Tuesday, August 25, 2015

New Post at Fault Lines

I'm going to start doing better about posting a link over here to the Fault Lines blog whenever I post a new column over there.

If you aren't reading the columns over there, you are missing some great insights from some of the best legal bloggers in the country.  Check it out.

I did a new post this morning on some controversial opinions about addiction in an Op/Ed piece from Sunday's Washington Post.  You can read it by clicking here.

Thursday, August 6, 2015

Clappart's Warrant: Judge for Yourself

While much has been said, about Steve Clappart's warrant for the arrest of Cody Ray Ellis as an alternate suspect in the murder of Belinda Temple, it appears that David Temple's defense team has been reluctant to publish the warrant itself.  Additionally, many of the local media outlets, specifically the Houston Chronicle have decided not to delve into the details of it.

Let's take it page by page --


So, to be clear, in this document, Steve Clappart is attempting to have Capital Murder charges filed against Cody Ray Ellis.  For those of you outside of the legal field, Capital Murder can be punished only by Life in Prison or the Death Penalty.  By signing off on this warrant, Clappart is verifying that he is completely comfortable with this.

Clappart then goes on to explain how experienced he is as a police officer.  He also goes on and on about how experienced John Denholm was as a police officer.  This isn't necessarily abnormal, but it is pretty excessive for a standard warrant.  Clappart is basically just illustrating that he is writing the warrant at Denholm's behest, but it should make no difference, because they are both just amazingly experienced.

Clappart then goes on to state that Denholm got all of his information after being contacted by David Temple's lawyer, Dick DeGuerin.  This was what I criticized Lisa Falkenberg for being so ambiguous about in her article praising Clappart and Denholm.

On to Page Two . . .
Okay, so let's start with the fact that when John Denholm brings this case to Steve Clappart, all the research that he has done into this new "star witness" Daniel Glasscock is watch a video deposition of Glasscock that is conducted by David Temple's attorney, Dick DeGuerin.  As noted, based on solely having watched the video where Glasscock is questioned by a defense attorney, John Denholm has decided that the testimony is credible and David Temple is wrongfully convicted.

Um, okay.  

So, Clappart decided to watch the video deposition, too.  He also decides it is credible, and puts the details into the Probable Cause statement.

Let's breakdown what comes out of that deposition, shall we?  Basically, Glasscock is saying that he went over to Riley Joe Sanders house with a guy named Carlos Corro.  Corro tells them "things were fucked up in a robbery."  While at Sanders house, Glasscock joins a conversation between Corro, Sanders and Cody Ray Ellis, where he hears Sanders tell Corro "that the dog attacked him when he went up the stairs, he shot the dog, heard Belinda [Temple], put the dog in the closet and they panicked and ran."

Let's assume that Glasscock was telling the truth (which is a big assumption to make) and that he actually heard these words uttered by Sanders.  These words are still a far cry away from being a confession to Capital Murder.  This is an admission to shooting a dog, and then fleeing when they hear a person [alleged to have been Belinda Temple].  

Let's also look at the plausibility of this conversation taking place.  Glasscock states that he just wandered out of the bathroom as the three boys were standing around talking about committing a home burglary/animal abuse/capital murder.  Rather than stop the conversation, they keep on talking about it as if they were talking about an Astros game?  At some point, they throw in the name of Belinda Temple, presumably so Glasscock won't feel left out of the conversation?

Clappart notes that Belinda Temple's dog was not in her house at the time of her murder, rather it was closed in the garage.  Many investigators would have found this fact as evidence that Glasscock was not a reliable witness.  Inexplicably, the dynamic duo of Clappart and Denholm find that it somehow strengthens his credibility.

Page Three . . .

Although it isn't clear whether or not law enforcement or Dick DeGuerin had Daniel Glasscock polygraph tested, Clappart notes that Glasscock has shown No Deception to "all pertinent questions asked."  He doesn't list what those "pertinent" questions were, but okay.  He is clearly doing everything he can to portray how amazingly credible Glasscock is.

At this point, Clappart starts looking into the background of Corro, Ellis and Sanders and notes that Corro and Ellis (along with a third party) had been arrested two months after Belinda Temple's murder for criminal mischief.  He notes that Corro had been driving a white car during the criminal mischief and then points out that a witness had seen two white males "in an off-white or creme or light beige colored vehicle speed away from the area of the murder around 4:30 p.m. on the date of the murder."

So, I guess there are so few white cars in the world that this is somehow incriminating?  Not to mention, the witness seems clear that it wasn't a white car, but an "off-white or creme or light beige" vehicle.  To Clappart, this appears to be immensely damning.

Clappart also notes that Corro and Ellis had committed a burglary along with Casey Goosby, eight days before the murder.  He notes that the target of this burglary was Goosby's mother's boyfriend and was done in retaliation for him cheating on her.  He also notes that shotguns and jewelry had been taken in the burglary.  

I can actually see where Clappart could find this significant.  Burglaries in the area are certainly relevant.  Burglaries are also frequent, and the typical things taken in burglaries are guns, jewelry, electronics and cash.  Clappart then points out that Sanders (who was NOT part of the Goosby burglary) had a grudge against Belinda Temple.  

This seems to be a case of two plus two equalling five, in my opinion.  So, one of the Clappart/ Denholm suspects committed a burglary shortly before the Temple murder and a different one of them had a grudge against Belinda Temple.  If we combine the two, does that point to Capital Murder?

On to Page Four . . .
 Clappart then moves in a strange direction with the warrant, by interviewing Riley Joe Sanders' ex-girlfriend, Niki Biondi Lundes.  Clappart finds some level of significance in the fact that in 1999, Lundes was reluctant to admit that Sanders was her boyfriend.  I'm not sure what that has to do with anything.  Lundes tells him that Ellis, Corro, and Sanders were associates and that they had committed crimes together before.  I don't know that this was really in question.  More significantly, Lundes tells Clappart that Belinda Temple had been a tutor to Sanders on difficult subjects, and that Sanders called her the night of the murder, crying because he had heard Belinda Temple was dead.

Clappart then returns to shoring up his "star witness", Daniel Glasscock.  He interviews Glasscock's father, who states that Daniel had told him about the information he had overheard Corro, Ellis and Sanders talking about.  Mr. Glasscock said that his son had been threatened about not talking, but he encouraged his son to talk to the police, anyway.  Mr. Glasscock said that Daniel ultimately talked to his minister, Jeff Adams, who had also told Daniel to tell the police.

I'm not really sure of the significance of this either?  So, Mr. Glasscock can offer some hearsay evidence about something his son told him he heard?  Maybe Clappart is going for some bolstering here, but I don't understand why it is in the warrant. 

Page 5 (we're almost done here) . . .


Clappart states that he personally interviewed Glasscock on July 16, 2012, and points out that (just in case anyone forgot), he, Clappart has been a police investigator for 44 years.  He points out his experience before deeming Glasscock to be "very credible."   I've read hundred of warrants in my career, but I've never seen this level of Credibility Gymnastics ever put into a warrant.  The reason Clappart is working so hard to make Glasscock seem credible is pretty apparent once Glasscock starts talking.

Glasscock tells Clappart of his own life of crime, but how now he is reformed and teaches gymnastics for children.  He confirms the information from the deposition he gave to Dick DeGuerin.  He recalls coming out of the bathroom at Sanders' house and finding Corro, Sanders and Ellis smoking on the back patio, talking about "shit was fucked up."  Glasscock tells Clappart "'they had broke in the next door neighbor's house' and later in the interview said that Sanders was very panicky and told Corro that they had shot the dog and put it in the closet."

Here's where things get even more ridiculous.
"Your affiant said that Daniel Glasscock then told your affiant that 5 or 6 months ago, Glasscock had learned that the dog had not died and that it was Belinda Temple's body that was found in the closet . . ."
Wait, what?

