defender
fall 2006
CLE
thursday
October 26, 2006
at noon
7th floor
criminal jus tice center
FALL 2006
table
contents
Winning Warriors
15
16
18
by Shawna L. Reagin
the defender h
President
Robert Fickman
President Elect
Pat McCann
Vice President
Mark Bennett
Secretary
Sean Buckley
Treasurer
JoAnne Musick
Past President
FALL 2006
2006-2007
Past Presidents:
19712005
C. Anthony Friloux
Stuart Kinard
George Luquette
Marvin O. Teague
Dick DeGuerin
W.B. House, Jr.
David R. Bires
Woody Densen
Will Gray
Edward A. Mallett
Carolyn Garcia
Jack B. Zimmermann
Clyde Williams
Robert Pelton
Candelario Elizondo
Allen C. Isbell
David Mitcham
Jim E. Lavine
Rick Brass
Mary E. Conn
Kent A. Schaffer
Dan Cogdell
Jim Skelton
George J. Parnham
Garland D. McInnis
Robert A. Moen
Lloyd Oliver
Danny Easterling
Richard Frankoff
Wayne Hill
W. Troy McKinney
Cynthia Henley
Stanley Schneider
F ALL 2 0 0 6
Publisher:
HCCLA
Editorial Staff: Shawna L. Reagin
Ads & Distribution: Shawna L. Reagin & Christina Appelt
Design & Layout: Limb Design
Board of Directors:
Tom Berg
Neal Davis
Nicole DeBorde
Christopher Downey
Todd DuPont II
Rosa Eliades
Ami Michelle Feltovich
Steven Halpert
Randall Kallinen
Melissa Martin
Feroz Merchant
Marjorie Meyers
Earl D. Musick
James T. Stafford
Charles Stanfield
Jim Sullivan
defender
the
HCCLA Officers
Editor
It seems so often the case these days that differing points of view are not reasonably debated, but
simply quashed. Those who are not with us are against us rings from coast to coast, and informs
political discourse from top to bottom. Sad to say, there are even members of the defense bar who
are more interested in cannibalizing their own than in presenting a united front to those prosecutors
and judges who seek to undermine the Constitutions we are all sworn to uphold.
We have all known those lawyers who are more interested in being popular with prosecutors and
judges than they are committed to zealous representation of the criminally accused. One reason
the Harris County defense bar has been historically powerless is because whenever its members
organize to take a stand against unfair treatment, there are always those few who rush to sell
out their colleagues in hopes of gaining some small and temporary favor. Even greater numbers
hinder protest by cringing under the rubric that it is unprofessional to openly criticize judicial
and prosecutorial misconduct. Too many times, these naysayers propose nothing in the way of
alternative action; instead, they simply pick up their toys and go home, nitpicking from the sidelines
while others carry the ball. And make no mistake: This is not a division between court-appointed
and retained lawyers; there are quislings in both camps.
This is not to say that all defense lawyers who refrain from taking global positions are incompetent
cowards. Some lawyers generally perceived as among the very best are loners who seldom interact
with professional organizations and evince little interest in group agendas. No one doubts these
lawyers ability or willingness to face down renegade prosecutors and judges. However, we also
do not see these lawyers betraying those lawyers who do choose to organize against abuses of the
system.
Evil flourishes when good people do nothing. Whether resistance is covert or open, it is necessary to
reform those institutions that have run amok. Many of us believe that, until appellate review again
becomes a meaningful exercise [and a review of this issues Winning Warriors spurs hope that the
pendulum may be swinging], public exposure of bias, ineptitude and dishonesty is the most effective
method available. To those who question the choice of weapon, we urge meaningful alternatives.
To those who question the need for the fight, we suggest alternative employment.
Shawna L. Reagin
Editor
* The Editors opinion is purely personal, and in no way reflects the viewpoint or position of the
Harris County Criminal Lawyers Association.
winningwarriors
Following the reversal of his death sentence due to faulty or false HPD
crime lab ballistics testimony, Martin Draughon is a free man after
20 years on Death Row, thanks to the negotiating skills of Katherine
Scardino and Jerald Graber, along with some parole advice from Bill
Habern. Jeff Keyes of Ohio won the retrial.
On trial before a worldwide audience, Wendell Odom, George
Parnham and Dee McWilliams finally obtained justice for Andrea
Yates by persuading her second jury to find her Not Guilty by reason
of insanity. George was selected for the Harris County Democratic
Lawyers Associations 2006 Clarence Darrow Award for his work on the
Yates trial.
Carmen Roe and Pat McCann achieved a rare reversal for factual
insufficiency in Brown v. State, ___ S.W.3d ___, 2006 WL 2192986
(Nos. 01-05-00074-CR & 01-05-00075-CR, delivered August 3, 2006)
[designated for publication].
the defender h
the
defender
F ALL 2 0 0 6
MESSAGE
PRESIDENT
by
In a case that could have wide ramifications for Harris County courts, if
defense lawyers will make the necessary records, Emily DeToto reversed
the 228th District Court for an unreasonably restrictive 30-minute voir
dire, in Mack v. State, 2006 WL 1977104 (No. 07-05-0154-CR, Tex.
