Welcome to HackLawyer.net

The man who was responsible for navigating the American Civil Liberties Union through the turbulent 1960s, steering its focus onto criminal cases which could serve as a platform for signature issues, died on October 21 out in California.  Through the efforts of John de J. Pemberton, Jr., the organization doubled its size during his tenure as executive director.

Pemberton considered himself a militant civil libertarian who had to temper his aggressive tendencies with the more moderate factions which made up the ACLU board.  There was friction.  The first such scuffle involved the question of whether help should be extended to Vietnam War draft resisters, a fight that Pemberton won.  It energized those staff members working on the street level and reinvigorated management.  This led to an increased presence on the criminal docket for the organization.  With the advent of Miranda, Pemberton saw the ACLU as the vanguard in a jurisprudential revolution in criminal law.  Someone had to make sure that the lower courts enforced the law.

“We no longer think, that, because the Supreme Court says thus and so, the cop on the beat will behave that way.  But if the cop knows that the citizen he meets in the street will be able to get a lawyer and go to court, then his behavior will change.”

- New York Times Magazine interview, 1966

But the ACLU didn’t limit its representation to just the street people.  They took on controversial cases involving Black Panthers, the KKK, Lt. William Calley, Jr. of My Lai infamy. 

Pemberton was the son of a Mayo Clinic surgeon who graduated from Harvard Law School.  He served on the editorial board of The Harvard Law School.  So, he had all the credentials for a slot in the corporation; the table was set for this guy.  You name it.  But he chose himself, I guess.  He got involved with the ACLU fairly early on in the late 50’s, later serving as Chairman of the Minnesota branch from 1955 to 1958.  One of the cases he handled during those early days involved a white man who sued the local cemetery for breach of contract.  Turns out that the cemetery permitted burial of Caucasian only and it refused to carry out the performance on the man’s contract for burial of husband and his Indian wife.  Pemberton prevailed at trial on behalf of the couple.  So was launched a colorful career.

The daily check this morning on the Seventh Court of Appeals handdown opinion list showed Joe Marvin Slutz v. State of Texas lighting up the appellate scoreboard five times.  Five separate indictments, five sets of clerk’s records, five opinions, good grief.  I cringed when I saw the defendant’s name - Slutz.  Please don’t let it be a child sexual offense.  No such luck today.  Five aggravated sexual assault of a child, five life sentences and five stacked sentences.  Three isn’t enough. 

It’s an unremarkable opinion based a bad set of facts.  And the real issue about the case has nothing to do with sufficiency of evidence (overwhelming) or prosecutorial misconduct (none) or questionable testimony from a therapist (absent here).  Rather, the case is a good lesson for the practicing defense lawyer on how to avoid engaging in particular speech which not only opens the door to the introduction of extraneous offenses involving the defendant, it literally kicks the hinges off.

After the State finished its opening argument to the jury, defense counsel launched into the theme of the defense - that the testimony of the named complainant, a adolescent boy, was motivated and colored by money.  Counsel held up a copy of an original petition filed in the district court which the victim’s mother had filed against the defendant, seeking monetary damages for the assault on her son.  The lawyer invoked the memory of Oliver Stone’s “Wall Street,” citing Gordon Gecko’s invocation that “Greed is good, greed is the American Way.” 

Held: This specific claim of fabrication leveled against the named complainant may be rebutted with evidence of a similar sexual incident with an unnamed victim.  So, as a result, the State was permitted to introduce the defendant’s deposition, taken during the pendency of the earlier civil suit, as well as the live testimony of the second, unnamed child victim.  Not a pretty picture at this point.  But I do have one obvious question.  What the hell was Defendant Slutz smoking when he submitted himself to a civil deposition, making disastrous admissions while being deposed, under oath?  What lawyer in his or her right mind would permit the client to do this?  He had to be pro se.

No doubt defense counsel made some strenuous objections to all of this but some pretty basic awareness of what is going on down in Austin on this issue might have made life a little better for our defense lawyer, not to mention the wretched Slutz.  All the appeals court had to do was look no further than Bass v. State, 270 S.W.3d 557 (Tex.Crim.App. 2008), a case which I pegged as a “stealth” case right here in these pages some time back.  Bass holds for the brightline rule that an opening statement made by the defense can be exactly that: you may open the door to the introduction of extraneous offenses if they are relevant to rebutting a stated defensive theory.  And in this case, suggesting that the mother of the victim is engaging in fabrication-for-profit behavior does exactly that.  Repeated, similar conduct (here, Slutz’s assaults on another boy) make it less likely that the accusations are fabricated.  Perhaps that’s a good time to defer making an immediate opening statement after the State finishes.  Rather see how the State’s case-in-chief proceeds before making a final strategic decision whether to broach the subject - or not. 

