spring 2018

REMEMBERING THE MAN, THE LEGEND

Richard “Racehorse” Haynes
April 3, 1927 - April 28, 2017
 WHAT’S INSIDE SPRING 2018
CLE EVENTS LETTER FROM THE
EDITOR
WINNING WARRIORS INITIATION
EARNING YOUR STRIPES

2
MAY 17
First Court of Appeals CLE EVENTS
301 Fannin St. LETTER FROM THE EDITOR
Houston, Texas 77002

“ ”
So many stories of where I’ve been and how I got to where I am…
ANY QUESTIONS?
Visit the calendar at www.hccla.org
Brandi Carlile

2017 was an epic year for our organization, and I believe, a turning
4 OFFICERS, BOARD OF DIRECTOR
PAST PRESIDENTS

5
point for us. We lost one of our founding members, Richard ‘Racehorse’
Haynes, and the memories so many have of his greatness as a man A WORD FROM YOUR PRESIDENT
and as a lawyer are shared with us in this issue. A very talented artist BY TUCKER GRAVES
illustrated the cover, and I am absolutely amazed at the dignity and
power depicted in this portrait.

In 2017, we also weathered Harvey, a storm that is still impacting our

lives everyday because we are still displaced from our home building
and will be for the foreseeable future. Before Harvey made landfall,
7 WINNING WARRIORS

another storm rocked the criminal justice system: the bail reform lawsuit

11
HCCLA NEWS ROUND UP
and the ruling made by Judge Rosenthal that all misdemeanants must WELCOME NEW MEMBERS
be released from custody within 24 hours. This issue is still impacting BANQUET SAVE THE DATE
our world because of the confusion over court appearance dates after
defendants’ release, the disclosure by one of the magistrates that they
were instructed to not give P.R. bonds, and the county court judges
denying such allegations. I am hopeful that truth and justice will prevail
and that all parties will sit down to implement a solution for all involved.
It doesn’t seem that difficult really: begin the process to verify the
12 2017 HCCLA HOLIDAY PHOTOS
PHOTOS BY BOB ROSENBERG & RUSSELL WEBB

contact information for all misdemeanants arrested at the beginning of

the intake process. Those who cannot have their information verified
REMEMBERING RACEHORSE
RICHARD HAYNES: WARRIOR, / 16
should be given bonds that are within a reasonable range from $50 -
DEFENDER, DEAR FRIEND 6
$1000, depending on the nature of the crime. If a defendant is homeless,
BY CHRIS TRITICO 6
direct him/her to resources available to obtain what may be needed,
such as identification, medication, application for assistive services. If ALEX BUNIN REMEMBERS / 18
the case is a trespass, give a P.R. bond to give that defendant a chance BY ALEX BUNIN 6
to appear in court, and if he/she cannot make it, then the judge can

14
forfeit the bond. Do away with unsecured bonds completely. Make all MY FAVORITE RACEHORSE MEMORY / 19
court appearances upon release from jail be 1 week after release. It BY JERRY PATCHEN 6
does not have to be complicated! MY EULOGY FOR RICHARD HAYNES / 21
BY JACK ZIMMERMANN 6
Now that that is out of my system…
I am very grateful for all those who contributed to this issue. Joe Varela IN MEMORIAM OF RACEHORSE / 24
put together a fine piece about the President’s pardon power. The BY ROBB FICKMAN 6
tribute to Racehorse features articles by the men who knew him best
as well as those affected by him, and I am honored to publish them RANDY SCHAFFER / 27
together as a collection. The last piece of this issue features a story that REMEMBERS RACEHORSE 6
needed to be told, and I am glad that it has finally gone to print. It all BY RANDY SCHAFFER 6
started when I was a captive audience to Robb Fickman. We represent
co-defendants in a federal case out of Galveston, and I had the lovely OUR HERO, “RACEHORSE” / 27
idea to carpool to Galveston with him. He drove and talked my ear off, BY ROBERT PELTON 6
but it was mostly enjoyable because of this story that he shared with
me that appears in this issue. Earl Musick told Robb this true story
long ago, and Robb wanted it included in HCCLA’s magazine. Robb

28
recorded Earl’s telling, did some research, and began to write, but like PARDON ME
other great authors, the story was never finished. Life, work, family took THE WEAPONIZATION OF CLEMENCY
over and the story sat waiting to be told. Once he shared with me in BY JOE VARELA
the car, I knew the perfect person to finally give life to this story – Rick
Oliver. Rick is a ridiculously talented writer, and once I received it for

32
WAR STORIES
editing, I devoured it in one sitting. The story is phenomenal, and I truly HONOR & THIEVES
hope you enjoy reading it as much as I do. BY RICK OLIVER

-HAPPY VERDICTS- Lori Botello
 4 C. ANTHONY FRILOUX
5
STUART KINARD
the defender
THE DEFENDER / SPRING 2018

THE DEFENDER / SPRING 2018

GEORGE LUQUETTE
PUBLISHER
MARVIN O. TEAGUE
HCCLA
DICK DEGUERIN
EDITOR
LORI BOTELLO W.B. HOUSE, JR.
ADS & DISTRIBUTION
past presidents DAVID R. BIRES

a word from your president

EARL MUSICK WOODY DENSEN
CHRISTINA APPELT
1971-2017 WILL GRAY

Tucker Graves
DESIGN & LAYOUT
BROCHURE BUILDERS
EDWARD A. MALLETT
BRANDI DELOACH CAROLYN GARCIA
WWW.BROCHUREBUILDERS.COM
JACK B. ZIMMERMANN
COVER ART
CLYDE WILLIAMS
THE PORTRAIT OF RICHARD “RACEHORSE” HAYNES WAS PAINTED
BY TREVOR GORING AND USED WITH PERMISSION. ROBERT PELTON We’ve made it to 2018, but with a lot of hitches in our Harvey created very unique problems for all. It will
THIS PORTRAIT WAS COMMISSIONED BY DAN COGDELL AS A GIFT
CANDELARIO ELIZONDO gitalong. I want to give the members an update on where continue to challenge us for quite some time. By the
TO RACEHORSE, AND IT WAS DISPLAYED IN RACEHORSE’S FOYER.
ALLEN C. ISBELL we are and where we are headed in 2018. very nature of what we do, we know what it is like to
UPON RACEHORSE’S DEATH, THE PORTRAIT WAS RETURNED TO
go against seemingly insurmountable odds. I urge all
DAN COGDELL’S OFFICE, WHERE IT IS DISPLAYED TODAY.
DAVID MITCHAM First, I have been blessed with a tremendous Board who
members to push cases to trial and don’t be afraid of the
does so much of the heavy lifting. You, the membership,
JIM E. LAVINE current set up. Your client deserves his day in court, if he
have elected some incredible individuals that take their
RICK BRASS so wants it, and it is up to us to push the state AND the
job seriously and work on your behalf. For the most part,
judges to see that it happens.
2017-2018 MARY E. CONN serving on behalf of HCCLA is a thankless job. These

Hccla officers & board KENT A. SCHAFFER

DAN COGDELL
board members work behind the scenes to ensure that
our voice is heard at the courthouse and throughout the
county.
Felony jail dockets have been a problem, but things seem
to be getting better. Firm schedule is now in place and
seems to be consistent. If you take court appointed cases,
JIM SKELTON PLEASE visit your client prior to jail docket and relay
Financially, the organization is on solid ground, but it
GEORGE J. PARNHAM any offer or discuss the case if need be. We all thought
PRESIDENT EXECUTIVE DIRECTOR could always be better. Steve Halpert, our long time
GARLAND D. MCINNIS holdover cells were bad for privacy; this situation is much
TUCKER GRAVES CHRISTINA APPELT treasurer, has done a great job in managing our money.
worse. There has also been some concern about security.
ROBERT A. MOEN Expenses have increased in recent years in part because of
HCCLA has addressed this with the Sheriff’s office. It’s
LLOYD OLIVER new technology. Our biggest expenses are The Defender
PRESIDENT ELECT BOARD OF DIRECTORS still not perfect, and we have to realize it probably never
magazine and Reasonable Doubt, the TV show.We are
DOUG MURPHY STACI BIGGAR DANNY EASTERLING will be given the circumstances.
also improving our presence on social media, and this
LORI BOTELLO WAYNE HILL is reflected in numbers across the board. We are always HCCLA is also working with the DA’s office about the
VICE-PRESIDENT JENNIFER “JL” CARPENTER RICHARD FRANKOFF looking at ways to trim costs and thus are considering all systematic ex-parte communication between the DA
THUY LE EMILY DETOTO W. TROY MCKINNEY options. and the judge. This is particularly true when it comes
KATE FERRELL to bond revocations. How many of us have walked into
CYNTHIA HENLEY We have a lot of past due members.If you are one of
SECRETARY ROBERT J. FICKMAN court looking for our client only to find that they are in
STANLEY G. SCHNEIDER them, please re-up as soon as you can. As you read on,
the holdover cell and the order revoking their bond has
DAVID RYAN JUSTIN C. HARRIS you will see what we are doing and you will know that
WENDELL A. ODOM, JR. already been signed by the judge? The higher ups in the
GEMAYEL HAYNES your dues and your membership are worth it.
ROBERT J. FICKMAN DA’s office agree this is wrong, and we are working on
TREASURER JORDAN LEWIS Some members feel like we are the proverbial red-headed educating the clerks and the judges that this practice is
STEVEN H. HALPERT PAUL M. MORGAN PATRICK F. MCCANN improper. We are required notice!
step child and that we are not taken seriously. That may
DAMON PARRISH II MARK BENNETT have been true at one time, but this organization has come
HCCLA continues to provide its members affordable
PAST PRESIDENT JED SILVERMAN JOANNE MUSICK a long way in the last 20 years. We now have a solid
(in many cases, free) CLE. The law and the strategy
dialog with the administrative judges, commissioner’s
TYLER FLOOD WADE B. SMITH NICOLE DEBORDE to properly defend your client is forever changing. I
court, and the press. We have a representative on all major
MARK R. THIESSEN EARL D. MUSICK encourage our members to attend an HCCLA CLE and
committees, from the rebuild of the CJC, to the bail bond
J. JULIO VELA learn from some of the best.
CHRISTOPHER L. TRITICO overhaul and the fee structure for court appointed cases.
JOE VINAS T.B. TODD DUPONT, II Will they listen to us? That’s a different question. Like
SARAH V. WOOD the Rolling Stones once sang, you can’t always get what
CARMEN M. ROE
you want, but sometimes you get what you need.
JOANNE MUSICK
 6 7
THE DEFENDER / SPRING 2018
HCCLA will not tolerate judicial or prosecutorial
misconduct. Over the last 20 years, we have filed
numerous complaints against judges and prosecutors.
Yes, sometimes we feel like Don Quijote going against
a windmill, but we will not shy away from what is right.
There are many other things that HCCLA is doing
behind the scenes for the betterment of its members
and the practice of criminal defense.
There have been some rumors that in order to receive
a frequent courthouse visitor badge, we might have to
now be fingerprinted. We might also have to have our
bags searched. This is utterly ridiculous and we have
joined with the Houston Bar Association in opposing
this. Right now, it is just talk from the county’s side,
but we intend to stay on top of this.
And:
Once again, weather related activity disrupted the
courthouse schedule with the recent wintery weather.
We have 38 courts that cannot seem to operate in a
unifying fashion when it comes to closures. We have
been in contact with the presiding judges in order to
change this. The proposal is to link the courts decision
to what HISD decides in the form of a STANDING
ORDER applicable to all courts. Of course, it’s like
herding cats, but then again, this job has made me the
ultimate cat herder.
CONTINUED : A WORD FROM YOUR PRESIDENT
Let me end by saying that I am extremely humbled
and honored to be your president. I want to thank the
membership for giving me the opportunity to serve this
great organization. To do what we do is a true calling.
I have known this was my career path since I was 14.
Others may have found it differently. We all seek the
same: justice for our clients.
May 2018 be one of
dismissals and
two word verdicts.
LIKE A HURRICANE STUCK
OVER A BAYOU, THE
MEMBERSHIP UNLEASHED
A FURY AND FLOODED THE
COURTHOUSE WITH SUCCESS!
••••••••••••••••••••••••••••••••••••••••
Woodrow Dixon had a jury deliberating for 3 hours
on Sexual Assault the day before Hurricane Harvey
hit. The jury was brought back 2 weeks later, resumed
deliberations, and acquitted!
••••••••••••••••••••••••••••••••••••••••
Matt Alford had completed evidence but not held closing
arguments on CSA in DC185 when Hurricane Harvey hit.
Nearly 2 months later, closing arguments are held and D
was acquitted.
••••••••••••••••••••••••••••••••••••••••
Tyler Flood is drowning the State in biblical fashion. First
D is .16 blood DWI, open container on video, bad SFSTs,
and cursing everyone. Tyler leaves a cop to become the
jury foreman, and got the NG! Tyler followed up with NG
in CCCL3 on a .13 breath DWI, when Tyler got the tech
to admit D was possibly .07 at time of driving.
••••••••••••••••••••••••••••••••••••••••
Brandon Ball has been balling, scoring NG on BOH in
DC178. D and CW are occasional lovers. CW claimed D
broke in a window, W saw D go in front door, and jury
decided the photos looked staged.
••••••••••••••••••••••••••••••••••••••••
Tiffany Hill fought uphill and claimed the NG in DC176
on AAFV. BBall teamed up with Tiff on another case to
get another NG.
••••••••••••••••••••••••••••••••••••••••
Andrew Wright stroked the 2 word verdict on an indecent
exposure in CCCL3. The jury credited the Andrew with
poking glorious holes in the State’s case.
••••••••••••••••••••••••••••••••••••••••
Armen Merjanian hammered away at the State’s
evidence, showing the inherent unreliability of only field
testing suspected drugs, and the jury agreed with NG in
FBCCL2.
••••••••••••••••••••••••••••••••••••••••
Mike Driver rode out to West Texas and got the 2 word
verdict on AADW. D was accused of slitting CW’s
throat with a broken beer bottle.
THE DEFENDER / SPRING 2018
Speaking of hammers, David Adler is one tough, smart
lawyer. David prevailed in a federal writ challenging D’s
life sentence for murder on IAC grounds. Victoria County
must quickly decide if facing David in a re-trial is justice.
••••••••••••••••••••••••••••••••••••••••
Emily Detoto was at her sparty best in a shaken baby case
in DC263. Emily appealed the original plea, got it flipped,
and then got NG in less than 1 hour at trial after only a
day of testimony. Emily thanks Paul Morgan and Stan
Schneider for invaluable assistance.
••••••••••••••••••••••••••••••••••••••••
The State fought hard in DC183 to keep their secrets.
With a court order to disclose CI, Jack Carroll and Philip
Stephenson got a DCS 1st dismissed.
••••••••••••••••••••••••••••••••••••••••
David Ryan followed for true habitual D in DC177 having
multiple DCS charges with several CI. In order to avoid
the hearing, State dumped all but 1 case and D pleaded to
5 years.
••••••••••••••••••••••••••••••••••••••••
When is a win not NG? When Steve Shellist hung the
jury on CSA in DC180. Steve followed up with an in trial
dismissal on .11 breath DWI in CCCL6, after getting the
cops to admit they did SFSTs wrong and a MTS granted.
••••••••••••••••••••••••••••••••••••••••
Sean Davishi got a quick NG on DWI in CCCL15, despite
an accident and .08 breath test. Sean then teamed up with
Eric Benavides to get a 5 minute NG on DWI 2nd in
CCCL14.
••••••••••••••••••••••••••••••••••••••••
You know you have a chance when the State’s best
argument is D did not preserve error in PCS 3rd. Neal
Davis III rejected that argument, maintained a warrant
was necessary, and COA1 agreed.
••••••••••••••••••••••••••••••••••••••••
Adam Brown wanted in on the fun, and COA1 granted a
new trial, finding error preserved on confrontation issue
regarding CW bias in an AFV 3rd. The dissent believed
error not preserved.
••••••••••••••••••••••••••••••••••••••••
Cheri Duncan won a new trial on ASAC. In a published
opinion, COA14 found the failure of the State to elect the
act(s) relied upon was harmful. Cheri gives all credit for
an immaculate record to trial counsel Matthew Horak,
who early and often objected to the failure to elect. Learn
the lesson – object, get a ruling, make an offer of proof,
repeat often.
 8 9