Clappart is interviewing Glasscock in July of 2012.  The murder happened in 1999.  Glasscock stated that he just learned of the murder in January of 2012?

Hang on, Glasscock has an explanation:
"Glasscock told your affiant that one night in May 2012 he could not sleep and woke up and turned on the television and was flipping through the channels when he saw a television program on the Temple murder and then recalled what he knew and what he had heard and began to think about what it would be like if Glasscock's father was in prison for a crime that he did not commit."
Well, I guess if you put it that way, it makes perfect sense, right?

Finally, Page 6 . . .



So, to summarize, Glasscock, an ex-criminal (per the warrant) didn't know about the murder for twelve years, sees a TV show, remembers an obscure conversation from twelve years earlier, and contacts a convicted murderer's lawyer with some new information about shooting a dog.

Yep, that's what Capital Murder warrants are made of, according to John Denholm and Steve Clappart.

Upon reading the entirety of the warrant, it should become obvious why Temple's team didn't want it published.  It should also become obvious why no judge in the courthouse would sign it.  


It should also be noted that no prosecutor in the District Attorney's Office, other than Jim Leitner thought it was should be signed.




But, then again, Leitner was having the Office recuse itself in favor of Brad Beers -- who had been Steve Clappart's attorney.  That makes it more fair, right?

If you're a prosecutor reading this, would you have taken Capital Murder charges based on that information?

If you're a judge, would you have signed the warrant?

And if you're a defense attorney, what would your reaction be if your client got arrested on a warrant like that?



Monday, August 3, 2015

The Denholm and Clappart Column

For those of you who have subscriptions to the Houston Chronicle, you may have seen that Lisa Falkenberg had a column yesterday morning praising defense attorney John Denholm and his friend, former Harris County District Attorney's Office investigator, Steve Clappart.  In a moment of very dramatic titling, the headline reads "Former officers saw through evidence, sought truth in Temple case."  ( NOTE:  Unless you have access to the Chronicle's premium content, I don't believe you can read the full article online.)

I talked to Lisa on Friday about the article and gave her my thoughts about Clappart and Denholm.  Although Lisa is a friend of mine, this was one of those many moments where we agreed to disagree.  I've read her article a couple of times now, and I think she misses the mark on many, many points.

To be clear (again), I am very biased on this topic.  John Denholm and I are not friends and we don't care much for each other (to put it mildly).  I used to be friends with Steve Clappart and I like him as a person, but his actions on the Temple case have made me question his judgment.  That being said, I still fail to understand what the big contribution was that Clappart and Denholm are alleged to have provided to the Temple investigation.

Clappart and Denholm were chomping at the bit to get a young man arrested for Capital Murder based on the word of a guy named Daniel Glasscock.  As I pointed out in this post and this post, in 2012, Glasscock had a "sudden memory flashback" to a conversation he had overheard in 1999.  In that decade old memory, he seemed to recall having overheard three of his then-teenage friends talking about killing a dog and throwing it in a closet during a burglary.  Clappart and Denholm surmised that they were really speaking "in code" about the murder of Belinda Temple and tried to get a Capital Murder warrant signed against one of the teens.

No judge in the Harris County Criminal Justice Center would sign that warrant.

In Judge Gist's (now infamous) findings of fact on the Temple case, he specifically rejected Glasscock's testimony as being inconsistent and not credible.  So, although Denholm and Clappart are getting a very large column on the front of City/State section of Sunday's Chronicle, Gist's findings dismissing their findings are never mentioned.

Despite this invalidation of their investigation, the column treats Clappart and Denholm as tragic heroes who lost friends and colleagues for their dogged pursuit of justice.  The article claims that they were ostracized for daring to question the ruling by "Siegler loyalists."

It is very true that Denholm and Clappart lost friends and were ostracized by former co-workers.  A detective I know mentioned to me a few weeks ago that he doubted the Sheriff's Office could "drum up enough people to carry a casket" for Denholm.  However, stating that they earned these feelings simply because they went against Siegler loyalists is simply false.  It was the way they went about it that earned them the distrust and alienation that they now lament.

Despite the animosity between me and Denholm, I actually identify with his motivations in several aspects.  He was a law student (as well as a Lieutenant with the Sheriff's Office) when Kelly Siegler asked him to take part in a mock trial as she prepared for the Temple case.  Like any law student would be in that situation, he was motivated to do a good job and dazzle the Office's best prosecutor with his skills.  As noted in Lisa's article:
"Denholm told Siegler her case had problems.  Her response, according to Denholm's sworn affidavit, was that most of his questions were improper and she would have objected to them anyway.
"'You know, to me,' Denholm says, 'if it's about procedure and not justice, that's a big problem right there.'"
Well, that's a bit disingenuous, isn't it?  Kelly told him that many of his questions were objectionable and, in her opinion, inadmissible, and he had a problem with that?  I understand the hubris of being a law student in a mock trial.  Trust me, I do.  Those pesky rules that keep us from making the points we want to make, however, are the Rules of Evidence that we have to follow.  With all of the allegations being hurled at Kelly Siegler right now, I think it is kind of ironic that Denholm would make such a statement.

Lisa's article goes on to point out how Denholm bashed his fellow detectives for their shoddy work on the Temple investigation.   It does not point out, however, that he told Kelly Siegler and his co-workers he would have gotten a confession out of Temple, if he had been running the investigation.  Denholm's surprise that he is no longer beloved by his brethren at the Sheriff's Office is amusing -- everybody loves a co-worker who tells you how much better he is than you!

Denholm was very proud of the job he felt he had done during the mock trial.  As he transitioned from Homicide Lieutenant to defense attorney, he was not shy about telling people of how he had made short work of the State's case during a mock trial on David Temple.  Nobody faults him for that.  When you are a defense attorney in private practice, you should be able to proclaim your courtroom prowess.  That's just good business.  I would have done the same in that situation.

Eventually, Denholm's tales of his mock trial skills got back to Temple's trial attorney, Dick DeGuerin.  DeGuerin, who believed Temple's conviction and subsequent Life Sentence were wrongful had a golden goose with Denholm.  The Harris County Sheriff's Office's Homicide Division had investigated the murder of Belinda Temple, and here he had a former Lieutenant of their own Homicide Division talking about how insufficient the evidence was.

Lisa's column is highly ambiguous about Denholm came to be involved in the re-investigation into the Temple case.
"Years later, in 2012, Denholm heard that a new witness had emerged, someone who'd overheard one of the youths confessing to the murder."
Hmm.  I wonder how Denholm heard that.  You don't suppose Dick DeGuerin called him up, by any chance, do you?

Don't get me wrong -- DeGuerin was doing what a good defense attorney should do.  He was capitalizing on a person who had the pedigree to give his client's innocence claims a higher level of credibility.  He would have been a fool not to contact Denholm and ask for his help.  However, Lisa spinning it like Denholm was just sitting around stewing over the injustice done to David Temple is misleading.

And stating that the one of the youths was "confessing to the murder" is an outright lie.

Enter Daniel Glasscock -- the witness who allegedly overheard someone confessing to a murder.

In 2012, thirteen years after the murder of Belinda Temple and five years after David Temple's conviction for that murder, Glasscock came forward after having his memory "jogged" by a television show covering the murder.  Glasscock was claiming that he had forgotten about a conversation that he had overheard thirteen years earlier between three friends of his.  Glasscock stated that he had only learned of Belinda Temple's murder in 2012.  The conversation he was now remembering was one where the three friends admitted to burglarizing a house, shooting a dog and throwing it in the closet.

Under DeGuerin and Denholm's belief, Glasscock's information was a confession to the Capital Murder of Belinda Temple.  (NOTE:  If you agree that this was, in fact, a confession to a capital murder, then you might as well stop reading now.)   Pretty much everyone else (outside of David Temple's circle of supporters) thought that was the biggest stretch of logic that the Harris County Criminal Justice Center had ever seen.

