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The Cocoanut Grove nightclub, where Frank Sinatra and Sammy Davis, Jr. entertained starlets, politicians and Hollywood big shots, will be razed in November to make way for a school auditorium.  The nightclub is the last remaining structure associated with the fabled Ambassador Hotel complex which was a temporary home-away-from-home for every U.S. president from Hoover to Nixon (who else?) and where Bobby Kennedy was assassinated by Sirhan Sirhan.

The L.A. Board of Education had originally voted to preserve the nightclub but then reversed itself, finding that it was too structurally weak to withstand an earthquake.  The Board, in an act of appeasement to many who lobbied to keep the famous hang-out, voted to build a replica alongside the new auditorium.  Conservationists pointed out that the Board was destroying a living piece of history.  The Grove not only played host to politicians and the like but was a venue for such varied artists as Judy Garland and F. Scott Fitzgerald.  So, gone is the Rat Pack, the Sands Casino and Hotel and now the Cocoanut Grove.  What’s next?  Maybe the old veneable Brown Derby in the heart of Hollywood.

The Amarillo Court of Appeals issued a short abatement order this morning in the case The State of Texas v. Juan Manuel Ramirez, no. 07-07-0119-CR.  The State is appealing a suppression order entered by Judge Roberts of the Potter County Court at Law No. 1.  Within twelve days after the trial court granted defendant’s motion to suppress, the State filed a request for findings of fact and conclusions of law.  However, the trial court never entered such requested findings and conclusions nor did it announce the basis of its ruling on the record.  Thus, the appeal has been abated and sent back to the trial court for entry of those findings and conclusions.

The defense used to be able to get away with this, meaning that whenever we got that rare bird of an order from a trial judge suppressing evidence, we could lay back, do nothing and then watch the State try to argue error on the available record, all the while knowing that as long as the judgment of the trial court can be upheld on any theory at all, you (and your client) were in the clear.  No longer.  Now the law requires that upon request by the losing party on a motion to suppress, the trial court must make findings fact and conclusions of law sufficient to provide the appellate court with a basis upon which to review the application of law to the facts.  State v. Cullen, 195 S.W.3d 696, 699 (Tex.Crim.App. 2006)  So, it’s paramount that great care and attention be paid to those findings and conclusions.  And if you’re the defense lawyer fortunate enough to get the motion granted, be prepared to jump on those findings and conclusions immediately.  For God’s sake, don’t expect anyone else to do them for you.

And the lesson?  Very simple.  When in those rare situations where you’ve gotten a defense finding and the State is taking it up, you have to do everything to protect your ruling.  That means protecting the judge at the same time.  There was always one cardinal rule that that old darling Chief Justice Reynolds told me long ago: if you get a case reversed at the court of appeals level and the State files its motion for rehearing, always, always file a response to the State’s motion.  This usually guaranteed a prompt letter from the Court to the State’s appellate attorney overruling the motion for rehearing.  And why?  Because it showed the appellate panel which reversed the case  that the defense lawyer was doing what was necessary to protect his judgment and the court that issued it.  Remember that and take a little extra time when drafting those findings of fact and conclusions of law.

Today was submission day at the Court of Criminal Appeals and it was indeed a busy day at the old palais de justice.  I’ll need some time to sit down and digest what I’ve run off but there is one case in particular I want to comment on right here and now.

The Court affirmed a capital murder conviction and death sentence in Gallo v. State, slip op. no. AP-74,900.  Appellant raised thirteen points of error, among them complaints about the procedure whereby juries pass upon mental retardation issues and the trial court’s refusal to admit a defensive expert’s testimony regarding risk assessment and infanticide profiles.  Both of these points merit reading and I encourage the capital practitioner to do so.  But I want to discuss Appellant’s eighth point of error.  There, he complained that the prosecutor’s use of profanity denied him due process.  Below are excerpts from the opinion highlighting those arguments made the subject of this complaint:

[PROSECUTOR]: This focus on Cristina and the 911 calls, I haven’t got a clue what [defense counsel’s] clue is about on that one.  I mean, come on, the 911 numbers, a hang-up call, what does that tell you?  He had a hypothesis like he does most of the time with Mr. Sanchez - Dr. Sanchez, that the 911 calls are land lines over here while the 20-minute gap is over here (indicating).  Where in the hell is the evidence on that?  There isn’t any.  It’s his theory to run you down a rabbit trail so you’ll lose focus of Tomas Gallo.

