2008 winter defender

8/11/2019 2008 Winter Defender

http://slidepdf.com/reader/full/2008-winter-defender 1/24

WINT R 2 8



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mailto:[email protected]






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From the Editor

By

Shawna

L

Reagin

Winning Warriors

From the President

By Mark

Bennett

HCClA Hosts

t

All Hallows Eve

Poker Tournament

By Wendy

Miller

Strategy Cross

Examination:

Push

or Pull

By

Joseph

W

Varela

Tribute to Margy

Meyers

By Hon

Keith P. Ellison

Public Defenders Office: Pros

&

Cons

By

Mar

k

Hockglaube & David

Mit

cham

1984 85 HCClA Board

Motion

of the Month

By Robert

Pel ton



HCCLA

~ ~ ~ ~ ~ ~ ~

2008-2009

PRESIDENT

Mark Bennett

PRESIDENT ElECT

JoA nneMusick

VICE

PRESIDENT

Nicole DeBorde

SECRETARY

1

B

Todd

Dupont

II

TREASURER

Steven

H

Holpert

PAST

PRESIDENT

Patrick f

McConn

BOARD OF

DIRECTORS

St ac

i Biggar

DavidCnning

ham

Tyler

flood

Tu

cke

r Groves

Mark

Hochgl

oube

Rondall

Kollinen

David

Kiotto

Marjorie

Meyers

Dovid

Mitchom

Roland Moore III

[orl D Musick

John

Pa

r

ras

Cormen Roe

0.Tte Wi li lOms

Sarah

V Wood

PAST

PRESIDENTS

1971 2007

C Anthony friloux

Suart

Kinord

George

luquette

Morvin O Teague

Dick

DeGuerin

WB

House

Jr.

David

R Bires

Woody

Densen

Will

Gray

[dward A

Mollett

Carolyn Garcia

Jock B Zim

m rmann

Clyde Will i

ams

Robert Pel ton

Can

delario [Iizondo

Allen C sbell

David Mitchom

Jim L ovine

RickBross

Mory [ Conn

Kent

A

SchoPPer

Don Cogdell

JimSkelton

George

J Pa

rn

hom

Garland D MCinnis

Robert

A Moen

lloyd Oliver

Dnny

Easterling

Wayne Hill

Rich

a

d Fron koPP

W Troy M

Ki

nney

Cynth o

Henley

Sto nl ey

G

Schneider

Wendell AOdam Jr.

R

bert

J fickm on

Publisher:

HCClA

Distribution 600 copies per issue.

Editorial Staff:

Shawna l Reagin

For articles and

other

editorial

Ads

&Distribution:

JoAnne Musick

Christina

Appelt

contributions, contact Shawna L

Reagin

Design &Layout:

limb

Design

www

.limbdesign com

at 713 -224-1641.

To

place an ad,

call

Cartoon Art:

Gilly Ross

Shawna L Reagin

at

713-224-1641

FAREWELL

~ ~ ~ I ¥ ~ ~

EDITOR

As I prepare

to

make the leap into my new role as judge of the 176th

District Court, I have

been

de aling with a lot

of

conflicting emotions.

Although

I am happy and excited to be

moving

on to a different field

of challenges and opportunities, I fll d myself wrapping up my practice

with a certain bittersweet sadness

and

regret. Almost

20

years

of doing

anything becomes quite a habit, and being a criminal defense lawyer was my

sole ambition for most of my life [after I quit wanting to be President of the Urrited States].

I never became the lawyer I truly wanted to be, even

though

I tried hard.

Jury

trial success

continued to elude my grasp, and I lost many appeals I believed should have been won and

perhaps could have been

won

, had I

managed

to do a little bit better

job.

As I've said many

times, Katherine

Scardino

turned out to be the lawyer I dreamed of being; I can only aspire

to someday follow in her footsteps. Although I would like to spend many years

on

the bench

I am

cognizant of the

distinct possibility

that

I will

sooner

or later be

returned

by

the

voters

to

criminal defense work.

I will miss e

diting

The efender

and being

actively involved in HCCLA more

than

any

other recent

aspect

of

my career. Learning

to put together

a

magazine,

pretty

much

by the

seat of my pants, has been

some

of the most fun I've ever

had

for free . The power

of

th e press

is essential to effecting necessary

change,

and I like to believe that we h

av

e made ourselves

more

of

a voice in the local criminal justice system

than

ever before. By virtue of a co mmitted,

intelligent

and hard-working

leadership,

HCCLA

has evolved

into

a force with which

to

be

reckoned. I have faith that

the

new

Editor,

Kathryn Kase, \vill carry The efen el

to

greater

summits

ye

t,

with

the

help of th ese great people.

I urge you all

to

continue

to

be vigilant against abuses by the prosecLltion and the judiciary

Expose

corruption wherever

you tind it. Speak

truth to

power.

Fight incompetence on

the

bench

and

within

our

own

ranks .

Own

th e political process and utilize it

to

effect

the

changes

you desire . Most

of

all, be fearle

ss

in

your

defense

of those wh

o rely upon you as

their

only

hope

for

fr

eedom and justice.

n

closing, I encourage each and everyone of you

to

administer whatever remedy you find

most

effective if you ever

observ

e me

to

have fallen victim to

the

drea

ded

Black

Robe

Disease.

