Blog – Page 3

Bat Signal: Superheroes Called to Action

August 2, 2016 1 Comment

When villains threaten Gotham, Commission Gordan initializes the Bat Signal and superheroes spring into action. When judges bully defenders, Mark Bennett initiates our Bat Signal and leads his fellow superheroes into battle.

Superheroes represent positive values by being responsible. While this may seem simple enough, responsibility is an ongoing internal struggle for superheroes. Simply put, power corrupts. Responsibility is the essential quality that distinguishes superheroes from regular villains. Being responsible, no matter the personal cost, is the superhero’s only defense against being corrupted by power. Superheroes are thus defined, limited, and restrained by their struggle to be responsible, to exercise their abilities and power with restraint. Supervillains’ lack of restraint and utter irresponsibility are a threat to the superhero, and to the people the superhero protects.
Superheroes Need Superior Villains by Stanford W. Carpenter

Being responsible, no matter the personal cost, Mark Bennett leads a top-quality HCCLA strike force of superheroes to combat the supervillains in our midst who threaten our defenders and thus the people we protect. He truly embodies the superhero who maintains responsibility against those who exercise irresponsibility and lack of restraint. Though his skirmishes are numerous, one in particular warrants review.

Super Defender Cheryl Irvin was threatened in the zealous defense of her client. Her zealousness was met with an improper order of incarceration. This judge wasn’t “patient, dignified and courteous” as required by the Texas Canons of Judicial Conduct. She ordered Cheryl into the holdover to wait. She demanded an apology. Within minutes the bat signal was initiated and Mark and others rushed to aid our super-defender in her contest with the supervillain.

While he assessed the situation, more superheroes assembled to investigate and research the facts and options. Mark proceeded to assemble a resolution. After much to-do about nothing, the resolution consisted of Cheryl going about her own business, leaving the holdover, and ultimately filing a grievance.

Super-defenders provided affidavits discussing the facts and circumstances. Slowly, yet surely, the State Commission on Judicial Conduct issued its decision: a private sanction.

The villain retreated. But, like all villains, returns at a whim.

After the death of colleague, Mark took over a case in the judge’s court. Mark requested a short two-day reset to consult an immigration attorney before his new client could take a sweet deal. “No good deed goes unpunished,” she warned. After all, the supervillains’ lack of restraint and utter irresponsibility are a threat to the superhero, and to the people the superhero protects. The ongoing struggle continues.

As for Mark, he will “look for more opportunities to do the right thing the same way.” And the CJC is a safer place for all his efforts.

President’s Message – Spring 2016

August 2, 2016 Leave a Comment

What a Year!

These last few months have been exciting to say the least. It seems we have had our hands in just about everything going on in and around the Criminal Justice Center. We’ve participated behind the scenes and in group studies to give the defense a voice. We’ve met with prosecutors and judges to make sure they hear our concerns. In short, we have made a difference! Thank you all for the help and support you have given to our board which made this possible.

We received word that our complaint against Judge Bill Harmon was sustained with a private reprimand. The Judicial Commission agreed that his display of the M.A.D.D. plaque in a public courtroom was inappropriate. Thank you to Tyler Flood and all others who brought this issue to light and helped set the stage for our successful complaint.

If you missed it, we also had some spectacular CLE events: Maneuvering Search and Seizure and our Judge Wendell Odom Appellate Seminar were highly attended and received rave reviews. If you missed Appellate, you missed live oral arguments in the Court of Appeals and a frank roundtable discussion of the arguments immediately following. We’ve also had some amazing happy hour CLE events on DWI, electronic devices, and interrogation among others. Under the direction of David Ryan, our CLE chair, we have offered more variety and lower cost CLE to benefit our members and surrounding local bars. When you see him, give him your thanks!

Our strike force, fearlessly led by Mark Bennett, continues to aid our members faced with bullying, indifference, and injustices. For a quick read and example of his work, see Bat Signal: Superheroes Called to Action in this issue.

We have a tremendous resource in our web and social media presence that spun off from our Reasonable Doubt television show. We have a host of writers commenting on current issues, providing legal experience and insight, and educating our public. With your help, we can continue to grow our audience. Don’t forget to tweet and Facebook us! Our websites alone are garnering approximately 15,000 hits a month!

Great things are in store for our future, and I can’t wait to see where this next year takes us with Tyler at the helm. I am humbled and honored to have once again worked with you all to better our bar and elevate the defense voice in Harris County. Together we have made a difference.

Together we will continue to stand against the injustices. Together we will stand and fight. Together we will stand for what is right.