App. Amarillo, delivered July 14, 2006) [unpublished].
Confirming that a necessity charge is not precluded by jury instructions
on self-defense and defense of a third party, David Cunningham reversed
an aggravated assault conviction out of the 230th District Court in Fox
v. State, 2006 WL 2521622, No. 13-03-230-CR (Tex.App. Corpus
Christi, delivered 8/31/06) [unpublished], with thanks to Catherine
Samaan and James Rivera for preserving error at trial.
Kim Parks continued this unbelievable appellate sweep by securing
the reversal of an aggravated assault from the 208th District Court in
Santacruz v. State, 2006 WL 2506382, No. 14-05-00227-CR (Tex.App.
Houston [14th Dist.], delivered 8/31/06) [unpublished], in which
the issue was violation of the Confrontation Clause via admission of
testimonial portions of a 9-1-1 call in an alleged domestic violence case.
CONGRATULATIONS
TO ALL THESE
WINNING WARRIORS!
Todd Dupont has bested his record for losing an agreed continuance in
JP court by obtaining a dismissal of a .15 DWI in CCCL #6 [task force,
failure of all SFSTs] on the eve of trial, making this his sixth dismissal in
six days, including a first-degree burglary of a habitation, two assaults
against public servants [jailers], a POM and a city ordinance violation.
In Victoria County, he persuaded the State to dismiss six misdemeanors
in return for one felony deferred plea.
All hail the Czar, Robb Fickman, who had four cases dismissed within
two weeks, including a theft, an evading and an interference with 91-1 call, then won a motion to suppress in a DWI case, based on no
reasonable suspicion for the stop. Most impressive of all is his summit of
Mt. McKinley on July 11, 2006, at 5:30 p.m.
The War on Crime and the War on Drugs has already led to a steady
erosion of our fundamental rights. Over the last forty years we have
seen the line protecting our rights get thinner and thinner. Anyone who
denies this lives in a fantasy land. We are not yet a police state, but will
we become one?
Despite a rock solid case for the State, Tyler Flood hung the jury 6-6
on the issue of the legality of the stop in a felony evading case in the 248th
District Court, helped along by some creative trial inventions offered by
the cops.
We want our nations leaders to protect us, but not at any cost. Our
President has sanctioned illegal wiretaps across the nation. He and
many other politicians seem not to care much about trampling on the
Constitution in their rush to fight the War on Terror.
Tom Stickler got a Not Guilty in Galveston County Court #3 on a notest, no-accident DWI.
Some may argue that our jobs as defense attorneys are trivial when
measured against larger world events. I would counter that our role
as defense attorneys now and in the future will become even more
important in preserving our nation.
Stanley Topek and son, Seth Topek, who recently joined him in
practice, obtained a grand jury no-bill on a sexual assault case.
Good team work by David Kiatta and Jeff Purvis convinced Brazoria
County prosecutors to dismiss charges of enticing a child on the eve of
trial.
the defender h
the
defender
THE CZAR
INCITES DISSENT
The deck is stacked all right, but in todays era of limited space, budget
constraints, and case filings that are more than double of what they used
to be, the defendant often gets the better hand. We often plead cases
to much less than the very citizens that we represent would want us to
because we need to move them to make time to spend on someone who
is a more serious offender! (Got some of that 12.44a?)
Criticism is also heaped on jurors. Some say that they are too quick
to convict. Some say that they are too inclined to hand down a death
sentence in a Capital case. Clearly, no one has talked to jurors on cases that
we have handled.
We have gotten our
share of not guilty
verdicts. We have
also asked for the death penalty and been rebuffed by these supposedly
blood thirsty juries. Jurors who show up for jury duty bring their
experiences and attitudes with them. It is not only unrealistic to expect
anything less from them, but it is also just flat wrong.
the defender h
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tHuRsDaYs
the
defender
F ALL 2 0 0 6
BATSON,
WE HARDLY KNEW YE
By Shawna L. Reagin
When Danalynn Recer was working capital cases in rural Mississippi and
Alabama, she frequently had to seek help from the locals in her attempts
to locate witnesses, but would still find herself lost. Finally, a seasoned
investigator took her aside and explained that when white people gave
directions, they did not count houses belonging to black folks. So third
house on the left translated to third house belonging to a white family
on the left. To the white residents, the blacks simply did not exist.
Juror interviews following a recent non-death capital murder case revealed
this same philosophy to be alive and well in Harris County. Instead of
ignoring black houses, these jurors ignored black testimony. To them,
the testimony of the black people simply did not exist.
In all fairness to the State, and above all, we must be fair to the State,
its prosecutor did not use ALL her peremptory strikes against AfricanAmericans; she only used seven out of the ten, plus her one alternate,
to purge the panel of offensive black people. The panel itself was 18%
black [12 out of 65], and the prosecution used seven of its ten regular
peremptories against the nine black venirepersons within reach, and also
used its one alternate strike to excise a black man. An African-American
prison guard was struck by the defense, and one black male served on
the jury. This ratio was shocking even to a lawyer with experience in
the Deep South, who had never seen anything to compare to a Harris
County voir dire.
