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President’s Message – Spring 2016

August 2, 2016 Leave a Comment

What a Year!

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

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

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

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

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

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

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

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

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

Filed Under: Defender Tagged With: Defender, joanne musick, president's message

THE LIFEGUARD

March 17, 2016 Leave a Comment

the lifeguard
by Rick Oliver, HCCLA member and attorney lifeguard_Page_16

“Back in the day I was a lifeguard, if you can believe that.”

After a hesitant pause, she said, “Not as easy as it looks, is it?”

He shrugged to himself. His eyes drifted up and as they did the phone slid down his chin a bit. He could have heard her if she were talking. But she wasn’t; she was waiting for him. He took a deep breath and gently probed the darkness. It was too complete to discern the shapes on the wall, but he wasn’t scared. It was his office, after all; had been for the last twenty years. He could smell his smell in it. Everything he touched was warm and familiar. He could move confidently in the darkness without offending a shin. This place symbolized his place in the world. Every stick and scrap was evidence of or a testament to the career he’d conjured virtually out of nothing. Still, he knew, pride isn’t enough to light what’s dark.

His was the same sort of crap you see adorning the walls of nearly every defense attorney’s office. Certificates of accomplishment, laurels earned and laurels bought, tokens of appreciation, historical hubris, and the scalps of fallen enemies. He knew what they were. He knew they were there. He’d spent what felt like a lifetime among these baubles. He knew he would recognize them immediately, if only the lights were on. He sighed and mumbled, “I can only see it when I close my eyes.”

Gently, she said, “What was that, John?”

He shook his head like he was warding off a fly, readjusted the phone and said, “Nothing.”

“Did you ever save anyone?”

John’s eyes were drawn to the black corner where the inky dark loomed heavy and substantial. His filing cabinets were a mausoleum of old voices and the stories that had brought them here. Of course he had saved some of them. Some he saved from themselves. Others he plucked from circumstance and the conclusion it suggested. For those victimized at the altar of leverage he had found the fulcrum and turned the tide. Too many had been spared the wrath of political guile masquerading as adversarial zeal. Of course, some of them were just as guilty as Hell. He saved some of them, too. But, he hadn’t been able to save them all. There were just too many.

“When you were a lifeguard, I mean.”

John chuckled quietly and said, “Once. But mostly, I worked on my tan. I remember by the end of that summer the sun had bleached the hair on my arms and legs white.” Instinctively, he reached for his forearm and could remember the soft blonde fuzz of that summer despite the coarse salt and pepper of this winter. “My Mother used to boast that the contrast of those tiny white hairs against golden skin made me seem almost angelic.”

“I’m sure it was just a trick of the light.”

His laugh was almost a foreign sound. He said, “No doubt.”

“Tell me about the one you saved.”

He took a deep breath and leaned his chair back, anticipating the soft nasally squeal of rusty spring. He pressed his head into the rough leather and felt the cold knot of tension that always seemed to play at the base of his skull.

“You ever notice how so much of life is metaphor?”

“I have to be honest,” she said. “More often I find it to be allegorical.”

John cleared his throat and said, “I suspect secular dogma is mostly to blame, for that.”

“How do you figure,” she asked.

“You want to talk about that or you want to talk about the pool?”

“Good point,” she said. “Let’s talk about John the Life-Saver.”

“That’s probably a bit ambitious, but I’ll tell you anyway. I was in my stand, rigidly observing that 10/20 principle they drilled into your head back then.”

“Ten seconds to scan your area; twenty seconds to get to and rescue anyone in it?”

“Very good,” John said. “She was across the pool from me.”

“Tell me about her, if you remember.”

“She was Hispanic. She was there with a few other women and a gaggle of kids who all bore at least the slightest resemblance to her. At the time she seemed old, to me. Looking back, I assume she was in her mid-thirties; a baby. Her hair was twisted with one of those thick green rubber bands they use to package broccoli at the grocery store. It didn’t matter, though. She had the kind of hair whose vibrant simplicity makes other women jealous.”

