Wednesday, February 3, 2016

Donations for Kirby Taylor

As most of the CJC Community knows, Kirby Taylor, a friend and defense attorney, was the victim of a brutal attack that badly injured him, and killed his son.

HCCLA's Rand Mintzer, Andrew Wright and JoAnne Musick are running in the Woodlands Marathon on March 5th to raise money to help Kirby with his medical bills.  You can help by donating by going to this website and donating through Paypal.



I've known Kirby since I've been a lawyer.  He is one of the kindest souls down at the courthouse.  He has a great sense of humor and an infectious laugh.  The idea of someone want to cause him harm defies reason.  All of our thoughts and prayers are with him during this tragic time in his life.

Please donate if you can.

Tuesday, February 2, 2016

Help for Our Friend Lenny

I just learned yesterday that Lenny Villavicencio, the Spanish translator in the 209th District Court and a fixture at the CJC for as long as I can remember, suffered a sudden and unexplained medical incident last week.  From the information that I have, it seems that the doctors don't know exactly what happened, but he seems to be having great difficulty breathing and his liver is in distress.

He is currently in a coma.

Lenny is married with two young children.  Any help that can be provided to his family would be greatly needed and appreciated.  Below is a GoFundMe website that has been established to help in this time of need.

https://www.gofundme.com/zbmkr9yk

Please give if you can.

Monday, January 25, 2016

Between Law and Party

Let me preface all of this by saying that like most white kids growing up in my part of Texas in the 1970s and 1980s, I was raised Republican.  My dad is a business owner and a Marine who served three tours of duty in Vietnam.  Fiscal conservatism and strong national security positions were and are important issues to my family.  As I grew older and became interested (and then involved) in criminal justice, I found that I identified more with the pro-Death Penalty and high sentences that were typical of the Republican platform.

In Harris County, the vast majority of my friends who seek elected office run as Republicans – from the District Attorney to Judge to Justice of the Peace.  Quite frankly, it is my personal (if biased) belief that the Republicans generally field the best criminal justice candidates in Harris County.  If a candidate wants to get elected to a countywide office, they are well advised to run as a Republican.  With the exception of 2008, the Republicans generally sweep.  As of this writing, I’ve only voted in Republican primaries.

While Getting Elected in Harris County 101 has consistently required winning the Republican Primary, it seems that more and more the key to winning that nomination is making sure that Republican voters know that you are the candidate who is the farthest to the Right on the political spectrum.  Sadly, that has led to the death of the moderate Republican candidate.  Even in the criminal justice system where issues like gay marriage, Syrian refugees, and abortion rights have virtually zero effect, Republican candidates must let the Party constituency know how violently opposed they are to all three of those things. 

The Republican kingmakers, Steven Hotze and Terry Lowry, audition all of the Republican candidates for their “endorsement” which comes with some purchased ad space in their “Slate” mailers.  Any candidate who hopes to gain their favor must toe the Party line if they want their endorsements.  Sadly the endorsements of Hotze and Lowry do, in fact, make or break elections.  I thought I knew the definition of the word “unseemly” until I watched how the Republican Machine works in Harris County.

Absolutely NONE of the Republican Party platform crap has any place in the Criminal Justice System.  Zilch.  The Law is what the Law is.   Slimy kingmakers who don’t have law degrees have no business attempting to dictate it.

The reason I write this long-winded preamble is because today, the Harris County District Attorney’s Office under Republican D.A. Devon Anderson showed that Law matters more than party politics. 

Last year, Republican Governor Greg Abbott and Republican (and currently indicted) Attorney General Ken Paxton asked the Harris County D.A.’s Office to investigate a series of disturbing videos produced by a group called the Center for Medical Progress, an anti-abortion group led by David Daleiden and Sandra Merritt.  As you may recall, the videos purported to have caught representatives of Planned Parenthood offering to sell fetal tissue and body parts for a fee.  The videos drew outrage, despite Planned Parenthood stating that they were doctored into a format that was extremely misleading.

Governor Abbott and General Paxton must have anticipated that their Republican friend D.A. Anderson would get an indictment against Planned Parenthood for attempting to sell body parts.  It would be great to show what a strong stand Texas is  taking against those murdering abortionists, right?  If no indictment panned out, Abbott and Paxton could say “hey, we tried” and point out it was Anderson who must have dropped the ball.

Unfortunately for Abbott, Paxton, and the gang at the Center for Medical Progress, the investigation didn’t turn out the way they hoped.  No indictments were issued against Planned Parenthood or anyone involved with that organization.  At that point, the D.A.’s Office and Anderson could have just said “oh well” and moved on.  They could have done a little speech about how the evidence was inconclusive and yada yada yada.

But the D.A.’s Office didn’t stop there. 

