Harris County Criminal Lawyers Association

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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

Controlling Chaos

August 22, 2015 Leave a Comment

Practice Pointer: Controlling Chaos
by JoAnne Musick

If your practice is like mine, chaos can easily take over. Each client’s question is the most important question in the world…to him. Sure it’s important to you as well, from a representation perspective, but you must manage the chaos before it takes over.

  1. Set Priorities

Do you really need to read every email as it comes in? Not likely. Turn off email alerts on your phone! Every alert draws your attention away from the task at hand. Minimize the alerts and minimize the distractions. Email can be a priority, but set a time for it to be the priority rather than all day and all night.

  1. Calendar

Follow a calendar: paper or electronic. Make sure every appointment and appearance is recorded. Schedule time for emails. Schedule time for phone calls. Schedule time for research and case review. The more you schedule the more you realize just how busy you are and how productive you can be.

  1. Electronic Files?

Paper is just fine. Create a file for every client. Keep track of everything you do. Make notes about conversations with prosecutors and clients. Keep a running list of things to do. Follow a checklist to make sure you aren’t forgetting something. Do you need a paperless office? Maybe, maybe not. If you have time, scan everything. Get a Dropbox or similar online storage and place only current files in it. Then you will have access from your smartphone or tablet anywhere, anytime. Once a file is closed, consider scanning its entire contents for storage. Electronic storage is must easier than warehouse space; just make sure you have adequate backup systems in place so you don’t lose your electronic file.

  1. Face the Music

Clients get mad. Clients get aggravated. Clients blame you when they don’t get the plea offer they want. Instead of becoming defensive or avoiding, call the client or schedule a meeting. Review the process and options. Before speaking though, give the client an opportunity to talk or even vent. Sometimes they just want to be heard.

  1. Make a List

Keeping a “to do” list is simple and effective. It can be written or electronic. I’m currently using Evernote to keep a master list of general items plus categorized lists for specific projects. Having a list helps you set goals for getting tasks done and helps you visualize the priorities. Anything not done today gets done tomorrow!

Filed Under: clients, Defender, practice pointers Tagged With: attorney-client relationship, chaos, clients, communication, criminal defense, criminal defense practice, harris county, hccla, joanne musick, practice pointer, running an office

Egregious Prosecutorial Conduct

July 9, 2015 2 Comments

David Temple, the innocent man Kelly Siegler finally convicted, may finally get a new trial. In his 19-page findings of fact, Judge Gist notes at least 36 instances of prosecutorial misconduct; he paints a picture of a prosecutor willing to win at any cost and failing to follow her duty to disclose, or timely disclose, evidence favorable to the defense. Siegler, he notes, testified she didn’t need to turn over the evidence because she didn’t believe it was true.

The prosecutor’s personal belief in the truth of the favorable evidence can never be the benchmark for what prosecutors must disclose. Almost always, the Brady information which must be disclosed will be contrary to the prosecutor’s case or at least at issue with a portion of their case. But that’s exactly why it must be disclosed; defense attorneys are entitled to explore and investigate that information which may tend to exculpate their client. Defense attorneys are entitled to information which could harm the prosecutor’s case or cast doubt upon their witnesses. That’s been the law for decades. Certainly, if a prosecutor were to believe the information, her duty would be not only to disclose the information but also to dismiss the prosecution.

Read more from the Houston Chronicle: Judge Finds Fault with Legendary Local Prosecutor

HCCLA in the news criticizing ex-prosecutor Kelly Siegler’s conduct in the David Temple murder case (excerpts here):

Gist made his findings after a 10-week hearing that began in December, in which attorneys Stanley Schneider and Casie Gotro questioned prosecutors, investigators and defense attorneys about what happened throughout the murder trial. The two took over Temple’s appeal from DeGuerin.

“The evidence supports the findings,” Schneider said. “I feel relieved. The next step is getting David a new trial.”

Commenting on Siegler’s conduct outlined in the judicial findings, trial attorney dick DeGuerin is quoted:

“I think it’s bad, and I think she ought to be held accountable,” Dick DeGuerin said. “But I’m going to let someone else decide that.”

