Harris County Criminal Lawyers Association

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Time for Case Limits in Harris County?

June 14, 2015 Leave a Comment

In a recently discovered memorandum, a case is made for case limits in criminal cases, especially those handled in indigent cases by appointed lawyers.

House Bill (HB) 1318, passed by the 83rd Texas Legislature, instructed the Texas Indigent Defense Commission (TIDC) to “conduct and publish a study for the purpose of determining guidelines for establishing a maximum allowable caseload for a criminal defense attorney that…allows the attorney to give each indigent defendant the time and effort necessary to ensure effective representation.” That study is now complete and available on the TIDC website where it can be downloaded as well.

Both national and state organizations make clear that attorneys can effectively handle only so many cases a year. Yet, in Harris County, the claim is that a small percentage of attorneys handle an extraordinarily large caseload of appointed criminal cases while reporting that caseload is only 40-65% of their practice.

According to the memo, there is no evidence that the disproportionate appointment system is based upon merit. Few of the attorneys with highest appointed caseloads ever go to trial. Yet they are the highest paid appointed attorneys in the system. The number of cases appointed by lawyer, by type, or by court can be viewed on the TIDC website here:  http://tidc.tamu.edu/public.net/Reports/AttorneyCaseLoad.aspx.

The memo also explains a study undertaken to examine the work done by appointed counsel across the state which was then compared to work in Harris County. The study utilized 196 attorneys (private attorneys and public defenders) over a 12 week period. They logged their work and tasks into a computer program, resulting in a sample of the amount of time lawyers spend on their cases. Their numbers were sent to 319 attorneys to review and adjust based upon how much time they should spend on cases. Finally a panel of 18 senior criminal defense lawyers reviewed those results and again adjusted to reflect time that is generally required for cases. From those numbers, caseload standards were set based on the time available in the year and the time required for particular cases.

The results were that several Harris County indigent lawyers kept caseloads much greater than the Texas standard and the national standard. In short, the actual results in Harris County were the most egregious violations of the caseload maximums across the state. One attorney closed 969 cases (441 felonies and 528 misdemeanors) in one year! The highest caseload standard was 236 class B misdemeanors that could effectively be handled by one attorney in a one year period. This particular attorney (licensed approximately 7 years) threw in an extra 292 misdemeanors AND 441 felonies, which comprised only 65% of her total practice. That’s a huge caseload and tops the charts for Harris County. Another 23 attorneys top out at over 300 adult felonies per year. Of those 23, 6 had 400 or more and 2 had 553, which is apparently the cut-off for being paid. So 24 lawyers far exceed the caseload standards for indigent defense. Many others exceed the standards, though by not as great a margin.

The memo’s conclusion: The answer to improving private assigned counsel in Harris County is twofold: (1) establish reasonable caseload maximums, and (2) encourage a culture of investigating and researching cases.

The full memo can be viewed and downloaded here

Download (PDF, 54KB)

This is an issue that Robert Fickman, a local criminal defense lawyer and Past President of HCCLA, has flagged for years. Data in the past has been based on the amounts paid to local appointed lawyers. This data was limited due to the fact that it came from the auditor’s office without specific detail. Now, with TIDC collecting specific data and attorneys self-reporting their practice percentages, the data paints a broader picture of the injustice in attorneys handling too many cases. They simply do not have enough hours in the day (or year) to properly investigate and prepare defenses and challenge the state’s evidence with these extreme caseloads.  One of his recent blogposts on the topic can be found here http://blog.fickmanlaw.com/2015/06/harris-county-where-the-accused-are-treated-like-cattle/.

Filed Under: justice, politics, Public Trust Tagged With: appointed lawyers, caseload standards, harris county, indigent defense, texas indigent defense commission, TIDC

Prosecutorial Discipline

June 12, 2015 Leave a Comment

Is the bar finally getting more serious with prosecutorial misconduct? Just as we sent our letter to Hon. Devon Anderson (Harris County District Attorney) regarding potential prosecutorial overreaching, media accounts of Charles Sebesta’s disbarment blew up.

Texas Monthly reports that Sebesta was found to have violated no less than 5 tenants of the Texas Disciplinary Rules of Professional Conduct, including:

  • 3.03(a)(l ): “A lawyer shall not knowingly make a false statement of material fact or law to a tribunal.”
  • 3.03(a)(5): “A lawyer shall not knowingly offer or use evidence that the lawyer knows to be false.”
  • 3.09(d): “A prosecutor in a criminal case shall make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense…”
  • 8.04(a)(l): “A lawyer shall not violate these rules, knowingly assist or induce another to do so, or do so through the acts of another…”
  • 8.04(a)(3): “A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

Charles Sebesta, the District Attorney who prosecuted Anthony Graves, was found to have withheld exculpatory evidence and to have presented false testimony in his effort to convict Anthony and send him to death row. Anthony Graves was ultimately exonerated after spending 18 years on death row, most of which was in solitary confinement.