“We were called upon to investigate allegations of criminal conduct by Planned Parenthood Gulf Coast,” said [Devon] Anderson, a Republican.  “As I stated at the outset of this investigation, we must go where the evidence leads us.  All the evidence uncovered in the course of this investigation was presented to the grand jury.  I respect their decision on this difficult case.”

In a truly surprising move, the Grand Jury investigating David Daleiden and Sandra Merritt’s accusations against Planned Parenthood found probable cause to indict Daleiden and Merritt instead.  Both were indicted for the second degree felony offense of Tampering with a Governmental Record and Daleiden picked up an additional misdemeanor charge of attempting to buy a human organ.

The rejection of indictments against Planned Parenthood, coupled with the indictments of Daleiden and Merritt, tend to indicate that they were trying to pull something over on somebody.  As of this writing, copies of the indictment aren’t available on the Harris County website.  Whether they falsely made some identification to bolster their credibility, or whether the videos they made were ultimately considered to be falsified evidence is unclear at the moment.  Daleiden apparently was unaware that his attempt to purchase fetuses was illegal in and of itself. [UPDATE: The government documents that were falsified were fake California driver's licenses with fake names on them.  They are charged with using them with intent to defraud.]

It would be easy to think that the credit for these indictments goes solely to the members of the Grand Jury, but that would be misleading.  The District Attorney’s Office did not have to present the Grand Jury with the option to indict Daleiden and Merritt.  But they did.  And they should have.  And it was what Justice required.

For those keeping score at home, that brings the score to “Duty to Seek Justice: 1, Duty to Republican Party: 0.”

Make no mistake about this, Devon Anderson is about as pro-life as they come.  I’ve known her for a little over 15 years and her personal beliefs very much align with the Republican Party.  No one could ever accuse her of being a dreaded R.I.N.O.  I’ve seen her give speeches at Republican functions that would make Ronald Reagan pale in comparison.   She doubtlessly knew this would not sit well with her party, but she proceeded with integrity.

Governor Abbott, on the other hand, was a little less dignified.

“Nothing about today’s announcement in Harris County impacts the state’s ongoing investigation,” Abbott said.

Really?  Nothing?  Your two star witnesses in this case just got indicted for Tampering with Evidence and that doesn’t impact your investigation, Greg?  Didn’t you used to be Attorney General?  As a trial lawyer, I gotta tell ya, that’s kind of a big kick in the crotch from the old evidentiary standpoint.

Fortunately, it is too late for Devon Anderson to draw an opponent in the Republican Primary this election cycle.   The die-hard conservatives are already foaming at the mouth.  The conservative website The Federalist is already saying the indictments were unfair because Lauren Reeder, a prosecutor at the Harris County D.A.’s Office, is on the board of Planned Parenthood.  The intellectually dishonest article insinuates that Reeder had something to do with the indictments, when in fact, she was completely uninvolved with the case.  They post her personal information in some attempt to shame her, and, I suppose, shame Devon Anderson for employing her.  The Federalist is going to be really mad when they find out the D.A.’s Office hires gays, blacks, and Hispanics, too.

Things like Abbott’s boneheaded statement and The Federalist’s lame attempt at a smear campaign are what make me feel so very alienated from the Party I grew up in.  That level of vitriol and intellectual dishonesty is a far cry from the values I was brought up to respect.  Doing the right thing in the face of dire consequences is a much more admirable character trait.  That’s what true public service is about.

Today, Devon Anderson and her prosecutors at the District Attorney’s Office reminded me of that. 

And for that, I am profoundly grateful.

Saturday, January 16, 2016

Me, Greenfield and Bill Cosby

This week, I was invited to be a guest on Lawyer 2 Lawyer on the Legal Talk Network with Bob Ambrogi.  Scott Greenfield suggested my name as a co-guest with him, and we talked about the Cosby case.  It was a lot of fun and I enjoyed the hell out of doing it.

I think Scott and I should start our own reality show featuring a New York defense attorney and a former Texas prosecutor.

If you want to listen to the 30 minute broadcast, you can by clicking here.

Wednesday, December 23, 2015

An Interview With Scott Greenfield

My friend (as well as the Great Grandfather of Criminal Blogging) Scott Greenfield interviewed me for the Fault Lines blog that we work on together.  You can read it by clicking here.

Friday, December 18, 2015

Note to Candidates

In the past I have linked campaign websites to each name of the candidates.  I didn't do that this year when I wrote the post on the election but only because it is a time consuming process.

I am more than happy to link up the websites if you send me the links.  I have already been contacted by one candidate to do that, and I was glad to accommodate him.

Just let me know.

Thursday, December 17, 2015

Linda Garcia Appointed to County Court at Law # 16

The Harris County Commissioners appointed Assistant District Attorney Linda Garcia to be the Judge of the newly created County Court at Law # 16.

