2008 Spring Defender

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TICKETS $90 members $100 non-members

Oiscount room rate available

LaNyen vf cite fJear JoAnne and Earl Musick

L(jecie Atltie1leehc Dick DeGuerin

tthJlAh J-teroeJ Alvin Nunnery Loretta Johnson Sarah V Wood

Chuck StanField and Bob WicoFF

crvrtk 1LiiJercy Steve McVic er

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2 From the President By Patrick F McCann

3 Winning Warriors

7 The Trial of Harry Potter By Joseph W Varela

2 15 Easy Steps to Your First Habeas Writ By Patrick F McCann

Checklist for DNA Cases16 By Patrick F McCann

17 The DA Debate

20 Motion of the Moment By Patrick F McCann

bull bull bull bull bull bull bull bull bull bull bull bull bull bull bull bull From the Editor By Shawna L Reagin

22 HCCLA 2007 Holiday Party

2

HCCLA ~~~~~~~ ~ 2007-2008

PRESIDENT Patrick F McCann

PRESIDENT ELECT Mark Bennett

VICE PRESIDENT JoAnne Musick

SECRETARY Nicole DeBorde

TREASURER Steven H Halpert

PAST PRESIDENT Robert J Fickmon

BOARD OF DIRECTORS Neal Davis Christopher Downey Todd DuPont II Tyler flood Tucker Groves Mark Hochgloube Randall Kollinen Feraz Merchant Marjorie Meyers Earl O Musick John Porras Carmen Roe Robert A Scardino Charles StonPield Amanda Webb O Tote Williams

PAST PRESIDENTS 1971-2006 C Anthony Frilaux Stuart Kinard George Luquette Morvin O Teague Dick De Guerin WB House Jr David R Bires Woody Densen Will Gray Edward A Mallett Carolyn Garcia Jack B Zimmermann Clyde Williams Robert Pelton Candelaria Elizondo Allen C Isbell David Mitcham Jim E Lavine Rick Bross Mary E Conn Kent A SchaPPer Don Cogdell Jim Skelton George J Pornhom Garland D Mcinnis Robert A Moen Lloyd Oliver Danny Easterling Wayne Hill Richard FronkoPP W Troy McKinney Cynthia Henley Stanley GSchneider Wendell A Odom Jr

Publisher HCClA Distribution 550 copies per issue Editorial Staff Shawna L Reagin For articles and other editorial Ads ampDistribution Shawna L Reagin amp Christina Appelt contributions contact Shawna l Reagin Design amplayout limb Design at 713-224-1641 To place an ad call

wwwlimbdesigncom Shawna l Reagin at 713-224-1641

SIDE T I cannot think of a time when more has happened to and

around our defense community in Harris County Out of

all the chaos and confusion one thing has happened that I

feel was worth all the difficulty we are a stronger and more

united group than we were

It has been a privilege to be your voice during this year It

has been an honor to stand up for you and speak out about you and the exceptional work

you all do It has been worth every bit of time spent to be able to let the public the bar at

large and the judiciary know that we stand together and that we speak for those who cannot

speak for themselves I was never so impressed with a group of individuals as I have been

with your Board and the Executive Officers who worked with me and helped sustain our

efforts throughout this year We all owe them a debt of thanks and I owe them most of all

in particular our unsung heroes Shawna Reagin and Christina Appelt who work tirelessly

behind the scenes to make sure you all have the best organization possible

It has been extremely humbling to be allowed to represent this organization I am grateful

for the chance to have served you all and it is my hope that I did a job of which you could

be proud

Thank you Patrick F McCann

Winningbull bullbull Imiddot

+ CYNTHIA HENLEY won post-conviction writ relief for her client in the 208th District Court on grounds of ineffective assistance of counsel for failure to disclose exculpatory evidence and actual conflict of interest on a plea of guilty The trial lawyer has since been disbarred Ex Parte Jorge Luis Rodriguez No AP-75877

+ NICOLE DEBORDE won a DWI acquittal in CCCL 10 in November 2007 despite very bad driving facts Then in February NICOLE led her team of DEREK HOLLINGSWORTH ANDY DRUMHELLER and BRIAN BENKEN to a self-defense Not Guilty for their client in a high profile murder case in the 232nd District Court The incredible NICOLE followed up by getting an aggravated sexual assault no-billed

+ A no-test DWI in CCCL 13 led to a two-word verdict for DANNY EASTERLING in CCCL 13 A theft case set for trial the same day was dismissed

+ In one stellar week ALAN PERCELY got a murder no-billed out of the 183rd District Court and an aggravated robbery dismissed in the 248th

+ Overcoming the militaryS zero tolerance policy on drug usc LT COL TERRI ZIMMERMANN secured dismissal of two drug use charges for a service member facing court martial after her creative filings and expert aggressive cross-examination at the motion hearing

+ MICHAEL PALMER saved his client from adjudication on aggravated robbery and felony evading charges by getting a Not Guilty on a possession of a controlled substance case in CCCL 14 MICHAEL and BYRON FULK followed this victory by obtaining an acquittal on a felon in possession of a weapon in the 56th District Court of Galveston County

+ NEAL THE REAL DEAL DAVIS saved a male babysitter charged with two counts of indecent contact and two counts of aggravated sexual assault for allegedly sodomizing at gunshyand knifepoint two 9-year-old boys when after 15 hours of deliberation the jury acquitted on all counts except for one indecent contact which hung with the majority voting Not Guilty in the 230th District Court

+ Working his usual magic DAVID MITCHAM persuaded the jury to vote Not Guilty on a family violence assault case in CCCL 10 DAVID then topped himself by obtaining an acquittal on a murder case in the 183rd District Court immediately following victory on a 2-count manslaughter trial in the 314th juvenile court [he reportedly did not even have time to change his suit]

+ Since the accused never received the reqwsIte notice JED SILVERMAN convinced the jury to return a Not Guilty verdict on DWLS back in November of 2007 JED subsequently teamed with STEVE GONZALEZ in CCCL 13 to prevail on a motion to suppress a 16 breath test that was the result of an illegal detention Then JED battled to a 3-3 hung jury on a DWI in CCCL 8 in February 2008 March blew in an 8-hour Not Guilty for JED on a DWI in CCCL 8 where although there was a one-car accident there was no reliable evidence the accused was driving the car

THE DEFENDER 3

+ Despite the defendant being caught in the store opening packages with the merchandise in his pocket and testimony to that effect by HPD and the LPO BRIAN WARREN walked him out of the courtroom after five minutes of jury deliberation

+ After a PSI hearing that lasted all day with 15 witnesses for the defense CHRISTIAN CAPITAINE convinced the 262nd District Court to award his client a 10-year deferred adjudication for murder

+ It took only 25 minutes for the jury to return an acquittal on a no-test accident DWI in CCCL 1 for JOHNNY PAPATONAKIS JOHNNY teed it up again in CCCL 6 and fought off both judge and prosecutor to swing a hung jury on February 6 2008

+ AMANDA DOWNING stared down the prosecution and won total dismissals for her client charged with DWI-2nd offense and FSGI despite the fact of a major accident client fleeing the scene and admitting drinking for 12 hours just before the accident

+ On December 20 2007 STANLEY SCHNEIDER and SCOTT ATLAS were awarded the Order of May by the government of Argentina in a ceremony held at the City Hall Rotunda This honor is the highest civilian award given by Argentina and stemmed from STANLEYS and SCOTTS pro bono work on Saldano v Texas a death case involving State-sponsored testimony that Hispanic people are more prone to violence than others

+ TROY MCKINNEY successfully appealed the denial of GARY TRICHTERS motion to suppress in Justin Amador v State No 09-04-00507-CR delivered 121207 on remand from Amador v State 221 SW3d 666 (Tex CrimApp 2007) TROY and LEWIS DICKSON won a motion to suppress a 16 breath test in CCCL 5 on March 102008

+ A lengthy motion to quash the indictment based on the right to sexual privacy established by Lawrence v Texas led to dismissal of promotion of an obscene device charges in time for RANDALL KALLINENS client to enjoy the winter holidays with his favorite stocking stuffer

+ The sartorially resplendent GERALD BOURQUE in just one month engineered trial day dismissals of two DWIs and obtained a 5-minute Not Guilty on a no-test case in CCCL 15

+ JIM LEITNER achieved an incredibly good result for a client facing possible life in prison for causing an accident that burned to death a 2-year-old child and injured another persuading the jury to return a punishment verdict of 22 years in prison following the States pretrial offer of life and trial offer of 35 years The trial judge reportedly threw a tantrum in front of the jury and stormed off the bench Sigh

+ Confronting the first case prosecuted in Texas under Lillians Law which holds a person criminally liable ifhis dog attacks and causes serious bodily injury RAND MINTZER put together a grand jury packet that resulted in a noshybill In March RAND got a prostitution case in CCCL 4 dismissed the day of trial

+ JAN FRY won a Not Guilty in an evading case in the 180th District Court

+ Houston Texans player Chester Pitts had STEVE SHELLIST to thank for his grand jury no-bill on charges of felony evading following a traffic stop