Coincidentally, HCCLA sent a letter today to Devon Anderson asking her to investigate whether Assistant District Attorney Dan Rizzo committed criminal offenses or disciplinary violations in his role to prosecute Alfred Brown – where it was discovered that favorable evidence was not disclosed and Brown’s alibi witness was badgered by the grand jury until she changed her testimony and withdrew the alibi.

It is time for prosecutors to be held accountable for intentional violations of the law and disciplinary rules. It’s a new age. Change is here.

Download the opinion on lawyer discipline for Charles Sebesta here

Download (PDF, 184KB)

Filed Under: justice, prosecutors, Public Trust Tagged With: Anthony Graves, Charles Sebesta, Dan Rizzo, devon anderson, disbarment, discipline, prosecutorial misconduct, prosecutors

Alfred Brown Unresolved Matters

June 12, 2015 Leave a Comment

In a letter to Hon. Devon Anderson, Harris County District Attorney, HCCLA calls for action on unresolved matters related to the Alfred Brown prosecution.

As you may be aware, our District Attorney has announced the dismissal of charges against Alfred Brown as being unable to prove their case beyond a reasonable doubt. This dismissal comes after the discovery of exculpatory evidence (tending to corroborate Brown’s alibi), the exposure of improper grand jury badgering of Brown’s alibi witness (Ericka Dockery), and recanting witnesses.

In case you missed it, Lisa Falkenberg (Houston Chronicle) was awarded the Pulitzer Prize for her coverage of this grand jury behavior. Her spotlight on this issue also led to grand jury reform in this year’s legislative session! (Read some more about grand jury reform and the District Attorney’s Office here)

We now call upon the Office of District Attorney to continue the inquiry into the conduct surrounding the initial investigation and prosecution of Alfred Brown and the prosecution of Ericka Dockery, specifically focusing upon potential criminal offenses and unethical conduct by Brown’s lead prosecutor, Dan Rizzo.

Our letter to Devon Anderson can be viewed and downloaded here:

Download (PDF, 2.56MB)

Filed Under: honor, incarceration, jail, justice, politics, press release, Public Trust Tagged With: alfred brown, criminal conduct, devon anderson, district attorney, ericka dockery, grand jury reform, harris county, lisa falkenberg, public inquiry, reform, restore public trust, unethical behavior

Police: The New Gang in Town

June 9, 2015 Leave a Comment

A recent Texas Monthly article, Police Violence — The More Things Stay the Same, parallels the 1977 Texas Monthly cover and its companion article to today’s police brutality, both in Texas and beyond.

Neww gang thumb

The 1977 cover and article depicted Houston Police as a biker gang, the new gang. On the heels of the Joe Campos Torres, Jr. murder, then Houston Mayor Fred Hofheinz, obviously anguished, said: “There is something loose in this city that is an illness.” His sentiments were echoed by famed criminal defense attorney Percy Foreman who called Houston a “police state.” Percy continued, “The Houston Police Department is worse, and its officers more violent and unchecked, than any comparable police force in the country.”

A little history as an aside: Torres, a 23-year old Vietnam Veteran, was arrested in May 1977 for disorderly conduct at an east-side Houston bar. The six responding officers took Torres to a place called “the hole” near Buffalo Bayou and severely beat him. When the officers presented Torres to the jail for booking, jail personnel ordered Torres taken to the hospital. Instead, the officers returned to the bayou and tossed Torres into the water with his hands still cuffed. Days later, Torres’ body was discovered in the water.

The two officers who were tried in state court on murder charges were convicted of negligent homicide and given one-year probation and a $1 fine. Later officers were tried in federal court and were convicted and served 9 months in prison.

The outrage over the officers’ action and their punishments led to riots and protests.

These 1970’s accounts of police violence parallel today’s accounts: a policeman in McKinney, Texas drawing his service weapon on a group of African-American teenagers in swimsuits; a Harris County prosecutor using a grand jury to browbeat an alibi witness; the officer shooting of Michael Brown in Ferguson, Missouri; and the police shooting of mentally ill Kajieme Powell in St. Louis.

Of particular interest to us in Harris County, Percy Foreman blamed the 1970’s police violence on Harris County prosecutors who have “’white-washed every charge against policemen,’ thus encouraging even more police violence by letting police know that they are free from the sanctions of the law.” It’s telling that Percy’s take on violence then is echoed by Harris County defenders still today and the remarkable rate at which Harris County grand juries wash charges against policemen.

Anyway, the article is worth the read as it goes on to analyze the military-styled police state and their training, particularly that since 9/11 police have been trained to OCCUPY rather than PROTECT.