Let's take a moment and pretend that instead of Glasscock's highly attenuated story, DeGuerin had come across a story that had more teeth to it.  Tweak the facts of Glasscock's testimony just a little bit and pretend that instead of hearing his friends admitting to killing a dog, he overheard them admitting to actually killing Belinda Temple.  Don't you just know that DeGuerin would have bypassed Denholm and gone straight to the media?  He would have had Glasscock interviewed in an exclusive news story and made sure there was an outpouring of support to have David Temple released from his Life Sentence.

But the reality is you gotta dance with who brung ya, and at the end of the day Glasscock's story was a steaming pile of crap.  Denholm was an experienced Homicide detective and he knew that.  That's why he pitched it to the only person who might indulge this incredible stretch of a story -- his dear friend of 20 years, Steve Clappart.  As I mentioned in the earlier blog posts, Clappart shopped the new information to Jim Leitner, who wanted it kept quiet -- a strange position for the 1st Assistant to a District Attorney that had campaigned on transparency.  One of the lesser publicized portions of Kelly Siegler's transcript during the Temple hearing was when she spoke of Clappart calling her on her cell phone, crying, and saying that Leitner and DeGuerin were forcing him to look into the Glasscock story.

After I ran a blog post exposing the secret investigation, Leitner decided a Special Prosecutor was needed.  The District Attorney's Office passed the investigation off to Brad Beers, who had once been Clappart's lawyer when Clappart "had been the subject of what he calls a couple of baseless accusations of wrongdoing."  Team Temple did not see any conflict of interest or anything wrong with that.  I wonder if they would feel the same if Devon Anderson recused the Office from Temple now and appointed me as a Special Prosecutor now.  I'd be glad to help out!

Clappart and Denholm sang "woe is me" over how many friends that they lost because of the Temple investigation.  Those damn Siegler Loyalists are a bitter bunch of people, right?   Lisa's column painted a vivid picture of misunderstood law men with the courage to go against the grain in their unbending pursuit of true justice.
"'Someone blew this woman's head off,' Denholm says.  "Why wouldn't you want to find him?"
To the prosecutors and Sheriff's deputies who worked on the case, "this woman" was a pregnant mother named Belinda Temple and they very much wanted to find who did it.  As a matter of fact, they believe strongly that they did find who did it -- her husband.  A jury agreed in record time and now David Temple sits in prison.

The lack of respect and friendship that Clappart and Denholm are experiencing now isn't because they "went against the grain."  It is because they tried to use such a weak story to free a convicted killer.  The fact that they were going about it through back channels made it all the more distasteful. The fact that they were willing to let somebody else go down on a Capital Murder charge for it is terrifying.

Whether or not David Temple gets a new trial will be up to the Texas Court of Criminal Appeals, of course.  They have many things to mull over.  The information provided by Denholm and Clappart is not something that is likely to be a factor in that.  Judge Gist was quite clear that the newly found Glasscock information was not reliable.

Apparently, the folks at the Chronicle haven't been very interested in hearing any other side to the David Temple story, unfortunately.  That's not surprising, since it is run by an editorial board that took it upon themselves to run an entire editorial dedicated to bashing Kelly Siegler with the ridiculous accusation that she intentionally prosecuted an innocent man just to get a television show.  Apparently the idea that Kelly prosecuted David Temple because the evidence showed he murdered his pregnant wife was not something the Chronicle editors were interested in examining.

To my knowledge, neither Lisa nor Brian Rogers has interviewed anyone from the Harris County Sheriff's Office, the Harris County District Attorney's Office, or Belinda Temple's family about their perspective on the case.  I know that none of the concerns that I shared with Lisa on Friday managed to make it into the article.

When I talked to Lisa, she did ask me what would be the incentive for former Homicide guys like Denholm and Clappart to do what they did on the Temple case.  I told her that Dick DeGuerin was a highly respected defense attorney who was considered one of the best (if not THE best) in Houston and Texas -- being in his good graces had benefits.

Having a Sunday morning Houston Chronicle article painting you like God's gift to criminal justice is a pretty good benefit too.

It makes for a better story that way, I guess.

Tuesday, July 28, 2015

Ed McClees' Going Away Party



My friend and (much skinnier) stunt double, Ed McClees, is leaving the Harris County District Attorney's Office this week to join the private sector.  His departure is a huge loss to the Office.  Ed is one of the most well-liked and highly respected prosecutors they have, as well as being an outstanding trial lawyer.  He's also one of the funniest guys I know, and he seems to have more than a passing knowledge of SEC football.

The Office's loss is going to be the Defense Bar's gain.

There will be a going away party for Ed on Thursday, July 30th at 5:01 p.m. at the OKRA Charity Saloon at 924 Congress Avenue.  All are invited.


Monday, July 27, 2015

The Houston Fire Department is Awesome

I was walking to my car from my office this morning when I came across two people standing over a person laying on the sidewalk.  We were at the intersection of Prairie and Fannin, which is a fairly crowded area, yet only two people seemed to have found a person sprawled out on the ground to be a reason to stop.

The man on the ground appeared to be in his mid-twenties.  He was laying on his right side, and in the fetal position.  His eyes were open, but not moving nor blinking.  Other than the fact that his rib cage was moving ever so slightly, he appeared to be quite dead.

When I walked up, one of the two people who had stopped was just getting off the phone.

"Did you call 911?"  I asked.

"Yes," he said.  "I was walking right behind him when he just went down."

I tried shaking the guy by the shoulder.  He didn't react in the slightest.  He was wearing a medical bracelet of some sort.  I looked at it, but it didn't have a name on it.  I shook the guy by the shoulder again, and he didn't move.  I could tell by his appearance that he was homeless.

I moved my finger in front of his eyes, and there was nothing.

I mean nothing.

I was glad that he was still breathing, and also (embarrassingly) relieved that I didn't know CPR.  If he hadn't been breathing, I would have been in a real moral quandary over performing CPR on the guy.  As it stood, I had pretty much used up all of my medical training.

Within a few minutes, a fire engine pulled up with a crew of three men and one woman.  They reacted swiftly and calmly.

"Oh," said one of them.  "It's him again."

"You know him?" I asked.

"Yep," he replied.  "See the bracelet?"

As one of them began unpacking their equipment, the Captain leaned over the downed man and tried to get his attention.

"Hey," he said.

I'm not trained in CPR, but I think I also said "Hey" when I was trying to wake the guy up, too.

The Captain then made a fist and started rubbing it on the downed man's chest.

The downed man started moving around like my 20 month old when I tickle him.  I'm pretty sure that he was growling, too.

They put an oxygen mask on the guy and the Captain kept doing that thing on his chest every time the man seemed to slip back out of consciousness.  Soon, they had him sitting up.

I asked another one of the firemen if I needed to stick around for any reason -- I was on my way to the jail to visit one of my misunderstood clients.  He told me "nah" and I left as the ambulance was arriving.

It wasn't that dramatic of a moment, I guess.  Fire Fighters rush into burning buildings and do heroic things on a much more epic scale quite frequently.

But seeing the confident and competent way those three men and one woman handled the situation impressed the hell out of me.

Sometimes it's the small things that serve as nice reminders that there are people out there to to help pick you up when you fall down.

No matter who you are.

Monday, July 20, 2015

That Awkward Moment . . .

. . . when you are complimenting yourself on your own blog post and forget to change your on-screen identity . . .

Thursday, July 16, 2015

The Flip Side of the David Temple Findings

While much has been said about the findings of fact in the David Temple hearing, there seems to be a couple of items that haven't been fully explained by mainstream media.  Contrary to some of the early headlines by the Houston Chronicle, the findings by Judge Gist don't automatically mean that David Temple is getting a new trial.  What Gist has basically written is his evaluation of the hearing and the earlier trial as a summary to the Court of Criminal Appeals.  The Court of Criminal Appeals does have the power to overturn the case, but they also have the power to disagree with Judge Gist's findings.

