NOTALLBONDSMAN CANPROVIDE

OURLEVEL OF PROFESSIONALSERVICES
09 FANNIN STREET
H USTON, TEXAS 77002
713-223-BOND (2663)
4:: Upcoming ClE Event Schedule
5:: AWord from our President
by JoAnne Musick
6:: Winning Warriors
11 :: HCClANews Roundup
To KillaMockingbirdBookDonations
byWendyMiler
12:: HCClA&Big Brothers/Big Sisters
"AmachiProgram"VisitsDowntownAquarium& HoustonZoo
byWendyMiler
13 :: The NewMental Health Court
byStaciBiggar
14 :: Veteran's Court:
Helping HeroesComeHome
byPatrickMcCann
16:: Strategy: Full Court Press
by Joseph W Varela
19:: OWl Blood Defense:
PartII, Investigatingthe Draw
by KellyW Case
24:: The Personal Bond:
In Pursuitofthe SnowLeopard
by PatrickMcCann
26 :: HCCLA Fall/Halloween Picnic
29 :: Fallen Warriors:
Esteban"Steve" Penaand ClydeWoody
30 :: ComputerAdvice:
ComputerEase MadeEasy
by LesterLavinandMarkHvizdos
31 :: Investigative Corner:
The Roleofthe DefenseInvestigator
by Jim Willis
THE DEFENDER CD
Distribution 1000 copies per issue.
For articles and other editorial contributions -
Contact Kathryn Kase at 713-222-7788 or
to place an ad contact Earl Musick at
832-448-1148 or earl@musicklawoffice.com.
CD THE DEFEIIDER
awordfroln our

JaAnrw mUjick
Founded in 1970 and almost 40 years in the making,
HCCLA is the voice for the local defense bar. With many
of the nation's most talented defense lawyers as members,
it is no wonder our organization has grown into the giant it
is today. Like no other local bar association, HCCLA has
undertaken to better the criminal justice system on a daily
basis.
HCCLA provides a daily listserv, an online database of
transcripts and forms, strike force support, regular CLE
opportunities, and a second chair program designed to
help younger lawyers gain practical experience both in
and out of the courtroom. In addition, HCCLA is your
liaison to the judiciary, the DA's office, and the public. The
new speaker's bureau provides informational speakers to
community groups and local schools on a consistent basis.
The Defender provides top quality legal information and
articles with a circulation of 1,000 copies.
With everything we offer, it's not
hard to see why HCCLA continues
to gain respect and authority within
the criminal justice system.
That being said, it is sad to report that we must still fight
for the very basics of due process for our clients. We still
have prosecutors withholding Brady information, either
because they don't realize what Brady means or because
they believe that's how they get convictions. We still have
judges signing motions ex parte. We still have judges and
prosecutors discussing cases ex parte, even when it's as
simple as which case is more likely to be called to trial
amongst the 10 set that day. Why a judge would believe
the prosecutor is to be given an edge on trial preparation is
unclear, but make no mistake, it is inappropriate no matter
the reason.
We still have courts sanctioning inappropriate and illegal
behavior by calling it "harmless" error. Error is error and
ought not be tolerated, especially when created by those
entrusted to protect the public. Officers and prosecutors
take oaths to uphold the law, yet they choose when to follow
it and, sadly, when to bend it. Is it really that important
that the certificate of service (attached to pleadings filed as
public records) actually recite whether or not documents
were actually served and when? Some think not. Is it really
important for the defendant and his lawyer to be present
during discussions with the judge? Some think not. Is
it really important where Deputy Pickett went to school
and what degree he obtained? Some think not. Is it really
important that the officer actually read the DIC-24 to the
defendant prior to requesting the breath test? Again, some
think not. But where do we draw the line on this slippery
slope?
As a friend of mine recently stated, we all know the
difference between right and wrong, whether we like it
or not. When someone does something wrong, there are
consequences. Perhaps a defendant goes free because the
officer crossed the line; to do otherwise is to reward the
officer for crossing the line.
In our system of jurisprudence, we give prosecutors,
judges and police officers large grants of immunity for
their professional actions, even when they are wrong.
This is a good thing for society because it does not hold
these individuals personally liable for mistakes. However,
our system does not reward that conduct either. Evidence
should be suppressed when it is illegally obtained. The
suppression serves as a deterrent to the inappropriate
conduct.
With all that HCCLA has accomplished, there is so much
more to do, and we can use your help. It is a massive
undertaking but HCCLA stands vigilant. Justice is neither
free nor easy, but we will continue the fight.
THE DEfENDER CD
Demonstrating once again that eyewitness identification is
more often wrong than it is right, BARRY SCHECK and
five Cardozo School of Law students won the freedom of
Ernest Sonnier fo.llowing nine 0) rounds of post-conviction
DNA testing. Sonnier was sentenced to life imprisonment
in 1986 after an abduction victim identified him in a photo
array. Scheck told the news media that faulty testimony
from a Houston Police Department Crime Lab analyst
assisted Sonnier's wrongful conviction.
....................................... .
And in another case of faulty eyewitness identification,
LANA GORDON got two aggravated robbery charges
dismissed in the 182nd District Court following a thorough
investigation. Two people picked the accused from a photo
spread, but Lana found alibi witnesses and discovered
that the fmgerprints obtained at the scene by police didn't
match her client.
Remember that infamous murder case where JACKIE
CARPENTER and ERIC DAVIS raised a Batson claim
because the prosecutors struck all the African American
jurors? When we last left this tale, Judge Jeannine Barr
had dismissed the jury and re-set the trial date. The case
finally did go to trial, and Eric and Jackie obtained an
acquittal and gave their client - who was incarcerated
through all this - his life back. How's that for a happy
ending?
........................................
Speaking of happy news, BRIAN WICE has been named
the Best Criminal Defense Attorney in Houston by the
Houston Press.
.................... ............... .....
Warning to prosecutors: Don't play Gotcha! with JOE
VARELA around to do the appeal. The defendant pleaded
to a Class C misdemeanor for disorderly conduct in the
belief that no additional charges would be pursued, but the
prosecutor filed an aggravated assault charge. A writ was
taken, 208th District Court Judge Denise Collins granted
relief, and Joe got the relief upheld in the Court of appeals.
CD THE DEFENDER
After six years of prosecution, four indictments, a
week-long trial, an acquittal, re-indictment and an
application for writ of habeas corpus, GORDON
DEES, MIKE HINTON, ALEX MACIAS and JOHN
PIZZATOLA prevailed when the Fort Bend County
DA finally dismissed the case against their clients, who
had been accused of manipulating the HP website and
purchasing computers for nothing. Robb Fickman, who
won in the early years of the case when his client wasn't
re-indicted, praised these lawyers for their tenacious
defense.
..................... .. ................ .
He got death off the table for the client charged with capital
murder and, then, DAN SCARBOROUGH got the man
acquitted at tria1 in Montgomery County.
........................................
In a blow for due process and good old common sense,
BILL HABERN, SCOTT PAWGEN and RICHARD
GLADDEN convinced a federal court jury in Austin to
find, as a matter of law, that the Texas Board of Pardons
and Parole acted unconstitutionally in placing parolees
who have no sex offense convictions on sex offender
supervision. Bill notes that the decision potentially affects
between 650 to 1,000 other parolees who were subjected
to the same unconstitutional procedures when the BPP
placed them on sex offender conditions without benefit of
due process.
....................................... .
Two years of pretrial battling and the defendant's prescient
rejection of a 45-year plea offer ended with STEVE
JACKSON getting his client acquitted of murder in the
410th District Court in Conroe. KELLY CASE assisted
Steve at trial with blood evidence.
........................................
Successfully alleging a violation of due process,
BOB WICOFF won a recommendation of a new trial
from Judge Jeannine Barr because the HPD crime lab
consumed all of the sample during DNA testing in an
aggravated-sexual-assault-of-a-child case.
- ---------------------------
PAULA SILVER and GRANT SCHEINER won that
oh-so-rare verdict of not guilty by reason of insanity in
an attempting-to-disarm-a-peace-officer case in the 176th
District Court.
....... .................... .. .......... .
There are few cases more likely to be death penalty
prosecutions than when a police officer is killed. Add in
two foreign-national defendants and a death prosecution
seems a certainty. But CASEY KIERNAN, RUDY
DUARTE, ROBERT LOPER and DIANA OLVERA
got death off the table for Andres Nava-Maldonado and
Xiomara Mendez-Rosales after conducting an investigation
that showed the facts supported only a felony murder
charge.
....... ................................ .
Assistant Federal Defender PHILLIP G. GALLAGHER
convinced a panel (King, Davis and Benavides) of the
United States Court of Appeals for the Fifth Circuit to
reverse his client's conviction of unlawful transportation of
undocumented aliens. In so doing, the panel found that a
United States Border Patrol agent did not have reasonable
suspicion to stop the client's car and that because the stop
was illegal, the fruits of the inquiry into the passengers'
,
,
,.
immigration status should be suppressed.
