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DEFENDER SAN ANTONIO

A Publication of the San Antonio Criminal Defense Lawyers Association

VOL. XVI ISS. II | AUTUMN 2015

THE UNWINNABLE CASE

“Luck is a very thin wire between survival and disaster, and not many people can keep their balance on it.” —Hunter S. Thompson

DEFENDER SAN ANTONIO

THE DEFENDER

SACDLA

Editor-in-Chief

Officers

Christopher Simpkins

Warren Wolf

Don Flanery

President

Treasurer

Patricia Jay

Christopher Simpkins

Vice President

Editor, “Defender”

Michael McCrum

Trisha Morales Padia

Secretary

Executive Director

Design & Layout

Board of Directors

Directors Emeritus

Nate Turnage

Anne Burnham Robert Barrera Edward Bartolomei Philip Bozzo Deborah Burke John Carroll Christine Del Prado Mario Del Prado Richard Dulany Loraine Efron Joseph Esparza John Fox Paul Goeke Julie Hasdorff Juan Carlos Hernandez Brandon Hudson Pat Montgomery Blakely Mohr Angela Moore Joel Perez Megan Roper Robin Teague Chris Simpkins Aissa Strickland Chad Van Brunt Michael Young

Charles Butts Anthony Nicholas

Associate Editors Adam Kobs Robert Featherston Warren Wolf Loraine Efron Trisha Morales-Padia

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If you would like to submit an article to be considered for publication in The Defender, or see about how you can help or become involved with and contribute as an Associate Editor, please email chris@csimpkinslaw.com.

The San Antonio Criminal Defense Lawyers Association P.O. Box 831206 San Antonio, Texas 78283 (210) 501-2916 sacdla.com

Past Presidents Robert Featherstone Jorge Aristotelidis Jay Norton Michael Gross Jeff Mulliner John “Bud” Ritenour Adam Kobs George Taylor Stephanie Stevens Jim Greenﬁeld Michael S. Raign John A. Convery Ernest Acevedo, III Ronald P. Guyer Mark Stevens George Scharmen Cynthia Hujar-Orr

PRESIDENT’S MESSAGE Warren Wolf

TURNING THE TABLES Matthew Allen

17-YEAR-OLD GIRL Sean Keane-Dawes

IT WAS THE DEAD MAN’S DRUGS Alex Scharff

THE CASE THAT COULD NOT BE LOST, BUT WAS–BUT NOT REALLY Mark Stevens

3 TRIALS & 8 RULES Brian Powers

UNWINNABLE AT A CURSORY GLANCE Michael Gross & Joseph Esparza

THE CASE OF THE PLAID BOXERS John A. Convery

THE DEVIL IS IN THE DETAILS (SO IS THE TRUTH) Bobby Barrera

NONE OF THE OFFICERS Tony Jimemez

EDUCATION WAS NOT A PRIORITY Victor Valdes

CAPITAL MURDER AND RECUSAL IN CENTRAL TEXAS George A. Taylor

FACING ALLEGATIONS OF ROBBERY AND UCW Adam Kobs

FEDERAL CASES Jorge G. Aristoteledis

A MAN WALKS INTO A BAR IN WEST TEXAS Mario Del Prado

METH & THE MASTER SERGEANT Julie K. Hasdorff and John A. Convey

18 19

IT WAS SO UGLY James Reeves ONLY IN TEXAS Gerry Goldstein

26 27

THE STATE V. JOSEPH T. ESTRADA, JR. Therese Huntzinger SPRING BUTT John Pinckney FIRST NATIONAL BANK OF BEEVILLE V. BATCHELOR Robin Teague

JOE Philip Bozzo, Jr.

KARATE KID Joe D. Gonzales

LESSON WORTH SHARING Warren Wolf

SOMEONE HAD ROBBED A BANK Gammon Guinn

PRESIDENT’S MESSAGE It seems that every I read about the successes of our members in the hall of the Bexar County Courthouse and beyond.

Thanks to Mark Stevens who headed up this project and editor Chris for assembling this special edition.

This issue includes articles by just a few of those who took the time to give us some insight into their victories. Read them and be inspired.

And to all our members, read, learn, be inspired and continue to defend your clients with the zeal and willingness to adapt in order to get that two word verdict.

But for every one of the included articles are countless victories by more modest members. While modesty is a virtue and the recounting of their victories by others is commendable the lessons to be learned from the “less modest” serves our members better still.

All the best, Warren President, SACDLA

IT WAS THE DEAD MAN’S DRUGS Alex Scharff

My client was on deferred adjudication for Possession of Cocaine 4-200. While on supervision, the police obtained a Search Warrant for his residence and found inside many, many ecstasy pills inside shirt pockets in the closet as well as a small amount of cocaine inside of a suitcase. The trial judge wanted to go forward on the Motion to Adjudicate prior to having a jury trial. I filed a Franks v. Delaware Motion, based on the fact that no one had seen my client in possession of drugs within 48 hours, as well as a Motion to Suppress, and a Motion to Reveal the Confidential Informant. The trial court quickly denied all those motions during the hearing. However we had a good factual defense. My client had recently moved into the house, where his cousin, who had recently passed away, lived. His cousin was a drug dealer. I bench warranted from TDCJ my client's other cousin, who had been the dead cousin's roommate before he went to prison. He testified that the dead cousin was an ecstasy dealer and he knew that he was also was a heavy user of both cocaine and ecstasy. I called the dead cousin's mother as a witness, who identified the shirts where the ecstasy tablets were found to have belonged to the dead cousin, and that she had not yet had a chance to clear the dead cousin's possessions out of the residence. She also identified the suitcase as belonging to her son, the dead cousin.

My client, who looked like a clean businessman, testified that he had just moved into the house and the room that contained the drugs inside the clothes inside the closet was not the room where he slept. My client was fairly portly and the sizes of the dead cousin's shirts did not and would not fit my client. The trial judge took the matter under advisement and asked both sides to present case law. At the time, there was no good cases reversing a judge's decision to revoke one's community supervision because of the lowered standard of proof, which is "by a preponderance of the evidence." I was able to find one San Antonio case that basically said it was the Judge's discretion, so he could know that if he denied the State's Motion to Adjudicate, the State would have a tough time of reversing his decision. The State presented the basic witnesses who testified about the search warrant and where the drugs were found, plus they, luckily, took pictures of the shirts where the drugs were found. Ultimately, the judge denied the State's Motion to Adjudicate, which barred them from going forward to a jury on the new cases, so they dismissed the new cases. The prosecutor was now District Judge Lorena Rummel, who told me after the fact, "I guess it was the dead man's drugs."

UNWINNABLE AT A CURSORY GLANCE Michael Gross and Joseph Esparza

In 2009, Michael Gross and I tried a nondeath capital murder in Pearsall, Texas. Frio County was outside our normal practice, but we were asked by the Judge to be appointed counsel for the suspect who desperately needed help. We accepted and made the ﬁrst of several trips to Pearsall over the course of representation. The facts themselves were standard and damning to the defense. The case appeared unwinnable at a cursory glance. Our client was a friend of the two victims, who were a couple, both of whom were dead from multiple gunshot wounds in their home. The co-defendant had been present at the house along with another witness, a female who lived down the street, and they both told police that they had witnessed our client shoot and kill the couple. They gave statements describing in different aspects their experiences, vantage points, etc. The statements made sense. Our client had ﬂed out of town. Five law enforcement agencies were involved in the pursuit and eventual capture of the two defendants. The co-defendant was found hiding on a ranch in the country and was surrounded (like the Old West) and captured. Our client was

arrested at a grocery store in Cotulla, TX and surrendered. The file was stacked against us and the forensics were at the lab being processed and the witnesses were firm in what they saw. When trial ended, we got a “Not Guilty” in about 20 minutes and the jurors openly looked at our client as they left and the local sheriff volunteered to give our client a ride home with the Judge’s permission. How did we get to this result? Investigation and pounding the pavement. This entire case hinged not so much on forensics because we could not dispute our client’s presence at the scene of the crime. We expected forensics, GSR, etc., to support the State’s theory, but in the end, it would only prove his presence (we hoped) and not his handling of the murder weapon itself, which was not recovered. We figured early on we needed to learn about the witnesses and victim histories and check the motive of our client to see if the crime made sense from his perspective. It became apparent very soon that it did not make sense for our client to be the shooter. The victim-couple were drug dealers/users and friends of his, they historically got along well and all of the neighbors we interviewed by block walking the area all said the same thing—our client

got along great with them; not so much for the co-defendant, who had a reputation for quick anger and holding grudges, especially if money was involved. The co-defendant was also known to carry a gun and was also involved in the drug trade. We obtained certiﬁed copies of past applicable judgments for later use at trial during cross as needed. From the facts learned, a defense theory was taking shape. I do not recall that the State ever recovered the alleged murder weapon, so that was one less thing to worry about. We physically interviewed all State civilian witnesses and spoke to the female who was present at the murder scene and I had her walk me through what she saw from every vantage point she could recall. She was cooperative and was eager to answer questions. It soon became clear that she could not have seen any of the murder or even the aftermath from any of the vantage points she listed. The shooting itself took place at night, the nearest street lamp was inoperable and had been for months, and there were obstructions at her every vantage point. It was a “My Cousin Vinny” situation with this witness. I took a ton of photographs while talking to her and went over them with her at the scene and waited to see if she’d admit to me she couldn’t have seen anything, but she never did. I did not confront her, just gathered information (confrontation in a friendly way would come later at trial). We also

we showed circumstantially and strongly why it made more sense for him to be the shooter and not our guy. talked to some other neighbors who were nice enough to open their homes to us as we investigated. It helped that we weren’t dressed like lawyers for this, wearing short sleeve shirts, jeans, and casual apparel. It’s always a mistake to wear a suit and roll up on someone in my experience when you are looking for information. On paper, the case was bad for us given the witness statements. Still, we got ready for trial in a small town. Voir Dire was interesting because everybody knew everybody else. We just talked to the venire panel and started asking folks about their knowledge of some of these witnesses they claimed they knew. The funniest statement about a State’s witness was from a grandmotherlytype who told the Court (and panel) during voir dire that she knew the witness, but never had her in her house because she was known as “La Cocaina.” The room cracked up and we just went on from there. The trial itself was fun and got better for us with each passing witness. All of the witnesses were druggies and the worst ones were testifying for the State. The victims were not saints, and our client was their best friend – the motive made no sense. Worse for the State, on cross examination, much like “My Cousin Vinny,” “La Cocaina” fell apart on the stand and was forced to testify about all the obstructions, with the pictures in evidence, showing that if you can’t see what you claim to see during the day, how did you see it at night? That was a question that seriously bugged the jury and the State couldn’t answer. The co-defendant got immunity from the State and testiﬁed, but

To make matters worse for the prosecution, the forensics were either inconclusive to our guy or not available for trial and the Texas Ranger who did the forensic evidence gathering and knew the case was a noshow as a witness. The Rangers sent his supervisor instead who on DX acted like he knew this case backwards and forwards and testified pretty well until I began to cross him and he soon fell apart and could not answer a series of questions that dealt with the evidence. He was forced to admit ultimately he had no idea on the status of the evidence or where exactly it was/what lab, etc. He looked deflated when he left the stand. We rested right after the State and did not put our client on the stand. They hadn’t come close to proving the charge and we made a strategic call that the jury had heard enough. After both sides rested, the lead prosecutor leaned over to her co-counsel (our tables were actually touching) and said, “Is this case going as bad for us as I think it is?” Arguments were passionate on both sides. Mike gave a great closing argument highlighting the failure to prove the case BRD, etc. The whole vibe in the courtroom fit our loose theme of “They got the wrong guy” and “The prosecution made a deal with the devil (co-defendant).” The “Not Guilty” soon followed. Moral of the story: Investigate and always “Walk the earth” of your case. You’d be surprised at what you’ll find.

DEVIL

IS IN THE

DETAILS ( SO IS THE TRUTH! ) Bobby Barrera

Many years ago there was a set of very popular posters which consisted of computer generated images that, at first glance, seemed to be nothing more than squiggles and spaghetti lines in a palette of soft and blended colors. People would stare at them for minutes on end, and seeing nothing in the image, would turn and walk away. Others, more challenged by not being able to see what they were supposed to (though they had no clue as to what it was) would continue to stare as if trying to see through the image. They would focus beyond the lines until they saw the true picture, hidden among the lines and squiggles. Once identified, the “details” of the image overwhelmed the visual senses and became an almost “3-D” drawing. Suddenly, dragons or fighter jets would seem to leap from the lines and take motion as you moved your head left to right. What was “obvious” at first glance was nothing other than lines and colors. Given that obvious conclusion, your mind closed to what was really there. What was hidden within the details of the obvious nothing was a completely different picture than what appeared at first glance. So it is with jurors who seem to see the obvious guilt of the Defendant which is often set by the wording of the indictment and the opening statement of the prosecutor. What jurors need to see is the truth hidden within the obvious. They don’t see it unless you show it to them. And you do so only by the effective cross-examination of witnesses and the detailed dissection of the conclusions which they testify to. Earlier this year I tried a three-count indictment of Aggravated Assault on a Peace Officer, one count for each of three different police officers. It was alleged that the Defendant, who we will call Hondo, had pointed a loaded pistol at each of them, independently, as they stumbled upon him hidden in a field of tall weeds and brush in the darkness. The assault was alleged to have occurred behind a Wal-Mart, at night, in Wilson County. The State’s evidence would show the details broadcast to the officers over their radio scanner immediately before

the incident was that: 1) the Defendant was possibly “high”; 2) he had had an argument with his estranged wife and had been seen “beating his head” against the window of her car during their argument; 3) as she left the vehicle to go into Wal-Mart he had grabbed her 9mm Glock from the glove box of her vehicle; 4) and while stealing her pistol he had made statements which led her to believe that he was going to kill himself; 5) and, then he ran into the darkness behind Wal-Mart. What the officers already knew about this Defendant before the incident in question (remember, it’s a small town!) was that the Defendant 1) had been arrested for several felonies though he had been convicted of none; 2) that he was a reputed meth-head and drug dealer; and 3) that he carried a gun. So ask yourself this question---- What would a reasonable person expect to be the mindset of an armed police officer confronting the hollow end of a stolen 9mm Glock being held in the hand of a stoned, angry, brokenhearted, suicidal, armed meth-head at twenty-five feet in a dark, brushy field behind Wal-Mart? Well, if you guessed “shoot first, ask questions later!” then you’re the next contestant on “The Truth Shall Set You Free!” The plea-bargain was no bargain at all! Ten (10) years to do, affirmative finding of a deadly weapon and no application for deferred. Even then, my client would not have even taken probation for the proverbial “offense he didn’t commit.” My goal was to get him probation from the jury and if lucky, convince them that at best, this was a misdemeanor Deadly Conduct. What was obvious to me was that it was his word against the word of three police officers on a small town police force. The heart of my defense was that had the Defendant done what the three armed police officers said he did, we would have been at his funeral instead of at his trial. In proving that defense I had a little help from the details of the evidence which were not otherwise obvious at first glance in the State’s file. In reviewing the case I determined that the best evidence of the true state of mind of