It could be several months before the Court of Criminal Appeals reaches that decision.

In the meantime, Temple's attorneys, Casie Gotro and Stanley Schneider, have approached District Attorney Devon Anderson and requested that she agree that Temple should be granted bond while awaiting the Court of Criminal Appeals' decision.  Although the law does provide that the D.A.'s Office could agree to a bond during this waiting period, there is nothing that demands they do so.   Anderson declined to agree to a bond, which sent Ms. Gotro and Mr. Schneider into a screaming tizzy.  They held a press conference at Stanley's office, demanding that the District Attorney's Office recuse itself from the Temple case.

Now, I'm a little bit curious.  Did they want the D.A.'s Office to recuse itself before or only after Anderson refused to agree to a bond on Temple?  I mean, if they thought Anderson was cool enough to approach about a bond, did they only change their opinion when they didn't get their way?

And who exactly do they think would be an acceptable Special Prosecutor if they don't want Harris County?  I'm just going to go out on a limb here and guess that Gotro and Schneider want it to be a defense attorney running that prosecution.  They objected to the first couple of judges to try their hearing, so it would probably be expected that they would be pretty choosy about who they got for a prosecutor.  I would imagine that if Anderson did decide to pass the case off to, say, the Montgomery County District Attorney's Office, that Gotro and Company would pitch a fit.

But, see, here's the deal -- Defense Attorneys don't get to pick and choose who prosecutes their cases.  Trust me, if they did, there would be many prosecutors dying of loneliness because nobody wanted them on their case.  As Gotro and Schneider have now taken their case to the media via press conferences and Gotro's highly bombastic Twitter account, I still haven't seen any compelling reason why the Harris County District Attorney's Office should just hand the keys to the courthouse over to the Temple defense team.

While everyone has focused on Gist's findings as they relate to Kelly Siegler, most have failed to notice a couple of other points from the findings.  Specifically, the fact that Gist found that Temple's "newly found" star witness, Daniel Glasscock, wasn't credible.

You remember Mr. Glasscock, don't you?  I wrote about him back in 2012 in a blog post entitled "David Temple and the Dereliction of Duty."  Now, the fact that I wrote that blog post along with this one and this one earned me a little time on the stand in the Temple hearing, too.  I testified for several hours about the blog posts, my education, my marriages, and my salary for working on Cold Justice.  In that blog post, I basically accused Jim Leitner of doing whatever he could to help Dick DeGuerin get the Temple verdict overturned.

I specifically accused him of allowing then-District Attorney Investigator Steve Clappart to run a covert investigation on some "exculpatory evidence" that Clappart's friend (former Harris County Sheriff's Office Homicide Lieutenant and current Defense Attorney) John Denholm had discovered.  That newly discovered evidence came from Daniel Glasscock.  This is what I wrote in 2012:

Clappart has been shopping around a warrant for the arrest of the (then) teen for the Capital Murder of Belinda Temple.  He cites the testimony of a new witness [Glasscock] who, per the warrant, had only learned of Belinda Temple's death (which happened in 1999) only "5 or 6 months ago."  Furthermore, that "Smoking Gun" evidence that this new witness has involves him overhearing one of the three (then) teens admitting to shooting a dog during a burglary and throwing it in the closet.

Yep, you read that right.

There isn't some new confession to the murder of Belinda Temple.  There's the confession of shooting a dog that Clappart and Denholm would like to extrapolate into a Capital Murder warrant.  There are no fingerprints.  No DNA.  No confession.  Yet a licensed peace office and a former licensed peace officer would like a judge to arrest someone for Capital Murder because he stated that he once shot a dog.
Now, apparently the fact that I wrote that blog post back in 2012 really offended Ms. Gotro.  She took to the Twitter airwaves with this:

The only problem with that was that what I wrote wasn't a lie.  How do we know that?  Well, ironically, we know that thanks to everybody's favorite lovable lunatic, Don Hooper.  Don decided it would really put me in my place if he ran a transcript of my testimony, as well as the testimony of Jim Leitner's during the hearing.  I'm actually thankful to him for doing so.  If you want to read them, here they are.  Mine is pretty much just me pontificating on why I thought the way Leitner was handling the investigation was wrong.

However, Leitner confirms pretty much everything I accused him of:

  •     On pages 11 & 12, he confirms that early on in the Lykos Administration, he was approached by DeGuerin and Schneider about reviewing the Temple case.  He confirms that he had the Temple files brought to his office.

  •    On page 15, he acknowledges that he didn't want Roe Wilson, the head of the Writs Division, to supervise the Temple investigation.

  •    On page 16 & 17, he begins talking about how Steve Clappart came to him with the "newly discovered evidence" on the Temple case.  Here's where it gets kind of funny.  Leitner then says:

"So I didn't know if somebody set me up to put something in Murray's blog or something else again, so I said "Wait a minute, Steve," and I believe it was right then and there when he in the office, I called -- I believe I called DeGuerin or I called DeGuerin's office and said, "I have just been told that there's evidence that has to be Brady evidence that exists in the Temple case.  I want you and whomever you want to be with you to come to the DA's office so we can sit down and as they line it out to me, they're lining it out to you at the same time, so nobody can ever say that I've kept anything from you that's Brady."
Um, okay.  So apparently, my blogging skills back in the day were so powerful that whenever someone spoke to Jim Leitner, he assumed it was some kind of trick that I had initiated.  Setting aside how hysterical that is, am I the only person here who finds it a little unusual that the second Clappart says a word to Leitner about a case (that Leitner just so happens to coincidentally have in his office), that the 1st Assistant of the Harris County District Attorney's Office stops EVERYTHING to call Dick DeGuerin?


  •    On page 18, he acknowledges that he wanted Clappart's investigation kept quiet, so he intentionally kept it away from the Conviction Integrity Unity, who should have had jurisdiction.


  •    On page 105, Leitner begins talking about how Steve Clappart had written an affidavit for an arrest warrant for an individual named Cody Ray Ellis. [NOTE:  This is where the information from Glasscock comes in.  Glasscock said he remembered a conversation from 12 years earlier where Ellis and some others had talked about breaking into a house and shooting and killing a dog."  Not a woman.  Not Belinda Temple.  A freaking dog.]


Leitner's response to Clappart's ridiculous warrant is frightening:

"I have read it and you asked me to look at that, and in my own honest opinion, if I had been a judge, I would have probably signed the warrant."[p 110 & 111]
Just so we are clear here, Leitner has just now admitted that if Clappart had brought him a warrant saying that he heard from a dude who heard it from another dude that a dude shot a dog, he would sign a warrant for CAPITAL MURDER, despite the fact that somebody else was already sitting in prison for that very same murder.

Are you freaking kidding me?  Mental note:  don't vote for Leitner for judge!

I know the Defense Bar is celebrating Gist's Findings of Facts and his recommendation for a new trial right now, but is the Defense Bar really thinking that is sufficient for a Probable Cause for a Capital Murder warrant?  I mean, seriously.  Throwing out some good old fashioned reasonable doubt on a case is one thing, but Clappart and Denholm wanted to go arrest somebody for Capital Murder!

As noted above, Gist found that Glasscock was not credible and noted, "Glasscock substantially varied the facts originally given to Trial Counsel.  In substance, Glasscock repudiated the most important details to the extent that his future credibility as a witness is significantly impaired."

I guess it's a good thing Clappart couldn't find a judge who would sign an arrest warrant on Cody Ellis, isn't it?  Turns out their star witness in that super secret investigation was full of crap.

None of that slowed Clappart and Denholm down from showing up at Gotro and Schneider's press conference though.


So, despite the press conference and Ms. Gotro's warpath on Twitter, it shouldn't really be surprising that Devon Anderson won't agree to a bond on David Temple.  From the prosecutorial perspective, they don't believe that they have the wrong guy in prison. 