A man dies when he refuses to stand up for that which is right.
A man dies when he refuses to stand up for justice.
A man dies when he refuses to take a stand for that which is true.
– Rev. Martin Luther King, Jr. on courage, March 8, 1965

It has been my pleasure to serve the criminal defense bar.
JoAnne

We are UNLESS

July 31, 2016 Leave a Comment

By: Rick Oliver
HCCLA Member and Defender Contributor

The presumption of innocence is commonly understood to be a legal term of art. If that be the case, then, the question becomes whether art really does imitate life in this business.

In theory, the presumption of innocence is indeed a term of art in the sense that it has a specific meaning within the legal field and amongst its practitioners. The presumption is more than just a phrase connoting a specified meaning, though. It is the foundation upon which our niche in this profession has been built. It is the keystone principle that maintains the integrity of our system of justice. It is the fiber in the connective tissue that binds us all to whatever construct we perceive of as our social contract.

In reality, the presumption of innocence is the Alpha and the Omega. Without it there is no justice. Without it, no trust. Without it there is no reason to honor the terms of any social contract; real or imagined.

But, the juxtaposition of the presumption of innocence with other legal terms of art brings a sad reality into focus. The “State” is a good and telling example. The truth is there is no “State.” It has no address. No postal zip code. There are no pearly gates that separate the “State’s” lushly manicured grounds and towering white spires from the citizen and his shanty town. There is no lone figurehead reminiscent of Reagan or Stalin or Margaret Thatcher or Thor. It only exists insofar as society allows it to exist. The “State” is a legal term of art, just like the presumption of innocence.

Except, it is nothing like the presumption of innocence. The “State” is an illusory fable penned by our Founding Fathers and passed from one generation of white-hatted do-gooders to the next. It is drafter and signatory to the social contract to which each of us is bound. It is the aggrieved party and the enforcer whose job it is to redress perceived contractual transgressions. The “State” implies more than it says. The “State” has a long and ranging arm. The “State” wields a big and often wretched stick. The “State,” by and through its agents, has within it the power to chuckle at Oppenheimer’s quip: “Now I am become Death, the Destroyer of Worlds.” In short, the “State” has within its dominion the propensity for a self-righteous and trembling gravitas.

By way of contrast, there is the presumption of innocence. There can be little doubt the presumption of innocence has been turned on its head. It has been eulogized as a dead letter; its demise feted in the halls of the “State.” It has been heckled and jeered and burned in effigy. In truth, the presumption of innocence is at odds with its maker, and because of that, no longer exists.

Our citizens accused are more likely to enjoy unicorns and leprechauns and purple rhinos than they are the presumption of innocence. It has been reduced to a sad and consensual hallucination; the artifice of sophistries. But, what is profoundly more disheartening than its demise is the reality that we—the defense bar—have helped to kill it.

Not affirmatively, of course. We haven’t exercised the audacity the “State” so often has when it, for example, hides exculpatory evidence. We haven’t plotted—with maniacal attention to detail—the murder of the presumption of innocence, intentionally or knowingly, or with malice aforethought. Not even death by a thousand pricks is to blame for its demise, at least insofar as those pricks are we.

Instead, we have sharpened the guillotine of the “State” with our neglect. Ironically, all we have neglected is but a single word. But, as Mark Twain once remarked, “The difference between a word and the right word is like the difference between lighting and a lighting bug.”

As codified, the presumption of innocence, that useless ramble, suggests that: “All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt.”[i]

Close your eyes and say it aloud. Now, imagine yourself standing tall before the venire, sweating and preaching and rambling for the fifteen minutes the court has conferred upon you like a soiled gift. Look down at your imaginary outline to where the presumption of innocence necessarily precedes the burden of proof. Ask a pretend person to re-state the presumption of innocence in the shorthand we all so often hear.

“Innocent [fill in the blank] proven guilty.”

If your febrile imagination inserted the word “until” between the brackets, then you, like so many of us, have the blood of the presumption of innocence on your hands, too.

Resist the temptation to roll your eyes and consider the following: the word “until” is a conjunction that is used to refer to the time that took place or passed before an event or incident. It means “up to the time” or “till the time.” It is also used to show one’s aim of finishing a job or task even if there are things that make accomplishing it difficult.

The word “unless,” on the other hand, is a conjunction that is used to refer to a condition which makes the event or incident that precedes it impossible. It has the same connotation as the words “if” and “except.[ii]”

If your instinctual response can be summarized by resort to the familiar refrain that a comparison of unless and until yields a difference without a distinction, you are, in my humble opinion, out of your goddamned mind. The words unless and until are not tautological. They do not mean the same thing. They should only be used together when the situation calls for both a context of time and a precondition[iii]. Using the word “until” suggests the result is an eventuality. Using the word “unless” suggests there is some condition precedent that must be satisfied before that result may occur.

