesser extent, mediated juvenile cases. A couple of
decades ago there was a criminal mediation program that
‘was discontinued for political “tough on crime” reasons.
Regardless of whether or not mediation in criminal cases
ig currently used in Harris County, it has for some time
been an option. The Texas Crime Victims’ Bill of Rights,
which is found at §56,02(12), states that a vietim has the
right to request vietim-offender mediation. A vietim’s right
to mediation is conspicuously absent (as are several other
provisions) from the "Bill of Rights” listed on the Galveston
County District Attomey's website." It did, however, make
it on the websites for the Harris County District Attomey”
and the Texas Department of Criminal Justice."
Most notably, mediation is specifically listed in §42.12
See, 11(a)(16) as one of the factors a judge may consider
when sentencing a defendant for Title 7 crimes. Title 7
includes property crimes, a huge category of offenses
that contribute to the daily influx of defendants in Harris
County. §42.12 pertains to community supervision, and
also places squarely within the court's discretion the
ability to end supervision early.
Elsewhere, at §26.13(g), the code states that a court may
assist in coordinating victim-offender mediation before
accepting a guilty plea, By “assis” the legislature certainly
‘means “order”, Article 26 applies to arraignment in all cases
punishable by imprisonment, greatly expanding mediation’
potential use,
So, for some time mediation has been within the judge’s
discretion both when imposing a sentence in some
ccases (property crimes or any other crime punishable by
imprisonment), and in ending supervision early in all cases
that fall under §42.12,
To be sure, these provisions are there to be used if the
vietim requests it, so a starting point to using mediation
in your particular case would be to suggest it to the
complaining witness—which should most likely be done
through victim's services. On a broader scale implementing
a county-wide system for mediating criminal cases would
require the cooperation of not only the judges, but various
pre-trial services and vietim’s rights groups (MADD hhas
endorsed mediation programs in ofher Texas counties),
$0 that they can mention mediation as an option to cach
complaining witness
‘And of course, in a case where you are able to interview the
complaining witness in your case, you could certainly do the
same and suggest mediation.
Riera ae
If you take appointments, or even if you don't, you may
be wondering what's init for you. First of all, it presents
another billing opportunity. If those in charge of setting
the rules for payment of appointed counsel realize that a
cease can be pled after one setting and one mediation (those
that don’t plead out en masse, anyway), as opposed to after
several settings, maybe they'll sec it as a cost savings.
Certainly ifthe court orders mediation it will be approved
asa billable event.
If you need to change your billing structure to include it,
that's easily accomplished. If you're charging by the hour
you're already there, but it’s no great difficulty to increase
fa flat fee or add a rider to a flat fee contract that increases
the fee if mediation is scheduled.
So, from a purely selfish perspective, if a lawyer is getting
paid there is litle else he or she needs to consider from their
‘own perspective,
seat
Paes
If-you look at the study referenced in endnote 8, at page 9
yo can sce an excellent summary of case dispositions from
‘mediation programs around the state. If you wonder what's
in it for your client, you can look and See that within the
study period Travis County placed a full third of participants
‘on deferred prosecution. Dallas County placed 84% of
the defendants who mediated on probation, while Tarrant
‘County used mediation to refer defendants out of the system
and terminate supervision, which occurred in over 70%
of all cases, While the study involves juveniles, the fact is
that mediation can be used in cases involving adults, too,
although my guess would be that because adulis are held
‘more accountable than juveniles there will be fewer adults
offered deferred prosccution and probation, though the
sentences will most likely be lower overall.
So, what's in it for your client? Based on known events
in other counties, they could receive lighter sentences,
deferred sentences, or early termination from supervision,
All of which can be good results given the facts of a
particular case,
rweoctmcr i)CONTINUED =:
MEDLtAT ION?
Opinions differ here. Certainly if you have a case with a
client who insists on tial, or you are certain is factually
innocent, mediation is not appropriate
Should you mediate cases involving violent crimes? When
discussing this issue with my wife, who generally serves,
fas my reality check, she mentioned that she would not
‘want to ever mediate a case with a violent crime. The
‘TDCI program has been developed with an eye toward
‘mediating cases of all types, although most states exclude
violent crimes. Interestingly enough, a 2009 study by the
‘Texas Juvenile Probation Commission cited two schools of
thought—one that all criminal cases should be mediated,
and the other that only the more serious crimes should be.
1 was surprised that “only non-violent offenses” didn’t
‘make up a third school, since it has certainly been the
direction in which most people I talk to in Harris County
lean,
Table 1 on p4 ofthe study shows the known victim-offender
mediation programs in Texas (Harris Coumty is
conspicuously absent from the list). Truthfully, the Haris
County DRC's free criminal and juvenile mediation program
is ttle more than a memory, but the infrastructure stil exists.
‘And for clients with the money to pay fori, you can always
find a mediator who knows what they're doing when it
comes to criminal mediations (another way to sell mediation
toa judge is to assure them that it wll be fee of charge to the
county—and their budget)
@ wea
IN MY
CREMINAL cAsE?
