Harris County Criminal Lawyers Association

Denying refugees denies the idea of America

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Denying refugees denies the idea of America

New group of political ‘Know Nothings’ is too willing to give in to fear

By Patrick F. McCann     As published December 22, 2015-Houston Chronicle

In the 1840s and 1850s, Irish and German Catholic immigrants, fleeing war, oppression, and famine, came in waves to the United States. In response to this, many white Protestant males formed the American Native party, later the “American” party. They carried on their society’s activities in semi-secret; if asked, they said they did not know anything about such a party or its activities. Hence, their popular nickname: the “Know Nothings.” I know this because one of the nation’s first race riots took place when a group of “Know Nothings” tried to burn down the Irish Catholic church in Lowell, Mass., where I grew up. Today, faced with millions of displaced people and refugees resulting from our own overturn of all the tables in the Middle East in the last decade, we are once again seeing the growth of fear and nativist sentiment to block any and all doors to taking in these sorry fruits of our own policies. How little times have changed.

More than half of the governors of this nation, Texas’ Greg Abbott among them, have now decided they get to set their own immigration policies and have announced they will “refuse” refugees from Syria if they are resettled here. That is a shame. You would think in the state that took in Jim Bowie, a known real estate speculator and duelist, there would be a little tolerance for women and children looking to not be the next casualty of ISIL. But hey, what do I know? I just live here. I just figure that since these people are trying to leave the very folks we are fighting, then it makes a certain sense we should welcome them here, in the same way Texas has normally tried to welcome strangers, and in the same way Scripture and history tell us to do.

It is a shame because the very thing that breeds resentment and seething anger in young people is being forced to see their families live in grinding misery in refugee camps. I know this because I saw it when I served in Bosnia after that ugly civil war. I cannot think of a better recruiting ground for ISIL than the camps holding millions of people who are right now sitting in Turkey, Jordan and Iraq. Their dreams of getting to either Europe or the United States are on hold because of the wave of fear that events like the Paris attacks and our most recent mass shooting in the United States produced. I might add that those Muslim countries in and around ISIL’s stronghold are at war with that group as well, and right now are bearing the burden to a far greater degree than we are in this country.

Fear does not require rational sense, nor does it produce rational responses. Fear is the victory of groups like ISIL. Fear is their food; it is their drink. Fear is what they want most of all, because fear makes a relatively small group of people like al-Qaeda or ISIL seem much stronger than they truly are.

Fear lets a few rule many, and fear is exactly what much of our so-called political leadership is giving these groups in the hopes of looking “strong” in the face of terrorism. By denying succor and refuge to those least able to fight back against the ISILs of the world, we deny ourselves and we deny what we as Americans are supposed to be to this world. We are either a beacon of hope and freedom, or we are not. We are either a nation that embraces the widows and orphans of the world or we are moral cowards, making a bogeyman out of a group of fanatics that will never topple us.

We Americans have hunted down and captured or killed thousands of al-Qaeda, including the man who founded them. ISIL is not unique, and though we may have to take some blame for helping create them by ill-advised actions in Iraq, we will isolate, contain and eventually beat them as long as we can show the world that they should not fear these mad pursuers of a fantasy caliphate that no one wants.

This is a group whose greatest military “accomplishments” have been executing aid workers who wanted to help feed the people ISIL oppresses. It is a group whose leaders boast about being able to kill innocent people who wanted to dine and dance in Paris. They will fall beneath our bombs and tanks and soldiers just like everyone else. They will only gain strength if the new “Know Nothings” in our political world use fear to keep us from doing what we should do as a people – morally, legally and historically. We are battling an idea in this struggle, and the power of the idea of America can only stay strong if we ourselves still believe in it.

These new “Know Nothings” who would exclude refugees from our common enemy are not our friends or protectors; they are the duped, unwitting allies of those who would strike fear into our hearts. They do not represent us as a people, and we should not let them speak for us. America is the world’s best hope. Let us live up to that, and not down to the frightened wailing of our modern “Know Nothings.”

Pat McCann is a local attorney and HCCLA past-president.

parole board’s clemency work should be transparent

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Op-Ed as published in the Houston Chronicle:

Requiring appellate boards to give a written opinion why an applicant’s request was denied a good start
By P. F. McCann Published 4:07 pm, Wednesday, June 17, 2015

The Legislature is done for another 18 months. That means, to paraphrase one 18th-century wit, that for a time, our lives, liberty and property are safe. However, the end of their session is not the end of the fight for fair treatment and open government in the process of pardons and commutations.

Pardons and commutations are an old executive privilege, one that originated as an act of grace from the kings of old. We tossed out kings a long time ago here in Texas, but we kept one of the more moral features of that old system – the right of our elected leadership to dole out mercy. We love our jury trials here, but they often get it wrong, sadly.

That is why we have appellate courts. It is also why we kept the right of leaders to grant reprieve.

Often, one sees that mercy displayed (well, truly, more often it is not displayed) when a person comes up for execution in Texas. At that time, the Board of Pardons and Paroles, in the Executive Clemency section, will vote for or against a recommendation for commuting (an old word meaning, “to change”) a sentence from death to one of life in prison.