At the end of the day, they believe that the person who cornered a pregnant Belinda Temple in her own closet and shot her in the head with a shotgun was her husband, David Temple.  

As much as Ms. Gotro and Mr. Schneider would like for you to believe that David Temple is the next Anthony Graves or Michael Morton, the Harris County District Attorney's Office does not agree -- nor do they have to.

As I said before, whether or not David Temple gets a new trial remains to be seen.  The Court of Criminal Appeals does not have to accept Judge Gist's findings.  If they review the record and concur with Judge Gist's findings, then he most likely will receive a new trial.

If he does get a new trial, a prosecutor with the Harris County District Attorney's Office will most likely be trying it.  Although I'm sure Ms. Gotro and Mr. Schneider would like designate their own prosecutor, they know better than to think that would ever happen.  

That's just not how the System works.





Monday, July 13, 2015

Kelly Siegler and the Temple Decision

Over the past several days, I have been contacted many times by many people -- on the blog and off the blog -- wanting to know when I was going to write something about Kelly Siegler and the David Temple decision.  I have steadfastly declined because I am entirely too biased to write anything.

Although the Criminal Justice world is currently bashing Kelly, she remains one of the best friends I've ever had in my life.  She is an altruistic friend whom I've known for eighteen years.  She's been around for some of the worst times and best times of my life.  She is truly like the big sister that I never had.

If there is anyone who thinks that I would ever turn my back on a friend who has meant that much to me and my family, they clearly should reevaluate what the meaning of friendship is.

For those of us who know and love Kelly, regardless of what anyone else is saying, it is painful to listen to the things being said about her.

I'm sure that the mere fact that I dare to say anything positive about my friend will unleash a storm of additional outrage from those who were plenty outraged to begin with.   I'm sure that my loyalty to the defense attorney profession will be called into question by those same people -- they tend to do that when they don't agree with me.

But Kelly Siegler is one of the best people I know, and nothing that her critics say about her will ever change that in my opinion.

Tuesday, July 7, 2015

A New Blogging Opportunity

I was recently invited by my friend, New York attorney and blogger, Scott Greenfield, to become a contributing blogger to a new project he has begun called Fault Lines.  The project incorporates several different attorneys from around the country who write about trending topics and news stories in the Criminal Justice arena.  He invited me because I'm semi-literate and can hopefully draw on my experiences from my prosecutor days for a different type of perspective.

Followers of this blog know that I don't normally comment on national news stories here, sticking to what I know best: Harris County Criminal Justice.

However, the opportunity to work with Scott on a project is too good to pass up.  He is the preeminent criminal law blogger and I'm honored to be invited.

And I'm not just saying that because he bought me a beer once at Char Bar.

So, here's my first shot at it.  I hope you'll contribute to the discussion over there.

Wednesday, June 17, 2015

Hard Core, Right Wing Idiocy

As most of you know by now, former Burleson County District Attorney Charles Sebesta was disbarred last week for hiding exculpatory evidence in his Capital Murder prosecution of Anthony Graves.  For those unfamiliar with this sad story, Anthony Graves spent 18 years on Death Row after being prosecuted by Sebesta.  The 5th Circuit overturned his conviction because Sebesta withheld exculpatory evidence and Kelly Siegler was ultimately appointed as the Special Prosecutor to retry Graves.  After reviewing the evidence, Kelly publicly stated that Graves was an innocent man and dismissed the case against him.

The story of Anthony's case is well documented.  It was covered by CBS's 48 Hours and was the subject of several articles (see here and here) by Texas Monthly's Pamela Colloff.  Sebesta responded to his earned public bashing by creating his own website, where he simultaneously defended himself while blasting Kelly Siegler and insisting upon Anthony Graves' guilt.  In April of 2011, I posted this article on him in response to his website.  Sebesta quickly became the poster child for the dirty, evidence-hiding prosecutor.  Ultimately, I think Charles Manson had more supporters than Sebesta.

His disbarment last week was something that was regarded as a small but very righteous event that everyone could support.

Right?

Well, apparently not everybody.

On Tuesday, it was brought to my attention that my article on Sebesta had been cited in this article by columnist Rachel Alexander of the conservative website townhall.com.  Just the title of the article "The Left Disbars Another Conservative Prosecutor" was enough to make me do a double take.  The idea of me being labeled as a leftist member of the media gave me a case of the giggles.  Her statement,  "Most accounts don't attempt to say that Graves was innocent," was just ridiculous.

So, I took to the Twitterverse to engage Ms. Alexander in conversation.  Hilarity ensued.


Seeing that Ms. Alexander's response was clearly well-thought out and not at all silly, I decided that Pamela Colloff might enjoy Ms. Alexander's musings.



And then we started really arguing.



The argument went from bad to worse.


So, um, she left out the fact that the Special Prosecutor (who was arguably one of Texas' most aggressive prosecutors) said that Graves was innocent because she "didn't think it was highly relevant" and then follows it with "We all know she really didn't think that."

Yes, because we all know that Kelly Siegler is constantly saying things that she doesn't mean . . .



At this point, I know I should have disengaged.  Ms. Alexander was clearly immune to logic.  But them Pamela Colloff joined in and it was too entertaining to walk away.  

And then Pamela delivered the message that I should have just realized before even engaging with Ms. Alexander.


I had actually started off the Twitter-dialogue with Ms. Alexander in hopes of showing her what Charles Sebesta really was and pointing out to her that even the most conservative ideology wouldn't support what he did.  Clearly, I failed in that, but it did make for an entertaining afternoon.













Saturday, June 6, 2015

Sharing a Little History

I was 17 years old and a Junior at Bryan High School in November of 1989.  I was a pretty boring kid, for the most part.  I didn't drink.  I didn't smoke.  I didn't do drugs.  I usually came home long before my curfew.  I guess it was due to that same boringness that my parents signed off on letting me do the biggest adventure of my high school career.

On Wednesday, November 8th of 1989, my friends Marshal Crenshaw, Chris Wiseman, Brandon Pillans, Andy Winn, Brandon Crowe and I all borrowed Mrs. Crenshaw's mini-van and were allowed to drive from small-town Bryan, Texas to the big city of Houston to see the Rolling Stones play the Astrodome as part of their Steel Wheels concert tour.  Somehow, even though I was far from a good driver and I had never driven in Houston, I ended up being selected as driver.  Let's just say that was probably where my longstanding hatred of Houston METRO buses was born.

Because I was such a terrible driver and had no idea where I was going (in the days before Apple Maps and Waze), we got there a little later than anticipated, and the opening act of Living Colour had already begun.  Luckily, we got there in time to hear them play Cult of Personality and Glamour Boys as well as a lot of other songs that were pretty awesome, too.  They rocked it out on a great performance before leaving the stage.

It seemed like the time after the opening act and when they finally dimmed the lights took forever, but finally, the Astrodome went dark.  An instrumental build-up of Continental Drift started playing in the background, getting louder and louder. Then it abruptly stopped and the stage exploded into fireworks as Keith Richards started playing the first chords of Start Me Up and the Stones all came running onto the stage.

It was the coolest thing I had ever seen in my life.  It will probably shock you to hear that not that many acts came through Bryan/College Station.  My illustrious career of concert attendance had begun with seeing Toto at G. Rollie White Coliseum on the A & M Campus.  I had never been outside of Brazos County to see a concert -- certainly not one of the magnitude of the Stones.  The next two hours were amazing as they cranked through song after song with pyrotechnics and special effects.  I remember two giant sized inflatable women flanking either side of the stage during Honky Tonk Women.   To paraphrase my 9-year-old, what happened after that "wasn't appropriate."

The Stones wrapped up with Jumping Jack Flash and Satisfaction and we all headed back to the car -- which we had lost.  In the Astrodome parking lot.  In Houston.  At midnight.  On a school night.

