San Antonio Defender

SA N A N TON IO

VOL. XXI ISS. 1 | JANUARY 2019

DEFENDER

IN MEMORIAM:

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Judge Pat Priest 12/27/2018 4:26:32 PM

SACDLA OFFICERS

Don Flanary

Christine Del Prado

Matthew Allen

President

Secretary

Editor-in-Chief, DEFENDER

Loraine Efron

Joseph Esparza

Jennifer Zarka

Vice President

Treasurer

Executive Director

Jeff Mulliner John “Bud” Ritenour Adam Kobs George Taylor Stephanie Stevens Jim Greenfeld Michael S. Raign

John A. Convery Ernest Acevedo, III Ronald P. Guyer Mark Stevens George Scharmen Cynthia Hujar-Orr

Andrew Froelich Ray Fuchs Roland J. Garcia Paul Goeke Juan Carlos Hernandez John Hunter Blakely Mohr Pat Montgomery Angela Moore

Kristen Mulliner Miguel Najera Trisha Morales Padia Joel Perez Shawn Sareen Robin Teague Chad Van Brunt Michael Young

PAST PRESIDENTS Michael McCrum Patricia Jay Warren Wolf Robert Featherston Jorge Aristotelidis Jay Norton Michael Gross

BOARD OF DIRECTORS Matthew Allen Robert Barrera Philip Bozzo Anne Burnham Karen Corby Adam Crawshaw Andrew del Cueto Justin Fischer John Fox

DIRECTORS EMERITUS Charles Butts (Deceased)

Anthony Nicholas (Deceased)

EDITOR-IN-CHIEF, DEFENDER Matthew Allen

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 Matthew@zalawfirm.com.

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DEFENDER SAN ANTONIO

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TRIBUTES TO JUDGE PAT PRIEST 05 - Honorable Sid Harle 06 - Guillermo Lara 06 - Jorge G. Aristotelidis 07 - Patrick Filyk 07 - Richard Langlois 08 - David Weiner 09 - John F. Carroll 10 - Jay Brandon 11 - Paul Venema 12 - Bettina Williams 13 - Mary T. Green 14 - Melissa Barlow Fischer 16 - Bernard “Ben” Buecker

16 - David Chapman 16 - Karen Corby 17 - Demetrio Duarte, Jr. 18 - Joseph Esparza (& Michael Gross) 19 - John Garcia 19 - Anne Gilliland 20 - Anton Hajek 21 - Alex J. Scharff 22 - Ben Sifuentes 23 - James Tocci 24 - Robin Teague 24 - Honorable Bert Richardson 27 - Mark Stevens

ASSOCIATE EDITORS, DEFENDER Cathy Compton Adrian Flores John Fox Roland Garcia Arlene Gay Steven Gilmore

Sean Henricksen John Hunter Thomas Lane Linda Molina Angela Moore RC Pate

Charles Peters Jodi Soyars Robin Teague Chad Van Brunt

The San Antonio Criminal Defense Lawyers Association P.O. Box 831 206, San Antonio, Texas 78283 210.501.2916 | sacdla.com

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TRIBUTES TO JUDGE PAT PRIEST

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Honorable Sid Harle,

Presiding Judge, Fourth Administrative Judicial Region

I

t is a privilege and extreme honor to write about my great friend, mentor and inspiration—Pat Priest. Everyone knows Pat was a great Judge, the best in Bexar County, the State of Texas, and in the United States in my humble opinion. He was fair, impartial, and ethical. He always did what he believed was fair, undeterred by criticism or fear of the media. He was the “go to” judge in Bexar County and surrounding counties for advice and counsel to other Judges, including myself. As I said, I believe he was a great Judge, but he was a better lawyer. Great lawyers make great Judges, those with the background, ethics, and compassion which can only come from representing those desperately in need of help. I had the rare opportunity to work with Pat in his practice of law. He was also the “go to” lawyer for other lawyers to consult and associate with in any area of the law, Federal or State, Civil or Criminal, Trial or Appellate. He loved the law and loved being in the Courtroom, particularly in front of a jury.

I met him in 1981 after responding to his ad on the bulletin board of St. Mary’s School of Law. The notecard was yellowed and withered saying only “Law Offices of Pat Priest—Lawyer—Law Clerk wanted.” Apparently the note had been there for some time, based upon its condition, but it was inviting to me as I had grown weary of keeping track of billable hours as a law clerk for a civil firm. I scheduled an appointment, and arrived early. Pat was a “no show.” I waited a couple of hours, with an extremely apologetic receptionist, and suddenly the door opened and Priest rushes in cursing a blue streak. The receptionist motioned to me, Priest turned and shoved a search warrant affidavit into my hand and yelled “What’s wrong with this?” I was taken aback, first year law student, thinking

it was my first test for hiring, but maybe above my paygrade. I read carefully, perspired, sure there was a glaring error I was missing, and finally said—“I am sorry—I can’t find anything wrong with it.”

He grabs it and exclaims “Ain’t that the s!#*&ts!” there is not a god*%$!+ed thing wrong with it.” He takes me into his office, we talk for an hour—he gets ready to leave, and I ask if I have the job. “Of course you do, you are the only one who applied.”

I inquired about pay; I was making good money at the civil firm, and he said—“I don’t know, what is minimum wage these days.” I took the job and the paycut—best decision I ever made.

I sat, or carried his briefcase, on some very contentious, high profile cases. He taught me how to be a zealous but ethical advocate. He schooled two sets of lawyers and Judges on his reversals of the Donald Gene Franklin capital murder case, in two different venues. It was a horrific case that galvanized the entire community against the Defendant, and his lawyer. (During his campaign for Judge, the other side tried to use his representation as court appointed counsel for Franklin against him, unethically in my opinion, but thankfully unsuccessfully!) In a Federal case in front of the Honorable Williams Sessions he schooled the Washington, D.C. based Civil Rights division of the Department of Justice in a jail hanging case replete with snitches and lies. The jury acquitted his Deputy Sheriff, and DOJ went back to D.C., tail between their legs.

Judge Sessions became one of his biggest fans. The cases were always exciting and he was never flustered in the courtroom. The cases are too many to include here, but I got to meet and associate with many great attorneys due to carrying his briefcase throughout those years. There were all of the law-

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yers at 1515 Tower Life, Nick Rothe, John Hrncir, Gene Masica, Frank Johnson, C.E. Cantrell, Tony Cantu, Don Fidler, Karen Amos, and David Chapman. In addition, those we tried cases with by representing co-defendants, Gerry Goldstein, Van Hilley, Royal Griffin, Charlie Butts, Harry Nass, Mayo Galindo (civil), Doug Tinker, Alan Brown, Alma Lopez, Warren Burnett and Mark Stevens, and others. His personal heroes were Carlos Cadena and Jim Barlow.

When I was approached to be appointed to the 226th by the Republican Governor, I immediately went to Pat’s home to get his counsel. His re-

sponse, “you need to take it, but dammit I wish you would run as a Democrat!” I tried to emulate him in my career as a lawyer and as a Judge, never coming close, but the highest praise I could receive was “that was what Pat Priest would have done.” He was my mentor and friend, as he was to many in the legal community, it was an honor to know him and work with him. He was devoted to his family and he will be greatly missed by them and the entire Bexar County legal community to which he contributed so much. He will always be remembered.

Guillermo Lara

I

went to trial on an aggravated kidnapping case where Judge Pat Priest presided. Matt Allen sat second chair with me and we knew we had an uphill battle. Judge Priest treated us fairly. It was a weird case where the defendant was identified by the complainant but the photo line-up had issues. Moreover, a McDonald’s video depicted what appeared to be our client ordering A McCafé. At the end of evidence, Judge Priest advised

us that he didn’t expect the jury to take too long to return a guilty verdict. In fact, he later told us that he was rarely wrong in predicting outcomes. He was shocked at the outcome but I remember that he was always respectful of our advocacy and allowed us an opportunity to present our case. Our client “Popeye” will never forget the case that had the state offering 20 years to serve.

Jorge G. Aristotelidis

I

appeared before Judge Priest during my first three years as a lawyer, and his last three as an elected judge in San Antonio. Highly respected for his ample knowledge of the law, Judge Priest was as much a legal scholar as he was a gentleman. According to the American Bar Association, a judge with judicial temperament exhibits “compassion, decisiveness, open-mindedness, sensi-

tivity, courtesy, patience, freedom from bias and commitment to equal justice.” Judge Priest embodied the term completely. He had a steady and unassuming composure on or off the bench that at times was itself, oddly enough, almost unsettling.