Welcome
Nick Hughes won a reversal at CCA on failure to include Justin Harris and Austen Hobbs prevailed on a MTS
THE DEFENDER / SPRING 2018

THE DEFENDER / SPRING 2018

a lesser offense when requested at trial. D was pro se and on DWI 2nd. Some Brady material was viewed in camera
preserved the error! and the trial judge struck 1st cop’s testimony. 2nd cop’s
• • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • testimony did not establish PC for the detention and arrest.
Katie Ferrell heard the sweetest 2 words in the courthouse • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •
on .19 blood DWI in CCCL9. Katie followed up in the Scott Pawgan scored the NG in DC75 for Assault on
same court with a dismissal after MTS granted on .17 a Public Servant, to wit: the presiding judge of DC253.
FUTURE WARRIORS
blood DWI, despite an accident and D barfing all over The Pawgan-ator targeted various inconsistencies in the
himself. evidence, and the jury agreed. No truth to the rumor Scott Amy Paine & Cory Roth Mana & Jed Silverman
• • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • said, “I’ll be back,” after the verdict was rendered.
Welcomed Welcomed
Ned Barnett and Brian Burns got a NG in DC400 for • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •
indecency. D is an engineer and Marine who can now get A barroom brawl with racial overtones did not cause Justin Noah Jayden Roth Ella Yegani Silverman
back to his life. Harris and Sean Darvishi to flinch in CCCL4. Denial of On February 21 2018 On January 21 2018
• • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • defense instructions in the jury charge did not stop the jury 6 lbs 10 oz 6 lbs 13 oz
When your roommate drinks a fifth a day, there’s bound from having RD and acquitting D.
to be trouble and fights lead to charges of AA. Shannon • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •
Davis made sure the jury knew, and the jury found D NG Tonya Rolland got NG in CCCL9, despite D being
in DC268. .16 breath on this DWI. D was exceedingly polite and
• • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • cooperative on video, and Tonya showed the jury the
Troy McKinney got COA9 to affirm MTS out of MCCL4 breath machine is not to be trusted. Did you or anyone you know have success?
in a DWI. Troy credits trial counsel Doug Murphy with • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •
framing the questions such that W had no room to fudge Diana Olvera and Jane Vara heard NG in Project Court 1 Your fellow Winning Warriors want to know!
facts. on ASAC. The jury was out 2 hours.
•••••••••••••••••••••••••••••••••••••••• •••••••••••••••••••••••••••••••••••••••• We do not check social media for your wins.
With the jury in the hall, Danny Easterling got a time JL Carpenter kept fighting D’s .14 blood DWI w/child
served misdemeanor for true habitual D facing ARDW in in DC56, refusing to let GCDAO bully D into losing her So There.
DC338. kids. On eve of trial, State offered DWI 1st and probation.
• • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • The judge told D to go home and hug her kids.
Submit the names of the lawyers and a brief description to:
Michael Edwards and Frederick Wilson got an in trial • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • hcclawinningwarriorscolumn@yahoo.com
dismissal on FIP in DC176. Cops come looking for owner Alan Cohen had a CSA in DC182. It was a classic divorce .
of store, find a gun in a closed drawer, and charged D! gone ugly, and W had made the allegations in 3 different
Let’s hope for better case evaluations in the future. counties. With a jury in the hallway, the State dismissed.
Speaking of case evaluations, Tad Nelson kept telling the • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •
state in DC122 it had overcharged D with BOH instead Winning is sometimes making the State come back
of Trespass. It took a jury slightly over 1 minute to agree. another day. Mandy Miller had a motion to quash granted
• • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • on trial day in DC268. No manner and means was alleged
Anthony Osso pleaded his mentally ill D to LWOP in in the indictment. Word is State essentially filed the same
DC185 in a high profile capital murder of a peace officer. indictment again
In a sad case that ruined many lives of those involved,
justice prevails.
••••••••••••••••••••••••••••••••••••••••
Kathryn Kase convinced HCDAO to plead D to life

david ryan
instead of re-trying a death penalty case SCOTUS found
CONTINUED : WINNING WARRIORS

unfair for the introduction of racially tainted evidence at

trial. Kathryn thanks TDS, TCDLA, HCCLA and many
others for helping see this case through.
•••••••••••••••••••••••••••••••••••••••• Winning Warriors is written by HCCLA Secretary,
Mike Abner got 2 NG on ASAC in Brazoria County, and David Ryan (2015-present). David has been
the jury convicted on the lesser of Indecency on a third practicing for 24 years, Mentor of the Year 2013-
ASAC. 2015 (ret.), Member of the Year 2016, HCCLA
•••••••••••••••••••••••••••••••••••••••• Board Member 2013-2015, co-chair of TCDLA
Daucie Schindler convinced COA14 to order a new
Rural Practice, and TCDLA Board Member
punishment hearing for D who pleaded to DCS. Seems the
(2013-present). The victories are yours. David
trial court did not include a mandatory fine.
•••••••••••••••••••••••••••••••••••••••• provides the snark.
An incomplete investigation proving mere presence was
all Cory Roth and Jasmine Henderson needed to prevail
on POM and PDD in BCCL3.
10 11
THE DEFENDER / SPRING 2018

THE DEFENDER / SPRING 2018

Save
WELCOME
NEW HCCLA
MEMBERS

the Date
new members
Karla J. Aghedo Michael Moore
Mishae M. Boren Roland Alexander Mosher
David Ray Caraway David Overhuls
John Paul Cedillo Michael D. Renfro
James Clark Thomas C. Stephenson
Douglas M Evans Chaunte Sterling
Charles D. Finley Tony Sun
Chris Henderson Benson Varghese
Eugene Hong William Vaughn
Join us May 10 at

The Ballroom at Bayou Place

Janet Kleban Larry Douglas Williams II
Jules Laird Phillip Yates
Matthew Mendez
500 Texas Ave.
Houston TX 77002

Reserve your spot at new paralegal members

hccla.org/banquet
Chris Bingham
Honorees & Special Guests Paul Morgan Law Office
Milton Hernandez
Sam D. Adamo / R.P. ‘Skip’ Cornelius / Connie B. Williams The Law Office of Philip M. Gommels, PLLC
RICHARD ‘RACEHORSE’ HAYNES LIFETIME ACHIEVEMENT
Leslie Pierce
Scott Pawgan Darrow Law Firm, P.C.
LAWYER OF THE YEAR

Susman Godfrey, LLP / Civil Rights Corps / Texas Fair Defense Project
TORCH OF LIBERTY

Damon Parrish II new student members

SHARON LEVINE UNSUNG HERO

Robert Fickman Benjamin Brushe

PRESIDENT’S AWARD
Ta’Mara Foster
Patrick McCann Olympia D. Oliver
MENTOR OF THE YEAR
12 13
THE DEFENDER / SPRING 2018

THE DEFENDER / SPRING 2018

Brian Wice / Then & Now

Hon. Jay W. and Catherine Burnett Adrogué Law Firm, PLLC Jordan Lewis Eddie Cortés
Hanszen-Laporte Cordt Akers Jason Luong for Judge, 185th District Court Law Offices of Sean R. Darvishi, PLLC
(Charley Davidson, Dorian Cotlar and Austen Hobbs) Bobby Mims
Shannon B. Baldwin for Judge, CCCL #4 Judge Catherine Evans
Carmen Roe Law Firm, PLLC The Montalvo Law Firm, PLLC
Staci Biggar Robb Fickman
James Stafford Ron Morgan
Thiessen Law Firm Lori Botello for Judge, CCCL #11 Toria J. Finch for Judge, CCCL #9
Terry Bryant, Accident and Injury Lawyer Odom & Davis Foreman DeGeurin & DeGeurin
Tritico Rainey, PLLC Robert Pelton, Lawyer
J.L. Carpenter Fuller & Hudson
J.C. Castillo Maverick Ray & Associates Tucker Graves
Lionel Castro Raul Rodriguez for Judge, CCCL #13 Law Offices of Bo Hopmann
bob rosenberg Tonya Rolland
russell m. webb Mary E. Conn Internet Lava, LLC
Emily Detoto Law Office of Joseph Ruiz Chip Lewis
Danny Easterling Katherine Scardino U.A. “Umeka” Lewis-Piccolo
Antonio Espejo Scheiner Law Group, PC Amy Martin for Judge, 263rd District Court
David L. Garza Schneider & McKinney, PC McLemore, Reddell, Ardoin & Story, PLLC
Phil Gommels David L. Singer Campaign for Judge, CCCL #14 Marjorie Muniz-Monroy
Andreea Ionescu TSU Criminal Defense Clinic Doug Murphy
DaSean Jones for Judge, 180th District Court Hilary Unger Law Office of Neumann & Rodriguez
Jill Lansden & Mekisha Walker, attorneys at law Kris Ougrah for Judge, CCCL #15
Investigators Sonja Raffeet, Beau Hodges & Margaret Vozar
Vik Vij
Michael J. Wynne
 remembering
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THE DEFENDER / SPRING 2018

