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Anybody who knows me also knows that I’m a devotee of the cinema; to think of the wealth of useless movie trivia that clogs my brain.  But when you’re sitting around and talking film with others, it’s fun to work up lists of the best movies of any particular genre.  Better yet, I like to think about shooting a remake and then re-cast the main roles with different actors.  What fun it must be to be involved in casting on film projects. 

The one that comes to mind and a remake that should have been produced was my idea to bring back the 1961 classic One Eyed Jacks, the only film that Marlon Brando ever directed (his production company initially hired Stanley Kubrick but Brando fired him after only one day of filming and took over the directoral reins).  My proposal was to move the action to New Mexico from California and, of course, keep the plot and characters the same.  But the real beauty was in casting.  Mind you, this was back in the early 80’s that we’re talking about here but I wanted Powers Booth (a Texan who grew up in Snyder) to reprise the role of Rio (Brando’s character) and Robert Duvall playing the part of “Dad” Longworth (Karl Malden), Rio’s outlaw buddy.  These fine actors could have breathed new life into a classic tale of betrayal and redemption.  The original movie is always worth watching, notably for Brando’s brooding performance, Slim Pickens’ performance in a rare “bad guy” role and Malden’s solid contribution as the outlaw-turned-lawman who has been successful at covering up his criminal past until Rio rides into town, threatening his gingerbread-house existence.  I think it’s the only western ever filmed that used the magnificent Pacific Ocean and all those enormous waves crashing in on the rocks as a constant background.  And check out how long Rio’s hair was in 1960, not to mention his serape, four years before Clint Eastwood traveled over to Spain to shoot Fistful of Dollars.  Which brings me to the subject of this post. (more…)

While engaged this afternoon in a telephone conference with Judge Clint Averitte and counsel from the State Attorney General’s Office concerning a non-death penalty writ I have pending in federal court, I brought up the case of Kenneth Eugene Foster v. Quarterman, a death penalty case out of San Antonio which has gotten a fair amount of attention lately.  Mr. Foster was the wheelman in a series of robberies there in San Antonio, one of which turned bad when Foster’s confederate, Brown, shot and killed the unlucky victim.  Brown and Foster were tried jointly and both were found guilty and assessed the death penalty.  Of course, what made Foster’s case unique was that he was a non-triggerman. 

The case was affirmed on appeal by the Court of Criminal Appeals but habeas relief was recommended by the Federal District Court out of San Antonio, noting that the jury failed to make the necessary findings that Foster either had been a substantial participant in the shooting or displayed a reckless indifference that life would be taken.  However, the Fifth Circuit reversed that recommendation and determined that the record adequately supported these factual findings.  After several years of appellate review, Foster’s execution was set for today, Thursday, August 30 at 6:00 p.m.

I brought up the case while in conference with both the judge and opposing counsel to illustrate what I thought was the key issue in the case, also commenting as an aside that he was scheduled for execution today at 6:00 p.m., when I was suddenly interrupted by State’s counsel and informed that Governor Perry had issued a commutation and reformed Foster’s sentence to life.  I was stunned.

What surprises me was not the commutation for a non-triggerman but the fact that it was issued at all, especially when a close reading of the Fifth Circuit’s opinion outlined the leadership role that Foster actually played in the shooting of LaHood, the victim, not to mention Foster’s participation in numerous armed robberies over a two-day period immediately preceding the murder of LaHood.  The Governor may have based his decision in part on the fact that the jury was erroneously charged on those factors which made Foster ”deathworthy” when compared with the minimum criteria as established by the U.S. Supreme Court in the seminal case of Tison v Arizona, 481 U.S. 137 (1987).  Still, when you look at some of the other death-row inmates who have been led to the gurney, especially those who were the recipients of shoddy lawyering or who suffered from such deficient mental as to be a functioning moron (for lack of a better, more fitting label), this commutation just doesn’t make that much sense.  If the only thing that distinguishes Foster from the rest who had a genuine argument for commutation was his status as a non-triggerman, then how can the new legislation calling for the death penalty for those convicted of repeat sexual abuse of minors ever pass constitutional muster?  How will that ever pass a proportionality analysis?  

Horace Rumpole, premier hacklawyer of The Old Bailey in London, England and the inspiration for the name of this site, always counsels his fellow hacks: never plead guilty.  Now although Rumpole never tried a case before a Panhandle jury or had a client with multiple violent priors, he would appreciate my similar advice to fellow trial lawyers: never plead “true” to the enhancement allegations in the indictment.  There’s just no mileage in rolling over and giving it up on the enhancement. 