“The rubber band is kind of an obscure thing to remember. Why do you think you focused on that?”

“I was scanning my area when she eased into the pool. You could tell right away the water made her nervous. The kids all hollered and cajoled and the adults even clapped as she went in. The kind of thing that would piss you off, if they weren’t her family. Some of the kids splashed her and you could tell she didn’t like that; not because of what the water could do, but because of what it was. I don’t think any of those kids could understand her fear. I know I didn’t, then. Anyway, she put on a brave face and started bouncing up and down a little. But, she was careful not to let her head go under. She was white-knuckling the concrete with one hand and waving the other around in circles under the surface—a pitiful attempt to float. That was the start of it. She would bounce a few times and then float into deeper water, all the time testing her footing. Bounce and float, bounce and float. Check for ground. Deeper and deeper. By then no one was paying attention to her anymore.”

“Except for you,” she said.

In the dark, John shook his head. He looked up at the ceiling and slowly exhaled a shuddering breath. “Not me either,” he said.

“What happened?”

“On my next pass I got to the spot I’d last seen her but she was gone. It took me a second or two to realize she’d gone under. Got too deep and lost her grip on the firmament, I suppose. I hadn’t realized how short she was until she went under. All I could see were two little hands reaching heavenward, either side of that beautiful brown hair.”

“She didn’t panic when she went under?”

“Maybe that’s why I didn’t keep as good an eye on her as I maybe should have. I figured if she got into trouble she’d start thrashing about and get everybody’s attention. Surely, I thought, her family would go in after her and she’d be out of the pool before I could get out of my stand. But, that’s not how it happened. I guess not everybody drowns the same way.”

“Would it be easier if everyone did?”

“I think you’re asking a tougher question than you realize.”

After a pause she asked, “Did she make it?”

“I don’t remember blowing my whistle but I can still feel those three sharp blasts in my chest and in my bones, silencing the din like gunshots as I fell from the stand like a stone in to water. I hunched over my rescue tube and swam to her as fast as my arms would carry me. When I got there I jabbed an arm in the water and grabbed ahold of her just above the spot where that thick rubber band was binding her hair.”

“So,” she asked.

“I pulled her up and she coughed a gout of urine-laced pool water, but the important thing is she was coughing. Anyone with kids will tell you that’s a good sign.”

“So, you pulled her up by her hair and saved her?”

“I did.”

“Ouch.”

“My Father always told me to never confuse safety and comfort. I figure she learned that lesson the hard way, that day.”

When she didn’t respond John stood up with the phone. He stepped around the open desk drawer and walked to where he knew the sideboard was. He jiggled the stopper and set it next to the decanter. It rolled on its side and settled with a pleasant clink. He groped for a high ball and when he got it added three fingers of Scotch. It was reduced to a bony finger by the time he regained his seat.

“Can I ask you something, John?”

“Please, do.”

“What was it that reminded you of your lifeguarding days?”

John set the high ball atop his desk and leaned his chair back again. Slowly, he let his head roll forward and loll side to side, trying to work out a kink. He said, “Before you could get hired as a lifeguard you had to pass a couple tests; prove you were a strong enough swimmer for the job. The first was easy enough. It was a timed five hundred meter swim. I hadn’t yet learned how to swim with my head under water, but they gave us plenty of time to finish and I did it without too much trouble.”

“What was the other?”

John leaned forward and put his elbow on the desk. He exhaled a breath that came out in a dry fetid rush. He swallowed the last of his drink. He said, “There was a separate pool by the diving boards where the water was deepest; so deep you couldn’t make out the bottom. They took us over there and we saw something odd. Cinder blocks were spaced out along the edge of the pool; one for every applicant. They didn’t mention the blocks and we didn’t ask. We got in the water and they told us all they wanted us to do was tread water. We started and did that for what seemed like forever. It wasn’t a problem for any one of us and I think that made us all a bit cocky. I remember a joke or two coming at the expense of the strength of the application process.”

