appearance of impropriety

PR: Magistrate Appointment to Connie Spence Must Be Rejected

September 25, 2016 Leave a Comment

***FOR IMMEDIATE RELEASE***

FROM: Tyler Flood, President – Harris County Criminal Lawyers Association

Houston, Texas – September 25, 2016 – We have learned that Harris County Assistant District Attorney Connie Spence may be awarded a position as a Probable Cause Magistrate Judge. It is our understanding that a majority of the current District, County and Justice of the Peace judges trying criminal cases will, without allowing public comment, gift Ms. Spence this judicial position this week.

HCCLA vehemently opposes the appointment of this prosecutor to a judicial position. Connie Spence has historically exhibited conduct and judgment unbecoming of anyone licensed as an attorney in the State of Texas. As an assistant prosecutor she has misused her power to the detriment of the people of Harris County.

Spence’s unethical behavior is well documented in the media, as she was accused of withholding evidence and coercing witnesses in the Linda Carty Capital Murder case. Specifically, two of Carty’s co-conspirators and a former DEA employee — witnesses whom Spence had sponsored at trial — testified at a hearing that Spence had in fact coerced them to give particular testimony.

The Harris County Judiciary has a responsibility to the people of Harris County: to avoid not only impropriety but also the appearance of impropriety. If they are interested in restoring the integrity of the justice system and the trust of the public, then any appointment of Connie Spence to a judicial position must be rejected.

If you have any questions regarding this statement, I can be reached at office@tylerflood.com or by calling me at 713.224.5529.

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Call for Houston Forensic Science Center Independence

September 7, 2016 Leave a Comment

After years of backlogs, mismanagement, and severe criticism, the HPD Crime Lab was removed from within HPD’s control. An “independent” lab, the Houston Forensic Science Center, was formed. Now that independence is under attack.

A recent audit revealed problems with HFSC’s crime scene units and evidence collection. In short, the audit revealed not only a lack of training and technical problems but also a lack of autonomy from HPD.

The Houston Forensic Science Center is now the subject of attempts by the Houston Police Officers Union and the Houston Police Department senior staff to regain control of the Crime Scene Unit (CSU) technicians. These are the same folks who investigate crime scenes related to police shootings and serious felonies such as capital murders, aggravated sexual assaults, aggravated robberies, and kidnappings.

Since the independent lab was created, the CSU positions have been gradually transferring to civilian positions under the independent structure of the HFSC. This has been done by replacing retiring and transferring HPD officers with civilian techs as those officers left. Now HPD is attempting to take back those CSU positions and once again staff them with officers within their chain of command.

The Houston Forensic Science Center was established because of a tragic history of mismanagement, bad science, and outright incompetence under HPD’s management that led to wrongful convictions and serious doubts about the integrity of our criminal justice system. None of us want a return to the multiple problems that existed when the functions of forensic science were directly under the Houston Police Department. The endless series of scandals and problems that led to the calls for decertification and removal of the labs from the police control are exactly what the HFSC was created to avoid. To send the technicians back under HPD command destroys all the progress made in the last decade and sets this city back just as far. It has already cost this city millions in lawsuits, reworked science, and wrongful convictions. We cannot expect to improve upon the past by repeating the mistakes of the past.

HCCLA vehemently opposes any attempts to weaken or undermine the independence of the HFSC and its personnel.

We are the largest local criminal bar in the country, and we urge the Mayor, the city council, and all interested parties to continue to support the independence of the HFSC. Politics is a poor excuse for a sub-standard criminal justice system. We have had that in Houston; we do not need to return to those days.

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?

MADD About Bias

February 26, 2016 Leave a Comment

Have you been in Harris County Criminal Court at Law #2 lately? If so, you may have noticed the long present and blatantly offensive M.A.D.D. plaque is now absent, thanks to a reprimand from the State Commission on Judicial Conduct following a complaint by HCCLA.

For years, Judge William “Bill” Harmon arrogantly and inappropriately displayed his Mother’s Against Drunk Driving award on the bench in County Court #2. Despite requests from HCCLA and lawyers that it be removed, especially during DWI trials, Judge Harmon persisted in its display. During at least one trial, the potential jurors seated in the gallery responded they could see and read the M.A.D.D. plaque; they knew the meaning of the acronym so prominently displayed on the plaque; they even found its display ironic and uncomfortable. The display represented exactly what judges are supposed to avoid – an appearance of bias or impropriety.