THE DEFENDER / SPRING 2018

racehorse
A TRIBUTE TO RICHARD “RACEHORSE” HAYNES

Original Photo from Houston Chronicale/Karl Stolleis, Staff Original Photo from AP Photo/Ed Kolenovsky
16
THE DEFENDER / SPRING 2018
Richard Haynes:
Warrior, Defender,
Dear Friend
BY CHRISTOPHER L. TRITICO
I knew this day was coming for months. Richard had
been on a slow decline for three years. The last two times
I saw him, he was alert but unable to speak. I could tell
he knew who I was, and we communicated like only two
old friends of 38 years can; we did not need words.
In 1979, I was a senior in high school, and my dad, Lenny
Tritico, grew up with Richard. They met up at a High
School reunion. He told Richard that I wanted to go to
law school. Richard said, “Send him by I’ll give him a
job”. Richard owed my dad and certainly me nothing.
But, at the end of the day, Richard Haynes gave me
everything.
Haynes & Fullenweider was the most unique place to
work. We worked hard and played harder. It was not
only a fun place to work, it was the best place in the
country to learn how to be a lawyer. You were exposed
to the biggest cases in the country, the best and brightest
lawyers. Your work had meaning. Your ideas were
respected and employed. You were entrusted with
the most important of task from the beginning of your
career. Between 1979 and 1993 I was an office helper,
messenger, private investigator, law clerk and associate.
The day after I passed the bar, Richard called me into his
office. He said, “So you want to be a criminal lawyer?”
I said, “Yes sir, I do”. He gave me a file and said, “Here
is your first case. There is a hearing tomorrow morning.”
Excited I took the file to my office, what could it be? A
trespass? A DWI? I could not wait to jump into my very
first case. I opened the file and found that my new client
was charged with two murders, two aggravated assaults,
and impersonating a peace officer. My confidence waned
just a little. I felt like perhaps he forgot that I had been
a lawyer literally 24 hours! That was Richard Haynes;
that was the culture at Haynes and Fullenweider. He put
you into the fire immediately and let you go to work. I
had no earthly idea what to do but, of course, I couldn’t
tell him that.
Richard had a wonderful sense of humor. In college at
The University of Houston, Richard, my Dad, and a few
others created a week long musical and comedy review.
The Frontier Fiesta still goes on today. My dad told
me that during the shows Richard would walk out on
the stage and interrupt the program. He would holler,
“Script,” and from the rafters someone would lower a roll
of toilet paper. Richard would tear off a few squares and
start into some of the funniest standup comedy he had
ever heard. They must have created something special as
Look Magazine wrote up the Frontier Fiesta as the “best
college week in the country,” and 60 years later it is still
going on at The University of Houston.
I was in his office one day when his assistant brought in a
lady who was in fear that the government was monitoring
her from the top of the buildings around her apartment.
The only thing that could fight the government was for
Richard Haynes and Donn Fullenweider to represent her
together. I sat there trying not to laugh as Richard baited
this lady along. Eventually, with a big smile on his face,
he said, “I think you’re right, let’s go see Donn.” We got
up and walked across the hall, and Richard was about to
leave this lady in Donn Fullenwider’s office. Fortunately
for Donn he was out of town that day.
A few years later, another lady brought in her clock radio
that she was convinced the government was sending her
messages through and controlling her mind. She asked
CHRISTOPHER TRITICO & RICHARD HAYNES
Richard to take care of it for her. Richard told her he
would be happy to help. He instructed her to leave the
clock radio with him and to come back the following day.
As soon as she left he took out a post it note and wrote
“de-bugged” on it and stuck the note to the front of clock
radio. The next day when she came back, Richard gave
her the clock radio and told her it had been de-bugged.
She said, “Thank you, thank you… you saved me.” She
left consoled and happy.
By far the best story I have is one Richard told me
himself. Richard, Mike Ramsey, David Berg, and a bunch
of friends were out celebrating one night. David had to
leave early and gave them his American Express card and
told them they could charge until midnight. After David
left, they charged a bunch on the card and got tanked up,
drove to the airport, and were in the process of charting
a plane to Las Vegas. American Express had the good
sense to call David before they approved the charge.
Richard and Mike Ramsey were ready to head out on
that one.
I said earlier that Richard gave me everything. He gave
me a place to learn how to be a lawyer. He showed
me how to cross-examine a witness. He showed every
day how zealous representation can be practiced with
integrity and professionalism.
Richard Haynes recommended me as one of the trial
lawyers on the Oklahoma City (OKC) Bombing. He
gave me my career. Our friendship lasted 38 years. One
of the greatest honors of my life is that he and Naomi
asked me to assist them in their final years with their
affairs, after Richard fell and broke his hip about four
years ago. He needed to retire and requested that I help
17
THE DEFENDER / SPRING 2018
with closing his firm. It allowed me to spend more time
with my friends Naomi and Richard. More importantly,
it gave me a chance to repay them for over three decades
of friendship, mentorship, and for all the things they have
done for me. It was a labor of love.
Richard Haynes’ life can best be boiled down to a simple
phrase: A life of service. Richard twice suited up for
his country; he twice defended the principles of freedom.
During the height of WWII, at 17, he joined the Marines
and fought at Iwo Jima. During the Korean War, he went
back in and trained paratroopers. His life of service
continued as a criminal lawyer. He spent the next 50
years committed to protecting the principals of freedom.
He spent his life looking the government in the eye and
saying prove it. Representing the criminally accused,
those that the public believes are the worst society has to
offer, is a daunting task.
Richard believed as do I: if the Constitution cannot
work for the worst we have, it will not work for
anyone.
Richard stood up for the core values of our country and
believed that standing up for the freedoms embodied in
our Bill of Rights is an absolute necessity. His life was
a life dedicated to service to the public, service to our
Constitution.
There was only one thing that Richard put above service
to the constitution: his family. His lovely wife Naomi to
whom he was married for over 60 years and his children.
18
THE DEFENDER / SPRING 2018
Richard had four kids: Tracey, who passed away in 2015,
Ricki, Blake, and Slade, eight grand kids, and 7 Great
Grand kids.
I remember, we had been in a murder trial for about eight
weeks. My wife was due with our second child, and one
night we were talking. I was complaining that I had not
seen my family in weeks. Richard told me his greatest
regret was that he had spent so much time away from
his family when his kids were growing up. It was a rare
moment of vulnerability. It was truth, it was honesty.
It was a complete and deep expression of love for his
family.
People say, and it is true, that Richard Haynes is the
greatest trial lawyer this country has ever seen. To me,
however, he is my simply dear friend.
CHRIS TRITICO
Christopher L. Tritico, a native of Houston, Texas, received
CONTINUED : RHICARD HAYNES: WARRIOR, DEFENDER, DEAR FRIEND
his Bachelors Degree at Sam Houston State University and
his Doctor of Jurisprudence at South Texas College of Law.
Mr. Tritico is licensed to practice law in the State of Texas and
before the United States Court of Appeals for the Fifth and
the Tenth Circuits, and the United States District Court for the
Southern and Eastern Districts of Texas. He is a member of
the State Bar of Texas, The National Association of Criminal
Defense Lawyers, The Texas Criminal Defense Lawyers
Association, The Harris County Criminal Lawyers Association,
President 2012 and The Houston Bar Association. Mr. Tritico
was named one of Texas Super Lawyers 2003 - 2017 by
Texas Monthly Magazine. Mr. Tritico was named one of the
Top Lawyers for the People by H Texas Magazine in 2005-
2017. Named one of Texas Top rated lawyers 2012 and The
National Trial Lawyers Top 100 Lawyers, 2012 - 2017. In 2014
his name was placed on the Wall of Honor for the College
of Humanities and Social Sciences at Sam Houston State
University and given the Reflections of Hope Award by the
Oklahoma City National Memorial and Museum
A criminal defense lawyer his entire career, Mr. Tritico
handles cases in both state and federal courts; ranging from
environmental law to capital murder. Representing notable
athletes such as Moses Malone, former Houston Rocket,
Gary Sheffield, All-Star third baseman for the Florida Marlins
and Julio Lugo, former Houston Astro. In 1997 Mr. Tritico was
one of the trial lawyers who represented Timothy McVeigh in
the Oklahoma City Bombing Case. Since 1988, Mr. Tritico
has represented the Houston Federation of Teachers; with
more than 6,000 members it is the largest teachers’ union
in the State of Texas. In addition to the Houston Federation
of Teachers, Mr. Tritico represents the Employee Federation
of Lone Star College. Further, he has represented teachers’
interest in both criminal district court and civil district court in
Harris County, Texas.
Alex Bunin Remembers
During my final two years in law school,
I was a clerk at Haynes & Fullenweider.
Mr. Haynes (as I always called him) never
assigned me work. Occasionally, I would
get a project involving one of his cases
or I was asked to deliver a file to him at
the courthouse. Since he won many of his
trials, there were few appeals. However,
once I was given the record in a federal
case of his in order to write a statement
of facts and draft the arguments.
I always heard of his ability to cross-
examine witnesses, but I never had the
opportunity to watch him at length
or read a transcript of his questioning
before. At first, I could not see a method
to it. He doggedly asked a witness about
small details that did not readily appear
connected to the case. It continued for
many pages, but he was determined to
get answers. The witness occasionally got
confused, but Mr. Haynes would reorient
the man and keep going.
The case was being tried before Norman
Black, a United States District Judge
who has since passed. Judge Black was
my law professor, and I knew him to be
extremely patient and good humored.
However, even from the cold record, I
could tell Mr. Haynes had pushed him over
the edge with his extended cross. The
witness was now so confused he could
barely remember his own name. After a
long series of leading statements by Mr.
Haynes about the shade of trousers the
witness had worn on a particular date,
Judge Black – probably pulling out the
last couple hairs on his own head – said in
exasperation, “Mr. Haynes, what difference
is the color of pants he was wearing?”
Mr. Haynes, apparently in triumph after
reducing the witness to a blubbering
to Attorney Brent Mayr. In her spare time,
wreck, responded, “Judge, those were
burglar pants.”
19
my favorite
THE DEFENDER / SPRING 2018
Racehorse memory
BY JERRY PATCHEN
In 1977, Richard Haynes secured an acquittal for Cullen Richard “Racehorse” Haynes broke your record for the
Davis. One evening after a hearing in his divorce case longest murder trial in Texas.
involving his estranged wife Priscilla Davis, Cullen
What do you have to say about that?” Percy responded,
Davis was accused of wearing a black wig and a stocking
“All I have to say is that if all lawyers tried cases like
mask, gaining entry into Priscilla Davis’ home, and
Mr. Haynes and myself, we would need a lot more
committing a double murder by killing her boyfriend,
Courthouses and a lot fewer penitentiaries.”
Stan Farr, and marching her 12 year old daughter from
a previous marriage, Andrea Wilborn, into the basement, The exceptional thing about Richard
forcing her to her knees and shooting her in the head. was he was not only the
Priscilla Davis positively identified Cullen Davis as greatest criminal defense
the assailant and murderer. During the trial, Haynes lawyer in Texas and
literally demonized Priscilla Davis, and after a couple beyond, he was a great
of weeks of the 13 week trial, the jury was ready to man. I knew Racehorse
stone Priscilla Davis. His client, Cullen Davis, was personally. I worked
acquitted of capital murder. Haynes did an encore: on a couple of cases
Cullen Davis then allegedly conspired to have the with him. As a law
Judge in his divorce case killed and solicited and student at University of
planned the murder. The evidence against Cullen Houston, where Haynes
Davis was substantial, even overwhelming. In a had served as student
second trial, Haynes produced another improbable
body President, and as a
verdict of not guilty for Cullen Davis. young lawyer,
Richard Haynes’ 13 week trial in the Cullen Davis’
case broke Percy Foreman’s record for
the longest murder trial in the
state of Texas. The news media
rushed up to Percy Foreman
and cornered him shouting,
“Mr. Foreman, Mr. Foreman,
ART BY KELLY KIELSMEIR
Kelly is a self taught illustrator in
Houston, TX. Since 2012, she has
shown her work in galleries, festivals,
and at a local boutique, Hello Lucky.
Articles featuring her art have been
published in the Houston Chronicle,
Houston Press, and various online
publications. She is primarily known
for her illustrations on vintage
fine china and her series of ink works.
Currently, she is the legal assistant
she enjoys reading, needlecrafts,
and spending time with her daughter.
20 21
THE DEFENDER / SPRING 2018

THE DEFENDER / SPRING 2018

Richard “Racehorse” Haynes, MY EULOGY FOR RICHARD HAYNES
in my opinion, was simply BY JACK B. ZIMMERMANN

the greatest trial lawyer I think everyone that has spoken so far has given you
reasons why Haynes was a great trial lawyer, and in
my opinion, Richard Haynes was the best trial lawyer
making more money, you promised me that I would be
making the pay of a general and you know I’ve taken a
pretty good cut here in my pay.” He said, “Well Jack, I

in Houston and in Texas. that I had ever seen. But I wanted to concentrate on not
only Haynes as a great lawyer but he was a great human
being. And the reason he was a great human being was
did tell you you’d make the pay of a general but I did
not tell you what Army it’s in. I was talking about the
Mexican Army.”
that he cared about people.
I watched him in Court.One of Hayne’s amazing qualities First, Haynes would always go to the scene. He would So he had a sense of humor
was his voice. His voice had the broadest range of notes photograph and diagram all of the specific landmarks. All To give you an example of but also was concerned
of any lawyer that I ever heard examine a witness or patrols were a team of two officers. Richard explained what I am talking about, with equal rights and
how he would go into every little detail with the first he and I were trying a case the appearance of equal
argue a case.
officer about every step of the arrest. No detail was too in a small south Texas rights. Not just the fake
His voice was melodious, almost as if he was small. He would inquire when the officer first observed town where we were occurrence of it. And, the
singing. The harmony, rhythm and tempo of the vehicle, how far the vehicle traveled, what the driver out for dinner in a small way I first learned when
was doing, how the officer approached the vehicle, every little roadside diner, and was that he called me in his
his voice could literally hypnotize a jury.
single statement by the officer and the defendant, every being the junior member office one time and said,
Richard was a virtuoso with words. He could speak softly little move, what the other officer was doing, every of the team, it was my “Close the door.” And he
and bring a jury up to the edge of their seats, and then gesture and declaration, movement, and approach by the responsibility to take care said, “We got problem with
boom them back against the back of their chairs. He other officer. He was like a Swiss watch-maker building of administrative matters your name.” I said, “How’s
could make a gesture with his hand pointing away to his a precision time piece. Haynes would then get the other like paying the bill. And he that?” and he said, “Well,
left or right, and every head on the jury would shift in officer in the courtroom and take the other officer through watched what I put on the the last part of your name
unison like a synchronized flock of birds. Not only a truly the same detailed examination. Inevitably, there would tip and I used the standard is mann. We just can’t have
amazing lawyer and fine man, he was a true gentleman, be numerous variances between the testimony of the 15% tip and he got all that in this law firm.” He
very pleasant and friendly with a tremendous wit. He two officers. Haynes then was able to capitalize on these over me, saying that these said “from now on, your
would never make an off color statement in the presence inconsistencies and create doubt regarding the officer’s people live on these tips name is Zimmerperson so
CONTINUED : MY FAVORITE RACEHORSE MEMORY

of a woman and was not given to profanity.
The memorial service was a truly grand tribute to Richard
“Racehorse” Haynes, who was characterized as being
fearless. The fact that Racehorse was a “workhorse” was
underscored, emphasizing his long hours and tremendous
study of the facts. I recall when Haynes tried the first
DNA case in Texas on which he secured a not guilty after
spending countless days at the Rice library mastering the
topic of DNA. Haynes cross-examination is legendary.
It was said at the service that he once had a records
custodian, who is ordinarily only asked five questions, on
the stand for three days.
My recollection is that Richard had 38 or 39 consecutive
DWI acquittals until he lost one; however, I have heard
a much larger number. The true number is lost in time;
regardless, whatever the number was, it remains a
record. Richard once shared with me that he mastered
the art of cross-examination trying DWI cases, back
before video recorders, breathalyzers, and blood tests.
credibility concerning the defendant’s intoxication. and you should be more
generous, especially in
Richard Haynes was a family man, married to Naomi a small town where they
Haynes for 63 years. How fortunate Richard and Naomi aren’t paid anything. And
were to enjoy the strength, deep bonding, commitment, he made it clear to me that
and union that being with a spouse for decades provides. when we are trying an out
They were blessed with children, grandchildren, and of town case, in a small
great-grandchildren that Richard doted over. town, especially in a small
town, you should care
Richard “Racehorse” Haynes, in my opinion, simply the
greatest trial lawyer in Houston and in Texas, has set a about people and should tip
very high bar for each of us to unfailingly in our own way more than 15% amount.
strive to achieve. And while we are talking about pay, he persuaded me
after 14 years of active duty as a Major of Marines to
leave the Marine Corps to come practice law with him
in Houston, Texas, and he told me that there would
be a significant pay increase. After awhile I realized
that I had taken a pay cut of about $6,000.00 that I
would be getting as a major, and I went to him and
told him, “Haynes, you told me that I was going to be
you will be referred to as
Zimmerperson from now
on,” and I was for the rest
of the time that I was there.
So I thought this would
give you a little insight into
his sense of humor and his
sense of fairness.
But the next item is that
he trusted the lawyers that
worked with him and trusted our judgment. That is
why everybody is so loyal and that is why there are
so many former members of the law firm of Haynes
& Fullenweider who are present today. There are all
of the civil lawyers that worked there, almost all of
the criminal lawyers that worked there, at this funeral
service. And I think he generated loyalty because he
trusted us and I use this as an example: trying a major,
major murder case involving the widow of the Secretary
22 23
THE DEFENDER / SPRING 2018

THE DEFENDER / SPRING 2018

After final arguments the judge came back and found of State of Texas at the time, who was also the son of
my client not guilty. So I use that as an example of the Governor who was also a former Chief Justice of
him putting his trust in his subordinates, in developing the Texas Supreme Court, and the wife was on trial for
good trial lawyers. being the cause of death for the famous fellow. We heard
about midway through trial that someone had contacted
I end by saying that some of the other people talked
one of our investigators and said, “Hey you guys may
about how he loved his family, and let me tell you two
be in trouble because some juror was overheard saying
things about how I know he loved his wife, Naomi.
that they would never vote to acquit somebody that was
We were trying a case in a rural Louisiana court and
associated with the power structure, that wouldn’t be
after dinner we went shopping on a street that had all
right.” And, then we found out almost on the same day,
of these shops on it, and he went in and he bought a
within just days that another juror was overheard at the
sconce. Does everybody here know what a sconce is?
grocery store over the weekend saying, “The way that
About ½ of you raised your hands. I sure didn’t know
guy beat that girl up, I would never vote to convict her”
what a sconce was before. Do you know what a sconce
and we reported that to the district attorney’s office.
is? It is something you put on a wall and you can put
So I contacted the district attorney and he said, “Hey,
a candle in it or if its electrified, you can put a light
I need to tell you something” and he told me about his
bulb in it. But I had no idea what a sconce was, and
situation and I told him what happened with mine, and
I admitted I didn’t know. But he bought that for his
we both realized that we were going to have a hung
wife and then he brought it back as a present. I thought,
jury one way or another, whichever way the majority
man I would have never thought to do that, and I love
went. And the county did not want to have to pay for
my wife more than anybody loves their wife. But, he
another jury trial and I didn’t want to put my client
did it because he knew she would appreciate it, and
through another jury trial. We were almost finished
I understood from the family that they’re still in the
with the trial. So that night I called Haynes and I said,
house that they bought.
“Hey, I need some advice. What do you recommend?”
Another example and the last thing I’ll bore you with He said, “I don’t know that Judge.” They brought in a
is that when we were trying the case in Louisiana that new judge because it was such a big publicity case. The
I was telling you about, we were representing a State local judge recused himself. And I said, “I don’t know
district judge and the district attorney who were charged either. I’ve never tried a case in his court, he is from out
with buying votes in a rural Louisiana parish, being of town.” So Haynes said, “What do you think of the
CONTINUED : MY EULOGY FOR RICHARD HAYNES