Imagine you’re watching an old black and white docuseries memorializing the great Clarence Darrow and one of his magnificent rites of defense. Imagine further he is engaged in a heated exchange with a corrupt prosecutor regarding the rights of the accused. Imagine Darrow’s impassioned plea in support of a vigorous and competent defense:

“He is presumed to be innocent UNLESS proven guilty,” Darrow might shout.

“Until, Mr. Darrow. Until he’s proven guilty.”

Now tell me you don’t feel the difference. In the example, the prosecutor says a lot without saying much. An economy of words does not necessarily imply an economy of meaning. And, it should not be difficult to divine which of these incarnations ought to be championed by those whose job it is to ensure that justice is done according to the law of the land, as it is written, and as it was intended.

It is also important to highlight the obvious. This business we have chosen is an adversarial one. We are competitors, in fact and in theory. We work with the same facts in an attempt to deliver different products. Woe befall the lawyer who fails to appreciate the reality that an aspect of what we do includes the idea of a sales pitch. Even worse is the thought that some lawyer mistakenly assume his or her pitch is limited by what they believe the facts have or have not proven. We incorporate the pitch in the way we dress and the way we dress our clients. We incorporate the pitch in the way we address the courts and the way we address its juries. We organize and pander to the rightful pageantry of the presumption of innocence, forgetting somehow that the devil is almost always in the details. The end result is that we are allowing the “State” to capitalize on our neglect. We are conceding the sale before either side utters so much as a single word.

WE are UNLESS and THEY are UNTIL.

The challenge of the defense is to convince the venire that the determination of guilt has yet to be made. In other words, we want them to understand and believe that the accused is presumed to be innocent unless the facts prove otherwise. The challenge of the “State” is to convince those same people that they wouldn’t be wasting their time if the guilt of the accused were not already assured. In other words, they want them to believe that all that is required of them is that they wait until the end of the “State’s” presentation before properly returning a verdict of guilt.

Our challenge is consonant with the spirit of the law. Theirs reflects the aim of those engaged in adversarial competition where the results are almost always zero sum. Whether the conflation is the result of intentional complicity or mutual negligence is irrelevant. The point is it is happening. It is diminishing the “State’s” burden of proof (another term of art). It is poisoning our juries. It is dooming the prospects of our citizens accused. Make no mistake, with a single word we have allowed the “State” to stack the deck against us.

In marketing circles the terms is referred to as “presupposition.” Presupposition is often utilized by using words and language that indicate your assumption that your offer has already been accepted. It is a technique that is used both consciously and subconsciously[iv]. In the context of the legal field, it is, quite simply, tradecraft. And, what is truly disturbing is that we’re not just allowing this to happen. We are perpetuating its dissemination and wide-spread acceptance. We act like it’s no big deal.

The impact of word choice is not limited by the ability of the audience to consciously discern subtle differences, either. Researchers have long known that expectations influence cognitions and behaviors[v]. When we expect a particular outcome, we automatically set in motion a chain of cognitions and behaviors to produce that outcome—and misattribute its cause[vi]. Although expectancies can develop in many ways, they are often the product of suggestion. Suggestions can come from other people or from the environment; they can be cultivated in the present or drawn from the past; and they can be deliberate or not deliberate[vii]. Suggestion can influence implicit learning and lead to the enhancement or impairment of memory[viii]. Further, suggestion can also influence evaluations of a product above and beyond its intrinsic features[ix]. Suggestions, particularly those that people do not realize they are communicating, can transmit expectations to others and thereby influence their thoughts and behaviors[x].

Clearly, the “State” has not taken a chainsaw to our beloved presumption of innocence. Rather, it appears the instrument used were more likely a scalpel. Its aim was specific and its incision precise. The product is a facelift that has altered the fundamental character of the presumption of innocence. A single word has undermined its promise. Now, there is a presumption of guilt and that presumption is a self-fulfilling prophecy.

What the literature suggests is that when the inaccurate beliefs of different perceivers about a given idea are similar, their individual self-fulfilling effects can accumulate such that their combined self-fulfilling influences may be more powerful than any of their individual self-fulfilling influences. That is, the similar and inaccurate beliefs held by multiple perceivers may potentiate one another’s self-fulfilling effects, a process referred to as synergistic accumulation[xi]. So, if even one of your potential jurors internalizes the conflation to encourage a presumption of guilt, the die may have already been cast.