the officers was the video and body-mic recording of the main officer involved, AO1. He arrived first, parked his car in the wrong place and then ran down the hill behind WalMart into the darkness with AO2 directly behind him and AO3 approximately 20 yards to his right. The distance the officers ran from the car made for very difficult listening due to audio transmission issues but I listened to that tape about 10 times to get as much out of it as I could. Much of the 35 minutes of tape was heavy breathing, the noise of the mic rubbing against clothing while the officer is trotting and the intermittent scheeeee indicating the total loss of signal. Each time I listened to it I picked up a word or two more and a detail or more here and there. I used Bose noise-cancelling headphones which made a huge difference in audio quality. As I pulled out titillating bits of juicy evidence, I was reminded that when the prosecutor delivered the tape to me she said that there was “not much useful information on it” but that she had a duty to give it to me anyway. That recording turned out to be the strength of my defense! To help clarify the audio, I subpoenaed all radio transmission recordings from the police dispatcher, the in-car audio recordings and all “key cards” related thereto. The additional audio timeline established the clear announcement over the car radio of the statement to dispatch “We got him on the ground” followed a few seconds later with “He’s got a gun” followed a few seconds later with the statement “Tazer deployed”. Later, and honestly most annoying, was the incessant crying and whining of the Defendant after having been tazed several times by two of the officers. Nowhere was there any screaming by the officers “Drop the gun!” or any indication that he had ever pointed it at them or that they indeed feared for their lives by his conduct. The audio and written reports revealed that due to the Defendant’s constant crying about being unable to breath after being tazed, the officers called for EMS. Prior to the extraction of the Defendant from the field by EMS, AO1 moved his car (and video

coverage) to the take-out location by the EMS vehicle. The audio and video at that moment was the key to the state of mind of the officers, and therein, the truth of what actually transpired in the darkness. The scene shows the EMT’s bringing the Defendant up the hill on a gurney with AO2 unloading and clearing his AR15. (I noted for later cross-examination that with two hands on his rifle, AO2 was unable to hold a flashlight. This turned out to be a critical point to his lack of credibility) As the Defendant continues to cry and complain to the EMT’s, AO2 and AO3 walk off to the side as if to confer and the following conversation is recorded between the two officers: (AO3) “What are we going to charge him with?” (AO2) “I don’t know? How about Felon in possession?”(Remember, my client was NOT a felon!) Then (AO3) says “What about Possession of stolen property?” At that point, the AO1 chimes in with the following--“Well, he’s pretty close to Aggravated Assault on a Peace Officer?” To which the Defendant immediately responded “I didn’t even have the gun!” At that point the officers either realize that they are being recorded or attempt to dump their adrenalin excitement and they all begin to relive the horrifying experience which they had just allegedly endured, including the classic line by AO1, “Dude, my whole life flashed before my eyes!” At that moment I was thinking, “Dude, you just screwed your case!” The other critical evidence was that all the officers noted in their respective reports and testified that the Defendant was “laying in the tall grass” with his “left arm pointed at them holding the gun”. I asked my client if he was left handed and he said no! (I had to figure out a way to get this information to the jury if he didn’t testify so I had him make it obvious that he was taking notes and doodling with his right hand during the trial. I would hand him a pen across the table to his outstretched right hand.) Additionally, all the photos of the location showed medium to tall dead grass and weeds as high as two feet. There were numerous pictures of the “holster” of the gun but not one single

picture of the gun to show its location in relation to anything! To make matters even better for me, the pictures of the holster showed it in two different locations. (A fact which no officer could even begin to explain). The evidence tech did not take a single daylight photo of the scene and all photos were taken with what looked like a small pop-up flash camera. This was also a critical credibility issue with AO2 as to the “lighting” of the scene at the time of the incident. I took numerous daylight photos and none of the officers could, or would, identify the photos as even being the same location except to say that the building was the same “Walmart”. The jury was clearly perturbed by all the witnesses’ refusal to acknowledge the obvious location of the event in the daylight photos. The ultimate incredible testimony was that all three officers testified that as the Defendant laid in the grass, he pointed the gun at AO1 and then at AO2 and then back at AO1. Then AO2 additionally testified that the Defendant pointed the gun at AO3 but AO3 never saw this occur. All the while, the three officers have their guns drawn (including AO2’s AR15!) and pointed at the Defendant but NONE of them shoot at him during the whole time he is allegedly pointing the gun at ALL THREE OF THEM, one at a time! Can you say “Hands up! Don’t shoot!” With all that factual background from the police reports, video and photographs, I focused my Voir Dire on issues of the credibility of the officers, or lack thereof, the legal definitions of “recklessness” and the misdemeanor offense of Deadly Conduct, as a lessor included offense. I read them the statute related to Deadly Conduct that states that you can point a loaded gun at someone, even if it is loaded, and it is only a Class A misdemeanor. I talked about “imminent danger” and what it meant to “engage in conduct”. Since I knew that the officers were going to testify that the gun was pointed at them, I wanted to distinguish the issue of “threatening” conduct with just plain old “reckless” conduct. Again, my only goal was to

try and show that he was reckless in creating the situation that someone, mainly him, could have been killed or seriously hurt but that he never intended to shoot or threaten anyone. I felt I had a reasonable chance at probation or a misdemeanor based upon the officers’ own statements about him being “pretty close to Aggravated Assault”. On the day of trial, the State waived the indictment count against AO3 who honestly never alleged that he was threatened or that he even saw a gun pointed in his direction. I was mad that they dismissed that count as part of my strategy was to show how easy it was for the State to indict someone when in fact, no evidence even supported the charge. The State opened argument with standard lines about guns, police risking their lives everyday, blah, blah, blah. I opened with my “closing” argument about the video statement which no one could deny existed. I emphasized with a little bit of dramatic overtone that even with all the alleged fear, anxiety, and the “flashing of their lives before their eyes”, not even one of the police officers was convinced that the offense of Aggravated Assault had even been committed! I repeated the quoted statement of the only officer in a position to even have a gun pointed at him at all, AO1-----“Well, he’s pretty close to Aggravated Assault on a Peace Officer?” I told the jury, “AO1’s not even convinced and he was there! How can you be more convinced, much less beyond a reasonable doubt, than the three witnesses who are all standing around (I wanted to say, “With their thumb up their ass!” but I didn’t!) wondering what to charge Hondo with? They have all almost been killed and the first thing that comes to their mind is Possession of Stolen Property? Really?” I did my best on opening to make it obvious to the jury that had the offense occurred as the prosecutor had just related, Hondo would be dead. I presented my defensive issues related to the “assault” that if Hondo had wanted to hurt them that he clearly could have shot all three before they even located him lying in the darkness. I pointed

out the evidentiary issues that they would see photos of tall dead grass so thick that it would be impossible to see someone laying in the grass with their arm “outstretched” and pointing a gun. The intent on Voir Dire was to get them to see what I “wanted” them to see. Not just a photo of tall grass—but a photo of tall grass totally obscuring Hondo laying there in the grass in the darkness. A photo proving that the officers could never have seen a man lying there pointing a gun at three officers. I wanted them to see the intangibles of death: Fear; Darkness; Anxiety; Adrenalin. Everything that would cause a police officer, and rightfully so, to shoot anyone under those circumstances who is pointing a gun at them. I wanted them to “see” before the first officer even took the stand that none of those conditions existed because Hondo, while having created the dangerous situation, never pointed a gun at the officers or he would have been shot and killed. As each officer was called, one by one, I took the same strategy to task by focusing my questions on the intangibles addressed above. There is a saying that “even a blind squirrel can find an acorn every once in a while”. The meaning of that is that if you look long enough and hard enough that eventually you can find what you are looking for. In this case, the “acorn” which shattered the credibility of AO2 as referenced above was the fact that he was not carrying a flashlight as he had a semi-automatic AR-15 rifle occupying both hands. As such, he was totally dependent upon the flashlight of AO1 to see in the tall grass and brush. He testified that he was about fifteen (15) feet directy behind AO1 and directly in line with AO1 and Hondo. The issue suddenly dawned upon me in a glaringly obvious (no pun intended) conclusion! I asked the officer, “Have you ever had a Mag-Light pointed right in your eyes in the middle of the night?” I didn’t care what his answer was as the next question and answer became obvious to the jury. “How can you see what is 15 feet behind the flashlight when you are blinded by the light?” I went on with “You told this jury that you were

directly behind AO1 didn’t you? How can you tell this jury that Hondo even knew you were there much less that he intentionally and knowingly committed aggravated assault by pointing a firearm at you?” After a pregnant pause and furtive looks at the prosecutor and then back at me, the AO2 said “Well, I think he saw me?” I felt like “My Cousin Vinney” and wanted to say “I have no more use for this witness”. But, alas, I didn’t! When the State rested, though confident we had a good chance, I still had lingering doubts as it was still Hondo’s word against the words of three local police officers who lived, ate, went to church and shopped in the same neighborhood as these jurors did. I decided to put Hondo on for three simple and quick questions. 1) Did you ever point the gun at them? 2) Are you left or right handed? 3) Have you ever been convicted of a felony? ( I still had to prove up his eligibility for probation if the jury convicted him.) Then I said, “Pass the witness”. I believe that the prosecutor was caught so off-guard by the short direct that she only asked about five questions and passed him back! My plan had succeeded without taking a direct hit on cross. We then closed the evidence. At the charge conference I asked for a lesser charge of Deadly Conduct and again concentrated on the language and facts that the Defendant had recklessly placed the officers in danger of imminent serious bodily injury even if he never even pointed a gun at them. The proof of this was that one officer fell down the hill and injured himself and the other got caught up in the fence. The third was Tazed by his own shot as it wrapped around the fence and when he grabbed it to cross the fence he got shocked. The judge granted it as to both counts. I closed my argument as I had closed my Voir Dire—“If they are not convinced beyond a reasonable doubt ladies and gentlemen, how could you ever be?” I asked them to look at the video over and over until they saw and heard what I had. I told them that I had listened to that tape “ten times” because I knew that buried in the audio and video

was the truth of what really happened out there. I didn’t want to call the officers “liars” so I addressed their “memory” issues gently as being clouded with the natural things that officers face every time they encounter someone like Hondo—Fear and Adrenalin. I said “What they testified to may be what they remember but that doesn’t mean that it is factually accurate. After several hours the jury returned a two NG on the felonies and one Guilty to Class A Deadly Conduct. As my client had been in custody more than a year, I considered that a “Walk”! The lesson here is that you should present your case to the jury in the manner of the proverbial “things aren’t always what they seem to be” scenario. Look beyond the obvious and rake the details of the evidence to death until you find the inconsistencies. My philosophy is that the more witnesses there are for the State as to an event, the better that it is for the defense. Inconsistencies affect credibility and credibility affects the outcome. In this case I used the State’s own evidence to prove the events did not happen as the officers said it did. Their conclusory allegations were easy to make but proved difficult to support in light of a detailed examination of the evidence. The greatest lawyer movie ever made is “My Cousin Vinney”. Excellent examples of crossexamination of multiple types of witnesses. There is a scene there where Vinney is staring at a picture of twin skid marks going across a curb and onto a street and he says something like, “The answer is right here staring at me. If I could just figure it out?” Well, the “detail” in what was otherwise just an obvious picture of the skid marks showing the getaway was what he needed to see. Turns out, the detail in the picture was his best defense! Watch the movie and find out if you haven’t seen it! Thanks for listening. P.S. Stephen Barrera helped me try this case.

FEDERAL Jorge G. Aristotelidis

My "unwinnable wins" were federal cases. Federal trials are rare, and have become even more so, for several reasons: First, the prevalent use of government informants, some of whom become experienced and effective professional witnesses; the ever-growing cooperation culture which promises reductions for co-defendants who turn and testify for the government; the more liberal introduction of 404(b), extraneous offense evidence at trial; the loss of “acceptance of responsibility” guideline reduction credit for proceeding to trial, and the upward “obstruction of justice” guideline adjustment for defendants who testify, and are convicted; and ﬁnally, the generally more sophisticated caliber of testimony from FBI and DEA agents, who, with or without the use of video and audio recordings, in undercover investigations that oftentimes last for years, can be particularly dangerous on cross-examination. The ﬁrst unwinnable win I’ll discuss was a case involving the illegal transportation of aliens, before the Hon. Keith P. Ellison, who at the time was sitting in Laredo, Texas. My client, a truck driver from Louisiana, was arrested after the trailer he was hauling was opened at the Laredo border

patrol checkpoint on IH-35, revealing a wide-eyed group of illegal aliens, inside an otherwise empty trailer. Two of the aliens were retained as material witnesses to testify against my client at trial. One of the witnesses had received a work permit, in lieu of detention, the other did not. I ﬁled a motion to release information about the bond and the permit, to attack his credibility in light of his obvious bias for receiving the very thing that he risked his life for by entering illegally, and the court granted the request. This prompted the prosecutor to call off the witness from testifying, leaving one for trial. In these cases, there generally is a material witness who will testify that money was paid to the driver, or that the driver was present when the aliens boarded the trailer. The remaining witness did not recall seeing my client at all when they were loaded into the trailer. That was good, but we still had to explain why the aliens were found there. We submitted video-taped evidence of the deafening sound of diesel engines, at the truck stop where my client had been resting in the sleeper compartment of the tractor, the night that the aliens were loaded in the trailer that he was hauling, which was unlocked. The video showed that behind the trailer doors was a dark, and open ﬁeld. The defense theory was that alien smugglers,

or “coyotes,” who have a well-earned reputation as being unconcerned and even cruel about the welfare of the aliens they traffic, looked around for an empty trailer at the truck stop, and loaded the aliens inside the first one they could open. The idea, we argued, was that all they needed was for the aliens to make it past the checkpoint, where inspections are random, and that someone else would be tailing the trailer until it made a stop, at which time, and unbeknownst to the driver, they would sneak up and release the aliens. In support of our theory, I was able to cross-examine an experienced border patrol agent to speak about many instances in which coyotes were known to dump aliens in even worse situations - a nice way of using a government witness to the benefit of the defense. We also retained a truck driver as an expert, to testify that when inside the sleeper compartment of a tractor, while its engine, and that of the surrounding tractors, is on, it is impossible to hear someone opening the trailer doors to sneak aliens, as we argued occurred in our case. The jury came back with a not guilty verdict shortly after deliberations. The second case was a Federal jury trial before the late Hon. Hipolito “Hippo” Garcia, in San Antonio. It was a 5-defendant, cocaine conspiracy trial, with all lawyers, including

CASES myself, court-appointed Jesse Rivera, Oscar Cantu, and Eduardo Saenz (rest in peace). The trial lasted just over a week. I had subpoenaed an out of county witness whom I was convinced could help absolve my client. When he arrived, the government paid him a visit, and he reportedly changed his mind, ready to testify for the prosecution. We approached the bench, and after the prosecutor announced her desire to call that witness to testify, Judge Garcia asked the prosecutor whether it really was necessary, thinking, as we did, that the case was already a slamdunk for the government. To my relief, the prosecutor decided against it, and we proceeded to closing arguments. The jury came back with a not guilty verdict, on all counts, on all defendants. The resulting silence was deafening. Judge Garcia quietly shufﬂed the verdict forms for about a minute, with his mouth slightly agape. I remember the defense lawyers all gathered our things, hugged our clients, and made it out of there as fast as possible, sort of like Joe Pesci in “My Cousin Vinny,” after the verdicts were read. Finally, and true to the concept that anything, even winning, is possible when you try a federal case, was another one before Judge Hippo Garcia.