Dallas County has a mediation program that takes violent
offenses, They feel that the vietims can air their pain, heal
more quickly, and move on with their lives if they've been
able to confront their attacker. I can see it, with the right
touch, but some people can’t. The University of Texas’s
school of social work has a program that gocs into prisons
and solicits certain inmates for mediation in cases where
the families of murder victims want to know more about
‘what happened to the victim, primarily for closure,
The Nueces County program mentioned above deals
primarily with misdemeanors and results in a plea that they
call a “mediated plea bargain”, which is an oddly accurate
‘way to phrase one particular use of mediation in this setting,
The Nucces County program boasts that 73% of the cases
were resolved through mediation, and those mediated pleas
were accepted by the judge 99% of the time, I cannot verify
those statistics, which appear on a for-profit mediator’s web
page, so they are included here only anecdotally.
Other counties, like Jefferson, limit their intake to
non-violent property offenses under the guise of “victim
restitution” cases. I've heard stories from those mediators
about little old ladies helping kids who tagged their fences
or keyed their car do their homework and stay in school
after they learn more about the kids during mediation,
While that’s an unusual result, certainly the promise of
restitution or repairs can be a regular offer by a defendant
in order to show remorse and receive a lighter sentence,If you have @ DWI case in a court that has previously
denied pre-trial diversion for cases involving an accident
or igh blood alcohol content, maybe you can take a stab at
‘mediation and get approved, with the consent of the vitim,
T'msure a serious injury or fatality won't make it under any
circumstance, buta minor wreck with promise of restitution
may get over the hump in these or other cases where the
“policy” in Harris County may be that certain crimes are
treated more harshly (employee theft, for example).
Certainly every case where your clint is seeking to be
released from supervision early is appropriate for mediation.
Those cases involve clients who have already pleaded or
been found guilty, so they have nothing to lose by a show
of remorse. If you have asked for early release but the judge
isn’t going for it or is on the fence, offer to go to mediation
and seo if that changes the judge's mind. Tt may work, or it
‘may make them smirk at you and still say no, in which ease
you haven't lost anything, anyway.
A fact-specific analysis of just about any case may lead
you to think that mediation is appropriate. The reasons to
‘mediate and types of cases to mediate are as varied as the
cases themselves,
[oat nmehaeae
‘Over the years, I've heard alot of reasons why lawyers don't
‘want to mediate a eriminal case, I won’t bother to talk about
‘why prosecutors have said they don’t want to doit, but from
defense lawyers, these seem to be the most popular:
“My client isn’t guilty, and we can prove ithe state will
never make its case.” That's a great reason. Don’t mediate
those cases.
“I don’t want my client to waive his Sth Amendment
rights,” This may be a very good reason as well, Mediation
in civil cases is confidential, and certainly plea negotiations
in criminal cases are supposed to be, but we all know
there are judges who will allow various statements made
in plea negotiations into evidence, And because criminal
‘mediations are still somewhat of a gray area, those same
judges may very well allow admissions made during,
‘mediation into evidence—in most cases the prosecutors
will not be in attendance, so this would not fall squarely into
the realm of “plea negotiations,” anyway. This may be one
reason why Nueces County calls its program ‘mediated plea
agreements’, which may keep the process inadmissible,
even if not confidential
But again, knowing that there are judges who will err on
the side of allowing the iniroduction of certain
statements, I'd say that if you're worried about an
admission of guilt, don't mediate that case. Mediation
should only occur in cases where your client has nothing
to lose by admitting guilt,
“I'm not sure what my client will get out of i.” If you've
investigated something and you're truly not sure if it will
be good or bad for your elient, my opinion is that you
shouldn’t do it absent some sort of Hail Mary situation
(while also getting the client to agree in writing after
he’s been advised of the risks), But if you're not sure
how mediation will affect your client simply because you
haven't made an effort to find out, that’s not such a great
reason. In fact, it's a bad reason.
“L'm a trial lawyer. I don’t believe in mediation.” T hear
this sort of chest-thumping quite a bit. It is always BS. My
practice has traditionally been civil litigation, a profession
notorious for settling cases without trial, full of lawyers
who have tried almost no cases at all. I mediated more
civil cases than I can remember as a party, even more as
‘a mediator, and I never found myself at a loss for cases to
take to trial (tried two in the month prior to writing this,
in fact.) Even the most prolific trial lawyer has cases that
should not go to trial and has resolved cases outside of the
‘courthouse, “I'm a trial lawyer” is never a reason to refuse
to mediate the appropriate case.