Fortunately, the literature also suggests that members of stereotyped groups may be shielded from confirming negative stereotypes if they are also exposed to positive beliefs. In this example the “stereotyped group” is the citizen accused. The negative stereotype is that a citizen wouldn’t be accused unless he was guilty. The positive belief is the assertion that there is a more redeeming and legally correct definition of the presumption of innocence. To paraphrase Miracle Max, what this ultimately means is that the presumption of innocence is only mostly dead. There’s a difference between mostly dead and all dead. Mostly dead is slightly alive. With all dead, well, with all dead there’s usually only one thing you can do[xii].

What we can do—what we must do—is right the ship. The presumption of innocence is the ballast that brings balance to the system. For some time now, the ship has been taking on water. As its designated stewards, it is time we all started bailing that water.

The remedy is simple: object. Object on the basis that the conflation of unless with until with respect to the presumption of innocence is a misstatement of the law. It is. Object on the basis that use of the word until is a comment on the weight of the evidence. It is. Object on the basis that use of the word until effectively reduces (if not eliminates) the “State’s” burden of proof. It does.

Currently, it appears we are unwittingly content to go down the ship. A simple natural language search for the phrase “innocent until proven guilty” returned only 99 Texas cases. A non-exhaustive review of those cases revealed almost nothing directly on-point. One of them was, and its analysis was telling. In Randolph v. State, the appellant complained that the trial judge violated his due process rights when it suggested to the venire that he was “innocent until proven guilty[xiii].” The COA noted that “[t]he Texas Court of Criminal Appeals…has not drawn a distinction between “unless” and “until” when those terms are used in connection with the presumption of innocence[xiv]. Then, the COA basically shrugged its collective shoulders and, in effect, said, “Look, we all do it all the time; what’s the big deal!?!”[xv] After all, trial counsel did not object to it when he had the chance[xvi]. And, the COA observed that “nothing in the record indicates that the venire meaningfully distinguished “unless” from “until” in the context in which the trial court used it during voir dire such that the use of “until” negatively affected [appellant’s] presumption of innocence.”[xvii] Nothing in the record, huh? With all due respect to the First Court of Appeals: no shit it’s not in the record.

The issue is not what is being put on the record while the venire is attentively seated. The issue is what the venire is bringing with them—subconsciously or otherwise—as they file in to the room. When we allow the law to be misquoted in the manner it currently is we effectively endorse a subliminal message that is broadcast to the entire world. The message we send is that trials are but a mere formality. The message we send is that trials are not a search for the truth. The message we send is that trial is simply the final wait to be endured before the accused can be rent asunder. The message we send is that convictions are an ultimate imperative. In an adversarial system such as ours, it is hard to fathom how we can expect to prevail over the “State” when we allow them to start the race at the finish line. That is the difference between unless and until.

We are the purveyors of the presumption of innocence. We are its stewards. We have to do better.

We are unless…until we’re not.

[i] Tex. Code Crim. Proc. art. 38.03; Tex. Pen. Code §2.01

[ii] M., Emelda (2011). Difference Between Until and Unless. Retrieved from http://www.differencebetween.net/language/grammar-language/difference-between-until-and-unless/

[iii] Unless vs. Until. Retrieved from http://www.diffen.com/difference/Unless_vs_Until

[iv] The Rule of Expectations—The Impact of Suggestion. Retrieved from http://westsidetoastmasters.com/resources/laws_persuasion/chap10.html.

[v] Michael, R.B., Garry, M., Kirsch, I. (2012). Suggestion, Cognition, and Behavior. Current Directions in Psychological Science, 21(3) 151-156.

[vi] Id. (citing Kirsch, I. (1997). Response expectancy theory and application: A decennial review. Applied & Preventive Psychology, 6, 69-79. Doi: 10.1016/S0962-1849(05)80012-5; Kirsch, I. (2004). Conditioning, expectancy, and the placebo effect: Comment on Stewart-Williams and Podd (2004). Psychological Bulletin, 130, 341-343. Doi: 10.1037/0033-2909.130.2.341)

[vii] Id. (citing Stewart-Williams, S., & Podd, J. (2004). The placebo effect: Dissolving the expectancy versus conditioning debate. Psychological Bulletin, 130, 324-340. Doi: 10.1037/0033-2909.130.2.341)

[viii] Id.

[ix] Id.

[x] Id.

[xi] Madon, S., Guyll, M., Spoth, R., Willard, J. (2004). Self-Fulfilling Prophecies: the Synergistic Accumulative Effect of Parents’ Beliefs on Children’s Drinking Behavior. Psychological Science, Vol. 15—No. 12, 837-845

[xii] The Princess Bride. Dir. Rob Reiner. Twentieth Century Fox Film Corporation, et al, 1987. Film.

