1999 marapr docket call

8/11/2019 1999 MarApr Docket Call

1/24

DOCKET

CALL

MARCH

APRlL 1999 A Publication

of

Harris

County

Criminal Lawyers Association

lVilf ray

nd

emor

:ludje

J7(iron 3oue

See

eflections o page 8 for

tributes


2/24

FIR S T H P P Y H 0 U R D R

I N K

I

S A L W Y

S F R E E FOR ] U D G E S

L W

Y E R S A N D

L D

I E S

JONES

4 1 m a 1 n . d o w n tow n h u s ton . 7 1 3 . 2 2 5. 6 6 3 7

March /

pril

1999


3/24

DOCKET CALL March / April 1999

Contenets

HCCLA OFFICERS

1998-1999

PRESIDENT

Lloyd

W

Oliver

PRESIDENT ELECT

Danny Ea

sre

rl ing

VICE PRESIDENT

Jay Karahan

SECRETARY

Rosa A. Eliades

TREASURER

Loren

A.

Deramore

PAST PRESIDENT

Roberr

A. Moen

BOARD OF DIRECTORS

David Mircham

Terry W. Yares

Roberr

PeltOn

Clyde Willi

ams

Randy Marrin

Joe VaIeia

Ron

Hayes

Ell is McCollough

Ga rla

nd

McInnis

E.

Ross

Craft

Mark Bennerr

RichaId

L

Moore

Richard Frankoff

Angela Cameron

Rick So liz

Jack

Carroll

Tyrone C. Moncri

fTe

PAST PRESIDENTS

1971-1996

C. Anrhony Fril ioux

Srua

rr

Kinard

George Louquene

Marvin O. Teague

Dick DeGuerin

W.B.

Hou

se,

Jr.

David R.

Bires

Woody Sensen

Wi

ll

Gray

Edward A. Maller

Carolyn

Ga

r

cia

Jack

B. Zimme

rm

an

Clyde Willi ams

RoberroPe ltOn

Candelari o Elizondo

Al l

en C. Isbell

David Mi

rch

am

Jim E. Lavine

Rick Brass

Mary E. Conn

Ke nr A. Schaeffer

Dan Cogde l

Jim SkeltOn

George Parnham

Ga rland D. McInnis

From the President .

. .

.4

.

. .

Common

ense Ethics .

.

.

.

. . . . .

.

.

5

From the Presiden t Elect .

.. . . . . . .

. 6

Proposed Constitutional Revisions .

. . 7

Internet

for ttorneys .

. . 8

Neuropsychology .

10

Meet the Judges

14

12 Steps to Curing

Writ

fear . .

16

Reflections 18

Hearsay

21

Fed Square 22

Upcoming ClE

23

Let's

Hear

From You!

Call us

with your

suggestions on this publication.

DOCKET CALL

Publisher:

HCCL

Editor Emeritus:

Allen Isbell

Editorial Staff:

Rosa Eliades, Jay Karahan,

Patrick McCann, Melissa

Martin

Advertising Staff:

Martin

Mayne, om Radosevich

Design and Layout:

Jeffrey esch

@

Vyvid Productions

(713)

236-0770

Distribution: 1,000 copies per issue. For article and other editorial

contribution,

contact

Ro

sa Eliades

at

(7

13)

222-0610 or

Patrick

McCann

at (713)

223-3805

To place an ad, call

Martin Mayne

at (713) 224-8400 .

ADVERTISING RATES: (Rates are subject to change)

Full Page: $300.00

112

Page: $150.00

114

Page: $75.00

Business Card Size: $37.50

March /

April

1999

DOCKET

CALL

3


4/24

From the President

LLoY

W

OLIVER

Since you elected the present officers and

directors of the Harris County Criminal

Lawyer's Association, our membership roll

has doubled in size. Last

month

I reported

to you in Docket Call

that

we had 300

members in

our

organization.

That

was an

all

time high, and quite an accomplishment

in itself.

Well, are you ready for this?

As of

the last

seminar,

our membership now exceeds 400

criminal defense lawyers. How about that? I

am

so

proud

of

our Board

of

Directors. They

have worked so hard, and get so very little

recognition.

As

I am sure you can tell by now, I just

love tootin'

our

own horn, but then again

we've done so much,

just

since our last

publication.