I
....................................... .
I
InHarris County Criminal Court-at-Law No.9, DAN
GERSON won a motion to suppress and a directed verdict
of not guilty in an unlawful-carrying-of-a-weapon case
brought after a concerned wife came to the scene to see
what she could see as her husband was being arrested.
............... .. .......................
MATT SKILLERN obtained a not guilty in Harris County
Criminal Court-at-Law No.1.
..... .. .................... .. ..........
PAT McCANN persuaded the Texas Court of Criminal
Appeals to grant a new punishment trial to death row
inmate Carl Wayne Buntion because his original
punishment trial lacked a constitutional jury instruction
on mitigating evidence.
More than one jury was happy to give MARK TIDESSEN
the verdict he loves to hear. InMontgomery County
Court-at-Law No.3 with Judge James H. Keeshan
presiding, Mark tried a case to an acquittal. Then, in
Harris County Criminal Court-at-Law No.7, Mark got a
IS-minute acquittal in a DWI case where the defendant had
a .19 BAC.
........................................
The State offered the client a shot at the "Divert" program
and, when he turned it down, the cops testified they had
to jump out of the client's way to keep from getting run
over at an accident scene. GRANT SCHEINER won a
not guilty anyway in this DWI case tried in Harris County
Criminal-Court-at-Law No.3.
........................................
How do you say "not guilty" in Mandarin? DAVID RYAN
and BRIAN WICE heard the two-word verdict in English
after a mere 12 minutes of deliberation in a massage parlor
"sting" case tried in Harris County Criminal Court-at-Law
No.6. Carmen Roe reports that the highlight of the trial
(for her, at least) was when the presiding jurist sent out the
jury and asked the interpreter how to say "butt naked" in
Mandarin.
........................................
SUNSHINE SWALLERS won an eve-of-trial dismissal
on behalf of a client who was charged with evading for
fleeing a group of gun-toting thugs at a UH event. The
cops never investigated the hooligans, but Sunshine did
and discovered that another boy at the scene ended up in
the hospital after being attacked by them.
........................................
What can you get done in six minutes? TYLER FLOOD
was so persuasive in a DWI 2d case that a Lee County jury
took only six minutes to exonerate his client.
........................................
ROLAND MOORE III won a reversal of a murder
conviction from the 9th Court of Appeals and prevailed
again when the Texas Court of Criminal Appeals denied
the State's PDR.
THE DEFENDER 0)
WinningWarriors
The client admitted to drinking a six-pack and a 16-ounce
beer, and the cops found another six-pack and an open
16-ounce beer in the car, but JED SILVERMAN and
STEVE GONZALEZ still obtained an acquittal in
Brazoria County.
........................................
JED SILVERMAN argued involuntary intoxication and
prevailed again in a OWl trial, this time in County Criminal
Court-at-Law No. 4.
..... .. .................................
If the skies seem friendlier, it may be because LISA
BENGE and PAUL DAMICO saved a Continental
pilot's job when they got him acquitted of three counts of
aggravated assault with a deadly weapon. The pilot was
charged after brandishing his gun when a suspicious car
with belligerent occupants showed up in his neighborhood
after Hurricane Ike hit. Lisa and Paul won the two-word
verdict after showing that the car's occupants had scary
criminal histories and the arresting officer had a rocky
relationship with the truth.
..... .. .................................
His client had two prior drunk-driving convictions, but
DANNY EASTERLING obtained a fabulous two-word
verdict in a felony DWI case tried before visiting Judge
Brian Rains. A key to this victory? Danny' s discovery that
one of the cops had met the client's former girlfriend and
appeared to have arrested him as a favor to her.
....... ........ .........................
The client went out for drinks with friends to commemorate
the DWI-related fatality of a buddy, and then got busted for
OWl himself after weaving and driving 30 mph over the
speed limit. He also admitted to having had "a few drinks."
Still, TYLER FLOOD got a not guilty in County Criminal
Court-at-Law No. 12.
..................... .. .... ............ .
JAMES FALLON and JOHN PARRAS secured a
mistrial in the 230th District Court for a client charged
with two counts of aggravated sexual assault of a child.
............. ..................... ......
Haven' t seen MARK BENNETT in trial lately? Probably
because he's getting one case after another dismissed.
First, he got an arson case dismissed, then an employee
theft charge. We hear through the grapevine that he's
bagged several dismissals he bagged in 2009, but when
we asked him about that, he modestly declined comment.
CD THE DEFENDER
Itlooked bleak: the client was on 60 years of parole and
picked up his ninth DWI. But SEAN McALISTER
was appointed to represent him and, after 75 minutes of
deliberation, the jury returned a not guilty verdict. Sean
credits his law partners, Christian Capitaine and Steve
Shellist, for giving wise counsel, Todd Overstreet for
talking him through an HGN strategy, and Troy McKinney
for advice on how to limit what the jury heard about the
client's eight priors.
........................................
PAUL LOONEY and JOHN HARLE persuaded an
Austin County jury to return a not guilty verdict in an
indecency-with-a-child case. Key to the victory were
motions in limine motion that crippled the State's case and
a voir dire that prepared the jurors to acquit if they agreed
that the defense theory was likelier than the prosecution's.
........................................
After four days of trial in a murder case in the 351 st
District Court and just after the State rested, BRIAN
BENKEN and CRAIG WASHINGTON obtained an
acquittal when they moved for an instructed verdict and
Judge Mark Kent Ellis granted it.
........................................
LANA GORDON got a cocaine residue possession case
dismissed in the 176th District Court after the client passed
Lana's drug test. The client swore he'd only smoked dope,
even though the cops had bagged push rods and a crack
pipe as part of the arrest. Judge Shawna Reagin granted
Lana's motion to administer a store-bought drug test, with
Murray Newman serving as witness. The State dismissed
upon seeing the negative results for cocaine use. Says
Lana, "I'll have a few more of those throw-down urine
tests ready from now on."
.................................. ......
ERIC DAVIS won a very rare reversal in the 14th Court of
Appeals in a criminal case out of Jackson County.
.................................. ..... .
DAPHNE PATTISON prevailed in a no-test, no-accident
felony DWI case over three police officers who claimed
that her client was acting intoxicated. Judge Mark Kent
Ellis considered the evidence in this bench trial and entered
an acquittal.
....... .............................. ...
Itwas a week-long murder trial with two eyewitnesses
and a confession from the client himself, but JOHN
PETRUZZI convinced four jurors that the State's evidence
was wanting. The jury was declared to be hung after it sent
a note stating that the four could not change their minds
without doing violence to their consciences. Amen!
..... ...................................
Out in Jefferson County, JIM MEDLEY won an acquittal
without a defense expert in a DWI case with a client who
blew.12.
RON MORGAN inaugurated his HCCLA membership
by obtaining an acquittal for a DWI client in Montgomery
County Criminal Court-at-Law NO.3.
.............. .. ...................... . .
A persuasive motion to quash by SAM ADAMO caused
County Criminal Court-at-Law No.5 to grant relief and
dismiss the telephone harassment charge against his client.
.............. .. ...................... . .
VIVIAN KING got an acquittal in a family assault case
in County Criminal Court-at-Law No. 14 with RAMONA
FRANKLIN-WILLIAMS as her co-counsel.
.............. .. ....................... .
TODD DUPONT, with STEPHEN TOUCHSTONE
as his co-pilot, obtained an entrapment instruction and
obtained a hung jury on a state jail felony theft/receivership
case. Sunshine Swallers reports that Todd's client was an
irrunigrant who would have lost his status had he been
convicted.
...... .. .............. .. .............. . .
In the 184th District Court, BUTCH BRADT and ELSIE
MARTIN-SIMON won dismissal of an aggravated sexual
assault case. The duo obtained this result after showing that
their client - who was being prosecuted for conduct alleged
to have occurred while he was a juvenile - never was
served with the petition and surrunons before he tumed 18.
........ ........ ........................
His client made racially inflammatory statements about the
arresting officer, but JORDAN LEWIS calmly secured
a not guilty in a DWI case tried in Fort Bend County
Court-at-Law No.4.
........ .............................. . .
JOHN FLOYD and CHRISTOPHER CARLSON
have mucho mojo. First, they heard "Dismissed!" for
a felon charged with possession of a firearm when
the State agreed that its case had - in Chris' words-
" issues." Some weeks later, this dynamic duo heard "Not
Guilty!" from a Montgomery County jury following an
indecency-by-contact-with-a-child trial. Then, they got a
DWI dismissed in County Criminal Court-at-Law No.8
after showing that their diabetic client was hyperglycemic
at the time of the stop.
... .....................................