We pretty much had to wait for almost everyone to leave before one of us finally found Mrs. Crenshaw's non-descript mini-van.  We all piled into it -- for some reason, nobody wanted me to be the driver anymore -- and headed back for the two hour drive to Bryan.  A radio station replayed the play list of the concert as we drove back and we listened to it for as long as the car radio could pick up a Houston station.  At some point, I fell asleep and my body slid into the footwell as if I were in crash position.  We got home around 2 a.m. and all went to our respective homes.

I think if we were honest, all six of us would have admitted that we didn't really know that much about the Rolling Stones when we started out on our adventure.  We knew the idea of being able to casually tell our classmates "Yeah, we went down to Houston and caught the Stones concert last night," sounded really cool.  Quite frankly, I probably only recognized half the songs that they played that night.

But, man, that next day, we were all wearing our concert t-shirts to school and acting like we were founding members of the World's Greatest Rock and Roll Band.

If you know me at all, you know that when I get on a topic, I get obsessed, and for the years to come, I was obsessed with the Stones.  I bought all of their music, read up on the history of the band, went to their concerts any time they crossed into Texas.  I've gone to see them with friends, girlfriends, and even my mom and dad.  As a side note, it is really awkward to watch the stage production of Honky Tonk Woman when you are sitting next to your mother.

I've read Keith Richards' autobiography, Life and enjoyed it very much, because I loved Keith's enthusiasm for the origins of rock and roll music.  Bruce Springsteen is the same way.  Quite frankly, I think that the way I feel about the Stones is the way Keith felt about all of the old Blues musicians and early 1950s singers and bands.  I love that music -- from Buddy Holly to the Beatles, to the Band to Springsteen to the Stones, and all of those bands that kids today will look at as a history lesson rather than a playlist.

Yes, I just used the phrase "kids today."  Now get off of my lawn.

When my first son was born in 2005, he heard a lot more Beatles music than nursery rhymes growing up.  His first phrases started with "It's one for the money, two for the show . . ."  I taught him the names of all the Beatles and all the Stones and he could recite them when called upon (a party trick that impressed my current wife the first time she met 3 year old Luke.)  I would do my best Keith Richards' impression and ask him, "What are you doing, Mick?" Having been born right around the time that Hurricanes Katrina and Rita hit the Gulf Coast, my son will tell you very matter-of-factly that he, too, was born in a Crossfire Hurricane.

I suffered many an eye roll from his mother.

As he got older, we would listen to the songs and how they were written.  I developed a three act "bucket list" of bands that I wanted him to see before the groups stopped playing together on the road.

On November 14, 2012, I took him to see Paul McCartney at Minute Maid Park as he played all the Beatles songs.  He loved every minute of it.

On May 6, 2014, he saw the second band on the list when we went to see Bruce Springsteen and the E Street Band play the Cynthia Woods Mitchell Pavilion in the Woodlands.  He loved it and we got this close to Bruce when he first drove into the building.

And, finally, in a couple of hours, we are going to load into my car and take a father/son road trip to Arlington to see the Rolling Stones play AT & T Stadium.

I'm so ecstatic that I can't see straight.  After playing together for 51 years, I was starting to get worried that the Stones might not actually come back to Texas.  The first time I saw them play, the band members were all in their mid-40s -- now I'm the one in my mid-40s.

Come Monday morning, my 9 year old boy will get to go back to his summer day camp with his Rolling Stones t-shirt, acting like a founding member of the band.  Keith Richards' guitar intros on Satisfaction, Jumping Jack Flash, and the very "inappropriate" Honky Tonk Woman will be things he heard live.  And "moves like Jagger" will be something that he actually witnessed with his own eyes.   My dad told me that when he was younger, he got to see Elvis play, which I always thought was awesome.  When my son is older, he will be able to say that he saw the Stones.

I can't wait to be standing right next to my son as he sees true Rock and Roll history.  I love seeing these bands play through his eyes.  I hope some day he will love the music as much as I do and feel the sense of history and emotion and excitement of the Rolling Stones as they play Texas one more time.

Wednesday, May 27, 2015

The Joys of Being a County Employee

As noted in my last post, the Harris County Criminal Justice Center was shut closed on both Tuesday and today (Wednesday) of this week in the wake of heavy rains that hit late Monday night.  As per usual, our beloved CJC building failed to withstand the devastating power of nature.  The garage flooded.  The elevators stopped running.  The tunnels flooded.  They were on reserve power.

Harris County employees were told not to come into work. They were then told that they had to take either Comp or Vacation time, instead.

For the lawyers in the building (whether they be prosecutors or public defenders), this wasn't really that big of an inconvenience.  Most of them have plenty of comp time from the hours they work before eight, after five, or on the weekends.   They could also probably get away with doing some trial prep at home or doing some field investigations, if they were feeling ambitious.

For support personnel, however, this wasn't really an option.  Although investigators may earn some amount of comp time in the course of their job, more often than not, it isn't a large amount that accumulates.  Administrative Assistants, however, are the ones who really get screwed.  They work straight eight hour shifts and never earn comp time.

So, basically, Administrative Assistants have no choice but to take their vacation hours, or just go unpaid.  This isn't a new thing.  It happened when we were all ordered out of the building in the wake of Hurricane Ike.  During that particular natural disaster, there was raw sewage backing up into the CJC and we were forbidden to be there.

But we still had to take vacation or comp time.

So, basically, Harris County builds a building that can't withstand a rainstorm and the employees are having to pay the price.  In an ideal world, the geniuses that built that piece of crap building would have to reimburse the county for the cost of an employee's salary on the day said employee couldn't go into the building.  Unfortunately, under county rules, shit runs downhill.  The Powers that Be have the authority to ban employees from working, but they don't get held accountable for failing to provide a safe work environment for them.  The employees have to give away their carefully accumulated (and usually already-planned-for) vacation time.

I can't imagine that ever working in the private sector.


Tuesday, May 26, 2015

Shades of Allison

I hope everyone weathered last night's crazy storm okay.  I don't know about y'all, but I was having some serious flashbacks to June 2001 and Tropical Storm Allison -- only this time I have flood insurance!

Judge Kristin Guiney is reporting that the CJC is closed today, per the Administrative Judge.  The building is running on reserve power and apparently the basement garage is flooded.

It doesn't sound quite as bad as Tropical Storm Allison, which forced the entire D.A.'s Office and all of the courts to relocate from the CJC for the better part of a year, but it doesn't sound good, either.

Saturday, May 16, 2015

Our New Sheriff

Unless you pay absolutely no attention to Harris County politics, you are probably well aware that (now) former-Harris County Sheriff, Adrian Garcia resigned his position to run for Mayor of the City of Houston.  The move had been rumored for months, but since Garcia was required to resign before he could officially announce, he held off on making it official for some time.

What had also been rumored for months was that Harris County Commissioners were planning on appointing Harris County Constable for Precinct Four, Ron Hickman, to fulfill Sheriff Garcia's unexpired term.  That was a smart move -- Hickman is very politically active in the Republican Party and has a good reputation.  He's also a great campaigner.

Sheriff Hickman wasted no time in getting to work on cleaning up some of the messes created under the Garcia Administration -- focusing largely on problems that consistently plague the Harris County Jail.  Sheriff Hickman also set a goal for getting rid of some of his unnecessary administrative positions in favor of more deputies out on the streets.  One of those unnecessary administrative positions has apparently been the job of former-Harris County First Assistant Jim Leitner.

I've heard from several reliable sources this morning that Leitner was terminated from HCSO by the incoming administration.  Although Leitner and I aren't big fans of each other, I can empathize.  It really sucks to lose your job because of politics, doesn't it?  As of this writing, it does appear that Sheriff Hickman will be keeping Clint Greenwood, for some reason.

The path that Leitner takes from here will be interesting.  After leaving the Lykos Administration in 2008, he tried going back to the Defense Bar for a little bit before going to the Sheriff's Office.  He got started on a lot of appointed cases that he didn't finish.