[xiii] Randolph v. State, 2008 Tex. App. LEXIS 9192, No. 01-08-00266-CR, *1 (Tex. App.—Houston [1^st Dist.] 2008, unpub.)

[xiv] Id. at *8

[xv] Walters v. State, 247 S.W.3d 204, 210 (Tex. Crim. App. 2007); Giesberg v. State, 984 S.W.2d 245, 250 (Tex. Crim. App. 1998); Hill v. State, 955 S.W.2d 96, 100 (Tex. Crim. App. 1997); Mays v. State, 726 S.W.2d 937, 951 (Tex. Crim. App. 1986); Wiseman v. State, 223 S.W.3d 45, 50 (Tex .App.—Houston [1^st Dist.] 2006, pet ref’d); Deck v. Missouri, 544 U.S. 622, 630, 125 S. Ct. 2007, 2013, 161 L. Ed. 2d 953 (2005); Wynn v. State, 219 S.W.3d 54, 59 (Tex. App.—Houston [1^st Dist.] 2006, no pet.)

[xvi] See Randolph, 2008 Tex. App. at *6.

[xvii] Id. at *8

Right to Resist an Illegal Arrest? Nope!

July 29, 2016 1 Comment

Guest Blog by Millie Thompson, HCCLA member and Defender of the Constitution

The Constitution does not guarantee that only the guilty will be arrested. If it did, § 1983 would provide a cause of action for every defendant acquitted—indeed, for every suspect released.

Libertarian-bent people repeatedly ask me the following leading question, expecting me to confirm their conclusion: We have a Constitutional right to resist an illegal arrest, right?

No, you don’t. There was a common law right to resist, set forth in the Supreme Court case Bad Elk v. United States, 177 U.S. 529 (1900). That right was destroyed by the courts during the backlash against the Civil Rights Movement.

The courts stripped citizens of the right to resist an unlawful arrest, explaining that people should seek redress in court and sue civilly for an unlawful seizure. Qualified Immunity, however, destroys your ability to sue for an unlawful arrest based on mistaken identity.

On the one hand, you can’t resist them. On the other, you have no right to complain later if they were merely mistaken about arresting you.

Compare 1 with 2:

1 – United States v. Danehy, 680 F.2d 1311 (11^th Cir. 1982):

Speaking for the court in United States v. Johnson, 542 F.2d 230, 233 (5th Cir. 1976), Judge Morgan evaluated the current vitality 1316*1316 of the common law right to forcibly resist unlawful arrest. He concluded that old Fifth Circuit case law on the subject had been “sapped of its precedential value” by the persuasive authority of decisions from the other courts of appeals. Those decisions recognize that the common law right to resist an arrest that is not based upon probable cause, suited though it may have been to a past era, has no significant role to play in our own society where ready access to the courts is available to redress such police misconduct. See, e.g., United States v. Cunningham, 509 F.2d 961, 963 (D.C. Cir. 1975); United States v. Martinez, 465 F.2d 79, 82 (2d Cir. 1972); United States v. Simon, 409 F.2d 474, 477 (7th Cir.), cert. denied, 396 U.S. 829, 90 S.Ct. 79, 24 L.Ed.2d 79 (1969). Cf. United States v. Ferrone, 438 F.2d 381, 389-90 (3d Cir.), cert. denied, 402 U.S. 1008, 91 S.Ct. 2188, 29 L.Ed.2d 430 (1971) (no right to resist search pursuant to invalid search warrant). But see United States v. Moore, 483 F.2d 1361, 1364 (9th Cir. 1973) (dictum). Although there may be some residual role for the common law right where it appears that the arresting officer is engaged in a “frolic of his own,” see United States v. Martinez, 465 F.2d at 82, there was no such situation here.

2 – Baker v. McCollan, 443 U.S. 137 (1979):

Respondent’s innocence of the charge contained in the warrant, while relevant to a tort claim of false imprisonment in most if not all jurisdictions, is largely irrelevant to his claim of deprivation of liberty without due process of law.[4] The Constitution does not guarantee that only the guilty will be arrested. If it did, § 1983 would provide a cause of action for every defendant acquitted—indeed, for every suspect released. Nor are the manifold procedural protections afforded criminal defendants under the Bill of Rights “without limits.” Patterson v. New York, 432 U. S. 197, 208 (1977). “Due process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person.” Ibid.

The Fourteenth Amendment does not protect against all deprivations of liberty. It protects only against deprivations of liberty accomplished “without due process of law.”