tried in federal court. We ended up getting one of the way he is running the trial?”
cases dismissed and the jury acquitted on the other one,
Now, my last assignment on active duty before I came
so we had a victory party there, and the supporters that
to Haynes and Fullenweider’s office was as a Marine
supported the judge and the district attorney literally
Corps military trial judge and so I always gauged the
rented the local country club. They only had our party
qualifications of the civilian judges that I was before
in there that night and they asked Haynes what kind
based on if they ruled on a motion or objection the way
of music he liked. He said he liked country-western,
I thought it should be ruled on, I thought they were
so they hired a four-piece country-western band and
really great judges; and if they didn’t, I didn’t think
they were taking requests for songs. And the thing I
they were so good. So he said, “What you think about
remembered about that night was that his favorite song
this judge’s fairness?” I said, “Well, every ruling that
that they played was a country-western song that ends
he has made so far in these several days of trial, I think
with “he stopped loving her that day.” I don’t know
has been right on. I think he is fair and it appears he is
if you are familiar with that song or not. So now, a
worthy of trust.” He said, “Well do what your gut says
few days ago Richard passed away. People can say he
to do.” So the next day, instead of having a mistrial,
stopped loving Naomi that day but in reality, I know
we agreed to excuse the jury and go to a bench trial
that he and Naomi are looking at us now from wherever
just before the judge and that advice was sage because,
they are and he didn’t stop loving her that day. He still
as it turned out, that decision to waive the jury and go
loves her, and she still loves him.
to the judge resulted in a twenty minute deliberation.
24
in memoriam of
THE DEFENDER / SPRING 2018
RACEHORSE
Growing up in West Texas, I first saw Racehorse Haynes
on television defending the John Hill case. He had a larger
than life personality and by the time I made it to law school,
Racehorse was the embodiment of everything I wanted to be.
He was brilliant, witty, and unrivaled in the courtroom. He
was a living legend and a hero. I had no idea that this lawyer
who I had come to so admire would someday be my friend.
In law school, I clerked for Randy Schaffer who had worked
for Racehorse and made me feel like I had a connection to
Racehorse. One day I noticed Randy’s business card had only
his name and the word “Lawyer” on it. I asked why he kept
his card so simple and he replied that was the way Racehorse
did his cards. When I got out of law school I had my own
cards made and for 34 years my cards have simply had the
word “Lawyer” under my name. I figured if it was good
enough for Racehorse and Randy, it was good enough for me.
Like many other young lawyers, I wanted to work for
Racehorse. I dutifully sent my resume and after a short while,
I received a polite letter from Jack Zimmermann stating that
they were not hiring at the time. I think Dan and Chris had
already been hired. I remember being disappointed, but I
saved the letter. Even a letter of rejection from Racehorse
Haynes was special. Years later, after He and I became
friends, I would jokingly tell him I was going to resubmit
my resume.
As a young lawyer, for many years, I would see Racehorse
around the old courthouse. When he appeared in the coffee
shop he would quickly be surrounded by older lawyers where
he would sit at the center table and hold court. You could see
all the other older lawyers liked him and wanted to just hang
out with him. Racehorse would regale them with humorous
stories of his latest exploits and for many years, I admired
him from afar.
In 2002, I finally got my chance to work with Racehorse
when we represented co-defendants on a federal health care
fraud case. We had very bad facts but that never seemed to
bother Racehorse. At the end of the first day of trial, he had
to go see a doctor for his hand and needed outpatient surgery.
The next day he was back in court with his hand sewed up.
It looked like it hurt so I asked him if the doctor prescribed
him any painkillers. He responded that they tried to but he
by Robb Fickman
wouldn’t take them so would not risk having his mind dulled
during trial. I remember Racehorse was well into his 70s
when we tried this case. Some people tried to tell me that he
had lost his edge. They were wrong. I watched him try this
case and he was sharp as hell and still in full command of
the courtroom. Each day during the breaks, he would sit in
front of the courthouse and smoke his pipe. I would sit with
him and discuss the case or just talk about life in general.
I continued to refer to Racehorse as Mr. Haynes. Finally,
the point came when Racehorse said his friends called him
Racehorse or Richard and I should pick one or the other.
From then on I called him Racehorse. From that moment
on he and I were friends and it was a friendship that I will
forever treasure.
I nurtured my friendship with Racehorse by keeping up
with him. I spoke to him or Elise on the phone on a regular
basis. Elise Sartwelle was Racehorse’s dutiful legal assistant.
As Racehorse got older, Elise was rightfully very protective
of him and would not let anyone take advantage of his
kind nature.
RACEHORSE AND HCCLA
In 2006, when I was president of HCCLA, we needed someone
new to start swearing in officers and board members. I asked
Racehorse if he would do it and he replied that he would
be glad to. From that point on for many years, he swore
everyone in at the Banquet. Many board members told me
they considered it a great honor to be sworn in by Racehorse.
To me it was important to get Racehorse on the stage each
year. In fact, Mike DeGeurin had urged me to make sure
Racehorse was always included in the banquet and I readily
agreed. I thought it was important not just for HCCLA but
also for Racehorse that he is part of the banquet.
Annually, Racehorse and Mrs. Haynes would sit at my table.
That was always a great honor for me. In 2007, he was
turning 80 around the time of the banquet. In the middle of
the banquet, I arranged for the hotel to present him with a
birthday cake and 300 of us sang happy birthday to him. You
might remember that when he gave an autograph he often
drew a little cartoon horse head. (see page 23) Well...
I had that cartoon blown up and put on the cake.
For a long time, I was the unofficial liaison between HCCLA
and Racehorse. He was a charter member of HCCLA for
over the years and behind the scenes, he continued to be very
supportive of HCCLA. At our lunches, I would routinely
update him on what was going on with HCCLA. He would
often have a positive suggestion or idea and was proud of
HCCLA’s activism and for standing up to some of the judges
who were particularly abusive.
He was also never afraid to lend his name to a worthy cause.
When HCCLA had a contentious, heated internal fight over
whether we should support the Public Defender, Racehorse
took a stand. He cared about quality representation for
indigent defendants. It was a subject that he and I talked
about many times. In support of the creation of a Public
Defender’s Office, Racehorse signed a letter with four other
top defense lawyers. The letter endorsed the creation of the
Public Defenders office. I referred to the five lawyers as the
“Royal Flush” and Racehorse was the Ace. Working with a
small group of pro-public defender lawyers, we sent a letter
bearing the names of Racehorse and the other four lawyers
out to every member of HCCLA. With Racehorse leading the
defense bar’s endorsement, the membership voted to publicly
support the creation of the Public Defender. I was deeply
appreciative of him lending his name to what I considered a
very righteous cause.
Racehorse had extraordinary comedic timing and is one of the
funniest people I ever met. So it was only natural that when
we decided to make two comedy videos for HCCLA banquets,
we would include Racehorse. He readily agreed to be in both
videos. The videos mocked the criminal justice system and
Racehorse was happy to join in the mocking. The first video
was entitled “Mexican Al Queda and the Big Gulp”. We had
had an all-star cast of local defense lawyers. We filmed on the
20th floor on a Saturday. Joe Varela played Jimi Hendrix on
an electric guitar as loud as possible. I doubt that will ever
happen again. The highlight of the video was Racehorse. I
wrote the part of “Judge Jack Hammer” specifically for him.
On the Saturday we were filming Racehorse arrived at the
agreed time and we immediately stopped filming all scenes.
We were going to film just his scenes so he would not have
to stay too long. He donned the robe and took the bench and
delivered each line I gave him with perfection. Of course,
every ruling was for the state with regular scoldings of the
25
THE DEFENDER / SPRING 2018
defense. He enjoyed it. When we were done filming the
scripted lines, I encouraged him to ad lib the part of an abusive
judge and we kept filming. This part of the film is priceless.
Racehorse randomly threatened contempt, berated people,
ordered people arrested and ordered others to be thrown from
the court. Robert Pelton, who was playing the part of the
Deputy, acted out whatever Racehorse ordered, pretending to
arrest someone or throw them from the court. From his many
years of trying cases, he knew more about abusive judges
than any of us. We had 30 lawyers involved in the film and
we all watched in delight as Racehorse masterfully mocked
the abusive judiciary. He stole the show.
We made a second banquet video a year later called
“SuperDefenders”. Racehorse was not able to come down
while we were filming. Nevertheless, I still wanted him to
be in the video and he was still willing to be in it. He agreed
to be the narrator so I went to his office and recorded his
lines on my iPhone. Again I encouraged Racehorse to ad lib. I
remember very distinctly he ended with the phrase, be kind to
one another. For me, that ad lib line encapsulated Racehorse’s
view of the defense bar. I think he supported a strongly united
defense bar. I also think as he stated, we should be kind to
one another.
LUNCH WITH RACEHORSE
After we became friends, Racehorse and I went to lunch on a
regular basis over the years. I would pick him up and always
enjoyed the fact Racehorse made no big deal about where he
went to lunch. He was quite happy to go to a burger joint on
Washington or Becks Prime in Memorial Park or Jack-in-the-
Box. He always went out of his way to joke around with the
people working behind the counter and he had no pretense. He
never let his financial success go to his head and was always
down to earth. I enjoyed our lunches and savored the time.
Mostly it was me asking Racehorse about his famous cases
or him telling me stories from back in the day. As the years
passed, we developed a true friendship. He liked to play with
names so he would call me “Lawyer Fickman” or “Fickey”.
Racehorse was a great storyteller. Having lunch with the best
lawyer and storyteller in the state was not only hilarious fun,
it was educational. I was the beneficiary of many a private
Racehorse tutorial and I soaked in every word. The most
important lesson He taught me was to never let the law box
26
in the creativity of your defense. For him, there was no box. I
THE DEFENDER / SPRING 2018
learned something with each lunch, but mostly my friendship
with him just grew stronger. The more time I spent with him, the
more I liked the man. The larger than life lawyer I had watched
on television as a kid, was now my friend. It is truly hard to
express how much that meant to me.
I asked Racehorse a lot about the John Hill Case. By then the case
was 40 years old but it didn’t matter. His memory of the details
of the case was extraordinary. I once asked if it was possible that
John Hill had faked his own death and gotten away to Mexico as
had been suggested in one of the movies. Racehorse laughed and
replied, “If John Hill had managed to do that he would have to
be the toughest guy who ever lived.” I asked why, to which he
responded, “Because I saw his autopsy.”
I once asked him if he thought Ash Robinson had John Hill
killed. To my surprise, Racehorse responded that he knew Ash
Robinson had done that. I asked how he knew that and he told me
that Ash Robinson had told him so. He then explained that after
John Hill was killed, he sued Ash Robinson on behalf of John
Hill’s estate. They were taking Robinson’s deposition when there
was a break. Racehorse explained he went to the bathroom and
while he was in there Robinson came in. The two of them were
alone in the bathroom and Robinson looked at him and said that
Racehorse was right but he would never be able to prove it. He
concluded by saying Ash Robinson was right, he was never able
to prove Robinson was behind John Hill’s death.
He loved to tell humorous stories about his own exploits. One
of his favorites was the “Back Flip Story”. One evening after
“enjoying libations” with friends he was driving home down
Memorial Drive. He got pulled over by HPD. By then he was
well known to HPD so they were happy to have him. He was
extremely athletic and he knew his capabilities. The cop was
going to arrest him for driving while intoxicated so he asked
the cop if he would let him go if he could successfully do a
backflip off his back bumper. The cop readily agreed, assuming
that hewould land face down smack in the middle of the road.
CONTINUED : IN MEMORIAM OF RACEHORSE
A couple other officers came by to watch the show. This was
perfect, as he loved an audience. He climbed up on his back
bumper and did a perfect backflip, spiking the landing like an
Olympic champion. The startled cops had to let him go and the
legend had beat the cops once again.
Racehorse ended the story by pointing out the cops
didn’t realize that he always did the backflip better
when he was inebriated.
There were lots of stories about Racehorse and his motorcycles.
On one occasion I asked him if it was true that back in the day
he and Warren Burnett had driven their motorcycles through the
crowded lobby of the Rice Hotel. He looked at me and with his
mischievous smile he responded simply, “Burnett didn’t”.
27
My sons, Sam and Daniel, had never shown any interest in the
THE DEFENDER / SPRING 2018
law. I took them to lunch with Racehorse and he immediately
captured their attention. After lunch, my sons couldn’t stop
Randy Schaffer
talking about him and they had never met anyone like him. To Remembers Racehorse
this day they still talk about that special lunch.
Richard “Racehorse” Haynes was the Richard understood what makes a briefcase dragging behind him and
last of the old school criminal defense criminal defense lawyer great. He almost toppling him over. I thought
There was a kindness to Racehorse that not everyone knew. After lawyers. The tools of his trade were stood his ground and did not back that he had stayed too long, that he
lunch with my boys, he sent me a letter commending my boys. a Montblanc pen, a legal pad, and a down. He believed that it is better to did not know when to quit. I failed to
His kindness went beyond sending a letter. His associate and steel trap for a brain. He did not need die on your feet than to live on your appreciate that, for Richard, continuing
my dear friend the late Sharon Levine confided in me that he computers, electronic gadgets, or knees. He was willing to march into to work when he could barely stand
rarely turned a veteran away. Even if they couldn’t come close to gimmickry to convey his message to hell for a heavenly cause. And he did was his statement that he would not
affording his fees, he would take their case. juries. All he needed was words. all of it fearlessly, without regret. go gently into that good night; that he
I heard about what Richard could do would rage, rage against the dying of
Racehorse lived in River Oaks but I don’t think he was ever What made Racehorse run? Was it that long before I saw it myself. I did not the light.
overly impressed with it. He told me a story about when they first he grew up poor on the wrong side of have to be sold on him. His legend had
moved into River Oaks. He was out in the yard wearing coveralls the tracks? Was it that he felt that the sold itself. That was the way it was So Richard leaves us, and an era goes
thinking he probably looked like a yardman. While out front, he powers-that-be did not accept him, so once, when word of mouth was gospel. with him. I choose to remember him,
said a River Oaks matron came out of her house and waived him he needed to call attention to himself in That was the source of the joy I will not as he was at the end, but when he
over. He approached the woman and she asked, “Boy, what are any way possible? We will never know always feel, the joy that I had the gift was healthy and stood proudly before
these Haynes people like?” Racehorse had a lot of fun with this. the answer. What we do know is that of practicing law with Richard when juries, the most dangerous person
He told the woman, That Mr. Haynes is a gem of a fellow; but three generations of clients benefitted he was in his prime. in the courtroom—the way criminal
that Mrs. Haynes is a shrew of a woman. About two weeks later from his burning desire to prove that defense lawyers used to be. And I will
He and Mrs. Haynes were at a black-tie event at the River Oaks he was the best lawyer in America. The last time I saw Richard at the always remember that, even when
Country Club and the River Oaks Matron was seated directly courthouse, he was walking at a Richard Haynes was young, he was the
across from them. She had a mortified look and never waved him 45 degree angle to the ground, his best kind of old.
over again.
The last lunch I had with him was after Mrs. Haynes had passed
away. It was very sad and we talked about very personal matters
which I will not repeat. I talked about how I had lost my father Our Hero, “Racehorse”
when I was still in school. We talked of death. I recall asking by Robert Pelton
him about Iwo Jima. He had a distant look and I could see his As a young man growing up in and wearing ostrich
mind was a million miles away. He confirmed that he had saved
Abilene, we had all heard of the battle cowboy boots; not
a man’s life. The man was stuck on the beach under fire and
of Iwo Jima and the raising of the only was lawyer
Racehorse had cleared the beach and had good cover. He saw
the other soldier stuck out on the beach pinned down under fire. flag. One youngster in my class was Haynes a survivor
He left his relatively secure spot, ran back out on the beach under especially familiar since his dad had of Iwo Jima, he was