[ realize that for some, this will have occurred the mo ment I fail to rule for

the

defense.]

Thanks to you all for

your

help and support over

the

years.

_ Shawna L. Reagin

http://slidepdf.com/reader/full/www.limbdesign.com





http://slidepdf.com/reader/full/2008-winter-defender 5/24THE EFEN



yMark

annatt

Who'd've thought that

remaining

judge in

Harris

County lnight

require more than

the

imprimatur of

the

local

Republican

Party?

Granted, the process was

unpredictable,

but so are

the

lives of

the

vast majority of

the people

who

appear

before

you

every day

. Your future

employment

is

n't

looking

quit

e so

certain, but how many people

do

you know who know

that they'll have the same

job

four years from now1 How

,many of

the

people appearing before y

ou

know that

.

they'll have the same job in twelve months, much less

four years1

We ma y

all

reasonably wish that the system were a

little

more

rationaL. If you have any political I 'd

love to see y

ou

using it to reform

the

Election Code so

that judges-those elected officials vvho should be farthest

removed from partisan politics-were chosen by some

method other thah partisan el

ctions. You've got nothing

to lose if you think you'd keep your jobs

on

your merits,

without depending on ignoranr straight-party voting.

Until that t:u-off day when

our

judges chosen for

their capacity for justice rather than

their party

aftiliation,

•

the best that

we

can hope for

is

races that are close enough

that they are decided by those who are in fact familiar with

the candidates and the offices for which they are running.

Let's be honest . Some of you don't

treat

the

,

human beings in your courts very well. Some

of

you are

discourteous;

some

are downright nasty: to the parties,

to

the witnesses,

and to

the lawyers. You're mostly polite

to

the

jurors, of

cour

se, because in

your mind the

y're

voters. But

all

of those people appearing in

your courts

(except those already serving life sentences) are potential

voters, and none of

them

are fooled.

DEFENDER

6

I read a

CLE

paper some

years back by a civil

judge

who claimed, jurors love me and they hate you ." You

might

share that high opinion of the bench; I suspect that's

what jurors

politely tell you when

you

go back

to

talk

to

.

them after a trial. But

that's not

what they are saying to

us lawyers. Jurors aren't

stupid,

and

no

matter how nicely

you trear them they

know who

the

jerk

in the room is

The lawyers know it too; so

do

your fellow judges.

Has a judge's personaLity ever affected

the

outcome of a

Harris

Coullty

judicial election1 Not yet. But if elections

get closer, it

might

.

The recent

election results prove

that make

people

afraid"

is not

always a winning strategy. The Republican

judges'

costly collective advertising campaign of fear

didn't

carry

the

day.

Nor is

tough on

crime

the magic

phrase it once was, swinging wide

the

doors to

the

bench .

As we've created more criminals , we've also created

more families of voters

who recognize

that tough

on

crim'e" means tough on our fathers, brothers, sisters and

cousins ."

The

voters don t care

about

the

si

ze of your

docket; nor should the

y- the

number

of

cases

on

the

. docket in a.court has nothing to do with.

the

fairness and

justice handed

out

in that court. More

than

that, though,

there is an opportunity

cost

to docket

control:

time

spent

t1xated on the length of your bar

on

the docket size graph

is

time

not

spent

doing

justice:

The

legislature creates crimes

and courts; the DA's Office prosecutes pe ople and can make



plea offers and dismiss cases. Either the legislature

or

the

DA's Office could reduce your docket size; leave the docket

cO,ntrol to them.

So ,,,hat's a judge to do to win over the educated voters?

WAbK HUMBLY.

You

were

all trial lawyers

before

you

were

judges;

we trial lawyers are

not

renowned

for

our

humility.

But arrogance is unbecoming

in trial lawyers,

and

even

more S? in those whose

job

is to

judge

others .

Let

the

humble black robe remind you daily

to

walk humbly:

if

judges were

meant to

feel

superior,

they'd

be issued

bespoke suits instead of black housecoats.

In the

DA's Office, you were

probably

.

taught

to respond

to

defense lawyers' pleas for mercy with

incredulity.

This defendant doesn't

deserve mercy,

you'd

sneer

to the

jury. But mercy is

not something that

,

anyone deserves-if it were

de

served, it

would

not be

mercy. So love mercy

not

because

anyone

deserves it

but

because

nobody

deserves it but you shuw it anyway.

vVhen you show

someone

mercy, it says

nothing about

him

and

everythinl?;

about

you.

Humility and

mercy are easy. Justice is trickier.

O ~ ~ I ~ ~ ~ A 1

~ A 4

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Part of

walking

humbly

is

recognizing that you ar

e

no

omniscient, and

that

your

best

effort at

justice

is

mere approximation.

Clarence

Darrow suggested

tha

we

cling to charity and understanding and

mercy fo

this

reason. But your

job

requires you on

'

occasion t

punish people.

Mistakes are inevitable . You can't kno

how those

mistakes will come back

and bite

you in

th

future.

Frankly, I

don't

envy

you the job

.

In two and

fOUf years all

of you-Democrats an

Republicans-will be opposed

in

elections.

Even thos

of

you

who

try

their

best

to do

justice,

who

lov

mercy,

and

who walk

humbly

will

draw opponents,

no

because

of

the job you've

done

but because the

vagarie

of the system

might

defeat you.