Experts will tell you that the fight-or-flight instinct kicks in whenever someone is in a high stress situation, like, for example, when a police officer puts you in a choke hold. You get tunnel vision. Your body shuts down the processes associated with digestion and rational thought, and your body ramps up the systems that will help you outrun the lion or fight the home invader.

At rest, you can process messages like “put your hands behind your back.” When you’re experiencing the fight-or-flight response, your brain isn’t working in a way that allows proper computation of that message.

The law on resisting arrest is illogical on two fronts: First, the whole reason courts have gotten rid of it – you can sue – is false. No, you can’t sue. Those officers have immunity from suit. Courts also point to the right to a speedy trial. That right is meaningless. There are people sitting in county jails everywhere who can’t make bail, were arrested a year, or even two years, or even three years ago, and still haven’t gone to trial. Second, it is not a cognitive rational decision to resist. It isn’t a choice. It is instinct.

We have a Constitutional right to resist arrest, right? Nope.

PR: Call for Round Table in Light of Shootings

July 9, 2016 Leave a Comment

***FOR IMMEDIATE RELEASE***

The Harris County Criminal Lawyers Association, the largest local criminal defense bar in Texas, sends its heartfelt sympathy to the victims’ families in Louisiana, Minnesota and Texas. We are all grieving heavily over the losses sustained in recent days.

As a Nation, State, and City, we are divided by these terrible events. We send this letter to try to help put an end to the downward-spiraling trend of increasing racial division in our community. We feel that strong action is immediately necessary to help avoid more racially motivated killings.

HCCLA calls for local officials to help heal our community, to fix broken relationships, and to try to re-build trust and confidence in law enforcement officials.

This can be accomplished by having the Mayor and the County Judge host a joint round table that includes the Harris County Sheriff’s Office, Houston Police Department, Harris County District Attorney’s Office, Harris County Public Defender’s Office, Harris County Criminal Lawyers Association, the Houston Chapter of Black Lives Matter, and the American Civil Liberties Union as well as other law enforcement and community leaders to discuss the following issues:

Reassignment of law enforcement Internal Affairs investigations to neutral and impartial third parties to insure law enforcement accountability.
Body Camera use for all law enforcement encounters and mandatory policies for such use.
Increasing transparency from local law enforcement and the District Attorneys’ Office; Brady disclosures, prosecutor racial-sensitivity training, and full disclosure of complaints against officers and disciplinary information.

HCCLA calls on Mayor Turner and Judge Emmett to schedule a date and time to host this round-table meeting as soon as possible. This meeting is necessary and important for our citizens to see proof that Houston and Harris County leaders are committed to examining the path we are on to help avoid reliving the Louisiana, Minnesota and Dallas events here in our community.

Please feel free to contact me by email at tyler@tylerflood.com. Thank you in advance for your prompt attention to this very important and sensitive matter.

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Our Lives, Our Fortunes, Our Sacred Honor

July 4, 2016 Leave a Comment

As Free and Independent States, Absolved from all Allegiance to the British Crown, We mutually pledge to each other our Lives, our Fortunes and our sacred Honor. We hold these truths to be self-evident, 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. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

July 1, 2016: 7th Annual Reading

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Nicole DeBorde

In this 240th celebration of the Declaration of Independence, we again assembled to pledge to each other our Lives, our Fortunes and our sacred Honor. In this our 7th annual reading, we stood together to renew our vigor and remind those in power that their power will be checked. As a local activist organization, we, the members of HCCLA, stood together and renewed our promises to our clients and colleagues. We will be the ones who stand against tyranny. We will be the ones who daily fight for individual freedoms and rights so that all will be protected.

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Robert Pelton

In a day where our judiciary thinks they are part of the home team, prosecution and law enforcement, we are the ones who stand to remind them governments can be overthrown. Governments are instituted among men and derive their powers from the consent of the governed. It is not government who decides right or wrong. It is the people. And whenever government becomes destructive, it is the right of the people to alter or abolish it.

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Robert Fickman and Tyler Flood

We are fortunate to have started this great tradition which has now spread across Texas and is gaining national and even international momentum. Many thanks to Robert Fickman for leading the statewide effort and securing readings in each and every of Texas’ 254 counties.

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Bob Rosenberg

Our history is reflected in a short synopsis of our years. And we hope to continue to grow our symbolic stand against the abuses in our system.

Additional thanks to Bob Rosenberg who tirelessly assists each year, not only with our reading but with photographs to document.

