Harris County Criminal Lawyers Association

Free from Tyranny

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11713762_10207087343963333_5644811668517364144_o11538967_10207087337843180_4432589235042740427_oOn July 2, 2015 members of the Harris County Criminal Lawyers Association again assembled on the courthouse steps for our annual reading of the Declaration of Independence. Began in 2010 by Robert Fickman, this was our 6th Annual Reading.
10636874_10207087333843080_3404999347319209620_oAlways moving and inspiring, this year we were fortunate to have the added joy of hearing two Wor11700626_10207092943223311_2599068859094080682_old War II Veterans, Virgil Poe and Joseph Varela Sr., read with us.

We would like to thank all those in attendance as well as those who participated in the reading.

Readings by:
Virgil Poe, JoAnne Musick, Todd Dupont, Chris Tritico, Paul Schiffer, John Raley, Evan Myers, Carmen Roe, Damon Parrish II, Jason Sosa, Robert Fickman, Joseph Varela Sr. (assisted by his son Joe Varela Jr.), Grant Scheiner, Alex Bunin, Danny Easterling, Justin Harris, Ernesst Bo Hopman, Vivienne Schiffer, Mark Metzger, Drew Prisner, Gemayel Haynes, Sarah Wood, Mike Trent, Paul Kennedy, Robert Pelton, Vivian King, Wade Smith, Paul St. John, Jackie Carpenter, Thuy Le, Alejandro Macias, Philip Gommels, Tristan Legrande, Mary Moore, J. Julio Vela, Mark Bennett, Earl Musick, and Nicolas Hughes.

Special thanks to these judges who attended:
Brad Hart, Jay Karahan, Susan Brown, Kristin Guiney, Robin Brown, Brett Busby, Marc Brown, Brock Thomas, Denise Bradley, Mike Fields, Paula Goodhart, Mary Lou Keel, and Michael Schneider.

Very special thanks to those behind the scenes that make it all happen:
Christina Appelt, Joel Avendano, and Bob Rosenberg (official HCCLA photographer).

Our photos can be found via Bob Rosenberg’s Facebook (public posting) here: Part 1, Part 2, Part 3

We are proud to have started this tradition and watch it grow across the State of Texas. Joined by TCDLA, Robert Fickman has grown this event to cover more than one-half of Texas Counties. A recap can be found here: http://www.criminaldefensedeclarationreading.com/

Some of our members have blogged their personal experiences:

JoAnne Musick, HCCLA President

Philip Gommels, Board Member

You can view the video of our reading here: https://youtu.be/3Bm55f-FQnI

And lastly, KTRH added a little insight into the practice!

PR: Declaration of Independence

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FOR IMMEDIATE RELEASE

CONTACT:
JoAnne Musick, HCCLA President
832-448-1148 office,  email JoAnne

6th ANNUAL READING OF THE DECLARATION OF INDEPENDENCE
Houston, Texas – June 29, 2015

In celebration of Independence Day, the Harris County Criminal Lawyers Association (HCCLA) is holding its 6th annual reading of the Declaration of Independence. This year’s event will be led by JoAnne Musick, the association’s president.

HCCLA’s reading of the Declaration is an annual tradition that was started by HCCLA Past President, Robert Fickman. This year he organized similar readings across the state, making defense bar history. Readings by defense lawyers will take place in front of 127 Texas courthouses, covering one-half of all county seats. HCCLA continues to lead Texas with the largest gathering, boasting over 100 local attorneys, judges and Houstonians in attendance.

The Declaration of Independence is our nation’s most cherished symbol of liberty. This sacred document is the founding document of the United States, and contains within its text the fundamental truths and unalienable rights that typify and embody the American way of life: …that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

Please join us in honoring our nation’s most sacred document in the spirit of independence:
When: Thursday, July 2, 2014
Where: Harris County Criminal Justice Center
1201 Franklin Street , Houston, Texas
(Front steps of the courthouse)
Time: 11:30 AM

The Harris County Criminal Lawyers Association is the largest local criminal defense bar in the United States with more than 750 active members. For more information about the history of the readings and photos, visit: http://www.criminaldefensedeclarationreading.com/
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download here:

Download (PDF, 53KB)

 

Texas Criminal Defense Lawyers Association also issued their press release as this event has grown into a statewide event:

PRESS RELEASE: FOR IMMEDIATE RELEASE
CONTACT:  Joseph Martinez, Executive Director : TCDLA
TELEPHONE:  (512) 478-2514
PLEASE SEND ELECTRONIC TEARSHEET TO:  declarationreading@gmail.com

Texas Criminal Defense Lawyers to Lead Readings of Declaration of Independence in over 120 Texas Counties on July 2, 2015.

Members of the Texas Criminal Defense Lawyers Association (TCDLA) are holding Annual Fourth of July readings of the Declaration of Independence at over 120 Texas County Courthouses on July 2, 2015. TCDLA is an organization committed to protecting individual rights guaranteed by the U.S. and Texas Constitutions in criminal cases. The readings were first organized in 2010 by Robert Fickman, a Houston criminal defense attorney, who leads the organization of readings today as well.

Sam Bassett, the President of TCDLA, states: “Criminal defense lawyers fight to protect the liberties of our fellow Americans on a daily basis in courts across Texas. As a group, we are proud to stand united and lead readings of the Declaration of Independence. It is a recognition that our Founders intended for individual liberty to be a paramount concern. As recent events have shown, power threatens these liberties. Prosecutors who illegally withhold evidence, courts that conduct plea mills, abusive police officers and appellate courts who gut the Fourth Amendment are examples of the ongoing struggle within the criminal justice system.”

The members of TCDLA stand united in defense of liberty.

To learn more about this event, please contact TCDLA President Sam Bassett at (512) 472-0144 or sbassett@mbfc.com or Robb Fickman at (713) 655-7400

Time for Case Limits in Harris County?

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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/.

Prosecutorial Discipline

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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)

Alfred Brown Unresolved Matters

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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)

Police: The New Gang in Town

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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.

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?

How Do You Do It All?

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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.

Practice Pointer: Reinforce Information for Your Client

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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.

Practice Pointer: Eyewitness Effects

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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.

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