A big cheese ADA tried a DWI case to show the lowly
assistants "how it's done" - and we doubt that he meant
"eat an acquittal" but that's what happened when RICK
OLIVER defended in County Criminal Court-at-Law
No. 13.
........................................
MARK TIllESSEN won a DWI in County Criminal
Court-at-Law No.2 despite facts that included the client
causing a one-car accident and then trying to bite the police
video camera.
First, a female firefighter accused the Houston Fire
Department of permitting sexual harassment, and offered
up evidence of some pretty gnarly scrawled comments.
Then, District Judge Susan Brown entered an order
compelling the female firefighter to be taken into custody
to give handwriting samples. RANDALL KALLINEN
applied for mandamus in the 14th Court of Appeals and
Judge Brown withdrew the order.
.........................................
JEREMY DISHONGH and DEANDRE GIBBS won
an acquittal for a client accused ofDWI in Montgomery
County Criminal Court-at-Law No.3.
............................ .............
And speaking of drunk driving, DOUG MURPHY has
been elected to the 12-person Board of Regents for the
National College for DUI Defense. Houston now has two
people on the august panel, the other being our very own
Troy McKinney.
THE DEFENDER 0
A ~ _
It took a jury in Galveston County Criminal Court-at-Law
No.3 only 10 minutes to acquit TAD NELSON's client in
an assault/family violence case.
................ .. ......................
In a case involving notorious Fort Bend County
Sheriff's Deputy Keith Pikett and his scent-lineup dogs,
WILVIN CARTER and JAPAULA KEMP got four
burglary-of-a-babitation charges dismissed and a fifth
charge reduced to theft when they insisted on going to
trial.
........................................
The immigrant client was charged with aggravated assault
against peace officers and spent 18 months in the county
lockup, but ANNIE BASU got the charge dismissed,
the record expunged and the client's immigration status
re-established . But she still wasn't done until she sued the
peace officers for violating her clients' rights and won a
$60,000 settlement.
........................................
CHERYL IRVIN got a case dismissed in the 337th
District Court when she, too, insisted on going to trial and
all the State had was scent-lineup "evidence" from Fort
Bend County Sheriff's Deputy Keith Pikett.
....................................... .
Itwas beginning to seem like the Case That Wouldn't Die,
but KELLY CASE prevailed anyway. First, he got the
case dismissed on speedy trial grounds, but the prosecution
re-filed the charges. So, Kelly sought a writ of habeas
corpus on double jeopardy grounds and the prosecution
finally saw the light and dismissed.
@THE DEFENDER
Making it known that she had discovered a credibility
problem on the part of the police, CYNTHIA HENLEY
got a cocaine possession (15.98 grams) case dismissed
right before the suppression hearing in the 228th District
Court.
....................................... .
Just try keeping secrets from PAUL KUBOSH,
RANDALL KALLINEN, and open records lawyer
JOE LARSEN. The City of Houston foolishly refused
to disclose documents regarding safety at intersections
controlled by red-light cameras, and this trio persuaded
295th District Court Judge Tracy Christopher to order
disclosure of those records.
....................................... .
The jury had been sworn in County Criminal Court-at-Law
No.8, but EARL MUSICK and JOANNE MUSICK
battled hard behind the scenes to win a dismissal of a
family violence case.
........................................
A fierce three-day battle by DAVID RYAN in a family
violence case ended in an acquittal for his client in County
Criminal Court-at-Law No. 14.
........................................
BRIAN WICE and CARMEN ROE persuaded the Texas
Court of Criminal Appeals to grant a new punishment
trial for Susan Wright, who was convicted of killing her
husband by stabbing him 193 times, after showing that
she was not effectively defended when she originally was
sentenced to 25 years in prison.
....................................... .
As the ad says, it pays to discover. JED SILVERMAN
won dismissal of a felony possession case (Ecstasy) in
208th District Court after his investigation discovered that
the arresting officer had no probable cause for the stop and
that the officer's "inference" that his police car didn't have
a video camera was untrue.
....................................... .
There were three kilos in the back seat and the cops had
the car on surveillance during the delivery, but ROSA
ELIADES won reversal of the conviction in the 1 st Court
of Appeals.
....................................... .
There are many ways to be an advocate and one of them
is to pursue a sentence that a client can live with. So it
was with CARMEN ROE who represented a federal
client charged with possessing with intent to distribute
61 kilograms - or 250,000 tablets - ofMDMA. The base
level was 38 (235 to 293 months for those with little to no
criminal history), but Carmen worked diligently and the
judge sentenced her client to time served, three years of
supervised release and no fine. And did we mention that
Carmen's client had only one day ofjail credit?
HCCLA Shares To Kill a Mockingbird with Local Schools
byWendy Miller
HCCLA donated 155 copies of To Kill a Mockingbird in May 2009 to local
high school students in recognition of the Harris County Public library's Big
Read summer reading program. Each volume bears a book plate stating that
it was donated by the Association.
Students at Yes PREP-North Central, Milby High School, and the
High School for Law Enforcement & Criminal Justice received the
Association-donated copies. Each school's library also received a single
copy of the book for its permanent collection.
The Big Read is a one-community/
one-book reading event that encourages
people to read and discuss important
issues raised in a single book. The Harris
County Public Library, with the support
of the National Education Agency,
chose to highlight Harper Lee's To Kill a
Mockingbird.
proudlyDonatedby.
. CountyCriminal
Twenty-five copies of the books at the
ams ..
H
High School for Law Enforcement & LawyersAsSocIatIon
Criminal Justice are reserved specifically
for underclassman. Several HCCLA
2009
member volunteers were scheduled to
return in December 2009 to discuss the
book and get to know the students over a
lunch also provided by the Association.
The teens are very excited about spending
time with local criminal defense attorneys
and expressing what they have gained
from reading the book.
-
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..

eee
..-

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byWendyMiller
HCCLAisahugefan oftheAmachiTexasMentorprogramfor
theBigBrothersBigSistersofGreaterHouston.TheAssociation
hasactivelysupportedeventsandfundraisers forthechildrenin the
program,bothfinanciallyandwithvolunteermanpower,sincethe
Arnachi programkickedoffin2007.
TheAmachiprogramprovidesone-on-onementoringforchildrenwith
oneormoreincarceratedparents.Theprogram'smissionisto break the
generation-after-generationcycleofcrimeandincarcerationandhelp
thesechildrenreachtheirmaximumpotentialthroughsafeandpositive
mentoringrelationships.Childrenofincarceratedparentsarefive times
morelikelytoconunitcrimes,andwithoutpositiveadultintervention,
willmorethan likelyfollow theirparentsintoprison.
Duetothelimited numberofadultvolunteersinBBBS,noteverychild
registeredintheAmachiprogram inHouston hasbeenassignedabig
brotherorsister.Thereare, onaverage, 70childrenleftunassigned
everyyearduetothelownumberof volunteers. HCCLA-sponsored
"BigforaDay" eventshelpaddressthisproblembyinvitingAmachi
childrennotassigned tolong-termmentorstoattend theevents- with
adultprofessionals(attomeys,judges,lawstudents,etc)servingasthe
volunteermentorsattheevent.
Thetimecommitmenttypicallyneededto beaBBBSmentormakes
many lawyersshyawayfrom volunteering. But"BigforaDay" events
alJowthatexactopportunity: toserveasBBBSmentors. Otherthan
thetimeneededtowatchamovieorplayaroundofputt-puttgolf-
there is nootherconunitmentrequired. Theseeventsareawonderful
opportunityto makeadifferencein thelivesofat-riskyouth.
HCCLAmentor
CyntbiaHenley,playingcarnival
gameswith hermenteesatthe
DowntownAquarium
e e
~
ee--e-
t---
_.-................ >
-
~
HCCLA mentorTomZakes,
enjoyinglunchatthezoo " " ~ . i ~
with bis mentee
Amenteeenjoystbe
pettingzoo atthe
Amachlprogramevent
Eventsarealwaysfree forAmachichildren.In conjunctionwith
theHoustonYoungLawyersFoundation,HCCLAco-sponsored
twoeventsinthespringof2009forAmachichildren.Twenty-five
Amachichildrenandmentors,includingHCCLAvolunteers,were
treatedtoadayattheHoustonDowntownAquarium in April.This
eventincluded foreachchild: lunch,bottledwaterand snacksas
needed, theAquariumAdventureexhibittour, outsidecarnival-style
games,and an aU-dayaccessbraceletfor unIirrrited ridesonthe ferris
wheel,SharkVoyagetrainride,AquaticCarousel,and Lighthouse
Dive.