I was co-counsel with Tony Jimenez, representing one of three defendants, with another represented by Alan Brown and Jay Norton, and the third by Mark Stevens. Our clients were undercover state narcotics police ofﬁcers, the subject of a reverse sting operation by FBI agents, one of whom—the case agent—had a real problem with my client killing his federal informant, in a separate undercover operation turned deadly. Not surprisingly, our client was the only one denied bond, and remained in custody for the life of the prosecution. After a week of trial, and a passing comment by Judge Garcia during a break, that all he could really understand from the government's recordings was a bunch of Mexicans who "loved Tequila,” an offer was made by the prosecutor to have our clients plead to lesser charges. There was particular pressure on my client to take anything thrown his way, given that he’d been in custody for just days short of a year. After some understandably tense discussions between all of the attorneys, we declined the plea offers. Moments later, the prosecutor summoned all parties into Judge Garcia’s chambers, where he honorably announced that he’d lost conﬁdence in their informant, and would be dismissing all charges. It was not an acquittal, but the

clients were not complaining. We walked out of chambers and announced the result to our clients which drew cries and cheers from their families in the audience. We arrived at Mi Tierra’s to celebrate, and greeted our client, who’d been released just a few minutes after that from the GEO (formerly “Wackenhut") detention facility, down the street from the restaurant. I offered him “anything you want to drink, ANYTHING.” He looked at us, then up at the ceiling, then closed his eyes, pondering, and after some minute-long seconds, he asked the waiter, “You all have any Pearl Light?” Yes, anything is possible when you try a case.

A MAN WALKS INTO A

BAR IN WEST Mario Del Prado

One day, a man walks into a bar out in West Texas. He meets a woman, has drinks with her and then, later that night, they have sex. Afterwards, they pleasantly part and go their separate ways, to their separate lives, in their separate towns. Some time later, the man receives a phone call from the woman. “I’M PREGNANT” After the shock of the news sinks in, the man, being a man of integrity, promises the woman that if she decides that she wants to have the child, he’s in it for the long haul. He also promises to support her both emotionally and financially. And, the man follows through on his promises. Throughout the pregnancy, the man accompanies the woman to all of her doctor appointments. He supports the woman both financially and emotionally and, when his son is born, he is given the man’s name. The man is middle-aged and has no other children. He is a man of means who owns his own company and employs many people. His primary residence is in West Texas, but he has a lake home in another county. He flies there, on the weekends, piloting his own plane. The man throws himself into fatherhood. He provides everything his son requires, from private schools to monetary support to martial arts lessons. He makes every effort to see his son as often as possible.

He volunteers to coach his son’s sports teams.

THE BULLYING GETS WORSE.

The man marries another woman and she proves to be a good stepmother to her husband’s son.

The son earns his black belt in the martial arts when he is 12 years old. The father pleads with him and urges him to defend himself at school.

As his son ages, the man and his wife notice that his son’s mannerisms are effeminate. The man observes that his son is interested in things that he would normally associate with being a girl.

One night, after dinner guests have left, the man and his son are alone and begin to argue about the bullying problem that the son is enduring, and how the father wants him to defend himself.

The son begins middle school, and the man is alarmed to hear that his son is being tormented, beaten and bullied at school, by the other boys, for being effeminate. The bullying is very bad. So bad, that in one incident the son’s head is shoved down a toilet and in another incident he is restrained by classmates while other classmates try and shove a pencil up his rectum.

The man has had a few glasses of wine. He is beyond frustrated. He wants to teach his son a lesson. He tells his son that if someone shoves him, he should shove them back.

The man calls school administrators. Teachers are told about the problem. Assurances are made that the offending students will be disciplined. But, nothing really changes. The man moves his son to a private, religious school, hoping that his son would ﬁnd more safety there. And, he makes sure that his son continues to take martial arts classes. He worries, daily, about his son’s safety at school because his son is now openly wearing makeup and has told his mother that he believes that he is a female, trapped in a male’s body.

And, then the man shoves the son. To show him what he means. The son doesn’t take the bait. He doesn’t shove the man back. So, the man jabs at his son to make him angry. Finally, the son lunges at his father and kicks him and they topple over and end up in a scuffle, on the floor. The man says to his son, “See? That’s what you do! Defend yourself!” The son gets up from the floor and angrily stomps off to his room. When the son gets back home to his mother’s house, she sees bruises. She asks the son where they came from and he tells her that his father beat him up in a drunken rage.

TEXAS The man is accused of Injury to a Child in a county notorious for its draconian treatment of citizens accused. He hires an attorney who the man thinks has everything under control. One day, the man flies into town and his attorney informs him that he is “next up” on the trial docket and that the jury waiting out in the hallway is the jury that has been summoned for his case. The man feels very pressured. He does not want to go to trial. He does not want to go to prison. He would “take” probation, to avoid that. The man enters a plea of “no contest” and the judge orders a Pre-Sentence Investigation. When the man goes to his interview with the probation officer and he tells “his side of the story”, wherein he does not feel like he’s a felon but rather that he acted as a concerned parent, he begins to question having plead to the charges. So, the man calls me, wondering if he has made a mistake. Is there some way to undo it? As we talk, I learn that the man is a Canadian citizen, here for many years on a work permit. The man tells me that he and his previous attorney have never discussed anything about any immigration consequences of his plea. I’M WORRIED FOR THE MAN My first thought is that very few judges, if any, will allow the withdrawal of a guilty

plea, a felony plea at that – especially if they had a Board Certiﬁed Criminal Specialist as their previous attorney. I explain that its an uphill battle and that if we get what we ask for, we’re going to trial—fast.

Based upon the evidence that the man felt pressured into making his plea and that he did so without any advice regarding immigration consequences, the Court allowed him to withdraw it.

I SPEAK WITH THE FIRST ATTORNEY.

The Court then generously expedites our trial setting. The man takes the stand, in his own defense. He admits to drinking, but not to being drunk, and to having struck his son, several times, at the end of a night of socializing with friends.

The first attorney says that he had not considered the potential immigration consequences since the man has been here for years, on a work permit. The first attorney says that the man has admitted to the conduct and simply hopes to avoid prison and wants probation and the state is remaining “silent” on his application for community supervision. I determine that the first attorney is not aware of Tex. Penal Code § 9.61 PARENTCHILD, which provides for the use of force, against a child under 18 years, by a parent. I discuss with the man that if he is allowed to withdraw his plea (a long shot!), our trial strategy will revolve around Section 9.61 and how his use of force against his son was necessary and justified to safeguard or promote the welfare of his son. Armed with an affidavit from the prior lawyer, the record from the plea hearing and the testimony of the probation officer, we argue that the man’s plea was not knowingly and voluntarily entered into – despite the warnings and stipulations in the record.

The man breaks down and cries at his frustration that his son, a black belt in the martial arts, has allowed himself to be tortured on a daily basis by his classmates. He testifies that he loves his son, unconditionally, but that he is fearful for his safety, daily. We call a defense expert who is an ER physician and professor at the medical school, who also happens to be a black belt in the martial arts and a boxing ringside physician. He testifies that many of the son’s bruises appeared to be “older” and most likely the result of the son having “sparred” in his martial arts class. The State asks for the lessor included State Jail offense of reckless conduct, but the court denies this as the man clearly testified that he intended to strike his son, just not as often or as severely as the boy claimed. The jury says, “Not Guilty.”

METH AND

THE MASTER SERGEANT Julie K. Hasdorff and John A. Convery

The Air Force Master Sergeant, a tall Hill Country German walked in to the attorney visitation room at Fort Sill in belly, hand and leg chains, with two Army Private escorts telling him when and how to walk and when to face the wall. All Master Sergeant wanted to do was kill himself after three positive urine tests for methamphetamine. It was a Thursday. Trial by General CourtMartial, his trial defense counsel’s ﬁrst trial was scheduled for Monday at the Air Force base in Wichita Falls. Family members hired Hasdorff & Convery as civilian counsel. Master Sergeant agreed to the representation, and agreed to postpone his decision to die until after the trial. Military Judge gave us a short continuance. Dr. John Vasilliades, PhD., our forensic toxicologist reviewed the discovery and tests. Dr. V provided detailed information about the problems and issues with each test and the lab procedures—he was at one time Director of the Air Force’s Brooks Lab. Of particular interest, a large bottle of mail order ephedrine found by Military Police during a consent search in Master Sergeant’s bathroom cabinet. Ephedrine was not yet on the controlled substance list, no other contraband was found, and Master Sergeant was what the military calls a “water walker” with an exceptionally good service record. But it’s three (3) GC/MS tests protested the military defense lawyer. You guys are as crazy as the defendant to go to trial. Still, we let him stay on the team as our local eyes and ears - just young, not a spy. Jury or Panel as it is called in military courts, at our request one third enlisted members. This means the jury had not only Colonels, but a few Senior Master Sergeants, who usually ofﬁce next to a Colonel on base. Military Judge Kinsella, agreed with us pretrial that the good character defense was a critical part of this case, and gave the jury an opening instruction that good character alone may be the basis for reasonable doubt. The Panel, all experienced Air Force-prone with advanced degrees, were told in opening

statement that Master Sergeant was not using or positive for methamphetamine in any test and like them generally supported the Air Force drug testing program. The program just made a mistake in this case. The defense put in the Ephedrine through the MP called by the Government. The defense attacked the Government’s expert as the defense case. The expert was questioned about aspects of his CV when offered as an expert—he was dismissive and a bit rude to counsel that his bona fides were even being questioned, and scoffed at the notion that it was important that he did not personally do or know all the procedures for a GC/MS test—technicians do that. Dr. V sat in the first row and provided us with lots of notes of issues to use with the Government expert. Most significantly, the Government expert testified the GC/MS is flawless and does not have false positives for methamphetamine ever. He was adamant. When shown toxicology journals with names that he recognized, he had never seen or reviewed the few articles about false positive methamphetamine GC/MS test results for Ephedrine. He finished by pointing out he was never informed ephedrine was an issue in this case—but that would not change his opinion. I think the jury particularly liked the display with a wooden model put together with the Government expert showing the molecular structure of methamphetamine. Removing one (1) wooden rod with a colored ball at the end the Government’s expert agreed to be the difference between methamphetamine and ephedrine. Master Sergeant testified that he is a big ole Hill Country German guy with a big nose who suffers from sinus issues and does not like doctors. He purchased ephedrine thru the mail from Mexico (show Gov’t Exhibit), and used it regularly for sinus relief. Loved it. Master Sergeant suggested sinus medication as a possible source for his positive urine tests, but was ignored or scoffed at by the military police.

On cross the experienced AF Regional Trial Counsel (read ringer) let the young inexperienced base prosecutor cross examine the defendant. The young prosecutor brow beat the Master Sergeant about all the reasons he could think of for him to lie in this case; his career, rank, retirement. Then he suggested to Master Sergeant this was worth lying about because it was the worst event of his life. No Sir, said Master Sergeant, this was not the worst event of my life. What could be worse than this court-martial where you could lose your career and hard earned retirement? I was at the Ramstein Air Show when I was helping with security (prosecutor tries to cut him off—military judge says let’s let him ﬁnish his answer) and an Italian ﬁghter jet crashed out of control. With burning pieces headed for the stands I grabbed a couple of children and ran. Some shrapnel caught up with me. I lost part of my ear, had some burns, and some pieces of shrapnel removed from my back. That was the most important traumatic event of my life Sir, not this court.” Yes, thank you, replied the prosecutor. There was not a dry eye in the house including the jury. A small parade of character witnesses followed, explaining to the jury their own stellar backgrounds and giving their opinions that Master Sergeant is trustworthy, loyal, helpful, friendly, courteous, kind, obedient, cheerful, thrifty, brave, clean and reverent. In a very short closing the jury was asked to consider the evidence that the substance in these tests is ephedrine— not methamphetamine - and will have no adverse affect on the drug testing program, but may make it a bit more sensitive and accountable. This is the reliable conclusion based on the facts as well as the outstanding character of Master Sergeant. Not guilty— the young military defense lawyer got on his knees, held his head in his hands, and said no one would believe this result. Two years later we were asked to attend Master Sergeant’s retirement ceremony.

IT WAS SO UGLY James Reeves

Having tried many cases with Robert Valdez, I have seen my share of “unwinnable” cases, but one stands above the others. It was a DWI trial with a horrible video which consisted of the client staggering around like a “drunk” guy. No SFST's necessary because the client was obviously “drunk,” but the client did the SFST's anyway. Client's speech was so slurred that it was unintelligible. To challenge Robert a little, the client provided a breath test in the twenties. I will never forget asking Robert if he was serious about trying this case because it was so ugly. He quietly said, “I've won worse.” So the trial begins with one officer and one technical supervisor testifying. During cross examination, the officer (breath test operator) admitted that he didn't do the 15 minute observation period prior to administering the breath test. The officer also admitted that he couldn't say whether or not the intoxication was due to drugs or alcohol because drug intoxication can mimic alcohol intoxication. We asked the judge to exclude the breath test because the officer did not properly administer the breath test. The judge refused to exclude the breath test stating “it goes to weight and not admissibility,” but the judge did allow a CCP 38.23 instruction for the jury on the

factual issue of whether or not the 15 minute observation period was conducted in accordance with the law. In the charge conference, the State insisted upon saying intoxication was due to the introduction of alcohol. So, the stage was set for closing. In closing, we went over CCP 38.23 with a Powerpoint presentation and how the jury “shall” disregard evidence. Then we explained why the test “shall” be disregarded and why the jury cannot consider it for any reason. We explained the jury's duty and how the state limited themselves to alcohol and if the breath test is disregarded, then the State cannot prove alcohol caused the intoxication instead of drugs. About an hour later, the jury agreed and found our client Not Guilty. I will never forget the shell shocked look on the prosecutors' faces. In talking to the jury afterwards, they said they did not think the ofﬁcer did the 15 minute observation and did not consider the breath test at all. Then they said the State did not prove that drugs were not the source of intoxication. Their parting comment was “we all agreed your client was obviously intoxicated, but the State didn't prove it was because of alcohol.”

ONLY IN TEXAS Gerry Goldstein

Late one Spring evening in 1986, Dr. Elvoid Walker, a retired Army major, was having a drink by himself at Tucker's Kozy Korner on San Antonio's near East side, when the good doctor got into it with another customer. Promptly after the altercation was broken up, Dr. Walker departed, drove home, picked up a pistol and had his wife bring him back to the bar. The crowd parted as Elvoid walked in brandishing his weapon, leaving the two combatants facing one another. Dr. Walker fired one warning shot and then proceeded to empty his revolver into Carlos Clark, killing him on the spot, in front of some 20 or 30 witnesses. Five of those eye-witnesses testified, including one who was wounded by Dr. Walker in the process. The jury took less than an hour to return a verdict of “Not Guilty.” In retrospect, I can honestly say that two-word verdict was not the result of legal talent or oratory skill, but was rather due to counsel's knowledge of the law, not any scholarly knowledge, but a quirk of Texas jurisprudence, well-known to almost every criminal practitioner of that day. At the time it was well-settled Texas law that an accused was entitled to a jury instruction that “one has the right to arm oneself and return to the scene of a difficulty to seek an amicable explanation.”1

More importantly, and more to the point, I do not believe it was the judge's jury charge2 that won the day. Rather, it was qualifying each juror on whether they had any “bias or prejudice against any law applicable to the case upon which the defense was entitled to rely.”3 By the time we successfully challenged any prospective juror who had difficulty with the law permitting “one to arm oneself to return to the scene of a difficulty in order to seek an amicable explanation,” the only jurors left were gun-toting, 2nd Amendment “muzzle sniffers.” As a consequence, the only question left for the jury to deliberate at the end of the trial, was whether the victim, Carlos Clark, deserved killing. The lesson learned: we often win our cases at jury selection. The real skill comes in trying not to screw it up. 1 See Gassett vs. State, 587 S.W.2d 695 (Tex.Crim.App 1975); Banks 656 S.W.2d 446 (Tex.Crim.App. 1983), effectively overruled by the Texas legislature in a 1993 amendment to § 46.02 of the Texas Penal Code. 2 Interestingly, Judge Peter Michael Curry ruled that one’s right to arm himself to return to the scene of a difficulty, trumped the prohibition against carrying a weapon onto a licensed premises. 3 See Art. 35.16 (c)(2), Tex.C.Cr.P.

