by Robert Pelton

In the spirit of the Christmas season and to remind our members never to give up on any motion, we want to share this motion with you and discuss some points on Motions for Continuances in State court. In the case of this motion, three other motions had already been filed and denied. In an act of frustration and desperation, we filed this one below, which was granted. In the motion, only the defendant names and case number have been changed. This has been published previously, but for those who may have missed it, I hope it brings a smile to your face at the end of a hard fought year for your clients.

Download (PDF, 48KB)

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Epilogue:  Once this motion was granted, it gave us sufficient time to complete our preparation of the case in a proper manner. Because we had additional time, we were able to adhere to our duty bound ethical oath: to zealously defend our client. Facts helpful to the defense are always hidden at the bottom of the well. That digging takes time and tenacity.

Time is the most valuable commodity to lawyer. Abraham Lincoln said that “A lawyer’s time and advice are his stock in trade.” If time is used wisely, our clients benefit. We all need time to work on our cases and explore all possible defenses or punishment options. We never have enough time.

On the flip side, judges and prosecutors want to move the docket. Prosecutors’ caseloads are huge and the statistics of open cases in their court are ever present on the mind of our judges. As defense counsel, we must be the gatekeepers to ensure our clients receive their right to effective assistance of counsel based on a thorough investigation of the facts. Without those facts our client cannot make his or her decision to move to trial or prepare for mitigation. This takes time. It is your job to get that time.

One Harris county judge who has since departed, bragged that if a judge was still in court after twelve noon, he was not doing a good job. I was in court the day he made the statement to a local television reporter named Wayne Dolcefino. I told the judge to remain silent; but he like many let his alligator mouth override his humming bird ass. It was on the 6 o’clock news. He told me the next day he would listen to me the next time. The next time never came because he was defeated in the next election and his comments made great propaganda for his opponent. An arbitrary “rocket docket– move it along mentality” goes against the grain of our justice system to the detriment of the citizen accused.

All lawyers know that a continuance usually works in favor of a defendant, but it is routinely used by the defense as well as the state in accord with Article 29.03 of the Texas Code of Criminal Procedure[1] . By and large, most continuances are reached by agreement with the State. When necessary, a well drafted Motion for Continuance should contain exhibits. If the exhibits involve personal or confidential information, request an in camera inspection by the Judge in your motion. Never underestimate the power of demonstrative exhibits. A picture is worth a thousand words. Don’t be shy. In the event your motion is objected to, and a controverting motion is submitted by the state, pursuant to Article 29.09[2] of the Texas Code of Criminal Procedure, your motion and your exhibits must stand alone to win the day. Do not rely on a stellar oral argument to get you by. Article 29.10[3] makes it clear the testimony shall be made by affidavit. If the continuance has become the 900 pound gorilla in the courtroom, use technology readily at hand. It is amazing how fast a motion for continuance will be granted when you have a photo of a swollen, bruised, battered or bleeding body part.

Happy Holidays and Best Wishes for the New Year.

 

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[1] Texas Code of Criminal Procedure-Article 29.03 Sufficient Cause

Art. 29.03 FOR SUFFICIENT CAUSE SHOWN. A criminal action may be continued on the written motion of the State or of the defendant, upon sufficient cause shown, which cause shall be fully set forth in the motion. A continuance may only be as long as is necessary.

[2] Texas Code of Criminal Procedure-Article 29.09 Controverting Motion

Art. 29.09. CONTROVERTING MOTION. Any material fact stated, affecting diligence, in a motion for a continuance, may be denied in writing by the adverse party. The denial shall be supported by the oath of some credible person, and filed as soon as practicable after the filing of such motion.

[3] Texas Code of Criminal Procedure-Article 29.10 When Denial is Filed

Art. 29.10. WHEN DENIAL IS FILED. When such denial is filed, the issue shall be tried by the judge, and he shall hear testimony by affidavits, and grant or refuse continuance, according to the law and facts of the case.

   

by Patrick F. McCann

I confess I enjoy the holidays. It is the one time of year when people try to treat each other the way we should treat each other all year. One wishes the best for one’s fellow men and women, and hope can actually be felt. Selfishness is just a little less palpable in the air. So, here, in the spirit of the holidays, is a gentle wishlist for our colleagues across the aisle in the courthouse, and for their boss, the elected District Attorney. The office has faced, as all the county has, some unique challenges across this past year in the aftermath of one of the greatest storms in the history of Texas. Under the District Attorney’s guidance it has also overcome many of these challenges. So now that there is a new “quasi-normalcy” to the proceedings in our courthouses, here is my wishlist, for both the office, the DA herself, and the friends and colleagues who inhabit the same court space with our part of the bar.