He was immune to ego, and would stop if encountered anywhere for a brief, friendly chat up until his final days at the courthouse. It is his calm and

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humble demeanor, and his intense, underlying

intellect that I will always remember him for.

Patrick Filyk

I

spent a week with Judge Pat Priest presiding over a felony DWI jury trial. Until the morning we commenced, I was not even aware that Judge Priest would be sitting as a visiting judge, substituting for an elected judge here in Bexar County. I had two pre-trial matters that were of particular concern. First, my client had 4 prior DWI’s and the State wanted to publish all of the convictions to the jury. We offered to stipulate to 2 prior DWI’s. At the time, this area of Texas practice was evolving but Judge Priest’s ruling forecast how it would be settled: The State was allowed to read the indictment referencing the 2 priors but not allowed to introduce them into evidence because of unfair prejudice.

My second pre-trial matter concerned a videotape of the stop and SFST’s. In the audio, the police officer was heard making comments about the Defen-

dant’s performance on the various tests. We asked that the videotape be excluded from evidence under a 403 analysis. After argument that morning, Judge Priest took the matter under advisement.

Later that afternoon, Judge Priest announced that he had viewed the entire hour-long videotape at lunchtime. The State could introduce the video, he ruled, but without the audio component.

Throughout the trial, Judge Priest was hard working and punctual. He followed the law, ruled impartially and had sound judicial temperament. He was all these things but it was his role as evidence gatekeeper that was most insightful. His evidentiary rulings made manifest his sense of “justice” and “fairness”. Judge Priest fulfilled the promise of “due process” and the right to trial “by an impartial jury”.

Richard Langlois

A

lthough Pat was a yellow dog Democrat and I was Republican, we served as Bexar County Chairman for 6 years. We managed to find a common political ground with respect for each other’s differences. Two things come to my mind that are worth sharing: 1. After Pat denied what I thought was a good motion to suppress, he immediately granted my client deferred adjudication, which at the time prevented an appeal on the merits of the suppression issue,

and gave me a big grin, as only Judge Pat Priest could do.

2. I was sitting second chair to a very prominent attorney on a murder case, at the request of a veteran’s counselor. The Defendant was a veteran who claimed to have PTSD. The veteran was having an affair with a Nurse who worked at the VA and induced him to kill her husband. That he did by going to his home, shooting him and reloading and shooting him again. He confessed upon being

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stopped in his vehicle by Det Rusty Brown upon a hunch and without a warrant. However, Pat denied the motion to suppress. During trial, the attorney was laboring through cross-examination of a key witness when suddenly Pat Priest’s coordinator Kathy approached me with a note. Judge

Pat Priest’s note stated that I could ask to crossexamine the witness abandoning a time honored rule that only one attorney could cross-examine a witness. The Defendant was convicted and is serving a life sentence.

David Weiner Pat Priest: Friend and Mentor

T

here are not many people in our lives of whom it can be said that we will always remember where we were and what we were doing when we learned of their passing. For me, one such person was Pat Priest. I was at my kitchen table doing my morning review of Facebook when I saw his daughter Melissa’s post about his death.

To say that I was stunned and saddened does not begin to describe my feelings. I was heartbroken.

Mark Stevens has written a wonderful, comprehensive tribute to Judge Priest’s career as a lawyer and judge [p. 27]. It is a review that focuses, without exaggeration, on the Judge’s leadership, his courage, and his venerable place in the San Antonio legal and judicial community. My recollections are more personal, but I hope they will offer at least a small, further glimpse into who Pat Priest was as a man and a judge.

I met Pat in 1979 when he was still practicing at Quince-Quince in the Tower Life Building and I was doing some work as a law clerk for Nick Rothe (a larger than-life figure himself) just before setting out for a clerkship at the Court of Criminal Appeals. When I returned to San Antonio two years later and set up a shoestring solo practice, Pat, who by then had become Judge Priest, was instru-

mental in providing counsel, encouragement, and opportunities. He appointed me to any number of criminal appeals, which in those days paid a flat rate of $350. Most of these appeals, of course, resulted in affirmances. A few, though—a very few— produced reversals. I mention this not to show that Judge Priest was fallible, but to make the point that he was always prepared to learn from the appellate court’s reasoning. Perhaps the best example of this rare quality in a trial judge came with the decision in Zani v. State, which involved a thorny issue about immunity from prosecution. When, in 1985, the Court of Criminal Appeals issued its opinion reversing the conviction, Judge Priest was genuinely thrilled to learn of an approach to the issue that had not occurred to him (or, quite frankly, to me, either). What mattered to him the most was reaching the right result for the right reason.

Things were quite informal in the Bexar County criminal courts in the 1980’s. One sign of this informal atmosphere was how well-known it was that Judge Priest’s door was always open when he was not on the bench. Lawyers of all experience levels knew they could drop in for wide-ranging legal and political discussions, or, as they are known in technical parlance, bull sessions. It was a lot like Cheers, without the alcohol. But what really stands out about this open-door policy was that lawyers could always have complete confidence that their

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friendship with the Judge never came with even a whiff of favoritism toward them or their clients in his decision-making on the bench. When it came to Pat Priest, favoritism was inconceivable.

Lawyers who tried cases in Judge Priest’s court will recall with affection how he often responded to misplaced objections lodged to evidence or testimony. Rather than immediately saying “overruled,” he would query with “Any other objections, counsel?” It was his way of giving a prosecutor or defense lawyer a chance to think of and to articulate what he, the Judge, knew to be the proper objection. Sometimes, but certainly not always, his prompting had the intended effect. Again, though, what mattered to him the most was reaching the right result for the right reason.

One day in 1990, shortly before leaving San Antonio to work at a firm in Dallas, I was standing on a street corner with the Judge outside the old courthouse. I expressed my concern to him that living in Dallas and having a little more money in my pocket was going to make it difficult for me to maintain my liberal outlook and values. Without hesitation, he assured me that it would not change me. It meant so much to me that he had that kind of faith in me, and I hope that I have earned that faith over the ensuing years.

I will always cherish and be grateful for Judge Priest’s mentoring, his friendship, and his example. I loved this man, and I will always miss him.

John F. Carroll

J

udge Priest was a great Judge to try a case before because he knew and fairly applied the law. He also expected the lawyers to know the law and state it properly when making objections. In many a case, the prosecutor would improperly seek to bolster a witness’ testimony. This can happen in many circumstances, such as asking a police officer whether the complainant’s story remained consistent, or asking whether a SANE nurse had seen similar behavior by child abuse victims in previous cases (the list could go on and on).

Anyway, when you stood up to proudly make your very appropriate objection to this improper testimony stating “Objection, bolstering,” you would be shocked to hear Judge Priest say: “That objection is overruled.”

Judge Priest knew you were on the right track, but he also knew that there is no such objection as

“bolstering” in the Rules of Evidence (on which he wrote an excellent book). Once you figured it out and objected that the testimony was irrelevant, he would smile and sustain “that” objection.

Judge Pat Priest with wife Nancy

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Jay Brandon

I

only knew Judge Priest as a judge. He was already on the district court bench when I came to the District Attorney’s Office in 1987. In 1994, rather than run for reelection, Judge Priest ran for the court of appeals, where he would have been great, but he lost in the Democratic primary.

So like most of you, I imagine, I knew him mostly as a visiting judge. That career lasted longer for him than his time as an elected judge.

It often seemed Judge Priest got assigned the more difficult trials, such as the trials of the San Antonio 4 in the late 90’s, when four women were convicted of sexually assaulting the two nieces of one of the women. Judge Priest got sent the complicated trials because other judges trusted him to get it right. They knew his trials would be efficient and fair. When I walked into a courtroom where Judge Priest was visiting, I immediately felt at ease. You could count on two things from Judge Priest: he would know the law better than probably anyone else in the building, and he would treat everybody well. He took his job seriously but not himself.

From the way he talked, you would never have known he was wearing a black robe.

One time when a well-publicized hearing over whether to hold a trial judge in contempt for not following an order from the court of appeals was going on, Judge Priest said to me, “Becoming a judge is like joining the military. You get to give orders, but you have to learn to take them, too.”