[Defense counse objects, objection sustained, jury instructed to disregard, motion for mistrial denied.]

[PROSECUTOR]: . . . Alexis didn’t name anybody else as being present in that home when her sister was murdered, not a one.  The only one mentioned was Tomas Gallo, the only name given.  It doesn’t take a rocket scientist at that point to figure out who your suspect is, and it kind of helps when you’ve got an idea who you are looking for and the son-of-a-bitch is running -

[Defense counsel objects, objection sustained, jury instructed to disregard, motion for mistrial denied.]

[PROSECUTOR]: When he’s the one running, hiding in a car two streets over and he’s smoking marijuana and he’s eating pizza . . . That baby was laying there, like he says, it was for that 20 minutes worth of phone calls.  How did — why didn’t he dial 911?  Why didn’t he dial 911?  H didn’t dial 911 because he is the killer.  He’s thinking, oh shit, what have I done? What am I going to do now?

[DEFENSE COUNSEL: I object again –

[THE COURT]: Sustained.

[DEFENSE COUNSEL]: I ask the jury be instructed to disregard.

[THE COURT]: [Prosecutor], please refrain — please use proper language.

[PROSECUTOR]: Yes, ma’am.

[Motion for mistrial denied.]

The Court addressed the substance of Appellant’s point with the following:

“Appellant’s argument on appeal is that the prosecutor “subjected [him] to epitaphs unworthy of courtroom decorum and in violation of the United States Constitution.”  His general objection at trial does not comport with his argument on appeal.  Further, he fails to explain on appeal exactly which of his federal constitutional rights were violated.  This portion of his argument is not preserved and is inadequately briefed. [citation omitted] Point of error eight is overruled.”

Not a single word about the fact that the basis of the objection was so obvious that the trial court didn’t need specificity to know why defense counsel was objecting.  And we all know why the trial court immediately sustained the objection.  But what’s more aggravating is not a single word of criticism about the prosecutor’s loutish behavior and use of profanity in the courtroom.  Not a single word.  Can you imagine the hue and cry if this had been a criminal defense lawyer referring to a law enforcement officer, a prosecutor or State’s witness as a SOB?  If he had used the s**t word in some descriptive form?  I venture to say he would have been immediately held in contempt.  If I’m wrong on that, he sure would have been put in holding cell for the second and third use of profanity.  There wouldn’t have been any feeble remonstration from the bench, such as ”please use proper language.”  And I don’t think you wouldn’t have heard the end of it from the Court in Austin either.  I’d go even further to say that the matter might well have been turned over to the Office of the Chief Disciplinary Counsel for investigation of disciplinary rules violations.  In other words, at the risk of offending the bench and bar, there would have been a lot of squealing like stuck pigs from various quarters if this had been a criminal defense lawyer.  But it wasn’t and the whole thing is reduced to something less significant than a footnote.  Go figure. 

It all reminds me of the great quip from an old LA County criminal hack who was asked about what things were really like in the criminal courts while the OJ soap opera was toiling on.  His comment?  ”There are two kinds of justice down here - O.J. and no J.”  I’ll say no more for now.  

The Amarillo Court of Appeals handed down its unpublished opinion in Mendoza v. State, slip op. no. 07-05-0307-CR yesterday.  In an otherwise pedestrian case, one of the points of error does illustrate a common problem that seems to pop up from time to time.  We’ll briefly look at that but first, a very brief factual into.