+ Nine minutes was all it took for the jury to return a DWI acquittal in CCCL 12 for TYLER FLOOD even though two cops were caught flouting the Rule by one cop telling the other the questions TYLER was asking regarding the HGN the judge did not consider this to be a violation Huh TYLER continued his streak in February by winning a motion to suppress in CCCL 13 even though the defendant testified he had a baggie of weed hanging out of his pocket His lust for victory unsated in March TYLER forced the State to dismiss a DWI mid-trial after Judge Standley granted his motion to suppress the video and all SFSTs

+ GARY TRICHTER swept in a five-minute Not Guilty on a DWI case in CCCL 14

+ After the State engaged in a little vindictive prosecution of a bank robbery dismissed by the feds SARAH V WOOD took on the case pro bono and ultimately succeeded in having the state charges dismissed as well According to BRENT NEWTON SARAHS former teacher and the lawyer who handled the federal case Sarah found even more alibi evidence than he had and bravely stood up to threats to seek a life sentence at trial CASIE GOTRO helped SARAH in her efforts that freed an innocent man kept incarcerated for two years

THE DEFENDER 4

+ CASIE GOTRO proved herself again by taking a directed verdict based on lack of affirmative links for her client sitting on a sofa in front ofa Lifesavers tin containing crack cocaine from Judge Terry Flenniken of Caldwell County

+ WINSTON COCHRAN scored an appellate victory with John Robert Fischer P State No PD-0043-07 delivered 1162008 wherein the Court of Criminal Appeals held that a DWI cops dictated taped narrative of a stop is not admissible as a present sense impression exception to the hearsay rule

+ In the latest installment of the ongoing saga of US v Kevin Howard JACK ZIMMERMANN and JIM LAVINE persuaded the 5th Circuit to issue an order vacating Mr Howards convictions and granting him a new trial due to an erroneous honest services jury instruction

+ Five years after the motion for new trial based on ineffective assistance of counsel was denied BRIAN WICE succeeded in convincing the 5th Circuit to grant writ relief on a case where trial counsel admitted he goofed by leaving a sheriffs deputy on the jury but the Court of Criminal Appeals held the trial judge did not have to believe that uncontradicted testimony The 5th Circuit found this to be an unreasonable application of federal law since it was contrary to counsels admission and common sense

+ On February 15 2008 MARK HOCHGLAUBE wrangled a two-word verdict out of an aggravated robbery case that was supposed to be a slam-dunk for the prosecution Proving once again that he is a double threat MARK authored an appellate win in Rusty Bobby Russell P State No 01-07-00209-CR delivered 32008 reversed for Judge Elliss refusal to charge the jury on mistake of fact EARL MUSICK and KYLE VANCE were the trial lawyers who preserved error

+ The States 30-year effort to execute John Paul Penry finally ended with a life plea structured to guarantee that he is likely never released from prison thanks to a team consisting of lead counsel JOHN WRIGHT and co-counsel FRANK BLAZEK JULIA TARVER MASON DAVID LANE and DANALYNN RECER of GRACE [and doubtless many many others over the years]

+ Another multi-decade death case ended with a life plea in Miller-EI v Texas a case involving discriminatory jury selection by the Dallas County DA s office DOUG PARKS KARO JOHNSON JIM MARCUS NAOMI TERR RICHARD REYNA DANALYNN RECER and BILL HABERN were all members of the team that brought this to fruition

+ NORM SILVERMAN convinced the 232nd District Court to grant a motion to suppress evidence seized under a stale warrant

+ RONI MOST prepared a winning grand jury packet for his client charged with aggravated assault with a deadly weapon against his own son The complainant gave conflicting versions of the alleged event and RONI demonstrated that things could not have happened as described

+ CHRISTOPHER CARLSON and JOHN FLOYD did such a great job in a sexual assault trial in the 176th District Court that Judge Rains actually granted a directed verdict of Not Guilty This was yet another case where the investigator testified she did not need to interview witnesses other than the complainant or view the scene based on her experience

+ Despite not being allowed to impeach a witness with inconsistent prior testimony failure to charge the jury on self-defense and on suppression of an involuntary statement violation of Gaskin and much more YOLANDA CORDY finessed a hung jury 4-2 for Not Guilty in CCCL 5 on an assault case The visiting judge also would not allow YOLANDA to ask the jury about the issues even in view of 3 Dotes sent out during deliberations MARCUS ANDROGUE sat second and YOLANDA also thanks HELEN SIMOTAS GRANT SCHEINER and TROY MCKINNEY for their help during this frustrating experience

+ MATT HORAK walked away with his second acquittal in the 232nd in one month when visiting judge Mary Bacon granted a directed verdict for his client in an aggravated assault case

+ STEVE HALPERT got a Not Guilty on a DWI in CCCL 4 on March 112008

+ The Court of Criminal Appeals affirmed the First Court of Appeals ruling that the trial courterredbyinstructing the jury on the alleged lesser-included offense offleeing or attempting to elude a police officer in Quanell Xs trial for felony evading STANLEY SCHNEIDER and AMANDA WEBB handled the appeal Quanell X Abdul Farrakhan v State No PD-1984-06 delivered March 122008

THE DEFENDER 5

+ SANDRA MARTINEZ went in to CCCL 13 armed with pretrial motions case law and lots of advice and convinced the chief to dismiss her clients possession of marijuana case due to lack of affirmative links SANDRA thanks JIM SKElTON and MARK BENNETT among others for their help We are thankful that SANDRA is still around to practice law after a deputy identified her in court as the prostitution suspect during a prostitution trial in CCCL 8 where she and WILLIAM MCCLElLAN JR overcame the false ID for an acquittal for the real defendant

+ Over a 2-week period beginning January 8 ROBYN HARLIN achieved the no-bill of a student charged with felony possession of a controlled substance on school premises [client passed a Hulsey polygraph] dismissal of a carrying a weapon case in CCCL 6 dismissal of a juvenile clients possession of fake ID dismissal of an accident DWI in CCCL 10 and a pretrial diversion on a misdemeanor possession of a controlled substance

+ Judge Derbyshire granted a directed verdict for DAVE RYAN after the State failed to prove the alleged act of prostitution occurred in a public place as charged

+ Making us once again glad that hes now on the right side CHUCK NOLL heard a two-word verdict on an aggravated sexual assault trial in the 180th on March 142008

+ Even though the visiting judge denied him an Emerson hearing on the HGN FEROZ MERCHANT produced a Not Guilty on a no test no accident DWI in CCCL 11

FUTURE WARRIORS +

+ Mter establishing that the complainant had made allegations against every male she had ever known from a 10-yearshyold schoolmate to her 68-year-old grandfather ALLEAL and JOHN PARRAS convinced the State on trial date to dismiss charges of aggravated sexual assault of a child in the 262nd District Court

+ MARK BENNETT batted a home run on a DWI in CCCL 6 even though his hero allegedly ran from the police and fell down when he got out of his car

+ The Court of Criminal Appeals reversed the First Court of Appeals on a brief submitted by SHAWNA l REAGIN in Robinson v State 240 SW3d 919 (TexCrimApp 2007) holding that a trial courts ruling on a the merits of a pro se motion presented by a defendant represented by counsel is subject to appellate review

CONGRATULATIONS TO ALL THESE

WINNING WARRIORS

+ On March 6 2008 JOHNNY and CARYN JAMES and BEliNDA ALSTON welcomed baby PAPANTONAKIS and big brother XANDER daughter DREW ANN ALSTON on January added baby girl ZOE to their family 30 2008 at 1221 am ZOE weighed 7 lbs 95 oz and was 21

long

THE DEFENDER I

THEDEFENDER] SPRING 08

THE

LIKE THE ENGLISH TRADITION FROM WHICH IT IS DERIVED

AMERICAN CRIMINAL JUSTICE IS AN ADVERSARIAL SYSTEM

THE CRIMINAL TRIAL WITH WHICH WE ARE FAMILIAR FEATURES

ADVERSARIES ON A LEVEL PLAYING FI ELD PRESIDED OVER BY

A NEUTRAL AND DETACHED JUDGE ACTING AS REFEREE1 OUR

EDUCATION AND EXPERIENCE MILITATE AGAINST OUR IMAGINING AN

INQUISITORIAL TRIAL AS AN ALTERNATIVE IF WE WANT TO SEE SUCH

ATRIAL WE MUST LOOK TO FOREIGN NATIONS HISTORY OR IN THE

PRESENT ESSAY ART

In the fifth installment of the Harry Potter series2 the protagonist is tried for a crime The trial is in the form of an

inquisition rather than an adversarial action Lets examine this

trial with reference to our own experience

A brief review of the facts is necessary As the story opens

Harry aged fifteen is a student at the Hogwarts School of Witchcraft and Wizardry in Britain He is home with his

foster family for the summer vacation These are Muggles

that is people with no ability at the skills of wizardry3 Harry and his cousin Dudley are beset by dementors

bizarre and terrifying humanoid creatures who suck the souls

out of people The dementors seize the boys in an alley and commence to vacuuming With Dudley down for the count

Harry whips out his wand and produces a charm that puts the de mentors to flight The badly shaken boys continue on their

way home4

a OF

But it is forbidden for a student to perform magic away

from the school and in a few minutes an owl delivers a summons to Harry

DEAR MR POTTER We have received intelligence that you performed the Patronus Charm at twenty-three minutes past nine this

evening in a Muggle-inhabited area and in the presence ofa Muggle

As you have already received an official warning for

a previous offense under Section 13 of the International

Confederation of Wizards Statute of Secrecy we regret to

inform you that your presence is required at a disciplinary

hearing at the Ministry of Magic at 9 am on August 12th

Harry is thereby notified of the allegation against him and is given ten days to prepare for trial