Linda is a great choice.  She worked for a long time as an Assistant District Attorney before being appointed to the Parole Board.  After her term wrapped up there, she returned to the D.A.'s Office, where she has been ever since.  She has great experience and compassion and will do an awesome job.

Congratulations Judge Garcia!

Tuesday, December 15, 2015

The 2016 Election Field

Polling for the 2016 Election closed yesterday at 6 p.m. and we now know the election field for the March 1st primary.  There were a couple of surprises and last minute filings.  Although I'm no Charles Kuffner, I'm thinking that 2016 is probably going to be a very good year for the Republican candidates locally.  I don't think either Hillary Clinton or Bernie Sanders will bring people to the polls in Harris County like Barack Obama.  We shall see.

The Democratic Party is going to be hurting in this department as well, because two out of the three incumbent Dems in CJC positions are not running for re-election.

As for the primaries, here you go . . .

Harris County District Attorney
Republicans -- Unsurprisingly, District Attorney Devon Anderson drew no challengers in the Republican primary, which is hopefully a good indicator that some stability has returned to the Party.  Although I haven't always agreed with some of the personnel and policy decisions that have come out of the Office under her tenure, Devon has added some much needed stability for her employees following the Lykos years.

Democrats -- The Democrats this year have a three-way battle between 2014 HCDA candidate Kim Ogg, nimwit extraordinaire and perpetual candidate Lloyd Oliver, and former Court of Criminal Appeals Judge Morris Overstreet.  Once again, the Lloyd Factor will be interesting to watch.  He has a magical way of screwing up elections by his mere presence.  I'm not a fan of the way Kim acts on the campaign trail and find her desire to jump on every passing bandwagon troubling.  So far, I like Judge Overstreet as the best candidate the Dems have in this race.  It is difficult to argue against the experience of being a former judge from the Court of Criminal Appeals and he doesn't have the baggage that Ogg and Oliver bring to the table.

174th District Court
Democrats --  Democratic Judge Ruben Guerrero has elected not to run again for the bench, which is a blow to the Democratic Party as far as CJC elections go.  Guerrero was elected as part of the 2008 Democratic sweep, but he was one of only three judges that managed to hold onto his bench when he was up for re-election in 2012.  His decision to not run has opened up the door to Garland "Mack" McInnis, former 338th District Court Judge Hazel Jones, and attorney Raul Rodriguez.  Hazel was not a popular judge while on the bench in the 338th and it is curious to see her running for a bench other than her old one.  Garland is a former defense attorney who has worked for the County Attorney's Office for some time now.  He's a very sharp legal mind and a good candidate.  Raul Rodriguez is a defense attorney that I know and like.  My early money would be on Raul to win this race on the Dem side.

Republicans -- regardless of who wins the Democratic primary, my vote in November will be going to my friend Merry Katherine McDaniel, who is running without a challenger in the primary.  Katherine is a longtime prosecutor who I've known since I started at the D.A.'s Office in 1999.  I'll talk more about her when we get a little closer to November.

176th District Court
Democrats -- former 176th Judge Shawna Reagin will attempt to regain the bench she lost in 2012, but first she has to get through the primary in a race against Nikita "Niki" Harmon.  Harmon is a municipal court judge who ran unsuccessfully in 2014 for a county court bench.  Of the two, Reagin is immensely more qualified.  She was a highly skilled defense and appellate attorney before becoming a judge in 2008.  

Republicans --  although there were some rumors that the District Attorney's Office was looking to field a candidate against incumbent Republican judge Stacey Bond (because they were upset about her recent ruling on prosecutorial misconduct) that fortunately does not appear to be the case.  Judge Bond has been outstanding since taking the bench in 2013 and she is highly respected.  The D.A.'s Office may be a little pissy with her at the moment, but they will get over it.  She's a damn good judge.

177th District Court
Republican --  Incumbent Republican Judge Ryan Patrick has also been doing a pretty damn good job since taking the Bench.  Defense attorneys were fully ready to give Judge Patrick a hard time based on his relative youth at the time he became a judge, but he has successfully silenced his critics with a strong knowledge of the law and an even temperament.  Judge Patrick is developing a very impressive track record of being a truly neutral judge who knows the law and follows it.

Democrats -- two defense attorneys are running against Judge Patrick - David Singer and Robert Johnson.  I don't recall Johnson running for any other CJC benches in recent memory, but Singer has run several times.  Both are equally qualified but will have a VERY uphill battle challenging Judge Patrick in November.