Defendant Mendoza was charged and convicted of aggravated assault against his mother.  The indictment alleged he used a deadly weapon, a handgun, in the attack.  The jury found him guilty and assessed the maximum sentence - 20 years and the maximum fine of $10,000.  They were properly PO’d.  Appellate counsel Joe Marr Wilson, doing yeoman’s work, raised five points of error on appeal.  They involved sufficiency of the evidence underlying the deadly weapon finding, admission of photographs, admission of the complainant’s written statement made to the police and admission of an audio recording between defendant and his mother.  The Court’s analysis in its overruling of these points plowed no new ground.  But its discussion of the fifth point of error drew my attention. (more…)

I’m showing my age because I remember a lot of things about the year 1967.  I was 15 and things were changin’, they were.  I scribbled some notes about that year sometime last week, thinking about this post.  Here’s what I put down.  First, the films of that year.

The Good, the Bad and the Ugly - Sergio Leone’s final homage to the Western and the nightcap to his “Man With No Name” trifecta.  Eastwood never, ever looked better.  You should read his and Eli Wallach’s comments on how differently the Italians made movies, and in particular,  Westerns from the traditional Hollywood mode.  For example, Leone had no qualms about the good guy shooting first.  Most importantly, he was the first to break the unwritten Hollywood taboo which prohibited the viewing public from actually seeing the gunman get shot.  Up until Fistful of Dollars (1965), you only saw the result of the shooting but with Fistful, followed by For a Few Dollars More and GBU, the full horror of a gunshot death was revealed.  It wasn’t pretty and we loved it.  And man, those close-ups.

The Graduate - it still holds up so well after 40 years.  I sat down to watch it again the other night and it resonates.  What did we really care about the graduate?  Mrs. Robinson was the story here.  What a performance by Anne Bancroft, not to mention Murray Hamilton as Mr. Robinson, one of the greatest character actors who ever graced the scene.  Try to recall him in The Hustler (1961) as the genteel Louisville landed gentry who hustled Paul Newman into a game of billiards, only to have the scam blow up in his face to the tune of $12,000 or as Larry, the mayor in Jaws (1975).

In the Heat of the Night - As corny as a lot of people thought this film was, it still works.  That’s mainly because of the strength of the idiosyncratic performance of Rod Steiger as Gillespie, the town cop who initially suspects Sidney Poitier, another cop from Philadelphia, of murder in a small southern town.  Never mind that the movie was shot in Illinois.  It’s Steiger’s performance that’s the key.  I’ve never seen anyone who could chew gum the way he does.  And the way he cajoles the operator when placing a call to Philadelphia: “Could you please try to get me long distance?”

The Trip - Peter Fonda did make other movies besides Easy Rider.  Here, he drops LSD for the first time.  If I remember correctly, Elizabeth Perkins had a role.  I remember that this was the first film that had some serious sex scenes in it, intense enough to send a 15-year old into real, first-time fantasies.  There were no ratings at this time.  That didn’t come along until 1969 and Midnight Cowboy.

Cool Hand Luke - Do I have to comment at all on this classic?  I know every line of dialog, chiefly because I have the screenplay.  But try to recall the supporting cast.  We all remember George Kennedy winning the Oscar for best supporting actor as “Dragline.”  But what about the rest of the case?  How about financial wizard  Wayne Rogers as “Gambler?”  J.D. Cannon as “Society.”  Harry Dean Stanton as “Tramp.”  Joe Don Baker as “Mechanic.”  Anthony Zerba as “Dog Boy.”  Luke Askew as “Boss Paul.”  Clifton James as “Carr, the Floor Walker,” Dennis Hopper as “Bugaluguts,” the resident moron.  And of course, Strother Martin as “The Captain,” the “mean, old son-of-a-bitch” who ruled the prison camp.  And maybe the most famous line in all of movieland?  Could it be that ” . . . what we have here is failure to communicate?”  Well, how many of you remember the entire soliloquy that the Captain gives when lamenting the coming fate of Luke?  Here it is in its entirety, direct from the original screenplay, September 29, 1966:

Captain: (to Luke)  You gonna get used to wearing them chains afters while, Luke.  But don’t you never stop listenin’ to them clinkin’.  They’re gonna remind you of what I been sayin’.  It’s for your own good.