Nearly30childrenenjoyedadayattheHoustonZoowith mentorsin
May.Thezooeventincludedforeachchild: lunch,bottledwaterand
snacksasneeded,animalexhibits,aspecialanimal-keeperchatwith
azoorepresentative,asweU as carouselrideticketsand atake-home
zoosouvenir. HCCLAgenerouslycontributedvolunteermentors
and$480to helpsupportcostsforthe wo event,whichwasentirely
raisedatourOctober2008 pokertournament.
PleaseconsidervolunteeringatanupcomingBBBSAmachievent
withHCCLA in Spring20IO. Simplysendan"InterestedBBBS
Mentor"posttoourHCCLAlistservandHCCLAPublicRelations
will contactyouwitheventdetails. Thechildrenand thevolunteers
find theeventstobeeasytodo- andhard to forget!
THE DEFENDER
- ----------
by staci Biggar
At the beginning of 2009, Harris County criminal district judges decided
that a full-time mental health court was needed given the quantity of
defendants afflicted by mental health issues in this county. The judges
designated the 184th District Court and Judge Jan Krocker to serve in
the capacity of presiding judge of the mental health court.
Approximately 25 percent of the inmates in the Harris County Jail
have, or are suffering from, a mental illness - a fact that means the
jail is the largest mental health facil ity in the state of Texas. The
criminal justice system has historically ignored mental illness and,
consequently, criminal defendants with such illnesses traditionally
failed to get the treatment needed to keep them from ret1lming to the
system. By recognizing the need for a full-time mental health court,
the county is recognizing the need to repair a broken system.
Essentially, the mental health court is intended as a therapeutic court
in which defendants with mental health ailments will participate in
a judicially supervised treatment plan developed by mental health
professionals. Prosecutors, defense attorneys, probation officers, and
mental health professionals, along with substance-abuse treatment
providers and social workers, will work in a non-adversarial
environment to enable defendants to obtain treatment.
Eligibility would be determined at intake. Only 46 non-violent felony
offenses would qualify a mentally ill defendant to be sent directly to
the mental health court. A qualifying defendant would have to have an
Axis I or Axis 1I diagnosis or a cognitive or anxiety disorder to qualify.
(Among the qualifying diagnoses are schizophrenia, bi-polar disorders,
and major depression.) Additionally, defense counsel, the prosecution,
and the judge would have to agree that a particular defendant qualified
for the court
Once admitted to the mental health court, the defendant would be
evaluated by a psychiatrist and interviewed by a social worker.
Following a needs assessment, a treatment plan would be recommended.
Still being worked out are the details of how cases would be resolved
upon successful completion of the treatment plan.
One indication that a full-time mental health court can be successful is
found in the mental health docket that District Judges Mark Kent Ellis
and Marc Carter have handled for four years. Although the number of
cases handled in their courts have been limited due to budget restraints,
Judges Ellis and Carter have shown that individualized attention can
result in success for the mentally ill defendant.
The planning team for the full-time mental health court includes Judge
Krocker, members of the Harris County District Attorney' s Office,
myself, HCCLA President Joann Musick, past-presidents Robb Fickman
and Mark Bennett, and defense lawyers Hilary Unger, Nicole DeBorde
and George Parnham. Others who are providing input include: the
Harris County Probation Department, psychiatrists from MHMRA and
private practice, social workers, the Harris County Sheriffs Department,
HPD Crisis Intervention Team, Pre-Trial Services, treatment providers,
local ministers, LULAC, NAACP, various political staff members from
several state and local politicians, faculty members and physicians from
both University of Texas Health Science Center and Baylor College of
Medicine, the Harris County District Clerk's Office, representatives from
HCPC and the Rusk State Hospital, and the Coalition for the Homeless.
All participants have been vital to the effort to make a full-time mental
health court a reality in Harris County.
Pending approval of the necessary funding, the full-time mental health
court is scheduled to open in the Spring 2010.
THE DEFENDER @

IICtllJil1
Ilctl-c,ctS
C;C'llICt IC'IIICt
BYl'Arl'RICK F.
_
The Texas Legislature last session approved legislation
np,-rn,tt,r,o counties to create pre-trial diversion courts for
" ..t ....."'n". Harris County hopes to become a pioneer with its plan
J.)perate a veterans court under the supervision of228th
Court Judge Marc Carter.
.... " .. courts will allow veterans and current armed forces
members to obtain pre-trial diversion of their criminal cases
when they can demonstrate that a service-connected disability
was a factor in the charged conduct. Participants who complete
an agreed-upon treatment program will have their cases
dismissed and their records may be expunged. Because the
prosecution must consent to the diversion, there is a check on
which cases would be deemed eligible for the veterans court.
The idea for a veterans court originated with state Sen. Rodney
Ellis (D-Houston) and was supported by a diverse coalition that
included its House sponsor, state Rep. Allen Vaught (R-Dallas).
HCCLA, the Houston Bar Association, the Harris County
District Attorney' s Office, and a coalition of veterans groups
from across the state also supported the legislation. Association
past president Jack Zimmerman, who retired from the U.S.
Marine Corps with the rank of Colonel, testified on behalf of the
bill, as did his daughter, Marine Lt. Col. Terri Zimmerman.
With them was Judge Carter, himself a former Army Captain
and the son of a retired Lieutenant Colonel in the Army.
THE DEFEIDER
, , ;.\S 01: this \\f.-itillg, thu ,rntU-IlIiS
Inhis testimony, Judge Carter spoke
eloquently about a Marine who had won two
bronze stars, but who appeared before him as a
defendant as a result of the invisible wounds
inflicted by war. (These can include
post-traumatic stress disorder, traumatic brain
injury, depression, and frequently, substance
abuse.) Through the extraordinary efforts of
the court, the defense, and the prosecution, the
Marine was granted a felony pretrial diversion.
The Marine was due to have completed his
diversion contract in December and regained a
clean record.
It was that example - and the unusual
collaboration between many stakeholders in
the criminal justice system - that assisted in
passage of the veterans court bill. It is that
same spirit of cooperation that has helped in
planning the pilot program here.
As of this writing, the veterans court has been
approved by the district court judges and the
new Criminal Justice Coordination Council
and was slated to be considered by the Harris
County Commissioner's Court. The program
will start small. In its first six months, the court
will be limited to not more than 20 or so
carefully screened eligible veterans or serving
armed forces members.
Participants will be referred to the veterans
court in a variety of ways: screening at the
jails, individual referrals from judges or
defense attorneys, and any other way that
makes sense, provided that the candidates meet
the criteria. The veterans must be honorably
discharged or currently on active or reserve
duty. They must not have committed any
sexual offenses or any of the "3G" offenses
(though aggravated assaults may be considered
on a case-by-case basis).
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Individuals will be referred to the Veterans Administration for
services. These services will run the gamut from assistance for the
homeless, to group therapy or medical treatment once eligibility is
detennined. Participants will enter into a voluntary contract with the
consent of the prosecuting attorney to have their cases moved to the
veterans court docket in the 228th District Court.
State grants will be utilized to fund the case manager, clerks and
other staff required to operate the court, as well as the contract
attorneys who would represent the veterans. These attorneys ideally
will be individuals with military experience. For the fIrst six months
only a few attorneys will be needed to handle the case load, but as
anyone who has ever dealt with a veterans case knows, the cases can
absorb a great deal of time. The hope is that more attorneys will
commit to assisting at a later time once the program is under way.
With any luck and the cooperation of various agencies - mental
health organizations, the Veterans Administration, Commissioner's
Court, the district courts, the Harris County District Attorney's
Office and the bar - the project will be up and running by January 1,
2010. What better way to greet the New Year than by being a
witness to this county's extraordinary efforts to do the right thing for
those from whom we have asked so much?
DENNIS
* * * *---

II\IIRI' CUI 'n CMI\,,,,, Co.HI' ' 0 .1 3
' -%'-
TexasCriminalDefense
LawyersAssociation www.SlateforJudge.com
HarrisCounty
DennisSlateforJudgeCampaign
CriminalLawyers Association
112E. Forrest
Houston BarAssociation
DeerPark,TX 77536
713-409-3293 PastPresident
Pasadena BarAssociation
denni s@sl ateforjudge.com
AssociateJudgeserving
Polillcal paid by ()e(!nlsSial!!forJudie C3mpaiBn.JacquelineHoulette Tr easurer Houston and Pearland
Incompli ancewi(hthevo1untaf\llimitsoftheJudicialC8mpalBn FairM'is '
11IEIEFEIDEI
--
-
"If the enenlY is taking his
ease, harass him; if quietly
encamped, force him to
move . . . march swiftly to
places where you are not
expected. "
-Sun Tzu
l
" ... in the course of his
defense the defender can
fight a tactically offensive
battle by seeking out and
attacking the enemy as
soon as he invades his
theater of operations."
-Carl von Clausewitz 2
o
Strategy:
+
o

by Joseph W. Varela
Vivek Ranadive had a problem. He had agreed to coach his
daughter's National Junior Basketball team, essentially the Little
League of basketball. But at first glance, it appeared that he had
little to work with.