The Ministry is a sort of governing body ofwizards which

has regulatory and judicial powers over the wizard world

up to and including the power of life imprisonment for the

most serious misuse of magic The penalty Harry faces for unauthorized use of magic by a student is confiscation of his

wand and expulsion from Hogwarts effectively ending his career as a wizards

On the morning of the trial Harry arrives at the

Ministry building in plenty of time for a 9 am docket call accompanied by the father of his best friend at Hogwarts This

man is a Ministry employee although not employed in any judicial capacity6 His friends father stops at the door to the courtroom and tells Harry he is not allowed in

Harry is directed to a chair equipped with chains As he sits the chains rattle a warning but do not bind him

THE DEFEIIDER 7

~ The court g~es ~ the record The presiding judge is Cornelius

Fudge Minister of Magic the two witches flanking him are

introduced as Interrogators They are Amelia Bones Head of the

Department of Magical Law Enforcement and Dolores Umbridge

Senior Undersecretary to the Minister There is a jury of about fifty professional wizards A court reporter is present to make a record of

the trial

To the utter surprise of all parties Albus Dumbledore introduces

himself as a defense witness He is a renowned wizard who is the

headmaster of Hogwarts school

It is important to note here that despite ten days notice of the

accusation Harry has done absolutely nothing to prepare for trial

He has neither sought nor heard advice He has made no effort to

interview or bring witnesses to court nor does it appear that he

has acquainted himself with the nature of the tribunal or with any

procedural or substantive law

Before the trial starts there has been a bit of chicanery

perpetrated against Harry The Ministry has changed the time of the

trial to 8 am The Ministry claims that they have that very morning

sent a notice of the change by owl but Harry did not receive it

There is an interruption and a side issue is developed one of the

Interrogators Bones is intrigued by the idea of a mere fifteen-yearshy

old student wizard conjuring a Patronus Harry testifies that he can indeed do so and the Interrogator allows that this is impressiveraquo

Harry takes advantage of this exchange and tries to seize the

initiative

THE DEFENDER 8

AN INDICTMENT IS READ OUT FROM APARCHMENT

International bull bull bull bull bull

bull middotI~mv interrogation of Harry begins

cross-examination

You are Harry James Potter of Number Four Privet Drive Little Whinging Surrey Fudge said glaring at Harry over the top ofhis parchment

You received an officialwarning from the Ministry

for using illegal magic three years ago did you notl

And yet you conjured a Patronus on the night of the second ofAugust said Fudge

Knowing you are not permitted to use magic

outside school while you were under the age of seventeen

Knowing that you were in an area full of Muggles

Fully aware that you were in close proximity to a Muggle at that time

bull

I did it because of the dementors he said loudly before

anyone could interrupt him again

Bones seems interested in hearing him out but the

Minister abandons any pretense of impartiality Ah Yes Yes I thought wed be hearing something

like this Hes been thinking it through and decided de mentors would make a very nice little cover story So its just your word and no witnesses a very well-rehearsed

story

Now Dumbledore breaks silence He informs the court

that the defense does indeed have a witness present The

Minister is discomfited but recovers and objects on grounds

of time

We haven t got time to listen to more taradiddles Im

afraid Dumbledore I want this dealt with quickly-8

But Dumbledore cites a Charter of Rights for the

proposition that the accused has the right to present witnesses

in his defense The witness is allowed to testifY At the

conclusion of her testimony the Minister comments on the

weight of the evidence

Not a very convincing witness said Fudge loftily

The Interrogator Bones finds the witness credible The

Minister then tries to hold that the behavior of the dementors

is not relevant But Dumbledore is ready with a statutory

defense and a proffer of admissibility

[T]he presence of dementors in the alleyway is

highly relevant Clause seven of the Decree states that magic

may be used before Muggles in exceptional circumstances

and as those exceptional circumstances include situations that

threaten the life of the wizard or witch himself or witches

wizards or Muggles present at the time

This is of course the heart of HarryS defense the Decree

provides for use of magic in self-defense and in defense of third

persons9

Now the Minister tries to introduce extraneous offenses

for the purpose of showing HarryS bad character 10 These are

allegations of HarryS previous misuse of magic to produce a

Hover Charm to inflate his aunt into a human balloon and

certain unspecified misdemeanors while at school Dumbledore

offers to call a house-elf instanter to refute the Hover charge

he notes that the Ministry let Harry off with a warning for

inflating his auntll and he challenges the jurisdiction of the

court over misdemeanors occurring at Hogwarts Dumbledore

further raises a blanket objection to extraneouses which are

not admitted and then rests

A few jurors vote to convict but most vote not guilty

Harry is acquitted

Lets analyze the procedure

First Harry has notice of

the alleged offense in the

summons and some time to

prepare for trial Although

a copy of the indictment

was not served along with

the summons itself give him

notice of the contents of the

indictment

The indictment12 elements not at all foreign

to the Texas practitioner There are allegations of a culpable

mental state a prohibited act a date upon which it was allegedly

committed and even a sort of jurisdictional enhancement

allegation Like a Federal indictment it names the statutes

allegedly violated The only thing missing is a venue allegation

and possibly the name of the Muggle in whose presence the

offense was committed but at any event the defense makes

no exception to the indictment13

The court appears to be regularly constituted not some

extraordinary ad-hoc tribunal It is called the Wizengamot

The Wizengamot is much more than a court it is no less than

the wizard parliament The presiding judge is the Minister of

Magic himself Sitting as a court it has more-or-less the same

criminal jurisdiction as our district courts

There is a basic separation of powers problem in the structure of the court We are not told in the books much in

THE DEFENDER 10

the way of detail of Ministry organization however it appears

that the functions of the legislative14 executive and judicial

branches are combined in one institution In other words the

Minister is an executive who also has the power of punishment

This is foreign to our system which embodies tripartite theory

ofgovernment 15 Although it may be argued that HarryS trial

is merely an administrative hearing the proceeding is referred

to as a full criminal trial

Perhaps the most foreign aspect is the inquisitorial

method used to develop the evidence This is perhaps the

fundamental distinction between wizard and Muggle criminal

jurisprudence The Minister rules on the admissibility of the

evidence but also crossmiddot examines the witnesses to prove a

casemiddotin-chief The Head of the Department of Magical Law

Enforcement-a sort of wizard Attorney General-acts as

Interrogator but also passes on the credibility of the witnesses

It is impossible to tell where one role ends and another begins

Another odd feature is the fact that the Minister and the two

Interrogators vote along with the jury

Although there is a Charter of Rights that appears to have

a status similar to our Bill of Rights it is not at all clear what

rights it grants to the accused There appears to be no right

to a public trial 16 We know that there is a right to present

defense witnesses and we can deduce from Dumb1edores

threat to produce the house-elf that there is some sort

of compulsory process 17 We do not know if there is

a right to counseJl8 If there were it is reasonable to

expect that the court would inquire of Harry a student

aged fifteen if he desired a lawyer but it is never

discussed On the other hand when Dumb1edore acts as

defense counsel the Minister makes no objection and indeed

acquiesces and treats Dumb1edore exactly as he would treat an

attorney of record

We can infer that there is a presumption of innocence

because the Minister questions Harry in an effort to draw out

incriminating statements rather than assuming that Harry is

guilty unless he can explain himself

We are not told directly whether Harry has the right

against self-incrimination 19 The court arraigns Harry and

immediately begins hostile examination Harry acquiesces

in the Ministers questioning The Minister makes no effort

to call any witness but instead relies on Harrys testimony to

establish the elements of the Ministrys case This procedure

strongly suggests that there is nothing in the Charter like the

Fifth Amendment

It appears that there is no separate system of juvenile

justice in the wizard world Any distinction between adult and

juvenile crimes may be reflected in the penalties Whatever

rights the Charter grants to adults it seems to grant to minors

as well20 Either because of his age or the relative lack of

seriousness of the offense Harry is served a summons rather

than arrested pursuant to a warrant and is not bound to the

chair during the trial21

There is no voir dire process for jury selection22 The

jury is already assembled when Harry enters the court and he

has no role in their selection The jurors are the Wizengamot

council and therefore the venire pool is not randomly chosen

from the general population of wizards

The Minister casually exhibits behavior such as pre-judging

the credibility of witnesses yet unheard and commenting

on the weight of the evidence which casts doubt on his

impartiality This seems to be normal behavior for the

presiding judge There are numerous instances of this in the

record and had it occurred in a Texas court an appellate

lawyer would have a field day23

On the bright side it appears that the Interrogators

are not necessarily toadies of the Minister The Interrogator

Bones Head of the Department of Magical Law Enforcement

is no friend of the accused but she does not hesitate to

disagree publicly with the Minister over his assessment of the

credibility of the witness and she steers the examination in

directions she wants it to go24

The trial is apparently a bifurcated proceeding Dumbledore

is successful in keeping out extraneouses which might be

admissible on punislunent but not on guilt The jury is asked

only to vote on guilt at this stage

There may not be a requirement of unanimity in the

verdict25 All we know is that a few jurors vote to convict

most vote to acquit and the courts judgment reflects an

acquittal

The proceeding under which Harry is tried is not entirely

without virtues It is not to be lumped in with Hitlers

Peoples Court (Volksgerichtshof) or the Stalinist

show trials Defendants have some rights familiar to the

Anglo-American practitioner But there is enough missing to

suggest that wizards have reason to worry about civil liberties

in Potterworld Perhaps those wizards concerned about

individual liberties should look to the Muggle courts of the

United States for guidance

1 In the Texas adversarial system the judge is a neutral arbiter between the advocates he is the instructor in the law to the jury but he is not involved in the fray Brown v State 122 SW3d 794 (Tex Crim App 2003)