The governor can only grant such a request if the board returns a favorable vote, and those are few and far between. I know because my colleagues and I obtained one such recommendation for a condemned man once in 2009. Gov. Rick Perry chose not to grant that request, though he had granted a tiny handful over his years in office. I mention this so that the reader knows I am familiar with the process first-hand, not as an academic study.

His record, and frankly, the board’s, was even more abysmal in terms of granting pardons or commutations on noncapital cases. Every year of his term in office, Perry and the board (all members were appointed by Perry) received hundreds of applications from nonviolent offenders who had served out their time and reformed, or who had been sentenced for heavy terms of years for minor crimes.

Each year, the board routinely rejected the majority of applications for minor technical reasons having nothing to do with the merits, then voted to recommend a small handful of applications, the majority of which the governor then denied.

In 2013, for example, the board received 632 applications for commutations, pardons and restorations of civil rights. The board only voted on one application for commutation out of 106. It recommended denial. Out of 17 applications for pardons based on actual innocence, it recommended zero. Out of 20 applications for conditional pardons it recommended, you guessed it, zero. Out of 300 applications for general pardons, only 44 received a vote from the board recommending relief.

The rest were sent back for reasons unknown, often called “technical compliance.” A total of 46 applications actually got the rare privilege of a recommendation from the board. Of those, Perry granted 12. Twelve. So, about 2 percent of applicants get relief, based on an executive’s whims.

I say whim because the process has always been a complete mystery to all the folks who apply, regardless of whether they have a lawyer’s help. There are no written opinions issued by the board, or public meetings where the debates among the parole board can be heard.

The governor rarely expresses his opinions or reasons for denial except for an occasional good moment of political theater on an execution date. The rules are opaque and the board meets in secret, with no requirement that its decisions or its reasoning even be communicated to the applicant. But it doesn’t have to stay this way. It is time now for a new governor to begin issuing such decisions, and perhaps, to change how the process works.

Our new governor, Greg Abbott, is an attorney and a former judge with a long history of judicial opinion writing. While not all of us in the legal profession always agree on everything, the value of a clear, transparent process and written public opinions as to why a person was refused or granted a commutation or a pardon would be a welcome change from the last two decades of merciless rejection shrouded in the secretive fog that blinds democracy.

That is something this governor can do, and should do now. We should all challenge him to do so, and to open the process once again so that the people of Texas can actually understand how and when mercy is given, or taken away.

McCann is a Houston attorney and a past president of the Harris County Criminal Lawyers Association and the Fort Bend Criminal Lawyers Association.

Want vs. Need in Solo IT Set-Up

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by Patrick F. McCann

I am a luddite, defined as a person who opposes technology. I am not opposed to all things, just mostly to the need to obsess over the latest gadget or app [such as a “Fitbit” for instance; do you really need a wrist band to tell you that you are getting fat and lazy? That is what spouses and sarcastic friends are for! The zombie apps come to mind, although they are at least funny.] I liked the wheel, for example. It seemed a good idea, like baked bread, and dogs. So, I believe I am uniquely suited to help you young smarty-pants phone toting new lawyers the difference between what you need, and what you want when it comes to starting up your IT suite. Here goes!

Let me start with an example – you want a BMW M3 series. You need a good reliable car, or a bus pass. See the difference?

For a young solo starting out, who wants to work within the incredibly debt-plagued, shoe-string, ramen-eating existence you all appear to inhabit, here is what you want vs. what you need in your home-office to help you get started:

  1. You want an Ipad with Skype. You need a PC laptop or desktop with a decent monitor, and bundled with MS Office.
  1. You want a multi-function scanner-printer-fax machine that will communicate with the International Space Station and make espresso. You need a good laser jet printer like an HP1022, one that functions reliably and flawlessly and does not cost so much for toner, and an e-fax account that goes to your email.
  1. You want the IPhone 6. You need a good reliable phone that can give you some of the more useful apps like One Note, Dragon Dictation, or Fast Case.
  1. You want cloud storage. You need a good portable hard-drive with a huge amount of storage for backing up your inevitable lost data or laptop failure.
  1. You want a sophisticated online management solution for your practice, like Clio or Abacus. You need Outlook, which by the way comes with MS Office. It has contacts for your client info, task manager for keeping you on top of your deadlines and projects, journal and notes for detailed online memos or tracking your billing activities, a calendar function that frankly, despite all the hype, no one has actually beaten, and a mail management system that, while it is a bit of a pain, can do some pretty cool things in terms of helping organize your research and make your day flow smoothly.
  1. You want Westlaw. You need to learn to use the free search engine provided by the State Bar or Google Scholar advanced search, or, god forbid, use the free county law library or the one at the local law school down the street, and make time to go there.

Total cost for what you want – 4k. For what you need? About $700.00. Want vs. Need.

Everyone clear now?

Practice Pointer: Can You Afford an Assistant?