With certain judges, one felt either the prosecution or the defense had an advantage; never with Judge Priest. What I felt was the person with the better evidence and the better grasp of the law had the upper hand.

I appeared before him as both a defense lawyer and a prosecutor. The most interesting hearing was when the San Antonio 4 came before him again on a writ, years after their convictions. One of the sisters who had originally accused the women had recanted. The writ hearing was huge, heavily attended and publicized, with way too many lawyers at the front of the room, because each woman had her own. Rico Valdez and I handled the hearing for the prosecution, but in a way unlike any other hearing I’ve ever seen. The DA’s office had already agreed the women were entitled to, at minimum, a new punishment hearing and probably new trials as well, depending on how the evidence developed.

So our instructions from the administration were to let the defense put on whatever evidence they had.

Sounds easy, doesn’t it? But it was one of the hardest things I’ve ever done, to hear questions like, “And what did the girl say to you then?” and sit there as if I’d never gone to law school. Judge Priest would glance at us curiously from time to time.

The defense got a little cocky, I thought, at their new-found superpower. But at one point Judge Priest stopped the hearing and said, “This Court is not impressed with hearsay evidence, whether objected to or not.” I think it had gotten too hard for him to keep listening to that and say nothing, too.

The hearing went on for two or three days. At the end of it Judge Priest asked both sides to submit proposed findings of fact and conclusions of law.

Then he gave an instruction I’ll never forget: “I’m not going to set a deadline for you to get those to me, but just bear in mind I’m a pretty old guy.”

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He signed the orders and visited for years more.

There is a giant missing presence now where a lot

of people used to turn for wisdom and advice.

Paul Venema

I

n the early 80’s when I was assigned to the courthouse beat at KSAT-12 TV, my knowledge of the criminal justice system was limited to watching LA Law and Boston Legal. I thought that the phrase habeas corpus was a reference to an unpleasant visit to the Texas coast.

Initially, I muddled my way through court coverage by asking questions of lawyers involved in whatever case I was following. But they were focused, rightly so, on their jobs of either prosecuting or defending the defendant.

After a month or so I finally worked up enough nerve to approach District Judge Pat Priest who was presiding over a murder trial to which I’d been assigned. After all, he was “a judge” and was treated with the respect that the title dictates. To my surprise, he graciously answered my questions, which I know must have sounded stupid. But he never hinted that they were as he patiently explained the issues that I didn’t understand. Though his answers were on point insofar as those legal issues, they were never in “legalese.” He would take his answers beyond the issue itself, explaining how the laws were developed and the intent of lawmakers who drafted them. And why they were necessary to protect both the rights of all of us but also the rights of the accused.

A few months into my “beat” assignment I began to see that I wasn’t the only one in the courtroom seeking legal guidance from Judge Priest. I cannot count the times a presiding judge would take a re-

cess while an issue was being heatedly debated by the attorneys involved. When the judge would retire to chambers, I could see from his outer office that he was on the phone. I would later learn that Judge Priest was on the other end of that call. It was common knowledge that calls like that were not unusual; they were the norm. His knowledge of the law was unparalleled, as was his willingness to share that knowledge.

In the years that followed I became more comfortable with the system and with the players. Judge Priest was not only my “go to guy” when it came to legal questions, which always seemed to arise absent a law degree, but he had become a friend.

A friendship that was based on more than just our mutual love for the law. I had the utmost respect for him. And I was flattered by the respect he showed me. As I watched as he presided over a trial, I realized that respect was among the cornerstones of this man’s life, personally and professionally. No matter the offense of the accused or his or her station in life, Judge Priest treated them with respect.

That respect for people coupled with his honesty, patience, humility and knowledge of the law made Judge Pat Priest the judge—indeed the man—that the entire judiciary should aspire to embrace. A role model that goes far beyond “the system.” He taught me life lessons that could only be imparted by a man who lived what he taught.

I miss you, Your Honor.

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Bettina Williams Tribute to The Honorable Judge Pat Priest

A

fter enduring some difficult obstacles in my life, becoming a court reporter was the best decision I ever made, especially after being hired by Judge Pat Priest of the 187th Judicial District Court.

If you look in the dictionary and looked up “Judge Pat Priest,” here is what you would see: Integrity, Intelligence, Unbiased and Compassionate.

Having only worked in Bexar County for a month, I was appointed to work for Judge Priest as an auxiliary court reporter. After only being in his court for a week, I decided to boldly apply for the position as his court reporter after witnessing what an incredible person and Judge he was. Unbeknownst to me, Judge Priest had been inquiring about my accuracy and timeliness in filing my appeals by checking with the 4th Court of Appeals and my past job in Laredo, Texas.

would tell a jury panel that the court reporter is the most important person in the courtroom because we were the Keeper of the Record. He would write down words spoken in trial by expert witnesses or foreign languages screamed out by witnesses without an Interpreter, and hand them to the Court Reporter after trial. You see, there was no Google back then. Judge Pat Priest was Google!

Even after Judge Priest retired, I was blessed to remain his friend and remain hired with the 187th District Court by other great Judges.

I can go on and on about this incredible human being, but I can tell you this. I have only cried for two men in my life: My father, who was also an ex-Marine, and Judge Pat Priest. My world is definitely empty without them.

One evening, after staying late after a trial, Judge Priest asked me to stay and read testimony from my steno notes. He finally said that he had heard enough and said good night. The next day, to my surprise, Judge Priest asked me to be his Official Court Reporter. That was one of the happiest days in my life. Another one of Judge Priest’s character traits was a strong work ethic. Judge Priest always stayed until 5:00 p.m. I had asked him, “Judge, court is over, why not go home early?” He would reply, “Because it’s not 5:00 yet.” I would say, “Judge no one would know that you left before 5:00 or would even care.” His response was always, “But I would.”

Also, whenever we were in court, Judge Priest

Judge Pat Priest with Betinna Williams

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Mary T. Green

udge Priest had an enormous influence on my legal career. As a second year law student, I had no idea what I was going to do with myself upon graduation. That all changed with Judge Priest’s trial advocacy course.

Here was this diminutive Judge, with a twinkle in his eye and stories to be shared. This was the mid80s in the old courthouse. The windows could still be opened and the ceiling fans worked overtime.

There were ashtrays on counsel table and on the bench. They were used by all as we learned the intricacies of evidence and procedure. Most importantly, Judge Priest taught us how to be real lawyers, trial lawyers. After class, we’d retire to the old Travel Lodge for drinks and war stories. I’d found my calling and began a friendship that lasted for more than 30 years.

Judge Priest swore me in on November 10, 1986 and the last time I saw him was at my retirement party in 2017. His presence in my life was exemplified by the fact that his name remained the only constant on my resume through four elected District Attorneys. My first assignment as a new first chair prosecutor was to his 187th District Court in 1992. Could there be anyone more foolish than the newly promoted first chair? Judge Priest did not suffer fools gladly, and this fool had a monumental disagreement with him over his jury charge in a homicide case with self-defense issues. His interpretation of “apparent danger” was the focus of my concern. I lost the case and probably should have.

I learned early on to save and disseminate Judge Priest’s jury charges. They made a generation of prosecutors better lawyers.

ed to highlight judges that lowered bonds on highprofile cases. Million dollar bonds were routinely being set and Judge Priest was routinely lowering them. He received very negative press as a result.

He didn’t change this practice and it probably cost him politically. The Constitution was his guide and he followed its dictates.

All was not mere legal drudgery. During one jury trial, with 12 citizens in the box and a witness on the stand, he managed somehow to tip himself over backwards. The judge’s chairs were tall and cumbersome and Judge Priest was not. In a split second the only thing visible to the participants were two ankles and the soles of his shoes. There was some wriggling involved as the bailiff assisted in righting the chair and the judge simultaneously. The jurors, lawyers and other court personnel struggled mightily to maintain their composure as Judge Priest affixed his reading glasses to the end of his slightly reddened nose and instructed us to “call our next witness.”

Other memories include his masterful eulogy at the funeral of Kim Young, a wonderful lawyer who left us too soon. Judge Priest was a brilliant orator and his numerous tributes were replete with historical references, literary quotes and personal reminiscences. They were a joy to listen to. I feel so privileged to have had Judge Priest as a constant in my legal career. His passing leaves me, and the entire courthouse, diminished. I hope he knew how much we all loved and admired him.