2 JK Rowling Harry Potter and the Order ofthe Phoenix (2003)

3 The term Muggle is not pejorative

4 Rowling Ql2QL chapter 1

5 ll chapter 2

6 ll chapter 8 The events of the trial are related passim The chapter gives a complete record of the trial

7 Readers familiar with the story will understand that the Ministry had made it a priority to discredit Harry for reasons of highest-level politics

8 Texas law does indeed allow exclusion of evidence by considerations of undue delay Tex R Ev Rule 403

9 Tex Penal Code 931 and 933

10 Extraneous bad acts introduced solely to show character conformity is ordinarily inadmissible at the guilt stage of the trial ~~ Tex R Ev Rules 401 402 403 and 404 Montgomery v State 810 Sw2d 372 (Tex Crim App 1990)(en bane) Rankin v State 974 SW2d 707 (Tex Crim App 1996)(en bane)

11 Fighting words Harrys Aunt Marge had said with reference to

Harry and his deceased mother You see it all the time with dogs If theres something wrong with the bitch therell be something wrong with the pup - JK Rowling Harry Poller and the Prisoner ojAzkaban (1999) chapter 2

12 I use the term indictment loosely There is no reference to anything resembling a grand jury Probably the formal charge is more akin to an information

13 It is doubtful Harry could have shown harm even had he excepted to the indictment Gollihar v State 46 Sw3d 243 (Tex Crim App 2001) Fuller v State 73 Sw3d 250 (Tex Crim App 2002)

14 The onerous educational decrees after school starts are issued in the name of the Wizengamot Rowling Order ojthe Phoenix chapter 17 et seq

15 Montcsquieu De lEsprit des Lois (1748) James Madison Federalist No 47 (1788) US Const arts I II III Texas Const art II sect 1 Meshell v State 739 SW2d 246 (Tex Crim App 1987)

16 US Const amend VI Tex Const art I sect 10

17 ll 18 ll 19 US Const amend V Tex Const art I sect 10

20 Fundamental constitutional guarantees apply to juvenile defendants In re Gault 387 US 187 SCt 1428 18 LEd 2d 527 (1967) An excellent discussion with bibliography is found in Lanes v State 767 SW2d 789 (Tex Crim App 1989)(en banc)(juvenile arrest must be based on probable cause)

21 In contrast to the handling of accused adult wizards elsewhere in the books See eg JK Rowling Harry POller and the Goblet oj Fire (2000) chapter 30

22 Tex Code Crim Pro art 3517 ~ Chapter 35 generally

23 The trial court improperly comments on the weight of the evidence if it makes a statement that implies approval of the States argument indicates disbeliefin the defenses position or diminishes the credibility of the defenses approach to the case Clark v State 878 SW2d 224 (Tex App-Dallas 1994 no pet) A good discussion is found in Simon v State 203 SW3d 581 (Tex App-Houston [14th Dist) 2006 no pet)

24 The other Interrogator Umbridge is indeed a toady of the Minister Immediately after the trial she is installed as Inquisitor over Hogwarts with dictatorial powers Rowling Order oj the Phoenix chapter 15

25 The Texas Constitution has been interpreted to require a unanimous verdict in felony cases and statutes require one in misdemeanors Ngo v State 175 SW3d 738 (Tex Crim App 2005)(en banc) (citing Francis v State 36 SW3d 121 (Womack J concurring) (citing Tex Const art V sect 13 Tex Code Crim Proc Ann arts 3629(a) 3702 370345034shy45036raquo The US Supreme Court has held that unanimity in state verdicts is not required by the US Constitution Apodaca v Oregon 406 US 404 92 SCt 162832 LEd2d 184 (1972)

THE DEFENDER 11

Easy Steps TO YOUR

FI RST Habeas Writ By Patrick F McCann

THE FOllOWING IS PROVIDED AS ASIMPLE WAY TO ORGANIZE YOUR WORK WHEN YOU ARE DOING AHABEAS

WRIT UNDER ARTICLE 1107 OF THE TEXAS CODE OF CRIMINAL PROCEDURE IT IS NOT INTENDED AS A

LEGAL REFERENCE NOR AS AN INSTRUCTIONAL GUIDE HOWEVER ON THE KEEP IT SIMPLE STUPID OR

KISS THEORY THE AUTHOR BELIEVES THAT THIS COULD BE AUSEFUL GUIDE PARTICULARLY TO THOSE WHO

DO NOT TYPICAllY DO HABEAS WRITS AND WHO MAY BE ASKED TO WRITE ONE FOR ACLIENT GOOD LUCK

STEP 1 Dont panic Writs of habeas corpus are essentially a

way to attack the fundamental fairness of a persons conviction

and restraint of liberty They are ancient remedy and they are

covered in Texas State Courts by Article 1107 (and 11071)

and the Texas Code of Criminal Procedure

STEP 2 Read the statute I know this sounds silly however the statute

has a lot of useful things that can help you and organize your

thoughts and your legal research

STEP 3 Interview the client Trus is not a standard pretrial interview

You are not trying to gauge a defense at this point You

are instead trying to figure out wruch of the constitutional

grounds that are available to a habeas petitioner you can use

Typically the grounds you will encounter most often are

incompetence insanity and ineffective assistance of counsel

5th and 6th Amendment violations and occasionally cruel and

unusual punishment under the 8th Amendment These are

not repeat not items that were available at trial otherwise

someone would have raised them on direct appeal Your job

in doing a habeas is to reinvestigate the case and find out

if there were grounds under the Constitution that acted to

make your clients confinement illegal To that end you have ~- to go back and investigate the clients medical rustory service

records school and disciplinary records Ifhe has prior prison

time speak with the attorney at both trial and appeal talk

with jailers schoolteachers and family members and possibly

obtain the services of a mental health professional andor an

investigator You are not looking to come up with something

to convince a jury instead you are trying to convince the

Trial Court and the Court of Criminal Appeals by developing

something they did not know about that this man was not given a fair trial

THE DEFENDER 12

Habeas IS ACOMBINATION OF GOOD

DETECTIVE WORK AND LEGAL BRIEFING SKILL

STEP 4 Get the client to sign releases for his entire life They include

releases and letters indicating that the trial and appellate

attorney have to cooperate with you and turn over their files

releases for school records service records prison disciplinary

and medical records mental health records work records etc

You have to develop facts that were not put in at trial Many

times the only way to establish these things is by getting releases

from the client and filing requests for information under

either the Open Records Act or the Freedom of Information

Act These records are crucial to developing claims such as

incompetence or insanity We were able to obtain medical

records from one clients time in the marines that indicated he

suffered a traumatic brain injury during bayonet and punjee

stick practice This never would have come to light without

the releases and the records request

STEPS Get and obtain the record and read it Everything in the trial

record including pretrial settings docket sheets post trial

hearings and motions and the appellate brief are important

You are going to have to look at areas and read between

the lines to figure out what may not have been in the trial

record that you can develop You may need to talk with the

jurors particularly if you are faced with a client who was

unusually unpopular or has a history of illness or if there is

any indication from either juror notes the polling or any side

bar that was recorded that there was some irregularities in

the jury in either the jury selection or the jury deliberations

You may need to file a motion if it is a recent case to unseal

the jury information records

STEPS Establish a relationship with the trial attorney and the appellate

attorney You do not always have a claim of ineffective

assistance of counsel If you approach the trial attorney and

the appellate attorney in a frank and forthright manner and ask

their opinions about the case this can go a long way toward

diffusing hostility Most defense attorneys have no desire to

injure their client or to do anything other then be helpful

They want to help your guy They dont want to do it if it

means they are going to be attacked without grounds or have

their professional reputation smeared Their cooperation

perceptions and access to their files are critical to you being

able to create an effective application for habeas relief As

Grandmas says You get more flies with honey than you do

with vinegar

STEP 7 Make an investigation plan After reading the record talking

with the client getting the releases and talking with the

attorneys you should have a picture of the case not just the

trial but the case as a whole You should be starting to ask

yourself questions such as was my client really in his right

mind before or during the trial Was there someone else

involved in this case who was never charged or never appeared

Was there a witness whos testimony was untruthful Is there

some indication that a juror or jurors may have come to

their deliberations improperly Is there some evidence out

there that would establish that my client is actually innocent

of the charge Am I sensing that there was some prosecutor

misconduct in this case

Once these issues start popping up in your mind you

need to figure out how to prove them This is the fun part

of habeas work Habeas is a combination of good detective

work and legal briefing skill You have to figure out how to go

about presenting evidence to the court in the form of records

affidavits sworn statements or any way you can to convince

the court that you are entitled to relief As an example if you

believe that there is a mental health issue (a not infrequent

occurrence with our clients) that was not raised at trial or

not developed sufficiently then you could consider additional releases and requests for records in order to provide as much