We’d also like to thank those judges and public officials who were able to attend and share our experience: Judge Kristin Guiney, Justice Marc Brown, Judge Ryan Patrick, Judge Jay Karahan, and District Clerk Chris Daniel. Judges Stacey Bond, Mike Fields, and Maria Jackson sent their regrets.

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Steve Halpert

Special thanks to ABC 13 and Jaime Zamora for livestreaming our event! Check out some video HERE

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Earl Musick

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JoAnne Musick

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Romy Kaplan, George Parnham, Mary Conn, Jay Cohen

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Alex Bunin, Chris Tritico

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John Raley, Nicole DeBorde, JoAnne Musick

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Vivian King, Robert Fickman

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Robert Pelton, JoAnne Musick, Danny Easterling

Media from our event:

Click2Houston carries the full video of the event HERE

ABC13 Coverage HERE

Breitbart – Texas Lawyers Celebrate in Every County by Reading Declaration of Independence: Started with HCCLA

Texas News quotes member Tom Berg

International Readings by our Members:

Enjoy members Ken and Judy Mingledorff reading in Prague on behalf of HCCLA

Member Brent Mayr reading on the steps of the Palazzo Publico taken from the Piazza del Campo in Siena, Tuscany, Italy. The relative significance of this location to the Declaration is two-fold. First, the Palazzo was home to one of the first forms of republican government outside of Rome. Second, and more importantly, painted on the walls inside are two famous frescos, The Allegory of Good Government and The Allegory of Bad Government. In The Allegory of Good Government, the central character is guided by Faith, Hope, and Charity, while conferring with the proper virtues necessary for a proper and just ruler: Peace, Fortitude, Prudence, Magnanimity, Temperance and Justice. Appropriately, Justice is depicted balancing the scales held by Wisdom. On the other hand, in The Allegory of Bad Government, the central figure is a demonish looking character with horns and fangs depicting Tyranny. Surrounding him are characters representing Cruelty, Deceit, Fraud, Fury, Division, and War.

PR: 2016 Reading of Declaration of Independence

June 21, 2016 Leave a Comment

P R E S S R E L E A S E

7th ANNUAL READING OF
THE DECLARATION OF INDEPENDENCE

Houston, Texas – In celebration of Independence Day, the Harris County Criminal Lawyers Association (HCCLA) is holding its 7th annual reading of the Declaration of Independence as we celebrate its 240^th anniversary. This year’s event will be led by JoAnne Musick, HCCLA’s immediate past president.

HCCLA’s reading of the Declaration is an annual tradition that was started in 2010 by past president Robert Fickman. Last year our tradition was shared in 139 counties across Texas, covering more than one-half of all county seats. This year, Robert Fickman has led the statewide effort through our affiliate, TCDLA, and has secured readings in all 254 counties within Texas. 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 embodying a stand against tyranny. Our founders resisted the illegal and immoral practices of the crown. Today, we continue to fight against the abuses of government: police and prosecutorial overreaching and misconduct. Prosecutors continue to withhold evidence, courts persist in plea mills, police abuse our citizens, and appellate courts engage in intellectual dishonesty to achieve a desired result while disregarding rules of law. Our reading is a reminder to all that abuses will be exposed and the government will be held accountable.

Please join us in honoring our nation’s most sacred document in the spirit of independence:

When:             Friday, July 1, 2016
Where:           Harris County Criminal Justice Center
1201 Franklin Street, Houston, Texas
(front steps of the courthouse)
Time:              11:30am

The Harris County Criminal Lawyers Association is the largest local criminal defense bar in the United States with more than 800 active members.

CONTACT: JoAnne Musick via email or 832-448-1148

More information on our tradition can be found here

Download (PDF, 125KB)

Miranda: 50 Years

June 12, 2016 Leave a Comment

Monday, June 13th 2016 marks the 50th anniversary of the landmark United States Supreme Court Decision Miranda v. Arizona.

On March 13, 1963, Ernesto Miranda was arrested, in Phoenix for multiple felonies based on circumstantial evidence. Officers took him into custody and after two hours of interrogation, Miranda signed a confession to the offenses.

Miranda was not able to speak to a lawyer before or during any of the police interrogation and he was never even made aware that he had the right to have an attorney present. He was convicted at trial based on his signed confession and his appeal to the Arizona Supreme Court was affirmed.

The United States Supreme Court reversed the convictions and issued one of the most important opinions in the history of our criminal justice system to date. Miranda insures every person the right to counsel during interrogations by police. Chief Justice Earl Warren wrote the opinion in Miranda v. Arizona. The decision was in favor of Miranda. It stated that:

The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him.