Those of

you,

who d

not do justice, love mercy, walk

humbly

,vill dra

determined

opponents,

because

your

shortcomings

mig

defeat

you:

In

a hundred years all

of

us-lawyers, judges,

an

defendants-will

all

be equally dead. Remember th

the next time you

are feeling

superior to

those wh

come before you

for judgment.

Even if you don't agree with

me

that treating peop

better m a k e you

a better

judge, consider that peop

are

fondly remembered after

their

deaths not

for the

toughness but for their kindness;

not

for the people the

punished but for

the

people they helped. Start

w ~ r k i n

on

that legacy now.

•

e

•

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THE EFEN





THE EFEN ER]

WINTER 08

y

Wendy Miller

liuuzIc

0/1

TO HCClA FOR HELPING

MAKE

DIFFERENCE

IN T

LIVES

OF

CHILDREN

DEFENDER

*

8



The

Poker Tournaments

are a fundraiser for our

HCCLA

Community Service Public Relations/ Speakers

Bureau

committee. HCCLA

has been incredibly active

in this area (such as

continue

sponsoring events for Big

Brothers Big Sisters Amachi kids & contributing to

the

STAR Drug

Court

Christmas

Toy

Box/ graduations . With

its

own

semi-annual fund raiser,

the committee

will

continue

doing

worthwhile projects and sharing HCCLA love .

hat

AMACHITEXAS

MENTOR PROGRAM?

The "Big For a Day"

events

are a wond e rful

opportunity to make

a difference

in the

lives

of

at - risk youth.

The

Amachi Texas program

provides

one-on-one mentoring

for children with one

or

more

incarcerated

parents

.

The

mission

of

th

e

Amachi Texas

Mentor program is to

break the

ge

neration-after

generation

cycle

of

crime and

incarceration

and help

these children reach their maximum potential through

sa f

e

and

positive

mentoring relationships

.

On

an y given

day,

2.2 million

people

are incarcerated

in the

United

States, and over the course

of

a ye ar, many millions

spend time in prison or jail - for

an

annual

COSt of

more than

60 billion dollars . Childre n of

incarc

e

rated

parents are five times more likely

to

commit crimes, and

without positive adult intervention

will more than

likely follow their parents

into

prison.

Due to the

limited

number of adult volunteers i

BBBS, not

every child registered in

the

Amachi

Texa

Program in

Houston has

been assigned a Big Brothe

or Big Sister. There are, on average, 70

childre

left unassigned every

year

due to the low

number o

volunteers registered to be Big Brothers or Big Sister

The"

Big for

a Da y events help address this problem

by inviting children from th e Amachi Texas program

not

assigned

to

long term m e

ntors attend

these even

- with adult professionals (attorne y

s,

judges, la

stud e nts, etc ) serving as the volunteer mentors at th

event

.

In

addition

to hosting mentor

events

each ye

for

BBBS

Amachi

Texas Mentor Program

childre

[for

example

, in the 2007 -2008 bar

year,

HCCL

helped

sponsor

for

the

kids

a

Tea

Time

banquet

an

the awards

for

their Tee Time

putt-putt

tournament

HCCLA also participates in the

annual

Bowl for Kid

Sakes

(

BFKS

) hosted by BBBS-Houston .

BFKS is

on

of the

biggest annual fundraisers

for Big

Brothers

B

Sisters

of Greater

Houston. Money raised by bowle

supports all BBBS programs, including

Amachi

Tex

Mentor

Program . The

"Houston Law

y

er's Bowl"

2008 took place on

July

12th . GO TEAM HCCL

bowling team T he 2009

BFKS

will be at the sam

location on

a

date

in July

(TBA

) .

THE

DEFEND



FIG.

1. COMMAND

PUSH (AFTER LEONHARD)

The antithesis of

command push

is directive

control or recon pull.

It

describes

a

system in which

commanders give to

subordinates

broad statements

of

their intent and the results desired.

Subordinate

commanders in the field work

Out

their own methods and

send force-reconnaissance

units

to probe the enemy.

EMPHASIZES FLEXIBILITY,

INITIATIVE AND

IMPROVISATION

Recon units make contact

with

the enemy surface.

When a 'weakness is spotted, other units are pulle

to

the

gap

in

order

to

exploit

it.

(Fig. 2).

Recon

pu

empbasizes flexibility,

initiative

and improvisatio

A

certain

amount

of

risk is

accepted

.

Enemy resistan

is bypassed if

possible.

7

Tbe attacker's strength

directed

against

the enemy's

weakness

8

[2]\

[2] 7

1\

[2]

[2]

[2]

7

[2]

[2] 7

S ABOUT

CONCENTRATION

OF

[2] [2]

ORCE

TO

CREATE

A GAP

[2]11

\

FIG. 2.

RECON PULL

In a nutshell, command push is about concentration

of

force to

create

a gap; recon pull is about

finding

and exploiting

gaps.

I think this idea applies directly to cross-

examination.

The lawyer who prepares his cross-examinations in

great detail is engaging in command push cross . It is

required

in

certain situations,

such as

those

in

which

cro

is used

to prove

lack of

probable

cause or affirmati

links, or to establish an element of a defense. The cros

examiner knows

in advance

what

he

needs to

elicit fro

the

witness, and hammers (or pries or coaxes) aw

until

he gets it. A script must be written and

the

witne

compelled to

follow

the

script. The cross, if represent

graphically,

would look

like

Fig

. 1.