I was in Judge Priest’s court throughout the early 90s when the local press corps, in response to an outbreak of horrendous drive-by shootings, decid-

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Melissa Barlow Fischer

I

first met Judge Priest when he was a criminal defense attorney, and I was in middle school.

I loved to come down to the courthouse and watch whatever was going on in the 186th District Court, which was presided over by my dad, Judge Jim Barlow. I recall watching with awe young prosecutors Nick Rothe, Raymond Angelini, and Sharon MacRae argue cases in the 186th. Little did I know at the time that I would work for Raymond and Sharon years later, when they were Criminal District Court Judges.

One summer day I was tagging along with my dad at work, and he said that we were going to have lunch with Pat Priest. He was very excited about this, and I could tell that my dad thought the world of this man. This would have been in the mid-tolate 1970’s. I had heard him talk about Pat Priest many times before at the dinner table, but I don’t recall having met the man before this lunch. We went to the Esquire, which was one of their favorite dives at the time, specializing in greasy Mexican food and certainly not the upscale restaurant it is now. My expectations were high because of my dad’s enthusiasm, but I must say, Pat Priest was not what I expected. I was perplexed. In my young and feeble mind, I thought that anyone my dad would admire and respect so very much had to be loud and larger than life, like my dad was to me.

But there was Pat Priest, smaller in stature than even I was at the time, soft spoken and intellectual, and I totally didn’t get it. I was so ignorant.

Fast forward about 15 years, to November of 1990, and I had been an Assistant District Attorney all of about 3 months. I was invited to Judge Priest’s 50th birthday party in a room upstairs in the Cadillac Bar. It was quite a show, including a knock-

off Tina Turner song and dance performance by his staff, including Ethel Segura, Gloria Martinez, and Bettina Williams in gold sequin blouses, black mini-skirts, and black high heels, and it was a sight to behold. (According to Bettina, the outfits were purchased at Solo Serve and still had the tags on so they could be returned after the show). It was a total blast, and I started to think that this Judge Priest must be pretty cool.

Judge Pat Priest with the author’s father, Judge James Barlow

About 5 years later, Philip Kazen and I were both Assistant District Attorneys trying an Aggravated Sexual Assault case in front of Judge Priest in Impact Court. By this time I was lucky enough to tag along to lunch with my dad and Judge Priest on numerous occasions, and I had come to appreciate my dad’s enthusiasm for this man, and I now understood the respect and admiration. This was an especially traumatic trial, where the victim was gang raped and beaten so badly her jaw was broken. The victim had tried to commit suicide on the eve of trial. There were two codefendants, and a

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jury found them both guilty. The defense attorneys had chosen to go to Judge Priest for punishment.

As I was giving Judge Priest my closing argument in punishment, I kind of lost it and started crying.

One of the defense attorneys objected, and said that he wanted the record to reflect that the prosecutor was “tearful and crying.” Judge Priest was annoyed and pushed him for a legal objection, to which there was none. At the end of it all, when it was time to pronounce punishment, he sentenced the first defendant to 99 years. Then Judge Priest made a speech about how the second defendant was not as culpable, and did not have an extensive criminal history, and was certainly more deserving of leniency, before stating that for all of these reasons, he was sentencing him to … 98 years.

Finally, I got to know Judge Priest on a more personal level, and not just as my dad’s best friend and a fair and thoughtful jurist, when I was appointed General Administrative Counsel for the Criminal District Courts in 1999. As this position took me out of the courtroom and into the administrative realm of the courts, his institutional knowledge of our system and the history behind why we did things the way we did was invaluable to me. I sought his advice on numerous occasions, and he was always gracious about giving it.

As a visiting judge, his work ethic was unparalleled. During my 20 years in this position, Judge Priest would routinely swing by my staff attorney’s offices and pick up a Writ to work on, just to keep busy in case he ran out of cases to hear wherever he was assigned. No other visiting judge ever did this. He would eat lunch in our break room, often with the court interpreters and other court support staff. He would sit in my office and chat about issues ranging from the political climate at the time, to the latest trip he and Nancy (his wife) were planning to take. He loved to talk about his

family, and he was extremely proud of his children.

When my father passed away in the middle of the night in May of 2010, Judge Priest was the first person I called the next morning. He was working, of course, and I did not want him to hear it from anyone else. He spoke beautifully at my dad’s memorial service, and he wrote a tribute to my dad for the San Antonio Defender magazine’s edition that was dedicated to my dad, a copy of which I keep on my desk to this day. When Mark Stevens asked me to write an article about Judge Priest, I told him that to me and my family, that memorial edition was one of the most meaningful tributes to my dad, and I let him know how much we appreciated it. I trust that Judge Priest’s family will enjoy hearing about him from the people who worked with him every day, and I hope they will feel the same way. Not only was he respected and admired, he was truly loved, and will be sorely missed.

Judge Pat Priest with Judge James Barlow and a colleague

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Bernard “Ben” Buecker

S

hortly after I moved here from Heidelberg, in 1982, I tried my first criminal jury trial in his court. I lost the case but won a friend until the

end. I often remarked to him and got a chuckle, “I’m glad you’re a Priest and a Judge, you can save me in this world and the next!”

David Chapman

W

isdom is the rarest of gifts. Always a debtor to graciousness, it is guided by intelligence, creativity, and an awareness of the world—both in its wide expanse and close at hand. It understands the difference between information and knowledge. It proceeds in part from the hard work necessary to learn one’s craft and the diligence to add to that craftsmanship throughout one’s life. It is decisive without rancor. It refuses to indulge the notion that there are two ways to look at things, my way and the wrong way. It is not just the belief, but the knowledge, that the necessity of treating of people equally is a product of everyday action. It cannot exist without modesty and humility and the ability to laugh at oneself, without which one has no right to laugh at all. The last step to wisdom is perspective,

a word and a concept harder and harder to find and define the longer you look for it, especially in today’s world. At the very least, it is looking for, finding, and looking at all points of view and treating each of them with an open mind. You are lucky if you have known even a small number of such people. And we were: wisdom found its essence in Pat Priest. There is one last thing about wisdom.

John Steinbeck once wrote, “Dignity is elusive. If a man wants it, he can’t have it. If he has it, he has never heard of it.” The same is true of wisdom. If you told Pat what a wise person he was, I’m sure he’d say he was just doing his job and sharing what he’d learned with others. And he did just that, over and over. Which brings me back to the beginning.

That rare gift of wisdom was not just what was given to Pat. It was even more what he gave to us.

Karen Corby

W

hen I was a young lawyer trying an Aggravated Assault WDW case, I was trying to impeach the state’s witness with a prior inconsistent statement. I was having a hard time getting the prior statement in. Judge Priest wrote and passed me notes on tiny yellow sticky notes informing me what rules applied and how to

possibly get the statement in. I was so appreciative and moved by his kind and thoughtful guidance I actually saved the sticky notes. I also got yelled at by him in trial and I wore it as a badge of honor.

Nothing like having a heated zealous battle in trial and getting yelled at by one of the best! He made me feel like a real warrior. I will miss him.

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Karen Corby’s sticky notes

J

Demetrio Duarte, Jr.

ust a short note about a man with a long history of courage, intelligence, compassion and fairness.

of motions that people like Charlie Butts, Roy Barrera, Gerry Goldstein and others argued in our court.

In 1986, I was assigned to the 187th District Court where Hon. Pat Priest presided. As the second chair, I was able to try all kinds of cases since the ROP unit, Family Violence unit and other specialty divisions had not removed many cases from the general docket. As I covered dockets, handled pleas, tried cases and learned as much as possible about our criminal justice system, I was exposed to brilliance. Judge Priest and Judge Jim Barlow were great friends and true scholars of law. I could sit in an office and listen to the intricacies of law when we were on breaks. I could watch Judge Priest discuss fine points of law with Judge Barlow. I could watch Judge Priest make incredible findings of fact and conclusions of law concerning many types

But aside from the true genius in understanding the law, I was blessed to witness reasonable, rational and respectful approaches to facts, witnesses, victims and the community at large. Courtesy was key. Honesty and integrity were incorporated in all that was done in Judge Priest’s court. Victims, witnesses and defendants were treated in a manner that exemplified justice. Each person received what they were due in a positive atmosphere that made everyone proud of participating in the process of seeking impartial justice.