fire, and saved the soldier. I asked him if he knew the soldier he been killed at the battle of Iwo Jima a lawyer wearing
saved and he did not. while serving in the U S marines. cowboy boots like
everyone in Abilene
For me, the Iwo Jima story fairly well sums up who Racehorse Once my road led to moving to did.
was. He was an extraordinarily brave man, who would risk Houston and going to law school,
everything to save another man’s life. He spent his life, saving I started hearing about this great My Dad kept
other men and women’s lives. He was the best lawyer I ever together, we would talk about what
lawyer, Richard Racehorse Haynes. telling me “Son, work hard and he did during the battle. He had been
knew. He was my hero and my friend. The more I came to know Then, lawyer Haynes defended Gus you can be a good lawyer like
Racehorse, the more I admired him. assigned to be a runner to deliver
Mucher, part of the Sharpstown Racehorse.” Over the years, orders and info to the different
bank scandal in Houston. The case I became friends with him and his officers in the battle. He was short
Racehorse could be tough as hell inside the courtroom, but
outside he was as kind as a man could be. I will miss my friend had been moved to Abilene, and it loyal assistant Elise Sartwelle, who in stature, so he said that was
and I will never forget him. Getting to be friends with him is one was the talk of the town. One of my worked with him for almost 30 what saved him from getting shot.
of the highlights of my career. It’s not everyone who gets to be high school classmates served on the years. Elise ran the office and helped
friends with their hero. Like others, I could not help but love this jury that found Mucher guilty, but lawyer Haynes with whatever he He was a great lawyer, but way
good man. We were all very lucky for whatever time had with the case was over turned on appeal. needed. She was a totally dedicated
before that, he was a hero to me
Richard “Racehorse” Haynes. Our lives are all much richer for helper for him. Elise was the best and and other veterans because he was
having known him. God Bless Richard “Racehorse” Haynes and one of the finest humans I ever met.
a survivor of Iwo Jima, one of the
the entire Haynes family. We would see lawyer Haynes on deadliest battles of WWII.
TV talking about being a lawyer When lawyer Haynes and I were
28
THE DEFENDER / SPRING 2018
Pardon Me
The Weaponization of Executive Clemency
By Joseph W. Varela
COMINIUS:
“I minded him how royal ‘twas to pardon
When it was less expected: he replied,
It was a bare petition of a state
To one whom they had punish’d.”1
“Pardons for Offences”
Article II, Section 2 of the United States Constitution provides
that “The President . . . shall have Power to grant Reprieves
and Pardons for Offences against the United States, except in
Cases of Impeachment.”
I contend that Section 2 is a flaw in the Constitution that can
be exploited to upset the balance of power envisioned by the
Founders.
Theories of the Pardon
The pardon was not invented at the Constitutional Convention.
It was an ancient prerogative of executives across cultures
and forms of government. It existed in Athens and Rome.2
European monarchs exercised it, apparently without question;
English kings had their unfettered common-law pardon power
circumscribed by Parliament only in the seventeenth century.
Institutions do not endure unless they are useful. One can
imagine a number of good reasons that the executive of a
government should have the power to pardon convictions, or to
commute or reprieve sentences. A pardon could satisfy a need
to be perceived as merciful, could correct what is believed to be
a miscarriage of justice, could advance some domestic public
policy3 or international diplomacy, or could act as a check-and-
balance against an overreaching legislature or court.
Thinkers who influenced the Constitution merit quoting at
length. John Locke argued that the power to pardon was to be
used for the public’s benefit:
. . . [T]he good of the society requires, that several
things should be left to the discretion of him that has
the executive power: for the legislators not being able
Foresee, and provide by laws, for all that may be useful
to the community, the executor of the laws having the
power in his hands, has by the common law of nature a
right to make use of it for the good of the society,
in many cases, where the municipal law has given no
direction, till the legislative can conveniently be
assembled to provide for it. . . [S]ince many accidents
may happen, wherein a strict and rigid observation of
the laws may do harm . . . ‘tis fit the ruler should have
a power, in many cases, to mitigate the severity of the
law, and pardon some offenders: for the end of
government being the preservation of all, as much as
may be, even the guilty are to be spared, where it can
prove no prejudice to the innocent.4
Alexander Hamilton urged that the power of pardon should
belong solely to the executive, without the possibility of
interference from Congress:
As the sense of responsibility is always strongest, in
proportion as it is undivided, it may be inferred that a
single man would be most ready to attend to the force
of those motives which might plead for a mitigation of
the rigor of the law, and least apt to yield to considerations
which were calculated to shelter
a fit object of its vengeance.
The reflection that the fate of a
fellow-creature depended on his
sole fiat, would naturally inspire
scrupulousness and caution . . . 5
Hamilton persuaded the Constitutional
Convention.
Limits on the Power
Article 2, Section 2 places few limits
on the power of the President to issue
pardons. A pardon must concern a federal
crime (not a state or local crime), and
may not be in relief of an impeachment.
In Ex Parte Garland,6 the Supreme
Court interpreted Section 2 as broadly as
possible:
The power thus conferred is
unlimited, with the exception [of
impeachment] stated. It extends
to every offence known to the
law, and may be exercised at
any time after its commission,
either before legal proceedings are
taken, or during their pendency,
or after conviction and judgment.
This power of the President is not
subject to legislative control
Congress can neither limit the
effect of his pardon, nor exclude
from its exercise any class of
offenders. The benign prerogative
of mercy reposed in him cannot
be fettered by any legislative
restrictions.
This rule was reinforced in Ex Parte
Grossman,7 holding that the power to
pardon extended to cases of criminal
contempt.
The power of pardon is notably
different from other Presidential
powers, such as the power to
appoint judges and
ambassadors, in that
the latter acts
require Congressional approval. Under
the mechanics of the Constitution, the
discretion to pardon belongs to the
President alone.
Congress, while having no legal authority
to prevent a pardon, nevertheless may
be able to impose informal political
limits on the President. They may
threaten impeachment, or hold up his
appointments or withhold funding.
A pardon granted as a quid pro quo in
exchange for something of worth might
expose a president to a bribery charge.
A pardon granted to silence a witness or
ensure the destruction of evidence might
constitute an obstruction of justice, were
the requisite intent to be shown.8 although Ford denied it under oath in
With these principles in mind, we
can examine the history of recent
Presidential pardons.
Use and Abuse of the Pardon
Political scientist Jeffrey Crouch argues
that the number of pardons granted by
presidents has fallen steadily since World
War II, but the incidence of misuse of
the pardon for political purposes is
rising.9 Crouch shows that many of
the pre-Watergate pardons were in the
nature of healing wounds. Washington
pardoned those convicted in the
Whiskey Rebellion. Jefferson pardoned
those punished by the Alien and Sedition
Acts. Later presidents pardoned figures
convicted of activities related to
politically divisive controversies such
as the Civil War, race relations, Puerto
Rican independence, and labor and
“communism” issues. None of these
pardons appears to have generated the
level of public outcry that later ones
did. Crouch distinguishes them because
they were all post-conviction acts of
clemency, and they did not directly
benefit the pardoning presidents or their
supporters.
Then came Watergate.
President Nixon conspired
with his associates to cover
up the consequences of a
burglary of the Democratic
Party’s headquarters.
Investigation revealed other sensational
irregularities. Faced with certain
impeachment and removal, and fearing
indictment, he resigned. A month
after his resignation, President Ford
29
issued Proclamation 4311, in which
THE DEFENDER / SPRING 2018
he “grant[ed] a full, free, and absolute
pardon unto Richard Nixon for all
offenses against the United States which
he, Richard Nixon, has committed or
may have committed or taken part in“
while in office. This was a blanket, pre-
indictment pardon, which did not name
specific acts for which a pardon might be
warranted.
Watergate prosecutor Leon Jaworski
did not challenge this pardon because
he believed that Ford had the power to
do so.10 Ford’s surprise announcement
raised serious speculation that there
was a “deal” between him and Nixon,
a Congressional hearing and a quid
pro quo was never proven. The pardon
damaged his standing with Congress, the
press, and the public, and contributed to
GOP losses in the midterm elections and
Ford’s ultimate failure of election.
Ford and Nixon.
The next administration to furnish a
pardon controversy was that of the elder
Bush. His predecessor, Ronald Reagan,
had been caught trading missiles to the
Islamic Republic of Iran in exchange
for hostages and for money to fight
an illegal war in Central America;
this was the “Iran-Contra Affair.”
Several Reagan aides were indicted for
various crimes relating to the scandal,
including defense secretary Caspar
Weinberger, who was indicted for
several counts of perjury and obstruction
of justice. One count concerned
alleged false statements supported by
Weinberger’s contemporaneous notes of
meetings. These notes belied President
Bush’s repeated public assertions that,
as vice-president, he did not know
of the transactions as they occurred.
After Bush’s re-election defeat, he
pardoned Weinberger and other Iran-
Contra figures.
30
The pardon of Weinberger avoided a trial
THE DEFENDER / SPRING 2018
at which Bush could have been required
to testify or produce his own diary
notes, revealing his knowledge of, and
possible participation in, the weapons-
for-hostages scheme.
Another significant pardon controversy
occurred at the end of Bill Clinton’s
term. Wealthy businessman Marc Rich
was indicted for numerous counts of
illegal transactions with Iran and tax
fraud. He fled to Switzerland to avoid
prosecution. The lame-duck Clinton
issued 176 pardons and commutations in
the last two hours of his tenure, including
a pardon for Marc Rich. It was later
revealed that Rich’s wife had raised cash
or pledges of $1.5 million for Clinton’s
presidential library and garnered support
from the likes of Israeli Prime Minister
Ehud Barak and Jerusalem Mayor Ehud
Olmert.11 There was an investigation12
but no quid pro quo was found. But the
pardon was almost universally regarded
as an abuse of presidential power and
smacked of tawdry money and political
corruption.13
Like his father before him, the younger
Bush succumbed to the temptation to use
pardon power for personal reasons. Bush
claimed that Iraq (i.e. Saddam Hussein)
had bought uranium from Africa. This
claim was disputed and in the ensuing
contretemps, the identity of a CIA agent,
Valerie Plame, was published. Vice-
President Cheney’s top aide was Scooter
Libby. Libby was suspected of being the
leaker. There was an investigation, and
although Libby was never charged with
leaking, he was indicted for perjury and
obstruction of justice. He was convicted
and sentenced to a term in prison, a fine,
and probation.14
Right before Libby was to report to prison,
lame-duck President Bush commuted the
prison portion of the sentence, so Libby
CONTINUED : PARDON ME
would have to serve no time. This act
was derided as hypocritical, given the
Bush Administration’s tough-sentencing
stance and the lack of traditional reasons
for clemency. The fallout did Bush’s
already dismal approval no good.
In sum, the recent pardons discussed
here (and they are not
the only ones) appear to have been done
mostly by lame-duck presidents immune
from responsibility to voters, for political
or personal convenience rather than for
the traditional reasons for executive
clemency previously adumbrated.
The Pardon as a Weapon
A President may discover that the power
of pardon is useful as a weapon.15 A
President faced with an investigation
could issue a blanket pardon to his
associates, worded like the one Ford
used to pardon Nixon. The potential
defendants would have nothing further
to fear, and would therefore have
nothing to gain by cooperating with the
government, nor would there be a public
trial revealing embarrassing information.
This process could be repeated as needed
for each defendant, or there could be
a simultaneous pardon of everyone
under investigation. In theory the
pardons would free up the prosecutor or
Congress to issue subpoenas and compel
testimony, as the witnesses would be
effectively immunized and unable to take
the Fifth, but those pardoned could then
say anything under oath, anticipating that
they would also receive a new pardon for
any perjury or obstruction.
With an entire executive branch
putatively immunized from federal
prosecution, anything becomes possible.
The President, or any other executive
branch official, could order Watergate-
style burglaries, illegal surveillance
and arrests, censorship, or even
violence against any person deemed
an impediment. Nor is this brand of
lawlessness limited to executive branch
employees. The road to authoritarianism
may be paved with presidential pardons.
What is to be done?
Although such pardons would be effective
for those pardoned, the Congress could
deem them an abuse of office worthy of
impeachment and removal. Whether or
not the present Congress, or some future
Congress, would step up is a matter of
conjecture.
Another possibility, and an intriguing
one, is that federalism itself offers
help. The Article II pardon power
extends only to “offences against the
United States,” i.e. federal crimes, but
some federal crimes may also be state
crimes. If money laundering is a federal
crime, it might also be illegal in the
state where the laundering took place.16
This is extraordinary, considering that
federalism usually works in reverse,
when the federal authorities step in to
clean up local corruption.
I believe Hamilton was simply wrong
when he thought that a single executive
was the appropriate officer to hold
unilateral power of pardon; better than
a legislature, which he thought was too
susceptible to public passions.17 It was
a natural mistake: in the run-up to the
adoption of the Constitution, Hamilton
was surrounded by men such as himself,
serious men who were conscious of the
power they wielded. The unilateral grant
of the power of pardon too much reflected
the personalities of the Founders and
failed to anticipate the advent of a man
with a very different concept of authority
and its responsibilities.
It is time to consider amending the
Constitution. Texas practice is instructive
here. The Texas Constitution provides
that the Governor may grant reprieves,
commutations, or pardons, but only after
conviction or deferred adjudication, and
only upon the written recommendation of
the Board of Pardons and Paroles.18 The
Governor, with the advice and consent
of the Senate, appoints the Board,19 and
the Governor can remove any member
he appoints without cause.20 The Board
therefore is not, strictly speaking, a
“representative” of the citizens or an
independent agency, but the scheme
does divide authority and can act as a
brake against unfettered gubernatorial
pardon power.
I propose that Article II be amended in
two respects. First, to require the consent
of a majority of the Senate before any
presidential pardon has effect. This
procedure would ensure public debate
by representatives responsible to
constituencies and would obviate self-
serving unilateral presidential action.
Congress would have an incentive to
forestall power grabs by an executive
branch effectively immunized from
prosecution.
Second, I would have a presidential
pardon attach only to convictions. A
president would not be able to relieve an
indicted person pretrial or issue a blanket
pardon as Ford did for Nixon. This
change would ensure that the system of
grand jury indictments and public trials
would at least expose evidence before
executive clemency could be exercised.
31
Article II certainly does not do that now. Indeed, it serves the
THE DEFENDER / SPRING 2018
opposite interest: hiding crimes and conspiracies from public
exposure.
These proposals are nothing that was not discussed at the
Constitutional Convention. That body debated both these
issues, and others, and did consider the possibility of a
president’s immunizing his executive branch (particularly
in cases of treason), but declined to include antidotes in the
Constitution.21 As it was with Hamilton, the Convention’s
omission was most likely a failure of imagination; the
Founders were simply unable to picture a president who was
not the least bit inclined towards Locke’s “scrupulousness
and caution” and was willing instead to use the pardon to
upset the balance of powers.
---------------------------------------
1 William Shakespeare, The Tragedy of Coriolanus, V.1.
(1608?)
2 The pardon of Barabbas appears in all four Gospels.
E.g. John 18:39 et seq.
3 Biddle v. Perovich, 274 U.S. 480 (1927).
4 Second Treatise of Government, Section 159 (1690).
5 Federalist No. 74 (1788).
6 71 U.S. 333 (1866).
7 267 U.S. 87 (1925).
8 E.g., 18 USC § 1510.
9 The Presidential Pardon Power, University Press of Kansas
(2009).
10 Leon Jaworski, The Right and the Power: The Prosecution of
Watergate, Reader’s Digest Press (1976).
11 The deal was brokered by a deputy attorney general, one
Eric Holder. Olmert had previously received campaign
contributions from Marc Rich.
12 By federal prosecutor James Comey.
13 Crouch, op. cit.
14 Id.
15 The President has asked for advice about his power of pardon,
and has tweeted about it. It is illuminating that he used it to
pardon Sheriff Arpaio, an early supporter, who was held in
criminal contempt for defying
a court order in a matter involving
the civil rights of racial minorities.
16 There is evidence that the special prosecutor is already
considering this possibility and is working with
