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How do you explain a media personality like Oprah Winfrey and those zillions of dollars in her accounts, not to mention the adoring masses at her feet?  For all the hype, if you really take the time to listen to the woman talk - and I mean really listen to the content of her thoughts - you are left with incredulity.  Is there anything of substance up there in her cranium?  

Let me give you one example of her vanity and shallowness.  The woman paid good money to have her DNA analyzed so to trace her genealogical tree back to its “roots.”  And that analysis told her that she “descended” from the Kpelle people of the Liberian rainforest, prompting her to gush “I feel empowered by this” and ”knowing your family history is knowing your worth.”  Could she contain her bitter disappointment that she wasn’t linked to Zulu warriors?  (more…)

My good friend and professional peer Dr. Randy Price of Richardson, Texas told me one time that he came close to being held in contempt during a deposition for his refusal to provide his home address and phone number when asked by counsel.  He stood his ground in refusing to reveal the confidential information by telling the exasperated lawyer (who I guess was used to everybody ratting themselves out) that his home address and phone number wasn’t relevant and was a gross violation of his privacy to boot.  Well, looks like the Bar finally got Price’s message years later.

In a recent ruling, The State Bar of Texas v. The Attorney General of Texas, No GV 403520, the court held that an attorney’s home address, home phone number and date of birth maintained in the State Bar membership records are not subject to public disclosure.  Third parties who submit a public information request for member addresses or mailing lists will now be provided with the office address that the State Bar has on file for each individual attorney.  The office address will continue to be published on the online attorney profile located on the State Bar’s website (Texasbar.com)

Oh, I nearly forgot.  Price never was compelled to reveal the location of his crib.

Back on March 2, I wrote about a unique murder case tried up in New Jersey.  What made the case so different was one piece of compelling evidence: a tape recording of a 46-minute conversation the defendant Michael LaSane had with the victim moments before her murder.  It was played publicly for the first time at trial.  A more detailed history of the case can be found at the original posting (see March “criminal law” archives). 

I was remiss for not reporting back with the verdict of the jury in the case.  Mr. LaSane was convicted of first-degree murder and sentenced to life in prison.  The death penalty was not available to the prosecution since LaSane was a juvenile when he committed the murder.  If you recall, LaSane had previously been sentenced to an indeterminate sentence of 30 years to life in 1996 as a result of a plea bargain.  However, that conviction and sentence were set aside when it was determined that his original trial lawyer was engaged in an affair with LaSane’s mother.  Did new counsel actually believe that a better result could possibly come about by proceeding with a new trial, especially in light of the chilling audiotape which formed the centerpiece of the State’s case?  I have this gnawing suspicion that LaSane will start work on his new writ in due time, alleging ineffective assistance of counsel by arguing that only a grossly incompetent lawyer would have advised him to abandon his thirty-year deal for a lifetime in confinment.

Finally, I note that the March 2 piece has proved to be the most-read posting so far on this site.  It has been accessed well over 2000 times.  No doubt the playing of that tape in public was a riveting courtroom moment.  It reminds me of a similar experience I had during the trial of Robert Anderson, involving his tape-recorded confession.  It was played only one time in public.  It proved to be just too much for several spectators in the courtroom.  Jurors didn’t have the luxury of walking out.  But that’s a whole new story and I’ll keep it on ice until later.

You gotta hand it to Eric Maiwald, an inmate in TDC.  Acting pro se, he appealed an order out of the 47th District Court terminating his parental rights to his child.  The proceeding was initiated by the child’s mother who was represented by Amarillo retained counsel.  The case was tried to the bench in December of 2005.  Maiwald raised seven points of error and by his fifth issue, he challenged the sufficiency of the evidence underlying the four circumstances pled and relied upon by both the mother’s attorney and the trial court to terminate his parental rights. 

Let’s see, I’m no family lawyer but I looked up the Family Code, subsections 161.001(1)(C), (F), (H) and (Q).  They are as follows: that the pro se appellant/biological father’s confinement prevented him from caring for the child”not less than two years from the date of the filing of the petition,” that he failed to support the child in accordance with the parent’s ability during a period of one year ending six months of the date of the filing of the petition, that he voluntarily left the child alone or in the possession of another without providing adequate support of the child and then remained away for a period of six months and finally, that he voluntarily abandoned the biological mother with knowledge that she was pregnant. 

Look, I don’t want to give away anything here.  Let’s just say that the pro se inmate utterly destroyed each ground that the trial court relied upon.  But the best of the bunch was the fourth ground on which termination was based, subsection 161.001(1)(H) which required proof that Maiwald voluntarily abandoned the child and mother with knowledge of the mother’s pregnancy.  The record clearly indicated that it was the mother herself who terminated her relationship with Maiwald during the pregnancy and took affirmative steps to prevent the father from having any contact with her or the child after the birth.  She and her mother changed their telephone number “because he wouldn’t leave us alone.”  For every answer the biological mother and her mother gave their lawyer to prove abandonment, the court identified corresponding answers given by the same witnesses that proved just the contrary. 