The opinion was released on June 13, 1966. Because of the ruling, police departments around the country started to issue Miranda warning cards to their officers to recite. They read:

You have the right to remain silent. If you give up the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to an attorney and to have an attorney present during questioning. If you cannot afford an attorney, one will be provided to you at no cost. During any questioning, you may decide at any time to exercise these rights, not answer any questions or make any statements. Do you understand these rights as I have read them to you?

Miranda was retried and ultimately convicted based on other witness statements concerning his guilt. After Miranda was released from prison in 1972 he made a modest living autographing Miranda warning cards used by police officers.

We have Ernesto Miranda to thank today for our right to have the advice of an attorney prior to answering ANY questions by police officers. Its a valuable right and one that people should exercise more often when being investigated by law enforcement.

Declaration Reading Statewide!

June 6, 2016 Leave a Comment

What started with HCCLA has now grown into a statewide mission due to the continued efforts of our own Robert Fickman, HCCLA past president.

Timeline:

2010 – Robb started this tradition in Harris County for HCCLA

2011 – Robb started organizing readings statewide for TCDLA

2012 – Robb took it nationwide (and continued growing it statewide)

2013 – 52 readings across Texas

2014 – 74 readings across Texas

2015 – 139 readings across Texas

2016 – 254 readings across Texas – if you didn’t know, 254 represents every county in Texas!

Robb Fickman grew up in Midland Texas and moved to Houston to finish high school and then to Austin where he got his degree in political science. He then came back to Houston and attended the University of Houston Law School. Robb had an interest in the law and like many other members saw an opportunity to help those who could not help themselves. Robb never worked as a prosecutor and always has done his best to protect the rights of those citizens who are accused of crimes.

Robb is also mindful of the history of the United States and in 2010 organized the 1st reading of the Declaration of Independence in Harris County. In 2011, this event went statewide with lawyers reading in many counties. In 2012, lawyers started reading nationwide. In 2013, 2014, and 2015 the mission and reach continued to grow.

Now in 2016, thanks to Robb’s unrelenting efforts the Declaration of Independence will be read on the courthouse steps in every county in Texas. Managing 254 counties requires a lot of time and effort and for this Lawyer Fickman deserves our thanks and gratitude.

Our country is in a state of turmoil now and events like this emphasize to the public the importance of the laws and rules we follow in the United states of America. As July 4 approaches be aware of what Lawyer Fickman and many others will be doing by publicly reading this historic document. You too can join us on Friday, July 1st on the Harris County Criminal Justice Center’s steps for our reading. Lawyer Fickman is not a soldier fighting on a battlefield, but he is doing something that will inspire our citizens and remind them that we still live in the Land of the Free and the Home of the Brave.

First they Ignore, then they Copy

May 17, 2016 Leave a Comment

We used to be ignored. Criminal defense lawyers were never the belle of the ball – people said “how can you represent those people?” And even though we banded together, for years the system ignored us. After all, we wore the black hat and were contrarian to the goal: convict more, jail more, and be quiet.

Boy! We’ve come a long way! We earned a seat at the table. We have a large and collective voice. We are consulted. We are shaping the system.

And now, as JoAnne Musick just found out – we are being copied! Brown & Musselwhite, a Houston law firm, has started copying our blog posts (and all others) via Texas Bar Today. Their website boasts, “No Games, Just Law.” Yet their news is really everyone else’s. Sort of gaming the system there. They copy our content, link our writers back to themselves, and hope that Google and other search engines will reward them. They hope that a Google search for key words in our content will reveal their site. They hope that a Google search for our writers will net their site. That’s a game folks! No law, just games.

Sam Adamo Jr. wrote an incredible piece on Fitbit technology and its use in criminal defense – yep, they copied it.

Jillian Beck at the State Bar wrote about our annual awards – yep, they copied it.

JoAnne wrote about school principals interrogating students – yep, copied!

JoAnne wrote about juvenile priors and impeachment – yep, you guessed it! Copied!

JoAnne wrote about stun guns and a recent Supreme Court decision – Copied!

Ironically, they copied Darin Klemchuk’s Best Practices to Avoid Plagiarism and Copyright Infringment! (But I digress)

JoAnne wrote about innocent clients wanting to plea guilty – Copied!

And so many more! The fact is nothing they have posted is their work. It is all simply a bad copy of the curating done by the Texas Bar Today blog. They include no links to the original posts. No links to identify the author. Just mass amounts of “key word” content they are hoping will net search results. That’s bad marketing. That’s bad business. Especially for lawyers!

To paraphrase Mark Bennett: outsource your marketing, outsource your reputation. Which begs the question: are they bad lawyers or just bad marketers?