178th District Court
Democrats -- I was very saddened to hear that Incumbent Democrat David Mendoza had decided not to run again.  I didn't know him before he was elected in 2008, but I've come to be a tremendous fan of the way he has run the 178th District Court over the past 8 years.  I'm truly sorry to see him go and I hope he will be a visiting judge that we see around the CJC quite often.
The race to replace Judge Mendoza will be between prosecutor Kelli Johnson and defense attorney Lori Gray.  Both have run for office before, with Kelli running unsuccessfully in 2014 for County Court at Law # 8 and Lori last running (unsuccessfully) in 2010 for Court # 10.  Kelli is a close friend of mine, so I'm biased, but I think she is the most qualified candidate.

Republicans -- with no incumbent to run against, the floodgates have opened with four candidates running on the Republican side for the178th.  To start with, we have Nile Copeland, who is apparently a municipal court judge who last ran in 2012 as a Democrat.  Prior to about three minutes ago, I'd never seen or heard of him.  Next we have Bash Sharma.  I'm not entirely sure who he is, but I do believe he actually practices criminal law, which gives him a step up on Copeland.
The two qualified candidates in the race are former prosecutors and current defense attorneys Phil Gommels and Xavier Alfaro.  Both of these guys are great guys and good lawyers.  Either would make a good candidate, but I would give the edge to Xavier, who has more experience.

179th District Court
Republicans -- Incumbent Republican Kristin Guiney is running for re-election unchallenged in her primary, as it should be.  In addition to being a family friend and one of my favorite people, she has also proven to be an outstanding judge since taking the Bench in 2013.  Judge Guiney won her primary in 2012 by one of the widest margins that year and she has lived up to expectations on the Bench as an efficient, intelligent, and compassionate judge that strives to make the entire System better.

Democrats -- former 179th Judge and current defense attorney Randy Roll will attempt to retake his bench but first he will have to get through prosecutor Stephen Aslett.  The early word is that this race is already getting contentious.  Although I like Randy, he was controversial on the Bench with both prosecutors and the defense bar.  Aslett is a newcomer to Harris County politics, but is a die-hard Dem.  I'm genuinely curious to see how this one shakes out, but either way, I'll obviously be voting for Judge Guiney in November.

337th District Court
Republican incumbent judge Renee Magee will face off against former 337th Democratic judge Herb Ritchie in a rematch from 2012.  Neither have opponents in their primaries, so we'll have more to say about this one as we get closer to November.

338th District Court
In another race where both primaries are uncontested, incumbent Republican Judge Brock Thomas will be facing Democrat and defense attorney Ramona Franklin in November.

339th District Court
Democrats -- Incumbent Democrat Judge Maria (Terri) Jackson is the one and only incumbent running for re-election in a CJC race.  Since taking the Bench in 2009, she has been very popular in the Defense Bar for her kind demeanor and her willingness to consider both sides of every argument.

Republicans -- Felony District Court Chief and political newcomer Mary McFaden will be running against defense attorney Antonio Benavides for the Republican nomination.  Mary is a friend of mine and a very smart attorney.  She is considered to be a very hard-core prosecutor which makes some in the Defense Bar a little worried.  Benavides is a defense attorney that I only know in passing.  He might want to consider changing his Facebook profile photo before running for office.  Just sayin'.

351st District Court
Republicans --  Longtime incumbent Republican Judge Mark Kent Ellis will run again for the 351st Bench.  He is the lone Republican survivor of the 2008 Democratic sweep and a good judge.

Democrats -- Defense attorneys Greg Glass and George Powell will face off against each other for the Democratic nomination.  Both men are friends of mine and both are qualified candidates.  I have no idea who wins this primary.

County Attorney
Although the County Attorney's Office is really related to the CJC races, I would be remiss if I didn't mention that incumbent Democrat Vince Ryan will be running again.  His challengers are Chris Carmona and sometimes-I'm-a-Republican-when-I'm-running-for-office-but-really-I-support-Democratic-candidates-most-of-the-time attorney Jim Leitner.

Vote for Chris Carmona, please.

And one more Race before we go . . .

232nd District Court Judge Mary Lou Keel is running for Court of Criminal Appeals.  Judge Keel is one of the smartest and best judges that I've ever tried a case in front of.  Although I would hate to see her leave Harris County, she would make an outstanding Judge of the Court of Criminal Appeals.  Remember to tell your friends and family members across the State about her for this race.  She has more judicial experience than both of her opponents combined.

Election years are always exciting.  Remember to get active and involved.  The general public doesn't pay much attention to what goes on at the CJC, so it is up to those of us who practice down there to get the word out.

Wednesday, December 9, 2015

Jim Leitner Returns! [Updated]

I received word today that former Harris County District Attorney's Office 1st Assistant Jim Leitner had signed up to run for Harris County Attorney.