Filed Under: honor, justice, military, police Tagged With: alfred dwayne brown, dockery, grand jury, harris county, Improper Conduct, joe campos torres, percy foreman, police brutality, police violence, prosecutors, white-wash

Want vs. Need in Solo IT Set-Up

June 9, 2015 Leave a Comment

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?

Filed Under: Defender, practice pointers Tagged With: computer, law office, patrick mccann, practice pointer, technology

How Do You Do It All?

June 9, 2015 Leave a Comment

by Lisa Shapiro Strauss, Attorney at Law, mother of 3 kids & Rabbi’s wife

Every working Mom has heard this question, from either our friends who are not working or those without children. This is one of the greatest challenges young women face. Just a generation ago, most women did not work outside the home full time. While some of these apply to men as well, there are issues that are uniquely facing Moms at home (whether single Moms or married Moms).

Fortunately, I had a fantastic role model. My Mom was a small business owner, politician and community volunteer.   On top of that, she raised 3 children, ran carpools, cooked meals and made it all look easy! However, she was probably unraveling underneath the surface and hanging on by a thread at times. She didn’t have many friends in her similar circumstances to lean on in stressful moments. Talk to your peers – go out for a glass of wine, unwind and vent your frustrations!

In our generation, things have gotten better as men take more responsibility at home with children and housework. However, a line item in my budget is to pay someone else to do the housework and laundry for my family of five. There are too many people looking for work that can take this jobs off your plate. I never want to feel guilty about spending quality time with my kids because there is a sink full of dirty dishes staring at me. Your time per hour is so much more valuable spent working or with your family.

Prioritize your extra-curricular activities. When my children were babies, I gave up volunteer opportunities and was not available for evening meetings. There were a few volunteer positions I wanted to hold onto, but realized I wasn’t helping anyone if I couldn’t fulfill my commitments. The time comes when you can take on more activities, but it needs to be once you are ready and your family can handle having you away from home.

You have to spend time every single day taking care of yourself, both physically and mentally. Get up early to take a spin class or break out of your routine early and go to yoga or for a walk. I love being done with my exercise by 6:00am before my kids get up, so I can make lunches and get them out the door. However, you have to get enough sleep so you don’t run your body down. You know what works for you, but you need to add it on your permanent schedule.

On a practical note, I could not live without my iPad, scanner and Dropbox. I have all my contracts, offense reports, photos, witness statements and other evidence scanned into Dropbox. Each Client has a folder in my Dropbox. I upload their videos and photos. I have access to my entire case file no matter where I may be in the world. I have done business on vacation (sadly), but more importantly, in my home. Any client that calls or issue that arises, I have the whole file at my fingertips 24/7. This is a lifesaver for a Mom on the go, driving carpool and sitting at baseball games.

You cannot be the best lawyer, best Mom, best wife, best friend and best volunteer. Something has to give and you need to decide which of these you value the most. Superwoman doesn’t exist and don’t fool yourself into thinking you are the first who will be able to do it all.

At the end of the day, turn off your ringer and enjoy your family.   Our children’s well-being affects us and ours affects theirs. We are inexplicably connected. The quality of the time we spend with them matters. We cannot hear our children while we are face booking, texting and watching the news at the same time. Spend time unplugged!

You cannot be the best lawyer, best Mom, best wife, best friend and best volunteer. Something has to give and you need to decide which of these you value the most. Superwoman doesn’t exist and don’t fool yourself into thinking you are the first who will be able to do it all.

We all need to stop and enjoy the fruits of our labor (no pun intended)! Before we blink, our babies will be gone and all those clients will be a faded memory. Cherish every moment you have with your kids so you don’t regret this time later. The kids will remember your presence and it does make an impact on their future.

Filed Under: Defender, Members Tagged With: criminal defense, hccla, lisa shapiro strauss, mother, the practice

Practice Pointer: Reinforce Information for Your Client

June 9, 2015 1 Comment

by JoAnne Musick

Client communication is key! You must communicate with your client regularly so that they will know what is happening and so that you can answer any questions they have. Because criminal lawyers spend a great deal of time communicating in person (with frequent court settings, visits at the jail, telephone calls, etc.) you end up sharing a great deal of information verbally with your clients. Often, clients become confused about what you have relayed or they simply cannot remember it all due to the stress of the situation and the volume of information they must process. The question becomes how do you reinforce the information for your client?

Simply, you do so with written correspondence. It is important to provide your client with as much information as possible so that your client can make appropriate and informed choices about his or her case. Think about all the information you share with your client in a typical case: the offense as charged, the punishment range, possible enhancements, possible defenses, summaries of evidence, witness information, collateral consequences (ALR, occupational licenses, ability to seal or expunge, sex offender conditions, immigration consequences, family consequences, employment consequences, firearm possession rules, and so much more). How can your client remember and process all of this information following that 30 minute jail visit? How can your client explain some of these to family when they seek family advice on how to proceed?