“You forgot about the blocks.”

“We did. After a while we thought surely they must be satisfied. They told us to swim to the side of the pool. We thought it was over and we’d passed their test. It wasn’t and we hadn’t. They told us to each grab a cinder block and wade back out to the center. Once we were out there a stop watch was produced. They told us to hold the cinder blocks above our heads and tread water until they told us to stop. If we dropped the block we were out.”

“You passed the test.”

John nodded and in his solace a single tear tracked his cheek and settled with a mournful tickle along the base of his jaw. “I was a young man, then. The cinder block weighed fifteen, maybe twenty pounds at the most. At the start, I held it up in one hand and with a smirk on my face. Obviously, I was showing my ass. But, pretty soon it felt as though I was holding a goddamn elephant above my head and I wasn’t smirking anymore. My arms and legs and lungs were burning like fire, but I was determined not to let that cinder block beat me. I wanted to impress the ones who were there who’d already passed the test. And I wanted to wipe the smug look of satisfaction off the face of the man holding that stupid stop watch, too. Pretty soon two of my fellow applicants dropped their blocks and kicked for the side where they clung to it, defeated. Still, I kept kicking and thrashing. In the beginning I was high and strong and able to keep my chin clear of the water. As time passed I could feel myself beginning to sink. It was such an odd sensation feeling your strength flag in such tiny but meaningful increments.”

“What do you mean?”

“I was drowning; that’s what I mean. I was just doing it slowly and against my will. I realized it when I felt the water on my cheeks. It tickled a little and forced me to blow air out my nose so I could breath. I had to kick hard every so often to get clear of the water so I could take a full breath. The water didn’t care. It was ready to accept me dead or alive; docile or thrashing. And then it was tickling my earlobes. I could barely force a kick hard enough to clear the water for air. Still, I kept kicking and sinking. When it started to sting my eyes I cried out of frustration. I set my jaw and stared blurry lasers at the man counting the time. I believe I would have gone right down to the bottom holding that block over my head, if it had come to that.”

“But it didn’t.”

“Fortunately, no.”

“What do you think gave you the strength to endure?”

“I knew I could drop the block.”

“What’s so different now, John?”

John lowered his head until it was touching the desktop. He whispered, “I can’t drop the block. Not anymore. No matter how heavy it gets or how far under I go. There’s no rest and no break. No stop watch and no end. I can only see one way to get out from under it, anymore.” He started to cry; silent and wracking sobs. Blindly, he reached inside the open desk drawer and gripped his pistol. Like everything else in his office it felt comfortable and familiar. It felt easy and light, and with it the promise of a dream. With his eyes closed, he could see it perfectly.

“John?”

He clamped his mouth shut to stifle a sob and didn’t trust himself to speak. He thought about ending the call. He wondered whether it had been a mistake to begin with.

“John? Are you still with me?”

John was able to manage a confirmatory squawk.

“Get up and turn on the lights, John.” The hardened edge to her palliative tone caught him off guard. He looked up and wondered through tears how she knew he was sitting in darkness.

“How did you know the lights were off?”

“Turn them on, John.”

Confused, but obedient, John pushed himself back from his desk and went to the wall switch. Light bathed his office and he winced. As his eyes adjusted the frames on the walls returned slowly to focus.

“John?”

“I’m here.”

“The block is your life and it’s heavy because it’s meaningful. You don’t have to drop it, John. You don’t have to drop the block and you don’t have to carry it alone. Are the lights on?”

“Yes.”

“Look around.”

Tetchily, John said, “It’s my office. I know what’s here.”

“I think you’ve forgotten, John. Look around. Look around and remember what all you’ve accomplished; who all you’ve helped. Take things down or pick them up and dust them off; examine the details. Re-experience them, John. Those things add weight to the block, too. And those are things you shouldn’t want to let go of. You’re lonely; not alone. When you lose contact with the faces and the places and the love, of course it’s just you holding a cinder block overhead in a big dirty pool of hungry water. Once you realize that, the block will start to feel lighter and lighter. You may even feel strong enough to show your ass, a little.”

