Harris County Criminal Lawyers Association

Call for Houston Forensic Science Center Independence

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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.

hpd propertyThe 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.

“Open Carry” NOT “Papers Please”

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Having been made aware of District Attorney Devon Anderson’s advisory opinion to law enforcement officers [below], it appears the debate is alive and well. Whether or not a police officer may stop a citizen engaged in open carry to check for a license is a very real question.Your-Papers-Please-300x175

First and foremost, nothing in the open carry statute authorizes an officer to detain a citizen to determine if they have a license. The ability of a law-abiding citizen to lawfully open carry a handgun does not forego the right to be free from unreasonable searches and seizures.

While Ms. Anderson is correct that an officer may approach any individual in a consensual encounter, citizens are generally free to decline the encounter and walk away. The Supreme Court has consistently held that a person’s refusal to cooperate with a police request during a consensual encounter cannot, by itself, provide the basis for a detention.[i]

Her position that anything short of voluntary compliance with the officer’s inquiry should be reasonable suspicion to believe the person is illegally possessing the gun is perhaps too broad. Anderson cites Chiarini v. State for the proposition that courts have routinely permitted law enforcement officers to approach and detain those individuals observed to be in possession of a handgun. Recognizing that Chiarini was decided prior to the open carry law, we note that observation of a handgun may no longer carry the same connotation of illegal conduct.

There are three types of police-citizen inter-actions: (1) consensual encounters that do not implicate the Fourth Amendment; (2) investigative detentions that are Fourth Amendment seizures of limited scope and duration that must be supported by a reasonable suspicion of criminal activity; and (3) arrests, the most intrusive of Fourth Amendment seizures, that are reasonable only if supported by probable cause. Police officers are as free as any other citizen to approach citizens to ask for information or cooperation. Such consensual encounters may be uncomfortable for a citizen, but they are not Fourth Amendment seizures. However, investigative detentions go beyond the consensual encounter and impact the Fourth Amendment rights of citizens.

Ms. Anderson’s position that declining the officer’s inquiry should be reasonable suspicion to justify an investigative detention discounts the necessity for reasonable suspicion. If declining an officer’s inquiry amounts to reasonable suspicion, then a citizen could never resist an officer’s inquiry. Consistent with Supreme Court opinions, an officer may only detain (stop) someone when the officer has specific, articulable, and individualized facts to make it reasonable to suspect that the person may be committing a crime.

In any event, if an officer does detain a citizen solely for engaging in open carry, that detention must be brief and limited to determining whether or not the citizen has a license to carry.

HCCLA will encourage lawyers to challenge the validity of any detention that fails to comply with the long established constitutional requirements governing the seizure of citizens. Though an officer may engage in a consensual encounter with any person regardless of their choice to open carry, nothing in the statute divests an otherwise law-abiding citizen of his or her constitutional rights. Generally, citizens may decline the consensual encounter and expect law enforcement to meet reasonable suspicion standards prior to their detention.

Much like a drivers license is required to legally operate a motor vehicle on our Texas roadways, a license is required to carry a handgun both openly and concealed. Law enforcement does not stop every vehicle operator to present his or her license. Why would they stop every open carry citizen?

Instead, it sounds as though Devon Anderson doesn’t support the Republican platform for open carry. While the Governor preaches liberty, Ms. Anderson wants to usher in an era of “papers please.” This is not what one expects in a free society. Ms. Anderson must accept that elections have consequences and the peoples elected legislature has spoken and approved open carry throughout Texas and Harris County.

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[i] Wade v. State, 422 S.W.3d 661, 664-665 (Tex. Crim. App. 2013), citing Florida v. Bostick, 501 U.S. 429, 437, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991) (“[A] refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.”); Florida v. Royer, 460 U.S. 491, 498, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983) (plurality op.) (a suspect’s refusal to listen or answer a police officer’s questions in a non-seizure circumstance “does not, without more, furnish” the officers with reasonable suspicion for a seizure.).

 

View and Download Devon Anderson’s Advisory Opinion Here

Download (PDF, 941KB)

Denying refugees denies the idea of America

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Denying refugees denies the idea of America

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

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

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

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

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

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

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

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

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

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

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

parole board’s clemency work should be transparent

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Op-Ed as published in the Houston Chronicle:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Nothing To See Here, Move Along People

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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

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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.