One of the most basic canons judges must follow is to remain impartial and avoid even an appearance of impropriety. This is why the display was offensive. This is why HCCLA was compelled to take action and file a formal complaint with the State Commission on Judicial Conduct when Judge Harmon refused to remove the display. The direct result of our complaint was a private reprimand against Judge Harmon for this behavior.

For a judge who routinely hears DWI cases to display a perceived alliance with M.A.D.D. is beyond an appearance of bias. It very plainly shows a bias or prejudice against those who come before the court. Imagine being charged with DWI and walking into court to see that Mothers Against Drunk Drivers has honored the judge for his assistance in their plight. Would you trust that judge to be fair in your case? No, you wouldn’t. Does that bias instill a public trust in the judicial office? Of course not.

This inappropriate display finally came to an end with a private reprimand from the State Commission on Judicial Conduct. The Commission is a state agency created under the Texas Constitution responsible for investigating allegations of misconduct and for disciplining judges who run afoul of the judicial canons that govern their conduct.

Following a request for the plaques removal, several court opinions, and finally an HCCLA complaint to the Commission, Judge Harmon has finally removed the offending display. One would have thought the suggestion that perhaps Judge Harmon would “do the right thing” following a recusal hearing would have received his attention. One would have thought the remarks of Judge Sharp, First Court of Appeals, expressing that the sanctuary of a public courtroom should be free from special interests groups and agendas would have mattered. One would have thought a Court of Criminal Appeals opinion condemning this display would have caused Judge Harmon to take note. But alas, Judge Harmon continued his offensive display of perceived bias against alcohol related cases and defendants who came before him on a daily basis.

Even during the almost year of a pending judicial misconduct complaint, Judge Harmon maintained his display. Absurdly Judge Harmon even suggested to the Commission during its investigation that photographs of the display, made part of the complaint, were staged or altered.

Right around the first of the year, the plaque mysteriously abandoned its home on the bench. Come to find out, Judge Harmon seemed to be aware of an impending decision of reprimand coming from the Commission.

The State Commission on Judicial Conduct took action on our complaint. The Commission issued a private reprimand against Judge Harmon. The Commission cited his display of the plaque as against his obligation to avoid the appearance of impropriety and his bizarre comments regarding the motion to recuse him for failing to remove the plaque. In this side issue, the Commission noted Judge Harmon’s improper ruling on the face of the recusal motion. Harmon had written it was clear to the defendant that the judge was impartial based on her decision to elect judicial punishment in the event of a guilty verdict. However, the law does not allow the judge to make a response to a recusal; his duty is merely to refer the motion to be heard by a neutral magistrate.

All-in-all, despite requests and admonishments, Judge Harmon refused to remove the offensive display from the public courtroom. HCCLA saw no alternative but to file a formal complaint with the Commission. And, thankfully, the Commission took action and issued its reprimand.

Many thanks to Tyler Flood for challenging the issue and providing us with great documentation of the conduct. Thanks to Robert Fickman, Andrea Podlesney, and Mark Bennett for their fine work in drafting the grievance. Many folks came forward and provided the evidence and documentation to support the complaint. Thank you to all.

The body of the complaint and the letter from the State Commission on Judicial Conduct can be viewed and downloaded below.

The Houston Chronicle reported the private sanction on Saturday, February 27, 2016 on page B2.

Download (PDF, 9.77MB)

Download (PDF, 268KB)

Rudolph (and gifts to judges)

December 21, 2015 Leave a Comment

Rudolph
By: Robert Pelton (HCCLA Past President)

Rudolph by Annslee Pelton (granddaughter to Robert Pelton)

All of you have heard the song, “Rudolph the Red-Nosed Reindeer” and are familiar with its main character Rudolph. Rudolph was created in 1939 by Robert May, an employee of Montgomery Ward. Although sources vary as to whether May created the story of Rudolph to promote sales at the Christmas season or to give as a gift to his young daughter to bring her comfort, May was doing his best to keep his job and comfort his child because Ms. May was dying of cancer.