TURNING Matthew Allen

THE TABLES An accusation of assault from an ex-girlfriend, an off-duty deputy who witnessed the assault, and a client who denies everything. The complainant (call her Jane) originally said my client (call him John): stopped the car; hit her; got out and pulled her out of the car; and threw her on the ground. The off-duty deputy originally said: he saw a scufﬂe; the car stopped; she got out and tried to run; Joe caught her and threw her on the ground; and then hit her again. Joe called me a night before he was supposed to take a plea telling me he was innocent and didn’t want to accept anything. I took the case and we started preparing for the trial from that moment forward. Joe and I met several times and visited the scene together. I went during the day and at night so I could see what the deputy could see. We replayed the incident and I grilled him on details. I put him through the worst cross-examination I could think even to the point where he thought I didn’t believe him anymore. I contacted Jane and talked to her for a few brief minutes but that conversation proved vital. She told me that in addition to what was in the report, John actually put his hands around her neck and squeezed. Jane also conﬁrmed what John had been saying, that pictures were taken. I had contacted the district attorney multiple times and was repeatedly told there were no pictures.

Trial day! I had my Powerpoint for voir dire and made sure the room would be equipped properly. I had a plan for my case and tailored my questions accordingly. Details were going to be important and the jury had to think so as well. The keys were a great trial partner and educating the jury about how we were going to win this case. We arrive right before Jane is called to the stand and find out that the pictures have surfaced. We object and the pictures are kept out…for now. Jane testifies and now adds that she was choked. She adds that was bruised and had red marks. None of this was shown in the pictures. We played the case up to the point where we wanted the jury to believe this was attempted murder then withdrew our objection and showed the pictures proving this was absolutely nothing. Deputy shows up and after direct, he knows he saw everything and is certain of it. Luckily we visited the scene and were able to take him step-by-step of what he thought he saw and what he could definitely not have seen. His frustration grew as we pitted him against Jane for every minute detail down to whether there was a sidewalk or only grass. He began getting defensive explaining why he may not have seen everything. Reporting officer takes the stand and goes through everything that was told to her. We then pit her against Jane and the deputy.

She admits that if she had been told certain things then she would have written it down. She also concedes that she never asked John what happened even when he was pleading to tell his story. John took the stand and the preparation paid off. He was calm and precise with his answers. He didn’t pretend to know everything and responded accordingly. After direct, the prosecutor asked him one question. I had my Powerpoint ready for closing and it became a battle of the deputy vs. the reporting ofﬁcer vs. Jane vs. John. We threw everything we had at them. The fact that choking wasn’t alleged because they didn’t believe their own witness; that “I don’t know” means “not guilty”; and that John had waited over a year to tell his side of the story because no one wanted to listen to him. The verdict: Not guilty! The numerous hours of preparation and investigation paid off. The jury stated they simply didn’t ﬁnd Jane credible and felt bad that John was never given a chance. We gained sympathy for a young client with no criminal history. We had a jury say they didn’t believe Jane or an off-duty deputy. I started with an unwinnable case but more importantly, the DA ended up with it.

THE CASE THAT COULD NOT BE LOST, BUT WAS— Any discussion of “unwinnable” cases should define what it means to win. Clearly, the best type of win for the criminal defense lawyer is to hear a jury say “not guilty.” As satisfying as these acquittals are to the lawyer, our clients – the sane ones, anyway – will always prefer a dismissal, and the sooner that is accomplished, the better. Many of our clients can also live, sometimes literally, with a guilty verdict on a lesser offense, or one that results in a probated sentence. Occasionally you win just by beating the state’s offer at trial. And, as my case shows, sometimes you win even when you lose. "Pete" hired me just weeks after I was licensed, and a couple of months later his case turned into my first jury trial. Pete's problems began when two police officers were dispatched to his west side home on July 22, 1979 to investigate a family disturbance. Nowadays, a spouse accused of family violence is just about certain to be arrested, no matter how weak the accusation, or how much the complaining spouse regrets having called the police and begs them not to arrest their partner. In those days, officers had more discretion than today and, for whatever reason, they initially chose not to arrest Pete.

Before they left, though, one officer decided he needed to use Pete's bathroom, and he did so without permission. Pete found this disrespectful, and when he complained, the officer hit him on the head with his nightstick. Then, to cover his own misconduct, he arrested Pete for aggravated assault. Pete's head was a bloody mess, and the jail refused to book him because of his injuries, so he was taken to the Brady-Green Hospital for treatment. Pete was released from jail on bond and someone in intake decided the felony should be reduced to misdemeanor assault, bodily injury. When his first lawyer could not get a dismissal, Pete hired me, and I went to work. Although the information alleged that Pete had choked and struck the officer, I soon became convinced that Pete was innocent. I first filed a number of what I believed to be fairly standard pretrial motions. This made the prosecutor mad. What kind of "jerk," she asked, filed pretrial motions in a misdemeanor assault case? I tried to convince the prosecutor of Pete’s innocence, but she was unmoved, and she got indignant when Pete and I dared to turn down her offer of probation. It was a gift, she said, since Pete had actually committed a felony, and, but for the generosity of the

intake attorney, we would be in District Court looking at prison time. Pete did not see it that way, knowing that he had not assaulted the officer, and still smarting from both his recent head wound, and the officer's trespass within his home. So I set the case for trial, and issued subpoenas for both officers’s personnel records. The prosecutor was enraged, incredulous. She offered her considered legal opinion that no court in Bexar County would admit such records as evidence. It turned out she was right, although the judge did order a hearing, and made the police department produce the records in court, and allowed me to argue, unsuccessfully, for their admission. Trial proceeded and I cross-examined the two officers, without doing much damage to them. Pete testified, pretty well, I thought, and I called the Brady-Green's custodian to admit Pete's medical records. My final witness was defense attorney Nick Rothe. Nick had left the DA's office a few years earlier and testified that while there he had seen a number of what were sometimes called "turban" cases. These were cases that were initially filed as aggravated assault on police officers, and which contained mug shots of the defendants with heavily

BUT NOT REALLY Mark Stevens

bandaged heads, just as Pete had appeared in his case. I fought hard and at one time or other during the three-day trial I managed to make the judge, the prosecutors, and most of the court's staff, mad at me. It took the jury less than an hour to return the one-word verdict we all hate to get. The judge promptly sentenced Pete to a year's probation, which was about what the prosecutor had offered in her plea bargain before trial. It was my very ﬁrst jury trial, and I was ﬂooded with a variety of emotions during the ordeal: fear that I would look like a fool; fear that my client might go to jail; hostility toward the prosecutor, the judge, and the staff generated by their hostility to me; disappointment with myself; anger at the jury. I was also very worried about my future clients. The two prosecutors had drubbed me, and I was sure they would never again take me seriously, but would see me as easy pickings and would insist on trying every one of my cases from then on. But I was wrong. The very next week I went back to the same court with a different defendant and another case, and the prosecutor who had beaten me so badly, and who could barely contain her contempt

for me, was now polite, even friendly. Much to my surprise, she dismissed the case I brought her that day, with very little haggling, and she and I continued to get along passably well for the rest of the time she was at the DA's ofﬁce. Interestingly, her daughter now works there. I learned a valuable lesson. We earn the respect of our adversaries, not by docilely serving up all our clients for guilty pleas, or by bringing donuts to the courtroom, but by a willingness to try cases that need to be tried. You may well irritate the other side when you reject their plea bargains, and they may resent you for making them work, but in the long run, these same prosecutors will come to know you as someone who ﬁghts for their clients and who will not be pushed around. And even if you don’t win that trial, the next time that prosecutor deals with you, she will treat you better, she will look at your case more carefully, and your chances of a dismissal, or at least, a more reasonable plea offer, will improve. I guarantee it.

THE STATE v. JOSEPH T. ESTRADA, JR. Therese Huntzinger

Charge: Capital Death Penalty

Murder—State

seeking

Approaching any CM case we are taught to work it hard up front, mitigation and more mitigation. LWOP is the win. Prepare your punishment case first and persuade the State to make the offer. If they don’t make the offer or your client refuses, we have no choice but to get it the hard way.. Pat Hancock and I were appointed to represent Joseph Estrada. (Joey) I’ll share some highlights. Though, there is so much more then this article can cover. Even if you believe deeply that a case is winnable or unwinnable, it doesn’t matter till 12 others believe as you do. As with every trial there are always surprises along the way. And hurdles. One hurdle we never mastered was Joey’s family. We knew his mother was working against us regarding Joey and filling his head with sugarplums and fairy tales. She believed that God his Savior was going to sweep in and bring him home to her. The first caveat we gave Joey about jailhouse conversations was ignored. Imagine listening to over 60 hours or more of recorded jail cell visits and phone calls. Listen early, they tell much. We got ours during jury selection. Sometimes what you consider to be a difficult moment in a case could turn out to be a gift. So when DA Reed made a public statement on the day of Joey’s arrest “I'd like to go string this guy up myself", getting a LWOP offer up front sounded unlikely. But my first thought was to thank our DA. Her words were the gift that kept giving.

It prompted the family of Mrs. Viola Barrios (a “saint” in our community) to hold a press conference and call upon the State to waive the death penalty, that their Viola Barrios would be opposed to the decision for death. How could we use this at our punishment phase? Certainly a victim’s wishes would have some relevance especially in negotiating an offer. We would repeat those very words of our DA to persuade the Judge in our motion to transfer venue. We used them as often as we could, during bond reduction, jury selection and during the course of other trial matters. BOND REDUCTION “WIN”/”LOSS”? Joey’s bond was set at $1,000,000.00. While we didn’t prevail at the hearing, the 4th court of appeals granted a reduction to $600,000.00. Though it set a precedent for bond reductions it still seemed unreasonably high. There are always difficult discussions to be had with family of your client. The one you must have on a high profile case such as CM, goes like this… “we understand how you want your son home but please know that any money you spend to get him out will be potentially lost", if the State wants him in custody they will find a way. Well after the family posted 60K + in bond money and after a short 2 days of freedom on a monitor several new warrants were issued and he was back in custody. CHANGE OF VENUE “WIN”/ “LOSS”? Our motion for change of venue was one of our surprise results. We had the “be careful what you ask for” dilemma. We knew we had no choice in this case because of the be-

loved status of Ms. Barrios in San Antonio. Bexar County was polled on the question of life or death for Joey. Death outnumbered Life. The change of venue was strongly contested. I found a media research expert to testify to the pretrial publicity, research how public opinion was influenced by media exposure and measure the saturation of exposure this case had sustained. Laredo or Victoria was the Court’s options for our new venue. We knew the only choice for Joey was Laredo. We were sent to Victoria. I still don’t know if the Judge tossed a coin or just threw one to the State. Victoria is a popular choice for venue transfers from Harris County as well as least two other death cases from Bexar County. Victoria jurors have never spared an accused the death penalty. The small towns of the coastal plains of Texas have a rich history of hanging trees and hang ‘em high lore. We were on our way. GUILT-INNOCENCE “LOSS” Guilt innocence strategy was: Use the GI facts to our benefit: to support our punishment/mitigation evidence and theories and then try to limit the impact and damage of the overwhelming evidence. Joey, was the 18-year-old neighbor of Ms. Barrios, accused of having burglarized her home in the early morning hours, taken his compound bow and arrow along and while she was sleeping shoot an arrow into her head. He left in her Mercedes and went to the nearest Valero, filled a gas can with gas and returned to set her on fire and then attempt to set the house on fire. He was

observed watching from his rooftop when the first responders arrived. The next day he managed to hit most every store where he could buy electronics, games, music etc with her credit cards. The only place there wasn’t a video recording him was at the crime scene. There were few ways to limit the excruciating pain of the evidence in this trial. We limited repetitive testimony. We limited the gore and gruesome photos and videos. The jurors don’t need more then one x-ray image of the arrowhead in her skull. We limited unnecessary cross-examination. The state has the tedious task of laying the predicate and offering up hundreds of exhibits. If they did their job, don’t make the jurors suffer through it more then they already have. And with sensitivity we limited the testimony of the victim’s family at G-I. Object softly, but object. None of it would matter to Joey’s mother. God didn’t show up for her Joey and she threw a fit and locked herself in a stall in the women’s room. Next, I ‘m crawling on the floor under the door to get her out. Lesson: always request a female bailiff to be available. PUNISHMENT PHASE “WIN” The first very simple strategy: make Joey appear as the young boy he was. Find our niche phrases and use them over and over. We would always and only refer to our client as ‘Joey” and a boy or child, and at every opportunity remind the judge and jury that he was a mere 3 months into his 18th year of life. SCOTUS had just issued the Roper

opinion making it unconstitutional to impose death for crimes committed under the age of 18. Finding your investigator and mitigation specialist are critical decisions. Linda Mockeridge is the best mitigation specialist. Without her help, we would not have known to look for and consider FAS (fetal alcohol spectrum) as mitigation evidence. It is S.O.P now. But your specialist ﬁnds “it” for you. It is in your client’s background, history and lifeline. You have to investigate it, research it, develop it, present it and prove it. You must understand everything about the mental illness and diseases you are preparing to convince your jury to believe in. You have to know it better then anyone. You cannot wing it or expect your expert to carry the heavy load. Ask the Court for everything. We had daily ex-parte hearings with the Court, requesting funds and time and instructions, etc. Midtrial I asked for and got an MRI examination of Joey’s brain. Judge Alcala was one of the fairest and ﬁnest Judges. (I know, sounds like Snow White). The State was in overdrive and overkill with every little blemish on little Joey’s school record or in his life. The typical silly stuff when you don’t really have any real punishment evidence. They used behaviors and conduct that ultimately would help our case and play into our expert’s hands on the FAS evidence. We beat them at their attempt at proving future dangerousness, crossing their experts’s testimony who followed the usual classic antisocial diagnosis. Our experts were better prepared and had records that

the state didn’t. We limited the testimony of their experts that wasn’t direct rebuttal to our raised issues. The Lagrone /Soria issues were fought hard, and though they got to evaluate and interview Joey, it was with limited use. We liked our punishment case. At summation, Pat yelled, very effectively. I subtly referenced Jesus Christ, Sister Helen Prejean (Dead Man Walking) and shared a few real tears. I used a power point for the first time (thanks, Jim Wheat, our third chair). It included photos of Joey’s mother’s mugs of beer she consumed while pregnant, Joey’s brain, and much more scientific evidence. The State through Tamera Strauch and Jim Kopp argued very well this horrific case and its facts. The DA sat at counsel table without her cell phone and Coke (one of our better motions to the Court). The jury took 5 plus hours to deliberate. They didn’t even get to the mitigation question because they answered NO to future dangerousness. It all came together. It worked. It could have been because he was just little boy Joey barely 3 months into his 18th year. Or it could have been an impressive mitigation case and use of expert testimony on FAS. It doesn’t matter; Victoria County gave LIFE, once. The irony of Life: Joey’s mother never spoke to or thanked us, but we received hugs and appreciation from the lovely and respected family of Viola Barrios.