Ranadive was an immigrant from Mumbai. He was a graduate of
MIT who owned a software company. He had no experience with
basketball. His team, made up mostly of twelve-year-old suburban
girls, had two serious players, but the rest had never played the
game. None of them had any particular physical talents. He was
competing against well-coached teams of girls who played pickup
games every afternoon. The opposition was clearly superior. It
seemed to be a recipe for humiliation and defeat. )
Many times, an "outsider," working without preconceived notions
or ingrained habits, can discover unorthodox solutions to a problem
the existence of which insiders have failed to notice. Ranadive took
a hard look at basketball itself. He was perplexed at how after a
team scored, the players would immediately retreat to their end of
the court and await the opponent, who was allowed to advance the
ball unopposed until the last 20 feet or SO .4 In fact, the team in
possession was permitted to bring the ball inbounds unmolested,
and was further pennitted to arrange its players under the goal and
bring the ball near. Only in the last few seconds, when the offense
executed its prearranged scoring maneuver, did the defenders
respond. And this situation obtained at the highest levels of
collegiate and professional play. Each basket is ordinarily worth
two points. NBA teams score in triple digits regularly.s It was all
offense, no defense, by tacit agreement. Looking at it quantitatively,
on a basketball court, for most of the time, in most of the space, the
game was not contested.
6
THE DEFENDER
Ranadive thought that this style of play rewarded the
stronger teams, namely those who had the talent and
experience to better execute prepared plays under the goal.
More accurately, he thought that such a style tended to widen
the gap between the stronger and weaker teams. The problem
was how to narrow, and if possible, overcome that gap. Even
ifhis players had the physical talents to execute the technical
skills they would need to match the competition, Ranadive
had no time to teach those skills. What he needed was a
stratagem.
Ranadive's solution was what is known as the "full-court
press." This stratagem, reduced to its essence, is to contest
each and every move the offensive team makes, from the
moment it brings the ball into play. It is but rarely used in
traditional basketball, and then only briefly. What if,
Ranadive wondered, his team could use the full-court press
every minute and on every inch of the court?
And so he spent what little practice time was available
teaching his girls how to press, how to steal the bal1, how to
block passes, how to make only short shots. He spent most of
the practice sessions making the girls run, thereby building
the endurance conditioning necessary for such sustained
action. He taught his team to contest every foot of the court,
to stick to the other team like glue, to be everywhere at once,
to concede nothing. It was a style of play that allowed effort
and energy to substitute for skill.
They crushed the opposition. Regardless of the superior
experience and talents of the opponents, Ranadive's team
instantly dominated the games, jumped out to early leads and
held them. They upset the practiced plays of their opponents,
spoiled their timing, forced turnovers. They rattled the
opposing players, made them angry, made them panic, ran
them out of breath.
7
In one game when only four of their
players showed up, they lost by only three points. They
moved through the regional championships and into the
nationals, where they were final1y eliminated; but they had
played at a level far beyond that which their meager
resources should have predicted.
There are lessons for the defense lawyer.
When a criminal case commences, how is the defense lawyer
to react? Too many defenses resemble the traditional style of
basketball play. They concede the prosecution's opening
moves, fall back, and await the prosecutor's next move. The
case is reset over a period of weeks and months, and little
work is accomplished. Meanwhile the prosecutor is getting
ready for trial.
What would a "full-court press" look like? Like Ranadive's
girls, the defense lawyer must put forth great effort
immediately. Witnesses must be located and their statements
taken. Where applicable, visit the scene and get pictures,
before the scene changes. Crucial pretrial motions must be
filed and, where applicable, hearings held. Discovery should
be sought immediately; most Harris County state courts have
standardized discovery orders which the judge will enter
even before motions are filed; while these are by no means
complete discovery, they are a start. The criminal records of
all witnesses must be found. Legal research on critical issues
must be accomplished.
A steady stream of this kind of work is a full-court press. If
nothing else, the defense lawyer should be outworking the
prosecutor from the outset, and must be seen doing so. As
with Ranadive's basketball team, effort on the part of the
defense can compensate for the government's superior
resources. A prosecutor aware of such a vigorous defense
might think twice before tangling with it.
'THE ART OF WAR, chap.VI (James Clavell, trans. 1983).
20N WAR, Book VI, chap. 9 (trans. Michael Howard & Peter
Paret 1976).
JThe story is told in Malcolm Gladwell, How David Beats Goli-
ath, THE NEW YORKER, May 11, 2009. This author wishes to
thank Mr. David Adler for bringing it to his attention.
4I've wondered about this myself. What iffootball teams, after
turning the ball over to the opposition, fell back to their own 20-
yard line and awaited events?
5Think about baseball, a game in which the defense dominates.
Imagine if a typical Major League Baseball score was 53-48.
6In a very different sport, imagine a Tour de France in which the
cyclists agree not to compete until the last 10 miles of each stage.
Of course it does not work this way; attacks can and do happen at
any time.
7As this essay went to press, the University of Houston Cougars
were applying this stratagem to football! See Steve Campbell,
Coogs enjoy cramping opponents' style: UH'sfast-paced attack
often leaves defenses winded, HOUSTON CHRONICLE, October
21 , 2009, at http://www.chron.comJdisp/story.mpl!sports
Icollege/houstonl6679741.html (last visited Oct. 28, 2009).
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Part n, Investigating the Draw
MostdefenseattorneysthinkthataDWIprosecutionbasedon
drawn blood provides no avenue for adefense and that the
drawn blood is an evidentiary"lock."IhavefmUld thisto be
far from true when time and effort is taken to develop these
casesproperly.
Soonafterbeinghiredonablood-drawDWIyoumustsetup
an interview with the person responsible for taking your
client'sblood.Theinterviewwiththevampire(withapologies
toAnne Rice) should take place soon afteryour client hires
you.Youwanttointerviewthevampireassoonaftertheblood
draw, aspossible.Memoriesfade veryqillckly, especiallyfor
anurse who is drawing blood 5to 10 times aday. So don't
delay.
Tryingtotalktomerucalpersonnelcanbeilifficult.lfthedraw
wasconductedbyahospital,theywillwanttheirlegalcounsel
togetinvolved.Theirlegal counsel will want you toarrange
all interviewsthrough them. Don'tagreeto thatanddon'tdo
it. The nurse is awitness in acriminal matter. They cannot
keepthenursefromtalkingtoyou,providedyouhaveavalid
HIPAArelease signedbyyourclient. Forthem to advise the
nursetonottalktoyouwould violatetherulesofprofessional
ethics.' Criminal and civil rules are ilifferent with regard to
obtaining witness depositions and there is a long line of
criminal cases that give you the right to talk to any witness,
withoutinterference.
by Kelly w. Case
Ifthenursewillnotreturnyourphonecallsorwillnotagreeto
talk to you while on video, request adeposition. Awitness'
refusal to iliscuss whatthey know with you is grounds for a
depositionrequesU
Bring avideo camera and explain to them that you want to
focus ontalkingto themandnothaveto takenotes.Thiswill
bemuchquickerforthem,too,sinceyouwillnothavetowrite
everythingdown,wordforword.
Youaretryingtodetennine:
1) What procedures do they normally follow when drawing
blood.Dotheyreallyknowthecorrectprocedures?
2) Whatspecificproceduresilid thenurseusewhendrawing
yourclient'sblood?
The purpose ofthis interview is similar to anALR hearing.
You want to record the witness for lateruse, ifnecessary, to
either refresh their memory orrebutany testimony that may
have changed by the time oftrial. Develop your questions
before you meet with the witness. I use a checklist ofthe
procedures found in PhlebotomyEssentials) to make sure I
can quickly and efficiently utilize the time allotted with the
witness.
IREI&ElDER
Part ll, Investigating the Draw
Before beginning your blood lab quest, you must have copies of
necessary infonnation, either through subpoena or discovery
motion, in order for your time at the lab to be productive for you
and your client. If you are going to be dealing with the DPS
Crime Lab (located at 12230 West Road, Houston, Texas
77065-4523), use a subpoena The items you should request can
be found in Troy McKinney's blood discovery motion.
4
Send the
lab a copy of the signed court order in which you should have
included language authorizing you to review the evidence the
evidence at the lab.
Take the time to learn what you are asking for in your discovery
or subpoena. You will receive a CD from the lab with
approximate 1,500 to 2,000 pages of material. Once you have
fully reviewed the lab documents and know what questions you
will have about any issues or discrepancies, call the lab to
schedule an appointment to review the kit.
A major part of your trial preparation is inspecting the kit and
contents at the lab. The kits look similar to this:
There are three dates you must determine: the kit expiration date,
the individual blood vial expiration date, and the swab expiration
date. Swab packaging often is discarded at the time of the blood
draw so you must swiftly secure this evidence and preserve it for
inspection through a motion to preserve.