However, while the atmosphere in the courtroom was proper, I was so impressed by Judge Priest’s charm, wit, humor and constant regard for his own

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family. A fabulous approach to life, Judge Priest was always learning. He quoted Royal Griffin when Judge Priest started to learn about computers and technology: “a man who does not master the technology of his own time is a neanderthal.” I believe that was the beginning of Judge Priest embarking on writing a marvelous book on search and seizure which I later used as a reference for Judge Marty Tanner to exclude illegally obtained

evidence in a criminal case. If Judge Priest said this is what the law meant, then that was right.

With decades of service, with decades of charity, with decades of love, Judge Pat Priest left a footprint in our legal community and in Texas history.

He will be sorely missed, admired for decades to come and remembered by those who knew him as a great jurist, man and friend.

Joseph Esparza (& Michael Gross) “Judge Priest was always one for a fair trial”

I

remember one time that stands out. Mike and I tried a hotly contested sexual assault of a child case in impact court in the basement of the old courthouse and Judge Priest was the trial judge.

The trial itself was smoothly run and the rulings were impartial (and I say this as both a defense attorney and a former felony prosecutor). The case went well for the defense and we damaged the alleged victim’s credibility after catching her in numerous lies during trial. We did the same for her mother who was the outcry witness. Our client was not especially likeable, but he was innocent as far as we could tell and we took issue with the State’s case. When the court closed for jury deliberations, the jury was led to the jury room across the hall to begin deliberations. The doorway to this room opened into the main hallway in the basement. Courtroom traffic crossed the hallway area sporadically. It was late in the day and there were few people around.

The courtroom was relaxing and Judge Priest began to handle other business while the trial lawyers waited on a verdict. I wanted a drink and began to walk out to the vending machines in the

hallway and I saw the complainant and her mother outside the jury room door in the hallway and they were crying loudly and hugging each other, with the mother telling the complainant in a loud voice, “Don’t worry, baby, the jury will do the right thing,” and the complainant was crying about what an “evil man” our client was. I immediately turned in the doorway in the courtroom and interrupted the Judge who was about to handle a plea or sign some paperwork he’d been handed by the clerk. I told Judge Priest what was happening in the hallway. Judge Priest immediately ordered a bailiff or someone from the DA’s office to “Get those people away from the jury room right now!” It was one of the few occasions I’d ever seen him yell or appear cross in any way. A DA victim’s advocate was closest and she raced to intercept the complainant and her mother and, to her credit, she moved them away quickly over their protests. They didn’t want to move from where they were.

Mike and I turned to the court and the Judge thanked us for bringing it to his attention, but told us that he considered the matter resolved. We didn’t object, although we could have. The second chair for the State at trial remarked out loud that he didn’t see what the big deal was and that he

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didn’t see why we were so concerned about where the complainant went. “It’s a public building,” he said, or words to that effect. Before we could argue with him, Judge Priest spoke up and addressed the prosecutor directly, telling him (and the courtroom) that, “It’s a big deal because it’s an attempt to improperly influence a jury in closed deliberations!” And that if there was a problem with this jury, he expected Mike and me to file a Motion for New Trial timely for his consideration and action.

The prosecutor just shut up and nodded, it was like being scolded by your Dad when you knew you were in the wrong. Mike and I agreed and assured the Judge we would so file if needed. The 45 minute “Not Guilty” came back and the issue

became moot.

We recalled this story and what struck us was that this was Judge Priest in a nutshell. He knew the law, knew criminal procedure, and he always demanded a fair trial. In all our years practicing in Bexar County, neither Mike nor I ever saw him take a side in a trial. He wanted the process to be fair and he made sure it always was. We appreciated that. We wish all Judges did that. He was a good man and a great judge and we will miss him.

Appearing before him in court and in trial was always a pleasure because you knew that you had a fair judge.

John Garcia

H

e was a very knowledgeable and reliable judge and was extremely fair. He was not shy about making a finding of Facts and

Law because he knew them both.

Anne Gilliland Just Another Lawyer

T

here are surely those who knew Judge Priest better and for much longer. After all, I was just another lawyer in his court.

That he was kind, gracious and a gentleman, both on and off the bench was common knowledge around the Bexar County courthouse. But, he did not suffer fools or disrespect. He did not hesitate to hold in contempt a recalcitrant defendant who wore a “Same shit, different day” T-shirt to sentencing. He relented the next day, called the

defendant back to court and placed him on probation, in accordance with the original sentence.

Judge Priest was unfailingly knowledgeable but never pompous. ”The witness can refresh his memory from the phone book,” is just one lesson I learned, in response to an objection I never made again. He dictated his Findings of Fact and Ruling of Law at the conclusion of hearings, instead of waiting days or even weeks.

He spoke fluent Spanish, to the amazement of a defendant who brazenly cursed in his native lan-

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guage after the judge imposed sentence. Judge Priest immediately responded, and corrected the taunt in perfect Spanish. He could and would correct an interpreter if the translation was incorrect; “that is not what the witness said.”

He had a wickedly quick sense of humor and shared it with those he was comfortable. He gave at least one prosecutor in his court a nickname; one that has remained to this day. When a witness identified the Judge’s son, who was sitting in the back of the courtroom at the time, as the robber during a Motion to Suppress Identification, Judge

Priest responded with, “He does have shifty eyes!”

During the retrial of a Sexual Assault of a Child case, he wrote a three page poem about the proceedings, in ink, in verse, and using a calligraphic pen, while still responding to objections timely and correctly.

He was the Dean of the Old Guard of Judges, the likes of Barlow, Curry, Chavarria, and Burris. All of them bigger than life in the stories we will tell to the lawyers who will never have had the honor and privilege to have known them. But, I was just another lawyer in his court.

Anton Hajek

T

o say that Judge Pat Priest was a gentleman, a scholar, and a paradigm is simple gross understatement. I had the joy of being one of his prosecutors for two years. It was nothing to be trying a case and to see law books piling up on the bench as he anticipated legal issues. We tried the only riot case I know of in Bexar County. He spent 14 hours on the jury charge having come in at 3am on a Saturday morning. During argument, as he kept time on defense counsel who argued how long do you think it takes to get out of ... and Judge Priest muttered the time left, “10 minutes.”

We all laughed.

We were the munchkin court as none of us were over 5’5”. Once I announced I had a short witness to end the day: Jim Schoffield.

He told us prosecutors to never announce “ready” if we weren’t. I announced ready once and then dismissed 10 minutes later. When questioned

by Judge Priest I told him I was ready to dismiss. He muttered again. We worked hard and

laughed hard.

The clerks showed me two drawers of old files past ADA’s had never dismissed. I found the phone system was tied to DA dictation and proceeded to dismiss 150 felonies. This was during the reign of Judge Roy Barrera and boy was he upset at our statistics!

When not looking up the law, Judge Priest liked to draw. In later years, I used to drop off colored pencils to further his work.

If there is anyone I’d like to be in front of again it would be Pat Priest!

Judge Priest swearing in his daughter Melissa

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Alex J. Scharff

A

s a baby lawyer in the early 1990’s, I was intimidated when I walked in the 187th to appear in front of Judge Priest. I learned that he knew the law, followed it to the letter, and ruled accordingly. So, over the last twenty-seven years, I have had several jury trials in front of Judge Priest and would like to share a few short stories of his intelligence, sense of humor, and brave rulings to pay tribute to one of the greatest trial judges I have ever had the honor of knowing and appearing before.

Alan Brown and I were representing a pharmacist who was accused of defrauding Medicaid of millions of dollars. It was a high profile case. In that trial, Judge Priest struck the entire testimony of a doctor because he was neither the custodian of records, nor did he have any personal knowledge of his patients, whose Medicaid identification information was illegally used to defraud. This was the correct legal ruling that caused the State to scramble to find someone who could bring in the doctor’s records. Despite the overwhelming evidence of our client’s guilt, Judge Priest was impartial and ruled according to the law. During the punishment phase, I had packed the courtroom full of the client’s friends and submitted about fifty letters of support. Before I was allowed to start presenting evidence, Judge Priest asked, in a very loud voice, “Does anybody here have $2.2 million dollars?” to which you could hear a pin drop! Then when the client starting rambling during his allocution, Judge Priest asked him, “Are you performing because the TV cameras are here?” I could hardly contain my reaction and then Judge Priest sentenced him to serve 20 years imprisonment.