SPRING BUTT John Pinckney

My former partner, Charles J. "Chad" Muller, III and I represented a gentleman, who was a WWII veteran and Texas Aggie. He was charged in three counts in Federal Court with conspiring to submit complementary bids for highway asphalt contracts in violation of criminal antitrust statutes. I believe it was the first, if not one of the very first jury cases, presided over by U.S. District Judge Hipolito Frank Garcia. The government was represented by a Department of Justice lawyer from its Dallas antitrust office. During voir dire, it became quite clear that a young man on the panel—we would have called him a "spring butt" in the Marine Corps—wanted to answer every question and apparently wished to serve on the petit jury. In addition, he was employed in the highway construction industry, working for an industry periodical. The government sought to disqualify him for cause by questioning him at the bench outside the hearing of the remaining members of the panel. He was able to respond in a fashion that did not disqualify him and the Court denied the government's request to strike him from the panel. I had decided that I had sufficient concerns about him to such an extent that I did not want him on the petit jury either. However, I chose not to "waste" one of my client's 10 preemptory challenges because I was convinced the government's counsel would exercise a strike against him.

After the strike lists were filed with the clerk, the jury was seated and the young man about whom counsel had concern was included as a member. It has and still remains a principal that I never ask opposing counsel why he or she did something, but could not resist. The response was "I decided I sort of like him." I was grieved and convinced that I had made a material error. We had some success on evidentiary issues—particularly the admission of good character evidence even though our client did not testify. The evidence against him was compelling and substantial. The parties rested, closed and presented closing argument after the Court's charge. After several hours of deliberation, the jury returned with the young man in question holding the verdict form. I leaned over to our client and again expressed disappointment in my decision to not strike him. The Court inquired as to whether the jury had reached a verdict. The young man smartly stood and responded strongly in the affirmative. The verdict form was handed to the bailiff and then the Court who read the verdict. Not guilty, not guilty, not guilty! At that time the young man looked me straight in the eye and I swear he winked with a smile. Striking a jury—I have never figured it out.

FIRST NATIONAL BANK OF BEEVILLE v. BATCHELOR Robin Teague I have won only one unwinnable case. It was a “civil” case. One of our colleagues referred a local car dealer to me, who had been sued in Beeville, by a bank in Beeville, on a guaranty agreement, which he made for his brother, whose car dealership there went kaput. The case was a lead pipe cinch for the bank. Offer the note, the guaranty agreement, records of payment and non-payment. Rest. Verdict for the bank. Normally, the plaintiff has the right to open and close. But Texas has what might be a little known rule giving defendants the right to open and close. It is Texas Rule of Civil Procedure 266. Under that Rule, the defendant may move for the right to open and close if it at the trial it asserts only an affirmative defense. In that case, I advised my client that the only chance he had of winning the jury trial was to admit the debt, but assert the affirmative defense of bad faith in trying to collect the debt. He followed my advice, we so moved, the bank’s lawyers were caught by surprise, the court granted our motion, and we got the right to open and close. Criminal defense lawyers know how valuable that right is. The government/state gets to set the tone for the case when it asks the first question in voir dire, goes first in opening statements, calls the first witness, argues first and last. My first statement to the jury in voir dire was, “This is the case of a borrower who fights back against a money lender. And the lender is not just any lender. The lender is the First National Bank of Beeville, whose main office is located right across the street from this courthouse. You can see it if you turn around and look out that window.” (Borrowers fighting back against money lenders: I have always thought good “themes” for jury trials are hard to come by. That has always been one of my favorite themes. Themes are one of the most important subjects in a jury trial, and one which I think SACDLA should explore, in a publication focused on “Themes.”) The trial started with my client taking the stand. He testified at how he had paid thousands of dollars to the bank for the benefit of his

brother. The bank had taken his money for months if not years. Then all of a sudden, it refused to extend time for payment. It foreclosed on the lien against the car dealership. It sold the dealership to a buddy of a bank officer. It financed the sale of the dealership. Conflict of interest? I then called the bank officer who managed both deals. He was a real heel and played into our theme. I remember jury argument for one reason. We talk and think a lot about “body language.” A woman sat in the middle, on the front row of the jury box. She was beautiful, and a little younger than me. When I walked up to make my final argument, her arms and legs were crossed. When I finished, her arms were resting loosely on her knees, palms up. Her legs uncrossed. She looked at me with a smile. She became the presiding juror. After arguments closed, the bank’s lawyer walked over and told me, “Robin, I’ve already got the form for the final judgment ready to go, as soon as we get the verdict.” Yes, he was confident. So was his co-counsel. Co-counsel was from a prominent ranching family in the Beeville area. This was his first jury trial. He and his family beamed with pride as we waited for the verdict. His first trial, his first win. The jury announced it had reached a verdict. A really nervous time for all trial lawyers. The judge read the verdict. And as you have guessed, the verdict was for the borrower. The jury found the bank had enforced the guaranty agreement in bad faith. Bank’s lawyers were speechless. Silence. No back slapping. No big cigars. No scotch and sodas. Take nothing judgment rendered on the verdict. Unfortunately, all good things must come to an end. The bank appealed to the court of appeals. Another lawyer represented my client on appeal. I told them I did not want to have to grade my own paper. The court of appeals reversed, holding that bad faith is not a defense to enforcement of a guaranty. Well, hell. But I enjoyed that jury trial as much as I have enjoyed any other.

JOE

Philip Bozzo, Jr.

The ﬁrst time I saw Joe was shortly after I had been appointed to represent him on a felony. I was practicing in Harris county courts. Joe was big, very big, and black, very black, with a mean-looking face. Joe had been charged with two counts of aggravated assault: serious bodily injury on each of his two sons, age 7 and 9. He had a prior felony enhancement, and at least two or three other Rule 404(b) crimes, wrongs, acts or omissions. The two boys had been taken into custody through the Child Protective services and were sequestered so Joe could not have any contact with them. It would not have mattered because Joe was in jail and could not make a bond. Although I made an attempt on several occasions to see and talk to the boys, by the time the venire panel was seated I still had not gained access to the boys. There was the usual evidentiary preparation by law enforcement: a police report; medical reports showing, in drawings and sketchings the types of injuries to the boys; and statements of the boys taken by the medical providers. CPS workers had done

their job, too, and had taken statements from the boys that clearly indicated Joe’s assaults, and included the fact that the boys were hurt physically at the time. Their statements were drafted to indicate that Joe mercilessly beat both of them across their hands with crutches. The photographs showed swollen hands with open sores and red and bruised knuckles and fingers. The police had put together a thorough police report which showed in writing the terribly poor conditions of the apartment where Joe lived with the two boys. In a part of my investigation and preparation of the case I visited the site of his apartment complex, which as I recall, was in a public housing unit that was full of other folks as poor as Joe. The facilities were run down and they were filthy and the halls were strewn with trash and the walls were resplendent with spray painted graffiti, gang signs, and general rudeness. The defense attorney needs to listen to the client. Joe would not accept the offer tendered by the State which was decades to do in the joint. We were going to trial and Joe was going to prison.

I had several conversations with Joe before trial. Here are the highlights of what he told me: Joe was disabled and was unable to get around without crutches. His boys lived with him and went to school every day. Joe and the boys were on a small ﬁxed income which included Joe’s disability and some social security monies for the boys. Joe did not know where their momma was. I presume, from our conversations, that Joe spent the day every day from the time the boys left for school, drinking and possibly doing whatever drugs he could afford to get his hands on. Joe told me that he would go to the grocery store regularly and buy what he could afford and put the dry goods into the pantry and put the cold goods in the refrigerator. The refrigerator was never full, but according to Joe there was always a carton of milk and a carton of juice and cold cuts. The pantry was barely stocked with the essential dry goods, like bread and cereal. Joe did his best to manage the boys and discipline them. Joe incorporated corporal punishment – most often, reckless ﬂailing of his crutch in the general direction of the boys- for disciplinary purposes. From what I can gather from Joe and the CPS reports, he employed that method on a

regular basis. Joe was trying to be mother and father and disciplinarian to the boys. Joe was going to prison. Winning the unwinnable case is a paradox. Perhaps that’s why we were given this title. A paradox cannot be reconciled. You can’t win the unwinnable case. If it’s the unmovable object and the irresistible force there must be other factors that come into play in order to change the dynamic. Changing the dynamic comes from the defense counsel. Our pre-trial motions are so absolutely necessary that you must insist, at the possibility of angering the Judge, upon a ruling prior to the seating of the Venire panel. Changing the dynamic is the duty of the defense counsel and if the State comes to court ill-prepared and with a hard-on to take 20 years of a father’s life, then she should be all the more prepared to prove its case. Prior to trial the Court heard all the motions which I had ﬁled to limit all

the State’s introductions of evidence to bench conferences prior to introduction. I relied on the Old Chief case from the United States Supreme Court. That case prevented the State from introducing the prior felony conviction which was used as an enhancement during the voir dire and trial, with the understanding that I would stipulate to that prior conviction without argument or objection at the punishment phase, assuming that the State properly laid the predicate for its admission. Because I had decided that this was not a winnable case, I intended to make every possible objection to every piece of evidence that was available to me during the course of the trial. As it turned out, I got to use everything from my motions in limine and

(objections) a lot. Joe was not going to testify, and I was going to do everything I could to disrupt and eliminate, if possible, every bit of evidence, and the smoothness and the rhythm of such presentation evidence by the State. Without Joe’s testimony, I did not see where I was going to make the point that Joe was doing his best as a father to keep those kids safe and educated. So on the day of voir dire I used every tactic available to pick a jury of the poorest people that I could. (The voir dire itself is a whole ‘nother topic.)

case. That skeleton can sometimes gather some flesh and bone during the course of the trial.

On the day of trial, Joe had been in the Harris County jail for more than six months. Prior to trial I had filed an application for probation. I also filed requests for jury instructions and verdict forms on lesser offenses which included a charge for the lesser included felony offense of assault and one for reckless conduct, a misdemeanor at the time. At opening statements, the defense theme, brought out in voir dire, needs expansion. The theme for the case can sometimes be the most difficult part of the unwinnable

This is what happened at trial: The State put on the investigating police officer who testified dutifully from the police report. In the course of his testimony, he said there were some pictures of the boys’ injured hands. At my request and reminder to the Court of its order on my motion in limine, the jury was removed. The officer could not identify the photos. On the evidentiary voir dire, he could not indicate who took the photos. He could not admit that he had ever seen the photos before and the photos, which showed a pair of hands in each photograph, were unidentifiable by him as to which set of hands belonged to which boy. The photos were not coming in through the cops.

The State next put on the hospital’s medical examiner who could testify to the exam and the fact that the boys’ hands were abraded and the boys’ hands were swollen at the time and red and bruised. That ER witness could not identify the photographs, so for the second time the jury was trotted back into the courtroom for a continuation of testimony. They saw no evidence of the injuries. I am reasonably sure that by then the State was concerned but not too worried. All the prosecutor had lost at that point was a bit of rhythm. After all, the pictures were taken by a CPS case worker shortly after the event. The State probably thought that she could, with a bit of woodshedding, get the pictures into evidence after lunch. The defense attorney needs to do his or her work and take every opportunity for discovery. After lunch, I got to the courtroom a few minutes early and there sat both of the boys on a bench outside the courtroom with a child services handler who was either uninformed or inexperienced as to how to keep me from

Then, in what turned out to be a ﬁt of desperation, the State who was prosecuting Joe for the heinous offense of mercilessly beating his two children and would not make an offer to go to prison for less than decades, felt obliged to put on the older boy.

talking to them. So I sat with the boys and we talked. They lived in poverty and they knew it. They knew their mother was never around but didn’t know why. They knew their dad was harsh and maintained discipline with a loud booming voice and a swing of his crutch. They knew that some days when they came home from school that daddy was “sick” and couldn’t get up from his sleeping pad next to the refrigerator. They loved their dad. On some days between welfare checks the boys were put on restriction from eating out of the refrigerator without Dad’s explicit permission and instructions. They had been hit enough times before that they knew the rules. The older boy understood the rules and why they were invoked: they were poor, they didn’t have much money, and they had to conserve and watch what they ate. They may not have liked their dad, but they loved their dad. When the trial started again, the CPS caseworker did her dutiful testifying before the jury. And then the State presented the photos to her. The Judge didn’t hesitate: out went the jury. The caseworker did not take the pictures and only knew that someone in the room took the pictures. The caseworker could not identify who took the pictures and could not identify if the pictures had been altered in any way. The caseworker could not tell which set of hands belonged to which boy. Photos: out. Maybe Joe wasn’t going to prison.

The older boy admitted that Joe had hit them with the crutch, that he hit them hard and that he had hit them several times. I think it even came into evidence that he had hit them on other occasions. With daddy in jail, the boys had been living with child protective handlers. Then came the pictures. By now the Judge was as determined as I was to keep the pictures out of evidence unless someone—anyone—could testify as to the identity of the hands in the photos. The older boy could not identify the photos. The pictures that showed how terrible the boys’ hands looked weren’t coming in. When the jury returned and the direct examination ended, I got to talk with the boys. It was a nice talk. The boy loved his dad and so did his brother. He understood why his dad did what he did. He was happy to explain why they got hit and what the conditions were for living, eating, going to school, and being protected in that run-down, god-awful shelter of their dad’s. They knew that their dad should not have been hitting them but the boy testiﬁed that they were hungry and could not wait for dinner to have their milk. Their dad could not get off his pallet near by the refrigerator and swung recklessly with his crutch to maintain discipline. He didn’t mean to hit them and he didn’t mean to hurt them. The older boy testiﬁed that he wanted to be home with his dad. After the closing arguments, (where a story came out about a young man charged with the responsibility of taking care of his

younger sister while his parents were away and who recklessly caused her injury in a manner that could best be described as ﬂaying powerlessly), the jury retired with a jury charge and verdict forms for a count of aggravated assault against the older boy and a count of aggravated assault against the younger boy. Additionally, the Court entered instructions and a form for a felony intentional assault against each of them, and instructions and a verdict form for the misdemeanor of reckless conduct. The jury returned “not guilty” on aggravated assault on either boy; “Not guilty” on assault of either boy; and “Guilty” on reckless conduct on one of the boys. Joe was not going to prison. Joe had spent sufﬁcient time in the Harris County jail awaiting trial to have accumulated a day for day credit for the maximum misdemeanor sentence. Because of my decision to keep his prior conviction away from the jury during the guilt/ innocence phase, the jury knew nothing about it. And because the jury verdict was for a misdemeanor, the enhancement was not available for any additional punishment. The State and I agreed that there didn’t need to be an application for probation heard by the Court nor even a sentencing hearing. The State waived sentencing by the jury. The court assessed his time in jail and Joe was free the next day. By the way, this article could have as easily been called “How that State can lose a winnable case”.

Epilogue As the jury streamed from the courtroom back to the jury room, Joe looked down at me and told me thank you and tried to shake my hand. I looked at Joe and I said, I never want to see you again. Two weeks, perhaps a month, later as I was walking the halls of the Harris County criminal courts, bouncing from one appearance to the next, I did see Joe again. He was on a chain with other orange clad prisoners being lead from an elevator to a courtroom for a court appearance. I don’t know his fate regarding that case.