As I understand the law on this subject, as long as there is sufficient evidence on just one ground - just one - the appellate court will uphold the order of termination.  And the respondent and her lawyer couldn’t do it.  So, hats off to the pro se appellant.  He beat an experienced family lawyer on each ground of termination. 

You can read the case at In re T.B.D., 223 S.W.3d 515 (Tex.Ct.App.-Amarillo 2006) or go here to read it on-line.

I have written before about my respect and admiration for John Burns, lead Iraq correspondent for the New York Times.  He appeared recently on “The Charlie Rose Show” the other night to discuss, among other things, the current situation there in Iraq and in particular Baghdad as well as the effects of the surge.  I know many out there who believe in an immediate pull-out and they have, admittedly, some good arguments.  I am aware of just as many who advocate the Bush doctrine and those who have more moderate plans on our future in Iraq.  I personally believe that whatever your political persuasion or opinion on withdrawal, the fact remains that we will be there for the foreseeable future, mainly because, rightly or wrongly, we have created a very dangerous situation for those Iraqis who have high hopes for their country and do not want to fall the way of sectarian violence or religious fundamentalism.  And it is worth listening to John Burns’ take on the current level of violence and the political environment in which all this is taking place.  His main argument is that, right now, American presence in Iraq inhibits the slaughter of Iraqi against Iraqi, Shiite against Sunni.  Here is what Burns told Rose:

“I think quite simply that the United States forces here — and I find this to be very widely agreed amongst Iraqis that I know, of all ethnic and sectarian backgrounds — the United States armed forces are a very important inhibitor against violence.  I know it’s argued by some people that they provoke the violence.  I simply don’t believe that to be in the main true.  I think it’s a much larger truth that where American forces are present, they are inhibiting sectarian violence, and they are going after the people, particularly al-Qaeda and the Shiite death squads, who are provoking the violence.  Remove them or at least remove them quickly, and it seems to me — controversial as this may seem to be saying in the present circumstances, while I know there’s this agonizing debate going on in the United States about this — that you hve to weigh the price.  And the price would very likely be very, very high levels of violence, at least in the short run and perhaps, perhaps - perhaps for quite a considerable period of time.”

“And there’s no doubt that the price of staying is very, very high in American blood, to begin with, and American treasure, too.  But it seems to me incontrovertible that the most likely outcome of an American withdrawal any time soon would be cataclysmic violence.  And I find that to be widely agreed amongst Iraqis, including Iraqis who strongly opposed the invasion.”

“General Lynch feels, as do the other commanders of the surge, that they have made substantial progress.  And that they’re likely to make more if they’re given time.  They know they don’t have beyond March of next year because March 31st, 08 is the deadline set by the Pentagon as a matter of troop limits to how long they can support the surge.  But they believe that if they’e given that amount of time, they can make a real difference in the levels of violence.  They’ll have more time to train up the Iraqi forces to come in behind them and hold these areas.”

Critics of this war, it seems to me, do not care to examine the horrific levels of violence being committed by Iraqi against Iraqi.  The daily bloodletting is a reminder, to them, of the wrongfulness of our initial incursion into the country and our extended stay, irregardless of our motives during this occupation.  I would go so far as to venture that American critics of this war feigned the same indifference to the enormities of Saddam’s murderous rule over his own people over the years.  Yes, the daily death toll in Iraq is gruesome.  But do you honestly believe that it measures up to the scores butchered by the Despot from Tikrit?  So many of his victims simply disappeared, found in mass graves like the Jews at Babi Yar or the Polish officers in the Katyn Forest.  And yet no one ever noticed or discussed the scale of these murders nor do the critics of the war wish to do so now. 

How can Senator Reid, Speaker Pelosi be so cocksure that the American engagement be severed so completely without the slightest concern of the coming bloodbath that will surely ensue?  How can they so blithely ignore the admonitions of someone with authority such as John Burns? 

Here is the video of Burns’ comments on the Rose program along with two other earlier interviews.  They are all worth watching and thinking about.  I urge you to do so.

This story involves the time that I personally transported a client to the Diagnostic Unit in Huntsville to begin a custodial sentence of 17 years for murder.  It all began when I moved down to the Golden Triangle back in 1986 from Amarillo.  Maybe I was tired of the routine here; maybe I thought that things would be different; maybe I just didn’t realize that things really don’t change just because you take out a new zip code.

I set up in Beaumont with an old criminal defense lawyer by the name of Joe Goodwin.  He was a minor legend down there, mainly as a result of his success on one particular case which he defended back in 1972.  The Jefferson County D.A.’s Office tried three times to put his client in prison for his role in the murder-robbery of an elderly antique dealer and her grandchild.  Joe’s client was tried twice as a party to first degree murder and on one count of arson - in each case, the jury (one out of Tyler, one out Belton and the other right there in Kountz [just outside of Beaumont]) returned a verdict of ten years probation.  When the arson trial concluded (that being the last of the three prosecutions), Goodwin had to call U.S. Marshals to escort him and his client out of the courthouse, so furious and dangerous the mob had become.  But I digress.