May was picked on and bullied as a child, and the story of Rudolph was based on those personal experiences. Rudolph was Santa’s 9^th reindeer who was mocked by the other reindeers because of his shiny red nose. Like May, Rudolph was mocked and bullied, but in the end, Rudolph became the hero when he was chosen to lead Santa’s sleigh on a foggy Christmas Eve.

Johnny Marks, Robert May’s brother-in-law, actually wrote the song “Rudolph the Red-Nosed Reindeer.” My friend Carol Erickson remembers Johnny Marks, who served as a Captain in the Army during World War II. Carol’s dad served in the same unit as Johnny. After the war, Carol remembered Johnny coming to her house wearing a red suit and driving a new red Cadillac. Johnny tried to pitch the song to many popular singers such as Dinah Shore, Perry Como, Bing Crosby and Frank Sinatra, but none were interested. At the urging of his wife, my hero and family friend Gene Autry recorded the song in 1949. It was an immediate hit and became one of the top songs in music history selling millions of copies.

“Rudolph the Red-Nosed Reindeer” has become a piece of modern folklore and a metaphor for overcoming obstacles, embracing the difference and recognizing everyone’s unique potential. As you review the lives of your clients in an ethical manner, you may find a little or a lot of Rudolph in them. Your client may have come from a broken and dysfunctional home, or have learning disabilities or mental issues. It is important to get your client’s full life history. The recommendation is that you go back three generations in your client’s life. No matter how bad and bleak the case looks, there may, and probably will, be some social redeeming qualities.

It is our job to zealously defend our clients in an ethical manner. If your client is a veteran, get all of his records whether good or bad. Also get a copy of the school and medical records. Do not forget to have your client stop all social media, especially Facebook. Serious prosecutors will be checking to see what a defendant has posted. If your client is in jail, warn him to be aware letters can be read and may be used against him and to beware of phone calls from jail. Be mindful of conversations in the hallways at the courthouse. It has happened that bystanders including law enforcement have testified about what they heard.

Once your investigation is complete, you may find your “Rudolph” has a history that will help him guide the sleigh to a positive outcome, or produce mitigation of the punishment. Even the worst among us has done something right in life. The research done on the ancestors of your client may help explain and or excuse his behavior. As my psychiatrist friend Geoff Grubb believes – only a very small percentage of humans are “Born to be Wild.” The remaining commit crimes because of many factors: poverty, inferiority complex, peer pressure, opportunity, desperation, drugs, depression, mental disorders, overpopulation, politics, racism, TV violence, and regionalism.

Like Rudolph, your client’s life may be changed forever if given the chance. If your “Rudolph” has alcohol or drug problems, enroll them in AA or NA. Encourage them to get a job, go to school and church, and any other positive thing that will help get them back on the right track.

Always remember: Santa Claus and the Grievance Committee are watching you.

ACCEPTANCE OF HOLIDAY GIFTS BY JUDGE AND STAFF

Opinion No. 194 (1996)

QUESTION: Is it a violation of Canon 4(d)(4) of the Texas Code of Judicial Conduct for a judge, court coordinator, court reporter (and clerks and bailiffs) to:

accept holiday or seasonal gifts (assuming such to be commensurate with the occasion); or
attend holiday or seasonal law firm parties?

ANSWER 1: Yes. A judge may only accept a gift from a friend for a special occasion and then only if the gift is fairly commensurate with the occasion and the relationship. Canon 4D(4)(b). A Judge may accept any other gift only if the donor is not a party or person whose interests have come or are likely to come before the judge. Canon 4D(4)(c). Opinion No. 44.

Texas Judicial Ethics Opinions Page 115 of 170

The Committee concludes that a holiday or seasonal gift from a lawyer or law firm where a lawyer is not a friend is prohibited. Where a friendship exists, the gift must be commensurate with the occasion and the judge must be mindful of Canon 2A and should act in a manner that promotes public confidence in the integrity and impartiality of the judiciary. A judge should not convey or permit others to convey the impression that they are in a special position to influence the judge. Canon 2B. Opinion No. 39.