KARATE KID Joe D. Gonzales

My last jury trial, held in the 386th Juvenile District Court from July 6-13, 2015, proved to be one of the most difficult cases to win because of the seemingly compelling evidence against our client. In what I called the “Karate Kid” case, our 15 year old juvenile respondent was accused of committing aggravated sexual assault of a child against one of his karate students while the 6 year old female was attending an after-school beginner’s class in the karate school owned and operated by our client’s parents. As is typical in sexual assault cases, there was no physical, medical or other scientific or even eyewitness corroboration connecting our client to the crime. However, what was compelling in this case was the credibility of the young complainant. She gave a very detailed outcry to her father within a few days of the alleged incident that was consistent throughout the investigation. She described how our client lured her into the back storeroom of the karate studio during a part of the day where classes were being held, made her kneel down, and ordered her to perform oral sex on him. What was especially difficult to overcome was that,

according to this 6 year old, he instructed her to make sure to use “no teeth” when performing this sex act.

A. DEVELOP YOUR THEME EARLY Since the bulk of my practice is dedicated to sexual assault of a child representation, my experience in defending a number of these cases in front of a jury over the years is that if we can establish a motive for the child’s false outcry; lack of opportunity to commit the crime or both, one has a ﬁghting chance at establishing reasonable doubt. In this case, we learned through the use of our investigator and conducting numerous potential witness interviews that the young lady hated attending karate class and the only reason she was there was because her mother forced it upon her. Ergo, we developed the theme that the motive for the false outcry was to avoid going back to karate class and that our client was just the unfortunate target of her story. During voir dire, we developed through panel discussion all the reasons a child might make up a story to avoid going to places or

engaging in activities they didn’t particularly care for, such as going to visit an unpopular relative, avoiding activities like piano class, or even skipping school. Since the majority of our jury pools are consistently sprinkled with parents, they are usually more than willing to share their own anecdotes of why little Johnny or Susie lied about being sick or having extra homework to do in order to avoid going on that undesired trip. Because you may have the state talk about how a child would not fabricate an allegation as serious as accusing someone of sexual assault, be prepared to engage the panel in a discussion of unintended consequences and that sometimes children may not realize the far-reaching impact a lie about being touched sexually would have.

B. DEVELOP A GOOD CROSSEXAMINATION WITH A PURPOSE IN MIND If your theory of the case is that the complainant made a false outcry to avoid going to a particular place like piano class or grandma’s house, and you have credible

defense witnesses that can corroborate this, get the state’s witnesses to commit to a theme that will be contradicted by your witnesses. In the Karate Kid case, the states’ witnesses, including her parents, painted a picture of this child looking forward to and thriving in the martial arts program. By the end of the state’s case-in-chief, the impression left in the jury’s mind was that this child was a star pupil in that school and loved it and so this could not possibly have been the motive to make a false outcry. When the time came for us to present our case, each of the defense witnesses, including several instructors that had direct contact with the complainant, and other parents who were present during the classes all testiﬁed that the complainant was a poor student and was constantly being disciplined for refusal to follow instructions by the staff. The reason you may want to develop testimony by the state’s witness which will be in direct contravention to your own witnesses is because it is a more effective method of presenting issues in dispute, rather than waiting for the state to put on rebuttal witnesses enabling then to have the last word on the subject.

C. REINFORCE YOUR THEME WITH EFFECTIVE DIRECT EXAMINATION With each witness that you put on in your case-in-chief, you should be reinforcing what the earlier witness offered. While sometimes less is more, if you have several witnesses that can provide meaningful testimony, don’t be afraid to offer multiple witnesses as long as they can offer a different perspective. Being always mindful

that repetitious testimony can put the jury to sleep, take the time to organize the order of your witnesses and the substance of their testimony. Ask yourself: do I really need to put this witness on or is he going to hurt my case?” In the Karate Kid case, we had approximately eight employees that were all willing to testify as to the complainant’s lack of interest and poor performance-we chose to put the strongest four or ﬁve. Likewise, we had several willing parents corroborate our theory of the complainant’s performance and attitude but selected the strongest of the group.

D. DON’T IGNORE THE ELEPHANT IN THE ROOM. If there is an element of the state’s case that is particularly damaging to your case, it is best not to ignore it as if it did not exist, but rather, deal with it headﬁrst. This is not to say that you concede to that very issue but that you develop a method to neutralize it. For example, in our case, we had to deal with the statement that was allegedly made to the complainant by our client of making sure that she not use “any teeth” when performing the demanded oral sex. We began discussing ways a child of the tender age of 6 years might be exposed to learning about oral sex. During voir dire, we discussed the various ways a child might learn about traditional and non-traditional sex, including various sexual positions. We

discussed access to sex in various media, including social media. By the end of the defense jury selection, the panel agreed there would be many ways a child of 6 years would be familiar with oral sex that would have nothing to do with being a victim of sexual assault.

E. GOOD TRIAL PREPARATION IS KEY As the saying goes “there is no substitute for being well prepared”. This is especially true in defense trial work. There is also no substitute for having a good defense team. Along with my trial partner, Christian Henricksen, and investigator, Ray Ybarbo, the key for having won a seemingly unwinnable case involving our client who faced up to forty years under the juvenile determinate statute was being well prepared for trial, interviewing witnesses, going to the crime scene and preparing a good theme to advance in trial. In addition to that, at the end of the state’s rebuttal, we took advantage of cross-examining an unnecessary rebuttal witness who admitted that the complainant had frequent overnight contact with a close relative who had a conviction for indecent exposure.

LESSON WORTH SHARING Warren Wolf

When Mark asked us to write about winning the unwinnable case case I suppose many thought I would write about Trevino vs. Thaler. Although arguing a case before the Supreme Court after working on the case for over a decade and reversing the opinion of the Fifth Circuit is quite an accomplishment, ultimately the case is still being litigated. So, within the parameters of our task, I want to turn to a simpler matter. But the lesson learned is worth sharing. THE FACTS Police suspected my client of dealing drugs. They followed him in a vehicle, about 2am in the morning to a motel by I-10 and Wurzbach. My client went inside, leaving his motor running and returned a short time thereafter. My client left going west on the I-10 access road and crossed over the highway at the ﬁrst bridge. The police following saw my client, alone in the car, throw something out of the driver's window. The police followed, lit up my client and stopped him at a restaurant on the west side of I-10. While the police detained my client a backup squad car went back to the location where the ofﬁcer saw my client toss the object; and lo and behold a baggie containing a small amount of cocaine was found. He returned to where my client was being detained. He was charged with possession of a controlled substance under 28 grams. THE OFFER Two years probation. My client was going through a custody battle and did not want a conviction on his record. I counter-offered for a deferred plea, which was rejected by the District Attorney. Now, a state jail drug case was an automatic probatable offense. So what was the value of waiving a jury trial? What was the State giving up? Nothing!

So, with Robert Porter as co-counsel I proceeded to trial. When the State put on the lab tech I crossed asking if any fingerprints were lifted from the smooth plastic surface of the bag that my client allegedly tossed. The answer was “No.” It was the time when all the bars were closing and were a lot of cars on the road. The police had waited about 15 to 30 minutes to go back to the bridge. On redirect, the D.A. tried to minimize the lack of fingerprint evidence by showing that the lab was overworked and compared to murder cases, and other serious crimes, this case was not that important to do all that forensic work. Robert and I both highlighted our notes on this testimony. We turned to each other an couldn't believe what we had just heard. We did not recross their expert and put that gem away for closing argument. We argued that the State couldn't prove beyond a reasonable doubt that the baggie with the cocaine was what the police saw our client throw out of his window. We argued that although this case might not be that important to the law enforcement community to warrant a complete investigation, it was important enough for the judge, the court reporter, the bailiff, they, and certainly our client, to come to court to do our respective jobs. The jury returned rather quickly with a “Not Guilty” verdict. We were going to the Court for punishment anyway, and thought we would make the State earn what they had offered in the first place. We learned that you never know what will come up in a trial; just keep your eyes and ears open. Needless to say, our client was pleased with the result.

SOMEONE HAD ROBBED A BANK Gammon Guinn

In the early ’90s I was appointed to represent a juvenile who was accused of nearly removing a young man’s leg with a shotgun. After appointment, I went to review the prosecutor‘s file. Note that back in the ‘80s prosecutors were told to write everything directly on the case file. Plea bargains, small papers and messages were too easy to lose. At that time, all charges and cases involving the same juvenile were placed in the same folder. My client’s file was covered in writing. Unfortunately, it was mine. I had sent this juvenile to TYC...twice. I went and told the Judge, who told me a possible conflict could be waived by the juvenile. If I felt none existed, I should go ask him. During visitation I informed him that I was the lawyer who had sent him to TYC. I offered to represent him or to get him another lawyer. He said I had done a pretty good job against him, so I could probably do a good job for him. I had my client sign a waiver. Upon review of the State’s case, I realized my case bore a striking resemblance to the image perched above “Hopeless” in the dictionary. I knew dazzling they Jury with my brilliance was out. I decided my only hope was to baffle them. I later realized the Complainant’s fabrications presented hope. We decided not to oppose transfer to adult court. When my client is a juvenile with an extensive record, I often opt for transfer as I prefer little-fish in a big-pond to a big-fish in a little-pond. My time with the panel was a short and sweet search for older, nonaffluent mothers. I reminded the panel (and later the jury) that no one was shot for no reason. As an aside, I once argued a 12 year old, who murdered for no reason, must be coldblooded. The complainant swore ‘he may have seen my client around his neighborhood,’ to police and on the stand. He further testified all he had been doing when he was shot was waiting for a bus. He told the police that my client approached him and shot for no reason. The

complainant crawled across the street to a convenience store where he used a pay phone to call for help. As it turned out, the complainant had known my client his entire life. The two grew up in the same neighborhood and attended the same schools. Over the years, the two frequently got together. As I began to cross the complainant, trying to relax him, he broke into tears. He yelled that he had been molested as a child. My second chair leaned over and whispered, ‘We are screwed.’ Even Judge Harle looked at me sympathetically—and I believe, made a shooting gesture toward his foot. I waited a moment, and then I removed facial tissues from my trial bag. I asked the court for permission to approach. I handed him the box and asked if he needed to take a break. He snuffled a weak ‘no.’ I told him all of us were very sorry for his painful past. I then asked him if he meant it pertained, in any way, to this case or my client. He sniffled ‘No.’ I then asked him if I should continue. I spent the next twenty minutes showing small inconsistencies, in his testimony. I finished with a few questions about his frequency in riding the bus. And, why he was waiting for a bus at 3:00 AM. For the remainder of the trial I maintained a less-is-more attitude. My closing was very brief. Basically, the complainant was a big liar and that ‘anyone who would lie about a bus, would lie about anything.’ You really had to be there. The jury said he was not only a liar, but a big bad liar (they also resented his playing on their emotions). I had to agree. Crossing the complainant was the only case I had available. I try to make my client’s life better than before I entered it—even if it means sending him to prison first. I believe every case is winnable. Finding an unwinnable case is a mental block.

17-YEAR-OLD GIRL Sean Keane-Dawes

My client, Lionel Gonzales, was charged with injury to a child and indecency with a child. The allegations stemmed from an incident that happened at my client’s parent’s house in November of 2002. My client had gone online and met a 17 year old girl. They agreed to meet up somewhere near her house. My client went to meet her in his parent’s SUV, together with his dad, and took her home. The girl and Gonzales then went to Gonzales’ bedroom upstairs. Later, the young girl came running down the stairs covering her nose. My client’s father, with my client in the car, dropped her off about two blocks from her home. Later, detectives from SAPD would interview the parents of Gonzales, but never spoke to him. Some eight years later, ofﬁcers from Bexar County went to my client’s house, and arrested him for a DWI probation. They also had an arrest warrant

for the injury to a child charge and the indecency with a child charge. When I got this case, I never thought that this would become a major Texas case on speedy trial violations. When I visited my client, and after talking with him, that’s when I learned that the charges from the November 2002 incident weren’t indicted till March 17, 2004, and my client wasn’t arrested till April 21, 2010, some six years later! I immediately thought speedy trial violation, but little did I know that I was going to go on a four year odyssey with this case. The first thing I did was to file my motion to dismiss for lack of a speedy trial. Before filing though, I consulted with Mike Sawyer, and later Bernard Campion. Mike told me what should be in my motion, and stressed that I needed to prove the prejudice prong

of the Barker v. Wingo1 factors. So, I filed the motion, and it was set for a hearing in July of 2010. The State had no witnesses. I had my client and his mother testify at the hearing. Client testified that he had no idea that there was a warrant out for his arrest for the injury to a child and indecency charges. He hadn’t changed his address, and he hadn’t received notice of the indictment in the mail. His mother testified that she had faded memories of the incident, and basically would not be a reliable witness. She did testify that she remembered talking to detectives, and denied the contents of an affidavit with her signature that the State attempted to impeach her with. The State argued that since he chose not to renew his driver’s license, which had expired during the six year period, that this was evidence that he must have known of the warrant, and therefore was eluding arrest.

To my surprise, the court denied the motion. The court did rule that the first two factors of the Barker factors, length of delay, and reason for delay, weighed against the State. However, on the assertion of the right prong, the court stated that this weighed against Gonzales because he took six years to assert his right. On the prejudice prong, the court ruled further that since his mother did testify to some memory of the event, Gonzales’ case was therefore not impaired by the delay. Now, I knew I had to appeal this because, in my opinion, it was contrary to Doggett v. U.S.,2 the controlling case. Doggett states that:”Where the government’s negligence thus causes delay six times as long as that generally sufficient to trigger judicial review, and when the presumption of prejudice, albeit unspecified, is neither extenuated, as by the defendant’s acquiescence nor persuasively rebutted, defendant is entitled to relief3”. For me, this meant that the delay of six years, was six times longer than a regular felony case would take to go to trial. Therefore, since Gonzales’ burden was met because of the presumption of prejudice, the burden was on the State to rebut the presumption or show that Gonzales acquiesce by knowing of the charges, and taking deliberate steps to evade arrest. I then had my client accept a conditional plea for deferred adjudication on the injury to a child charge, and had the indecency charge dismissed, while still retaining the right to appeal the denial of the motion. In preparing the case for appeal to the Fourth Court of Appeals, I came across State v. Guajardo, 999 S.W. 2d 566 (Tex. App.-Houston [14th Dist] 1999, pet. ref’d). This case held that even where the delay was presumptively prejudicial, the burden was still on the appellant to show prejudice. I knew it was bad for my case, but I thought that the court would apply Doggett, and overturn the denial of the motion. Well, things just didn’t happen that way. The fourth court, with Justice Speedlin writing for the majority, ruled that Guajardo was controlling4. They therefore found that since Gonzales was not subjected to pretrial detention, and he was not under any anxiety

of the indictment, since he didn’t know about it, then he must show how his case was impaired by the delay. Since Gonzales and his mother, Isabel, only testified to faded memories of the incident, this was not enough to show that his case was impaired. The interesting thing to me about the opinion, was that they found that the first three prongs of the Barker analysis, length of delay, reason for the delay, and assertion of the right, were to be weighed in favor of the appellant. So I’m three quarters of the way there right? But then they dropped the hammer on the prejudice prong. At this point, I was pretty deflated. I couldn’t understand how the court couldn’t see my side. I then prepared my very first petition for discretionary review to the Court of Criminal Appeals. At this point, I wasn’t sure of anything, but knew that this was my last gasp of air for my client. I was ecstatic when I got the postcard that the court granted my petition. The Court had also requested further briefing from both sides. Wow, talk about a fight! By this time, the case was going on two years. In my additional briefing, I stressed that the fourth court of appeals erred by not finding that the prejudice to my client was presumed, and therefore, the burden to rebut the presumption was on the state. The State, surprisingly agreed that Doggett was controlling, and that Guajardo was wrongly decided. The State also agreed that the fourth court of appeals “misapplied” the Doggett presumption by requiring that the burden was on the appellant to show prejudice. When I read that I thought “awesome” it’s over. Well, not yet. The State went on to argue that they did persuasively rebut the presumption of prejudice, based on Isabel’s testimony that she did remember some things from that day, and also the trial court’s finding that Gonzales was evading arrest by not having his license renewed. On February 27, 2013, the Court of Criminal Appeals delivered its decision5. They found that the fourth court of appeals incorrectly put the burden on Gonzales to show prejudice. This was a unanimous decision. The court then remanded the case to the court of appeals for consideration under the

correct standard. Now interestingly, by the time of remand, the court of appeals had changed drastically since the 2012 elections. At least three justices that ruled on the first case were gone, including Justice Speedlin. I was then pretty hopeful that the newly constituted court of appeals would hand down a favorable ruling. They did just that. On August 21, 2013, the fourth court of appeals reversed the judgment of the trial court and rendered judgment dismissing the prosecution with prejudice6. “Reversed and rendered judgment dismissing the prosecution with prejudice”, are the most beautiful words an appellate lawyer would want to hear. I was a little disheartened that it was not a published decision, so my name would be out there (now you know we lawyers are always egotistical). I thought it was over, but little did I know that I was going to get my wish of being published. The State filed a timely PDR to the Court of Criminal Appeals. I was genuinely surprised by this, but buoyed by the new court of appeals decision, I was ready to take on the challenge again. The State basically made the same arguments as before, namely that prejudice was persuasively rebutted, and that Gonzales had acquiesced in the delay in not getting his driver’s license renewed. On June 25, 2014, the Court of Criminal Appeals affirmed the decision of the fourth court of appeals7. In a twenty five page decision, Justice Hervey very succinctly, went through the speedy trial balancing factors, and more importantly, found that the State did not persuasively rebut the presumption of prejudice to Gonzales, nor did they show that Gonzales acquiesced in the delay of his case, because once he found out about the indictment, he immediately filed his motion to dismiss for lack of a speedy trial. Of course, when my assistant David told me of the decision the first time, I made him read it first, and tell me whether it was affirmed or not because I was so nervous. He then told me that it was published. My heart leaped with joy, but I didn’t show it to David. After all, it’s not about me, it’s about the client, right?