Luke:  I wish you’d quit being so good to me Cap’n.

[The Captain feeds his fury staring, then reaches out his hand and Boss Paul lays the blackjack in it.  As  the chain guards finish and stands up, trembling with rage, the Captain takes a convulsive step forward and brings the sap down behind Luke’s ear.  As  Luke tumbles down the littered embankment toward the men:]

Captain:  Don’t you never talk that way to me!  You hear?  Never!

Captain: (to all the men) What we got here is failure to communicate.  Some men you just can’t reach.  So you get what we had here last week.  Which is the way he wants it.  Well, he gets it.  And I don’t like it anymore than you men.

OK, that’s the official dialog.  Take it to the bank.  And how about those cool reflective sunglasses worn by Boss Godfrey that became the rage for the next forty years?

Two For The Road - Stanley Donan’s very tasteful “buddies on the road” movie which was a tad ahead of its time.  And was there ever a better team in their magnificent 30’s than Albert Finney and  Audrey Hepburn?  What a great couple to watch.  One of the best jobs at film editing that I can recall.

And what about rock? (more…)

I’ve always been of the opinion that Columbia University was one of the premier institutes of higher learning in this country.  There was a time, as a kid growing up in East Texas, that the idea of attending school there was a real dream, an aspiration to pursue.  I have to say that the events of the last few days concerning Columbia’s invitation to Mahmoud Ahmadenejad, “President” of Iran, to speak on campus has dimmed my respect for the school.  And it’s not the mere idea of having him speak on campus that I object to.  That’s what free speech really is all about.  It’s the disgraceful way the University has handled the whole affair that curdles the stomach.  For example, consider the following:

First, students were not allowed to bring protest signs into the session on security grounds.  This mirrors the exact restrictions that Ahmadinejad and his fanatical supporters place on Iranian students should they wish to express themselves on their own campuses.  What a fine demonstration of free speech in our very own country.

Second, Columbia University policy requires that students there must give the school seven days notice to hold a protest rally on any given issue.  The administration gave the student body only four days notice.

Third, students were not allowed to ask spontaneous questions but rather, had to submit them in advance.  So, the administrative honchos get to decide what gets asked and what doesn’t.  Isn’t this how the Rush Limbaugh show operates as well? 

So, how about these questions for Ahmadinejad: (more…)

Be advised that I have written on this subject before (see post of March 18, “Knowing the difference between right and wrong - it’s in the genes”).  But I want to pick up the thead again and bear with me if this goes a little longer than usual.  OK, the basic question is where do our moral rules come from?  The most obvious answer and the one easiest to rely upon is God.  The Supreme Being, the Designer, Jehovah - however you want to refer - is responsible for the emplacement of the rules of morality.  Of course, this sets the stage for the wild assumption that those folks who don’t accept divinity as a governing concept cannot possibly be moral.  I’ve often said that religion’s cooption of the concept of morality serves as the greatest act of hijacking in mankind’s history.  So, let’s talk about an alternative to this unsatisfying explanation - morality arising from that of evolution.  How do we get there?