I wish for the time for her senior staff to finally implement the policies I believe they believe in. By that I mean working out thoughtful, measured and new ways to deal with drug and mental health diversions from prosecution, ensuring that juveniles do not get arbitrarily sentenced to life in prison, and the truly thoughtful use of severe charges against people who are minor participants in crimes. I mean a reduction in numbers and severity of sentences, and a true embrace of community supervision. I wish for a recognition that while prisons exist, they do little to help people re-gain their lives or re-enter our society. I believe that Harvey has kept this office from truly getting to implement these programs, and I wish the DA and her staff the time and inspiration to do what they came here to do, i.e. reverse the decades of cowboy culture and ill-informed “tough on crime” stance that was felt largely by the poor, the mentally ill, and those who were not white. It is time for meaningful policies to be announced and implemented, and I wish them well in tackling these issues.

I wish that the Assistant District Attorneys who have stayed with the office during this period are rewarded with the kind of positive training and in-depth legal education that they deserve. When one is trying to stay afloat in dangerous waters, training does often go over the side of the boat. Training, the kind of national training available through non-profit organizations and the department of justice, is an investment in the young lawyers and assistants who are the future chief prosecutors in our state – it is an investment that returns ten fold as it helps good lawyers spot bad cases and dispose of them. I wish that training once again resumes its priority now that the basics of office space and organization have been met.

I wish that for all our young colleagues in the Harris County office that attention to their desire to have and raise families be finally given more than lip service. In a time of modern technology there is no reason flex time and remote work cannot be done and implemented in many parts of the District Attorney’s office. While dockets must be met, there is no real reason to run a modern office as if it were still the 1950s. Networks exist for collaboration across distance, and there is no reason not to permit, for instance, those with child or parent care issues not to work remotely for periods of time or to have flex hours that allow them to tend to family while serving the public. The loyalty shown by the staff of this office has been great; they are owed modern flexible work environments in return. It will increase retention and produce a more productive work force.

I wish them a better budget, both for technology improvements and for support staff. It serves no public interest to have an online portal for uploading evidence that does not work reliably nor is capable of holding all the evidence in a complex case. Nor does it serve anyone to have insufficient staff to upload and distribute this evidence onto such a portal even if it worked properly. It helps no one, from law enforcement to crime victims, to not have sufficient interoperability between systems, or old or antiquated technology that does not work together. I wish true improvements in their budgets for those things this year.

Last, I wish for all the staff at the DAO to have a chance to relax and reflect on their accomplishments this year. They have survived and managed in a time of chaos. We all have been perhaps a little kinder with the shared burden to each other. Let us not lose that spirit this coming year.

Happy holidays to all of our friends at the Harris County DAO.

Patrick F. McCann
Law Offices of Patrick F. McCann
700 Louisiana St.  Ste 3950
Houston, Texas 77002
713-223-3805

The Harris County Criminal Lawyers Association (HCCLA) held its 48th Annual Banquet on May 10, 2018 at The Ballroom at Bayou Place in Houston, Texas.

The 2018-2019 HCCLA Board of Directors were sworn-in by Edward Mallett.

Special Thanks to:  Steve Halpert (HCCLA Treasurer), Christina Appelt (HCCLA Executive Director), Michael Godfrey (video production), Bob Rosenberg (photography), Shannon Moore (event assistance), Craig Howard (Ballroom General Manager) and the wonderful staff at The Ballroom.

 

See more photos (courtesy of Bob Rosenberg) – link coming soon!

Through our partnership with Camp Gladiator, here is your chance to receive a free 4 week camp beginning in January!

It’s time to work off the holidays and sharpen your mind and body through exercise – and for FREE! Try it out and let your trainer know you are with HCCLA – if you decide you like it, you will qualify for discounts on continued camps under our partnership.

If you have any questions, call or email our trainer
Jessica Leonard
jessicaleonard@campgladiator.com
(281) 736-4232

‘Twas the night before Christmas, when all through the house
Not a creature was stirring, not even a mouse.
The cops were out beating inmates with care,
In hopes that No Bills soon would be there.

The snitches were nestled all snug in their beds,
While visions of 5Ks danced in their heads.
The DA in her ‘kerchief, and judges on board,
Harris County settled for bonds indigents can’t afford.

When in the courtroom there arose such a clatter,
I sprang from my seat to defend the matter.
Away to the bench I flew like a flash,
Tore open my law books and filed motions in a dash.

The law on my side and justice not found
I plead for release as my client was jail bound.
When, what to my wondering eyes should appear,
But a miniature sleigh, and eight tiny reindeer.

With a little old driver, so lively and quick,
I knew in a moment it must be St. Nick.
More rapid than eagles his words were finally heard,
And he whistled, and shouted, and freed the jailbird.