Clemency Project – Help Needed

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Lawyers,

Your help is urgently requested.

President Obama has asked criminal defense lawyers from across the country to get clemency petitions before him. Quickly. Time is running out for the President to grant clemency to defendants across the country. There are literally thousands of applications waiting for the attention of a defense attorney to determine whether or not the applicant qualifies for clemency, and if they do, to make the application.

Please, please, please become a part of this historical effort. This goes to the very core of what we do. Non-violent offenders are sitting in jail waiting for you to use the key you hold to unlock the door to their cells and send them home. These defendants are sitting in jail and they do not need to be there any longer, but the opportunity to fix this is quickly disappearing. Please act today.

Get more information here:  https://www.clemencyproject2014.org/

Get started here: https://www.clemencyproject2014.org/volunteers/intro 

There is a two hour training available and assistance at each stage.

We have an opportunity to get involved and be the largest local bar participating. Our lawyers are some of the best in the nation and we can certainly help by joining in.

Nicole DeBorde and Jim Lavine have already started the training.

Here is your chance to get your legal work in from of the President and help a family, one application at a time.

UPDATE: we are hosting a FREE 1 HOUR ETHICS CLE on how to navigate this process and file your petition. Register online for our September 3, 2015 CLE :: noon, 7th floor attorney ready room, Criminal Justice Center, Houston, Texas

Will the Harris County District Attorney Accept Responsibility?

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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?

 

Prosecutorial Misconduct Must Be Addressed

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Sadly, Harris County District Attorney Devon Anderson has declined our request calling for an investigation into former prosecutor Dan Rizzo’s conduct in the Alfred Brown case.

She cites expired statutes of limitations (the time in which a criminal charge or grievance can be brought).

Download (PDF, 365KB)

Though the prosecutor has declined any follow-up, we remain vigilant in our investigation into what appears to be yet another instance of prosecutorial misconduct.

When a person takes steps to conceal their behavior, the statute is tolled, and it seems clear that Mr. Rizzo did just that: he concealed exculpatory evidence, he colluded with a cop to intimidate a witness and then falsely charge that witness in a criminal case, and he used the veil of grand jury secrecy to carry out his witness intimidation.

The State Bar has already established new rules for bringing grievances, even years later, where a prosecutor commits misconduct, and the time for filing the grievance now runs from the time of discovery. So much of this tragedy, while occurring years ago, has just recently been discovered.

This is such a blatant attempt to dodge responsibility that it should, along with her statement today regarding the pending decision about prosecutorial misconduct by Ms. Siegler,* result in the consideration of a possible court of inquiry as former prosecutor Ken Anderson faced in the wake of the Michael Morton tragedy. (*Devon Anderson was quoted as saying, “Any actions such as reopening an investigation into this case would be premature.”)

Hollywood: Cold INjustice

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Chronicle Editorial Hits Nail on the Head: Hollywood ending, A potentially innocent man sat behind bars so that a prosecutor could get on television.

“an awful lot of razzle dazzle for the serious business that goes down in criminal courtrooms”

Some prosecutors forget. Some never know it to begin with. But, criminal courtrooms are serious business. Life and liberty (for all) are at stake. Criminal courtrooms mean much more than their civil counterparts who fight over money.

It is interesting that most people do not care about the criminal justice justice system; most do not care if rights are trampled; most have no idea innocent people can be convicted; until it happens to them or a family member.

For over 21 years, Kelly Siegler (a Harris County Assistant District Attorney) played fast and loose with the rules. She used the courtroom as her stage for theatrics. Yes, she was aggressive, and that’s ok, as long as it is fair. Hiding evidence is not fair. Subpoenaing witnesses under a different case to hide the witness is not fair. Lying to the court is not fair. Interfering with public information requests is not fair. Continuing to hide evidence long after you no longer work as a prosecutor is not fair.

Just as there are bad influences in every profession, Kelly has marred the reputation of prosecutors, even those who do seek justice. It’s easy to be fair. A web of lies and deceit do nothing for our system of justice, except create injustice.

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