Of course, the prosecution had very good reasons for singling out these
people. The most pragmatic excuse, offered in response to the defenses
Batson1 challenge, was that a young black male too enthusiastically
espoused belief that no innocent person should go to jail. The other
the defender h
reasons were equally valid, not any the less so for being applied solely to
the African-American venirepersons. Pretext? What pretext?
A sixty-four-year-old African American woman, employed as a certified
surgical technician, was eliminated from the pool of possible jurors via the
States use of one of its peremptory challenges. When asked at the bench
conference why it had stricken the juror from the pool of potential jurors,
the State offered her statement that child abuse is reported more often
today than it used to be. However, nearly the entire panel agreed with
that premise; only one potential juror thought child abuse is reported less
often these days. Whether one believed child abuse was reported more or
less often, that opinion had nothing to do with juror qualification, since
no one said that more reporting was necessarily a bad thing.
feeble explanation that prison guards are apt to sympathize with people
who are sent to prison rang especially false, considering that the State will
normally knock down doors to seat a person even remotely connected
with law enforcement.
She did not say she had served on a hung jury. In answer to the judges
questioning, she said that she did not think her jury had reached a verdict,
but could not explain why. The Court specifically asked her if it was a
hung jury and she said she didnt know.
The States strike of a 25-year-old black male was at first justified by the
prosecutor claiming he had a SPN, but when defense counsel pointed
out that she herself has a SPN, as does the prosecutor, the excuse was
amended to a possible arrest or conviction for DWI. There were
several members of the venire with DWI arrests and/or convictions, yet
not all were stricken by the State.
Also doomed by the prosecutors discriminatory pen was a twenty-oneyear-old black male employed as a laborer. When asked at the bench why
it had stricken this person, the State said he had not responded to the
defense attorneys questions quickly enough. Aside from the prosecutors
theretofore unvoiced concern for the defenses point of view, several
potential jurors white, African-American and Hispanic had difficulty
expressing themselves. Their lack of articulation did not render them
unsuitable in the States eyes, however.
The State did call another black person in rebuttal. She was the maternal
grandmother of the dead baby. [The mother had refused to bow to
the States constant pressure to say the man accused had abused her
child.] This grandma foamed at the mouth, committed blatant perjury
uncorrected by the prosecution, and appeared to be either mentally
unbalanced or mentally deficient in some regard, despite being on active
duty in the U.S. Army. The jury specifically said it disregarded her
testimony.
In contrast, all of the defense witnesses except for the forensic pathologist
were African-American. Several people related by blood to the dead
child testified on the defendants behalf as to his loving, caring, gentle
relationship with her.4 The childs own mother appeared for the defense,
and admitted that the baby preferred the accused over her.5 These
witnesses were prevented from telling the jury that they would all trust
their children with him, even today. The defense intentionally avoided
the defender h
calling his own relatives to vouch for his character, in the belief that the
support of the complainants relatives was much more convincing that
that of his own.
Many, but not all, of these witnesses were very poor, having had their
lifetimes of deprivation exacerbated by the ravages of Hurricane Rita;
most lived in Orange, Texas. None of the witnesses had criminal history.
A few had jobs, a few did not. Some were well-dressed, some were not.
Most were regular churchgoers. They varied in degree of articulateness.
The witnesses were all consistent in their unwavering support for the
man on trial, based on their frequent observations of his behavior with
this child and other children. They all knew him, the babys mother and
the baby, and were unanimous in their contention that he could not and
would not have harmed the child, either negligently or intentionally.
Many of them were not quite as confident about the mother. Other than
the rabid grandmother, shunned by her community, the State could not
bring a single witness or piece
of evidence to denigrate the
character of the accused.
those people were all
sticking together
the defender h 10
a white female juror ducked her head, cowered in her seat and refused
to make eye contact throughout the trial and especially during closing
arguments. After the verdict, this same juror scuttled out without talking.
Other jurors revealed that this woman had concluded that all the black
people she saw in the courtroom during the trial were gang members who
were going to track her down and harm her after the verdict. Of course,
none of the people she feared were even connected to the trial. Upon
hearing of this, the panel scoffed, rolled their eyes and all agreed that
anyone with that type of feeling should not serve on the jury.
Amazingly, these same jurors later told interviewers how petrified they
had been of all the black people in the courtroom and in the halls. The
juror who advocates racial sterilization claimed that she would never again
stop in Orange, Texas, and that she did not make eye contact with anyone
in the courtroom as the verdict was delivered because there was a crowd
of angry people in the courtroom and I felt intimidated. She alleged
that the female jurors demanded to be escorted out by males, and that
the male jurors insisted on pairing up to leave. There was no anger in
the courtroom; there was immense sorrow. Such a normal emotion could
not be credited to those people, however.