The mayoral election is on November 3rd of this year.  Given that everybody and their dog are running for mayor, it will almost certainly go to a runoff (scheduled for December 12, if necessary).  If Adrian Garcia loses the election, it is rumored that he fully intends to try to reclaim the Sheriff's Office in 2016.  If that is ultimately what happens, Jim wouldn't be able to land himself another political hire with the Sheriff's Office until January 1, 2017 at the earliest.

So, does Jim return to the Land of Burned Bridges within the CJC as a defense attorney where he can deal with prosecutors (who detest him) on a daily basis?  Does he hope and pray that Garcia wins mayor and appoints him to be the King's Hand?  Will he go to work as a guest blogger over at Big Jolly's website?  Will he get to work early on Kim Ogg's inevitable 2016 campaign for District Attorney?  Does he get a job as in-house counsel at Don Hooper's energy trading firm, Kramerica Industries?

It will be interesting to see what happens next.

Friday, May 1, 2015

Uncle Pete

My great-uncle, Pete Newman, passed away last week at the age of 86.  He was the youngest brother of my paternal grandfather, Louis Newman.  I didn't know Uncle Pete all that well, but I always enjoyed talking to him whenever I got the chance, because he was wildly entertaining.  The last time I saw him was a couple of years ago, at his brother, Jim's, funeral.  He was sitting on his walker, smoking a cigarette and talking about grabbing a beer.

The reason I'm writing this post is because I thought his obituary in the local paper was pretty entertaining, as well.  So I thought I would just pass it along.

He was a damn good man.


Monday, April 20, 2015

Congratulations, Ms. Falkenberg

Congratulations to my friend, Lisa Falkenberg, for winning the freaking Pulitzer Prize for her series of articles on the Harris County Grand Jury system and the Alfred Dewayne Brown case.

Lisa and I didn't exactly get off to the best start.  She pointed out to me the first time that I met her in person that I had once referred to her as Pippi Longstocking in an early blog post.  Um, oops.

I don't always agree with her columns.  Hell, I usually don't agree with her columns.

But Lisa's columns always make me think and take stock of philosophical positions that I held in the past, philosophical positions I hold in the present, and those I may hold in the future.

In short, regardless of whether I agree with her or not, the way Lisa writes makes me think.  And that's the trademark of an excellent writer.

I'm very glad to see the folks over at Pulitzer recognize her talent.


Thursday, March 5, 2015

Jamie Brooks

I was very saddened to learn this morning about the passing of my friend, Jamie Brooks.

Jamie was a fixture of the Harris County Defense Bar and a friend that I had known since I first started work at the D.A.'s Office in 1999.  He was one of the nicest people and truest friends that one could have at the Criminal Justice Center.

Jamie was generally a very soft-spoken attorney during docket, but he was also a strong advocate who was not afraid to go to trial and fight for his clients.  More importantly, Jamie was one of the first people to volunteer to lend a hand when a colleague needed help.  Any time a lawyer fell ill or passed away, you could always count on Jamie to be there to do whatever he could to assist.

Jamie was a good lawyer, a good friend, and a good person.  I am terribly sad to lose him.

My thoughts and prayers go out to his family.

Saturday, February 21, 2015

Letting Go

"I believe your client, but you are still going to need to present something to the Grand Jury on it."
"I'll give you a probation on a lesser charge, but your guy is going to need to plead on all three cases.  I've been told that my court has too many dismissals."
"I don't know why the Grand Jury indicted your client, but I can't dismiss it unless the co-defendant pleads to something."
"I would never dismiss that case.  It's a First Degree!"
What do the above four phrases have in common?

They have all been said to me by a prosecutor as justification for not dismissing a case in the past year.

Now, before I go too much further down the road of angering every prosecutor who reads this blog, let me be clear:  Prosecutors and Defense Attorney disagree every freaking day over whether or not a case should be dismissed.  As Defense Attorneys, we are obligated to seek out the best resolution for our clients and we wouldn't be doing our jobs if we did not (at least) see if we can talk the prosecutor into a dismissal.

As you can imagine, the strength of a Defense Attorney's argument for dismissal can vary drastically from case to case.  Many of these "dismissal discussions" are very brief and the vast majority of them obviously don't end in dismissal.

The issue that I have here is absolutely NOT with the prosecutor who doesn't agree with my interpretation of the evidence.  My argument is NOT with the prosecutor who finds their witness' statements to be more credible than I do or the evidence more compelling than I see it.  I get that.  I don't always agree with it, but I get that.

My issue is with the prosecutor who will actually state to me that the reason they won't let go of a case is because of something that has absolutely nothing to do with the facts of that case.

Statistics should never be a consideration in whether or not a prosecutor dismisses a case.   I firmly believe that nothing adversely affects the Criminal Justice System more than statistics -- i.e. the police get recognized for how many felony arrests they make, so why not go hunt down jaywalkers who might be carrying crack pipes with residue?  The same applies to prosecutors when they start being judged on how many dismissals they may or may not have signed off on.

Statistics are for politicians.  Not prosecutors.

The standard of whether or not a prosecutor should dismiss a case is simple:  if you don't believe it can be proven beyond a reasonable doubt, or (God forbid) you believe the person is (gasp!) factually innocent, you shouldn't be freaking prosecuting it.  Period.  Take all the time you need to thoroughly investigate the facts of the case, but if you can't prove it beyond a Reasonable Doubt, you need to be signing a dismissal.

When I was chief of the 339th District Court, I was observing Brent Mayr try an Aggravated Robbery case (which is a First Degree charge).  For those of you who don't know Brent, he's a fantastic trial lawyer and he's also very competitive.  In the middle of his trial, a witness testified to something that caused Brent to have hesitation over whether or not the Defendant was guilty.  I was his supervisor, so he came to me because he wanted to dismiss it in the middle of trial.

"I think he probably did it," Brent told me, "but I don't believe that beyond a Reasonable Doubt anymore."

So, we dismissed it immediately.  Nobody ever questioned either my judgment or Brent's.  A dismissal in the middle of a trial isn't exactly a positive statistic for a prosecutor's record, but that didn't dissuade him from doing the right thing.  I was proud of Brent.

Dismissals on First Degree cases do still happen, obviously.  I am still very appreciative of when Lance Long and Greg Houlton dismissed this murder case after carefully reviewing the evidence.

My point here is that a dismissal should ALWAYS happen based on the evidence and not ulterior concerns.  When I was a prosecutor, nothing offended me more than hearing a defense attorney say something like "all prosecutors care about is getting their conviction."  I didn't believe that then and I don't believe that now.

But statements like the four that begin this post should give you some insight into why defense attorneys sometimes feel that way.

If you believe my client's version of events when she explains that she isn't guilty, then dismiss the case.  Don't make her and her family have to experience the overwhelming stress of being charged with a felony if you don't think she did it.  We shouldn't have to wait for the Grand Jury to No Bill the case because you don't want to be the one who signs your name to a dismissal.

If you think that my client is worthy of being on probation on a lesser charge, then why make him technically be on three probations for statistics' sake?  It literally changes nothing about what his punishment will be like.

If you think that a Grand Jury shouldn't have indicted a case and that your links to my client aren't strong enough for trial, don't make her wait until the co-defendant pleads on something before you are willing to dismiss it.  The facts are either there or they are not.

And, finally, the inspiration for this entire post --

Just because the case is a serious, First Degree case, that doesn't mean that it can't be dismissed if the facts aren't there.  A First Degree felony case can sometimes be as weak as a questionable speeding ticket.  The same standard of proof applies regardless of degree.

If a prosecutor wants to tell me that, in their opinion, the case is strong enough to convince a jury Beyond a Reasonable Doubt, then that's fine.  I respect that.  But when even your own lead investigator states on the record that they aren't even sure a crime was committed at all, that might be a sign that you are wrong in your opinion.  That's when words like "I wouldn't dismiss that case.  It's a First Degree!" start becoming really really offensive.