medical documentation as possible and get the assistance

of a mental health expert both to evaluate your client and

to evaluate the records and what they show That mental

health expert can then deduce his conclusions and results of

his examinations to an affidavit that can be attached to your

THE DEFENDER 13




application for your habeas relief If your application results

in an evidentiary hearing then that mental health experts

testimony and the ability to introduce records in as evidence

may be key If you have an investigation plan all of this goes

much more smoothly and gives you an outline to focus on

STEP S Put down on paper what grounds you are claiming

This is a very effective way to test yourself and see if you

can actually prove what you are claiming Under each claim

of relief outline what types of proof you have to back it up

Remember the line from the movie A few good men It

doesnt matter what I believe - it matter what I can prove

Remember the burden is on you to establish that your clients

restraint of his liberty is unfair and unconstitutional You have

to show the courts that he is incompetent not simply raise it

as a potential defense You have the burden If you are raising

insanity it must rise to the level of insanity If you are raising competency at the time of the trial it must rise to that level

and since the legal test for competency directly relates to the

clients ability to help the lawyer and the clients understanding

of the nature of the charge the lawyers affidavit here would be

a key If you are raising ineffective assistance of counsel on any

attorney do not simply raise it without some kind of evidence

or proof This leads me to my next point

STEP 9 Get affidavits from the people involved in this trial including

trial attorneys and the appellate attorney Lets be clear on

this - one of the principal reasons that ineffective assistance

claims fail is that the moving party doesnt get any affidavit

from the person who was suppose to have been ineffective or

from a person who knew the person that was with them at trial and saw what they did As soon as an application raises

a claim of ineffectiveness that is unsupported by the trial or

appellate counsels affidavits the District Attorneys office

takes them into their warm embrace and shows them how to

defeat the evil client and bad writ attorney who are attempting

to besmirch their professional reputations Let me suggest

another tack to take if instead of simply raising the issue and claiming with the help ofa client with a clients affidavit which

may be less than credible that an attorney was ineffective

what if you were actually able to go speak with the attorney

and show them that if only the court had permitted adequate resources that they wouldnt have been ineffective Resources

like an investigator or a mental health expert who could have

realized these claims What if you were able to show that

much of these new pieces of evidence you are developing

were things that could not have been revealed through

diligent investigative work at the time because for instance they involved recantation by a states witness or evidence that

the prosecution withheld what if you could show the defense

attorney or the appellate attorney that there were things they

were kept from them In all fairness often times people are

attacked without good grounds in habeas writs for things

that they simply did not know The other thing you have to

consider when raising a claim of ineffectiveness is that there are

some issues that you are simply not going to be able to present

except by saying that it is ineffective counsel for either the trial

counsel or the appellate counsel to fail to raise it therein they

may have made a call or they may just not have been aware ofit or

they may not have been able to develop a record such that it was

at the time The point is that you cannot look at ineffectiveness

as an attack on a lawyer you have to look at it as a check on a

system where people are held wrongly

STEP 10 Pay attention to the time lines ofthe anti-terrorism and effective

death penalty act of 1996 This is a federal act that limits

federal review of state convictions and federal convictions as

well After direct appeal the general consensus is that you have

a one-year time limit to bring a state habeas action in order

to toll the one year statutory limit The time line is generally

considered to be either the time that the supreme court of the

United States refuses a petition for writ of certiorari or the

90 days following the mandate of affirmance from the Court

of Criminal Appeals during which you can bring a petition for

Writ of Certiorari This time line is a significant hurdle and

if your client has any hope of preserving a claim for federal

review under 28 USC Section 2254 then you must bring that

action within the one-year time limit

STEP 11 After you got you issues briefed and researched your evidence

collected so you can attach it to your application remember

that your client needs to verify the application under Article

1107 You must get him or her to sign and swear that all the allegations contained therein are true Failure to do this could

result in a dismissal of your claim You also need to make sure

that you attach copies of the judgement and sentence because

under Article 1107 there must be some evidence of a restraint

order or an order of confinement that fulfills the requirement

of a legal restraint

THE DEFEIIDER 14

I HOPE THIS PROVIDES YOU WITH SOMETHING USEFUL POST CONVICTION HABEAS WRITS ARE

CHALLENGING AND CAN BE ALOT OF FUN YOU GET TO PLAY PART DETECTIVE PART APPELLATE

ATTORNEY AND PART TRIAL LAWYER THESE COMBINATIONS OF SKILLS CAN CHALLENGE YOU

AND GIVE YOU ANEW APPRECIATION OF HOW TO AVOID PROBLEMS IN YOUR OWN PRACTICE

STEP 12 Dont think your job is done yet After you file the

application the District Attorneys office will get a

copy and then will file its response They will probably

also -file a proposed designation of a fact issue to be

resolved if it believes there is one Frequently these fact

issues involve mental health prosecutorial misconduct

or in effectiveness of counsel It is important here in

order to preserve your clients rights of review that you

also request designation of fact issues that you believe

warrant development either through further discovery

or evidentiary hearing It is also important that you

request an evidentiary hearing or further discovery at

every opporturuty so that you may preserve any federal

review that you have

STEP 13 Prepare for an evidentiary hearing If you get a hearing

granted do everything you can to prepare for it

keeping in rillnd that the burden is on you to prove by

a preponderance of the evidence that a constitutional

violation occurred or in a case of actual innocence

that your client was not guilty by presenting clear and

convincing evidence such that the court would not

have faith in the underlying verdict It is important to

develop a record here to make sure that everything is

recorded

STEP 14 If you have been through the court proceedings below

had an evidentiary hearing or been de rued one and the

court has recommended that your relief be derued the

final decision is still the Court of Criminal Appeals

Dont forget at this stage you still have options You

can ask for oral argument submit briefs to point out

why you believe the trial court was wrong or request

consideration and provide alternatives including your

own proposed findings of fact and conclusions of law

Make sure you object to any proposed findings that the

court adopts if they go against you

STEP 15 Dont forget to ask for help Some of the best habeas

practitioners in the state are located in and around Harris

County and they have generally always been willing to

answer questions or help new people get into this area

or do a writ If you carmot find someone local who has

done them and can advise you then try and get hold of

the PCDLA or your local bar association to see if you

can be referred If that fails then just keep asking until

you find a person who can assist you Two heads are

always better than one and two sets of eyes never hurt

(patrick McCann can be reached at (713) 223-3805 - 909 Texas Ste 205 Houston Texas 77002) THE DEFENDER 15

D PLUS THIRTY 16 _ If DA agrees to voluntary re-test prepare

transmittal order for shipment to your expert

17 _ Ifno evidence to test dont believe them and

repeat first fifteen steps

18 _ If 17 is actually true make certain affidavits in

place write client to prepare them for bad news

and prepare agreed findings for court to sign

19 _ If there is stuff to test and DA opposes test

prepare lengthy affidavit as to all the underlying

reasons why your guy did not do it and attach

all extraneous pieces of information [OR copies

photos witness statements record excerpts etc]

that support it and file with court as part of the

Motion for testing

TREAT THIS AS A ROUGH DRAFT OF THE WRIT THAT WILL NEED TO FOLLOW IF YOUR GUY IS ACTUALLY CLEARED

20 _ File and request hearing date from court

Whenever court or DA get around to dealing with

your pesky request

21 _ File brief in support keep it short

22 _ File Notice of Appeal if denied testing

23 _ If testing is granted file order for transmittal as

in 16

24 _ When testing results come back again ask

client why this DNA continues to be him

25 _ If DNA actually [or even arguably] clears

client or it does not support conviction file 1107

CHECKLIST for DNA CASES By Patrick F McCann

D PLUS FIVE 1 _ Write client and get their version of events

2 _ File Open Records request for DAs file and any

LEA files you know about

3 _ Pull and copy Clerks file check out trial record

if there was one prepared for appeal Read trial

record

4 _ Call and interview trial attorney re a)

identification b) type of crime c) issue on guilt

innocence d) request to review file

5 _ Call the clerks office for any physical evidence

maintained and inspect

D PLUS TEN 6 _ Prepare order for Preservation of Forensic

Evidence file and serve on all parties

7 _ Prepare objections to any destruction of forensic

evidence and file

8 _ Consider filing request for Brady v Maryland

disclosure

9 _ Make appointment with DALEA to copy

and obtain all relevant info especially OR photos

evidence custody logs scene video test results etc

10 Write client and obtain releases for his files

and all personal records and follow up with specific

questions Callinterview witnesses and if needed

get affidavits [alibi mistaken ID etc]

D PLUS TWENTY 11 _ Consider whether to approach DA reo

voluntary re-testing If already done ask client why

the DNA still comes back to him )