This juror waited until after the trial to reveal that she was approached
during trial by someone from the African-American community, who
allegedly said, I just pray that you make the right decision. It was this
type of confrontation she feared the most a member of the defendants
family coming to me after the verdict and demanding an explanation for
their decision. Fortunately, it was not a member of the defendants
family who approached her; the juror simply assumed the worst, based on
the apparent supposition that all the black people around the courtroom
were related to him. The offending black person was either the paternal
grandmother or aunt
of the complaintant.7
Shortly after the U.S. Supreme Court handed down Miller-El, a Batson
issue was briefed in a death penalty case from Harris County, wherein the
State had struck a Hispanic juror in a discriminatory fashion. Pages upon
pages of the brief were devoted to the parallels between the States actions
in that case and those repudiated in Miller-El. The Court of Criminal
Appeals, in summarily disposing of the claim by way of misstating the
record, resolutely refused to even acknowledge the existence of MillerEl, much less to accurately address the issues.15
Although it is not unusual for the Court of Criminal Appeals to shirk
legitimate review of death penalty cases, the issue of racially biased jury
selection extends beyond an individual case and affects the right of the
states diverse citizenry to serve on juries. Texas should not be free to
avert its eyes from those portions of the Constitution it finds disagreeable
and pretend they are not real. Texas can no longer be permitted to
deny its citizens the threshold protections afforded citizens of more
enlightened jurisdictions.
Encouraging racially diverse juries has traditionally focused on the
constitutional right of minorities to serve as jurors and on the enhanced
information exchange that occurs among a heterogeneous group.16 As
Justice Marshall, a prime example of the benefits racial diversity can
confer upon a deliberative body, once wrote:
When any large and identifiable segment of the community is
excluded from jury service, the effect is to remove from the jury room
qualities of human nature and varieties of human experience, the range
of which is unknown and perhaps unknowable. It is not necessary
to assume that the excluded group will consistently vote as a class in
order to conclude, as we do, that its exclusion deprives the jury of a
perspective on human events that may have unsuspected importance in
any case that may be presented.17
While these remain valid concerns, there are far greater reasons to ensure
racial diversity on juries. Too often, both the defense lawyers who
strive to seat minority jurors, and the prosecutors who ruthlessly deny
them those seats, think in terms of a monolithic minority experience,
the defender h 11
assuming that a particular minority will think and vote as a bloc. Trial
experience teaches most of us that this is not the case. It is no more valid
to say that a black juror will always acquit a black defendant than it is to
say that a white juror will always vote to acquit a white defendant. By
operating on this assumption, however, prosecutors who exercise their
peremptory strikes in a racially discriminatory manner deprive themselves,
and the system, of the opportunity to bring greater legitimacy to jury
verdicts in criminal trials.
In a case like the one discussed above, with extremely marginal evidence,
the importance of having a jury better-equipped to engage in complex
decision making cannot be overstated. Interestingly, several of the
jurors interviewed mentioned their high degree of education and what a
harmonious group they made. Unfortunately, the high levels of academic
attainment did not translate into a sophisticated ability to analyze the
evidence presented.
The jurors have admitted that nearly all of them retired with an intention
Dr. Sommers study revealed that, by every deliberation measure examined, of returning a guilty verdict; two jurors thought it important to at least
heterogeneous groups outperformed homogeneous groups. [In this appear to discuss the evidence, which accounted for the four hours they
model, juries comprised of four whites and
spent reviewing a full five days worth of
two blacks were considered diverse; a onetestimony. They spent this time picking
discrepancies
person minority is not meaningful in that
apart details in an attempt to find some
different stories
it is token, particularly likely to remain
justification for what they had already
racial code words
quiet and succumb to group pressure, and
decided to do.
less likely to exert the consistent pressure
necessary to have an influence on the majority.18 Most criminal trial Two different white female jurors cited the fact that the bed upon
lawyers have discovered this phenomenon for themselves.] A summary which the accused had said he laid the child to perform CPR was
of the findings follows:
perfectly made, unlike it would have been if he had really tried to do
CPR, as evidence that he lied about his actions. A photograph of the bed
1. Diverse groups spent more time deliberating than did all-white shows that it was unmade and very messy. Clearly, this non-diverse jury
groups.
both processed data inaccurately, and failed to correct the inaccuracies
2. The diverse groups used this extra time productively, discussing a once they surfaced. As previously stated, the jurors also confused the
wider range of case facts and personal perspectives.
identities of the witnesses and completely misunderstood their relation
3. Diverse groups made fewer factual errors than all-white groups.
to the case. An in-court demonstration with a doll, explicitly explained
4. Factual inaccuracies were more likely to be corrected in diverse to be smaller than the actual size of the dead child, was ridiculed by
groups.
several jurors as being an effort by the defense to mislead them, or being
5. Racially heterogeneous groups had discussions that were more unconvincing. These well-educated folks apparently were somewhat
comprehensive and remained truer to the facts of the case.
lacking in imagination or in the ability to extrapolate.
6. Diverse groups were more open-minded, in that they were less
resistant to discussions of controversial race-related topics.