THE DEFEN



My limited expenence In

civil

trials

indicates

that

civil

trial

la'""yers use

command

pu.sh

almost

exclusively. You

can

watch

civil

trials and

see little

or

no recon pull. The

lawyers,

even

the good

ones, plod

ahead

in a

predetermined sequence, predictably and

methodically. This

may be partly due to the nature

of

civil

discovery; when

a

witness

has

been deposed

by question

and answer,

and a transcript

is available,

command push makes more sense, or at

least

may be

more

tempting.

It may also be a

product of

a civil

lawyer culture that

stresses methodical

preparation

and execution and

fears

improvisation.

BlIt I

think

all

trial lawyers, and especially

criminal

la'vvyers, should

make more

use of

recon pull cross.

Recon pull cross could look

like

Fig. 2.

Any

weakness the witness shows

must

be exploited. Does he

begin

to

glance

at the prosecutor

for

support1 Does he

show anger when a

particular subject

is broached1

Does

he

begin to contradict

or qualify his earlier assertions1

Abandon

the script and start probing

for gaps.

I

recently tried

a

case

in

which

a

constable

testified.

He

was

wearing

his uniform . As an afterthought, I

asked

him

if

he

was

on duty. There

was

no harm

in

either

answer. Sure

enough,

he

was not. I then

asked

him if he normally wore

his

uniform

off

duty.

No,

not

usually.

Why

today1

Because the prosecutor asked him

to. Which prosecutor1

The one sitting right there

at

the

table.

vVhy, because it

made him

look more credibld

At this point

the

objection

vvas sustained, but I

had

what

I

wanted: Evidence of the

prosecutor's

attempt

to manipulate

the

jury

.

This

is a

small example of

finding and exploiting

a

"gap"

via

recon pull cross.

Understanding

military command

and

control

theory

and

applying

both

techniques properly

will

give

beginner and veteran

alike

the means to

plan and

execute cross-examination that

survives

contact with

a

hostile force.

bandon

AND START PROBING FOR gap s

"1'1.111 o()l'lT.lliOIlS,"

(IX71), Sloltke

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TO

Margy Meyers

On November 17) the Federal Bar Association for the

Southern Distt ict

of

Texas celebrated with a gala event

headlined y

Antonin

Scalia) Associate Justice of the

U.S. Supreme

Court

Also that evening) the Association

honored Federal Public

Defender

Margy Meyers

with

its

Michael Taylor Shelby AlVard. U.S. District Judge Keith P

Ellison conferred the award with an eloquent speech that

is

reproduced here.

- Editor

By

Hon

Keith

P.

Ellison

U S

Federal

istrict

Court Judge

The

Michael

T. Shelby Award

was

created

n honor

of

a

man

who

served with

distinction

as U.S. Attorney

for

the

Southern District of Texas, and was taken from us

far too

soon.

The

recipient

of

the Shelby Award

this year

is Marjore Meyers, who has spent

almost the

entirety of

her career

at the

office

of the Federal Public Defender

for the Southern District.

As

their

respective

positions suggest, Mike

and Margy

played on opposite sides of

the

net. Nonetheless, it can

be

said-and

I

do

so,

with

all

seriousness-that

Mike

and Margy agreed on

everything except their opinions

.

By

that

, I

mean Mike and Margy stood

as one

on the

primacy

of

the rule

of law. Likewise,

both expected of

themselves and those who worked with them

absolute

ethical rectitude, to

the

punctilio of

an

honor the most

sensitive.

1

Both were committed to the

proposition

that

their clients deserved zealous representation and both

ensured that they received precisely

that.

But, from these shared principles, they

did form

ve

different opinions-on

the

proper scope of search

an

seizure, the interpretation and application of sentencin

guidelines, the justness

and

efficacy of capital punishmen

And, in

an

adversary system, that is

just

as it

should

be

Margy has

told me

that

her career

path was set

high

school

when she

read

Gideon's

Trumpet,

Anthon

Lewis's

magisterial account

of

the

case that led

the Supreme Court's decision that indigent crimin

defendants

deserved court-appointed

counsel.Aft

bigh

school,

Margy earned degrees, with honors , at tw

different Ivy League

universities.

She won a fistful

different prizes at

each,

and as

a

capstone-receive

a highly coveted judicial clerkship with Judge Caroly

Dineen

King of

the Fifth Circuit

. Carolyn has warm

supported Margy's nomination for

the

Shelby Award.

After her clerkship, Margy joined the Federal Publ

Defender's office

here

in Houston .

Except

for a

bri

interlude

in

private practice, she has

remained

the

ever since.

In 2004, she

succeeded Roland

Dahlin as th

head of the office.

Margy

has

long enjoyed the reputation as one

of

th

ablest criminal defense lawyers in

the

state. In additio

to

her

work on behalf

of

clients

,

Margy

has

been

active

a

lecturer and mentor. She is

in

demand

for conference

and training sessions all over the

country.