On behalf of HCCLA,

JoAnne Musick, president of the Harris County Criminal Lawyers Association, said Gist’s findings show “egregious” conduct.

The organization of defense attorneys is reviewing transcripts of the hearing to determine if a grievance should be filed.

“Whether it’s Morton or Graves or whoever, we see prosecutors who want to win, so they don’t want to disclose everything,” Musick said. “If they’re hiding things or playing games, that’s not upholding their duty to do justice. That’s trying to win.”

One of Temple’s attorneys who spent days questioning Siegler blasted the former prosecutor:

“Charles Sebesta was just disbarred for this same kind of conduct,” said Casie Gotro. “Dick DeGuerin stood on the courthouse steps and told the world Kelly Siegler had finally convicted an innocent man. These findings reveal exactly how she did it.”

This is certainly one story that will continue as Judge Gists’ findings are forwarded to the Court of Criminal Appeals for review.

The Houston Press is following this story as well, read more (excerpts here):

Prosecutors “intentionally, deliberately, or negligently failed to disclose” investigators’ reports and witness statements that pointed to other suspects, but Siegler continued the suppression even following the conviction, according to the findings.

Siegler testified in the habeas hearing that potential exculpatory evidence didn’t need to be disclosed if prosecutors “did not believe it was true,” according to the findings.

Gist also wrote that Siegler influenced post-trial maneuvers by telling police and officials within the DA’s Office not to disclose public records if they were requested. The findings also state that Siegler continued to pull strings even after leaving the DA’s Office in 2008, after 21 years, by getting an alleged witness who approached DeGuerin after the trial to change his story.

In that situation, Daniel Glasscock gave DeGuerin a sworn statement that he overheard another man implicate himself in the murder. Glasscock passed a polygraph administered by the DA’s Office and also gave the same story to a DA’s investigator.

But Siegler “asked” a Harris County Sheriff’s deputy — who was involved with the trial investigation — to contact Glassock and another witness “before they could be contacted by the Special Prosecutor [in the habeas investigation] or current members of the District Attorney’s Office. The Deputy did so and afterwards, their stories were significantly different than the original version,” according to the finding.

“In substance, Glasscock repudiated the most important details to the extent that his future credibility as a witness is significantly impaired,” Gist wrote.

Houston attorney Paul Looney, who worked on Temple’s case before DeGuerin took over, told theHouston Press that Siegler’s ultimate goal was to use the case as leverage to get her own TV reality series — an idea she had unsuccessfully pitched once before.

Siegler then asked to take over the Temple case, which had been languishing for years because the original grand jury chose not to indict.

“This was her opportunity to enhance her resume to the point where she would get her TV show,” Looney said. “It worked, she got the show (“Cold Justice” on TNT). But boy, at what a price. At the price of David Temple’s life, at the price of an entire family’s reputation, and at the price of her own integrity.”

As for Siegler’s impression of exculpatory evidence, Looney said, “If Kelly’s bizarre interpretation of that rule were ever to be the law, then all a prosecutor would ever have to do to keep any witness statement away from the defense is say, ‘Well, I didn’t believe it, so I didn’t give it to the defense.’ That’s never been the law, it would totally eliminate law, but she just boldly stated it — and the only thing I can figure is she’s trying to find some arguable basis to try to defend her law license from the ultimate scrutiny of the State Bar of Texas, which undoubtedly is going to happen over this case.”

But Looney alleged that Siegler not only violated professional ethical standards, but that she committed a felony by obstructing justice.

“If Kelly Siegler’s a lawyer in five years, I’ll be shocked,” Looney said. “And if she’s not a felon in five years, it’ll be because [District Attorney] Devon Anderson decided to protect her own friend.”

Pulitzer Prize winning journalist Lisa Falkenberg hits the nail on the head with her column: Judge is Right: Prosecutor Didn’t Live Up to Her Duty

The prosecutor’s duty is to seek justice, not win at all costs. Her “ego” wouldn’t let her lose this cold case. Cited twice now, once by the appellate court and now by the habeas judge, Kelly’s conduct is egregious and intentional as she hid evidence, failed to disclose evidence, and lied to the court about the evidence.