We haven't heard much from Big Jim since his testimony in the David Temple hearing, where he repeatedly claimed that I wrote untrue things about him, and then subsequently admitting that all the things I had written about him were, um, completely accurate.  When we last checked in with him, his employment had been terminated by Harris County Sheriff Ron Hickman and he was working as a contract attorney in the 208th District Court.

Jim's return to politics is interesting for a couple of reasons.  First and foremost, he never seems to win anything.  He's made a couple of tries to be District Attorney that haven't panned out too well for him.  More interestingly, however, is the fact that he seems to be having a bit of an identity crisis on what political party he belongs to.  Jim has been very public in his support of Democratic candidate for District Attorney Kim Ogg.  Prior to being terminated by Sheriff Hickman, he had been appointed as a high ranking member of the Sheriff's Office under Democrat Adrian Garcia.

So, when I heard that Jim was running for something again, my first question was "under what Party?"

Well, it turns out that he's running as a Republican.  I don't know how well received that will be within the upper echelons of the Harris County Republican Party.  They tend to not like candidates who have failed in two previous elections, and they really don't like those who aren't loyal.

Jim's opponent in the Republican Primary is former Civil County Court at Law judge Jacqueline Lucci Smith.  My understanding is that she has worked for the Harris County Attorney's Office and that she doesn't seem to have the same confusion over what Party she belongs to.

Part of me hopes that Jim wins and makes Pat or Nick Lykos his first assistant.  That's only because it would give me more entertaining material to write about.  However, I value my Right to Vote too much to cast a ballot in favor of him.

I don't know much about former Judge Smith, but she'll have my vote.

UPDATE:  I learned today that attorney Chris Carmona filed for County Attorney last night and that Judge Smith is stepping aside to be his treasurer.   




Wednesday, November 11, 2015

6th Annual Feast of Fashion

On November 20th from 11:30 a.m. to 3:00 p.m., the 6th Annual Feast of Fashion will be held at the JW Marriott Hotel at 806 Main Street, Houston, TX 77002.


This annual event, organized by Julie Jones, raises money for the Jeanette Williams Foundation  which raises money to send children with cancer and other serious illnesses to camp.  It is a great cause and involves a tremendous effort by a lot of people -- especially Julie.

Tickets are $55.00 each (or $550.00 for a table for ten) and can be purchased online at www.jeanettewilliamsfoundation.org.

Wednesday, November 4, 2015

Morris Overstreet Joins the Race for Harris County District Attorney

In a somewhat unanticipated move, former Court of Criminal Appeals Judge Morris Overstreet has announced his candidacy for Harris County District Attorney on the Democratic ticket.



He will be running against defense attorney Kim Ogg in the primary.

I only know Judge Overstreet in passing, but he's always been very nice to me.  To be honest, I was unaware of all of his credentials.  I didn't realize he was a former-prosecutor and I certainly didn't know he was formerly on the Court of Criminal Appeals.  He has an extremely impressive resume and a very interesting background.

I was anticipating the primary season to be kind of quiet in 2016.  Looks like I was wrong.  Kim Ogg should be very concerned.

Tuesday, November 3, 2015

Has Batson gone as far as it can go?

I've written a post over at Fault Lines on the Timothy Tyrone Foster case that the Supreme Court case heard yesterday.  If you haven't been following it, prosecutors on a 1986 case were pretty blatant in writing down and singling out the African-American members of a jury panel and then striking them with peremptory challenges.

Although the case is egregious, what more can the Supreme Court do to enforce Batson?  I wrote more about it here.  I hope you will check it out.

Tuesday, October 13, 2015

Of Offers, Acceptance and Personal Animosity

For the most part, I typically don't write about the day-to-day run-ins that I have with prosecutors.  Disagreements with the State are par for the course in an adversarial system and most of them don't merit a blog post.  As a general rule, I don't write about the particulars of my cases, and I don't write about the particulars of the fights I get in.

However, sometimes there are exceptions to that rule.  

A few weeks ago, I was handling the case of a friend of a friend of mine in a misdemeanor court.  He had been charged with an assault case and a criminal mischief stemming from the same incident.  At trial, he had been acquitted of the assault, but convicted of the criminal mischief and placed on probation.  By September, a Motion to Revoke had been filed on his probation and I went to court with him.

The Motion to Revoke was based largely on delinquent fines and fees, but I knew that a failure to attend anger management allegation was probably not going to sit well with the Judge.  My primary goal in going to court with him was to see if the Judge was willing to entertain the idea of letting him catch up on anger management and not revoke his probation.  

When I got to court, the CLO told me that in addition to the fines, fees and anger management, the Complainant on the cases had been calling in and claiming that my client was threatening her.  I was surprised, because that was not written in the actual Motion to Revoke.  Ultimately, I was told that I needed to speak with the Chief of the court.