Motion to Limine to keep out my client’s criminal record. After the jury was selected, the first witness was asked by the State, “When did you meet the Defendant?” to which the witness/victim responded, “Right after he got out of prison.” My objection was sustained, the jury was instructed to disregard, but to my surprise Judge Priest then granted my request for a mistrial. He told the witness in a very stern voice, “You wasted all the time we spent picking the jury and now we are going to have to start all over.” Luckily, the State recommended Probation, and the Judge followed it.

Judge Priest could also be very kind and complimentary. I was selecting a jury for a DWI 1st case and to my surprise, Judge Priest was brought in to preside over the case. During this part of the case, Judge Priest had denied one of my challenges for cause, so before the jury was seated, I objected that the State had been given an extra peremptory strike, that I wanted an extra one (Denied!) and that if I had one I would have stricken a certain seated juror. I was taken by surprise when he smiled and chuckled so I asked him about it and he told me, “I like to see when lawyers know how to preserve error.” Naturally, I took it as a complement. While I am saddened by his death, I will never forget the impact he had on me personally and professionally. Whenever I appeared before him, I knew I had to be “at the top of my game,” because that is what he expected. Judge Priest made me a better lawyer

In another jury trial, Judge Priest had granted my

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Ben Sifuentes

O

ne might never think a tribute to Judge Wayne Patrick Priest would ever discuss his words to “Stinky Arms” after convic1 tion. One might well expect a tribute to exhaust all the superlatives to describe Judge Priest’s legal scholarship, ethics, and love of advocacy. In many cases before his court, one would often hear, “Let’s just have the Judge decide. He has broad shoulders and can handle the political winds from all sides.”

All those statements are true; however, some never had the chance to see his heart, his soul, his champion spirit for the little guy.

The champion spirit often concerned the falsely accused, or the accused without economic legal resources. The champion spirit was on full display throughout the trial of Stinky Arms, but not as one might have expected.

Some might wonder why a habitual petty thief needed to be tried in felony court. Judge Priest did not question why.

Stinky Arms’ victim, a deaf mute, had never asked for welfare throughout his life. He went to the Texas State School for the Deaf, learned to write and communicate with sign language, found employment attending a car wash. Judge Priest quickly understood that if the allegations in the indictment were true, the complainant needed his day in court to the same degree as Stinky Arms.

The trial was difficult for all present: jurors, prose1 Credit to Bettina Williams for this moniker: The defendant, a habitual thief and habitual felon was indicted for stealing a few dollars of quarters from an aging deaf mute in a strong arm robbery. Stinky Arms self inflicted injuries to his arm in hope of obtaining pain medication in the jail.

cutors, defense lawyers, court reporter, court staff, and judge. Judge Priest became acutely aware of the difficulty for the Sign Language interpreter.

Unbeknownst to the trial participants, American Sign Language interpreters have difficulty with the crazy way lawyers ask questions. Those present became impatient and irritable as the interpreter advised she needed her periodic breaks far more often than those in the courtroom. The trial was drawing longer than expected.

The judge entertained an explanation of the difficulties in translating to assure that Stinky Arms got his fair trial. As the interpreter explained American Sign Language to Judge Priest, he quickly realized that not only Stinky Arms deserved a fair trial, but so did the complainant.

The Judge had the interpreter educate the trial lawyers on both sides that questions had to be asked in logical chronological order because the use of past tense out of sequence creates great confusion for the hearing impaired, especially if one jumps forward and then backward in time, again and again.

Having pressed through the hurdles of late evenings, and difficulties in translating, Judge Priest received the jury’s verdict of guilty.

As a side note, prior to the trial, some casual observers in the courthouse opined that Judge Priest would think a trial of a habitual petty thief would be a waste of time. After Judge Priest read the jury’s verdict, such notion was quickly dispelled. The Judge left the bench to await the fingerprint expert’s testimony.

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Stinky Arms, refusing to accept his fate, did not wish to submit to fingerprinting so the State could prove he was a habitual thief and a habitual felon.

The bailiffs attempted to coax him into cooperation without success. The bailiffs went to tell the Judge.

the ground to steal a few dollars worth of quarters. Later, Judge Priest returned to state on the record he authorized the use of force. Stinky Arms relented and put up no fuss, was identified, and sentenced to 25 years for stealing less than three dollars worth of quarters.

The Judge quickly, deliberately returned to the bench. Before relating what Judge Priest said, one must remember the biblical passage: “The King will reply, ‘Truly I tell you, whatever you did for one of the least of these brothers and sisters of mine, you did for me.’” Matthew 25:40.

The following day, Judge Priest signed an order permitting a photograph of the stolen quarters to be substituted as an exhibit so the quarters could be returned to Stinky Arms’ victim. The reader would not place much value on those quarters, but Judge Priest knew the complainant worked hard to earn those quarters, without complaint, without a cry for sympathy. To the complainant, those quarters were precious.

While Judge Priest was never one to mix religion and law, the words that followed were the epitome of that passage, though one might well find it unthinkable given his word choice. Judge Priest bellowed, “I am instructing you to break his *** **** arms if you have to. You will get his finger prints!”

And Judge Priest quickly left the bench.

Stinky Arms rued the day he pushed his victim to

Some might think this story heresy about an honorable man. Those in the courtroom saw this as a testament to Judge Priest’s compassion, humanity, and champion spirit for the least of his brothers and sisters.

James Tocci

I

tried many cases before Judge Priest as a baby juvenile prosecutor. I always enjoyed being in front of him as he was always disarming and straightforward. I quickly realized two things about the man: He was extraordinarily knowledgeable and even more approachable than he was smart. Judge Priest became my “go-to” for years as both a DA and in private practice. I always was genuinely happy to see him on the bench and always knew whatever side of the aisle you were on he treated you with dignity and professionalism, I imagine even when he didn’t feel it was warranted.

Late in his life he always mentioned my daughters

and how they were growing into beautiful girls, like their mom he would add, and I agreed. I enjoyed engaging him in any kind of dialogue and he always made me smarter about life, I felt. He was a great contribution to our profession, and to humanity. He’ll be missed by Hee-Kyu and I.

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Robin Teague

Y

ears ago, I was called for jury duty, then assigned to the court over which Pat Priest presided as an elected state District Judge.

Judge Priest was presiding over a murder trial.

During voir dire, I sat right in the middle of the other prospective jurors. Or the venire, as you might call it.

During the general voir dire questioning, one of the lawyers asked whether any of us had a relationship with any police officer or prosecutor. I raised my hand. The lawyer asked about my relationship. I replied that Commissioner’s Court had retained me to represent our current colleague Tony Jimenez, who then was a judge of a County Court at Law. Judge Jimenez had been sued for defamation, and for reasons I long ago forgot, I was selected to represent him. A police officer by the name of Michael Heim sued Judge Jimenez because of some state-

ments which Judge Jimenez made on the record in granting a motion to suppress. Some of you who have been around for a while might remember the officer.

I watched Judge Priest out of the corner of my eye, then had full eye contact with him. He smiled. The lawyers approached the bench. I was excused for cause. Darn. I still have never served on a jury.

I did not know Judge Priest, or try a case before him, or take his course at St. Mary’s University School of Law. But I had heard lots about him. And know he had a reputation to be a gentleman, and a fair judge. I have thought about my experience before him off and on for years, certainly every time his name came up. I would have liked to have tried a case before him, or been a juror in a juicy case over which he presided. My loss.

Honorable Bert Richardson

Judge, Texas Court of Criminal Appeals

E

arly in my legal career, and long before the era of judicial sweeps bringing in waves of new judges every two years, I was fortunate to practice in front of legal legends who had extraordinary legal and judicial careers. One of those judges was the Honorable Pat Priest. Over a 25 year period, Judge Priest was a friend, mentor, example, teacher, and role model to me. As a young ADA, I learned how to try the most complex of all criminal cases before him. I gained a greater appreciation of being candid and honest with the court and with the defense lawyers. Judge Priest taught me that the business of being a prosecu-

tor was not just a game, or one of numbers, but that felony offenses were serious and had life-long consequences to victims and defendants. Getting it right in his court was not just an option, it was required. Many times young prosecutors make the mistake of thinking the trial judge they are assigned to is part of their team, mostly because of the day to day interactions with the judge and the court staff. Although Judge Priest had a wonderful staff (that included Bettina Williams, a Whoopi Goldberg look-alike and nationally known comedienne), and the work in his court was entertaining at times, there was never any doubt that Judge

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Priest was in charge, and he was not a member of the defense or the prosecution. Judge Priest was a fair, impartial, independent, and brilliant member of the judiciary. He required prosecutors to be totally prepared. He played no favorites in the courtroom. He was always polite, professional, and considerate to all parties. Understanding the Rules of Evidence in front of Judge Priest was mandatory.