3 TRIALS Brian Powers

I’ll try not to make this sound like too much of an anthem to Jim Oltersdorf, but to me he is the Shepard of Lost Causes. Over the years, I’ve been a part of and witness to miracles he has orchestrated in the courthouse. If I were to break down his method into simple rules – I’d come up with eight without batting an eyelash. It has been several years since I sat with him, so there’s a chance, like most ﬁshing yarns, that the ﬁsh has gotten bigger over time.

TRIAL 1 Rule 1: Win the Jury – Win the Trial: Jim handled the voir dire in a trial where our client faced seventeen-counts of continuous sexual abuse of a child. The client had a prior conviction for attempted murder and the complainant was a tiny little girl with a built-in halo. For thirty minutes, Jim didn’t talk AT the jury like many of us do, nor did he try to explain the minutiae of the incredibly complex law. Instead, Jim made conversation with every member of the panel while still covering the relevant topics required in a good voir dire. In any sex case, a jury is likely to detest the defense before they even utter

their first words making it all the easier for them to shout guilty after the party is over. However, Jim made it difficult for them with his personality and professionalism. Rule 2: Make the Jury Realize that Just Because He Looks Guilty Means You Need to Look Closer: To make matters worse, Jim’s client looked like he couldn’t die without a stake through the heart. Our client exuded guilt through his pores. His appearance coupled with the State’s witnesses and the scientific evidence made matters all but impossible. However, Jim managed to turn it into an asset. He asked the jury to bypass their prejudice regarding the client’s history and appearance and look closer at the State’s case. In doing so, Jim turned all 12 jurors into scrupulous auditors of the facts. This allowed a greater chance for finding doubt in our unwinnable case. Rule 3: Simplify the Science: It’s not a matter of who masters the science in a trial. It’s a matter of who simplifies it. An expert is useless if they cannot relate to a jury. It’s visible in every case involving all experts. Whether it is DNA, forensic interviewing, blood draws or any soft-science out there - the key to all of them is playing Mr. Wizard to the jury in a way that makes the jury feel smarter afterwards. If you can do this, you get one step further in gaining the jury’s respect and a win. Rule 4: Let the State Believe in Their Slam Dunk: Overconfidence is a silent killer. It diminishes your resolve and makes you lazy. When the State is over-confident going into trial, they WILL miss details. With a seventeen-count indictment, a repeat

& 8 RULES offender, and all the facts at their disposal, over conﬁdence may have sealed the State’s case. Either way, their missed details became Jim’s best weapon. In the end, the Jury returned with seventeen “not guilties”.

TRIAL 2 Rule 5: Perspective Makes Everyone Inconsistent: Nietzsche said, “There are no facts, only interpretations.” Never is this more true than in our world where every witness saw the same thing but always a little differently. My second trial with Jim involved half of the San Antonio Police Department descending on his habitual client and finding twenty-six grams of controlled substance in his sock. The evidence was overwhelming. Every officer on scene appeared to testify. It seemed like it would be a nightmare. However, the interesting thing about all those points of view of the same incident was that not all details were the same. By exploiting small inconsistencies with each witness, Jim introduced reasonable doubt to the jury. Each testifying officer, when prodded for more details, introduced false interpretations and conflicting details of what they saw. Rule 6: You Miss One Hundred Percent of the Shots You Don’t Take: Perhaps this is a better rule to end on. The jury in this case was released to deliberate with overwhelming evidence of our client’s guilt. The stop was good. The drug results were in the State’s favor. The witnesses could have filled the hallway. But Jim applied each of the rules described above and, after four hours, the jury came back with a not guilty verdict. I’ve

seen him do it on many occasions. Jim is one of the few attorneys who, despite the facts, will get in the ring for his client. What more could our clients ask for?

TRIAL 3 Rule 7: Have the Jury Consider What’s Right and Not Just the Law: I tried to put those rules to use in Trial 3. It was a punishment case out of county involving a sexual assault between a sixteen-year-old and her nineteen-year-old boyfriend. The State had a child’s DNA as overwhelming evidence of guilt. The defendant and complainant were just over three years apart in age (three months over the point of legality). By the time the matter went to trial, the complainant was an adult and their child was four-years-old. The complainant and every member of her family begged the State to dismiss the charges. However, the State forced her to come to court and she lost her job in the process. Everything about what the State was doing seemed wrong. The State’s ﬁrst offer to my client was ten years in TDC and lifetime registration. My client said he’d rather spend a lifetime in prison than admit to his daughter that her father was a sex offender. I couldn’t blame him. Throughout the trial, I never let the Jury lose sight of the facts and feelings of everyone involved in the case. I made

sure each witness ended their testimony with a random fact about the defendant as a father to the involved child. On the stand, the Complainant begged the jury for mercy. Further, I made each witness discuss something personal about the defendant and complainant as a couple. My goal was to get the jury to see the case the way I did – an incredible unfairness. It was clear by the end of punishment that it worked. Rule 8: Always be the Most Reasonable One in the Room: The State had all the conﬁdence in the world when it came time to closing in punishment. They joked with me in the hallway that I was wrong in not taking their offer. My client had one prior TDC trip under him and prison was inevitable. At closing, everyone was shocked when the prosecutor demanded the jury sentence my client to twenty years. It made it easy for me to ask this jury, “Is this why we made these laws?” While the picture of the little girl involved hovered behind me on the screen I capitalized on the State’s extremism and made myself the most reasonable lawyer in the room when I asked for two years. The Jury returned quickly with a sentence of three. Jimmy Stewart said in Mr. Smith: “Sometimes lost causes are the only ones worth ﬁghting for.” Good luck in yours.

THE CASE OF THE PLAID BOXERS John A. Convery

Let’s call the defendant Leon. Leon lived in San Antonio’s East Side while on state parole after serving time in Texas for robbery. It was not his first offense. Leon was charged in federal court with bank robbery and discharging a firearm during a crime of violence. AUSA Bill Bauman—God rest his soul, was the prosecutor, Ed Prado the judge. I was appointed, with Jim McKay as investigator. Anne Burnham assisted me at trial, her first federal case. The offer and Guidelines of 35 years, left 30 something year old Leon with little to lose from a trial. Someone had robbed a bank on Military Drive. Walked in, fired a couple of shots in the ceiling, scared the tellers, took the money and fled in a small pickup truck. The eyewitnesses described the man as a taller athletic looking black man with a facemask and plaid boxer briefs hanging out of the waist of his jeans. SAPD helicopters followed a few different small pickups—I know, because investigator McKay took the time to run down and review the information. Within an hour of the heist police followed a tracking device in with the money to the crawl space of a small abandoned house on the East Side. Leon answered the door next door, shirtless, in jeans with plaid boxers visible above the waist line. Shortly after Leon, flanked by rotund uniformed Sheriff’s deputies, was paraded through the motor bank lane and arrested after being positively identified by three eyewitnesses as the man who fired the shots and robbed the bank. Leon declined

to speak with police and specifically and repeatedly asked for a lawyer. The trial story centered on the unreliability of the eyewitness identifications—the bank video showed a well-built black man in a facemask. Leon’s girlfriend testified that on the day of the robbery, somewhere near Military Drive, she loaned Leon her small pickup truck. She didn’t notice whether or not he had on plaid boxers. Judge Prado provided puny funding for Dr. Roy Malpass, PhD. to assist the defense with ID issues, but refused to provide additional funding or allow him to testify at trial. The jury selected by the Judge had a couple of African Americans on it, one retired military and one a civil servant, clinical psychologist. Opening statement told the jury our story that this was just another case of bad identification with poor police work resulting in the bad arrest and ID of just another well-built black man. Every cross examination of the Government’s witnesses focused on the bad ID/poor police work leading to the arrest of Leon because he had on plaid boxers. Two young female bank teller eyewitnesses fingered Leon but honestly answered cross-examination questions about how bad they were at cross racial identification, admitting their positive identifications were not really of Leon, but the plaid boxers. Anne Burnham, God Bless her, made me crazy during breaks by telling me things like, “you are destroying them” “This is over.”

The young Hispanic male teller was most difﬁcult, most sure of his identiﬁcation, but admitted he could not see if the man in the facemask was Leon. He ended up a good witness for the defense by telling the jury that the African American FBI Special Agent sitting at Government table was with the eyewitnesses and next to him as he peered through the blinds of the motor bank. He was asked, “How many well-built black men did you see out there in the vehicle banking lanes and parking area? Just the one. Didn't the black FBI Special Agent go out there so at least there would be two black men to choose from? No. And besides, the FBI guy is much too well-dressed so I would never choose him.” The Government and defense rested. The Government told the jury the case was open and shut, with 3 eyewitnesses, the borrowed small pickup truck, and the money recovered from under the house next door to Leon. I told the jury this was just another in a long line of bad arrests of black men based on bad ID procedures and poor police work—if it was so open and shut why did the police follow other small pickup trucks from the sky? I invited the jury to join us and tell the police and prosecutors to stop using bad IDs to arrest the usual suspects. Say it loudly by your not guilty verdict. They did. See USA v. Craig Mathis, 2000 CR 00443ECP-1 & EN Article by Rick Casey.

NONE OF THE OFFICERS Tony Jimenez

I was appointed on an Attempted Capital Murder case. The Defendant was charged with firing in the direction of an SAPD POP unit as they were in the process of serving a search warrant. The officers testified that the Defendant knew they were police based on insignia, verbally making their presence known by yelling out “Police, Search Warrant” the officers breached the front door and were fired upon by the Defendant who testified that they never identified themselves as law enforcement. The Defendant threw down his weapon and was assaulted by the officers in the presence of his live in girlfriend and minor child. My client had been the victim of two prior home invasions in the last two years. He had reported these crimes to the police and he had staved off one of the attacks by firing shots in the direction of the door, just as he had done on this occasion. In that prior home invasion, the police never filed any case, although they had a suspect who had been treated for gunshot wounds that same night. This report was on file. The Attempted Capital Murder charge was reduced to Aggravated Assault of a Public Servant and a charge of Possession of Controlled Substance Penalty Group 1, 4 grams to 200 grams. After the case was indicted, I recruited Catherine Valenzuela, to sit second as we have had a successful history of trying cases together in Bexar County and outlying counties. We voir dired on the appropriate issues. We were satisfied with the makeup of our panel. They had strong feelings on self-defense and the right to protect your home and family. After completing voir dire and prior to the jury being sworn in, the case was dismissed by the State and refiled adding additional counts and the charge of Endangering a Child. We started again. We had focused on the Aggravated Assault Charge and our home invasion theory because of the injuries sustained by our client after he was arrested. He had been beaten up badly

while the officers were effecting their arrest. For some reason, we lost focus with respect to the drug offense and quickly realized that, but for the search warrant, the officers could not lawfully enter the home. We quickly examined the sufficiency of the search warrant and drew into our defense team, attorney Jorge Aristotelidis. Jorge knew that there was a case on point with the exact same boiler plate warrant language and the search stemming from this warrant had been ruled illegal by the 4th Court of Appeals. We challenged the search warrant on our Motion to Suppress and were successful in having the trial court grant our motion. I believe that the State conceded at the end that the Court should grant the motion. We felt at the time that the State would dismiss the Aggravated Assault of A Public Servant since the officers lacked legal authority to execute the warrant. The State decided to proceed to trial. With the number of police officers involved {victims}, the physical evidence that our client fired in the direction of the officers, and their testimony indicating that they announced their legal authority upon entry, the State believed that they would easily prevail on the merits not withstanding that the search warrant had been deemed to be illegal. Obviously there were legal arguments presented by the Defense on the State’s theory of the case vis a vis that the officers were acting lawfully. But we leave that discussion for another day. In the summer of 2014, we went to trial. The State made life size cut outs of all the Officers in Full Swat gear. The State wanted to demonstrate that our client had to clearly know that they were officers and he knowingly shot in their direction. Those cutouts were so huge and intimidating, in direct contrast to our client’s diminutive stature. One of the best pieces of State’s evidence was the officer demonstrating how he had been shot through his pant leg. The alleged hole suggesting that a bullet had miraculously gone through his pant

legs. Upon cross examination, the evidence tech admitted it looked like a tear from normal wear and not a bullet hole. This was the only injury that was sustained by an officer and it was a ripped pant leg. There were serious injuries sustained by my client. These injuries were detailed in photographs in the ambulance [he was a bloody mess] and were described by a State’s witness as a possible allergic reaction. [Really?] None of the officers at the scene testified that they had witnessed our client being taken to the ground and beaten up. The State in closing argument stated that my focus on my client’s injuries were used to elicit sympathy and that remove my client from his own criminal culpability in shooting in the direction of the officers. The State’s closing arguments had an audience of all the officers in uniform sitting in the front row along with a few of their children. I had anticipated the State’s argument by not having the officers’ children in the courtroom. One of my arguments was to point out that the reason I would sometimes focus on the events leading up to the Defendant’s arrest and injuries was important as to the believability and credibility of the officer’s testimony. If none of the officers could remember or see what happened to my client, then how could the jury believe them with respect to their testimony of announcing their presence and what transpired in that room that night. The jury deliberated from the afternoon until late in the evening. After deliberation, our client was acquitted on all counts of Aggravated Assault of a Public Servant . The State formally dismissed the drug case but they now stated that they wanted to proceed on the Endangering A Child charge. They offered a plea with a recommendation of deferred adjudication in lieu of trial. We countered that we would take the trial. The State eventually dismissed the last charge in February of this year.