But we sure know one thing now - any opening statement delivered by the defense that carries with it even a whiff of a suggestion that the child complainant is ”retaliating” against the defendant or that the prosecution is a “frame-up” or that witness testimony is best judged in the context of  monetary motivation, the lawyer has now opened the door to whatever evidence the prosecution has which might conceivably rebut the defensive theory.  And I’m not saying that whenever this happens, it must be wrongheaded or the result of sloppy lawyering.  Quite the contrary.  At some point in many trials, there’s no way you can avoid opening the door to this kind of damaging evidence.  It’s going to happen despite your best efforts.  But with knowledge of the Bass rule, the least you can do is take the time to consider whether an opening statement is really in the client’s best interest at that particular time.  See, you get something for reading this blog.  Not that it would have made a bit of difference to Slutz; what a name.  He was gonna get smoked regardless.  But it sure helps the lawyer from a psychological perspective when he can see what is coming, just before the wipeout. 

The Court of Criminal Appeals holds that under certain circumstances, the trial court may consider the contents of an unsworn police report, unaccompanied by oral testimony or affidavit, in denying a motion to suppress.  Hearsay is never an appropriate objection during Rule 104 hearings.  The relevant inquiry is whether the “evidence” is trustworthy and reliable.  Go to Significant Decisions page for discussion.

I briefly noticed on one of the local TV stations a piece about all that belt-tightening going on in Gray County as a result of the cost of the Levi King capital prosecution.  Seems that the county commissioners are making difficult choices about who gets what new dump truck, what county roads do not get paved this year and on and on and on.  And someone has to be blamed for all of this.  The defense lawyers are off the hook because they made it very clear they were ready to deal.  Judge Emmert can’t be held responsible since the decision to prosecute is well outside his bailawick.  That leaves the Gray County District Attorney to do some ’splaining.  Boy, if she lived in D.C., you could hear the clarion call: let the hearings begin.  Did I hear right that the price tag of $750,000 represents 10% of the opeating budget for the county?  Was that right? 

But even better was D.A. Switzer’s response to questions about the wisdom of seeking the death penalty against someone who was already under two life sentences without possibility of parole and particularly in light of Missouri’s stated intention to house King in their system, at their cost, provided King was assessed a life sentence in Texas.  What else could the beaten prosecutor say but dare naysayers and critics to look into the eyes of the victims’ families, including children, and tell them they were not entitled to their vengeance?  Not a particularly wise response to be sure and I’m wagering not an answer that will assuage a growing number of citizens who are beginning to question this monolith we call capital murder jurisprudence.  For all the hectoring and criticism dished out by the anti-death penalty people, the sheer cost and inefficiency of the system may do more to bring this Frankenstein monster to its knees. 

For years and in several posts put up right here, I have made my position known.  My opposition to the death penalty is not grounded on any moral principles but rather stems from a realization on my part, manifested over several years of participation in the process, that there is no real fair or equitable administration of the ultimate penalty to those who are deemed to be ”candidates.”  Moreover, aside from the fact that it is manipulated for a variety of political reasons and in recognition that some people are downright crazy and dangerous, thus justifying capital punishment’s primary raison d’etre - that of deterrence by removing the offender once and for all - the plain truth is that it doesn’t work.  All we have done is create a huge, make-work project that gives job opportunities to countless lawyers, support staff, police, investigators and lastly, let’s not forget all those wonderful experts out there who are savvy enough to take advantage of an environment that fosters all of these cottage industries.  What do you want to be when you grow up?  A mitigation expert?  A jury consultant?  A substance abuse expert? 

You know, the crazy thing about the King trial was for all the bad facts, there just happened to be one person on that jury who wasn’t going to sign off on the death warrant.  I can only imagine how chilly it got in that jury deliberation room with that lone holdout.  It makes me think about that classic Southwest Airlines commercial where the young woman, visiting with a friend, goes into the bathroom, rummages around the medicine cabinet, poking her nose into things she shouldn’t when all the glass shelves come tumbling down.  Wanna get away?  I’m sure that lone juror can relate.  So, for all the efforts from both the prosecution and defense, it turns out that one person simply refuses to go along and the defense gets what it wants.  We’ll never really know what the holdout juror based his or her decision on but a pound to a ruble it’s just as likely it had nothing to do with the evidence at all.  Who knows?  And, for the unlucky citizens of Gray County who paid for all this, who cares?   