ANSWER 2: No. A judge may attend holiday or seasonal law firm parties if the party is open to people other than judges and court personnel. Rule 4D(4)(b) and Opinion No. 39 permits a judge to accept ordinary social hospitality. The judge should act in a manner that promotes public confidence in the integrity and impartiality of the judiciary and should not convey or permit others to convey the impression that they are in a special position to influence the judge. Canon 2(A) and (B).

The answers above apply equally to the judge’s staff, court officials and others subject to the judge’s direction and control. Canon 3C(2) provides a judge should require staff, court officials and others subject to the judge’s direction and control to observe the standards of fidelity and diligence that apply to the judge. See Canon 3B(2) Code of Judicial Conduct, September 1, 1974, through December 31, 1993, and Opinions 110, 112 and 140 applying Code to court personnel.

Here is the main code provision that would apply to gifts:

Canon 4D:

(4) Neither a judge nor a family member residing in the judge’s household shall accept a gift, bequest, favor, or loan from anyone except as follows:

(a) a judge may accept a gift incident to a public testimonial to the judge; books and other resource materials supplied by publishers on a complimentary basis for official use; or an invitation to the judge and spouse to attend a bar-related function or activity devoted to the improvement of the law, the legal system, or the administration of justice;

(b) a judge or a family member residing in the judge’s household may accept ordinary social hospitality; a gift, bequest, favor, or loan from a relative; a gift from a friend for a special occasion such as a wedding, engagement, anniversary, or birthday, if the gift is fairly commensurate with the occasion and the relationship; a loan from a lending institution in its regular course of business on the same terms generally available to persons who are not judges; or a scholarship or fellowship awarded on the same terms applied to other applicants;

(c) a judge or a family member residing in the judge’s household may accept any other gift, bequest, favor, or loan only if the donor is not a party or person whose interests have come or are likely to come before the judge;

(d) a gift, award or benefit incident to the business, profession or other separate activity of a spouse or other family member residing in the judge’s household, including gifts, awards and benefits for the use of both the spouse or other family member and the judge (as spouse or family member), provided the gift, award or benefit could not reasonably be perceived as intended to influence the judge in the performance of judicial duties.

Ancillary to that would be the requirement to report certain gifts (depending on the value) in annual personal financial statements. That reporting requirement is for those officeholders who file reports with the Texas Ethics Commission or with the local county clerk per the Election Code. It is also generally covered under Canon 4I:

Compensation, Reimbursement and Reporting.

(1) Compensation and Reimbursement. A judge may receive compensation and reimbursement of expenses for the extra-judicial activities permitted by this Code, if the source of such payments does not give the appearance of influencing the judge’s performance of judicial duties or otherwise give the appearance of impropriety.

(a) Compensation shall not exceed a reasonable amount nor shall it exceed what a person who is not a judge would receive for the same activity.

(b) Expense reimbursement shall be limited to the actual cost of travel, food, and lodging reasonably incurred by the judge and, where appropriate to the occasion, by the judge’s family. Any payment in excess of such an amount is compensation.

(2) Public Reports. A judge shall file financial and other reports as required by law.

Finally, as you know, some gifts are illegal and could result in criminal charges under Chapter 36 of the Penal Code.

Robert Pelton is an HCCLA past-president and remains active in both HCCLA and TCDLA, as such, this articles is also reprinted in TCDLA’s online Voice for the Defense

Nothing To See Here, Move Along People

August 2, 2015 1 Comment

If you’ve been following the David Temple story, you know that Judge Gist found veteran ex-prosecutor Kelly Siegler committed at least 36 instances of misconduct and/or hid evidence. A prosecutor’s duty is to do justice. How can justice be had amongst lies, hidden evidence, and a win at all costs mentality?

Now, lawyers for David Temple have requested the Office of District Attorney, which has accepted no responsibility for prior transgressions by its own, to recuse itself from the continuing legal battle.

Instead of determining whether or not recusal is in the interest of justice, Devon Anderson asks, “Why should I?” In essence she says they have not given her a good reason to recuse her office.

How about Justice? How about Integrity? How about Public Trust? How about Appearance of Impropriety?