He hung on every word, trying not to fall victim to what he so often accused others of: not listening. He wanted her help. That’s why he had called. He breathed deep and steadying breaths. He looked around his office. Somehow, it felt both familiar and new. He saw faces and could hear their voices. It wasn’t all laughter. There was pain, too. But it filled him up and for the first time he began to feel grounded and whole. Emotion welled up and he wondered how he could have ever considered escape. He moved from picture to picture; bauble to bauble. He had no idea how much time had passed; another welcome feeling. He realized she was still on the other end, waiting for him to come back.

For the first time in as long a time as he could remember, he smiled a smile of genuine appreciation. Not just for her voice, but for the voices she helped awaken. “Thank you, Hope.”

“I’m glad you called, John.”

John started to drop the phone but stopped. “Hope?”

“I’m still here, John.”

“That’s not your real name, is it?”

He smiled as she giggled from the other end. “Have a good night, John.”

 

Texas Lawyer’s Assistance Program: If you need help call any time day or night—(800) 343-8527

Filed Under: Defender, Members Tagged With: Defender, help, stress

Chess Corner

September 13, 2015 Leave a Comment

Chess Corner
by: Tyler Flood

Appear Weak When You Are Strong

“When we are able to attack we must seem unable, when using our forces, we must seem inactive, when we are near we must appear far away, when we are far away we must make the opponent believe we are near. Humble words and increased preparations are signs that your opponent is about to advance. Violent language and driving forward as if to attack are signs that your opponent may retreat.”…Sun Tzu

Before Bobby Fischer became the World Champion Chess player in 1972 by beating Boris Spassky, Spassky was known as the Demon of Deception. He played some of the most exciting and surprising moves ever seen in chess. Many were designed to deceive his opponent and take advantages of opportunities that resulted from those deceptions.

The Sun Tzu book The Art of War teaches deception, preparation and skill on the battlefield. All warfare is based on deception, using surprise maneuvers and using your opponent’s psychological predispositions against him to gain tactical advantages.

In chess and martial arts, attack by deception, is the attack of the master. We must surprise our opponent and catch them in the moment of his helplessness.

This applies to trial. If you are prepared and know your case inside and out there will be at least one moment, one point in the case, one opportunity you can seize and take advantage of and surprise your opponent. However, if you are unprepared, opportunities may present themselves without you even being aware of them and you will not be able to exploit them.

When the time comes for your attack you should “look as boldly aggressive as a beast of prey—without becoming reckless—in order to bring pressure at once upon the adversary’s morale.”…Bruce Lee

Attack your opponent where he is unprepared and appear where you are not expected to attack.

If your opponent’s pleadings are open to attack, weigh the costs and benefits of bringing pretrial motions as opposed to using the deficiencies to your advantage in trial. Not all problems with your opponent’s pleadings require or deserve a “motion to fix” (otherwise known as a motion to quash). And you do not have to raise a motion to suppress by written pre-trial motion. You can raise a motion to suppress at any time during trial before the objectionable evidence is admitted. Roberts v. State, 545 S.W.2d 157 (Tex. Crim. App. 1977).

Ponder and deliberate before you make a move.

Sun Tzu teaches us:

“He will win who knows when to fight and not to fight.”

“He will win who prepared himself and waits to take the enemy unprepared.”

Trial is about opportunity. You must think about and plan for all possible outcomes, 99% of which will never occur. In over 140 jury trials in my 14 years of practice I have yet to have one go exactly as expected. There is almost always something that happens that I wasn’t expecting (but hoping for) and I was prepared for and ready to take advantage of the surprise opportunity. The successful trial lawyer is an opportunist. Be an opportunist.

There is no need to stick your chest out and talk loud and make a public show of confidence unless you want to tip your opponent off that you are not prepared. This usually is a signal that you are desperately trying to obtain a dismissal so you don’t have to go to trial. This is what I see many lawyers do who are either 1) dealing with a weak defense case or 2) who are scared to go to trial.