Practicing in his court made me a better lawyer in every way.

The first person in my family to meet Judge Priest was my late sister, Carla. Carla’s first job out of nursing school was at the University Medical Center with a nurse named Genene Jones, one of San Antonio’s most prolific serial killers. In my first year of law school, Carla mentioned to me that she had to testify in court in front of a Judge Pat Priest.

The case was about some “work related thing” involving babies mysteriously dying. I placed little significance on that conversation, as I was drowning in law books and had never heard of Judge Priest. When I became an ADA I always tried to fit in time to watch other trials. My favorite court in which to observe was Judge Priest’s court. In 1989 he presided over one of the most talked about cases in town involving a high school teacher accused of an inappropriate relationship with one of her students who subsequently committed suicide. Judge Priest was literally the Ringmaster of the biggest circus in town. Some of the high school witnesses came from prominent families in San Antonio. At one point, it became obvious that one of the parents was signaling to their child how to answer a question. Judge Priest quickly put a stop to that. His ability to control the flow of a trial was masterful. The defendant was ultimately acquitted, and the lawyers involved gained city-wide notoriety. Judge Priest humbly went back to doing what he did so well—judging.

Years later, I was lucky enough to get assigned to work in his Court. When we become judges, we must take an oath to “faithfully ... preserve, protect, and defend the Constitution and laws of the United States and of this State.” Those words had meaning to Judge Priest. Another judge once said to me, “you can’t do something because you want to please the electorate and ignore the rules of your job. That is why what we do is so hard. The right thing often can sound wrong to non-lawyers.” In his court, I learned how a judge should act under intense pressure to deviate from the oath we take when we become judges. Judge Priest always did the right thing. When publicly criticized by both the media and a political opponent for setting bonds that followed the law, he never wavered from following that oath. It is a lesson that has served me well my entire career as a judge.

During the time I was assigned to his Court I found out that Judge Priest was known for doodling during trials. His “artwork” usually had something to do with the case that was being tried at the time.

In the middle of one trial, I had a “My Cousin Vinnie” moment when I discovered that my star eyewitness, a 75+ year old woman, was practically blind. Under intense cross-examination, the bald defense lawyer seized the moment and asked this witness, of the three lawyers trying the case—him, my trial partner, and me—which of us had the least amount of hair. (At the time I had a very full head of dark hair.) She kind of squinted her eyes, slowly raised her finger and pointed at me and said, “that black lady right there has the least amount of hair.“ Of note, none of us were black or female. Judge Priest stopped doodling, peered over his reading glasses, and stated very clearly, “let the record reflect the witness just pointed to Mr. Richardson with a very full head of dark hair.” Judge Priest had a clever sense of humor. Although we contemplated dismissing the charges, we knew the de-

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fendant was guilty. We pressed on in the case, and the defendant was indeed found guilty, but that was an embarrassing moment and quite a learning experience! I later asked Judge Priest what he was doodling during that trial. With his quick wit he replied, “drawing two prosecutors pushing cow dung up a hill!” To this day I regret not asking him for that drawing.

Later in my career while he was a visiting judge, I had the privilege of trying many complex cases in front of Judge Priest, who was selected for those cases because of his knowledge and experience.

Then when I became a judge in 1999, it was clear that Judge Priest was the go-to judge to help resolve complex issues that would occasionally arise during trials. The question, “did you ask Priest, he’ll

know what to do” was the most common response when I would ask other judges for advice. Judge Priest was respected by all as a visiting judge. He was especially beloved by the members of District Court Administration. One of his closest friends was Judge James Barlow—the two legends were inseparable. In his later years, I was mindful of Judge Priest’s health related issues, but something about his aura made one think he would be around forever. But, like his good friend, Judge Barlow, that was not to be. I was lucky enough to be around Judge Priest throughout my legal career. Because of that, I became a better trial lawyer, a better judge, and most importantly, a better person. I am grateful and blessed to have called him a friend for so many years.

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Mark Stevens Pat Priest: A Profile in Judicial Courage

B.

A.

To be sure, intelligence and legal knowledge are valuable qualities, but, as we all know from experience, these alone do not make a great judge.

A judge who is biased, or lazy, or mean—or all of those—is a menace, and brains make such a judge worse, not better. Besides being learned in the law, Judge Priest was revered for his fairness by both the prosecution and the defense, never favoring one side over the other. He had a strong work ethic and always gave the public its money’s worth, arriving early and staying all day, Monday through Friday. He had a sense of humor. He was patient and respectful to every litigant and lawyer who appeared before him. He listened to arguments and ruled thoughtfully, he did not put time limits on voir dire, he did not punish people or lawyers for going to trial, and he did not bust plea bargains. He would not rule in your favor every time, of course, but you always knew his rulings were honest, and if you got an adverse ruling he would never try to trick you into waiver on appeal.

T

Just call Priest.

he following scenario played out hundreds of times in the Bexar County Courthouse over the last four decades: Some thorny issue of substance or procedure would arise during a trial or hearing, and the judge would call a brief recess to solve the problem. The judge would retire to chambers and close the door, but no books would be consulted, no computers queried. Instead, the judge would get on the phone with Judge Pat Priest, who would answer most questions off the top of his head, completely and accurately.

Armed with this newly acquired knowledge, the sitting judge would return to the bench, confident and ready to rule. Sometimes the judge would freely acknowledge the assist received, sometimes not. Regardless, experienced lawyers knew exactly what had happened, and whether or not counsel benefitted from the ruling given, they at least knew the ruling they got was sound, since it had come from a scholar. And Pat Priest was a legal scholar. He graduated from St. Mary’s law school magna cum laude in 1969 even though he had worked full time to help support his family.

Board certification in criminal law was initially offered to Texas lawyers in 1975, and Priest was certified in the inaugural group. He was an adjunct professor of law at St. Mary’s, teaching Criminal Law and Procedure, and Trial Advocacy. In 1998 he authored, and thereafter regularly updated, a respected legal treatise—Texas Courtroom Criminal Evidence. Over the years he taught thousands of lawyers and judges at seminars, in the courtroom— and over the telephone.

Judge Priest let lawyers be lawyers.

Pat Priest1 was elected to the 187th Judicial District Court of Bexar County in 1980 and he served there until retiring in 1994. In 1995, he became a Visiting Judge and later a Senior Judge, and he presided regularly in civil, criminal, and juvenile courts all over the State of Texas until 2018. He died in San Antonio on October 12, 2018 at the age of 77.

Lawyers will miss Judge Priest for his erudition, and for the way he ran his courtroom. But more than anything we will miss his judicial courage.

1 Official records list his name as “Wayne Patrick Priest,” but I never heard him called either Wayne or Patrick.

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C.

Pat Priest was first a brave defense lawyer, then a brave judge.

After law school, Priest hung out his shingle as a criminal defense lawyer. Eventually he would office at “quince-quince”2 with a formidable cast of lawyers—including Nick Rothe, John Hrncir, Antonio Cantu, David Chapman, C.E. Cantrell, and Sid Harle. He was a proud charter member and director of the Texas Criminal Defense Lawyers Association. In his 12 years as a solo practitioner, Pat Priest earned recognition as one of the best defenders in South Texas.3

1. It’s not easy doing what we do.

Perhaps his most notorious client was Donald Gene Franklin, charged with capital murder in 1975. The crime alleged against Franklin was particularly brutal, and that alone was enough to attract the attention of almost everyone in San Antonio. What really seemed to incense the public, though, was that Franklin’s first two trials were nullified for legal errors, and, for many people, the inability of the courts to speedily convict and execute this man was proof that the legal system was broken, and that lawyers—especially criminal defense lawyers—were the root of all evil.4 Lawyer 2 These great lawyers shared offices for years in suite 1515 of the Tower Life Building, hence the name.