Filed Under: honor, justice, Members, politics, prosecutors, Public Trust Tagged With: casie gotro, criminal defense, dick deguerin, ethical violations, harris county, hccla, Improper Conduct, joanne musick, justice, kelly siegler, prosecutors, stanley schneider

PR: Declaration of Independence

July 1, 2015 Leave a Comment

FOR IMMEDIATE RELEASE

CONTACT:
JoAnne Musick, HCCLA President
832-448-1148 office,  email JoAnne

6th ANNUAL READING OF THE DECLARATION OF INDEPENDENCE
Houston, Texas – June 29, 2015

In celebration of Independence Day, the Harris County Criminal Lawyers Association (HCCLA) is holding its 6th annual reading of the Declaration of Independence. This year’s event will be led by JoAnne Musick, the association’s president.

HCCLA’s reading of the Declaration is an annual tradition that was started by HCCLA Past President, Robert Fickman. This year he organized similar readings across the state, making defense bar history. Readings by defense lawyers will take place in front of 127 Texas courthouses, covering one-half of all county seats. HCCLA continues to lead Texas with the largest gathering, boasting over 100 local attorneys, judges and Houstonians in attendance.

The Declaration of Independence is our nation’s most cherished symbol of liberty. This sacred document is the founding document of the United States, and contains within its text the fundamental truths and unalienable rights that typify and embody the American way of life: …that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

Please join us in honoring our nation’s most sacred document in the spirit of independence:
When: Thursday, July 2, 2014
Where: Harris County Criminal Justice Center
1201 Franklin Street , Houston, Texas
(Front steps of the courthouse)
Time: 11:30 AM

The Harris County Criminal Lawyers Association is the largest local criminal defense bar in the United States with more than 750 active members. For more information about the history of the readings and photos, visit: http://www.criminaldefensedeclarationreading.com/
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download here:

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Texas Criminal Defense Lawyers Association also issued their press release as this event has grown into a statewide event:

PRESS RELEASE: FOR IMMEDIATE RELEASE
CONTACT:  Joseph Martinez, Executive Director : TCDLA
TELEPHONE:  (512) 478-2514
PLEASE SEND ELECTRONIC TEARSHEET TO:  declarationreading@gmail.com

Texas Criminal Defense Lawyers to Lead Readings of Declaration of Independence in over 120 Texas Counties on July 2, 2015.

Members of the Texas Criminal Defense Lawyers Association (TCDLA) are holding Annual Fourth of July readings of the Declaration of Independence at over 120 Texas County Courthouses on July 2, 2015. TCDLA is an organization committed to protecting individual rights guaranteed by the U.S. and Texas Constitutions in criminal cases. The readings were first organized in 2010 by Robert Fickman, a Houston criminal defense attorney, who leads the organization of readings today as well.

Sam Bassett, the President of TCDLA, states: “Criminal defense lawyers fight to protect the liberties of our fellow Americans on a daily basis in courts across Texas. As a group, we are proud to stand united and lead readings of the Declaration of Independence. It is a recognition that our Founders intended for individual liberty to be a paramount concern. As recent events have shown, power threatens these liberties. Prosecutors who illegally withhold evidence, courts that conduct plea mills, abusive police officers and appellate courts who gut the Fourth Amendment are examples of the ongoing struggle within the criminal justice system.”

The members of TCDLA stand united in defense of liberty.

To learn more about this event, please contact TCDLA President Sam Bassett at (512) 472-0144 or sbassett@mbfc.com or Robb Fickman at (713) 655-7400

Filed Under: honor, justice, Members, press release, Public Trust Tagged With: declaration of independence, harris county, joanne musick, press release, Robert Fickman

Practice Pointer: Reinforce Information for Your Client

June 9, 2015 1 Comment

by JoAnne Musick

Client communication is key! You must communicate with your client regularly so that they will know what is happening and so that you can answer any questions they have. Because criminal lawyers spend a great deal of time communicating in person (with frequent court settings, visits at the jail, telephone calls, etc.) you end up sharing a great deal of information verbally with your clients. Often, clients become confused about what you have relayed or they simply cannot remember it all due to the stress of the situation and the volume of information they must process. The question becomes how do you reinforce the information for your client?