Remember, in our last publication of

Docket Call it was related how I had to front

postage money to HCCLA for a seminar

because we were so broke. Remember, I

informed you that because

of

our hard work

and persistence, we now had a surplus in the

HCCLA coffers.

That

was a first in the

history

of

this organization. Now it is even

better.

You

may want sit down for this one....

The

HCCLA/Terry

MacCarthy

Cross

Examination

Seminar was the

most

successful in the history of our organization.

Over

300

lawyers attended and we almost

filled the auditorium at South Texas College

of Law. Don't you

know

the Texas Crimina l

Lawyers Association is GREEN with envy,

as

well

as

HBA and the State Bar

of

Texas.

In addition, the

Cross-Examination

Seminar will

NET OVER $20,000

for

HCCLA. Yes, that 's right, this is not a

misprint. HCCLA is now FAT.

I

am

so

proud

of

Mark and Jennifer

Bennett, the HCCLA Board

of

Directors

and all those who helped in making this

possible. They gave so much

of

their time

and worked so very hard.

On the first few pages

of

Docket Call, you

wiJi

find the names of the HCCLA Board

of

Directors.

The

next time you see them in

the courthouse, stop and shake their hand.

They

do so very

much

for all of

us

.

Next, I am sure you members are asking

yourselves: What

is

the organization going

to do wirh all rhat money rhat we members

have entrusred them wirh?" Well , rhis I can

guarantee you, it will not be "doled" out to

some projecr rhat will not pay for itself.

Further, you may rest assured

that your

money will not be

squandered

on

some

pointless

seminar,

where

the

only real

purpose

is

to enhance someone's self esteem

I am

sure

you

will

agree

that this

organization has nothing tangible to show

for all the thousands

of

hard-earned dollars

generated by its membership in its 27-year

history. To remedy that, I propose a three

year plan to set aside funds dedicated to the

purchase

of

our own building. This will give

this organization credibility and an identity

it has never had before To achieve this is

sim pie . We begin by pu

rchasing

some

property near the new

Harris County

Criminal Justice Center and, when

additional

funds permit, build our

own

HCCLA

Justice

Center

. We currently have

$10,000

in a separate

interest-bearing

account . We could designate these funds,

along with the $20,000 from our seminar

for

our

building fund, and we are on our

way

Think about it ... our own building

It is

really not just a dream. We can make it

happen. At

our

next board meeting, I will

make this formal proposal. So wrire me or

telephone me, and let me know how you

feel

about this HCCLA Justice Center, and

about

spending your money.

Now, on another note, I must tell you

about the Terry MacCarthy Cross

Examination Seminar.

Racehorse Haynes introduced MacCarthy

and described him

as

the Father

of

Cross

Examination . Over 300 lawyers gave im a

Texas size welcome, and it got better from

there

MacCarthy began by telling us that he was

probably better known

by Federal

prosecutors

as the Muther of cross

examination and had probably lost more

cases than he had

won.

Nonetheless, he

shared

with us the

many

things

he had

learned

from losing, and it was

most

informative.

He

suggested that all good lawyers are

good storytellers, and we should converse

with the wi mess, communicate with the jury,

and not bore them like prosecutors. Cross

examination of a witness, he related,

is not

an art form but is a science, and, he began

to teach us his system.This system has several

basic rules. I especially remember the Rule

Number One, rhe one you should always

began your trial with,

and

I have included

some of the others for you:

Rule

No.1

Stand up and try to think

of

something nice to say to the judge.

Rule

No.2

The podium

is

an impediment

to communication. Don't use

it

Rule N o 3 When you begin cross

examinarion

of

the state's witness do not ask

his name.

We really don't care what it

is,

and we don't

want the jury to remember.

Rule No.4 Cross-examine a witness, not

with a challenge,

but

with words such

as:

"Isn't it fair to say that. .. ", or "We can agree

that . .." or, "Tell us your version

of

what

happened.. .. "

Rule

No.5

Ask the witness questions that

will get a "yes" response. The more "yes"

answers, the better.

Rule No.6 Always Look

Good. Do not

lose your credibility in front

of

the jury.

The more "yes" answers, the more

credibility, the more you look good.

Rule No.7 If you want a "yes" response,

nod your head

yes

before, during, and after

the question.

Works every time.

Rule

No.