This was where things began to go south.

I had met the chief in passing during the time he was serving as a Felony Three, but I didn't really know him or even his name.  All I really wanted to do in talking with him was get an assessment over whether or not it would be a realistic option that my friend would be staying on probation.  I handed him the file and sat down next to him at counsel table.

"I know this case," he said.  "He's been threatening her."

"That's what I keep hearing, but I don't see that alleged in the Motion to Revoke," I said.

"We can amend it," he snapped.  

"Um, yeah, I know you can amend it," I said, "but amend it to say what?  What are the allegations?"

"He assaulted her."

"He was found not guilty of that," I reminded him.

"I'm still going to use that against him," he snapped.

"Well, good luck with that," I said.  "I still want to know how he is supposed to have been threatening her."

"She's been e-mailing me," he said.  He began typing at his computer and pulled up two surveillance photos of my client -- presumably at the complainant's apartment.  Both photos were date and time stamped and preceded my client having been placed on probation -- a fact I pointed out to him.

Not to be deterred, he popped up another email - this one a written email from the Complainant to him.  As we started to read it, the Judge called him up to the bench.

"Can I finish reading this?" I asked him.  

"No," he said.  "You can't."  He then looked at another prosecutor and said, "You make sure he doesn't read this."

At this point, I was both annoyed and amused.  He had begun showing me the email on his own and I asked whether or not I could look at it without him as a courtesy.  When he commanded the other prosecutor to make sure I didn't read it, I initially thought he was joking.

"Seriously?" I asked.

"Yeah," he said, loudly.  "Seriously."  It was embarrassing.

The case got reset that day and we reconvened last week.  After talking with the Judge, it was decided that my friend/client wouldn't be continuing on probation and that he would be spending some time in the Harris County Jail.  I asked the Judge if she had an amount of jail time in mind.  She stated that she wouldn't accept a recommendation of less than 45 days, but that I would need to speak with the chief.  After talking to my client, who said he would sign for 45 days, I approached the chief.

"I need a recommendation on this case," I told him.

"What did the Judge say?" he asked.

"She said no less than 45 days," I said.

"Okay," he said, "then how about 45 days?"

"Sounds great," I said.  "We accept."

He was very polite and began filling out paperwork.  As he was writing, I thought we must have just caught each other on a bad day at the last setting, and I was glad that we were going to work things out.

Then, he began to frown.  

"I remember this case," he said.  He stopped writing up plea papers, marked on the file and tossed it to me.  He had crossed out the "45 days" and written "60 days."

"You offered us 45 days and we accepted," I said to him.

"And now I've revoked the offer."

"You can't do that," I said.  "You made an offer, and we accepted it."

"And now I've revoked the offer," he repeated.

"You can't do that," I said again. 

"I just did," he said.

At this point, the Judge called to him from the bench and told him he needed to quiet down.

He stood up and announced, "I'm sorry, Judge, but this defense attorney here is trying to pull a fast one on me."

It was at this point I got really annoyed.  To my credit, I resisted the urge to tell him I had been the chief of this court before he was old enough to drive.  We approached the bench and I pointed out to him and the court that if he was going to base how he handled the case on emails from the Complainant, then I was probably entitled to see those emails under the Michael Morton Act.  As it turns out, the Complainant had not actually made any claims that my client was threatening her since he was placed on probation.

So, we returned to the issue of the 45 day offer that my client had accepted.

"Maybe you should call the Deputy Division Chief and talk to him about offers and acceptance," I said.

He indicated that he wasn't going to do that.  So, I did it for him.  After a brief conversation, the 45 days was re-offered and re-accepted. 

Now, I don't know if this particular chief missed the day in law school where we all learned about how an Offer plus an Acceptance plus Consideration equals a Contract.  At the risk of sounding 75 years old, back in my day at the D.A.'s Office, if we made an offer and it was accepted, we didn't revoke it.  That was all there was to it.  A deal was a deal.

Additionally, withdrawing a plea bargain offer after acceptance is considered unethical by the American Bar Association.  Standard 3-4.2(c) states: 
"A prosecutor should not fail to comply with a plea agreement, unless a defendant fails to comply with a plea agreement or other extenuating circumstances are present."
There isn't a prosecutor alive that hasn't made the mistake of making a recommendation that they later decided was inappropriate.  It just happens.  Office folklore is filled with people who inadvertently offered 2 years TDCJ on a Defendant who was looking at 25 years to Life.  

You just have to accept the fact that you screwed up and move on.  

Thursday, September 24, 2015

Kim Ogg to Run Again

I received an email today from the Kim Ogg for Harris County District Attorney campaign, stating that there would be a campaign announcement tomorrow (September 25th) at 10:00 a.m. across from the CJC.