state-level prosecutors. See
Jon Wiener, “Robert Mueller’s Brilliant Move
Against Trump’s Pardon Power,” The Nation, September
6, 2017.
17 Federalist no. 74.
18 Tex. Const. art. IV, § 11 (b); Tex. Code Crim. Pro. art.
49.01.
19 Tex. Govt. Code § 508.031.
20 Tex. Govt. Code § 508.037.
21 Crouch, op. cit.
 WAR
32
THE DEFENDER / SPRING 2018
In 1975, the United States was suffering a
crisis of conscience. In the previous year, the
President resigned. Early in the new year,
the Watergate conspirators were convicted.
Saigon had fallen. Jimmy Hoffa had gone
missing. John Wooden retired.
It wasn’t all bad, though.
STORIES
Margaret Thatcher had become the first woman
chosen to lead a political party—any political
party. The first Federal Rules of Evidence were
approved by Congress. Bill Gates and Paul
Allen co-founded Microsoft. The movie, Jaws,
was released to critical acclaim.
It was a world in upheaval; its traditional
honor and
power structures were crumbling, and people
were wondering what on Earth they could still
believe in. Despite Nixon’s protestations to
thieves
the contrary, it seemed anyone—at any level—
could be a crook. Depending on the day, it
seemed there was as much reason to hope as
there was to despair.
BY rick oliver Sunday, August 17, 1975, wasn’t a day that
inspired much hope.
In Memorial—a wealthy suburb of Houston—
it was sticky and hot. Evening temperatures
had dipped to the low eighties, but Houston’s
typically tyrannical humidity persisted at over
eighty percent. There was a cloudless sky.
Somewhere, on a porch radio, Gene Elston and
Loel Passe described the diminishing action as
Astros’ lefty Jim Crawford lost a pitching duel
to the Cubs: 11-7.
The games were all over, and night had
descended; dull stars twinkling in the Witching
Hour. Charlie Mize—a wholesale jewelry
salesman—and his family were asleep in their
home. The doorbell pealed; a monstrous
sound in the dead of night. Mize awoke.
Groggy, he left his wife in their bed and made
his way out of the room. On his way to the
front door, he passed the room where his only
son, Skipper, was sleeping.
He didn’t answer the door immediately.
Warily, he asked who was there. A clear and
commanding voice claimed he had a summons
to serve. Mize opened the door.
He didn’t see a summons.
Instead, he saw a gun.
The pistol looked tiny in the hand that was holding it.
Still, it felt no less lethal as it ground into his temple. As
his perspective slowly widened, Mize saw a giant of a man
had filled his darkened doorway, and behind him stood two
others. All of them wore masks. The three men pushed him
into the shadows of his sleepy home. The giant threatened
to kill him if he gave them any trouble.
Within minutes, Charlie’s wife, Carrie, woke to the
nightmare. Her terror was magnified by a sense of
helplessness—a previous battle with cancer had resulted in
the amputation of one of her legs. When their frightened
young son was pushed into the room, the three of them
were bound. Pillowcases were drawn over their heads. They
were ordered to lie face down on the master bed, still warm
with the sleep of a lifetime ago.
The robbers knew what they were after. Realizing the
intrusion wasn’t random amplified the Mize’s fear.
They demanded Mize tell them where he kept his sample
jewelry cases. Mize was employed as the Houston sales
rep for a New York-based jewelry wholesaler. His samples
were clearly the objective of this heist, but the thieves
wanted more.
The intruders were inside the home for mere minutes.
When they finally left, along with the Mize’s peace of mind,
they had stolen Charlie’s sample jewelry case containing
diamonds and assorted jewels, a blue jewelry box that
contained the family’s personal jewelry, fifty silver dollars,
cash, and the family sedan—a 1973 Oldsmobile. The total
value of the property taken was over $140,000. The Mize
family lay still on the bed for an eternity. When they were
sure they could no longer hear the three men, they began
trying to loosen the ropes.
Sam Nuchia, a Detective with the Robbery Division of the
Houston Police Department, and a straight-laced Catholic
from Beaumont, made the scene in the early hours of August
18, and immediately began the investigation. Quickly, he
discovered the thieves had been conscientious not to pull
their getaway car into the Mize driveway, and apparently,
they didn’t wear bandoliers and wave their guns in the air
as they approached. Other than that, it seems parking the
car at another location was the only thought given to cover.
They weren’t smart enough to split up, or wear hats, or
otherwise act inconspicuous. They parked some distance
away and walked to the house as a group, unmasked. Fortune
smiled on Sam in the early hours of the investigation, and a
night-owl neighbor, Ms. Leslie Hagedorn, provided physical
descriptions of the three men. Another neighbor, Seth
Ricklin, told Sam he’d seen an unfamiliar car, occupied by
33
THE DEFENDER / SPRING 2018
three men, drive slowly past the Mize home an hour and half
before the robbery. Still, the descriptions weren’t enough
to positively identify the suspects. The Mize family did not
know their tormentors, and the descriptions Sam managed
to obtain only gave rise to mere suspicion. Fortunately, he
wouldn’t have to wait long for more definitive proof.
News of the home invasion and robbery wasn’t news to
everyone. Michael Ashley Nycum was supposed to have
been in on the Mize robbery. He helped them plan it, but a
few days before the heist, he was arrested on an unrelated
charge. The group cut him out of their plans. He knew
how much loot was waiting for them inside the Mize family
home. The loss of that income itched like an amputation.
He stewed inside his cell at the Village Police Department,
but he didn’t stew for long. He made contact with his
stewards, Detective Steve Stevens and Captain Pat Wallace,
and offered the names of the robbers in exchange for a
favorable outcome to his case. The Village PD accepted
his offer and relayed the information to the Houston Police
Department. When Sam returned to the Robbery Division,
Nycum’s information was waiting for him.
Michael Gregory Todd was a small-time hood and a
professional wrestler whose stage name was “Yukon
Eric.” He was undoubtedly the one who’d held a gun to
the temple of Charlie Mize. His masked accomplices were
identified as Howard Pope and Steven Roy Clements. None
of the men were strangers to law enforcement.
Sam created photo spreads that included a previous mug
shot of each of the three suspects and hot-footed it back
to the scene. There again, he met with Mr. Ricklin and
Ms. Hagedorn. Mr. Ricklin was able to positively identify
Steven Clements as the driver of the suspicious vehicle
and Michael Todd as one of its passengers. For her part,
Ms. Hagedorn was able to identify Michael Todd as being
among the men she saw out on the sidewalk, the night
of the robbery. Within twenty-four hours of the crime,
the combination of Nycum’s avarice and Sam’s good old-
fashioned police work established probable cause to
believe the three men had perpetrated the robbery.
Still, Sam wasn’t finished. Not wanting to rely on the
allegations of a conflicted snitch and the nighttime
identifications of nosy neighbors, Sam decided to stake
out Michael Todd’s Oak Forest home. He already had arrest
warrants for Todd and his accomplices, but he wanted to
more definitively connect them to the crime. As it turned
out, the motley crew of criminals was just as talented at
covering up their crimes as they were in planning them.
With the help of six patrol officers and a police helicopter
called the “Fox,” Sam set up surveillance around Todd’s
home. They didn’t have to wait long. With their eye in
the sky, the surveillance team was able to track Todd to a
34
THE DEFENDER / SPRING 2018
nearby house trailer. There, they saw him pick up Steven
Clements. The police followed the two men to their next
stop, an apartment complex, where Howard Pope and a
woman named Janet Womack, joined them. Together, the
quartet drove to the Great Southern Bank. After making
a withdrawal, Sam and his officers followed the group
back to the apartment complex. With all their suspects
inside, the surveillance team moved into position outside
the door of Howard Pope’s apartment. Sam knocked
on the door, ready to announce their presence. No one
answered. Potentially, they were going to be forced to kick
in the door. First, Sam tried the handle.
It was unlocked.
Sam opened the door, and he and his team swept inside.
Upon entering, they saw Pope and Clements, shocked,
standing by a kitchen table. On top of the table sat
a familiar blue jewelry box. All four occupants of the
apartment were immediately detained, separated, and
transported to the police station for questioning. On the
drive, each of the arrested, no doubt, contemplated the
“Prisoner’s Dilemma.”
Ironically, Pope was the first of the criminals to find Jesus.
His first act of contrition was to ensure his criminality
didn’t besmirch his wife, Janet Womack. He admitted
his participation in the robbery of the Mize home. He
admitted Todd and Stevens were the men who’d done
it with him. He admitted the blue jewelry box was the
same one that contained the Mize’s personal jewelry.
He admitted storing the pilfered jewels in Janet’s safety
deposit box, at the bank from which they had recently
returned, but he insisted she had no idea how the jewels
had come into his possession or why Todd and Stevens
CONTINUED : WAR STORIES : HONOR AND THIEVES
were there to ensure an equal division. Ultimately, Pope
was granted immunity from prosecution in exchange for
the information and testimony he would provide, and
though the answer has escaped the annals of history, it
seems unlikely his wife escaped prosecution on account of
the plausibility of his assertions regarding her involvement.
Indeed, it seems more likely she was spared the wheels of
justice because Pope had also given them something they
hadn’t previously had.
Nukie “Frenchie” Fontenot.
Frenchie was the owner of a place called Northwest
Jewelry & Loans, across the street from Northwest Mall.
Law enforcement knew about his legitimate business, and
they also knew about his underworld activities as a fence.
In the parlance of the streets, a “fence” is a criminal who
deals in stolen property. That, alone, wasn’t the revelation
that had raised Sam’s hackles. Typically, a fence was a
passive participant in the criminal underworld, simply
brokering deals between the thieves and their buyers, but
there was nothing passive about selecting the target, then
organizing the hoodlums to carry out the dirty deed. Pope
informed Sam that Frenchie had set up the robbery. After,
Pope claimed Frenchie had paid the group the sum of
$5,000 for delivery of the sample jewelry case, which was
clearly the prize bull of the heist.
If Pope could be believed, Frenchie’s misdeeds were far
more egregious than simply receiving stolen property, but
Sam had to be certain Pope’s conversion was because he’d
seen the Light; not simply because Pope felt the heat.
Sam re-established contact with one of the victims,
Charlie Mize, and asked whether Mize had ever heard
of Frenchie Fontenot. As it turned out, Mize had. In fact,
he’d recently been inside Frenchie’s store. Indeed, while
showing Frenchie samples, Mize had been made to feel
uncomfortable: Frenchie had asked abnormal questions,
such as where the sales rep lived and where he kept his
jewels, which was unusual solicitee repartee. They were just
the kind of questions one might ask if his ulterior motive
were to avail himself of the property without the hassle of
a valid receipt. At that point, Sam knew he didn’t yet have
enough information to hang Frenchie Fontenot for what
he’d done to the Mize family, but he was determined to
find a way to feed Frenchie enough rope so that he could
eventually hang himself.
Before Sam made a move against Frenchie, his partner,
Detective Earl Musick, returned from vacation and joined
the fray. Earl, a Houston native, was a ten-year veteran of
the force who’d joined in 1965, at the age of twenty. He was
the son of a machinist, who preferred the adrenaline of the
beat and the bonhomie with the damned, to the bore of
the drill and the precision of the lathe. Earl joined the cops
because he thought it sounded fun. Sam joined because
he thought it was his duty. Earl believed in Protestantism
to Sam’s Catholicism, at a time when such things mattered.
Despite their differences, the two worked incredibly well
together and would become lifelong friends.
DA Carol Vance and Detective Earl Musick
Sam briefed Earl on the status of the case. They agreed
it was time to pay Frenchie a visit. They found Frenchie
behind the counter inside Northwest Jewelry & Loans.
They braced him with the information they’d received
from Pope.
There was no reason not to burn their source. If Frenchie
set it up, he had to already know his boys had been
pinched. They weren’t expecting a confession; Frenchie
was too smart for that. Frenchie proclaimed his innocence
and offered to let them search his store for the missing
jewels. The Detectives were too smart for that. They knew
he was smart enough to stash the loot off-campus. A little
too eager, Frenchie claimed he could provide actionable
information against other criminal agents. He was a little
fish in a big pond, he claimed. He could give them the
sharks. Sam and Earl were too smart for that, too.
Frenchie was in their crosshairs.
They weren’t going to be distracted.
They left without a confession, but they did have a plan.
Their visit had put Frenchie on notice that the jewels he
had received had been procured in a robbery. That, along
with the information provided by Pope, gave them just
enough evidence to entice the District Attorney.
It was August 22, 1975. Already, Pope, Todd, and Stevens
had been charged with Armed Robbery. Their cases
had been assigned to the 174th District Court, Judge
Garth Bates presiding. If their next visit were successful,
they knew any case brought against Frenchie would be
assigned to the same court. They drove to the courthouse.
Inside, they found Henry Oncken, Assistant District
Attorney assigned to the 174th District Court, and told
him what they had. After a brief conversation, Oncken
agreed to accept charges against Frenchie for Receiving
Stolen Property. It was a dog of a case, and they all knew it.
They needed to corroborate Pope’s allegations to justify
any hope of seeing the charge mature into conviction, but
it was a charge.
And with a charge would come an arrest.
With the arrest, they could apply more pressure. Soon
thereafter, Sam and Earl arrested Frenchie and booked him
on the charge. They took advantage of the opportunity to
have another conversation with their prisoner. As he was
a captive audience, Frenchie agreed to speak to them.
He’d been through the system enough times to know
they couldn’t make the case against him without more
evidence. He’d also probably been through the system
enough times to know polygraph evidence wouldn’t be
admissible in a trial as proof of his guilt. Maybe because
of that, or irrational arrogance, Frenchie offered to be
polygraphed as to any involvement in the Mize robbery.
Happily, Sam and Earl accepted his offer. Needless to say,
35
the needle of the polygraph ticked like an EKG charting a
THE DEFENDER / SPRING 2018
cardiac arrest.
Earl would later remark that Frenchie had “failed the
polygraph so bad, it threw ink all over the walls.”
It didn’t matter.
Bail was set at $20,000. Before the ink could dry on his
failed polygraph result, Frenchie made bond and was out
on the streets. As expected, his case was assigned to the
174th District Court. Sam and Earl didn’t panic. Indeed,
they didn’t fret. They’d already accomplished their first
objective. They’d put the heat on Frenchie and tightened
the valve. All they had to do was wait for the pipe to burst.
Soon, the Detectives received an unexpected call from
an unexpected place. Harris County Sheriff’s Deputy
John Tanner had been working in an undercover capacity
to interdict and stop the trafficking of cocaine into and
through Harris County. He’d met with some success and
executed a bust that resulted in the arrest of a drug
trafficker. As is so often the case, the dealer was willing to
trade private information for personal leniency.
The phone rang inside the Robbery Division of the
Houston Police Department. Sam and Earl had been
right to wait. Deputy Tanner had good news: a recently-
arrested suspect had information to broker about a pawn
shop owner desperately trying to move a large number of
jewels unlawfully acquired in a recent home invasion. And
due to recent unfortunate personal developments, the
ensnared drug dealer was willing to work as a Confidential
Informant (CI) for Detectives Sam Nuchia and Earl Musick.
The Detectives smiled—cats with canaries in their mouths.
They suggested the CI should become an interested
buyer. They wired him for sound. They gave him some
money and sent him on his way. He returned with a bounty
of jewels. To close the loop, Sam and Earl once again
reached out to Mr. Mize.
36
When he identified the stones as being among those taken
THE DEFENDER / SPRING 2018
from his stock, the Detectives knew they had Frenchie by
the noose he’d fashioned for himself.
But the jewels the CI had purchased were only worth eleven
hundred bucks. Sam and Earl knew the jewels were the
rightful property of the New York-based wholesaler, and
they also knew the jewels were uninsured. They wanted to
return them to their rightful owner. They wanted them all,
and they wanted to nail Frenchie, dead to rights.
Deputy Tanner, working undercover, agreed to accompany
the CI to Frenchie’s store to pose as the CI’s benefactor
and true buyer. For posterity, and also evidence, Tanner
assured them he’d be wearing a wire. When Tanner and the
CI encountered Frenchie inside his shop, they negotiated
a price for the remainder of the loot. The price was set at
$45,000. Tanner promised he could get the money, but in a
world where fifty-seven cents could buy you a gallon of gas
to fuel a new car that cost you thirty-eight hundred dollars,
Tanner admitted he needed some time to marshal the
funds. When Tanner returned with news of the agreement,
Sam and Earl realized a very immediate complication.
The department didn’t have anywhere
near that kind of money.
But in a world that had lost so much faith, a bit of
hope was able to shine through. Within days, Harris
County Sheriff’s Deputy Bill Norman, working with their
Intelligence Division, contacted Sam and Earl. Somehow,
an unidentified civilian had come forward, willing to
help, and he wanted no recognition beyond knowing
he was doing his civic duty. He offered to loan them the
CONTINUED : WAR STORIES : HONOR AND THIEVES