Among h

many

appearances, I will

note only one

. At a

recent

5

Circuit Conference, Margy

was

part

of an instructive an

fascinating

panel discussion on post-Booker

sentencin

Her

fellow

panelists were Justice

Scalia

and

our

ow

Judge Sim Lake. In

all of her

teaching, Margy remind

us

to

embrace those who seek

the truth,

and

abju

those who

claim

to have found it.

Choosing

the life

work she

has chosen,

Margy

h

forfeited in

lost wages a total that is certainly in th

millions

of

dollars. Her

compensation

comes instea

in a

fulfilled heart and

a restful

conscience.

There is much more to be said abollt everythin

that

Margy

has

done in her

career.

To

me, she

h

always personified the ancient wisdom that the sma

courtesies sweeten

life

while

the larger ones ennoble

As to the small

courtesies,

she is unfailingly gracious, ev

to

opponents

who are given to Rambo-like outburst

She is gracious

even

to fed

e ral judges who

appear to

b

in

the

terminal

stages of

black

robe

disease .

As

to

the larger

courtesies

) Margy has taught m

the meaning of words that I had thought I alread

understood,

words

like sacrifice,

courage, and

especially -

compassion

. She

demonstrates

such qualiti

1

Meinhard

v

Salmon,

249

N Y

.

458,463-464

(1928)

(Cardozo,

J. .

THE

DEFEND



*

e are very

lucky

In the

course of

representing clients whose

needs

regularly

require

all

those qualities and many

more.

Her

representation of defendants

facing deportation

deserves

particular

note.

Margy is so very often the

person

who

has

to

explain

to a defendant what awaits him: a

prison sentence,

followed by indefinite detention by immigration officials,

then deportation.

No,

it does not matter that

his wife

and three children are American citizens . No , it does

not matter that he came here with his family when he

was

only two

years

old and that

he has

no memory of

his

home country, and cannot speak

even a

word of

its

language.

No,

he

will

never

be

able

to

come back, even if

a family

member is

sick

and dying

.

To

see

the despair

on

the faces of

these defendants, and their

families, makes

me embarrassed

to

think

of

the

emptiness of

my

own

notion

of

despair.

I

know

, I

know, that

the law

must be respected and

must

be

upheld. We

all

took oaths

to that end. I

certainly

do

not

suggest

that lawyers or

judges

have, or

should

have, a

roving commission

to

re-write

our nation's laws

in

difficult

cases .

But.. .but, Margy also understands that, after

justice has spoken, humanity

must

have its turn.

Her

understanding and compassion

for her

clients give

us reason to recall that our profession used to be

known

as that

of attorneys and

counselors-at-law. Margy sees,

better than anyone

I

know, what

happens when

the hard

edge

of

the law collides with the soft tissue

of

human

circumstance . She

brings

to

mind

Valt Whitman's self

description of

his

work as

a

nurse

in

the

Civil War:

I

do not

feel

sympathy

for the

wounded

soldier;

I become

that

soldier.

The

award presentation to Margy

cannot, though,

end on quite such a somber note . Instead, and because

this

evening

is for

those

who

practice

at

the

federal bar,

I want to make a historical point.

One

of the

thoughts

I have long entertained, since well before I started law

school, concerns the

possibility of our nation's

founders

paying

a visit to contemporary society, to see how

their

handiwork had turned

out. Imagine

any or all of

the 56

men who signed the Declaration of

Independence, or

the 39

who signed

the Constitution viewing,

forexampJe,

the guarantees

of

the

Bill

of

Rights as

reflected

in

EFEN ER

4

contemporary

practice.

I think they

would

be

at

least

bewildered

by no t

dismissive

or disapproving

of bu t

bewildered by

what had happened in the

name

of

the

First Amendment. They would not understand

radio,

TV

or

movies, much

less text

messaging

and

the

Internet.

As to the Second Amendment, they

would

likewise

be perplexed by the variety and sophistication of the

weapons that are now

available .

And,

with

respect to the

Fourth Amendment,

the founders would not understand

wire taps, because they would not understand

about

telephones.

They

certainly would

not

understand Global

Positioning Systems,

or

heat detection devices

.

But then

we

come

to

the Fifth, Sixth and Seventh

Amendments,

all

dealing with

one

aspect

or another

of

the

right

to jury trials,

the

only

right,

as

Justice

Scalia

has pointed out, expressly mentioned in both the

Declaration and

the Constitution . I

imagine

the

founders

walking

into tbe

middle

of a jury trial , preferably in

the Southern

District,

but, if not,

anywhere

else in our

country.

I

am convinced that

they

would

understand

immediately and fully

what

is going

on.

They

would

see an

elevated bench, and

a judge

sitting

on it

with

his

slightly

comical costume. They would see

12 citizens,

sworn

and true,

sitting

in

the

jury

box. And

they would

see

opposing counsel

performing

that most sacred of

duties -

representing

the totality of another

person's

legal rights in a proceeding tried to a jury of his peers.

The founders would

see

all of

this

and say to

themselves:

We did all right;

we

really

did

all right. Eleven, twelve

generations

later the system we put in place endures

without any material

modification.

But,

my ultimate fantasy , is that the founders

walk

into the middle of

a jury

trial at which

Mike

and

Margy are representing

their

respective clients.

The

founders would

then

say, We

did better

than all

right

.