This is not surprising news, since she pretty much confirmed that she was going to run again immediately after she lost the election for the unexpired term in 2014.

As I stated when she ran last time, Kim is a qualified candidate.  I was disappointed with some of her antics during her 2014 campaign, and I hope there will be more of a discussion of actual issues this time around.

It is worth noting that Kim had a closer margin in her race than most other Harris County Democratic candidates did in 2014.  She is definitely someone that Harris County District Attorney Devon Anderson will need to take seriously on the campaign trail.  However, Devon will now be viewed as a solid incumbent with several years under her belt by November of next year.

As usual, my amateur political analysis is that this race will be decided by who the Republican and Democratic candidates for President are.  I don't see Hillary Clinton, Bernie Sanders or Joe Biden inspiring Democratic voters to flock to the polls like they did for Obama in 2008.  That being said, if Donald Trump ends up as the Republican candidate, I could absolutely see the Latino community being very motivated to get out and vote against him.  I think the Latino voting bloc is the most influential segment of voters in Harris County right now.

As always, the presidential election years are always so much more interesting than the gubernatorial ones.




Tuesday, September 15, 2015

New Fault Lines Post

Today's new post at Fault Lines deals with a story out of The Atlantic which talks about the "Victimhood Culture" and how it applies across the board in the Criminal Justice Arena.

You can read it here.

Wednesday, September 9, 2015

Finding 37 and the David Temple Rebuttal

Yesterday afternoon, the Harris County District Attorney's Office filed a response to Judge Larry Gist's Findings of Fact and Conclusions of Law on the David Temple case.  The document, entitled Respondent's/State's Objections to the Habeas Court's Findings of Fact and Conclusions of Law, is 80 pages long.

The lengthy response painstakingly addresses each and every one of Gist's findings and rebuts his findings that prosecutor Kelly Siegler withheld exculpatory Brady information during Temple's 2007 trial.  Unlike Gist's findings from the Habeas hearing, the response actually cites the record (both from the original trial and the hearing) in dismantling the findings.

Additionally, the response brings to light a disturbing irregularity that casts even more doubt on Gist's findings -- more on that in a moment.

As those following the Temple case know, Judge Gist's findings listed 36 findings (remember that number, it will become important shortly) in recommending relief for David Temple.  Some of those findings dealt with allegations of Brady violations and the Response addresses them all.

Here are some of the highlights.  I highly encourage anyone interested in the case to read the Response for themselves.

Finding # 9-  that Kelly Siegler never turned over an FBI report to Dick DeGuerin during the trial.
   Apparently, the animosity between DeGuerin and Siegler was so intense that Dick taped all phone calls between him and Kelly and then had transcripts made.  That would prove to be his undoing when (despite his claims) one of these transcripts had Siegler informing DeGuerin (two years prior to the Temple trial) of the report and telling him he could review it whenever he liked.
   This was all produced during the habeas hearing and why Judge Gist would make this finding inexplicably contradicts the record. [p. 4-5]

Finding # 31 - that Kelly Siegler failed to turn over a Harris County bulletin that stated that the murder of Belinda Temple occurred between 4:15 p.m. to 5:30 p.m.
   The transcripts of the trial are very clear that the exact time of Belinda Temple's murder was never firmly established and that the time estimate on said bulletin was just a preliminary guess. [p. 8-10]

Findings # 3 & 10 - that Kelly Siegler withheld the statements of alternative suspect Riley Joe Sanders.
   This particular response is long and detailed.  Again, I would encourage the reader to look at the response itself.  The bottom line is that the record is very clear that DeGuerin was made aware of Riley Joe Sanders and the Defense team tried very hard to portray him as the true murderer of Belinda Temple.   DeGuerin acknowledged that he was aware of Sanders two years prior to the trial.
   Sanders gave five oral statements and two written statements.  On pages 11 & 12, the response has a chart, illustrating the discrepancies (if any) between the seven statements.  The response acknowledges that the Defense was not made aware of the contents of two of those statements, but notes that there was nothing exculpatory in them, nor anything inconsistent with the other five statements.

Findings # 8 &17 - that Kelly Siegler failed to turn over the written statements of several witnesses related to the alternate suspect, Riley Joe Sanders.
  This particular portion of the findings argues that none of these statements were exculpatory -- to the contrary, they actually corroborated the written statements of Riley Joe Sanders.  [p. 24]

Finding # 21 - that Kelly Siegler misrepresented the name of [witness] Carlos Corro as "Carlos Gutierrez."
  This is perhaps one of the most amusingly erroneous findings by Judge Gist.  As noted on p. 40-41, it was actually Dick DeGuerin who bungled the name here.  During a hearing outside the presence of the jury, he was the one who began referring to Corro as Gutierrez.