The jurors found many non-existent discrepancies in what they termed
7. Jurors were less likely to believe the defendant was guilty when they the defendants different stories, most of which were again factually
were in a diverse group.
inaccurate. One cannot help but conclude that, had a white male from
River Oaks been brought to trial on this same marginal evidence, this
Other trial analyses have supported the proposition that the greater the nearly all-white jury would have been much more forgiving. Instead,
proportion of whites on a jury, the harsher that jury tends to be toward the white male alternate juror deemed the accused to be like a pimp,
non-white defendants.19 But it is an oversimplification to conclude because he wore some suits this man did not find acceptable. Would this
that the effects of racial composition on decision making can be wholly have been the sobriquet applied to a white defendant whose clothing did
attributed to the differential information conveyed by white and black not meet his approval?
group members. When jurors were asked to submit individual, predeliberation verdicts, white members of racially diverse juries were less Although there is always the tendency to blame a questionable verdict on
likely to consider a black defendant guilty, even before any discussion had racism, especially in Harris County, that is not the point of this article.
ensued.20
The point is that, in trial after trial in this county, the State routinely
purges the panel of those few minority members who manage to show
Whoa Nelly! says the prosecutor. This is precisely why I strike blacks up for duty. If the defendant is Hispanic, adios to Hispanics. If she or
from the panel I want a guilty verdict, and I might be less likely to get he is African-American, toodle-oo to the African-Americans. Only white
one if I leave those people on the jury. But do we not always hear that defendants manage to emerge from voir dire with a jury that mostly
the prosecutions true job is to see that justice is done, not to simply reflects their own race, for better or for worse.
secure a conviction? If the States case is a righteous one, then it should
be able to stand the test of a racially diverse jury.
The Houston Chronicle recently reported on an employment
discrimination lawsuit filed by the EEOC on behalf of a black file clerk,
that alleges her white supervisors used racial code words to intimidate
the defender h 12
and harass her.21 The code word in this instance was supposedly an
infamous racial slur spelled backward. The EEOC referred to this and
other examples as a more subtle form of intimidation than the outright
use of such words.
It is difficult to think of a racially derogatory term spelled backward that
lends itself to subtle usage in everyday conversation, but it is a fact that
most people today, especially those with any pretense toward education
or socialization, do not employ inherently offensive words to express
prejudice against minorities. However, white people do not need to use
those words in order to convey certain opinions and conclusions they
believe to be shared by others of their kind.
racial justice might better serve by trading the uniforms for suits and ties
and coming inside the courtroom to see what really transpires.
We would all benefit from increased minority participation in the jury
pool, as well as community outreach that can educate potential jurors
about the issues and the dire need for their presence within those cabals
of twelve.
Meanwhile, we may as well run this ad in the newspaper:
WANTED:
QUALIFICATIONS:
When the white jurors talked of the Orange people, that culture,
and those people, they were being only a little less obvious than Roths
well-intentioned matron. Like her, they probably consider themselves
to be free from prejudice, totally open-minded toward other races and
ethnicities and completely unbiased in their dealings with people who are
different. Unfortunately, by living their insular lives in their homogeneous
suburbs, churches and families, they are depriving themselves of any true
insight into both their own attitudes and those of people outside their
tightly-regulated spheres. They think so much alike they do not have to
overtly communicate their racial beliefs.
A few of the white jurors expressed surprise that there had not been more
than one black juror to sit in judgment of a black defendant. These jurors
were left in ignorance as to the true reason they were forced to substitute
for the accuseds peers, lest an explanation be deemed an unethical
attempt to taint them for future jury service. But the loss was as much
theirs as it was that of the man on trial.
To date, neither the NAACP nor other activist groups have taken any
sustained interest in the systematic exclusion of minorities from Harris
County jury service. We periodically hear of efforts to increase minority
participation in the jury pool as a whole, but these never seem to develop
into real programs. The monitoring of capital voir dire is an area of
special need, as sometimes there exists a palpable aura of discriminatory
intent when the judge and the prosecutors reach a tacit understanding
that a particular juror will be dismissed.22 Rather than donning uniforms
and marching around outside the courthouse, groups concerned with
The author thanks Danalynn Recer and the numerous GRACE interns who
assisted in the trial of the case discussed herein, compiled data on the venire
and conducted post-trial interviews of the jurors who served. Their help was
invaluable.
Batson v. Kentucky, 476 U.S. 79, 106 S.Ct.1712, 90 L.Ed.2d 69 (1986). All of the defenses
objections pursuant to Batson were overruled.
2 It is widely recognized that supposedly neutral explanations for peremptory strikes which bear no
rational relationship to how a juror might perform her duty are obvious pretexts for discrimination. See,
Whitsey v. State, 796 S.W.2d 707, 713 (Tex. Crim. App. 1990); see also, United States v. RomeroReyna, 867 F.2d 834 (5th Cir. 1989) - rejecting a prosecutors claim that he struck a Hispanic juror
because he had a policy of striking any juror whose occupation began with the letter p. Additionally,
the States failure to question the woman about her profession weighs in favor of a finding that her
profession was a pretext for discrimination. Vann v. State, 788 S.W.2d 899, 904 (Tex. App. Dallas
1990). If the State truly had concerns about her ability to serve on the jury due to her occupation, it
would have questioned her in this regard.