We can think of many reasons that seem to escape Ms. Anderson.

Read Ms. Anderson’s response here:

Download (PDF, 200KB)

Outrageous Attack on Judge

July 30, 2015 1 Comment

After losing a hearing on the constitutionality of the online solicitation of a minor law this week, the Montgomery County District Attorney’s Office, through its First Assistant Phil Grant, has levied media attacks against Judge Kelly Case for political posture.

“Judge Case continues his one man war on our proactive efforts to protect the children of Montgomery County,” stated First Assistant Grant. “This statute is designed to identify and arrest individuals searching for children online to victimize. The methods and procedures used by our investigators specifically weed out those who are merely engaged in twisted sex talk, and arrests are made only when adults get in their car and drive to a location to meet the minor child. The defendants we arrest have made proactive efforts to find and molest children. Judge Case’s rulings continue to place the children of Montgomery County in danger.” Breitbart.com July 29, 2015

Phil Grant, who by no coincidence has indicated he will run against Judge Case in the next election cycle, attempts to paint Judge Case as creating a war on the protection of children.

Nothing could be further from the truth!

Using the protection of children as his pawn for political gain, Phil Grant intentionally misleads the media regarding the current state of law in Texas. Rather, Judge Case is following the law of the land in which the Texas Court of Criminal Appeals (the highest court in Texas for criminal cases) has already held sections of this law as over-broad and unconstitutional as it infringes upon the First Amendment’s free speech provision.

Following the realization that this particular law was over-broad and unconstitutional, Senator Joan Huffman (a strong Republican, former prosecutor, and former district court judge) worked hard to introduce and pass new legislation which would presumably cure the error and solidify these types of prosecutions. The Montgomery County District Attorney’s Office supported this new legislation (which takes effect September 15, 2015). They supported it because they knew the law was improperly and unconstitutionally written and needed to be fixed! Now they want to complain that a judge who swore to uphold the Constitution is following the law? That’s absurd. Perhaps this media stance would be different if Mr. Grant had not chosen to run against Judge Case.

Responding to the outrageous attack, the Montgomery County Criminal Defense Lawyers Association issued a statement setting forth the true facts. It can be viewed and downloaded here:

Download (PDF, 169KB)

If you want more information on why the statute is unconstitutional, you should read Mark Bennett’s blog on a Roadmap to the Texas Online Solicitation Statute

HCCLA supports the Montgomery County Criminal Defense Lawyers Association in their response. We too are outraged that the Montgomery County District Attorney would launch such an unwarranted attack to aid its own First Assistant’s political agenda.

Updated Courier media with a response from Phil Grant does not sway our opinion or his agenda.

Will the Harris County District Attorney Accept Responsibility?

July 18, 2015 3 Comments

Our clients have problems.

Despite their denial, the Harris County District Attorney has problems as well.

They want our clients to accept responsibility. Will they as well?

In yet another instance, injustice and an appearance of impropriety permeates the Office of District Attorney for Harris County. Apparently, it seems the prosecutor and the bailiff engaged in a series of conversations and text messages about the jury. The importance of this is two-fold: (1) the bailiff, a Harris County Deputy Sheriff, is an officer and arm of the court who is the only person authorized to speak with jurors and (2) the prosecutor is an officer of the court who is forbidden from talking to the jurors. Granted, the prosecutor did not engage in direct communications with the jurors; however, she did attempt to communicate through the bailiff.

She texted the bailiff saying she wished she knew what the jury was thinking. The bailiff responded saying he would find out. THAT IS INAPPROPRIATE. There is no way to spin this so that any part of that conversation was proper and within the rules that require the court (via his bailiff) and the parties (via the prosecutor) to avoid the appearance of impropriety.

So what’s the big deal? Well, the thing is this is just one of many instances – all seemingly small – which cast doubt on the ability to have a fair trial in Harris County.

When will Devon Anderson accept responsibility? She didn’t in her response to our request about Dan Rizzo and the Alfred Brown case. She didn’t in an inquiry about prosecutor’s Connie Spence and Craig Goodhart threatening witnesses. She hasn’t in her media responses to the Kelly Siegler findings of prosecutorial misconduct. And, she hasn’t here. What will it take?