When evolution is brought up as a topic, the visceral reaction among those most opposed to this ultimate truth is to trumpet all those things that evolution doesn’t stand for.  First and foremost is the discredited notion that evolution propels itself forward on the concept of “survival of the fittest.”  It has nothing to do with that but rather, the ability of each organism, be it sea slug or human being, to pass on its respective genes to the next generation.  How is that carried out?  Well, Darwin discovered a thing called natural selection.  It is the great winnowing process which culls out those genetic constructions and mutations that don’t assist its carriers in passing on its genes.  Those genetic forms and mutations that do succeed in passing on genes are naturally the ones which survive in the environment and live to replicate for another day.  It has nothing to do with survival of the fittest.  It does have to do with selfishness but not in the ordinary sense of the word.  And what about animals, including us, that live in groups?  What rules are put in place to curb these selfish tendencies which, if not, tend to diminish the benefits of social living and thus, the chances of passing on genes to later generations? (more…)

While down in Lubbock yesterday, Thursday, the 20th, I attended the Lubbock Criminal Defense Lawyers’ Association meeting as a guest and as an associate member.  I certainly got my $20 dues worth.  The meeting drew between 35-40 lawyers (I counted heads).  There was a full agenda of topics and ongoing issues being dealt with and resolved by various contributing members.  The issues ranged from providing pro bono representation to Texas Tech students being hauled into Municipal Court on a variety of alcohol-fueled misdemeanors to emerging problems with the Lubbock judiciary setting all kinds of bonds on violent and non-violent crimes at what the organization believes to be at excessive levels.  Their committees actually meet, make proposals and apparently follow up on them.  And each chairman of these ad hoc committees are expected to report on progress at each month’s meeting.

I’ll tell you what else I noticed.  Whenever a lawyer was asked to speak to a given subject, everyone was attentive and quiet.  Members wanted to listen, ask questions or contribute if called upon.  And whenever the president called for volunteers on a new project proposed, several hands went up.  No one got drafted.  One other observation: I’d say up to 40% of the LCDLA membership is female.

Halfway through the meeting, the president called upon visitors or new members to introduce themselves.  There were three Texas Tech law school members who gave their names and each had previously been assigned a mentoring lawyer to work with them.  Now there’s a capital idea and one which the local organization should be jumping on.  After Danny Hurley, one of the best lawyers I know of in this state, took the time to introduce me to the crowd and even put in a shamless plug for the website (the LCDLA website has even been good enough to provide a link to hacklawyer), he asked whether the student members were required to ante up with dues.  Someone commented it was five bucks.  Hurley and another warrior paid the dues on the spot, not to mention another round for the visitors.  Now I’m beginning to see why they flex their muscle and influence in the Hub City.

Juanita Bynum used to be a flight attendant and hair stylist.  Somewhere along the line, she glommed onto the coattails of an influential black preacher, “Bishop” T.D. Jakes of Dallas, Texas in the early 90’s and parlayed her first rotten marriage and the lessons she learned from that into frank sermons about sex and the single girl called “No More Sheets.”  The sermon itself is said to have sold more than one million copies on video.  Ms. Bynum admonished black women to stop “sleeping around” and prepare for a lifetime commitment to one man, all the while dwelling on the difficulty of being Christian and single.  Her Chatawqua-tent performance included the bed sheets borrowed from a hotel maid as a prop to signify her supposedly promiscuous past.

Ms. Bynum became the darling of the Christian speaker tour and a regular host on Trinity Broadcasting Network.  She wrote religous books that pierced Publisher’s Weekly top 10 religion best-sellers and even cut gospel albums, like her saccharine-drenched “A Piece of My Passion.”  It went gold.  Black women across the country held “No More Sheets” parties to watch and discuss the sermon again and again.  She was considered to be the trailblazer of what is now being referred to as the “neo-Pentecostal” movement which emphasizes self-improvement over social issues like povery, crime and attending to the less fortunate.  She even referred to herself as a prophetess.  What she really did was cleverly tap into the one subject that people - all kind of people, be they Christian, Catholic, Jewish or agnostic - want to hear and talk about: sex.