3 He was arrested a month or so after the death, but was released for lack of evidence, despite the
fact that the autopsy had been completed, because the statement he gave was the same explanation
he had provided to 9-1-1 and when interviewed at the hospital; it remained the same throughout the
intervening years and during his trial testimony.
4 The defense was denied the opportunity to present crucial testimony, around which its entire strategy
had been designed, about the accuseds experience, treatment and behavior with other children, pursuant
to Tex.R.Evid. 404(a) and 405, explicitly allowing evidence of specific instances of conduct when the
defense injects his character into the trial.
5 The mother had two more children with the accused after the death of this baby.
6 This poor soul, painfully cognizant of his position as the only African-American on the jury, failed to
perceive his fellow jurors bias. Either he was unschooled in Caucasian code, or the others refrained from
voicing their observations during deliberations, each tacitly aware of the others feelings. He agreed to
find the defendant guilty, despite being only 75% convinced of his guilt.
7 Prior to trial, all defense family and witnesses were strenuously lectured on proper behavior at the
1
the defender h 13
the
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courthouse, since experience foretold that any disturbance would be blamed on them and that all
their actions would be viewed in the most negative light possible. Also, the family and witnesses were
continuously supervised by volunteers from GRACE. The black people in the courtroom throughout
trial belonged to the biological fathers family, as none of them were witnesses.
A few weeks after the trial discussed herein, a large crowd of Anglos camped outside this same
courtroom, rallying around an attractive young woman with long red hair, causing one to wonder
whether the jurors on the case cringed in fear as they passed by the unruly mob and lived in terror that
an Irish boogeyman would later track them down and punish them for their verdict. Of course, she may
have been a victim, thus blessed with the States imprimatur.
8 Batson, ante, 106 S.Ct. at 1728 [Marshall, J., concurring].
9 Ford v. State, 1 S.W.3d 691 (Tex.Crim.App. 1999) prosecutor claimed she struck a black juror
because she knew the defendants mother, but it was actually another venireperson who knew her.
10 Guzman v. State, 85 S.W.3d 242 (Tex.Crim.App. 2002). Under this rationale, a prosecutors strike
will be immune from Batson review if he states for the record that he struck a panel member because
he was a [insert racial slur here] as long as he added, and he was looking at me funny. The Texas
Supreme Court has declined to adopt the dual motive standard for civil cases [again, so much more
important than mere life or death for a criminally accused], holding that equal protection is denied when
race is a factor in counsels exercise of a peremptory challenge. Palacios v. Powers, 923 S.W.2d 489
(Tex. 1991).
11 Whitsey, ante, at 713 (Tex.Crim.App. 1989), citing Batson, 106 S.Ct. at 1723.
12 Houston Chronicle, Oreo line offends black prosecutors, Sec. A-1 (May 10, 1991).
13 Id., Oreo comment disservice to all, Sec. A-21 (May 11, 1991).
14 Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).
15 Jesus Flores v. State, No. 74,258 (Tex.Crim.App. Oct. 20, 2004) [unpublished], cert. denied.
This case provided excellent examples of the type of disparate questioning rejected by Miller-El, even
though the CCA ignored it completely. The prosecutors questions to white jurors consumed pages,
ending with a Do you agree?, while minority jurors were treated to abrupt queries like, Give us your
thoughts on the death penalty. White jurors were instructed endlessly on the applicable law before
being asked a question, whereas the minorities, especially Hispanics, were given no clue before being
asked to pronounce an opinion or analyze hopelessly obtuse scenarios.
16 Sommers, Samuel R., On Racial Diversity and Group Decision Making: Identifying Multiple Effects of
Racial Composition on Jury Deliberations. Journal of Personality and Social Psychology, Vol. 90, No.
4, 597-612 (2006).
17 Peters v. Kiff, 407 U.S.493, 503-04, 92 S.Ct. 2163, 2169, 33 L.Ed.2d 83 (1972). For a great
example of intra-racial diversity, contrast Justice Marshall with Clarence Thomas.
18 Sommers, S., ante, at 600.
19 Id., 598.
20 Id., 599-601.
21 Houston Chronicle, Racial code words draw lawsuits, Sec. D, p. 1 (Aug. 21, 2006).
22 Several years ago, during a high-profile capital trial involving a black defendant, these tactics reached
a particularly abysmal level. An African-American preachers wife, stronger than goats breath, was
dismissed because she might be influenced by her husband to go against death, even though she
repeatedly affirmed her own belief in the death penalty in an appropriate case. The black plant manager
for the entire M.D. Anderson system was deemed to be of insufficient intelligence to comprehend
the special issues. However, a young white dolt who lolled in his chair, chomping gum, giggling and
drooling, was readily accepted by the State [but not by the defense] and was treated with great deference
by the trial judge, who, despite his own personal claims of renowned racial liberalism, handled black
venirepersons and black witnesses with frigid contempt and disdain, while his tender concern for a white,
scumbag, multiply-convicted jailhouse snitch was so obsequious as to be nauseating. Fortunately, his
behavior contributed to a life sentence in a case widely considered to be a slam-dunk death for the
State.