EDUCATION WAS Victor Valdes

As I reﬂected upon the preparation of the paper pertaining to Against-All-Odds cases, I started thinking about why I was so concerned with Juvenile Law. Even before I retired from the United States Army, and during my research for my doctoral dissertation, I came across some disturbing numbers pertaining to the inner city student drop out rates. The drop out rate at the time was ﬁfty three percent (53%) in San Antonio, and education was not a priority at the time; construction was, and still is. The great majority of the Juvenile cases involved minorities and single parents, and to my surprise, most of the cases were connected with school violations. Truancy was elevated to a crime level, and truancy courts were developed to correct something that not even the courts understood. Even worse, the Texas Youth Commission (TYC) was receiving juveniles and “throwing the keys away”. The schools were criminalizing incidents that had once been thought of as play. On one occasion, during a trial, I asked a school principal: “Who makes the decisions to accuse the juveniles?” Her answer was “The Police Officer has the ultimate word”. Officers do not look at the juveniles as students. The police officers are not there to nurture, but to enforce what they perceive as violations of the law. At another trial, the Principal did not even know what the school function was, or how it relates to the students. The school is there to socialize the children; to prepare them to function in society, not to criminalize innocent behavior. The principle of PARENS PATRIAE should permeate all school activities. Truancy courts are not in consonance with basic education principles.

I selected the present case because it reflects all the aspects that I have described above. My client, J.R., was accused, together with two other juveniles, of arson. Allegedly, they burned three temporary school classrooms. The State’s only offer was the Texas Youth Commission (TYC). There was no plea bargain possible. In this case everything appeared to occur in threes. There were three temporary buildings burned; there were three suspects; there were three alleged confessions; (by my client). There were three motions for continuance by the State. I never objected to the continuances. However, I always announced ready. I believe in civility. In response to my motion for the list of witnesses, the State gave me the Name of thirty four (34) individuals. However, only three witnesses were of any substance. We all know why there was a long list of names. In reality the State never intended to call all 34 witnesses. It was a tactic to scare us. There were five (5) experts identified as “arson investigators”; however, only one testified. In addition to the Motion for State Witnesses, I filed the motion for Discovery and Production, and a Brady Motion to identify any experts. I also requested the appointment of an investigator, Neil Edwards. I have worked with Mr. Edwards in other cases and he knows how I operate, and I trust his judgment. We went to the neighborhood, i.e., the scene of the crime. Always go to the place of the alleged crime or violation. We all have learned that police reports are not always accurate. I remember a police report indicating that my client missed the stop sign. However, there was only a yield sign. In another

case, the ofﬁcer alleged that my client was weaving; of course he was weaving, because there were so many pot holes. Every car was weaving. Our visit to the neighborhood allowed us to the apartment complex where two respondents resided, and the single, small house where my client was living with his mother and little brother. We were able to observe that all the single homes had a small yard in front. Additionally, we went to the Valero gas station where the State had alleged that my client and his friends had purchased the gas, and the “Zippo Lighter”. The visit to the school showed us where the three temporary buildings were located; they had been cleared and there was only open space. The Court granted the State’s Motion to Consolidate the trials. However, one defense attorney got sick and I had to proceed solo. That was a blessing in disguise. The ﬁrst witness was the school principal, the complainant. My cross was brief, and as follows: “Ms Principal, you gave a statement to the investigators, am I right? “Yes, I did.” And in your statement you gave the investigators the name of three individual students that you suspected then to have reasons to burn the buildings. Am I right? And the names were...? However, you did not name J.R. as one of the suspects? No, I did not. The truth is that there are many problem students in your school capable of doing damages to the school? Yes, there are. And the three students that you mentioned to Detective Rodrigues had a grudge against Mr. Swyden? You remember that? You gave him three names,

NOT A PRIORITY but you did not give him the name of J.R.? You remember that? Pass the witness. Our cross examination was to the point.

do not.” Furthermore, was there evidence that J.R. bought gasoline from the station that night? Again his answer was “no”.

Another witness had given a statement about the conversation she overheard in the computer room about the ﬁre. The three juveniles were discussing the events. One admitted “carrying the gas can”. The problem with this lady was that she was a Psychiatric patient, with a bi-polar diagnosis, and taking medications. The State did not want me to cross examine the witness about her bipolar condition. However, I objected and I was able to prevail. The ability to perceive events and interpret them is critical when it pertains to a witness’ testimony. Prior to cross examination of the witness, I was able to consult with Dr. John Smith, Ph.D. a psychologist friend, who gave me some ideas to how to proceed with bipolar patients.

Another witness was a San Antonio Independent School District Police officer. He went to J.R.’s home, took him to his office and got a statement from him. Fortunately, I anticipated the need for a Motion to Suppress. We had a hearing outside the presence of the jury and his testimony was excluded. He was a tall, strong, robust man. He went to J.R.’s house, a small one bedroom house and never sat down. The SAISD Officer went to the home, without warrant of any kind. He proceeded to take J.R. to his office. He told the mother that J.R. was a suspect in the arson case, and that was enough authority for him. When he had completed his investigation, and secured a statement from J.R., he called an arson investigator from SAPD and passed J.R. to him. The mother was never present. The Family Code was ignored and Miranda warnings never explained. Perhaps, the investigator thought that juveniles do not have rights. Obviously, he was not aware of the decision In Re Gault, 387 U.S.1 where the Supreme Court held that children and parents/ guardians must be advised of their right to be represented by counsel and that, if they cannot afford counsel, counsel would be appointed to represent the child. In Re Gault was decided in 1967 and in 1970, the Supreme Court decided In re Winship, 397 U.S. 358, where the Court held that juveniles, like adults, are constitutionally entitled to proof beyond a reasonable doubt when they are charged with violation of a criminal law.

The next witness was the Valero station investigator. He came with video showing J.R. at the Valero gas station near the place of the ﬁre. When the State passed the witness to me I began by saying “I do not know why you are here.” Some times, I tell the Court, “Your honor, I do not have any questions for the witness.” However, I took advantage of the fact that in the video J.R.’s conduct was excellent. So I jumped and asked “was there any problem with J.R.’s behavior that night?” His answer was “no”. I continued as follows. “He selected some items and he paid for them? Yes, he did. And, he was courteous with the store clerk? Yes. He did not leave the store with stolen items? No. So, you do not have any complaints about J.R.? No.” Pass the witness. I also asked him whether the store sells “Zippo Lighter?, and his answer was “no, we

The last witness was the SAPD arson investigator who showed up with a

statement signed by the child and the mother. Because of our Motion To Suppress, we were able to redact incriminating statements from the confession. The final version began by saying. “I’m here in the office of Mr. S., an arson investigator. We voluntarily came to his office.” It closed by saying that they, mother and child, dictated the report, read it, and signed it. During cross examination, the arson investigator admitted that he gave cookies and a Coke to J.R. to gain his confidence. Furthermore, he admitted that J.R. did not go to his office voluntarily; that J.R. did not know that he was an arson investigator or that it was his office. In the report, the investigator claimed that the mother read the report and signed it. However, he admitted that she did not read English. The jury received instructions under Article 38.23 of the Code of Criminal Procedure. A defendant is entitled to the jury determination of his guilt and in J.R.’s case the jury found that the charge was not true. I love to practice in the Juvenile Courts. There are many things that you can do to assist with the cases. In order to help the juvenile, you have to immerse yourself in the particular case. Obviously you have to interview your client, the family, find out everything about the family. For example, is the mother a single parent? And be ready to listen. Remember, that even with the alleged “Machismo”, it is a matriarchal culture. Mothers rule. So, listen to mothers and seek their input. You want to keep the family together, at all costs, AND NEVER FORGET that the juvenile is your client and not the parents.

CAPITAL MURDER AND RECUSAL IN CENTRAL TEXAS George A. Taylor

In 1995, I was retained to represent a man on a capital murder charge in a small county in central Texas. My client was an illegal alien by the name of Gonzalo Garcia. He had killed two men, one of which was his father-in-law. The other was the father-in-law’s brother. I had never been in this county before taking this case. Gonzalo was able to hire me because he had an accident whereby he was “T-BONED” and almost killed. The lawyer representing him had a trust account left for him which had $35,000.00 left in it. As it happened, that was my exact fee. Of course, that left my client with no money for an investigator, so the court appointed me an investigator. His name was Ramon Salinas. That was very good day because Ramon Salinas, who is the uncle of District Judge Laura Salinas, was an excellent investigator and spoke fluent Spanish. He had been on the Waco PD for 17 years and was the first detective on the scene in the famous Lake Waco murder case. Gonzalo spoke no English and my Spanish was too weak then to converse fluently. Ramon Salinas also became one of my best friends and remains so today.

I was hired in September or October. We had a pre-trial discovery hearing around the ﬁrst of the year and the district judge gave me everything I asked for. However, as the weeks went by and turned into months, Ramon began to tell me he was having a hard time getting to see evidence. He would go to DPS headquarters and sit there and wait 2 or 3 hours and then be sent away without seeing anything. The Texas Rangers had investigated the case and for some reason we were being stonewalled.

In the spring of 1996 the judge called on a conference line with the prosecutor and announced our trial date in May (very quickly). I told the judge it was our ﬁrst setting on a capital murder and I was not ready, mainly because the State had not complied with the court’s discovery order. His tone changed completely and he told me we were going to trial. Then he said words he shouldn’t. He said maybe I hadn’t done my work and maybe my client needed to hear about it.

Also during this time period, Ramon reported to me that he was hearing some strange things coming out of the County Courthouse. He was hearing that the judge in our case was talking to the family of the deceased (potential witnesses in our case) without the prosecutor or defense being present and without notifying me. I assured Ramon that could not be happening. I told him this judge had been extremely fair with us, giving me everything I wanted in discovery and giving me a court-appointed investigator after I was retained because there was no money left. I told Ramon to let it go.

I took great offense because at that point I had put in over 200 hours on the case and that was a threat that a district judge should never make. I bit my tongue (very hard to do), but I immediately called Ramon and told him we would be forced to ﬁle a motion to recuse this judge for his prejudicial statement and we needed to look into those rumors from before about the deceased’s family. Ramon went to work, and within a short time he had the goods on the judge. Not only had he been talking to the deceased’s family, his gardener or yard man was

related to the deceased! We ﬁled a motion to recuse and the judge recused himself, but not before attacking me in a nasty letter to the Administrative Judge. He said I had gone after his family and was trying to delay justice and he was not going to be a part of it. I was annoyed! I assured the Administrative Judge that was not the case that I was only trying to get ready on a capital case. I was being kept from getting ready on it by the State. I should insert here that our theory in this case was self-defense, and some of the evidence we wished to see was a knife which was lying under the body of one of the deceased persons. This is the knife my client claimed was being used to try to kill him that night. The Administrative Judge assured me we would get a new fair judge and he was true to his word. Soon he appointed Chuck Campbell, Baylor professor and former Justice on the Court of Criminal Appeals as our trial judge. This, however, was not a happy ending just yet. I was having trouble with Gonzalo. I think he was so scared of what was going on was starting to mess with this mind. Imagine if you were in a foreign country and being tried for capital murder and everything was in a different language you didn’t speak. I began to have trouble communicating with him. He was depressed and thought all was lost. It scared him when he found out the judge knew the family of the people he’d killed. He was in jail on a huge bond. He had tried to ﬂee and the authorities caught him at the bus station in San Antonio heading to Mexico the day after the killings. Things looked bleak, and I had to put him on to establish selfdefense. Another problem - he had killed his wife’s father and uncle, so there were just a couple of problems at home.

Ramon also translated every word to Gonzalo while sitting next to him at counsel table. Winning this case would have been next to impossible without Ramon Salinas. Muchas gracias, mi amigo. I was worried during voir dire about rural people from a small county being voir dired by a San Antonio lawyer. But 2 things helped greatly: 1) Rusty Guyer gave me a big tip before I went up to try that case. He said to go to the biggest church in town on Sunday before you pick the jury on Monday. When they ask about visitors, stand up and wave. He guaranteed almost the whole town would know. Meet the people. Then on Monday during voir dire, instead of that slick shyster from the big city of San Antonio, you’re that nice young man that went to church in our town; 2) when I began to talk about self-defense, those rural people completely understood the concept of protecting one’s self and they began to nod with me when I talked about it. This gave us all conﬁdence and when Gonzalo took the stand his description with his hands and body about these men circling him with knives was totally believable. He explained in Spanish how he shot them once each, one in the head and one in the neck. The jury found him not guilty. After the verdict and everything was over, Judge Campbell said “Well, Mr. Taylor, we know 2 things about your client. He was a good worker and a good shot.” He also called me a pretty good country lawyer. That meant a lot to me, but I know this would not have been possible without my friend Ramon. After the verdict, Gonzalo hugged me and would not let go. He put his arms around my waist and kept saying “Mi vida, mi vida.” That made this ‘ole law thing all worth while.

FACING ALLEGATIONS OF ROBBERY AND UCW Adam Kobs

A few years ago I was appointed to represent a young man whose name I immediately recognized. It was familiar to me since this was my sixth time being his attorney. His name was also well known to the prosecutors. I had represented him on minor cases before; maybe even a low grade felony or two which likely were reduced. He had always received probation. He was now facing allegations of Robbery and UCW. The ADA was not offering him probation. I made an appointment to view the discovery and saw mention of allegations involving punches to the complainant’s face, an injured elbow from the fall, a stolen cell phone, a revolver handgun, a foot chase, a tazer being deployed, a one on one lineup with a positive ID, witness statements, admissions by my client and medical records. Since I would not agree to an incarceration term and did not feel comfortable going open to the Judge, we set the case for trial. I was worried about my guy going away for a long period of time, but we had to take that risk. I was not going to simply lay down. I had too much time invested in this young man and wasn’t going to give up on him now. Although a handgun was subsequently found on my client, it was never used or displayed during the robbery. I was thankful for that. I filed my standard set of motions: witness list, Brady, limine, etc. The state provided me a witness list of 8 cops, 1 complainant and 3 eyewitnesses. I asked the Judge pretrial to Limine out my client’s additional offense of UCW, his gang affiliation, and to prevent the PO from walking around with a file 4 inches thick in front of the jury.

I voir dired the panel on robbery and explained to them it was simply a combination of a misdemeanor assault and a misdemeanor theft. The state presented their witnesses who not only identified my client as the assailant but also as the person who took the cell phone. The complainant identified my client as the one who punched him and demanded his phone. The cops testified they located my client a few blocks from the scene. They said my client ran from them while carrying a gun in his left hand. They tazered him and charged him after a one on one lineup. I tried to focus on a simple theft with the jury. I tried to minimize any ‘bodily injury’ sustained by the complainant despite his testimony he was punched in the face and scraped his elbow when he fell to the concrete. I tried to explain to the jury that the cops were not present at the time of the robbery and were only reciting what they were told. I requested lesser included instructions for the misdemeanors. The jury returned a verdict of not true to robbery, not true to assault but true to a theft of $50-$500. By not being found delinquent of a felony, my client avoided automatically going to TYC (now called TDJJ) and was happy. I was nervous. I was worried about my client. I was afraid I would lose. Those are normal emotions. However, we as trial lawyers need to never be petrified to try a case. Believe in your client. Believe in yourself. Even if you come in second place, often times you win something, a lesser offense, beating the offer or even receiving probation. Remember, you will never hit a homerun without swinging the bat. Keep up the good fight brother and sister defenders!

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