8 Your mother was the best

cross-examiner ever, and, women are better

cross-examiners than men... unless you send

them to law school, and then they lose it.

Rule No.9 Write on the blackboard while

you communicate . Write labels for people

like "convicted felon," "armed robber," etc.

Rule No. 10

Short statements

equal

control. The length of the question

determines the length of the response.

Eliminate prefixes and suffixes, like, "Isn't

it true that . ."

Speak like you are in a bar and tell the

jury a story.

Rule No. 11

If

the witness does nor answer

correctly, repeat the question slowly.

Rule No. 12 "Asked and answered," is not

an objection. Look it up.

Rule No. 13 When the prosecutor

continues to object, let her turn the trial into

a

game

of

Simon

Says.

She

loses

her

credibility and does

not

look good.

Rule No. 14 Smile. A smiling attorney

is

more trustworthy, believable and looks good.

If you missed this seminar, we are already

planning the next one. I can't reveal rhe

speaker's identity, because it

is

not yet

confirmed ,

but

it should be as big, or bigger,

than this one .

You

can srill depend

on

the

Harris County Criminal Lawyers

Association to provide the least expensive

and highest quality CLE in Texas.

DO KET

CALL

March /

April 1999


5/24

Common ense

Ethics

BY

JUDGE. JE.AN HUGHES

Wake up in a really bad mood? Got a full

day and you're

not

prepared? You get to the

courthouse only to scream and growl at

everyone?

Never fear. If your

past

has

been

admirable, then you can survive

with your

reputa tion intact. We all have

our

bad days

but

they are only that, provided you have a

reputation for being honest and prepared.

Judges talk

about

attorneys

and

vice versa.

We know who can and can't be taken at their

word . Here are a few simple survival tips.

Never intentionally

mislead

or

lie to

the

court. No

one

client

is

worth your bar card.

Triumph on

the law and the facts. Judges

have

better

memories than

you

think

Remembering the trLlth

is much

easier

than

a lie or "slight" fabrication.

Be on time and

aware of

court

policies.

Notify the

court if

you will be late. You

do

not

want to arrive to see a jury panel seated

in rhe

courtroom

staring

at that empty

chair

by your client. Get to trial and motion

settings first and be aware of the court 'S

policies .

Do n

't ever ridicule a

court

's policy,

especial ly to the judge.

Be organized. Know where you can

dispense with business quickly. It can save

you a lot of time and perhaps money. Don't

leave clients sitting in the

courtroom

for

three or four hours wondering where you

are. A

waiting

client

with money

in his

pocket may hire someone else. Clients have

lives too and probably need to return to

work

so they can pay your

fee

Be courteous to

court

staff.

They

can save

you

or

they can kill you

on

both good and

bad days. You get

much

more from being

polite

and

professional

than

from

being

demanding

and trying to "bulldoze"

your

way around the courtroom .

Listen to

what others

have to say.

You

'd

be surprised what you can

learn

from

listening.

Act professionally.

As

attorneys, we need

to

strive to improve

our

reputation rather

than confirm it. Sitting

in

the back of a

courtroom

or

in the hallway sometime

as an

observer can be an eye-opening experience.

Jurors are people too . Be aware of their

time and patience.

They

are the ones making

the decision

about your

client. You also

never know when there is potential business

staring you in the face.

Explain

settlements,

plea

bargains,

conditions of probation.

Take the time to

discuss all

the

details

with

clients.

Have

Don't ever

come

to

court

with alcoho

meetings with clients in your office rather on

your

breath. No maner

what

the tim

than just in the

courthouse

hallway. of day

Be honest and direct with your clients. Never use profanity. Even in a feebl

Don't feed

your

client a line

or

foster false attempt to

mak

e a

point or

be funny.

expectations just to get business. It will come Never

say,

"Judge, you can't do that " JUS

back to haunt you. watch 'em

Don't

ignore

the

grievance

committee.

While

these points may seem obvious,

Respond

even

if

it

is

a

totally

frivolous little

reminder doesn't

hurt.

Put

a littl

complaint. humor in your life and take time to relax

Don't

hesitate to ask for assistance.

If

It's

not

worth a heart attack. Besides, if you'r

overwhelmed, don't be embarrassed to ask suffering from all that stress, you can't enjo

for help .