How many cases did I try back in the ’80s and early ’90s where the client had a truckload of priors?  The first criminal case I ever tried to a jury, circa 1982, involved a committed burglar caught literally red-handed (actually he was nabbed in his work clothes, replete with gloves and burglary tools - whatever happened to the professional burglar?).  There was overwhelming evidence and if that wasn’t bad enough, he was life-enhanced.  The defendant was a very young 25 but by this time, he had already racked up three prior convictions and since two of them fit into the neat time sequence needed to make him life-enhanced eligible (”the second prior conviction must have been committed subsequent to the first having become final” - I memorized that formula), he was  indeed facing life upon conviction.  And mind you, in 1982, the criminal defense bar was laboring under the old automatic-life scheme, otherwise known as “the big bitch.”  A third felony conviction with two priors fitting the time sequence meant only one thing: automatic life.  Ouch.  There was no punishment hearing upon a verdict of guilty.  The judge simply lined up defense counsel and defendant and imposed the sentence: life in prison. 

So what the hell was I, green as an newly-picked apple, doing trying this kind of case, primed to lose my cherry on the courthouse wall?  Primed indeed.  Well, since the client refused to plead to anything, for God knows what reason, all I could do was prepare to try the case with no facts and no punishment evidence.  I did have this one piece of advice from my mentor, Phil Brown: don’t plead the client “true” to the enhancement paragraphs.  You never know what may happen to the State’s evidence in support of the enhancement allegations.  Besides, make them prove it up and make the jury go back to the jury room to render the verdict.  Don’t make it easy for them.

That’s still solid advice and after having come across a recent case out of the Texarkana Court of Appeals, I’m convinced that the practitioner simply can’t afford to do anything but counsel the client to plead “not true” to the enhancement allegations and then let the chips fall where they may.  In Reynolds v. State, 227 S.W.3d 355, the defendant was convicted of attempted indecency with a child and you would think that with that kind of conviction, being a third-degree felony, punishment wouldn’t be too harsh.  Wrong.  He’s life enhanced with a slew of priors.  At punishment, he enters a plea of “not true” to all the priors and the State presents its usual promenade of evidence - pen packets, fingerprint expert testimony linking the defendant with his known prints to the prints in the pen packets, cops giving bad reputation evidence, etc.  But trial counsel was able to elicit an important admission from the fingerprint expert.  He could not opine that the prints contained on three of the five judgments entered into evidence were one and the same to that of the known prints of the defendant.  Yes!  Although the prints taken by TDC personnel in the body of the pen packets were one and the same as compared with the known, freshly-inked prints of defendant at trial, there was no evidence to show that the prints on the majority of felony judgments could be linked to the defendant.  OK, that gives you something to argue.  And then a funny thing happened. (more…)

Did you hear the one about the Houston lawyer who agreed to take a pro bono case and it ends up costing him over $31,000?  Listen up.  Stephen McCleery is a Houston lawyer who accepted a referral from the Houston Volunteer Lawyers Program “(HVLP”), an organization whereby lawyers volunteer their time to assist low-income people with legal problems.  The referral involved a gentleman by the name of Alonzo Williams who had a legal dispute concerning defective home repairs and the financing on the home.  McCleery agreed to handle the case, including trial if necessary, on the come and memorialized that promise through what the HVLP called its Professional Services Agreement (”PSA”). 

McCleery dutifully worked the case for the next two years.  He filed a DTPA action and followed up with discovery, depositions and an amended petition.  When mediation failed to resolve the parties’ differences, the case was quickly set for trial.  Williams, whose wife had died during the litigation, now lived in Louisiana and drove over to Houston to meet up with McCleery on the eve of trial.  Their conference took place at a Luby’s Restaurant.  During the one-hour supper, McCleery produced an entirely different contract which allowed him a 40% contingency fee recovery of “all sums recovered.”  Williams had never before seen this document.  McCleery told Williams that he would have to agree to the new contract in order for the trial to proceed.  Under these circumstances, Williams signed the contract. 

At trial, Williams, through McCleery’s efforts, prevailed and obtained a jury verdict in his favor.  Following this, the parties settled the case, the terms of which gave Williams a cash recovery of $36,210 and debt forgiveness of $13,790.  However, when it came time to settle up between attorney and client, McCleery treated the cash and non-cash settlement elements as one and thus, took his 40% cut off the top of the aggregate $50,000.  He took $20,000 as his professsional fee, recouped $1,427 for expenses and tendered Williams the grand total of $14,783.  McCleery did not donate a dime of his $20,000 fee to the HVLP. 

Williams eventually found his way to the Office of the Chief Disciplinary Counsel and the grievance was filed.  A local grievance committee, working under the old rules, heard the case and recommended that McCleery accept a private reprimand and simply pay back the $20,000 to Williams.  They did not order that he pay back the expense money that he recouped out of his own pocket.  McCleery, obviously in a snit, rejected the recommendation outright and appealed the case to the District Court.  The Court then set the matter for bench trial.  It was tried in one day.  There were only two witnesses - McCleery and Williams. (more…)

If you will recall, I posted a blog back on July 17 about the developing technology surrounding the collection and interpretation of cell tower records for use in criminal trials.  Where this type of evidence has been used by the prosecution to rebut key portions of a defendant’s testimony pertaining to his whereabouts, defense lawyers have begun to latch on to the same evidence to corroborate alibis. 