5
Can you spot the differences?
Take alook at these itemsfrom atesting kit.
Call you spot the differences?
"!O"OE" NO ., BUK200
EXP. DATE: MA... aI , 200t
LOT NO., lOl7
The kit expiration date is stated as uMarch 31, 2009," the blood vial
expirationis"2()()9.{)3"andtheswabexpireson"02/2010."
THE DEFENDER
Check the expiration dates against the date that the blood was
drawn, as well as the date the blood was tested. If the blood was
drawn after the expiration ofthe kits, the manufacturer's warranty
will not guarantee a viable test. Likewise, ifthe blood was drawn,
but not tested witlUn one year of the draw, the test should not be
admissible. The tubes are only warrantied for one year after the
date of the blood draw since their integrity is compromised
during the draw itself and because the preservative and
anticoagulant cannot stop contamination, but only slow down the
process. After a year, any testing will not be accurate, according
to Sirchie Labs.
Send a letter tto all law enforcement in your county requesting
that all of the original instructions and packaging be kept and
maintained as part of the body of evidence in your case.
Specifically, ask for all of the original contents of the kit to be
preserved including but not limited to "swab cover and all
instructions of use." The Texas kits are different and contain
different instructions than the manufacturer insists upon. Similar
to the Intoxilyzer 5000, Texas has substituted its own instructions
in these kits.
The Texas kits require "several" inversions of the vial after the
draw is complete. The manufacturer states that the tube must be
inverted precisely eight times. An inversion is equal to turning the
tube upside down and returning it to the original upright position.
lbis must be done precisely five times, no more, no less, in order
for the preservative and anticoagulant to be mixed sufficiently,
but not cause hemolysis, according to BD Vacutainer
instructions.
6
Attach the letter and green card receipt to your motion for
spoliation! suppression when it is inevitably determined that
the swab packaging and instructions have been discarded
and you will have a viable argument based on Massie v. State?
that you have been denied the right to independently verify
the expiration date on the swab.
Set up your appointment for evidence review by
sending the lab a copy ofyour order authorizing
you to review the kit. The DPS Crime Lab in
Houston will accept faxed copies. Call the lab for a date
and time for your review. Be on time and bring a legal pad,
camera and your lab file, which should at a minimum contain
the lab report for your case. This report will contain the lab
number and assist in locating the kit
When you get to the lab, you will check in at the main desk and
be given a visitor pass to go to the lab. You will go to the lab entry
area and wait for the lab personnel to remotely unlock the door.
Introduce yourself to the lab personnel and be ready with your
questions and your file so they can pull the test kit. Most of the
time, they will have the kit ready for you, but bring your file in
case they need their lab number to pull the kit.
Ask for and use the rubber gloves the lab will provide, or bring
your own. You will be handling human specimens, which require
you to adhere to the universal precautions for bloodbome
pathogens. Be aware that this can be dangerous material and treat
it accordingly.
When you first see the kit, look for dates and writing on the
outside before opening. Look for the "kit" expiration date on the
outside of the kit and note it in your records before you start
cutting through the tape. Photograph the date, if possible.
Look also at the labels used to mail the kit. Postal regulations8
require that human specimens must have this label affixed to the
outside of the package before they can be mailed:
If your kit does not have this sticker on the outside, get a photo of
the kit without the sticker. By violating postal regulations, the
arresting officer has given you grounds for suppression. File your
motion to suppress based on the evidence (specifically, the lab
results) being obtained in violation of 18 U.S.c. 1716(jXl).
THE DEFENDER
DWI Blood Defense:Part n, Investigating the Draw
For those in jurisdictions where law enforcement physically
delivers the kits to the lab, you should checkthe date the blood
was drawn against the date the lab received the kit. It is not
unusual forkits to be keptinthetnmk ofthe officer's"unit"for
several months before being used to collect blood. Nor is it
unusualforthekitsusedforblooddrawstoremaininanofficer's
trunk for over a month before being delivered to the lab. Ask
aboutthe locationofthekitbothbeforeandafterthetestinyour
ALRhearingsoyouknowwhatsortofconditionthekitwasinat
the time. Don'tbe deterred when the officer tells you that no
contamination could possibly have occurred even though the
blood spent a month in a car tnmk during one ofHouston's
summermonths
In fact, unless drawn blood is refrigerated inunediately, the
accuracy ofany testing is suspect. When questioning your lab
analystabouttheirrulesforrefrigerationand thetimeframethey
must follow upon receiving the kit, ask whether a kit that can
remainunrefrigerated for as longas your kit, is still considered
accurate.ThiscancountertheTrooper'sfallaciousassertionsthat
blood does not have to be refrigerated and can provide you
enoughofadefensethatyourADAwilldecidetonotprosecute.
You will find forms and labels such as
these within the blood testing kits. Each
fann should be filled out completely so
therearenoquestionstobeasked.
(PLACEOVER
BOT7l.ECAPISLOOD
TUBESTOPPER)
(PLACEOVER
BOTn.eCAPISLOOD
TuSESTOPPER)
(PLACEOVER
BOTTlECAPI8LOOD
TUSE STOPPER] .:

THE DEFENDER
If theStatereallywantsto takeoneofthese"disappearing"kitsto
trial make sure that you obtain the documentation necessary to
attack the chain ofcustody.There is much fertile ground here
because records are notkept very well about the location where
blood is stored.Iam notawareofanypoliceagency- evenDPS
substations - thathave the capacity to refrigerate blood. Butyou
willneedtoknowspecificallywherethebloodwasstored,forhow
long,whether it was mixed with othervials,and whether the kit
packagingand labelingwerethrown outto savespace.TheALR
hearingshouldbetheplaceto learnthis,nottrial.
Next, you will open the box kit and lookatthe written contents.
Thesearetheformsandlabelsthatcamewiththekitandshouldbe
completely filled out so there is no question about whose blood
was drawn, whodrew the blood and who took possession ofthe
blood vial after the draw. These are also a part ofthe chain of
custodyandshouldbeproperlymaintained.Thearrestingofficeris
supposedtofullycompleteallofthewrittencontentsand labelsto
correctlyidentifYthebloodvialsasbelongingtoyourclient.Ihave
neverseen the written forms fully completed,so you shouldnote
this fact. Itmayassistyou in developingthe"sloppypolicework"
argument to a jury. Again, photograph the written materials or
anythingthatyou believetobesuspiciousormissing.
CONSENT FORM (BLOOD)
POLICEOFFICER'SREPORT(BLOOD)
TI' .IE
NP-/.IE OfSUBJECT 0;"1
OFFENSE__ TIME__AM.Pa"I
OATE OfINCIDENT_
nAMC OF SUBJECT, PFbN11
POLI CEOFFICER- - .-.M.p",. I hil'Je granteci permi SSion 10f blood samples10 be
DAl eBLOODDRAWN_ 1IME__
l aken.
LCCJ\lIQN OF DRA.WI HG - --
BLOODDRAWNBY Sir.I.,JA1IJRF Of su8JfCT
CONSENT FORM (URINE)
MPM
/10 ':"'.1
OATC
I/!\Mt! Uf II' ''' N- I
ranled permISSIon lorunne sampl es: :> oe
SIJ:lCHIE
C4T. NO.8UfC2S0
=
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C4T. NO 8U."
. n2S0
Verify that all fonns have been completed and photograph them or
note the name of the form and all of the information contained
thereon. Check this information against the chain-of-custody
docwnents to detennine if dates have been listed incorrectly or
there are any defensible issues such as missing chain of custody
witnesses. While chain-of-custody issues often go to weight and
not admissibility, you may be able to raise doubt with jurors and
sufficiently frighten the prosecutor so as to improve the offer for
your client.
The blood vial itself should be wrapped in the white cotton lining
inside a plastic baggie within the kit. Carefully open by
unwrapping the lining and make note ofany blood contamination
that may have leaked out on to the white cotton lining. Dried blood
can sometimes resemble bits of dried, brown grass clippings, so
pay attention and note any discolorations on the cotton lining. If
you do note anything that appears to be blood, or anything else, ask
the lab personnel if they will test the cotton \-vrap with a
presumptive test for hwnan blood. Sometimes they will do this
and sometimes they won't; it depends on who helps you.
I bring my cell phone and photograph the contents and any
contamination for later review. The lab personnel do not mind, so
be thorough and precise when reviewing this evidence. I also
dictate everything I witness as I am opening the kit because it is
difficult to take notes with rubber gloves on.
After you remove the cotton lining, the blood vial- with two types
of tape covering it - will remain.
