Harris County Criminal Lawyers Association

Call for Houston Forensic Science Center Independence

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.

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.

First they Ignore, then they Copy

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

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)

Just How Accurate is DNA?

1 Comment

Science is an ever-evolving practice. There are very few absolutes. Every scientific result we see in the courtroom is qualified, for example, in a DWI case, we often hear the blood-alcohol level for this defendant is .09, +/- .02. In other cases, we hear DNA matches are quantified as not absolute but rather as 1 in a million chance (or some similar number) of this DNA belonging to someone else.

But what happens with the data used to form the scientific result is riddled with error? DPS would have us believe the error is insignificant, but what is “insignificant” when it comes to life, liberty, and justice?

Recently, prosecutor offices around the state have began to disseminate notices related to errors in the FBI database which almost every lab has used since 1999 to calculate their probability results in DNA matches. Just makes you think, how many other errors are there that have not yet been discovered? These errors only took 15 years to come to light…

Maybe DNA is not quite as accurate as we once thought.

You can view and download the FBI and DPS disclosures here:

Download (PDF, 2.01MB)

 

parole board’s clemency work should be transparent

Leave a Comment

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.

Upcoming Events

Contact Us

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