Such was the case with criminal defense lawyer George Farkas who presented cellphone tower data to a judge in a Brooklyn court to show that his client was in New Jersey at the time of the victim’s shooting in East New York.  At first, the prosecution ridiculed his attempts to prove up the alibi.  But when the evidence was submitted to both the court and the D.A.’s Office, it proved so conclusive that the murder indictment was dismissed on the morning of trial, August 13. 

I would say this developing technology has a future so keep a keen eye open.

The next time business or pleasure takes you down to Houston, Texas, maybe it’s time to check out one of the city’s best-kept secrets.  Below the streets in the downtown district, there are nearly seven color-coded miles of tunnels connecting 77 buildings and they are teeming with restaurants, florists, shoe-repair stores, jewelers, pharmacies, hair salons, copy services and even a bank.  Business is conducted in dry, chilled-air comfort.  With daytime temperatures hitting 101 or 102 amid the oppressive humidity, these tunnels have become increasingly popular.

These tunnels were not centrally planned.  They are not connected to a transit network.  They are maintained by private interests, not the government.  Each segment is controlled by the individual building owner who decides just who gains access to the tunnels during business hours.  At nighttime and on weekends, they are locked down.  Some portions, like the tunnels underneath the Enron Building, are simply closed off to the public, like the cursed Utah mine of late.

And if you really want to get to know the tunnel system, you can chip in $10 and let Sandra Lord, otherwise known as the Tunnel Lady, take you on the tour.  Ms. Lord is so efficient and charming in his sojourns through the maze that corporations pay her to orient new employees below ground.  Nearly 45,000 natives and visitors alike have taken her Discover Houston Tour since 1988.  And don’t expect to learn the maze quickly.  Intricate maps display the eight connected tunnel and skywalk systems but there are no landmarks or directional clues.  Nothing says east, west, north or south.   You have to memorize the individual quirks of each system.  Even the Tunnel Lady can get lost from time to time. 

So, if you decide to check it out, remember that the three main sections of the tunnel system are connected under the building at 919 Milam in downtown Houston.  You’ll be amazed at the size of the tunnels and the diversity of commerce offered below the ground. 

Boy, the fixes that we criminal defense lawyers put ourselves in.  The Court of Criminal Appeals issued a per curiam order yesterday which illustrates why lawyers are from time to time their own worst enemy.  In Ex parte Kendrick Mathis, No. WR-63,322-02, the Court remanded a writ proceeding back to the trial court for additional fact finding and for good reason.

Applicant contended in his writ that his retained lawyer abandoned him just prior to trial and as a result, his resulting plea of guilty to a charge of aggravated assault with a deadly weapon was involuntary because he did not believe he was given enough time to retain substitute counsel.  His claim was originally remanded to the trial court in 2006 for findings of facts regarding his allegations of ineffective assistance of counsel and that his plea was not knowingly or voluntarily made.  However, when the Court received the supplemental findings of facts and affidavits from the two lawyers who represented applicant through the entire ordeal, even more questions were raised about these lawyers’ performance and representations.  So, that gave rise to yesterday’s remand.

According to applicant’s retained lawyer, Kenneth Wincorn, he was unable to retain an investigator because the applicant was uncooperative and wouldn’t pay his fees.  As a result, Wincorn filed a motion to withdraw and asserted he had nothing to do with the ultimate disposition of the case.  This was all confirmed by the letters applicant attached to his writ application.  Wincorn’s motion to withdraw was filed by counsel on May 20, 1999.  Remember that date.  A small problem arises with Wincorn’s assertions that he was effectively relieved of command and had no further responsibilities on the case.  The habeas record showed that on June 29, 1999, the trial court approved Attorney Wincorn’s “Defense Claim For Services or Expense.”  Naturally, the Court in Austin wants to know why Wincorn was paid for his time and expenses out of county funds when he says he withdrew because applicant wouldn’t pay his invoice for services.  Hmmmm. (more…)

On TVG, my horseracing channel on the dish, they run the same ludicrous advertisement shilling Cashback, Inc., a shady loan outfit based in California.  Somehow, the company got a pathetic Gary Coleman (remember him?) to talk about how he needed a grand and Cashback came through for him.  Hell, he probably did need that thou.  As Gary is touting Cashback, the screen flashes up the required disclosures, superimposed over Coleman’s image for about four or five seconds.  The disclosures take up the entire screen, in fairly small print.  Now I have a DVR, which is the technology that The Dish Network stole from TIVO (and for which TIVO sued and obtained a $250,000,000 judgment against Dish in, of all places, a Marshall, Texas federal patent claims court - my hometown - but that’s another story).  It’s a very handy tool to use at moments like this. 