to All
Judges
Trying
Criminal
Cases
Dear Judge:
Harris County
1201 Franklin
Houston, Texas 77002
the defender h 15
HCCLA Resolution
Regarding
revocation of
Bonds
the defender h 16
Although some judges may be of the opinion that a person who can afford
to make bond should be able to afford to hire an attorney, a person may
be too poor to employ counsel and yet not be completely destitute. An
accused may have some available funds, such as a few hundred dollars to
make bond, but not enough available funds, which can frequently amount
to thousands or tens of thousands of dollars, to secure counsel in view of
the nature of the charge pending against him. Ex parte Bain, 568 S.W.2d
356 (Tex. Crim. App. 1978). Similarly, a person may have been able to
make bond only because a friend or relative provided the funds. In any
event, it is equally well established that the ability to secure a bond is not,
standing alone, sufficient to warrant a refusal to appoint counsel. Harriel
v. State, 572 S.W.2d 535 (Tex. Crim. App. 1978). Cf Ex parte King, 550
S.W.2d 691 (Tex. Crim. App. 1977); Stearnes v. Clinton, 780 S.W.2d
216 (Tex. Crim. App. 1989) (the power of the trial court to appoint
counsel does not carry with it the concomitant power to remove counsel
at the court's discretionary whim); Buntion v. Harmon, 827 S.W.2d 945
(Tex. Crim. App. 1992) (once counsel is appointed, the trial judge is
obliged to respect the attorney-client relationship created through the
appointment).
Having a lawyer is a right provided by the Texas and United States
constitutions. It is not an obligation. While a represented defendant may
be easier for courts to deal with, being unrepresented is not, under any
circumstance, a justification for a judge to place a person in jail.
While some judges may be offended at the portions of the resolution that
call for grievances to be filed with the Judicial Conduct Commission, as
one potentially appropriate response, the only goal of this resolution and
its call to action is to end the practice of people being incarcerated for not
having an attorney. If the practice ends, then no grievance, mandamus,
or habeas corpus will ever be filed. If the practice does not end, then all
appropriate action must be taken. The Officers and Board of HCCLA
encourage its members as well as other attorneys across the State of Texas
to do everything reasonably possible to help end this despicable, illegal,
unconstitutional, immoral, and unethical practice.
Therefore:
Be it Resolved by the Harris County Criminal Lawyers Association
that consistent with its mission and goals, its members, associates, and
affiliates are encouraged, requested, and implored to take all reasonable
and necessary actions to end the unconstitutional, illegal, and unethical
practice by judges in Harris County, Texas and elsewhere of revoking the
bail bond of any person because such person has failed or chosen not to
hire an attorney.
Be it Further Resolved by the Harris County Criminal Lawyers Association
that reasonable, necessary, and appropriate actions may include one or
more of the following:
1. Immediately upon witnessing the improper revocation of a bail
bond on the basis and for the reason that such person has failed or
chosen not to hire an attorney, advise the judge in the presence of the
prosecutor that the act of revoking the bond of a person on the basis
and for the reason that such person has failed or chosen not to hire
an attorney is unconstitutional, illegal, and a violation of the Code of
Judicial Conduct.
2. Collect relevant information about the case, the citizen accused, and
the circumstances and, as appropriate:
A. Transmit that information to an Officer or a member of the
Board of Directors of the Harris County Criminal Lawyers
Association;
B
the defender h 17
the
defender
F ALL 2 0 0 6
motion
of the
a)
b)
c)
IN THE INTEREST OF
XXXXXXX,
A CHILD
d)
Respondent was charged with the offense of ______________ alleged to have taken place in Harris County, Texas on or about
_________.
Respondent appeared before this Court on _______, in cause number ________, for the offense of _____________, and was
[/adjudicated delinquent/the case was dismissed] by this Court.
4)
5)
6)
7)
Since the time specified above, Respondent has not been convicted of a felony or a misdemeanor involving moral turpitude or
found to have engaged in delinquent conduct or conduct indicating need for supervision, and no proceeding is pending which seeks
conviction or adjudication.
8)
[if juvenile passed for deferred adjudication, simply dismissed, or otherwise did not result in an adjudication, include the following:]
There was no adjudication in Respondents case.
9)
10)
the defender h 18
e)
School District
Houston, TX
f)
N.C.I.C.
c/o Federal Bureau of
Investigation
Ninth Street at
Pennsylvania Ave. N.W.
Washington, D.C. 20535
g)
T.C.I.C
c/o Texas Department of
Public Safety
Crime Records Service
5805 North Lamar
Austin, TX 78765
h)
Texas Department of
Public Safety
Crime Records Division
Attn.: Expungement
P.O. Box 4143
Austin, TX 78765
i)
Texas Department of
Public Safety
Statistical Services
Division
P.O. Box 4087
Austin, TX 78773
j)
k)
WHEREFORE, PREMISES CONSIDERED, Respondent requests that this Court set the matter for a hearing, and after such hearing and
upon the proper proof, the Respondent prays this Court will grant his Motion to Seal Records and order each official and agency named as
possessing records or files concerning the Respondent to send all files and records to the court, delete all index references to the Respondent
and send verification of the deletion to the court in the manner attached, before the 61st day after receiving the order, and to thereafter, upon
inquiry, state that no such record exists with respect to the Respondent.