We

did

extraordinarily

well

-

we

put

in place

a

system

that allows

individuals

of integrity and

brilliance

to

flourish . And, the founders would say to

us,

And,

how

extraordinarily lucky you are

that you

had

-

however

briefly

-

these two individuals

as your

colleagues and

your

friends.

And,

once again, we

would

conclude that the

founders

had

gotten

it 1 00% right - We are

very

lucky.



Public Defender's Office Opinion

_

Editor s Note: Both of the following are presented without changes to contmt.

y

David Mitcham

for

PUBLIC DEFENDERS' OFFICE

Imagine having a library of testimony from every police

officer and every State expert at your disposal. Imagine

having canned briefs, citing

the

First

and

Fourteenth

Courts of Appeals, on virtually every significant criminal

law issue . Imagine all indigent defendants having an

appella te section for research

on

the

fly

d uri ng t r ial

just like the DA's Office. Imagine the chronically mentally

ill being processed

out

of the criminal justice system,

and into

a medical facility, within days of

their

arrest.

Most importantly, imagine the indigent defense bar having

a meaningful, institutional voice in the

government of our

criminal justice system . Right now the indigent defense bar

is

hundreds

of isolated voices, scattered across

the courts,

and largely without any influence over local justice policy.

A public

defender

office promises to change

all

of that.

Detractors say such an office will hurt the de fense bar

financially. They say Commissioner's Court will never fund

such an office properly.

They

say the

current appointment

system already works and, therefore, it shouldn ' t be

changed.

None of this is true .

The establishment of a public defender office

is not

going to hurt the defense bar financially

The

current

outline

for a

count

y PD Office

would

be a pilot

program

, putting

attorneys in

only

four of the

twenty-two

district

courts.

Even

in those four courts , the public defenders would handle a

minority of the

indigent

case load and the rest would still be

handled by the wheel. Moreover, the

attorneys working

for

the public defender office will

almost

certainly come from

the

ranks

of

the current indigent

defense bar.

Virtuall

y

every case assigned to a public defender will be a case

that the

same

attorney could have accepted as a private

practitioner . In essence, in the small number of cases

handled

by the PD's Office, the net result will be a zero

sum

gain

to the defense bar

at large . Even

assuming

the office is successful and grows, it will be many years

before the size significantly affects the private indigent

defense bar. In Dallas, th e office has been in

existence

for

over twenty years

and

it still handlesless than 50%

of

the

county's

indigent

caseload.

Cont

d on

pag

e 16

WHY

THE HCClA

UNDECIDED

SHOULD DECIDE agains

PUBLIC DEFENDER IN

HARRIS

COUNTY

Th

e recent poll of the membership suggests

that

,

to

the que

stion

of

whether or

nOt Commission's

Cou

should

establish a public defender' s office in

Harris

Co unt

HCCLA

is divided into

three

roughly equal groups: a thir

of

the members are for a

PD,

a

third is

against a

PD, and

tbird is

undecided

.

As

I

am of the

opinion

that

installing

PD office in Harris County

is

not a good idea, this opinio

piece

is directed toward those

lawyers

among

us who a

undecided, as

well as

those who

presently believe they a

in

favor

of

a

PD, but

still have an open

mind.

First, consider the

recent disturbing

media reports th

reveal

ho

w

PD

offices across the nation are in a full blow

financial crisis and appear in large measure

to

be fallin

apart at the seams.

Second

, the

court-

a

ppointed

syste

of

indigent

defense, with all its faults,

is

still superi

to

a PD

system

in that it can be improved with refor

measur

es

and

is

ultimately accountable

through

th

democratic process.

Finally, the collateral consequenc

of

installing

a

PD

office can be economically devastatin

to

the independent privat

e criminal defense bar,

whic

has traditionally

functioned as the

institutional guardia

of the right to

counsel

and

the

fundamental protection

contained

in

the Constitution

and Bill of

Rights

.

The

lead front

page story

in the Sunday,

November

2008

New

York

Times

began with

the headline: Citin

Workload

Public

Lawyers Re

ject New

Cases-

Revolt

Seven States - Fears

That the

Quality

of

Defense for th

Poor

is

Eroding. The

article

noted that

current

sta

budget cuts and

rapidly rising

workloads

ha ve presse

PD

offices to the breaking point. The Times reporte

that Public Defend

e

rs are notoriously overworked an

their

turnover

is high and their

pay low,

but that

no

they are in

open revolt.

Lawsuits have

sprung

up acro

seven states

wherein

lawyers in public

defender

offices a

suing

the state governmental

agencies that employ them

complaining that the

sheer volume

of cases they are require

to take renders them incapable of ethically provid.ing effecti

assistance of counsel. Cont d

o

page 7

THE DEFEND



t i ; P a t e d

popcd tion gmwth,

and

the

certainty that criminal case filings

,rill

rise with

the

population, rest assured that the private indigent defense bar

will

have tremendous job security ,rith or without a public

defender's office.

Proper

funding is also

not

likely

to

be a

problem

in the

foreseeable future

and,

in any event, a public

defender will

be

in

an improved position

to

address money issues relating

to

indigent defense. Senator Rodney Ellis and the state's Task

Force on Indigent Defense are

committed

to making sure

the start-up costs of a public defender office are absorbed by

Austin. For

the

first five years of its existence,

the

financial

burden on Commissioner's Court

would

effectively be halved

by an influx of State money specifically directed to a

PD

Office.

s

a result,

the current

plan for payment parity with the

District Attorney's Office is realistic and likely to

be

followed .