12 _ Identify and alert and price expert for retesting

or review of testing procedures

13 _ Prepare discovery order for court reo prior

testing procedures or for untested items

14 _ Demand affidavits from all whiny LEA

personnel who swear this stuff is not aroundlost

eaten by packs of roving dogssold to foreign

country

15 __ Ask client why his claim of consensual sex

with fourteen year old is helped by DNA testing


THE bull bull

On February 19 2008 HCCLA co-sponsored a pre-primary

debate among the Republican contenders to replace Chuck

Rosenthal as Harris County District Attorney South Texas

College of Law and KHOU Channel 11 joined us as partners

and the debate was held at the law school Democratic nominee

CO Brad Bradford was invited but did not participate

Greg Hurst anchorman for Channel 11 news moderated the

debate The candidates Jim Leimer Pat Lykos Kelly Siegler and

Doug Perry fielded questions submitted online to KHOU and

through HCClA Each candidate was given the opportunity to

APPROXIMATELY 250 PEOPLE ATTENDED THE DEBATE AND

HTTPWWWKHOU COMIVIDEONEWS-INDEXHTML

answer each question except for a segment where in each candidate

got to direct a question to the candidate ofhisher choosing

HCCLA Board member Earl Musick originated the idea

for the debate and he and daughterlaw partnerHCCLA

Vice-President JoAnne Musick worked tirelessly to

put it together in record time Sheila Hansel of STCL

provided invaluable assistance before and during the debate

Tate Williams Steve Halpert Feroz Merchant and Mark Bennett

all acted as escorts to the debaters helping them with various

logistics for the evening and assuring their overall comfort

COUNTLESS OTHERS HAVE VIEWED IT ONLINE AT

THE DEFENDER 17

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Motion OF THE Moment I By Patrick F McCann

NO 968719-A NO 740416-A In The Court Of Criminal Appeals In The 230th Judicial District Court Of

No Ap-74-983 Harris County Texas

Ex Parte Calvin Letroy Hunter

MOTION TO RECUSE JUDGE KELLER UNDER TRAP 16 COMES NOW the Applicant by and through his undersigned appointed counsel

of record Patrick F McCann and offers this his Motion to Recuse Judge Keller

In support thereof he would show this Honorable Court the following

That complaint is still pending before the Judicial Conduct Commission As such

this creates an appearance of bias and is a

The Applicants undersigned counsel ~ ground forrecusal under clearly established This complaint will likely not be resolved was a signatory like several hundred state and federal law When a judge is in the next several months and in the

other lawyers on a judicial complaint ~ shown to have some basis for rendering interest of fairness the Applicant asks

filed against Judge Keller for her biased judgment one must presume that Judge Keller be recused from any actions regarding the execution of ~ the process was impaired regardless of ~ and all proceedings associated with

Michael Richard the motivation Vasquez v Hillery 474 this cause

US 254 263 (1986) See Bracy v

Granunerly 520 US 899 (1997) see also Johnson v Mississippi 403 US 212

(1971)]

FOR THESE REASONS the Applicant respectfully prays that this Honorable Court will grant this Motion to Recuse and that

Judge Keller will remove herself in all proceedings associated with this cause in any and all other matter in which Mr McCann is counsel of record

Respectfully submitted

Patrick F McCann SBN 00792680

909 Texas Ave 205 Houston TX 770021 713-223-3805 1 713-226-8097 FAX

CERTIFICATE OF SERVICE r hereby affirm a true and correct copy of the following has been served on the Office of the Harris County District Attorneyis office via first class mail at 1201 Franklin Houston Texas 77002 on 200__

Counsel of Record

THE DEFEIIDER 20

FROM THE Shawna L Reagin Editor

One of several interesting developments to stem from Chuck Rosenthals unprecedented fall from grace has been the forced dialogue concerning allegations of both institutional and personal racism within the Harris County District Attorneys Office After Chucks emails were revealed to include some utterly tasteless missives about women and African-Americans we learned about inner-office code words and de facto policy encouraging the racially discriminatory use of peremptory challenges to rid jury panels of African-American venire persons These were hardly revelations to lawyers who have practiced in Harris COW1ty courts but for the first time the issue was broadcast to the citizenry at large Republican DA candidate Kelly Sieglers actions in the capital retrial of Howard Guidry fanned the flames of suspicion when it was reported that she justified the strike of a black male juror by claiming an agreement with co-counsel to eliminate any and all members of Lakewood Church while failing to strike at least two Caucasian members of the same congregation

At the candidates debate sponsored by HCCLA KHOUshyTV and South Texas College of Law Ms Siegler noted that defense coW1sels Batson challenge had been overruled by the trial judge suggesting that this vindicated her conduct As the transcript illustrates the visiting trial judge realized that the prosecutor had offered at least one patently pretextual reason for striking the juror but he still refused to grant the defense motion Given the claimed proprietary relationship between the D As office and the present judiciary this apparent shifting of the burden to the bench is problematic

The United States Supreme Court has recently again confirmed that it is serious about enforcing its holdings in BtJtson andMiJk1-E~ in Snyderv LouisiIJ7UJ 128 SCt1203 (2008) Snyder was a 2-day-long death penalty case where the prosecution struck all five of the blacks who survived challenges for cause The prosecutors reason for striking one of the black jurors was a resolved scheduling conflict despite accepting white jurors who had more compelling conflicts As the Court points out this disparate treatment signals p-r-e-t-e-x-t for those who remain unclear on the concept

Snyder is disturbing in that it invites continued reliance on demeanor both of the juror and of the lawyer exercising the strike Demeanor calls are entirely too subjective and offer the perfect subterfuge for those of a mind to discriminate

since the cold record cannot reflect how a person looks A few years ago one trial judge repeatedly interrupted a trial to claim that the sole minority juror was falling asleep when defense counsel countered this observation the trial judge lined up all of her employees and had them state on the record that the judge was correct If the defense is going to be gang-banged on demeanor calls to protect discriminatory strikes then it will definitely become necessary to videotape all voir dire proceedings - an idea whose time is long overdue anyway

The fact that a trial judge rules in favor of the State no

more bleaches the stain from the racially discriminatory use of peremptories than does the recent rubberstamping of this behavior by the appellate courts Instead this attitude signifies the chickens come home to roost By excusing blatant Batson violations for the past several years Texas courts have created a prosecutorial mindset that believes any rule violation that does not cause a conviction to be reversed is acceptable Win at any

cost has become prescription rather than proscription It is not the trial courts obligation to sua sponte seat any

minority juror who has been peremptorily struck by either party as has also been hinted by lawyers who should know better However the events of the past few months should serve as a wake-up call to the judiciary to cast more than a jaundiced eye to Batson challenges and not to automatically rule in favor of the State while ignoring arguments proffered by the defense It has become evident that many prosecutors throughout the nation do not W1derstand Batson perhaps by virtue of being brainwashed throughout their legal careers to believe that minority jurors think and react in a stereotypical monolithic manner that precludes guilty verdicts Many of the Harris COW1ty judges who are the direct product of the DAs office and had minimal ifany defensive or appellate experience have been loathe to extend thoughtful consideration to the

States discriminatory use of peremptory challenges It should not be sufficient for either prosecutors or trial

judges to define their conduct in terms of whatever is the minimum with which they can get by without inviting a reversal One never knows when legitimate appellate review will resurface

The times may be a-changin

The Editors opinion is purely personal and in no way reflects the viewpoint or position of the Harris Counry Criminal Lawyers Association

-raE DEFENDER 21


7 HOLIDAY P

HCCLAs annual Holiday Party vas December 62007 at The Social

on Washington Turnout was spectacular as was the weather which

easily accomodated the Carrabas catering served on the patio

In addition to all the usual fun and games HCCLA raised S700 for its

adopted soldiers in Iraq G Company 3rd Squadron 2nd Stryker Calvary

Regiment 1st Armored Division The group plans to use the money to

buy a set ofweights HCCLA will continue its fundraising on the soldiers

behalf at the annual banquet on May 8 2008

THE DEFENDER 22

HOLIDAY COMMITTEE TB Todd Dupont II Tucker Graves Q Tate Williams

UNDERWRITERS Corlar Law Offices Guerra amp Farah PLLC Habern ONeil amp Buckley LLP Steven H Halpert Musick amp Musick LLP Robert A Scardino Jr

SPONSORS Sam Adamo Adrogue Law Firm PLLC James Alston Gilbert J Alvarado Mack Arnold Brad Beers Mark and Jennifer Bennett Thomas S Berg Dean M Blumrosen Adam Banks Brown Sean Buckley Jay W Burnett Christopher L Carlson JL Carpenter Arnold S Cohn Paul J Coselli M Fox Curl Eric J Davis Nicole DeBorde Gordon Dees C Logan Dietz Christopher Downey Jeffrey Downing TB Todd Dupont II Danny Easterling Robert Eutsler Robert J Fickman Kevin D Fine Trent Gaither David L Garza Lori J Gooch Tucker Graves Juan L Guerra Jr Allen J Guidry Ronald N Hayes Thomas M Henderson Hinton Bailey Bond LLP Bo Hopmann III Barbara Hudson Dane Johnson Leslie Johnson Kahn amp Harrison LLP Randall L Kallinen David W Kiatta