Joe had managed to parlay that success in 1972 into a vibrant practice over the next ten or twelve years.  But the booze, the fast living and shady investments stripped him of his health, resilience and savings.  I agreed to serve as an office mate because there were still people coming around wanting to retain Joe Goodwin, “that lawyer who got Paul Anderson off in the early 70’s.”  And that’s how Goodwin snagged the case of State of Texas v. Ron Dietz.  (more…)

Max Peck’s “confession” before the PCDLA webserver tribunal is instructive if only for one thing: the Amarillo Court of Appeals does indeed mean what they say when they warn of abatement in the face of a failure or inability to file timely.  The Court’s refusal to accept Max’s brief for filing and his being identified by name in the body of the opinion speaks for itself.  The Court has taken its gloves off.  These deadlines mean what they say.  You would never dream of failing to meet a deadline in federal court; it’s the same thing with the Seventh Court of Appeals.

Yet, Max’s description of the problems which constantly cropped up on his latest appeal out of Lubbock County highlight to what extent the appellate lawyer is dependent on third parties, namely the court reporter.  I find that the various district clerk offices are usually pretty good at preparing and filing the clerk’s records.  It’s usually the court reporter who lags behind with late filing.  Of course, those of us who labored under the old system remember how bad it was before the rules changes.  As hard as Max may find this to believe, back in the “old days,” the timely filing of the reporter’s record was the sole responsibility of the appellate lawyer which meant that he or she was constantly engaged in encouraging, wheedling, nagging, pushing or cajoling the court reporter to get the copy prepared for filing.  It was the appellate lawyer who was responsible for getting extensions of time filed and granted timely.  Remember that it could be worse.

Appellate work can be exacting and tedious, no doubt about it.  And when you’re working a case in a jurisdiction some distance away, like Max was on this latest case where he got burned, the lawyer is at a disadvantage because he is dealing with external events far away and beyond his immediate control.  It’s work that requires focus, concentration, attention to details and an ability to turn out good prose.  And for that, you should be well-paid, even by appointed standards. 

The defense bar continues to have more and more duties and responsibilities placed upon its collective shoulders.  With that comes the justification for pay commensurate with the skill required.  Remember that the next time you turn in the chit for payment and if you believe you got gypped, then you know what to do, I hope. 

My first capital case involved defending Hai Hai Vuong for having gunned down two fellow Asian gang members at a pool hall with an AK-47 in Port Arthur, Texas back in 1986.  For some reason, the case had political ramifications for the Jefferson County Criminal District Attorney’s Office.  Perhaps the rather large Vietnamese population there in Port Arthur had something to do with it.  I and Jim DeLee, my co-counsel, couldn’t figure it out.  All we knew was that we were shut off from any discovery whatsoever.  Aside from certain scientific testing results, a copy of the defendant’s statement, a copy of the indictment and a crime scene videotape, we were denied any review whatsoever of the State’s files.  Like the shady detective said in the intro to the cult film Blood Simple, “here in Texas, you’re on your own.”  We were forced to investigate the case from the bottom up, witness by witness.  It was no easy task. (more…)

They just don’t listen to me.  Yesterday, the Amarillo Court of Appeals abated and remanded the case of Danny Villa v. The State of Texas, No. 07-06-0270-CR for appointment of new appellate counsel.  Appellant Villa had appealed his multiple convictions of felony DWI, enhanced by two prior convictions.  Punishment was assessed at life imprisonment.  And Villa’s appellate lawyer filed an Anders brief.  Villa then filed his own “response” to his lawyer’s Anders brief, raising four issues which he argued had merit.  Obviously, the State sensed something going on because it filed a response to Villa’s brief. 

The State must have been onto something because the Amarillo Court concluded that arguable grounds for appeal exist.  It immediately removed Lubbock attorney R. Deniece Jones, Ph.D. (Ph.D.?) and directed the trial court to appoint a new lawyer to file a brief on behalf of Villa.  I don’t know about you but to me, if I’m in Dr. Jones’ position, it’s just flat embarassing that my client can spot a legal issue where I can’t.  Be good to yourself, take the time to read the record and lay off the Anders briefs. 

Trojan condoms have always been the subject of bathroom humor.  Ah yes, I can recall noticing the faint, circular imprint etched into the wallet, reminding the curious observer of evidence that the bearer always had a rubber stashed away for emergency, if the need arose.  But now Trojan finds itself in the eye of a swelling controversy over a new advertising campaign launched in Pittsburg and Seattle.

Trojan introduced a new commercial last month.  It was rejected outright by both CBS and Fox.  Fox, showing its true Republican colors, objected and based its opposition on the ad’s perceived message that condoms can prevent pregnancy.  Is that really a controversy?  Do we need to jumpstart the argument about the efficacy of condoms in helping to prevent unwanted pregnancies?  If this is not the case, then why would married couples use condoms?  Anyway, back to the subject.  CBS refused to run the ad, saying that it was not - get this - “appropriate.”  And this from a network that runs a sitcom in prime time in which the central character, played by lothario Charlie Sheen, serves double duty - acting as a father figure for a pre-adolescent child and nailing every hooker, barmaid, stripper or porn star he can maneuver into his bedroom.  And the Trojan ad is not “appropriate.”  So what exactly is in the ad? (more…)