The DPS Crime Lab uses evidence tape to cover the blood tubes,
after they have tested the contents. They cover the tube top and
sides with this tape. This is in addition to the manufacn.rrer's tape,
which is placed over the blood vial after the draw. It should be
labeled with the subject's identifying information such as name
and date of birth, at a minimum. This evidence tape is very strong
and will adhere and tear the underlying manufacturer's
identification tape and the labeling and expiration dates on your
tube, so you must be extremely careful when peeling it back
during your inspection. Ask for Mr. Gibson's help so that he can be
the one to destroy the label, not you. Ifpossible, read through the
tape, to detennine the expiration date on the blood vial.
You are seeking client's identification on the tape covering the
blood tube, as well as the tube's expiration date. Both may be
covered by an additional layer ofevidence tape.
Note all of the additional contents of the kit. If you are lucky, the
kit instructions will be included. Ask for a copy of these instruc-
tions and compare them to the manufacturer's instructions for the
kit and blood vials.
Close the kit and return it to the lab personnel. They will tape it
shut. Clean your work area for the next person. The last thing we
want to do is make the lab personnel clean up after us and thereby
cause a problem for the next person with a blood case.
ITex. Disc. R ofProf. Conduct, Rule 3.04(e).
2Tex. Code ofCrim Proc. art. 39.02.
3Ruth E. McCall and Cathee M. Tankersley, Phlebotomy Essentials,
4th Ed. (Wolters KJuwer Publishing 2(08) (ISBN 978-0-7817-
6138-3).
4 Contact me at kwcase@caselawpUc.com for a copy of the motion
that Mr. McKinney drafted and has so graciously made available.
5 See Kelly W. Case, DWl Blood Defense: Part I, Initial Client Contact
and Discovery, The Defender, at 12 (Fall 2(09) (discussing motions to
preserve evidence).
6 For the inversion instructions, refer to Becton, Dickinson and
Company's guide on its website at
http://www.Ixl.com/ca/pdfslVSS729-
4%200rder%200fOIo20Draw%20Jun%2004.pdf(last visited Oct. 28,
2009).
72008 Tex. App. LEXIS 2442 (Tex. App.- Houston [lstDist.] Apr. 3,
2008) (not designated for publication).
818 U.S.c. 1716U)(1), which states: "Whoever knowingly deposits
for mailing or delivery...unless in accordance with the rules and regu-
lations authorized to be prescribed by the Postal Service, shall be fined.
..or imprisoned." Violation of this law is a federal misdemeanor.
Kelly W. Case is an experienced criminal dtfense lawyer who
practices in Galveston, Harris and Montgomery counties. This
is the second oja series ojarticles on DWI prosecutions based
on blood draws.
THE DEFENDER @
In Pursuit of the Snow Leopard
by Patrick F. McCann
The greybeard leaned his long, wizened frame
against the rock around the campfire. The
young faces turned towards him eagerly,
seeking the wisdom for which he was famous.
They had come to hear of a legend, a legend
they could only dream about as none of them
had actually seen this mythical creature. The
greybeard cleared his throat, and his deep
gravelly voice boomed out over the flickers of
flame. "Let me tell you, children, about the
personal recognizance bond ... "
The personal recognizance bond is, to put it frankly, dead in
the district courts here, against all law, reason, and
constitutional history. It is in better shape in the county
courts, although "better" in a cancer ward is a relative term.
There one can still occasionally find it, though in far less
numbers than they should be issued. In this article, the writer
hopes to illustrate just how bad the situation has gotten,
based upon public information released by the Harris
County District Clerk's office. This article will also put
forward a proposal to help improve tills situation, which the
author believes has directly contributed to the enormous
over-crowding in our Harris County Detention Center.
A personal recognizance bond is exactly what it states: a
bond where someone is released upon their promise to show
up, with no cash posting to offer surety for their appearance.
At one time PR bonds were conunon. If a court could not
find a rational bond amount, it would conduct a screening of
the person's job history, residence, and the person's
possession of a phone and car to ensure they could get down
to the courthouse. These bonds are provided for in law, and
in tradition, established during a time when the goal of the
courthouse appeared to be geared a bit more towards a fair
and humane dispensation of justice as opposed to our
current plight. In case you younger lawyers are confused,
that screening was the reason Pretrial Services was
established - not to administer drug tests on people who
have already posted cash bonds or to help ICE locate
undocumented inunigrants.
THE DEFENDER
This began to change after the 1994 elections. It was not
immediate, but gradually the issuance of these bonds
became less and less common. That brings us to the
situation today, and it is a grim one. In 2007, the last year
information had been completely compiled, the issuance of
pretrial bonds in the district courts fell to less than one half
of one percent of those screened. That is correct: one half of
one percent. Of the 30,121 people screened by Pretrial
Services in 2004, only 109 PR bonds granted. In 2005, only
110 PR bonds were granted out of 31 ,345 defendants
screened. For 2007, the percentage was slightly better,
running at .043 percent.
Looking at the data another way, this means that your
chances of being struck by lightning in your lifetime
(slightly greater than lout of 500) are much greater than
your chances of being granted a PR bond on a felony case in
Harris County. While this may not be comforting to golfers,
it should be truly disturbing for those who represent the
indigent in the Harris County criminal courts.
The county courts fare only slightly better, but the reason for
this may be that many bonds there are much lower than in
the district courts; the working person may find county court
bonds more in reach, and thus a smaller number of
defendants may be seeking PR bonds in the county courts.
For 2004 to 2007, the county courts issued, on average,
about 7 percent of their bonds as PR bonds. This actually
went up as a trend, going from 6.75 percent in 2004 to 8.33
percent in 2007. As a whole, the county courts also place
fewer people on cash or surety bonds on release under PTS
supervision, both in real numbers and as a percentage. The
number of people who were supervised on county court
dockets actually went down as a percentage, going from 4.5
percent down to 3.9 percent from 2004 to 2006. In real
numbers they were also less than the cash/surety folks that
the district courts supervised under PTS. For example, in
2004, the district courts placed 2,998 people on PTS
supervision, and the county courts placed 2,114. On
average, the district courts placed about 10 percent of their
cash/surety bonds on PTS supervision. This has created the
phenomenon of "pre-trial probation" that has become so
onerous, and led to a revocation rate for bonds far higher
than normal in the district courts.
For example, in 2006, the district courts revoked pretrial
release for 918 of defendants who had posted a cash or
security bond. Only 198 of these revocations were for
failing drug tests, and as anyone who practices here knows,
there is no real pretrial drug treatment available for clients,
only the happy option of failing a test administered by
harried and overworked public servants who probably
thought they would be doing something more positive in
this agency.
County court revocations, by contrast, were only 159 in
2006, for the nearly 2,000 people they had under pretrial
supervision. The yearly average for district court
revocations appears to be approximately 650 or so
individuals who had already paid a bondsman.
What does all this data mean?1 It means that if you are
indigent, you will stay in jail. It means that even if you post
bond, the judges in district court often will revoke your
bond. If you are looking for a reason the jails are
overcrowded, let me lay this problem at the feet of those
who have largely2 caused it: our district court judges, too
many of whom have gone so long without actually looking
at these cases for genuine granting of a PR bond that they
have frankly forgotten such things exist.
To be fair, our bar also has forgotten how to ask for these
bonds in felony courts. There are certainly individuals
whom everyone agrees, no matter what their poverty, should
not be on the street as they are a public danger.
However, as the reader sits perusing this article over a cup
of coffee, there are over 3,000 felony accused awaiting trial
in the Harris County jail on any given day. Not convicted,
awaiting triaL Surely there are sufficient resources available
to divert some Pretrial Services folks from their current odd
purpose of seeking to catch unwary bonded folk to their
original reason for being, which was to assist the indigent
accused in meeting the obligation to get to court. Even if the
revocation rate decreased it would make at least some dent
in jail overcrowding, which has now resulted in our clients
being shipped off to Louisiana or to distant counties in
Texas, making communication with them all but
impossible.
What, if anything, can we do about this sad state of affairs?
I. Ask for these bonds. Ask, and keep asking until the
courts weary of telling you "no".
2. File the pre-trial habeas writs, which would allow us, in
meritorious cases, to put this local policy on trial before the
appellate courts.
3. Put these judges on the spotfor this election. Ask them
repeatedly at every bar association or luncheon: Why won't
you grant more PR bonds?
We as a group, and as individuals, must also speak out about
this problem at Commissioner's Court, at the new Criminal
Justice Coordination Council, and at every church and
community function we attend. We must ask our county
commissioners and state representatives why the Pretrial
Services agency is being ill used, and why it cannot be
returned to its original mission?
The data does not lie These bonds are virtually extinct,
much like the snow leopard mentioned in the beginning of
the article. Ifwe as a bar and as a community wish to restore
a measure of sanity and respect for the poor who are trapped
in this system, then we are the only ones who will raise this
issue. And we must raise this issue or the death of the PR
bond will be a very real thing that we will see in our
professional lifetimes.