Simply, you do so with written correspondence. It is important to provide your client with as much information as possible so that your client can make appropriate and informed choices about his or her case. Think about all the information you share with your client in a typical case: the offense as charged, the punishment range, possible enhancements, possible defenses, summaries of evidence, witness information, collateral consequences (ALR, occupational licenses, ability to seal or expunge, sex offender conditions, immigration consequences, family consequences, employment consequences, firearm possession rules, and so much more). How can your client remember and process all of this information following that 30 minute jail visit? How can your client explain some of these to family when they seek family advice on how to proceed?

Provide your client with written guidelines. Cheat sheets if you will. You can create a general “how to” page on getting an occupational license and/or reinstating a suspended license. You can create a general “informational” page on the ability to seal or expunge records. You can create a general “how to protect attorney-client privileged information” guideline to warn your client about talking to others, especially in the jail. There are many general information categories that apply. Create “cheat sheets” or general information sheets to hand out to your clients to reinforce some of this common information. Think of it like FAQs. You know the questions clients routinely ask you. Start a list, create a handout or two, and get these into your client’s hands.

Additionally, when you convey important information about your client’s case directly to him or her, follow that up with a written letter that summarizes your conversation. Yes, it takes time, but it’s about helping a client. When there is a plea bargain on the table and a timeline for accepting or rejecting it, send a letter to your client reminding him or her. When you need a list of witnesses for guilt/innocence or punishment/mitigation, send a letter reminding your client to get that information to you timely. And, most importantly, when your client disregards your advice, send a letter stating what your advice is and that he or she has declined to follow that advice which could result in certain consequences. This is about keeping the client informed and making sure you have a file of what you have or have not shared with your client.

Add correspondence to your case “checklist” and make sure you are providing information to your client. The correspondence might even include a “welcome letter” and a “closure letter”. Send your client a welcome letter upon representation, something that spells out your scope of representation, how they can best contact you, your typical schedule for returning calls or letters. Send a follow up when you have the details of the charge explaining the offense and its range of punishment. Send plea offers. And finally send a closure letter to let them know where to go from here, i.e. when they might be eligible to seal or non-disclose their records, how to proceed on probation, what to do if they encounter problems or have questions, and thank them for entrusting you.

Anyway, you get the point. There are many things you can do to reinforce the information you provide to your client. Just start with the basics and get in the habit of providing more information to your client.

Filed Under: Defender, practice pointers Tagged With: attorney-client relationship, client, communication, criminal defense, joanne musick, practice pointer

Practice Pointe: Setting Up Client Files

June 9, 2015 Leave a Comment

By JoAnne Musick

So, you have a new client; whether that client hired you or you were appointed by the court, you need to get a new file opened and set up so you can get to work. In my office, we use a checklist (below) to make sure we have preliminary information about the client and his case. Every client needs a file, even if you choose a paperless office!

We start with a contact sheet (our happen to be on yellow paper to make them easy to spot on a desk and in a file). The contact sheet is created when the client (or his family) first calls the office. This is replaced with an order of appointment for non-hired cases. The contact sheet has preliminary information from the call so that the attorney can start to evaluate the case and keep notes. This contact sheet will exist on every potential client contact. It tracks when an attorney speaks with the potential client, what was discussed, whether an in-person meeting was set up, etc. So even a call that doesn’t result in a hiring is tracked and kept for conflict purposes and institutional memory, if you will. We have found that a call from a client “shopping for a lawyer” will often result in a later call to set an appointment or meet. And with the contact sheet, we will know everything that has been previously discussed with the client or family. Once the client hires, that sheet ends up in the client file.

Our office pulls the JIMS or other district clerk data on all new clients and potential clients (current charge and any priors). So this is included in our checklist for setting up the file. When the file is created, the legal assistant checks to make sure all of that information is included in the new file.

We have every client (retained or appointed) fill out a “client information sheet”. This two page document has name, address, phone numbers, relatives who may know client’s whereabouts, the charge or legal matter, a space for client to self-report priors (so we can cross check), the complainant’s information (when known), and a space for client to add anything he wishes for the attorney to know up front.