money—$45,000—to complete the buy and execute the
sting.
Tanner and the CI returned to the pawnshop. Frenchie
wouldn’t show them the jewels until he saw the cash.
Tanner showed him. Still, Frenchie didn’t want to make the
exchange inside the sanctity of his store. He told Tanner
he was being watched by “the Man.” Ostensibly, Tanner
managed to suppress an ironic smile. Frenchie explained
it was “too hot” to do the exchange there. They agreed
on an alternative location. Tanner and the CI left with
an agreement to meet Frenchie outside a construction
company in Northwest Houston.
On September 24, 1975, Frenchie left his shop heading
for the construction site. He took the scenic route. He
drove in circles and down dead-end roads. He was nearly
paralyzed with paranoia and fear that the cops were hot
on his tail. It took him over a half hour to drive a few miles.
He needn’t have bothered.
Sam and Earl were waiting for him at the agreed location.
When Frenchie finally arrived, the surveillance team
watched as he met briefly with Tanner and the CI.
Seemingly satisfied, Frenchie disappeared inside the
offices of the construction company. A few minutes later,
he emerged with the stolen jewels.
In Houston, even late-September is hot.
Tanner wiped his brow with a handkerchief.
It was the signal Sam and Earl and their team
had been waiting for. They blitzed the site and arrested all
three men. With the jewels and the money both recovered,
Sam and Earl thought the case was finally over.
Except it wasn’t.
Frenchie was arrested, transported to the police station,
and booked on charges of theft and aggravated robbery.
Sam and Earl went to talk to him. They told him he hadn’t
been followed by “the Man;” he had been negotiating
with him. Tanner was a cop. They had the whole thing on
tape. Pope was waiting in the wings, ready to testify about
how Frenchie had set up the original robbery. It was over, a
slamdunk. With his guilt clearly established, they expected
an easy confession. They were disappointed. Frenchie
proclaimed his innocence and demanded to speak with
his attorney.
The Detectives were disappointed, but they knew they
had him. They spoke to Henry Oncken, who assured them
he wouldn’t sell Frenchie’s case for cheap. He would afford
Frenchie no illusions of grandeur. There would be no
discussion of probation; Frenchie was going to the pen.
But, on March 4, 1976,
everything changed.
Sam and Earl were summoned to the office of
Robert “Bob” C. Bennett. It was an off-site location,
separate from the other offices of the District Attorney.
They were confused. Bennett was the Chief Prosecutor in
charge of the Harris County Special Crimes Bureau. His
division investigated and prosecuted allegations of public
corruption. They had no idea what that had to do with
two detectives from Robbery. When Sam and Earl arrived,
Bennett’s right-hand man, Johnny Holmes, was there with
him.
Bennett had troubling news to share about the judge
of the 174th District Court, Garth Bates. For most of his
career, Judge Bates had been a public servant. He had
worked in the State Legislature from 1953 to 1957. He
had been on the Houston City Council from 1958 through
1961. He was elected to the bench of the 174th District
Court in 1972, where he still sat. Earl’s impression of the
man was scant, but he believed, at least, he was favorable
to law enforcement. Judge Bates was known as a “hanging
judge;” someone quick to drop the hammer on those who
stood before him. The admonition from Dante’s Divine
Comedy at the entrance to Hell could have just as easily
been inscribed above his dais: “Abandon hope all ye who
enter here.”
But, Judge Bates wasn’t considered among his peers
or colleagues to be a learned judge. He didn’t know or
understand the penal laws or rules of procedure to the
degree expected of a District Court judge, and a 1975
Houston Bar poll had rated him last of the twelve District
Court judges in the categories of integrity and character.
As Bennett divulged what he had been hearing, it seemed
the Judge’s reputation might finally come home to roost.
Sam and Earl learned that Judge Bates was also a regular
gambler who often appeared on the secret high-stakes
poker scene. Unfortunately for him, that scene was one
being watched by the Houston Police Department’s Vice
Division. Recently, the flies on the walls of those rooms
had begun to hear troubling rumors. Bennett told them he
had received word from Vice Officer, Stanley Plaster, and
his Sergeant, Carl “Bob” Reese, that justice might be for
sale in the 174th District Court. More shocking, Bennett
and Holmes admitted they’d heard similar rumors before.
This time, though, the rumors weren’t after-the-fact, so
they had to move fast. When Sam and Earl realized who
the buyer was, they knew at once why they’d been chosen.
Frenchie Fontenot.
What they thought was long-since over had only just
begun. The investigation was to begin at once. Things
were already in place. The elected DA, Carol Vance, had
already contacted Pappy Bond, the Chief of Police, and
requested the re-assignment of the detectives to Special
Crimes. They were not to tell anyone why they’d been re-
assigned or what they were working on. The investigation
had to maintain the highest degree of secrecy. Sam and Earl
both thought it wise to consider a compromise position.
A re-assignment would draw just the kind of attention
Bennett and Holmes wanted to avoid, so Sam and Earl
suggested they maintain their current assignments to
the Robbery division, and that their boss, Captain Leroy
Zoch, be informed of their secret mission. When they were
working the Judge Bates investigation, they would record
and preserve everything they did. If they were going to
attempt to take down a judge, their evidence had to be
perfect. Sam and Earl would report the results of their
investigation to Bennett, Holmes, and Zoch, no one else.
Everyone else in the department and the District Attorneys
Office would be kept in the dark. They couldn’t risk a leak
37
THE DEFENDER / SPRING 2018
that might find its way to the judge’s chambers. With that
understanding, the Detectives went back to work.
They knew where they had to go. Earl would wear the
wire. On the way to the Northwest Jewelry & Loans, they
discussed their plan of attack. Back out on bond for the
past five months, they knew Frenchie had been a busy
man, but they couldn’t confront him with their suspicions.
It had to come from him.
Frenchie was behind the counter of his pawnshop when
they arrived, unannounced. He was nervous and justifiably
so. They told him they wanted to talk. Once, back in August
of the previous year, Frenchie had offered to spill what he
knew about sharks and bigger fish. They offered to buy
him a coffee. Reluctantly, Frenchie agreed. They found a
back booth in a nearby diner and sat down for a chat.
It became quickly apparent that Frenchie was
willing to snitch out any criminal but Judge Bates.
After all, the judge was his ace in the hole; his “Get Out
of Jail Free Card.” He made clear his belief that the whole
criminal justice system was corrupt, but he was beating
around the bush. The Detectives let him keep talking.
Frenchie kept throwing out the line, but Sam and Earl
weren’t taking the bait.
Close to thirty minutes after they sat down, Earl excused
himself from the table; he had to take a leak, but there
was something else he had to do, too. The device in his
coat pocket could only record for thirty minutes per side.
He stepped into the restroom, flipped the tape, and set it
to record again. Then, he really did take a leak—while the
recorder was running. Later, much to his chagrin, the tape
and all that it recorded would be played for judge and jury.
He returned to the table. Finally, after more fruitless
chatter, Frenchie said, “Well, I have one thing that is pretty
big, but I just don’t know…”
There it was.
Earl knew Frenchie was ready to play his final card. He
could see he was ready to break. It seemed to Earl that
Frenchie was just hoping for the softest place to land. He
tried to assure him. He said, “Frenchie, you can trust us.
There are not any two cops more hard-working and honest
than Sam and me. And we are men of our word.”
Earl had been right.
The dam broke, and Frenchie began to tell his tale.
Soon after posting bond, Frenchie realized there would
38
THE DEFENDER / SPRING 2018
be no easy way out of his mess. Oncken, the ADA in the
174th, wasn’t offering anything more pleasant than a trip
to scenic Huntsville. Frenchie had no intention of going to
prison. There had to be another way. He got to talking with
one of his known associates, a guy named Jerry Kottwitz.
Like Frenchie, Kottwitz was a fence, but he also liked to
gamble, and he didn’t gamble for nickels. Kottwitz was a
big game hunter. The local circuit wasn’t terribly robust,
and most of the players were familiar with one another.
Kottwitz explained to Frenchie that he knew a guy who
knew a guy.
The guy Kottwitz knew was Ed Riklin. Riklin had a day job
as a salesman for National Auto Maintenance. He was
also known to Vice to be a bookie and a gambler. He, too,
frequently appeared around high-stakes poker tables. The
guy Riklin knew was Judge Garth Bates; the very judge
with the power to determine Frenchie’s fate. Riklin and
Judge Bates were incredibly close—like father and son.
According to Kottwitz, Ed had negotiated bribes for
Judge Bates in the past, to make cases go away. Suddenly,
it seemed like serendipity had smiled upon Frenchie’s little
problem.
Though his involvement was short-lived, Kottwitz was
the critical link that set a ball in motion that would wreck
lives and careers and rock the foundation of the halls of
justice. He made contact with Riklin, on Frenchie’s behalf.
After some haggling, an agreement was reached. For
the princely sum of $150,000, Riklin promised Frenchie’s
charge would die an untimely death or, at a minimum, he
would do no worse than probation.
Frenchie was gutted. He knew there was no way he could
raise that kind of capital in time. Still, the alternative was
CONTINUED : WAR STORIES : HONOR AND THIEVES
prison. He made a risky decision. He decided to cut out
the middleman and approached Riklin on his own. He
admitted he couldn’t get his hands on that kind of money.
With Kottwitz out of the picture, he hoped for a lower
price. They discussed the available options. For dismissals,
they still charged a premium. Frenchie could only afford
probation. Ultimately, he was able to negotiate a price of
$30,000. For that, Riklin promised Frenchie he’d have his
probation.
Not for the first time,
Sam and Earl proved to be
the thorn in Frenchie’s side.
Soon after they agreed on the $30,000, Riklin reneged
on the deal; $30,000 wasn’t going to be enough, he said.
Since Sam and Earl had sicced Oncken on the case, Riklin
claimed Judge Bates was going to have a tougher time
extracting probation. He was still willing to do it, but they
wanted to double the bribe. For $60,000, Frenchie could
still avoid the penitentiary. Riklin had relayed this up-of-
the-ante only days before this sojourn with detectives.
Finally, the cracks in the dam were becoming apparent.
Now, it made sense why Frenchie had been willing to talk.
He had no real hope of managing the $60,000 on his own.
If the cops wanted to take down a dirty judge, the
$60,000 was going to be their problem, but Sam and
Earl realized they had a more immediate concern:
Ed Riklin might have been full of shit. Riklin was the only
person with whom Frenchie had spoken. They had no
solid evidence Judge Bates was involved in anything more
sinister than card games. His complicity and corruption
could have been specious bravado. Riklin could have been
making it up, with Frenchie his unwitting mark. Still, the
stakes were too high to fold their investigative tent. With
Bennett’s approval, they put Frenchie to work to gather
more evidence.
On March 10, 1976, Frenchie was taken to a local doctor’s
office. There, a cast with a hidden transmitter was encased
around his arm to record any impromptu meetings. The
pawnshop was bugged, and Sam and Earl monitored each
and every scheduled meeting.
The Detectives monitored more than just meetings. With
the scope of their investigation widened, Bennett assigned
three trusted investigators to the case. Ken Rodgers, Bill
Hubbell, and D.I. Baker worked with Sam and Earl to keep
tabs on Ed Riklin, who lived in an apartment located at
2320 McCue, near the Galleria. From March – July of 1976,
they watched the traffic into and out of Riklin’s apartment
from a parking garage just north of the residence. They
spent long hours watching through binoculars and taking
pictures of everyone they saw. Judge Bates, they noted,
was a frequent visitor. Still, that alone proved little. Riklin
had managed to insulate Judge Bates from any of his
illicit conversations, but with time running out, there were
decisions that needed to be made.
The agreed-upon exchange date had drawn nigh.
It was July 15, 1976. Once they crossed the Rubicon, the
problem was they knew they could only make a case
against Riklin. They had countless hours of recorded
conversations, but the closest Riklin had ever come to
mentioning Judge Bates by name was by reference to
“the party,” or “my friend and your friend,” or “the big
boy.” They felt sure he was doing the Judge’s bidding,
but the only way they were going to be able to prosecute
Judge Bates was if they were able to flip Ed Riklin. Once
again, they were confronted by a familiar failing.
They didn’t yet have the money.
This time, there had been no do-gooding citizen willing
to lend them the cash. The District Attorney’s Office had
no budget for that kind of thing, and they couldn’t ask the
County Commissioners for the $60,000. There never would
have been enough time, and they couldn’t risk a leak that
would find its way to the Judge. Back at the Special Crimes
Bureau, Robert “Bob” C. Bennett and Johnny Holmes
pondered their predicament.
A short time later, Bob and Johnny left the office and
headed to the bank.
Leaving no doubt as to their commitment to the
investigation, when they arrived at the bank, the two men
co-signed a personal loan for $60,000 of “flash money.”
Together, Bob and Johnny personally guaranteed the
repayment of the funds. Without imparting any revelations
to bank officials, they asked that they be given the
proceeds in cash.
When they returned to the office, Bob handed the money
off to Bill Hubble, one of the team’s investigators. Hubble
carried the bundled stacks of hundred dollar bills into the
copy room and arranged ten bills atop the scanner glass.
Copying ten bills at a time, he made sure to copy every
serial number of every bill, so they could prove any monies
recovered were those that were borrowed from the bank.
While Hubbell was making copies, Bob was working the
phone. He was on the line with a manager of the Northwest
National Bank, where Frenchie kept his accounts. Their
offices were inside the Northwest Shopping Mall, across
the street from Frenchie’s pawnshop. Bob rented a safety
deposit box in which Hubbell would deposit the money,
early the next morning. Over night, the cash was stored in
a safe inside the Special Crimes Bureau.
While Bob and Johnny were dealing with the money, Sam
and Earl were preparing for the bust. They would have
undercover officers inside the bank, a surveillance team
outside, and marked units on standby. Sam and Earl would
position themselves in unmarked units in the mall parking
lot, and they wanted a helicopter. When they approached
Chief of Police, Pappy Bond, about the “Fox,” he informed
them it was unavailable; it was being used on a cocaine
bust. At the last minute, the Detectives were able to
procure a DPS chopper to cover them from the sky.
Their plan was simple: Frenchie was going to meet Ed Riklin
at the bank, go inside to make his withdrawal, and meet
Riklin back outside, where the money would change hands.
At that moment, the arrest team would swarm them.
Everything was set.
The exchange would take place the following morning, at
9 a.m.
The next morning, August 16, 1976, Earl, in an unmarked
39
unit, found a parking spot about 150 yards away from the
THE DEFENDER / SPRING 2018
bank with a line-of-sight on the front doors. He backed
into the spot, checked the magazine of his .45 Commander
Automatic, pulled out his binoculars, and settled in for the
wait. Sam, too, lurked somewhere nearby. The undercover
officers were in place on the inside. The prowl cars were
on high alert but out of sight. Bob and Johnny were
near enough the location to manage the operation, but
far enough away to avoid making themselves witnesses.
Team members were able to establish radio contact
and determine that Earl would have the only eyes on
the exchange. Shortly before 9 a.m., Frenchie left his
pawnshop and drove across the street to the bank.
At about the same time, Bob got a call over the radio.
The caller was Debbie Burkhalter, an Administrative
Assistant for Special Crimes. She said it was urgent she
speak to Bob. She was concerned her integrity was being
tested. She’d found money on the copy machine—ten
neatly arranged hundred-dollar bills—and she wanted to
report it immediately. She thought it was some kind of a
sting. She, like all but the chosen few, had no idea what
was underway that morning.
Bob put his head in his hand.
Apparently, Bill Hubble had made sixty copies on the
machine, but he’d only remembered to remove the bills
fifty-nine times. The bribe would be short by $1,000.
That’s when Ed Riklin arrived.
Earl watched as Riklin met Frenchie outside the bank.
After a brief exchange, Frenchie disappeared inside. As
he waited for Frenchie to emerge, Earl saw a remarkable
thing.
Judge Bates, in his black Cadillac, wearing a red ball cap,
had just driven by.
Earl got on the radio and surprised the team when he
said, “the man just showed up.” Everyone knew what
that meant. Earl thought Judge Bates was “jiggering” the
mall parking lot, or casing the location for the presence of
law enforcement. After making a few slow circles, Judge
Bates parked in the spot directly in front of Earl’s position.
Another man was in the Cadillac with Judge Bates. James
H. Brown, a long-time friend of the Judge who had worked
as his accountant, and at that time, was working as his
probation coordinator, was in the seat beside him. Like
Earl, they were positioned directly behind Riklin. Unlike
Earl, they appeared to be there to cover his six. Judge
Bates got out of the car, casually scanning the parking lot.
Incredibly, he walked to the car directly behind his—Earl’s
40 41
car—and leaned against the front bumper. Fortunately, Nothing. Everyone with a badge and gun flew out of the building their efforts, he knew he could easily justify probable
THE DEFENDER / SPRING 2018