Just a few days ago, the Amarillo appeals court handed down its opinion in Mills v. State, slip op. no. 07-08-0348-CR, October 14, 2009 in which it reaffirmed its earlier holding in a case styled Brown v. State, 978 S.W.2d 708, 713-14 (Tex.Ct.App.-Amarillo 1998, pet. ref’d).  The maxim, which Hack will call the Brown rule, holds that any prosecutor who compares the conduct of a defendant to notorious criminals such as John Wayne Gacy, Ted Bundy, Jeffrey Dahmer and the like can expect the case to be reversed on return postage.  Reversals based on prosecutorial argument are rare these days but on this particular point, the Amarillo Court has now proven itself to be  consistent and firm. 

In both Mills and Brown, the Court found that the offensive argument  reversible given the following circumstances: 1) the prosecutorial comments were made immediately prior to the jury deliberating for deliberations; 2)  the trial court, in overruling the objection made, permitted the State to continue its argument, thus placing its stamp of approval to such reasoning and 3) the State emphasized the prejudical natue of the comments by invoking not just Jeffrey Dahmer or Ted Bundy individually but several infamous murderers and then comparing their collective actions to those of the defendant on trial.  The opinion was noteworthy for its observation that although a defendant is not entitled to an error-free trial, he is at least guaranteed a “tolerably fair” trial.  Allowing an assistant district attorney to get up and say these kind of things falls short of that minimum assurance of a “tolerably fair” trial and you get the feeling that the appeals court has delivered its final shot across the bow.  So, the case is reversed and remanded for whole new trial when the comments complained of were all so unnecessary for conviction.   

The Court’s direct reference to the Brown case brought a wry smile to my face.  The reason is simple.  After George Brown got his case reversed and remanded for new punishment trial only, who do you think got appointed for the re-trial?  (more…)

Howard B. Unruh, dead at 88

On the bright, sunny morning of September 6, 1949, Howard Unruh, 28, a quiet, reserved veteran of WWII artillary battles across Europe, walked out of his drab, three-room apartment in East Camden, New Jersey. He carried with him a fully loaded war souvenir Lugar pistol and methodically began to shoot people up and down the block.  After he had expended all the ammunition he carried with him, some thirty rounds, killing twelve persons in the process, he returned to his apartment.  Within minutes, he was flushed out after the police launched tear gas into his bedroom.  He was subsequently declared legally insane, institutionalized within the New Jersey state hospital for the criminally insane where he was kept up until 1993 when he was transferred to a geriatric center.  It was there he died yesterday at the age of 88.  So ended a saga that lasted for 60 years.

Unruh’s attack was focused primarily on his neighbors in the immediate vicinity who he believed were constantly “belittling” him and who were making secret accusations about his being a homosexual.  Among his victims were a husband and wife who ran a small drug store next door to his apartment, a tavern operator, a six-year old child getting a haircut in a tiny 12 by 12 barbershop and three unlucky occupants of a sedan which just happened to be stopped for a red light directly in front of Unruh’s apartment.  His rampage ended with a home invasion where he shot and wounded a 36-year old woman and her teenage son.  By that time, he was out of 9mm ammunition. 

After Unruh’s arrest, police learned from his mother, with whom he lived and relied upon for total support, that she had fled the apartment they shared earlier that morning because her son had been looking and acting ”strange.”  She indicated that he had a “eerie” look to his eyes and had made veiled threats against her life.  She ran down the street to alert her neighbors and call the police but fainted dead away before she could actually tell them of her fears.  This short delay allowed Unruh the ten minutes he needed to begin and complete his grisly work. 

After Unruh was taken into custody, he was subjected to intense interrogation by law enforcement.  He was cold and calculating in his descriptions of the shootings.  Police later learned that Unruh’s deadly marksmanship could be attributed to his having been certified as a sharpshooter in the military, not to mention his constant target practice with the 9mm Luger used in the attacks.  And there were other suprises the police found out about Unruh during questioning.  When the prisoner was removed from the chair he was seated in during interrogation, he left behind a blood stain.  Unknown to all, Unruh had been hit in the thigh during his shooting rampage by a neighbor up on the second story of a commercial building.  Unruh had been able to suppress all pain from the wound, so intent was he in carrying out his attacks.  Further, Unruh told them about a phone call he received in his apartment after he had completed his shooting and returned to his bedroom.  It turned out that a reporter with the Camden Evening Courier, upon hearing about the shooting and the gunman’s retreat to the apartment, looked up Unruh’s name in the telephone book.  He called the number - Camden 4-2490W - and incredibly, Unruh answered the phone in a calm, clear voice.