Provide your client with written guidelines. Cheat sheets if you will. You can create a general “how to” page on getting an occupational license and/or reinstating a suspended license. You can create a general “informational” page on the ability to seal or expunge records. You can create a general “how to protect attorney-client privileged information” guideline to warn your client about talking to others, especially in the jail. There are many general information categories that apply. Create “cheat sheets” or general information sheets to hand out to your clients to reinforce some of this common information. Think of it like FAQs. You know the questions clients routinely ask you. Start a list, create a handout or two, and get these into your client’s hands.

Additionally, when you convey important information about your client’s case directly to him or her, follow that up with a written letter that summarizes your conversation. Yes, it takes time, but it’s about helping a client. When there is a plea bargain on the table and a timeline for accepting or rejecting it, send a letter to your client reminding him or her. When you need a list of witnesses for guilt/innocence or punishment/mitigation, send a letter reminding your client to get that information to you timely. And, most importantly, when your client disregards your advice, send a letter stating what your advice is and that he or she has declined to follow that advice which could result in certain consequences. This is about keeping the client informed and making sure you have a file of what you have or have not shared with your client.

Add correspondence to your case “checklist” and make sure you are providing information to your client. The correspondence might even include a “welcome letter” and a “closure letter”. Send your client a welcome letter upon representation, something that spells out your scope of representation, how they can best contact you, your typical schedule for returning calls or letters. Send a follow up when you have the details of the charge explaining the offense and its range of punishment. Send plea offers. And finally send a closure letter to let them know where to go from here, i.e. when they might be eligible to seal or non-disclose their records, how to proceed on probation, what to do if they encounter problems or have questions, and thank them for entrusting you.

Anyway, you get the point. There are many things you can do to reinforce the information you provide to your client. Just start with the basics and get in the habit of providing more information to your client.

Filed Under: Defender, practice pointers Tagged With: attorney-client relationship, client, communication, criminal defense, joanne musick, practice pointer

Practice Pointer: Eyewitness Effects

June 9, 2015 Leave a Comment

By Mark Bennett

Scientific research and practical experience have shown that eyewitness testimony is often unreliable and a leading factor in wrongful convictions. Still, jurors tend to put a great deal of faith in the testimony of an eyewitness.

Eyewitness testimony can go bad because of bias, because of flawed memory, or because of flawed perception. We all think that we see things correctly and remember them accurately. The Internet recently gave us a tool to demonstrate to jurors that we are our perception of very simple things, such as the color of a dress, can be mistaken.

dress

Some people see the dress in this picture as blue and black. Some see it as white and gold. Put the image up on the screen (test it first to make sure that the effect works on the courthouse equipment) and your jurors will disagree on what color it is. (An informal Buzzfeed poll found that 70% of people saw it as white and gold, rather than blue and black. I got about the same results at home.)

Use this to demonstrate that people of good faith, with no biases, can perceive things wrong and believe beyond any doubt that they are correct. Also use it to make the point that how sure we are about things is not a reflection about how correct we are: those who are 100% sure that the dress is white and gold are 100% wrong.

Filed Under: Defender, practice pointers Tagged With: criminal defense, dress, eyewitness, lawyers, perception, practice pointer, trial technique, voir dire

Practice Pointer: Ethical 8

June 9, 2015 Leave a Comment

By: Jason Truitt

  1. Don’t refuse to accept a plea because your client hasn’t finished paying you—your business model should not cost your client her liberty and it most likely violates the Texas Disciplinary Rules of Professional Conduct. A few hundred dollars isn’t worth a grievance;
  2. Corollary to No. 1: If the representation has concluded and the client has defaulted on payments—forgive the debt. A few hundred dollars isn’t worth a grievance;
  3. No snitching; [i.e. don’t reveal your colleagues confidences]
  4. Don’t ex parte a judge;
  5. If you see unethical conduct by a lawyer or a judge, confront it appropriately—this may mean throwing bombs, or it may mean showing some tact, but it requires action;
  6. Don’t represent co-defendants;
  7. Read the charge and punishment ranges to your client;
  8. Don’t give immigration advice unless you know what you’re talking about; most of all never advise that a plea “won’t affect your status at all” in order to get the plea done.

Filed Under: Defender, practice pointers Tagged With: criminal defense, ethics, hccla, jason truitt, lawyers, practice pointer

Practice Pointer: Can You Afford an Assistant?

June 9, 2015 Leave a Comment

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

 

 

Filed Under: Defender, practice pointers Tagged With: assistant, criminal defense, hccla, lawyers, learning from masters, patrick mccann, practice, practice pointer

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