NOTE:  At this point, one starts to wonder whether or not Gist was paying attention to the evidence being presented to him.

Finding # 27 -  that Kelly Siegler did not reveal that the Temple family dog, Shaka, had access to the garage of the home from the back yard.
  This is my favorite finding.  This finding basically says that Siegler withheld the layout of David Temple's garage from David Temple.   There's more to it than that, obviously, but it is a silly assertion.  Yet again, I encourage you to read the findings for yourself.

Findings # 1, 4, 6, 11, 12 & 13 -- that Kelly Siegler failed to properly disclose information regarding numerous shotguns that could have potentially been used as the murder weapon.
  This is a very key point in the Repsonse [p. 48] as it deals with multiple weapons that could potentially be linked to Riley Joe Sanders and any other "alternate suspect."  In pages 50 - 54, each firearm is addressed, along with a citation that illustrates that defense counsel was made aware of each weapon either before or during the trial.

As I said earlier, this is not a comprehensive list by any means, but it does show some of the highlights and citations.  A more thorough reading of the response will show more examples of Judge Gist making strange findings in light of the evidence.  Why Judge Gist would make these findings is hard to understand.  However, an event that occurred after the close of evidence and after Judge Gist released his findings may shed some light on the topic.

Beginning on page 69 of the Repsonse:
"On August 20, 2015, habeas counsel Stan Schneider and Casey Gotrow [sic] sent an email to Judge Gist -- the habeas court for the purpose of the writ proceedings -- and asked him to consider entering amended findings and conclusions of law.
"On August 21, 2015, the habeas court replied to the email stating, 'I will review the submittal and advise all parties whether or not I will grant the defendant's request over the State's objection.  However, I will not add additional fact findings.
"On September 2, 2015, the habeas court filed amended Findings of Fact and Conclusions of Law and the habeas court's cover letter stated, 'This is identical to the original filed in the Court with the addition of citations to the record regarding each finding.'
"However, a review of the amended Findings of Fact show the addition of a new finding - no. 37.   On September 4, 2015, the State emailed both habeas counsel and the habeas court asking about the addition of finding no. 37 in light of habeas court's statement that the court would not add additional findings and that the habeas court was filing amended findings that were identical to those formerly filed -- findings that were numbered 1 through 36 and did not include finding no. 37.
"On September 8, 2015, the habeas court sent a letter to the Court of Criminal Appeals stating that the habeas court, i.e. Judge Gist, 'never made finding No. 37 and do not make such a finding now.'  The habeas court further requested that the Court of Criminal Appeals 'please delete finding No. 37 from the document recently sent to you.'"
So, what does that mean exactly?

It means that Stan Schneider and Casie Gotro told Judge Gist that they would like an additional finding put in his Findings of Fact and Conclusions of Law.  Judge Gist told them "no."  Yet, somehow, an additional finding was added anyway.  When brought to Gist's attention, he stated that he didn't author that finding and he demanded it be removed.

So who authored it?  Well, that would obviously be Team Temple -- Schneider and Gotro.  Despite Judge Gist saying he would entertain no additional findings, they wrote it anyway and submitted it on his behalf, apparently.

That's a pretty damn brazen move to make.

More importantly, it calls into question how much attention was Judge Gist paying to the testimony he was hearing during the habeas hearing.  His first set of findings had no citations to the record.  Most (if not all) of his findings are directly contradicted by the record of the trial and/or the habeas hearing.  Clearly, he paid no attention to the citations provided by Schneider and Gotro in the amended findings, or he surely would have noticed that they had added the unauthorized Finding #37.

The mere fact that an additional finding was surreptitiously added without Judge Gist's knowledge calls into question the integrity of the entire hearing.

Of course, that only matters if you are interested in things like . . . the truth.

In typical fashion, Brian Rogers wrote a piece for the Chronicle which glossed over the D.A.'s Office's responses, linked to previous articles which blasted Kelly Siegler, and quoted Temple attorney, Casie Gotro, extensively.  Rogers made no effort to contact Siegler for a comment and apparently avoided asking Gotro any hard hitting questions such as "Did you actually add a judicial finding and slide it past the judge?"

Finding # 37 is not mentioned once in his article.

Gotro and Schneider have spent the past several months questioning Kelly Siegler's integrity and accusing her of not playing fair during the Temple trial.  The Chronicle has been more than happy to oblige them and post every last allegation.  They have gleefully called Siegler a cheater while touting John Denholm and Steve Clappart as heroes for attempting to arrest two innocent kids for capital murder.

As it turns out, it doesn't look like Kelly Siegler was the one breaking the rules.

Tuesday, September 1, 2015

An Interesting California Case

For those of y'all that think California is off its rocker when it comes to criminal law, you should read this post today at Fault Lines.

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.