“This Howard?” the reporter asked.

“Yes, this is Howard.  What’s the last name of the party you want?”

“Unruh.”

The shooter asked, “What do you want?”

“I’m a friend.  I want to know what they’re doing to you down there.”

Unruh replied, “they haven’t done anything to me - yet.  I’m doing plenty to them.” 

“How many people have you killed?”

The man answered: “I don’t know.  I haven’t counted.  Looks like a pretty good score.”

“Why are you killing people?”

“I don’t know.  I can’t answer that yet.  I’ll have to talk to you later.  I’m too busy now.” 

The telephone banged down as machine gun bullets and tear gas cannisters banged about the tiny room.  When he was actually arrested and cuffs slapped on his wrists, one emotional police officer was heard to ask him if he was “some sort of psycho.”  Witnesses reported that Unruh stared cooly and confidently at the officer and said, “I’m no psycho.  I have a good mind.”

Unruh was later diagnosed as having paranoid schizophrenia and never stood trial.  His tenure at the Trenton Psychiatric Hospital was without incident where he was confined in a high-security unit until 1993 when he was transferred to a less-restrictive dorm setting.  His court-appointed lawyer for the past twenty years reported that he spent most of his time watching TV or sleeping but that he had spent some time collecting stamps.

Joseph Wiseman, “Dr. No,” dead at 91

Everyone will remember Wiseman as the evil Dr. No in the first James Bond movie by the same title.  And he was very, very good.  But film buffs also remember Wiseman for his earlier work in such films as “Detective Story” (with a young, dynamic Kirk Douglas), “Viva Zapata” and John Huston’s “The Unforgiven.”  His performances in the latter two films deserve special note.  He stands out and matches Marlon Brando every step of the way in “Zapata” as the dedicated agi-prop Bolshevik who joins in with Zapata and his rebel faction during the Mexican Revolution at the turn of last century.  But it’s his over-the-top portrayal of a crazed, ex-Union soldier who swears vengence on the Zachary clan in “The Unforgiven” that, to me, registers as his most eccentric, pleasing performance.  The film itself deserves special mention as well. 

You could say that “The Unforgiven” was the very first “spaghetti western,” shot a full four years before Sergio Leone directed Eastwood in “A Fistful of Dollars” in 1964.  Huston, who was mired in the nadir of a celebrated career in films, had exiled himself to Europe where it was the only place he could find work.  There, he took a film outline based on a novel by the same name which told the story of the Zachary family as they eked out a harsh living in the Texas Panhandle, just north of Amarillo, circa the 1890’s.  Huston managed to secure the services of an all-star cast including Burt Lancaster, Audrey Hepburn, Audie Murphy, Doug McClure, Charles Bickford, John Saxon (as an Kiowa Indian no less) and the ancient yet lively Lillian Gish.  They filmed in the Spanish Sahara, the same locale that would later serve as the venue for all of Leone’s Eastwood westerns, not to mention dozens and dozens of knock-offs as well.  The film works quite well, aided by a literate script, fine performances by all concerned and fantastic, on-location photography.  The real treat in the film is the night scene where Wiseman’s character, named Kelsey, is brought before a kangaroo court for dispensation of primitive justice.  His performance, just before the noose is placed around his neck, is memorable.  He and the film are worth watching.

Although no cause death was given, family members said that Wiseman had been in declining health over the past few years.  He died at his home in Manhattan yesterday.     

Two Amarillo lawyers, Bonnie Gunden (Federal P.D.) and Lendon Ray, prevailed within the last few days.  Bonnie won in federal court on a trial involving a felon in possession of a weapon while Lendon got an I.V. on a drug case in 108th District Court.  Go to the “Kudos” page for a few more details. 

Our new Supreme Court judge, Justice Sonia Sotomayor has already established herself as an aggressive inquisitor during oral argument.  At least, that’s the impression by regular court observers who noted her manner of interrogation of appellate lawyers during last week’s oral argument.  Whereas her predecessor David Souter was also known as an active questioner who tended to craft intricate questions, engineered to entice a lengthy response, Sotomayor sounds more like a courtroom cross-examiner.  Take for example her interaction with Maryland Attorney General Douglas Gansler who was representing that state in an appeal which examines the issue of exactly when questioning of a suspect may resume once he has requested counsel. 