CENSORED

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Vivian R King Paul A Kubash Jim Lindeman Robert K Loper Scott J Markowitz Jani J Maselli Patrick F McCann Don E McClure Jr W Troy McKinney Feroz Merchant David D Mitcham Gerardo S Montalvo Roni M Most REASONABLE DOUBTDoug Murphy Earl D Musick JoAnne Musick Wendell A Odom Jr Todd Overstreet TODD DUPONTJohn Parras Daphne L Pattison Jonathan J Paull Michael G Pena Michael H Pham Michael Ramsey Shawna L Reagin Dan W Richardson Bonnie R Rogers Katherine Scardino Grant M Scheiner Stanley G Schneider Judith Shields Norman J Silverman James Randall Smith Paul St John James T Stafford Charles Stanfield Mark C Thering Christopher L Tritico Hilary Unger William H Van Buren Amanda Webb Joe Wells Q Tate Williams Joseph R Willie II


r

Notes OF Interest

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THE DEFENDEI 24

IN BECOMING AMEMBER HCClA

-+ Promotes aproductive exchange of ideas and encourages

better communication with prosecutors and the judiciary

-+ Pro~des continuing legal education programs for improving

advocacy skills and knowledge

-+ Promotes ajust application of the court-appointed lawyer

system for indigent persons charged with criminal offenses

-+ Files amicus curiae briefs in support of freedom and

human rights

APPLICATION

APplicant

Mailing address

Telephone

Fax

Email

Website

Firm Name

Date admitted to bar

Law school

Profeaionai organizations in which you are a member in good standing

Type of membership

CJ Student ($25 annual fee)

Expected graduation date ____

CJ Newly licensed (first year) attorney ($75)

CJ Regular membership ($150)

Date

Signature of applicant

Endorsement

I a member in good standing of HCCLA believe this applicant

to be a person of professional competency integrity and good

moral character The applicant is actively engaged in the defense

of criminal cases

Date

Signature of member

Member name

MAIL THIS APPLICATION TO HCCLA

Po Box 924523 Houston Texas 77292-4523

7132272404

SP R IN G~(ffi (ffi fffi PRESORTED STANDARD

US POSTAGE PAID HOUSTON TEXAS

PERMIT NO 11500

II II III II II I I L II I I L I I I I II I T2-6~~~~~AUTO~SCH 3-DIGIT O MR EARL D MUSICK 397 -middot1 3f)1 HDUSTON P tl E STE 3~5 HClLiSTDtmiddot1 t 7061)middot-219


bull bull bullbull bullbull bull bull bull bull bull bull


2 From the President By Patrick F McCann

3 Winning Warriors

7 The Trial of Harry Potter By Joseph W Varela

2 15 Easy Steps to Your First Habeas Writ By Patrick F McCann

Checklist for DNA Cases16 By Patrick F McCann

17 The DA Debate

20 Motion of the Moment By Patrick F McCann

bull bull bull bull bull bull bull bull bull bull bull bull bull bull bull bull From the Editor By Shawna L Reagin

22 HCCLA 2007 Holiday Party

2

HCCLA ~~~~~~~ ~ 2007-2008



























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THE DEFENDER 3
















THE DEFENDER 4















THE DEFENDER 5






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THE DEFENDER 8




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THE DEFENDER 10

































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THE DEFENDER 11

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THE DEFENDER 17

BURNS BAIL BONDS




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Lic 74346









AMACHI TExAsr















US 254 263 (1986) See Bracy v


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THE DEFENDEI 24









human rights

APPLICATION

APplicant

Mailing address

Telephone

Fax

Email

Website

Firm Name


Law school


Type of membership





Date


Endorsement




of criminal cases

Date

Signature of member

Member name



7132272404



PERMIT NO 11500


HCCLA ~~~~~~~ ~ 2007-2008



























be proud












THE DEFENDER 3
















THE DEFENDER 4















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FUTURE WARRIORS +





WINNING WARRIORS


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THE DEFENDER 10

































attorney of record












Fifth Amendment



































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THE DEFENDER 11

Easy Steps TO YOUR




































THE DEFENDER 12












































with vinegar





























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THE DEFEIIDER 14




























recorded




































Motion for testing




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in 16











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Lic 74346









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Notes OF Interest

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THE DEFENDEI 24









human rights

APPLICATION

APplicant

Mailing address

Telephone

Fax

Email

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Firm Name


Law school


Type of membership





Date


Endorsement




of criminal cases

Date

Signature of member

Member name



7132272404



PERMIT NO 11500












THE DEFENDER 3
















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indictment

















THE DEFENDER 10

































attorney of record












Fifth Amendment



































acquittal














5 ll chapter 2




















THE DEFENDER 11

Easy Steps TO YOUR




































THE DEFENDER 12












































with vinegar





























THE DEFENDER 13



















































































THE DEFEIIDER 14




























recorded




































Motion for testing




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in 16











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THE DEFENDER 17

BURNS BAIL BONDS




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Lic 74346









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US 254 263 (1986) See Bracy v


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Notes OF Interest

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THE DEFENDEI 24









human rights

APPLICATION

APplicant

Mailing address

Telephone

Fax

Email

Website

Firm Name


Law school


Type of membership





Date


Endorsement




of criminal cases

Date

Signature of member

Member name



7132272404



PERMIT NO 11500

















THE DEFENDER 4















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indictment

















THE DEFENDER 10

































attorney of record












Fifth Amendment



































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THE DEFENDER 11

Easy Steps TO YOUR




































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THE DEFENDER 13



















































































THE DEFEIIDER 14




























recorded




































Motion for testing




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in 16











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THE DEFENDER 17

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Lic 74346









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US 254 263 (1986) See Bracy v


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human rights

APPLICATION

APplicant

Mailing address

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Fax

Email

Website

Firm Name


Law school


Type of membership





Date


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of criminal cases

Date

Signature of member

Member name



7132272404



PERMIT NO 11500
















THE DEFENDER 5






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indictment

















THE DEFENDER 10

































attorney of record












Fifth Amendment



































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THE DEFENDER 11

Easy Steps TO YOUR




































THE DEFENDER 12












































with vinegar





























THE DEFENDER 13



















































































THE DEFEIIDER 14




























recorded




































Motion for testing




your pesky request




in 16











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evidence and file


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THE DEFENDER 17

BURNS BAIL BONDS




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Lic 74346









AMACHI TExAsr















US 254 263 (1986) See Bracy v


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THE DEFEIIDER 20















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7 HOLIDAY P









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Notes OF Interest

advertising rates










THE DEFENDEI 24









human rights

APPLICATION

APplicant

Mailing address

Telephone

Fax

Email

Website

Firm Name


Law school


Type of membership





Date


Endorsement




of criminal cases

Date

Signature of member

Member name



7132272404



PERMIT NO 11500







FUTURE WARRIORS +





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THE DEFENDER I


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THE DEFEIIDER 7






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story




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persons9













Harry is acquitted










indictment

















THE DEFENDER 10

































attorney of record












Fifth Amendment



































acquittal














5 ll chapter 2




















THE DEFENDER 11

Easy Steps TO YOUR




































THE DEFENDER 12












































with vinegar





























THE DEFENDER 13



















































































THE DEFEIIDER 14




























recorded




































Motion for testing




your pesky request




in 16











record









evidence and file


disclosure


















country




THE bull bull
























THE DEFENDER 17

BURNS BAIL BONDS




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Lic 74346









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US 254 263 (1986) See Bracy v


(1971)]







Counsel of Record

THE DEFEIIDER 20















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Notes OF Interest

advertising rates










THE DEFENDEI 24









human rights

APPLICATION

APplicant

Mailing address

Telephone

Fax

Email

Website

Firm Name


Law school


Type of membership





Date


Endorsement




of criminal cases

Date

Signature of member

Member name



7132272404



PERMIT NO 11500



THE









PRESENT ESSAY ART











way home4

a OF




















THE DEFEIIDER 7






the trial


















initiative

THE DEFENDER 8




cross-examination









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story




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persons9













Harry is acquitted










indictment

















THE DEFENDER 10

































attorney of record












Fifth Amendment



































acquittal














5 ll chapter 2




















THE DEFENDER 11

Easy Steps TO YOUR




































THE DEFENDER 12












































with vinegar





























THE DEFENDER 13



















































































THE DEFEIIDER 14




























recorded




































Motion for testing




your pesky request




in 16











record









evidence and file


disclosure


















country




THE bull bull
























THE DEFENDER 17

BURNS BAIL BONDS




courtroom



rIIift






Lic 74346









AMACHI TExAsr















US 254 263 (1986) See Bracy v


(1971)]







Counsel of Record

THE DEFEIIDER 20















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7 HOLIDAY P









THE DEFENDER 22




CENSORED

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Notes OF Interest

advertising rates










THE DEFENDEI 24









human rights

APPLICATION

APplicant

Mailing address

Telephone

Fax

Email

Website

Firm Name


Law school


Type of membership





Date


Endorsement




of criminal cases

Date

Signature of member

Member name



7132272404



PERMIT NO 11500







the trial


















initiative

THE DEFENDER 8




cross-examination









bull






story




of time





















persons9













Harry is acquitted










indictment

















THE DEFENDER 10

































attorney of record












Fifth Amendment



































acquittal














5 ll chapter 2




















THE DEFENDER 11

Easy Steps TO YOUR




































THE DEFENDER 12












































with vinegar





























THE DEFENDER 13



















































































THE DEFEIIDER 14




























recorded




































Motion for testing




your pesky request




in 16











record









evidence and file


disclosure


















country




THE bull bull
























THE DEFENDER 17

BURNS BAIL BONDS




courtroom



rIIift






Lic 74346









AMACHI TExAsr















US 254 263 (1986) See Bracy v


(1971)]