1 think of criminal mediations like 1 think of my Neti
Pot (Google it, if you've never heard of one). At first it's
downright weird, It will always be foreign to some, and
‘others simply won't have a need for it. My wife certainly
can't wrap her mind around it. But with my bistory
‘of broken noses, car wrecks, and facial reconstructive
surgery (no jokes, please), it works perfectly for me. The
sudephedrine industry will miss the borderline meth-head |
used to be, But [ haven't had a sinus infection or a ruptured
car drum in over a year, and I hadn’t gone more than two
‘months without one or the other in the last 25 years before
I started using it
Maybe mediation will have a similar effect on criminal
cases. I's not for every case, I's not even for the majority
fof cases. But here and there maybe it can help someone,
and maybe they get a lighter sentence out of it. Or maybe
they come to terms with what they did just alittle bit beter
than they otherwise would have, and decide to change their
bbchavior for the better. That's not great for our business
‘model, but it’s great for our clients
rweoctosr i)EZ
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Armee lia
Owned & Operated
ORDERED TODAY
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pageant
Control the Middle of the Board!
Or...A Study of Houston Lawyer, Dan Cogdell
“It’s just you and your opponent at the board
and you're trying to prove something”
Oma
Chess Masters often teach to control the middle of the
board to gain advantage over your opponent, Ifyou control
the middle of the board then you create a comfort zone
around your pieces and you have many options of defense
and attack at your disposal. If you are not controlling the
ER ee Renae atta!
‘The chess board is like the courtroom, You move around.
the courtroom as does your opponent. You make different,
eT ninemsn rcs
sag eye eeu utonr
Rea oe eee eg ges ag
Se ee aS eee
ents
11 was watching Dan Cogdell trying the Patti LaBelle, body
‘guard assault case in court several months ago and at one
point right in the middle of the State’s questioning of a
witness, Dan, rose from his seat, walked over to one of the
eee Oa CR een gaecLt
cece
De ee Coe
Peon eu
eters een gee ony
the prosecutor and the witness on the stand.
The bailiff was not one of the regular bailiffs in the court
PRIS aeons Roan yas
for that day. I would not be surprised at all if Dan had never
‘met that bailiff before that moment. It was most likely a
orchestrated action to show comfort in and control of the
courtroom, It was a brilliant little display.CONTINUED ::
Chess COLPNETN vier ser rcs
Control the Middle of the Board!
Or...A Study of Houston Lawyer, Dan Cogdell
Control the middle of the board! Command attention!
Stand up and walk around when you can, Ask questions
oe ane meen a esc
have been there before and you know what you arc
doing. Be friendly with your opponent when you can,
Be friendly with the court staff (all the time), The jury
watches everything. The jury will notice when you are
standing in the middle of the courtroom grabbing their
attention, The jury will notice when you walk over to talk
to your opponent during the middle of trial and the jury
will definitely notice if you act intimidated and it appears
Nec ere een ec ea
appearance of control is how you react to discussions at
Rese rors es ty
In the same case with Cogdell, he and Paul Doyle would
Pe cat ce ener
oe eee sme entra
ruling but it never failed, Dan would still smile big and say
Serotec cr eeam cts ony
course watched and heard him so as faras they knew, Dan
PR nsec Me ee ECR ermecn ica
Se etna s
SunTzu said “Appear weak when you are strong and
Se en aS
Pe RO OCS er Ree aT
self-deprecating humor, appearing weak and humble, then
Seer ee ane Som a ear ed
figured out ways to control the room and to appear strong,
ens eee ea Secret teams
Peg ee eRe
ree eci Ta cee See acres
did battle a few years ago when he was a prosecutor, Chris
controlled the middle of the board that day.
On
Thad purchased a flat screen TV to use in trial (pre new
Ce ean coco seem Nats
on his counsel table to show the jury my powerpoint slides
T wanted to use in my closing. In hindsight, it probably
wasn't a very effective closing to begin with but the thing
that made the biggest impact in front of the jury was what
recent
As we walked by cach other in the well, he grabbed my
eoeeet aetna cr cet secrecy
Cree Ee cone cues ee
Renter hstgemrtare te eet teres ty
Pere ee ear ee ae ea ect eeet
off guard and didn’t know whether to sit there and suffer
while he used my technology against me or to object and
Ree one ance
lunconfident in front of the jury. 1 just couldn't bear it
any longer and I finally objected and politely asked the
judge if I could remove my exhibits from counsel table,
Damage done. Chris had effectively taken over control of,
the courtroom and control over my presentation. He and I
Ponte ta neces ees ts
PENS SBroa Tiny
As tril lawyers we need to use our voices and our bodies to
emphasize points we want to make. Ifyou try to come up
Ser eee eae ncaa can Ey
trial you will come across as more confident and persuasive,
Soiree Rees enna tg ed
confidence in you that you know what you arc doing. Go
Sere er serea tani tenes sen hee
Peres mer eons hen nen)
the middle of the board and control the game, Good verdicts
toall!
GE ne ee ee
ee aoa
Clarence Darrow.ae ue
UR CUR aT at ed
Check out the Facebook Page
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eRe ale ecmm mae Le-T ITT
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