He brought in a Writ, and went straight to his work,
And brought justice for all, then turned with a jerk.
And knowing this was a rare show of compassion
This little ole miracle was all he could fashion.

He sprang to his sleigh, to his team gave a whistle,
And away they all flew like the down of a thistle.
But I heard him exclaim, ‘ere he drove out of sight,
“Merry Christmas to all, and to all a good fight!”

(thanks to Robert Fickman for the inspiration)

 

“We respectfully disagree with the judge’s findings,” said Jeff McShan. “We believe our prosecutors acted ethically and argued within the four corners of the record and we intend to appeal.”

Nothing new here. This District Attorney, this District Attorney’s Office, has yet to take responsibility for any egregious behavior by its prosecutors.

This time, Judge Stacey Bond found in her 7 page findings that prosecutors Tiffany Johnson and Angela Weltin committed several misdeeds during trial, forcing a mistrial. During a hearing following the mistrial, it has been said that prosecutor Allan Curry argued that all though Ms. Johnson had acted inappropriately it was not intentional. Now, Jeff McShan, spokesperson for the District Attorney’s Office, says the prosecutors acted ethically. Which is it?

Previously, when a chief prosecutor was found to be texting the bailiff in charge of the jury during trial seeking information about the jurors thoughts, the District Attorney’s Office responded,

“While no violation was to be found, we don’t condone prosecutors texting bailiffs while a trial is taking place,” the spokesman said. “The matter will be handled internally.”

And, of course, there’s the famed David Temple case in which former prosecutor Kelly Siegler has been found to have violated ethical duties, and the District Attorney’s Office saw no problem.

And what about responsibility for their social media? While it may not have directly affected the trial at hand, the District Attorney posted on Facebook and Twitter during trial about extraneous charges that had not been introduced into evidence. Clearly, a violation of the ethical duties of any attorney and especially prosecutors. Yet, prosecutors again see no problem with their own actions.

What will it take for this District Attorney to start taking responsibility? When will we demand accountability? When will we demand the utmost in professional ethics of our prosecutors?

We’ve asked on several occasions (here and here), but alas it hasn’t happened.

UPDATE: Being a Prosecutor Means Never Having to Say You’re Sorry – on the Fault Lines Blog by Murray Newman explains the ruling in more detail.

This year’s HCCLA Toy Drive, organized by Brandon Ball, benefits Star of Hope.

We are accepting UNWRAPPED toys and cash donations through December 12, 2015.

Please bring toys appropriate for boys and girls of all ages, infant through 15 years. Care packages of new/unused personal items are also appropriate and appreciated.

Drop-off locations include:

Harris County Public Defender Office, 1201 Franklin, 13th floor (Criminal Justice Center)
Schneider & McKinney, 440 Louisiana, Ste. 800 (Lyric Center)
Mark Thiessen, 1221 Studewood, Houston, TX 77008
Adams & Ball, 7930 Broadway Street, Ste. 106, Pearland, TX 77581
and our Annual Holiday Party (December 10, midtown)

Many thanks to Brandon Ball for organizing this drive to help those in need. 100% of donations will be delivered directly to Star of Hope in time for their holiday events!

 

 

Honoring our Veterans and Getting their Records
by Robert Pelton, HCCLA Past President

November 11, 1918 marked the end of World War I. History books tell us that the bells rang and the war to end all wars ended. No veterans of that war are living today and there are very few civilians who were alive on the 11^th month of the 11^th day at the 11^th hour of 1918. In 1938, legislation was passed in the United States declaring November 11 to be “Armistice Day,” setting aside this day to honor those who served in World War I. Since 1954, November 11^th is known as Veterans Day. Virtually every family has a legacy from wars that have occurred since, including: World War II, the Korean “Conflict”, the Cold War, Viet Nam, the Gulf, the Iraq, Afghanistan and other lesser known and ongoing operations.

Dave Hood was a farmer in Cooke County, Texas when he was called to serve in the army in World War I to fight “in the war to end all wars.” Dave and thousands of young men went over the pond to fight for America. He was still there on the 11th hour of the 11th day of the 11th month when the war ended in 1918. He heard the bells toll and the people rejoicing that the war was over. He came back to Cooke County to continue his life. Dave was never the same. Cousin Dave suffered from what was then called “shell-shock.” Dave self-medicated with alcohol. Truth be known, his drinking got so bad that his wife (while he was passed out on the bed) sewed the sheets together and beat him with a broom. Despite his wife’s inventive efforts to make him stop, it never worked. Veterans Day was always special to Dave. Dave would walk to my granddad’s farm which was nearby and ask my Aunt Fannie to bake him a chocolate pie. He did every November 11th until he left this Earth.