IThis data is available from
the District Clerk's Office.
Readers who wish to view it
in the form in which it was
sought should contact
HCCLA.
2The collapse of our mental
health system also bears some
measure of responsibility for
jail overcrowding.
Patrick F. McCann thanks
Robb Fickman and Amanda
Webb for their diligence in
gathering information upon
which this article was based.
ForensicScience
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THE DEFENDER
For Judge 1B4th Criminal District Court
Richard"RaceHorse"Haynes
SteeringCommitteeChair
+
CommitteeMembers
.. Dick DeGuerin* .. Dan Cogdell*
.. Robert Fickman* .. Gerald Bourque
Lana Gordon StanleySchneider**
.. KentSchaffer** Brian Wice
+
.. Troy McKinney*
CynthiaHenley*
.. Mark Bennett*
Robert Morrow
Robert Scardino .. JoAnne Musick*
.. David Bires**
RandySchaffer
Ten (10) Presidents o/HCCLA* & Three (3)Presidents o/TCDLA**
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Current HCCLA Member Supporters
JenniferHodgesKahn+ AdrianAlmaguer+ Carmen M. Roe+ BillHabern+ KimberlyJ. Samman+ D. BretEvans
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SarahV.Wood+ Carl R. Pruett+ MelissaMartin+ RobertH.Tuthill+ SunshineSwallers+ GeoffL. Womack
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YouCanJoinOurGrowingSupporterList
BySendingAnE-MailTo:Judgejwb@AoI.Com
DonationsShouldBeMadePayabletoBurnett4 JudgeCampaignMailed
To:
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labor donated - In compliance with the voluntary limIts of the Judicial Fairness Act.
THE DEFENDER
allen
Wat'rior;s
Clyde Woody
Clyde Woody, known for his successful advocacy in
the United States Supreme Court and his high-profile
clients, died on October 3,2009, from the complications
of Alzheimer's Disease. He was 89 years old.
Among his many appellate triumphs, Woody briefed,
argued and won Aguilar v. Texas, 378 U.S. 108 (1964),
which established one prong of the Aguilar-Spinelli test
for evaluating probable cause. He also obtained vacatur
and remand on his certiorari petitions alone in Barnes v.
Texas, 380 U.S. 253 (1965) and Etchison v. Texas , 378
U.S. 589 (1964). And, as proof that the gods do have
a sense of irony, Woody was on the defense brief in
Illinois v. Gates, 462 U.S. 213 (1983), which replaced
Aguilar-Spinelli with the "totality of the circumstances"
test for probable cause.
Woody and Marian Rosen, his law partner for 25 years,
were celebrated for helping secure an acquittal - with,
as Brian Wice noted, the "considerable help of Percy
Foreman" - for Candace MossIer and her nephew,
Melvin Powers, after the two were accused by the state
of Florida of murdering Mossier's millionaire husband.
During his 45-year practice, Woody's client list included
Judy Garland, Baron Enrico DiPortanova and Harris
County Sheriff Jack Heard.
"Clyde was the first boss I ever had," Wice recalled. "In
the year that I worked for him, Clyde taught me how to
read a record like a detective novel , looking for clues to
how the trial was unfair, how to write a brief that told a
compelling story and how to always win the moot court
round at the oral argument."
In 1989, Woody's wife, Paula, joined his law practice
until his retirement in 1991. In addition to Paula,
Woody is survived by two sons, Allen and Todd, three
grandchildren, one great-grandchild, and Woody's
brother and sister. The family requests that donations
be made in his memory to Alzheimer's Research,
640 Jackson Street, Mail Stop 112018, St. Paul , MN
55101-2595.
Esteban "Steve" Pena
Esteban "Steve" Pena, who had a busy criminal defense
and civil practice, died unexpectedly on September 4,
2009. He was 35 years old.
Pena graduated in 2000 from the South Texas College
of Law and plunged into the practice of law in Harris
County. He was a frequent sight at the Harris County
Criminal Justice Center, in the family courts and in the
county's civil courts.
Pena is survived by his wife, Xi omara, his parents, Martin
C. and Lourdes B. Pena, his and his brother, Obed.
THE DEFENDER
Computer-Ease
by Mark Hvizdos & Lester Lavin
What is the best way to provide security for my system?
Thi s can get quite detailed, but, in short, security must mitigate the risk of
catastrophic events that may compromise your system and data whether due to
internal , external, or environmental events. System passwords, antivirus software,
data back-up routines and regular update procedures must be maintained as an
established discipline. [t would be wise to work with your IT consultant to introduce
components and procedures that will provide the necessary level s of protection.
How do I maintain my computer system?
There are two choices: Proactive or Reactive. One thing is cel1ain: "stuff' happens.
So, do you want the opportunity to avoid that "stufj" or do you prefer the suspense?
It ' s your business! The best proactive stance will establish and maintain security
protocols, software updates and monthly or quarterly preventative maintenance (PM)
activities and logs.
How do I manage all of the aspects that contribute to my
system's performance and reliability?
As an attorney, what advice would you give a client regarding the management of
legal matters? Many of the day-to-day procedures that are performed, such as data
back-ups and security protocol, can be managed by internal resources and individual
users. PM' s (the scheduled depositions or COUl1 dates of your IT program) require a
technical knowledge and discipline to assess the situational developments or "new
evidence" generated from within your system. Use a trained and qualified technician
to perform your PM's.
Do I need to be networked?
Do you have more than one computer? It makes good business sense, it makes work
life simpler, and it doesn't cost much .
What is the best network configuration?
A peer-to-peer network is a simpJe and cost effective way to "daisy-chain" office
computers and share office files, printers, and the internet. This is generally the best
network confi guration for small businesses.
What is my best choice for an office workstation computer?
A PC running XP Professional with the following recommended minimums for
running standard office software: JGB RAM; 1.6 GHz processor; 40GB hard drive.
bhat is the best System(OS) to use on business
first and foremost , don ' t buy any OS within the first six months of its release.
Secondl y, don't buy any OS within the first six months of its release. (Just trying
to drive home the point!) The last Microsoft product that passed the six-month
acceptance test was Windows XP, thus receiving first recommendation. That said,
Windows 7 looks promising for having been out only a very short time.
Lester Lavin and Mark Hvizdos operate Bayou City Connected, an IT services firm.
Their next coLumn wiLL discuss computer system management and networkingJor the
small business.
THE DEFENDER
Investigative Corner:
The Role of the
Defense Investigator
by Jim Willis
An important part of any successful defense team is a good
investigator. The team member's main duty is to review
and validate the work product of law enforcement. In order
to perfonn as a qualified defense investigator, one has to
have acquired training or experience which would allow
one to be able to recognize errors or omissions. In addition,
the investigator must know proper procedure during the
initial police investigation. The investigator must have the
confidence to talk to all witnesses and to review and verify
all the evidence in a particular case.
How can I be sure who I am hiring? What type of
experience does this investigator have? What types of
training has this investigator had? How many cases has
this investigator worked? These are all questions that you
should ask when hiring an investigator. At the end of the
day, your success depends on your defense team.
All investigators in Texas must be licensed and are
regulated by the Department of Public Safety. Continuing
education must be obtained. There are numerous
conferences and organizations to obtain all the credentials
to become a professional investigator.
Once your investigator has been hired, it is time for the
defense team to put a plan into action. The investigator
has to interview all witnesses identified by the defense
team. Many times additional witnesses are uncovered
through interviews. The investigator reviews all the
accumulated statements and evidence with the defense
team to detennine if any additional clarification is needed.
The defense investigator has to possess the self-confidence
to act professionally and independently, and be able to
interpret infonnation correctly. It is of no benefit to you
to constantly "hand hold" your investigator who, after
several hours of work, has nothing to report. What is more
frustrating than chasing a dead-end lead than to have to
read a 10-page report about it?
Results!!! We all want positive outcomes. If the
investigator does his job thoroughly, then you as the
lawyer will have the answers to deliver the best case
possible. A good investigator's knows and has experience
with: physical evidence, crime scene reconstruction, blood
stains, fireanns, and photography. The art of conducting
interviews comes with experience. Some investigators
have the ability to get people to visit with them, but more
important is the art of being able to read a person. You
want the truth and your investigator must be able to go and
get it.
As experience is gained, the investigator knows where
to look for answers. Plus, the investigator will be able to
assist in the organizing of more complex cases. A good
investigator on your defense team will assist you and ease
the already stressful arena of criminal defense.
My final thought: as a criminal defense investigator I have
a huge responsibility to my clients. My work changes the
lives of people everyday. What we do can impact others
forever.
Jim Willis is a private investigator with Benken &
Associates. He may be reached at 713-223-4051 and
jwillispi@aol.com
THE DEFENDER @
THE DEFENDER
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