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By Patrick F. McCann

How many of you have spent an entire Saturday trying to reorganize files, whether electronic or paper?  So, an eight-hour Saturday, even at an appointed hourly rate of say one hundred dollars per hour, is eight hundred dollars lost to you.  That buys a nice hunting rifle, a new suit or outfit, a plane ticket and one night hotel stay to Vegas; well, you get the idea.  As another, how many times have you spent two or three hours driving, parking, sitting in an elevator, then waiting in the line at a clerk’s office, whether to copy an item from a file or to file something?  At a very reasonable attorney’s rate of one hundred fifty dollars an hour, that is three to four hundred dollars you will not see again.

So, the questions becomes, …what is your time worth? Do the math.  One hour of your time at 150.00 per hour pays for the eight hour shift of a fifteen dollar an hour assistant, plus parking, with enough to buy coffee for the two of you [figuring those fancy latte thingies in a large size]. Isn’t a free Saturday worth that?   Two hours of billable time per week pays for another shift.  Thus two or three hours of your time means you can afford a part time assistant, who will more than earn their pay if you help them to do so.  

Here are some of the things a new assistant can do which require minimal or no training – copies, organizing files, filing [once they know where and to whom the filings go] of pleadings, motions, mailings, getting stamps and office supplies, dropping off items to other attorneys/clients. With some care and training, [and every hour spent training a new person is an hour that reaps gold] a good reliable assistant can gradually learn to update your calendar, answer the phones, contact clients and courts on your behalf when you are late or in another county, take payments from clients, help you prepare and file vouchers on appointed cases, etc.

Alternatives to a full or part time assistant

There are many ways to use some of the essential services that an assistant performs without actually getting an assistant. Let us start with a quick list.

Dictation services and apps – If you are a smartphone addict, get Dragon dictation, and learn how easy and efficient it is to create an email, a text, or notes by talking into your smartphone while driving or walking or standing around having a smoke. Siri has some of this function on the iPhone, but it is frankly not as fast. There are also secretarial services that will type up letters and correspondence by dictation on tape or via MP3 file. There is a service called Speak-Write which does this specifically for lawyers, and they have both software for taking MP3 files from a digital recorder or your computer, AND they will let you call in to dictate a motion over the phone. Simple, affordable, and no messy employee problems.

Organizing and filing – If one has a general practice, and is comfortable working from home, efiling makes good sense, and will be mandatory for civil matters in Texas in 2014.  This saves one a great deal of time and effort, and should be embraced as a way to avoid that nasty rush hour traffic. It is mandatory for federal criminal filings, and will likely become easier and possibly mandatory for state criminal filings and appellate filings at some point, though we are not there yet.  Likewise there are office organizing services and secretarial services that will go to your office and create, then maintain, a simple filing system and help organize your files such that your workspace becomes amazingly efficient. They can be hired on an “as-needed” basis, and it still makes the same sense economically to pay them sixteen bucks an hour to do this while you are billing four hours of productive motion crafting on a case at 150.00 per hour.

Free help – Last, there are some ways to get some assistance on the true “cheap”, and they are called interns. Most law schools and para legal programs in the area have such willing serfs, er…people… available for either academic credit or real world experience necessary to get them paying jobs [eventually].

I hope this has proved useful and at least stimulated some thoughts on how your practice can grow with just a little help. Many hands make the load lighter.

Good luck! Paddy

 

 

Practice Pointer: Firing a Client

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by Pat McCann

If there is one group who should know about bad relationships, it is criminal defense lawyers.  We could write books on surviving them, with chapters by local experts [you all know who you are!] but here is one topic that may not get discussed enough – getting rid of bad clients.  We all have ones we want to dispense with, appointed or hired, and we all often, in a similar view to our perverse pride in surviving bad relationships, continue to represent them as badges of honor.  However, my uncle, who is semi-retired now, had a great point once over dinner; he asked me “If ten to twenty percent of your clients are taking up fifty percent of your time, aren’t you hurting your other clients by keeping them?” That was my wake up.

Here are three simple questions to ask in determining whether you should fire a client. Do you cringe when you hear they are on the phone or see their name come up on your smarty-pants phone?  Do you deliberately avoid setting appointments with them?  Do you consistently lose your temper with them, or consistently struggle?  If the answer to these is “yes”, fire them.  Here is how:

Withdrawing from a case requires notice to the client [should be in writing sent certified mail, return receipt requested, NOT email] with a full statement of all settings remaining, availability of the file for pickup or the file itself returned, and a letter explaining, short and sweet, that either they have failed to follow advice or pay you, or that communications have broken down so badly that the attorney client relationship is irreparably compromised.  You will also need to file notice with the courts, and if you are appointed, a motion requesting withdrawal [which can sometimes be handled informally by approaching the judge and explaining, without revealing confidences, that this just ain’t working] and ask for another lawyer to be appointed.  Do it, and when you feel that sense of relief, you will know you did the right thing.

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Harris County Criminal Lawyers Association
P.O. Box 924523
Houston, TX 77292-4523
(713) 227-2404