To be sure, proper

hmding

and case load management will

require constant vigilance. But that would be

true

using any

indigent defense system and a unified, internal

government

voice, like a public defender,

will

be

in

a better

po

sition to

lobby Commissioner's Court, Austin and the various other

grant providers for the benefit of the entire indigent defense

bar. The public defender 's mission v ri ll include

improving

the

quality of indigent defense throughout the courthouse, nOt

just within the public defender office. Part of that mission

wiJI be to seek proper compensation for all local indigent

representation including the private indigent defense bar.

Lastiy, tile current system is not, and will never be ,

good enough

to

mal(e change obsolete. Change, progress

and experimentation

will

always be necessary

in our

justice

system. The proposal being studied by Commissioner's

UTHOR

BIOGR PHIES

Court

represents noiliing more than an experiment

to

see

if and how a public defender office might work in Harris

County. Public defender offices are used in every other major

American city

and

they are generally accepted in

otiler

legal

communities as essential and hmdamental to quality indigent

defense. There is

no

evidence

that

such an office

should

be

uniquely inapplicable to Harris County. If our community

wants

to

credibly claim an interest

in

protecting

the rights

of

tile

indigent

accused, we are obliged to

at

least try

what

has

worked in so many other jurisdictions. No one is suggesting

we destroy

the

current appointment system and no one wants

an ineffective public defender office just to have it.

The

idea

is simply that we try

something,

on a very limited basis, tilat

might lead to improvements in our justice system.

Our organization,

HCCLA,

has always been

committed

to improving tile quality ofjustice

in our

community. Through

tilis commitment to justice we have, ever so slowly, developed

credibility and influence on criminal justice issues with local

political stakeholders.

Ifwe,

as

an organization, seek

to

prevent

a public defender office, these stakeholders v.ri.ll assume our

opposition is motivated by financial paranoia. We will appear

greedy, disinterested n

the

fate of the indigent accused , and

we

,viLl

risk

squandering our

hard

won

credibility.

Further,

I

suspect a public defender office, in some form, already has

the requisite political support and will be enacted with or

witilout

our

involvement. If true, our opposition to a public

defender office

would

not only tarnish our

reputation

as an

advocate for justice, but eliminate our influence over the

office's development.

In sum, supporting the

creation of a

pilot project public

defender

office

is

not

onJy

the

right

thing

for our community, it is

the

right

thing

for HCCLA.

A 1998 graduate

of the

University

of

H o uston

Law Center, Mark Hochglaube is an HCCLA

board member and the HCCLA representative

to

the Ha rris County Commissioner's Court Publi c

Defender study team. H e is a solo practitioner with

a 99%

indigent

appointment practice.

DAVID MITCHAA1, Past President of

HCCLA

(1988-1989 ) is a graduate of the University

of

Texas Sch

oo

l

of

Law, licensed since 1979 and Board

Certified in Criminal Law by the Texas Board of Legal

Specialization since 1985. A former prosecutor with

the Harris County District Attorney's Office in the

early 1980 's, he was also the recipient of HCCLA's

Attorney of the Year Award for

hi

s Dedication

to

the Principals and

Ideas

of

American Justice

in

June

2001.

DEFENDER - : 1



cons

In

a Florida case, it was reported

that

the Miami-Dade

County

PD's

office was requiring their

attorneys to

take on

caseloads

of

500 felony cases or 2,225 misdemeanor cases

on

an annual basis.

The

paper

quoted Norman Lefstein, a Law professor

at

the

University

of

Indiana and an expert in

the

field, that in

his opinion, There should be

hundreds

of such lawsuits

by attorneys in PD offices across the nation.

On the individual level, the news story highlighted the

experience

of

30-year-old PD attorney Arthur Jones who

spent

a frantic

morning

in court handling the cases of 23

felony defendants charged with offenses

such

as burglary,

drug possession, and

grand

theft. The paper described his

docket as a treadmill of frustration. Most of his clients

had

never met him prior to

their

day in court, where their

felonies were

to

be disposed.

And

Mr.

Jones

was paid a salary

of

$44,000 a year for his labor as a

PD

lawyer;

not

enough

to support his family and pay his education loans. So Mr.

Jones

quit

his

PD

job on

the

following Monday after the

story went into print and headed

off

into private practice.

Now to all those undecided

HCCLA

Lawyers, I

sincerely ask

you,

is this the

situation

that we

need to

install

here in Harris County? Isn't our long-standing court

appointed system, with

all

its

admitted

imperfections,

substantially better for the clients, the lawyers and Justice

itself than

the

sorry state of affairs that now exists in PD

offices

all

across

the

countr

y

as

was

so

recently

reported

in

the New York Times .

I would further argue that the court-appointed system

is

superior to the

PD

system if for

no

other reason than

because in

the

court-appointed system there is democratic

accountability. Whatever problems exist in a

court

appointed system they are ultimately judge problems .

The buck stops at

the

bench

and the

person in

the

black

robe

is

the

responsible party. Since we can elect, and

un-elect,

our

judges here in Texas

there

is a sure remedy available

at

the

baltot box for any

egregious

court-appointed problem.