Respectfully Submitted,
3)
11)
Charles Rosenthal
Harris County District
Attorney
Attn: Kris Moore
1201 Franklin, 6th floor
Houston, TX 77002
JoAnne Musick
Texas Bar No. 24000371
Musick & Musick, LP
363 N. Sam Houston Pkwy E., Suite 1100
Houston, Texas 77060
281-443-7747 (phone)
281-288-6884 (fax)
ATTORNEY FOR RESPONDENT
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing Motion to Seal Records was served upon ______________, _____________,
_______________on the _____ day of _____________________, 20___. [attorney should list and serve all agencies named]
____________________________________
JoAnne Musick
CAUSE NO. _________
IN THE INTEREST OF
XXXXXXX,
A CHILD
AFFIDAVIT OF
(Verification)
BEFORE ME, the undersigned authority, on this day personally appeared, XXXXXXX, who after being duly sworn, stated:
I am the person who is the subject of the above entitled and numbered cause and Motion to Seal Records. I have read the foregoing Motion
to Seal Records and swear that all of the allegations of fact contained in the motion are true and correct.
_________________________________
XXXXXXX
Subscribed and Sworn to before me on this _______ day of _______________, 20_____, to certify which, witness my hand and official seal.
_________________________________
Notary Public in and for the State of Texas
the defender h 19
IN THE INTEREST OF
XXXXXXX,
A CHILD
IT IS ORDERED that a hearing on the Motion to Seal Records is hereby set for ____________ a.m./p.m. on the _______ day of _________
__________, 20____, in the _____ District Court of Harris County, Texas.
_________________________________
Judge Presiding
_____ District Court
Harris County, Texas
CAUSE NO. _________
IN THE INTEREST OF
XXXXXXX,
A CHILD
ON THIS the ______ day of ____________________, 20_____, came to be heard Respondents Motion to Seal Records and it appears to this
Court that this Motion should be GRANTED.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that all files and records pertaining to XXXXXXX which are specific to any
record of arrest, adjudication, disposition, or charges brought against him in the above-entitled and number cause be sealed in accordance with
the provisions of 58.003, Texas Family Code. The identifying information of the subject of this order, XXXXXXX, is as follows:
Respondent:
Date of Birth:
Sex: Male
Race: Caucasian
Texas Drivers License:
Social Security:
AFIS:
Harris County Juvenile Number:
Houston Police Department Offense Report:
Each official or agency named in the Motion to Seal Records is ORDERED to immediately comply with this order and shall send to this Court
all files and records ordered sealed within 61 days of the date that this order is received.
Each official or agency named in the Motion to Seal Records is ORDERED to delete from its records all index references to the files and
records ordered sealed before the 61st day after the receipt of this order. Verification of said deletion shall be sent to this Court before the
61st day after the date of the deletion.
Each official or agency shall henceforth reply on inquiry that no record exists with respect to XXXXXXXs records made subject of this order.
Any official or agency that cannot send the records or delete index references because there is incorrect or insufficient information in the Order
shall notify this Court before the 61st day after receiving this Order. The Court shall promptly notify the Respondent or his attorney after the
Court receives the notice that the agency or official cannot seal the records or delete index references because there is incorrect or insufficient
information in the Order.
The Clerk of the Court shall send a certified copy of this order to each agency or official named in the foregoing Motion to Seal Records. The
adjudication, if any, entered by the _____ District Court of Harris County, Texas that XXXXXXX had engaged in delinquent conduct is hereby
vacated, and the proceedings therein are hereby dismissed and are to be treated for all purposes as if they never occurred.
Signed and entered this ________day of___________________, 20_____.
the defender h 20
_________________________________
Judge Presiding
_____ District Court
Harris County, Texas
Application
interested
in becoming a member?
HCCLA
f Promotes a productive exchange of ideas and encourages
better communication with prosecutors and the judiciary.
Applicant:
Mailing address:
Telephone:
Fax:
Email:
Website:
Firm Name:
Date admitted to bar:
Law school:
Professional organizations in which you are a member in good standing:
Type of membership:
r Student ($25 annual fee)
Date:
Signature of applicant:
Endorsement:
I, a member in good standing of HCCLA, believe this applicant
to be a person of professional competency, integrity and good
moral character. The applicant is actively engaged in the defense
of criminal cases.
Date:
Signature of member:
Member name:
WE
NEED
RECURRING WITNESSES.
YOUR
RECORDS!
PLEASE EMAIL IN PDF FORM TO
ndeborde@houston.rr.com
OR SNAIL MAIL COPIES TO
NICOLE DEBORDE
917 FRANKLIN, SUITE 550
HOUSTON, TEXAS 77002
IF QUESTIONS,
CALL NICOLE AT 713-526-6300
THE DEFENDER
P.O. Box 22773
Houston, Texas 77027
FALL 2006
PRESORTED STANDARD
U.S. POSTAGE PAID
HOUSTON, TEXAS
PERMIT NO. 11500