Sotomayor:  “He said, ‘I don’t want to talk to you without a lawyer,’ correct?”

Gansler:  “Yes.”

Sotomayor:  “And the state doesn’t provide him with a lawyer, correct?”

Gansler:  “That’s correct.”

Sotomayor:  “All right.  So what gives him an understanding that one will be provided the next time he’s questioned?”

Gansler:  [No response.]

All in all, she fired nine straight questions at the prosecutor.  One of the next lawyers up after that had to field the off-the-cuff question from the Justice: “Are you sure?”  Am I sure?  Where am I? - the pantheon of appellate courts and “am I sure?”  Some other lawyer got accused of using “buzz words.”  And her appearance looked to be consistent with her business approach to the affairs at hand.  She ditched the white judicial collar she wore at investiture and instead wore just a plain black robe.  For my taste, much better and more dignified than that Howdy-Doody robe that Justice Ginsberg or now-departed Chief Justice Rhenquist donned from time to time.  I can’t wait for the first real clash between her and Scalia.  Who will emerge victorious with the beat-down?

For centuries, scholars and naysayers have argued that Shakespeare really didn’t write all those plays; that it was some other gifted individual who the Bard just covered for, much like the Woody Allen character in The Front.  Lately, and what I mean by lately is pointing to a period of the last thirty years or so, critics have argued that a previously unattributed play about Edward III, originally credited to Shakespeare, was in fact written by someone else.  So, what better way to determine if the play has all the unmistakeable characteristics of a Shakespeare play by comparing the manuscript with known Shakespeare works with the use of a computer program developed to root out student plagiarism.  A professor at the University of London did exactly that by comparing the language in “The Reign of King Edward III,” published anonymously in 1596, with known works of the master.  Application of the software, called Pl@giarism, turned up 200 matches of phrases of three or more words.  But the app also turned up over 200 matches to the work of Thomas Kyd, another Elizabethan playwright who, it is figured, must have collaborated with Shakespeare on the play.  Frankly, I’m embarassingly deficient when it comes to familiarity with Shakespeare, but is there any other play out there where he was known to have worked with anyone else?  Isn’t this a first?

Al Martino was a classic velvet-throated singer along the likes of Dean Martin and Perry Como who labored at his trade for over fifty years as one of the most recognizable Italian-American pop singers.  But he will be best remembered as the singer in The Godfather who appeals to mob for help in his best imitation of Frank Sinatra.  You remember him, right?  He’s the one that big-shot Hollywood producer Jack Waltz describes as the guy with an “olive oil voice and guinea charm” who ran away with one of his most coveted starlets, all to make Waltz “look ridiculous.”  Martinez died yesterday at the age of 82 in his boyhood home just outside Philadelphia, Pennsylvania.

Martino was an established crooner who left behind a string of hits dating back as early as 1952 when he recorded “Here in My Heart,” a song which rose to be number one in both the U.S. and Great Britain, an unheard-of accomplishment at the time.  (Incidentally, that was the number he sang at the Corleone family wedding which opens the movie.)  And even when the Beatles were changing the very landscape of popular music, Martino was busy putting out his own stock of songs which reconfigured classic Italian-American romantic ballad.  Between 1963 and 1967, he had nine - count ’em - nine Top 40 singles.  His “Moon Over Naples” became one of those songs considered the gold standard of lounge singers, not to mention the fact that it was recorded by both Elvis Presley and Wayne Newton.  And don’t forget his disco rendition of “Volare.”  Better yet, maybe we should.  But his career had its low points as well.  In 1979, he and his manager were arrested for shoplifting less than $100 worth of socks and shirts from a Massachusetts department store.  He was placed on probation and fined $300.

What no one knew about Al Martino was that he was ex-Navy who saw action during the battle of Iwo Jima, serving as a signalman on Mt. Suribachi.  He was wounded in the line of duty by shrapnel and subsequently returned stateside where he was honorably discharged.  Martino was a long-time resident of Beverly Hills, California and was last seen having dinner with friends just two nights ago.  At this point, there is no listed cause of death. 

During the last few years of his life, Martino had been outspoken about an inability to connect with a younger audience who he believed still hungered for romanticism in their music.  Ironically, he had just finished recording a collection of songs for an upcoming CD the day before he fell ill and died.  The last song he cut was Garth Brooks’s “If Tomorrow Never Comes.”