The HBA Mentor program S

all the

money

you're making, can you?

designed for this purpose.

State License # A7738

R.J.

Vargas

Private

Investigations

-Criminal

and Civil

Investigations

-Process

Serving

-Surveillance

3700 N.

Main

Houston, Texas 77009

Tel 713.426.0022

Fax: 713.426.1040

pgr: 713.761.1132

March / April 1999

DOCKET

C LL


6/24

From the President Elect

D W I quotas,

field

sobriety

gymnastics

and

task

force

overtime

$84 ,823 .05 in

1996

. $83,567.57in

1995

,

BY DANNY EASnRLlNG

$79

.096.45 in 1994 and $83,115.84 in

My recenr jury rrial,

fa

cing rwo

HPD

1993 . How can anyone think there is not

OWl

Task Force veterans, was a lesson

on

an

inherent

bias

and

motive to file marginal

wh y not to be on Westheimer at around

OWl

cas

es

when this kind of money is there

midnight with

alcohol on

your breath.

[Q

be earned by an officer on the street.

Despite a few

obstacles,

such as

poor

And

now

for the famous clues on the

performance (or did he fail?)

on

the field field sobr iety tests. The way prosecutors and

sobriety tests. ditto for the video, a fact officers portray these te s

t s -" s impl e,"

witness confronred with a OWl arrest that

any

one

can

do

them" and

not

difflcult"

res

ulted

in

an acquitt

a l in 1997

and the

is absurd. Jurors usually see through this

exclusion of any demonstration of the field

proverbial blowing

of smoke

,

but

they have

sobriety tests in the

courtroom

by anyone, [Q be continuously reminded that they

might

the jury returned the sought-after rwo-word

very well look the same on the video, whether

verdict. sober,

inroxicated

or,

most importand

y,

The

trial was three days after Fox 26 News somewhere in berween.

had run a story about reporter Randy Wallace

The

day after the rrial, a juror caJled and

discovering an

HPD

OWl Task Force

quota

told

me

I was a damn good lawyer. I

sheet. I have included it below for everyone thanked

him

,

and

he shared his

jury

service

to see

and

inrerpret for themselves. The

experience

and

opinion with me for the next

officer

admitted

that he had seen

the quota

twenty minutes .

These

verdicts , sincere

sheet (on the news only, right) but quickly gratitude from clients

and

calls from jurors

denied

under

oath that they had any quota.

recharge

me to face the Crown a

nother

d

ay.

I have had many other jury trials with the

se

Ob, by

the

way. the juror that called me; his

officers and know their history

of making

son is

an

HPD officer. Go figure.

substa

ntial

overt ime money for court Last

but

not

least. on a

nother

subject, my

appearances on

OWl

cases and

traffic

sincere thanks to Rosa Eliades,

Editor

in

citations. T herefore, I sent an Open Records

Chief,

and

the editorial staff for all their

long

Reque

st to

HPD,

and

my suspicions were

hour

s

in

recreating this magazine. Rosa

is

again confirmed. The primary

HPD

officer always seeking articles, new creative motions

on this case made

$44,449.48

in overtime

or opinions

to publish, so call her at (71 3)

in 1998 and with a base pay of $39,405.75, 222-0610 with any input.

made a gross

of $83,855.23

for 1998

(not

Keep

up the

fight : every

one becom

e a

bad, eh?) . He made $83.791.63 in 1997,

member and every

one

enlist a member.

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March/April 1999

DOCKET

C LL

23


24/24

Great Southwest Building

1314

Texas

A ~ e n u e Suite 1100

Houston

Texas

77002

or

Leasing Information

713 228 8300

LE SE SP CE V IL BLE

250

sq.

ft. to multiple floors

a ~ a i l a b l e

o m p e t i t i ~ e rental rates

n site leasing and

management

Building

identity a ~ a i l a b l e

ew

ownership

Major r e n o ~ a t i o r i s

Near

the

courts

c o n ~ e n t i o n

center

and new stadium

March / April 1999

BULK

PARCELPOST

U.S.POSTAGE

PAID

HOUSTON,TEXAS77002

PERMIT

NO. 11500

24

DO KET

CALL

929Preston Suite200

Houston,Texas77002

Norman Silverman

3223 Smith 325

ouston

TX 770cy;

1999 marapr docket call

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