Her star continued to rise.  So did her bank accounts.  In July 2002, she married a relatively unknown Pentecostal preacher from Washington, D.C. by the name of Thomas W. Weeks III.  There was a lavish post-marriage reception in 2003, complete with a whopping 7.76 carat diamond ring, an orchestra and over 1,000 guests.  It was shown live on the Trinity Broadcasting Network.  Gushed Ms. Bynum: “This was my once-in-a-lifetime wedding.  I did it this way because I plan to stay married.” 

The pair quickly capitalized on the marriage, publishing a book called “Teach Me How To Love You: The Beginnings,”  and conducting “relationship seminars” where Mr. Weeks presided over a graphic version of “The Newlywed Game.”  Ms. Bynum contributed to the operation by posing as “Judge Juanita” on “The Love Court” to hear grievances from grumbling Christian couples.  They started a church in a suburb outside Atlanta called the Global Destiny Church in which “Bishop” Weeks occupied the pulpit as the high priest and Ms. Bynum was the “first lady.”  Then came the multiple endorsements from Aretha and Oprah.  Obama had to get into the act and bring her on board his campaign. But it all came crashing down in an Atlanta hotel parking lot last month. (more…)

We’re all familiar with the single-issue voter.  He or she is the one who will base their vote upon the position taken by the candidate on a sole issue, be it abortion, the death penalty or lately, immigration.  And I’ve found mine - whether or not the politician-candidate is in favor of a mandatory airline passenger “Bill of Rights.”

Let’s face it: airline passengers are at the mercy of the jetliner pilot when the plane is stuck on the tarmac.  All those horror stories of planes stuck on the runway for up to five, six, ten and in one absolutely unbelieveable incident - for nineteen hours - have led to increasingly shrill cries by activists for Congress to pass a mandatory “Bill of Rights” to limit waiting in such situations to three hours and no more. 

In order to drive home their point, organizers held a demonstration on the National Mall in Washington D.C. today.  Using a portable vinyl carport painted to resemble the outside of a jetliner, volunteers sat closely packed like sardines on folding chairs as a recording played a looped tape of crying babies.  They even had something resembling a toilet, overflowing of course.  There was no food, no water, no peanuts, no goodies to hand out.  To make it even more realistic, it would have really been rich to have fake stewardesses hiding in the back of the demo, gulping down the remaining bottles of water and bags of chips.

A pilot who attended the event today explained that gates at most airports quickly fill up once a plane backs out and positions itself to take off on the runway.  That way,  the plane has no other gate to return to and allow passengers off.  To add to the woes, the new jets do not have their own built-in stairs to allow passengers off away from a gate.  In other words, it’s not the pilot’s fault if the passengers are stuck on the airplane for hours and hours and hours.  Airline corporations, according to the pilot, simply have not adjusted to the crush of airline traffic and provided the infrastructure needed to allow pilots additional options to deal with overcrowding and inability to take off on runways.  And what’s worse, if the plane does return to the gate, it loses its place in line instead of waiting through back-up departures.

As it now stands, you are a prisoner of the airlines once you step on that plane, sit down and buckle up.  Your fate is solely in their hands and there’s nothing you can do about it at all.  I remember reading about a couple of the more egregious cases of planes stranded on the tarmac for hours on end.  I don’t know about you but after eight hours stuck on a smelly, crowded plane with no bathroom facilities and no a/c, I’m afraid I would be forced to take some measures to deal with my suffering.  I don’t know exactly what that would be.  One of the big problems here is that Congress has enacted so many laws which have criminalized what would, under most situations, be purely human responses to these seemingly intolerable situations, people placed in these spots react at their own peril.  They may be charged with serious criminal offenses when they were simply trying to alleviate outrageous conditions.  How did we ever get to this point where we demand that Congress make the airlines recognize the fact that we deserve better than what we get from airlines on a daily basis and we accept it as the norm?

I don’t know about you, but ever since the meltdown involving JetBlue last winter, I have no qualms about driving to Dallas and other locales within 600 to 700 miles.  The hassle just isn’t worth it.