It’s also important that every client sign a contract, so we include this as a part of our checklist. (If appointed, the order of appointment serves the same purpose.)

We send an engagement letter to each client, confirming that we are retained or appointed to represent them and what they can generally expect. It also gives instructions to clients about the use of social media, not talking to anyone other than their lawyer, etc.

Our checklist is a simply one page list for opening the file so that assistants and lawyers alike can quickly make sure that all preliminary information is in the file and available as work begins. Again, this is just an example of how we open our files, and I hope it is of help to those starting their practices or looking to hone their procedures.

 

Filed Under: Defender, practice pointers Tagged With: attorney-client relationship, client, client files, criminal defense, files, hccla, joanne musick, practice pointer

Practice Pointer: Managing Client Expectations

June 9, 2015 Leave a Comment

By: JoAnne Musick

What does your client expect? Knowing what she expects can help you meet those expectations. Knowing what she expects can help you redirect those expectations when they are unrealistic. Communication is key in this regard.

When you first meet a potential client, it is important that you ask her what she expects. Does she expect to walk? Does she expect to go to trial? Does she expect to plea-bargain her case? Granted, you will not be in a position at this point to properly advise your client as to the realities of those expectations. At an initial meeting, you are not in position to promise, guarantee, or suggest a possible resolution. You may have heard your client’s side of the story, but most often, there is at least one other side to that story. There would be no way to know at this point whether you can successfully negotiate a dismissal. There would be no way of knowing whether your client might prevail at trial. Making a promise as to a dismissal or particular plea-bargain or even a win at trial only sets up unrealistic expectations from the beginning. Some lawyers make these promises to encourage the client to hire them. This is wrong; don’t do it. Instead, explain why you cannot say what will happen because you have not seen the evidence.

When you ask your client what she expects, be prepared to explain why those expectations are likely or unlikely to be realistic. I have clients tell me they expect to plea-bargain their case. That’s fine. I explain that a plea-bargain is certainly a possibility; however, first the case must be investigated and analyzed to see if a dismissal might be warranted or if a reduction is possible. I have clients tell me they expect to try their cases. That’s fine. I explain we are a firm of trial lawyers, and we start out preparing every case as if it will be tried to a jury. But I also ask the client to keep in mind that we have no way of knowing at this point if a particular plea-bargain offer is good or which jurors will show up for jury duty and how they might feel about the evidence because we haven’t even reviewed the government’s evidence or developed our evidence and strategy. So I ask the client to let me help them understand the evidence that the government will try to present so that we can make the best-educated decisions about trial. I also remind the client that while we might believe we have the best air-tight defense, ultimately, a jury makes that decision so we cannot promise or guarantee any particular result.

This key communication sets the tone early for understanding your client’s expectations and managing those. I also begin my representation with a letter to the client (after the contract is signed or after the court appointment is made) that details how to reach me, why I may not be able to take or respond to phone calls immediately, how the case is expected to proceed, and what is expected of the client. This tends to help clients understand the process and what to expect. It also lets them know what I expect from them.

As the case progresses, strive to keep those preliminary expectations under control. You should communicate early and often with your client. This could be via telephone, email, or meetings. But, where any of these conversations come down to the client needing to make a decision (whether to accept a plea-bargain that has been made, whether to proceed to trial, or other similar matters), I prefer to follow-up that meeting with a letter detailing our conversation. It could be as simple as: you have been offered a plea-bargain of X, and the range of punishment for your charged offense is Y; we have discussed the pros and cons of accepting this plea-bargain; and you have indicated you would like to accept/reject/counter that offer. This is simply a letter from you to your client so they see the offer and can think about the consequences of their decision. Obviously, this type of letter will not always be necessary, but where decisions are complicated (like multiple alternative plea-bargain options: conviction with time served or probation), or where the client wants to “think about” the advice you have given, this gives the client a framework of reference while they contemplate their decision or discuss it with family. It also helps prevent a misunderstanding as to what you have told your client during your telephone call or meeting.

Filed Under: Defender, practice pointers, Public Trust Tagged With: attorney-client relationship, client expectations, commun, criminal defense, expectations, hccla, joanne musick, lawyers, practice pointer

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