My Uncle Lowell, who served with General Patton in World War II, came back from the war “shell shocked.” He had been in a tank attack, when his tank exploded killing several of his buddies in the tank. A day later, after being trapped inside with his fallen comrades, Lowell was rescued from the tank and taken to an Army hospital in France to recover. After eight months he was sent back to battle. When the war ended, he came back to Anson, Texas, where he spent the rest of his life shaken by the war, and self- medicated with all there was around–alcohol.

Doctors and therapists know a lot more these days. “Shell-shock” as they called it in the old days is Post Traumatic Stress Disorder, or now known as “Post Traumatic Stress.”

In my era, many of us enlisted or were drafted in to the military. Some served in combat while others were held in reserve. Two of my closest friends served in the 101st Airborne Division in 1965 and 1966. Frank survived, graduated from college and became a huge success. My other friend Robbie, who enlisted at age 19, survived but suffered from PTSD. He was constantly plagued by the memories of the war. He was in a unit called Tiger Force and was in long range recon patrol. Robbie would be dropped in to observe the enemy and report his findings to his superiors. Robbie was one of those young men who would cut off the ears of the enemy he killed and wear them as souvenirs. To say he returned a changed man is an understatement. Robbie died a couple of months ago. Although he was decorated with multiple Bronze stars, he wanted NO part of a military funeral.

Every client has a backstory. Ethically to zealously defend our client, we have to get that story in addition to the facts of the offense the State is trying to sell. Some clients are forthcoming with their story, while others are not. We have to DIG DEEP.

With our clients who served in the military, forget the “Thank You For Your Service” cliché. INSTEAD, SPEND TIME SHOWING THE VETERAN YOU CAN DO MORE THAN JUST TALK A GOOD GAME AND GET THEIR RECORDS. A former employee of mine kept telling me she was calling everyday to get records on our client without success. In frustration, I stripped her of the assignment and actually reached the powers that be on the phone. The records were emailed to me within 10 minutes.

All avenues must be explored for dismissal, a not guilty verdict, or for punishment mitigation. School records, medical records, and military records must be obtained. Military records are particularly useful because unlike medical records that are likely shredded after 10 years, or school records that were stored in a warehouse that was destroyed by a hurricane, THEY ARE ACCESSIBLE.

Below is a website that advises you how to get military records:

Military.com
National Personnel Records Center
1 Archives Drive
St. Louis, Missouri 63138
Fax 314-801-9195
Phone 314-801-0800
https://www.archives.gov/veterans/

I have attached the instruction and information sheet for a request pertaining to military records. The link is http://www.archives.gov/veterans/military-service-records/ or can be viewed here:

Download (PDF, 347KB)

Click on “Submit your request by MAIL or FAX using the SF-180 Form”

Getting military records can make a big difference in a veteran’s life. The records may help you get a case dismissed. It may help you mitigate punishment in the event of a trial or a plea. Pick up the phone and call if you need adult leadership. If all else fails, call 314-801-0800 to talk to someone about the records. The people who work these requests are generally very helpful. If this information is confusing to you, simply google “How to get Military Records.” You will be thanking a veteran for his service by getting the records and using those records to show a jury, prosecutor, or a judge what the veteran is made of.

On August 21, 2015, our Harris County District Attorney provided a Brady notice regarding DNA mixture cases. While the office had previously provided notice of the FBI STR population database errors, it was generally believed that the errors would not be significant. However, we learned that when the error combined with DNA mixture analysis, the effect can be quite significant.

Download (PDF, 286KB)

The DA’s notice came with the attached analysis from the Texas Forensic Science Commission.

Download (PDF, 132KB)

Here, the commission distinguished the FBI database error from the changing standards in CPI/CPE interpretations that apply to mixture cases. A mixture case is one in which more than one DNA profile is identified within a particular sample. This means the sample collected, say from a crime scene, contains a mixture of DNA from more than one person.

The commission points out that it is the FBI error together with the CPI standards that has led to more significant discrepancies in reporting.

A more recent memo (September 10, 2015) from the Texas Department of Public Safety Crime Lab explains that its lab has only this year updated its standards in mixture cases, resulting in all cases since 1999 (when they started STR analysis) until August 10, 2015 (when they changed their CPI protocol) being suspect.

Download (PDF, 332KB)

Additionally, in a July 28, 2015 audit of the Houston Forensic Science Center (the former HPD Crime Lab), conservative practices have been criticized as perhaps failing to identify and thus provide probative exculpatory evidence. (see page 3) This audit report was not received until September 18, 2015 when the DA’s office forwarded the audit and an internal response to the audit.

Download (PDF, 484KB)

As you can see, new information is coming out almost monthly. We will continue to provide information as we receive it.