Counsel of Record

THE DEFEIIDER 20















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7 HOLIDAY P









THE DEFENDER 22




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Notes OF Interest

advertising rates










THE DEFENDEI 24









human rights

APPLICATION

APplicant

Mailing address

Telephone

Fax

Email

Website

Firm Name


Law school


Type of membership





Date


Endorsement




of criminal cases

Date

Signature of member

Member name



7132272404



PERMIT NO 11500







story




of time





















persons9













Harry is acquitted










indictment

















THE DEFENDER 10

































attorney of record












Fifth Amendment



































acquittal














5 ll chapter 2




















THE DEFENDER 11

Easy Steps TO YOUR




































THE DEFENDER 12












































with vinegar





























THE DEFENDER 13



















































































THE DEFEIIDER 14




























recorded




































Motion for testing




your pesky request




in 16











record









evidence and file


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country




THE bull bull
























THE DEFENDER 17

BURNS BAIL BONDS




courtroom



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Lic 74346









AMACHI TExAsr















US 254 263 (1986) See Bracy v


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THE DEFENDER 22




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Notes OF Interest

advertising rates










THE DEFENDEI 24









human rights

APPLICATION

APplicant

Mailing address

Telephone

Fax

Email

Website

Firm Name


Law school


Type of membership





Date


Endorsement




of criminal cases

Date

Signature of member

Member name



7132272404



PERMIT NO 11500











indictment

















THE DEFENDER 10

































attorney of record












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THE DEFENDER 12












































with vinegar





























THE DEFENDER 13



















































































THE DEFEIIDER 14




























recorded




































Motion for testing




your pesky request




in 16











record









evidence and file


disclosure


















country




THE bull bull
























THE DEFENDER 17

BURNS BAIL BONDS




courtroom



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Lic 74346









AMACHI TExAsr















US 254 263 (1986) See Bracy v


(1971)]







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THE DEFEIIDER 20















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THE DEFENDER 22




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Notes OF Interest

advertising rates










THE DEFENDEI 24









human rights

APPLICATION

APplicant

Mailing address

Telephone

Fax

Email

Website

Firm Name


Law school


Type of membership





Date


Endorsement




of criminal cases

Date

Signature of member

Member name



7132272404



PERMIT NO 11500































acquittal














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THE DEFENDER 11

Easy Steps TO YOUR




































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with vinegar





























THE DEFENDER 13



















































































THE DEFEIIDER 14




























recorded




































Motion for testing




your pesky request




in 16











record









evidence and file


disclosure


















country




THE bull bull
























THE DEFENDER 17

BURNS BAIL BONDS




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Lic 74346









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US 254 263 (1986) See Bracy v


(1971)]







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THE DEFEIIDER 20















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Notes OF Interest

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THE DEFENDEI 24









human rights

APPLICATION

APplicant

Mailing address

Telephone

Fax

Email

Website

Firm Name


Law school


Type of membership





Date


Endorsement




of criminal cases

Date

Signature of member

Member name



7132272404



PERMIT NO 11500


Easy Steps TO YOUR




































THE DEFENDER 12












































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THE DEFEIIDER 14




























recorded




































Motion for testing




your pesky request




in 16











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country




THE bull bull
























THE DEFENDER 17

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Lic 74346









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US 254 263 (1986) See Bracy v


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Notes OF Interest

advertising rates










THE DEFENDEI 24









human rights

APPLICATION

APplicant

Mailing address

Telephone

Fax

Email

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Firm Name


Law school


Type of membership





Date


Endorsement




of criminal cases

Date

Signature of member

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7132272404



PERMIT NO 11500













































with vinegar





























THE DEFENDER 13



















































































THE DEFEIIDER 14




























recorded




































Motion for testing




your pesky request




in 16











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evidence and file


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country




THE bull bull
























THE DEFENDER 17

BURNS BAIL BONDS




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Lic 74346









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US 254 263 (1986) See Bracy v


(1971)]







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THE DEFEIIDER 20















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THE DEFENDER 22




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Notes OF Interest

advertising rates










THE DEFENDEI 24









human rights

APPLICATION

APplicant

Mailing address

Telephone

Fax

Email

Website

Firm Name


Law school


Type of membership





Date


Endorsement




of criminal cases

Date

Signature of member

Member name



7132272404



PERMIT NO 11500




















































































THE DEFEIIDER 14




























recorded




































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in 16











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evidence and file


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THE bull bull
























THE DEFENDER 17

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courtroom



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Lic 74346









AMACHI TExAsr















US 254 263 (1986) See Bracy v


(1971)]







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THE DEFEIIDER 20















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THE DEFENDER 22




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Notes OF Interest

advertising rates










THE DEFENDEI 24









human rights

APPLICATION

APplicant

Mailing address

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Fax

Email

Website

Firm Name


Law school


Type of membership





Date


Endorsement




of criminal cases

Date

Signature of member

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7132272404



PERMIT NO 11500





























recorded




































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your pesky request




in 16











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THE bull bull
























THE DEFENDER 17

BURNS BAIL BONDS




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Lic 74346









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US 254 263 (1986) See Bracy v


(1971)]







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THE DEFEIIDER 20















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THE DEFENDER 22




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Notes OF Interest

advertising rates










THE DEFENDEI 24









human rights

APPLICATION

APplicant

Mailing address

Telephone

Fax

Email

Website

Firm Name


Law school


Type of membership





Date


Endorsement




of criminal cases

Date

Signature of member

Member name



7132272404



PERMIT NO 11500















Motion for testing




your pesky request




in 16











record









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THE bull bull
























THE DEFENDER 17

BURNS BAIL BONDS




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Lic 74346









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US 254 263 (1986) See Bracy v


(1971)]







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THE DEFEIIDER 20















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Notes OF Interest

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THE DEFENDEI 24









human rights

APPLICATION

APplicant

Mailing address

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Fax

Email

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Firm Name


Law school


Type of membership





Date


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of criminal cases

Date

Signature of member

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7132272404



PERMIT NO 11500



THE bull bull
























THE DEFENDER 17

BURNS BAIL BONDS




courtroom



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Lic 74346









AMACHI TExAsr















US 254 263 (1986) See Bracy v


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THE DEFEIIDER 20















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Notes OF Interest

advertising rates










THE DEFENDEI 24









human rights

APPLICATION

APplicant

Mailing address

Telephone

Fax

Email

Website

Firm Name


Law school


Type of membership





Date


Endorsement




of criminal cases

Date

Signature of member

Member name



7132272404



PERMIT NO 11500


BURNS BAIL BONDS




courtroom



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Lic 74346









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US 254 263 (1986) See Bracy v


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Notes OF Interest

advertising rates










THE DEFENDEI 24









human rights

APPLICATION

APplicant

Mailing address

Telephone

Fax

Email

Website

Firm Name


Law school


Type of membership





Date


Endorsement




of criminal cases

Date

Signature of member

Member name



7132272404



PERMIT NO 11500










AMACHI TExAsr















US 254 263 (1986) See Bracy v


(1971)]







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-raE DEFENDER 21


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Notes OF Interest

advertising rates










THE DEFENDEI 24









human rights

APPLICATION

APplicant

Mailing address

Telephone

Fax

Email

Website

Firm Name


Law school


Type of membership





Date


Endorsement




of criminal cases

Date

Signature of member

Member name



7132272404



PERMIT NO 11500















US 254 263 (1986) See Bracy v


(1971)]







Counsel of Record

THE DEFEIIDER 20















-raE DEFENDER 21


7 HOLIDAY P









THE DEFENDER 22




CENSORED

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Notes OF Interest

advertising rates










THE DEFENDEI 24









human rights

APPLICATION

APplicant

Mailing address

Telephone

Fax

Email

Website

Firm Name


Law school


Type of membership





Date


Endorsement




of criminal cases

Date

Signature of member

Member name



7132272404



PERMIT NO 11500
















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THE DEFENDER 22




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Notes OF Interest

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THE DEFENDEI 24









human rights

APPLICATION

APplicant

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Fax

Email

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Firm Name


Law school


Type of membership





Date


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of criminal cases

Date

Signature of member

Member name



7132272404



PERMIT NO 11500



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Notes OF Interest

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THE DEFENDEI 24









human rights

APPLICATION

APplicant

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Fax

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Firm Name


Law school


Type of membership





Date


Endorsement




of criminal cases

Date

Signature of member

Member name



7132272404



PERMIT NO 11500





CENSORED

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Notes OF Interest

advertising rates










THE DEFENDEI 24









human rights

APPLICATION

APplicant

Mailing address

Telephone

Fax

Email

Website

Firm Name


Law school


Type of membership





Date


Endorsement




of criminal cases

Date

Signature of member

Member name



7132272404



PERMIT NO 11500



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Notes OF Interest

advertising rates










THE DEFENDEI 24









human rights

APPLICATION

APplicant

Mailing address

Telephone

Fax

Email

Website

Firm Name


Law school


Type of membership





Date


Endorsement




of criminal cases

Date

Signature of member

Member name



7132272404



PERMIT NO 11500










human rights

APPLICATION

APplicant

Mailing address

Telephone

Fax

Email

Website

Firm Name


Law school


Type of membership





Date


Endorsement




of criminal cases

Date

Signature of member

Member name



7132272404



PERMIT NO 11500




PERMIT NO 11500


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