When a juror flags me down in the lobby of the CJC (after an acquittal) and asks me to extend her apology to my client and his family for having to go through the trial, you might want to start evaluating your judgment on that policy.

Many moons ago, when I was working in another county, I heard a prosecutor on a DWI case say "I know we aren't going to win, but this kid needs a good trial."  I found the statement to be strange then.  Now I find it to be mortifying.

Unlike the private sector where one has to worry about economic trends and supply and demand, the Criminal Justice System will never run out of cases to try and people to prosecute.  It is a continuous growth industry.  There are plenty of cases where a prosecutor has more than ample evidence to prosecute and convict without hesitation.

But when the evidence isn't there, the case needs to be let go.

Wednesday, February 11, 2015

Forced Empathy

As I've noted here and there on blog posts since becoming a Defense Attorney six years ago, one of the things that I think I've gained on this side of the bench is a better grasp of empathy towards those accused of crimes.  When I was a prosecutor, I never got Mark Bennett's frequent assertion on his blog that every prosecutor should have to spend some time in jail to gain a full appreciation for what criminal defendants go through.  I still think Mark's position is a little extreme, but I understand his point.

Too often those who enforce the law and the punishment associated with breaking the law don't quite get the human effect that comes along with punishment.

And then something like this happens that kind of makes those who enforce the law have to feel the consequences of breaking the law . . .


Oops.

(H/T & Photo Credit to Mark Thering)

Saturday, January 31, 2015

An Unworkable Drug Policy

Yesterday, the Harris County District Attorney's Office made a radical change to their Operations Manual addressing how prosecutors will deal with Controlled Substances cases.

The change, which takes effect immediately, prohibits prosecutors from making a recommendation (or agreeing to go to a judge without a recommendation) on any controlled substance case, unless there is a lab report confirming that controlled substance.  The only possible exception to this rule would be if a prosecutor were to recommend that "a defendant housed in jail receive a term of community supervision with no additional jail confinement as a condition of the community supervision."

The idea behind this change in policy was doubtlessly a noble one.  Too many defendants were entering into plea bargain agreements on drug cases only to later find out that the drugs in question were not controlled substances after all.  In situations where a lab report revealed a substance not to be a controlled substance, a Writ would have to be filed to correct the error of an innocent person who was currently serving prison time for a non-crime.

So, one might wonder why exactly a person would ever plead guilty to a drug case, if the drugs were not a controlled substance.  The answer is simple -- the people who plead to drug cases usually believe that they actually were possessing a controlled substance.  It should not be too shocking to discover, however, that there are some less-than-honest drug dealers out there who sometimes rip off their clientele with fake dope AKA "turkey dope." A client who is brought back from prison early to have his conviction and sentence set aside usually finds himself feeling mixed emotions.  On the one hand, he's very excited to be going home earlier than expected.  On the other hand, he's pretty ticked that he got ripped off on the streets.

The District Attorney's Office wants to stop wrongful convictions based on negative lab findings from happening in the future, which is a laudable goal.  Unfortunately, the Office's solution is filled with problems.

By declaring that the Office "shall not make a recommendation nor agree to entry of a plea of guilty or no contest" in a controlled substance case, they put all drug cases in limbo until the lab results are available.  Depending on the lab, that can be anywhere from three weeks to three months as an accused person sits in jail with literally nothing happening on his case.   A Defendant who wants to work out his case won't be allowed to.

Here's where it gets a little more interesting.  By stating that that their prosecutors may not "agree to entry of a plea of guilty or no contest," the Office is stating that they will block Defendants from entering a plea to the Judge of the Court without an agreed recommendation from the State.  Going to the Court without an agreed recommendation from the State is a very common practice in Harris County which allows Defendants to sidestep the prevailing policies of the D.A.'s Office.  Pleading without an agreed recommendation to the Judge/Court on low level drug offenses can often end up with a 12.44(a) sentence.

Now, for those of you who don't practice criminal law, 12.44(a) is a provision in the Penal Code that allows a person who is convicted of a State Jail Felony to be punished with a Misdemeanor sentence.  The person is still convicted of the felony offense, but rather than being sentenced to 6 months to 2 years in a State Jail Facility, the Defendant is sentenced to serve his or her sentence in the county jail.  What makes this an attractive option to Defendants is that "county time" a) gives them three days of credit for every day that they serve; and b) maxes out at a year (which is actually 4 months because of two-for-one credit).  Generally, the District Attorney's Office frowns upon agreeing to a 12.44(a) sentence.

NOTE:  Not all Courts do these types of "without an agreed recommendation" pleas, but many do.

Controlled Substance cases that are classified as State Jail Felonies are (generally) those where the weight of the controlled substance is less than 1 gram.  This covers the multitude of "crack pipe cases" that are often prosecuted despite only a residue of crack cocaine being detected on the pipe.  It is a routine practice on these "crack pipe cases" for the Defendant to plead guilty to the Judge/Court without an agreed recommendation so that the Judge can sentence under 12.44(a).

This practice of going to the Court without an agreed recommendation from the State is what will be coming to a screeching halt under the new change in the operations manual.  The State has to agree to waive its right to a jury trial before such a plea can proceed, and the new policy forbids prosecutors from doing so.  In essence, a Defendant who is charged with a crack pipe case that lands in a Court that is willing to sentence under 12.44(a) is going to be out of luck.

Now, let's look at some of the implications of that for a moment.  Given the fact that most low level drug offenders don't exactly have a lot of cash on hand, they are probably not going to be able to bond out.  A compassionate judge may be willing to give a Defendant 30 days in the county jail under 12.44(a), but the D.A.'s Office is now going to block that from happening.

Why are they going to block that from happening?  Because they aren't sure that the controlled substance alleged is actually a controlled substance until they get an official lab report in.  So, basically, the D.A.'s Office seems to be confident enough to deprive the Accused of his freedom for as long as a lab needs, but not confident enough to sign its name to a plea bargain.  In this scheme of things, sitting on your butt in jail is worth the price of them avoiding having to do a Writ, should a substance turn out to be turkey dope.

Nice.

It is also kind of a slap in the face of the Judiciary.  If the State of Texas is saying they won't waive a jury (and thus allow a plea without an agreed recommendation), they are, in essence, saying that they don't trust the Judge of the Court to do the right thing.  That's an interesting and awkward statement to make.  Seeing as how both District Attorney Devon Anderson and 1st Assistant Belinda Hill are both former judges, I'm somewhat surprised with this message being sent.  I can't imagine either of them being happy with this policy change if they were still on the Bench.

The new policy does allow for prosecutors to agree to a Deferred Adjudication, as long as there is no jail time assessed as a condition.  Well, that's nice and all, but the prosecutors don't have control over what conditions a Judge assesses on community supervision.  They can say it all they want in their policy manual, but if a Judge has a plea entered for a Deferred, that Defendant is now at the Court's mercy.  The State can't regulate that away.

So, what is the end result for this?  My prediction is docket numbers shooting through the roof.  If the State suddenly can't work out low-level drug cases, then the dockets are going to get clogged.  I highly doubt that the D.A.'s Office will be agreeing to personal recognizance bonds while labs get sorted out.  I also highly doubt that they will tell cops to get a warrant for these defendants only after getting their lab results in.  They don't want to inconvenience the cops, after all.

In a discussion with some friends yesterday, someone a lot smarter than me came up with a pretty simple solution:  waive your right to indictment and immediately ask for a jury trial on the first setting.  Not all judges will give you a two week trial setting, but they should.  After all, if the State of Texas by and through her District Attorney is saying that it won't waive a jury trial on these types of cases, shouldn't the Court accommodate them by providing a jury trial as soon as humanly possible?

Just a thought.

I know that the D.A.'s Office's heart was probably in the right place when they came up with this policy, but I just don't see it working out for very long.