THE DEFENDER / SPRING 2018

when Judge Bates had turned towards his car, Earl had
slid off the seat and sank into the floorboard, out of sight.
Quietly, Earl relayed to his team that he no longer had
eyes on the exchange. Despite the intensity and confusion
of the moment, Bob made the call for the arrest team to
stand down. Before any arrests were made, he wanted to
be certain the money had changed hands, and he wanted
to see whether Judge Bates would insinuate himself
further into their trap.
Slowly, Earl eased back up in his seat and looked over the
dash.
Ed Riklin was gone.
Earl had missed the exchange but watched as Judge
Bates got back into his car and reversed out of his spot. As
he left the mall parking lot, Earl saw that Judge Bates was
following Riklin. Both were heading back into town on Old
Hempstead Highway. Quickly, Earl radioed the update.
Bob radioed back for Earl to maintain his position.
Earl overheard the traffic as Bob confirmed with the
DPS chopper that they had not witnessed the money
changing hands either. With growing panic, Bob ordered
officers from the parking lot into the bank to determine
whether the undercover officers had been able to see the
exchange. Within seconds, the payoff was finally verified.
The entire team was deflated. Earl saw Bob and tried to
lighten the mood,
“At least they didn’t get away
with all $60,000.”
Bob and Johnny had personally guaranteed the repayment
of the flash money. As it stood, they were on the hook for
$59,000. Somehow, Bob didn’t see the humor in Earl’s joke.
They all considered their options. They didn’t believe
Judge Bates or Ed Riklin were on to them, so there was
no reason to believe their suspects would do anything
drastic. They expected the men to return to their normal
routines. That meant if the Judge weren’t going to work,
he might simply have gone home.
They needed a pretext to call him at home.
Suddenly, Earl’s humor and Bill Hubble’s mistake sparked
a fortuitous epiphany. After the bust had gone south,
Frenchie had joined Sam and Earl. He was still with them,
at Special Crimes. A plan was hatched to have Frenchie
call Judge Bates at home. He could claim to have just
realized he shorted the bribe money by $1,000. He could
assure the Judge he’d make him whole. He could admit it
was a simple mistake and ask the Judge if they still had a
deal.
and converged on the little apartment at 2320 McCue. cause for the Judge’s arrest. He saw Investigators, Baker
Later, Earl estimated ten to fifteen officers, along with the and Hubbell, ahead of him on the sidewalk. He shouted
DPS chopper, were able to make the scene. at them to detain Judge Bates, but they didn’t hear him.
Clearly, Judge Bates could sense what was happening.
While they were en route, one of Riklin’s neighbors He put his car in reverse but was blocked-in by a vehicle
noticed Rodgers and the other officer with him, outside behind him.
of the apartment. The neighbor saw that both men were
armed. They were in an undercover vehicle; neither was Earl was fifty yards away.
in uniform. The neighbor couldn’t have known they were
members of law enforcement. Worried, the neighbor went He was still holding Riklin’s useless shotgun, dirt clogging
inside and called Riklin. its barrel. With his badge in his other hand, he broke into
a sprint. Judge Bates was stuck. When Earl skidded to a
Riklin was terrified. He thought it was a double-cross; he stop outside the driver’s side door, Judge Bates had rolled
was sure Frenchie had sent the men there to rob him. down his window.
He went into his closet and retrieved a chrome-plated,
sawed-off shotgun, and charged outside to confront the
two men.
Outside, Earl stepped out of his vehicle.
He’d parked down the street, away from Rodgers and his
“cool car.” Earl’s car was more conspicuously coppish.
Suddenly, the front door opened and Riklin was there,
wielding his shotgun.
Earl started to run as Riklin started down the sidewalk.
Ahead of him, Bob Reese made it there first and went to a
knee maybe ten feet from Riklin, badge in one hand, pistol
in the other, screaming, “Stop! Police!”

Bob screamed into the radio, “Fall on ‘em!”
Earl jammed the gear into drive and screeched out of
his parking spot and hit the Old Hempstead Highway at
CONTINUED : WAR STORIES : HONOR AND THIEVES
Bob worried it would raise suspicion; that the Judge would Riklin leveled his shotgun.
wonder how Frenchie had been able to procure his home
phone number. Sam and Earl thought the adrenaline and Reese pulled the trigger.

panic of being contacted at home by a defendant from

nearly one hundred miles per hour. He radioed to the DPS
chopper for a location on the vehicles. For an interminable
second, there was radio silence. Finally, the chopper pilot
came back on the air.
He was following the wrong car.
The DPS guys were from Austin; the pilot didn’t know
the area. He’d picked a car to follow, but he’d picked the
wrong one. Ed Riklin and Judge Bates were gone. The
money was gone. The team was apoplectic. Earl’s heart
whom he was taking a bribe would countermand any calm
reflection. With no other ideas, they began working to
secure the judge’s digits.
When Frenchie called, the Judge’s wife answered. Politely,
Frenchie asked if he could speak to the Judge. She put
him on. Once again, Sam and Earl were right. Judge Bates
was clearly rattled. He spoke quickly, trying to get Frenchie
off the phone.
Frenchie feigned panic and asked whether he should
Earl flinched,
but all he heard was an empty click.
By then, Riklin could see the swarm of uniformed officers
advancing on him. He threw the shotgun into the flowerbed
off the side-walk, where it stuck in the dirt, barrel first. Earl
rushed past Reese and pushed Riklin into the wall. Just
behind him, Sam and a cadre of officers sprinted up the
sidewalk. In his haste, Sam barreled through Earl and into
Riklin; placing him under arrest.
Judge Bates, in handcuffs

sank.
With no one to follow and no one to arrest, the team
regrouped at Special Crimes. Their first order of business
was to try and locate their suspects. They called the 174th
District Court. Employees there assured them the Judge
had left that morning and had not since returned. They
radioed Ken Rodgers, who was set up with a surveillance
team outside Riklin’s apartment.
hire a lawyer. Judge Bates told him, “You don’t need any
lawyer. You just deal with Ed. I’ll help Ed. And I’ll help you.”
Frenchie profusely thanked the Judge for his help. Judge
Bates made his allegiances clear when he said, “I’m doing
this for Ed Riklin.”
About the same time, Ken Rodgers called.
Ed Riklin was home.
With Riklin secured, Earl re-holstered his weapon,
stepped off the sidewalk, and retrieved the shotgun
from the flowerbed. Earl looked around them; the scene
was chaotic.
Suddenly, he spotted a familiar black Cadillac.
Judge Bates had just turned onto McCue. With a sense of
alarm, Judge Bates had stopped in the middle of the road
and was watching the scene. Earl didn’t hesitate. Through
“Your Honor, you’re under arrest,”
Earl shouted.
Epilogue
On July 16, 1976, Judge Garth Bates became the first
District Court Judge in the history of the State of Texas to
be charged with Bribery. Once he was detained, Earl
42
THE DEFENDER / SPRING 2018
Judge Bates’ Mugshot
searched the Judge’s coat. Inside, he found twenty-nine
hundred dollars. There was also a deposit slip inside the
coat pocket that showed a deposit of eleven hundred
dollars that had been made at the First City National
Bank—where Judge Bates did his banking.
After arresting Ed Riklin, Sam searched his apartment.
Inside a pillowcase, he found thirty thousand dollars in
cash. Focused on Riklin, Sam had no idea Judge Bates
had arrived on scene or that Earl had arrested him. He
wouldn’t hear of the Judge’s arrest until leaving the scene
with his prisoner.
After the dust settled, officers were able to determine
what had happened after Riklin, Judge Bates, and Brown,
left the mall parking lot. The three men drove to the office
of James H. Brown. There, Riklin and Judge Bates divided
the cash: Riklin took thirty thousand, leaving Judge Bates
with twenty-nine. Judge Bates immediately handed Brown
ten thousand dollars with instructions on what to do with
CONTINUED : WAR STORIES : HONOR AND THIEVES
it. Brown left his office and drove to the bank, where he
purchased a cashier’s check in the same amount. The
check was then delivered to a title company, as deposit for
the purchase of the Beacons Field Apartments, a property
Judge Bates hoped to buy with a group of investors.
Ultimately, officers were able recover all of the $59,000
Frenchie had provided to Ed Riklin; Debbie Burkhalter
provided the rest. All of the cash was matched to the serial
numbers of the bills Robert “Bob” C. Bennett and Johnny
Holmes had borrowed.
Judge Garth Bates’ case was assigned to the 208th District
Court. On July 21, 1976, he was indicted by the Grand Jury.
On August 18, 1976, a jury was selected, and he went on
trial for Bribery. On November 2, 1976, while his case was
on trial, Harris County voters elected Garth Bates to return
as Judge for the 174th District Court.
Evidently, they didn’t read the papers.
Nine days later, on November 11, 1976, Bates was
convicted. The jury sentenced him to eight years
confinement in the Texas Department of Criminal Justice.
He remained free on bond while his appeals were pending.
On July 11, 1977, the Supreme Court of Texas affirmed his
removal from the bench of the 174th District Court.
Evidently, they did read the papers.
On January 10, 1979, the Court of Criminal Appeals
affirmed his conviction. On October 25, 1979, Bates was
sent to prison; however, after serving only four months
of his sentence, District Court Judge Thomas Routt
granted Bates “shock probation.” He was released from
prison, and the balance of his sentence was probated.
He successfully completed his probation and was
discharged on November 10, 1987.
Ed Riklin’s case was also tried to a jury. He, too, was
convicted. Riklin was sentenced to four years in prison.
Like Bates, Riklin only served four months of his sentence.
Like Bates, Riklin was also granted shock probation. On
October 13, 1986, he successfully completed his probation
and was discharged.
Nukie “Frenchie” Fontenot and Howard Pope both
received immunity from prosecution in exchange for the
testimony they provided at the various trials that resulted
from this investigation.
On December 10, 1979, Michael Gregory Todd, “Yukon
Eric,” was convicted by a jury and sentenced to forty years
in prison.
Steven Roy Clements was also convicted by a jury and
sentenced to life in prison.
Detective Sam Nuchia worked for the Houston Police
Department from 1967 until 1984, leaving as a Deputy
Chief. After finishing law school, he was hired as an
Assistant U.S. Attorney for the Southern District of Texas.
In January 1992, Mayor Bob Lanier made him Houston’s
Chief of Police, where he served until January of 1997
when Nuchia was elected as a judge to the First Court
of Appeals, where he remained until 2008. While on the
bench, he authored the opinion that overturned the
conviction of Andrea Yates.
Detective Earl Musick remained with the Houston Police
Department until 1998. After finishing law school, he was
hired by the Harris County District Attorney’s Office, where
he worked as a prosecutor for four and a half years. In
2003, he opened a criminal defense firm with his daughter,
JoAnne. Earl became HCCLA President in 2011. He is still
in private practice, today.
 SPRING 2018
THE DEFENDER
PO Box 924523
Houston TX 77292-4523