On

the

other hand

a

PD's

office

is

a

permanent

governmental

bureaucracy that once put n place is

not

thereafter ever directly

accountable

to

the voters or the democratic process .

NOW WHO DO

YOU e

e

d

THE

DEFEND

Finally, I

would

ask the

undecided

third

of us

consider that Harris

County

has long enjoyed a stron

and

independent

criminal defense

bar that

has historical

protected

the rights

of

accused

individuals. Cour

appointed Ja\vyers are all individuals in private practic

They

do not

work for the same

government

that see

to prosecute

their

accused clients. They are individu

la'vvyers

protecting

individual rights.

To

displace

an

replace them with government

employed

attorney

answerable to

their

PD

bureaucratic

superiors, with the

bureaucratic perspectives and

concerns,

will, over

tim

systematically undermine and erode the criminal bar

collective commitment to individual liberty.

As

to

the economic dimension

of

the controvers

a

PD's

office will, by its very nature, be an expandin

governmental

entity, ever poised

to

increase

turf

in

ord

to

justify

greater

future budgets for higher raises

an

promotions.

It

will begin by taking over the

docket

court-appointed

lawyers and then

go on to encroach

o

the working class and middle-class clientele of present

retained

counsel.

Displaced court-appointed lawyers th

do not enter

other fields of law, or

go out

of busine

altogether, wilt flood into the retained market furth

depressing

legal fees for those attorneys who

remain

private practice. Eventually

most

retained defense lawye

will be forced

out

like their

court-appointed

brethre

before

them

.

There

are

many jurisdictions

in

the

count

today where there is no criminal defense bar, like the

is in Harris

County, wherein

a lawyer

can make

a livin

practicing criminal defense .

It

is highly instructive th

they call it the Public Defender's

Office

rather

than

th

Indigent Defender's Office. For like Public Education

or Public

Transportation

the ultimate

bureaucrat

vision is to defend the

Public

not

just the

poor . Now

who do you defend?

For the

above reasons, and

for

others

that time

an

space do not here permit recounting, r urge that

undecided

HCCLA

members

investigate

the

fac

exercise a skeptical

judgment,

and reach a reasoned decisio

against the establishment of a public defender's office.



,

ntUfFENDER

WINTER 08



UNITED STATES DISTRICT COURT WESTERN

DISTRICT

OF TEXAS

MIDLAND-ODESSA

DIVISION

UNITED STATES OF AMERICA

v ) CR. NO. MO 123456

)

JOHN J

GRINCH

DEFENDANT S FOURTH MOTION

FOR

CONTINUANCE

and

be continued for the

Now comes Robert Pelton, counsel for De fendant,

respectfully request the above styled case

following reasons:

IJ

s he

l f e e ~

b e ~ j ; t £

CHRISTMAS

(Twas the week before Christmas and ll

through

the land;

Th

e

courts

are all

quiet

except in Mid-land; In

ll

the high

courts it's quiet

s

a mouse; Judge

Thomas

and Scalia are

both at their house;

My grandkids say

"Paw

Paw where will you be?"

"Its

up

to

the

Judge,

I'll just wait

and

see";

Santa is loaded and \vaiting

to go; When

will he leave

...

I really don't know;

National security

IS

not

at stake; Please, your

honor,

Give us a break;

Since taking this case, I've tried my best; Please give me, your

Honor

a much needed rest; \Ve've been here three times and

never been late; Please re-set this case

til

March

of

'08.

Respectfully Submitted,

Robert

Pelton, President

1610 Richmond Avenue

Houston,

Texas

77006

713.524.8471 phone

713.529.2999

f x

II

Sorry, Santa,

but our naughty-or-

surveillance got cut

short

this year.

II

EFEN ER

Ad

Rates

FULL INSIDE PAGE [NON-COVER]

$700.00 per issue I $2,520.00 per year

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THE

DEFEND

http://slidepdf.com/reader/full/2,520.00
















CENSORED

CENSORED

REASONABLE DOUBT

TODD DUPONT



APPLICATION

Applicant:

Mailing address:

BECOMING

MEMBER

HCCl

Promotes a

productive

exchange of ideas and

encourages

better communication with prosecutors and the judici ry

Provides continuing legal education programs for improving

advocacy skills and knowledge.

Promotes

a

ust application of the court appointed lawyer

system for indigent persons

charged

with criminal

offenses.

Rles

amicus

curiae

briefs

in

support

of

~ e e o m and

human rights.

Telephone:

Fax:

Email:

Website:

Firm Name:

Date admitted

to

bar:

Law school:

Professional organizations in which you a

re

a member in good standing

Type of membership:

o

Student ( 25 annual fee)

Expected graduation date: _

o

N

ewl

y licensed (first

ye

ar) attorney ( 75)

o Regular membership ( 150)

Date:

Signature of applicant:

Endorsement:

I, a member in good standing

of

HCCLA, believe this applica

to be a person of professional competency integrity and goo

moral character. The applicant

is

actively engaged in the

def

e

n

of criminal cases.

Date:

Signature of member:

Member name:

MAIL THIS

APPLICATION

TO

HCCLA

P.O . Box 924523 Houston, Texas 77292-4523

713.227.

2404



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