Being a trial lawyer is the only way to do this job correctly. The small number of lawyers setting their cases for trial in this county is embarrassing. I want to encourage all attorneys to go to trial more often and reap the rewards of taking advantage of opportunities that present themselves during trial. Opportunities that only present themselves when in trial. Opportunities that would never be realized if the attorney did not thoroughly prepare for trial and opportunities that would never be seen if the lawyer pleads out a case when there is no risk in trying it.

Much success in trial comes from out-preparing your opponent and finding issues to use and then waiting for the right opportunity and the right time to make use of those issues. Don’t spoil your chances by bragging or boasting beforehand about problem’s you have found with your opponent’s case. Telling your opponent about issues beforehand will cause you to lose the issues completely. The issues will be “fixed.”

What could be better than knowing your case inside and out and keeping quiet about it and luring your opponent into a false sense of confidence? You go to trial and then unleash your attack, taking your opponent by surprise.

To be successful in trial, why not prepare, prepare, prepare, then be quiet, appear unprepared and wait for your day of triumph. Don’t telegraph your level of confidence in the case.

If you study people you can pick up on so many cues that tell you everything you need to know. For example, during a break in trial the other day I was about to move to suppress the HGN (motion granted) and I asked the officer in the hallway a question about it before we went back on the record. His answer was evasive as he paused, looked accusingly at me and then stated, “I’m not supposed to be talking to you.” I explained that it was fine for him to talk to the attorneys just not other witness but then I said “Thank you though, you just answered my question for me.” He was weak and was trying to appear strong. If he was strong and had no problems with his HGN test he would have responded differently I think.

The idea of being quiet and confident goes both ways though. The prosecutors I am most concerned about, the ones who I worry the most about, are not the ones emailing me or calling me asking me if I am ready on a case. It’s the ones who I ask if they are ready and they simply give a one-word answer, “yes.” If they are bugging me asking why we aren’t pleading and if I am really going to be ready for trial then I know they are not wanting to go to trial on that case for some reason. You can learn a lot by paying attention to people’s actions.

So be prepared but don’t advertise it. If the State is definitely going to try your case then informing your opponent of all the work you have done in preparing for the trial and letting them know that you are very ready and very prepared will cause them to work harder and be even more prepared to fight you. If you know for sure it is a trial case then consider following the ancient lessons learned from warfare and from the game of chess. Act weak and unprepared and you can catch your opponent off guard. Feign weakness and your chances of success increase. This doesn’t necessarily apply to cases that you know are very weak for the state. In this situation you want them to see and hear how prepared you are so that you can increase your chances of a dismissal or a reduction.

Now go out there and fight with a winning strategy in place. Set your cases for trial and announce “Ready” on trial day!

Tyler

Filed Under: chess corner, Defender, Trial Techniques, Trial Tips Tagged With: chess corner, criminal defense, criminal defense practice, Defender, harris county, trial techniques, trial tip, tyler flood

Winter Defender 2014 Online

March 18, 2015 Leave a Comment

The newest issue of the Defender (Winter 2014) is now available online for viewing and downloading.

Visit our publications page for a link!

This issue includes:

  • Mediation?…In My Criminal Case? (by Jason Truitt)
  • Practice Pointers
    Juvenile and Felony Sentencing
    Wants vs. Needs
    What the Welder Taught Me
  • Kent Schaffer: A Profile (by Thuy Le)
  • Strategy: Donald Rumsfeld & the Unknown (by Joseph Varela)
  • How Do You Do It All? (by Lisa Shapiro Strauss)
  • And regular features
    Winning Warriors (compiled by David Ryan)
    News Round Up (current events)
    Chess Corner (by Tyler Flood)

Filed Under: Defender, Members, Trial Tips Tagged With: criminal defense, Defender, harris county, harris county criminal defense, hccla, kent schaffer, Legal Publication, strategy, tyler flood, Winning Warriors

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