So, this afternoon, while awaiting the Pacific Classic, a great race run at Del Mar Thoroughbred Club (don’t ask me how I did), I decided to run back the ad and actually take time to read the fine print.  And this is what I read, although at first, I couldn’t believe it.  The disclosure sets out the approved APR on a hypothetical loan of, say, $2,600.  Are you ready?  The APR on the loan is 99.25% and the payout on the $2,600 loan covers 42 months at $214.25 per month!  I’m not kidding about this.  Just do the math.  Forty-two months at $214.25 comes to $8,998.50 in payment of an original loan of $2,600. 

Look, I’m not a consumer affairs lawyer nor am I sufficiently versed in what interest rates are considered to be usurious or not.  Can this be real?  Is this on the up-and-up?  Isn’t this illegal?  I made sure to run the recording back and I read it again.  What I read was what it said.  This vig would make Tony Soprano blush.  Come on, someone out there tell me this just can’t be.  How desperate can you be to get into this?  Of course, seeing how they run this thing ad nauseum on TVG, maybe it makes sense.  Boy does that only add to the stereotype of the dissolute gambler.

A recent addition to the Voice for the Defense, the monthly publication of the Texas Criminal Defense Lawyers Association, is a column simply entitled “War Stories.”  Lawyers are invited to share with the readership anecdotes and tall tales about other lawyers’ deeds and exploits, much like you would hear in a saloon.  Ever noticed that no one ever lost a case when talking with other lawyers at a TCDLA seminar?

This month’s “War Story” is authored by a lawyer identified as Marvin Foster.  Now I looked up Marvin Foster in the TDCLA Directory for 2006-07 and he is nowhere to be found.  The State Bar website lists him as a practicing lawyer out of San Saba, Cherokee County.  He was licensed in 1954 which makes him what I call a ”yellow-pad lawyer.”  You know the type.  They moan about the path the law has taken, wax rhapsodic about those days when a lawyer could take $500 down on a murder case, stretch it out to infinity and then, if needed, pick up the old yellow pad on the way to the courthouse and try the case by the seat of the pants.  If only it had been that way.  Mr. Foster’s “War Story” is a perfect example of  why those “good old days”  were “good” maybe for some folks and rotten for those less fortunate than the likes of Foster and his stellar clients. 

Mr. Foster tells about his professional relationship with a lawyer by the name of Nago Alaniz, now deceased I assume since Foster provides no other information on his status.  Foster prefaces his column by stating that he”could write a book of war stories about him [Alaniz] but it would have to sell as fiction.”  Mr. Alaniz’s primary qualifications for greatness seemed to be his penchant for obtaining hung juries and his having been acquitted in two criminal trials, one for perjury and the other for murder.  Foster also recalls that Alaniz had a “colorful career” and that the man had “lots of business and lots of money.”  I don’t know exactly what that last bit means because Foster doesn’t elaborate but it conjures up a guy taking in a lot of cash from very unsavory sources.  So much for the man’s c.v.

In the first of his two anecdotes, Foster describes a case in which he and Alaniz were representing a south Texas illegal charged with murder in Phoenix, Arizona.  Family and friends had come up with a “substantial fee so off we went.”  When appearing in the Arizona trial court, the district judge inquired about the lawyers’ qualifications which prompted a joke from Alaniz funny enough, according to Foster, to persuade the judge to admit both pro hoc vici, no questions (or procedure) asked.  Yeah, those were the days.  (more…)

Anyone who knows me knows that I love a good book.  There’s no joy quite like coming across a good read and savoring its prose, turn of phrase or mood.  And I remember how it was when I first picked up John Le Carre’s debut novel, first published in 1963, The Spy Who Came In From The Cold.  What a knockout book.  And was it good was because it dealt with the one device which spawned an enormous amount of good literature, some very good movies and sufficient political unrest to lead to its own destruction: the Berlin Wall (1961-1989) RIP. 

Many of you are just too darned young to remember the Wall.  But for me and those of my parents’generation, it was the defining mark of the world as we knew it - divided in two.  We, the West (good guys) versus the East (bad guys).  It made things so much easier to understand during our long Cold War.  And it was so easy to hate the Soviets and in particular, the Vopos, those guards who patrolled the Wall with those funny looking helmets.  We all know that hundreds of courageous people lost their lives attempting to cross the Wall to freedom in West Berlin and elsewhere in East Germany.  But ever since German reunification in 1989, historians there have been searching in vain for some official order issued from on-high which sanctioned all these killings.  It has gone undiscovered until now. (more…)