3 Between October 2015, and December 2017, Judge Priest contributed a number of articles to Voice For The Defense that briefly and humorously chronicled some of his more interesting cases as a defense lawyer. These are archived on TCDLA’s website.

4 Franklin v. State, 606 S.W.2d 818, 850 (Tex. Crim. App. 1978) (prosecutors improperly used Franklin’s pretrial silence and the exercise of his Fifth Amendment privilege).

Franklin was re-tried, and again he was convicted and sentenced to death, but the trial court granted a motion for new trial because of jury charge error. He was convicted and sentenced to death a third time in 1982, after Priest had been elected judge, and this conviction was affirmed

Priest took a lot of heat for representing Franklin, mostly from non-lawyers, unschooled in the Sixth Amendment, but also from a few people who should have known better.

When he ran for the 187th in 1980, those running the campaign of the incumbent judge disgracefully attacked Priest in a large newspaper ad run just days before general election. He was identified as the lawyer who “Defended Donald Gene Franklin, convicted killer of nurse ... Twice.”5 The same ad criticized him for having no prosecutorial experience, and claimed that “over 65% of [his campaign contributions were] personally generated by four criminal defense lawyers.”

Fortunately for those interested in justice in Bexar County, neither this despicable dirty trick, nor the power of incumbency, fooled the voters, and the right man was elected. Pat Priest proved he was a brave man by his long and successful representation of Donald Gene Franklin, in the face of lynch-mob hostility in San Antonio. And although he would spend the rest of his career on the bench, he continued to show extraordinary courage there as well.

2. This Judge, unlike some, was not cowed by the sensationalistic media.

In 1989, a San Antonio police officer was killed when he confronted two brothers burglarizing a hamburger joint on San Antonio’s north side. The brothers were charged with capital murder, and soon after their arrest, a particularly aggressive reporter for a local television station wrangled an incriminating interview with one of them, thanks, in large part, to some indispensable assistance from on appeal. Franklin v. State, 693 S.W.2d 420, 422 (Tex. Crim.

App. 1985), cert. denied, 475 U.S. 1031 (1986).

5 I have omitted the nurse’s name from this article. The newspaper ad for the incumbent judge did not.

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a high-ranking deputy in the sheriff’s office. In a moment of unity seldom seen in a capital case, both the defense and the prosecution agreed that they all needed to see the reporter’s notes relating to this event, to determine the level of involvement by the sheriff’s office. The television station brought in a team of civil litigators to argue that the notes were privileged, but they failed to persuade Judge Priest, who ordered disclosure. The reporter refused to comply with the order, defiantly promising that “they can have my notes when they pry them from my cold gnarled dead fingers.” While our law does not empower judges to pry notes from reporters’ fingers—cold, dead, gnarled, or otherwise—it does provide a remedy for the non-compliant that has proven remarkably effective over the years.

Judge Priest found the reporter in civil contempt and ordered him to jail for six months. After the contempt hearing, the reporter’s lead attorney made this statement: “The judge is clearly wrong in this case. Because this is a very controversial case, the judge reacted in a way that goes against the First Amendment.” One could only wonder what sort of “controversial” cases big firm, civil lawyers manage to squeeze into careers that otherwise focus on protecting the pocketbooks of the rich and famous. However controversial this lawyer’s caseload might have been, it was laughable to hear him suggest that Pat Priest, who had spent the last 21 years of his career making life and death decisions in any number of the most serious of criminal cases imaginable, ruled the way he did because this was a “very controversial case.”6 6 For what it is worth, I am certain that the courtroom work the reporter’s lawyers did was done well and honorably, and that if they billed at the rate that lawyers of their stature do, they made a lot of money and earned every penny. I still insist, though, that their out-of-court suggestion that Judge Priest buckled under pressure is patently absurd. And their further claim that Judge Priest was “clearly wrong,” was in fact, itself, clearly wrong.

The reporter filed a petition for writ of habeas corpus

Not surprisingly, the media rallied strong in support of their martyred colleague; not surprisingly, they used the power of their pens to bash the Judge. A press conference was held on the steps of the jail, and in attendance were the main news anchors from all four of San Antonio’s major television stations, joined by executives from both local newspapers, and representatives of various professional journalism organizations.

As the fair and friendly newspaper reported the next day, “[s]peakers chastised Priest for infringing on First Amendment protections and called for [the reporter’s] release.”7 Newspapers all over the country, including the New York Times and the Washington Post, covered the story, as did ABC’s Nightline program, and the tenor of all this coverage was the same: A San Antonio jurist had illegally imprisoned a heroic reporter for doing his constitutional duty to get the news to the public. And it was surely not lost on many of the consumers of this news that this injustice was being done to help a couple of cop killers.

Despite this intense media-driven pressure, Judge Priest stood by his order. After serving about two weeks in jail, the reporter agreed to testify and provide his notes after obtaining a release from a person he identified as one of his confidential sources, and Judge Priest then released him.

Evidence gained from the reporter’s testimony and notes formed the factual basis of a motion to suppress the incriminating statement, and once again, Judge Priest was called upon to make another unpopular decision. He granted the challenging the contempt order, and Federal District Judge H.F. Garcia denied relief, citing the seminal case of Branzburg v. Hayes, 408 U.S. 665 (1972) for the wellestablished proposition that the First Amendment did not shield the reporter from providing notes of his interview of the defendant. Karem v. Priest, 744 F. Supp. 136, 137 (W.D. Tex. 1990).

7 San Antonio Light, July 6, 1990.

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motion to suppress, finding that the private citizen reporter and the deputy sheriff had combined to deny the defendant his right to counsel in violation of the Sixth Amendment to the United States Constitution. The State immediately appealed, and the Fourth Court of Appeals reversed the order of suppression.8 The brothers took plea bargains that avoided the death penalty, and eventually both were released from prison on parole.

3. Judge Priest understood the proper purpose of bail; many others did not.

In the early 1990’s, drive-by shootings and other violent crimes plagued San Antonio and the politicians were hungry for scapegoats. In 1992, the media ran a series of stories reporting a developing conflict between some of the District Judges, and a then little-known city magistrate.

The magistrate, who would become known as “The Hammer,” began setting exorbitant bonds on people arrested for violent crimes. In one publicized case he set a $10 million bond for a 28-year-old man charged in two sexual assaults.

And the newspapers reported that the magistrate “routinely” set multimillion-dollar bail bonds.9 Although this surely impressed the public, case law at the time left no room for doubt that bonds like this were almost always unconstitutionally excessive.10 When the magistrate’s cases were 8 State v. Hernandez, 842 S.W.2d 306, 319 (Tex. App. – San Antonio 1992, pet. ref’d), cert. denied, 509 U.S. 927 (1993).

9 San Antonio Express-News, January 10, 1993.

10 Although the case law has become less friendly to presumptively innocent citizens in recent years, in the early 1990’s, the Court of Appeals sitting in San Antonio could hardly have been more clear: Reducing to $75,000.00 the $1,000,000.00 bond set for a capital murder defendant, that Court observed that, while bonds of $300,000.00 to $1,000,000.00 would not necessarily be unconstitutional, “it would be an unusual case which would justify such a high bail amount.” Ex parte McDonald, 852 S.W.2d 730, 735 n.4 (Tex. App.-San Antonio 1993, no pet.); see also Ex parte

later indicted and assigned to a District Court, lawyers would file writs to lower the bonds, and the District Judges would have to choose between pandering to the public or following the law. For judges like Pat Priest and Terry McDonald (who presided over the 186th District Court), the choice was simple.

Simple, maybe, but it came with a heavy political price. When Judges Priest and McDonald followed the Constitution and not the mob, the door was opened for the magistrate to self-righteously announce how high he would set bonds, if he had the chance. Bound by the canons of judicial conduct, Judge Priest could only say this: “I do what I think is right and make no apologies to anybody for doing my job.”

San Antonio Mayor Nelson Wolff could not resist joining the fray. Describing himself as “disturbed and angry,” he created something he called a “Citizens’ Crime Commission” to conduct a topto-bottom examination of a criminal justice system that, he said, favored criminals instead of victims.

In addition to boldly creating the commission, the mayor—himself a licensed attorney—continued to work the media, calling some citizens-accused “‘violent animals’ who must be taken off the street and given death sentences when it is justified.” And he insisted that “local judges must act ‘responsibly’ when setting bonds for violent offenders and should be held accountable by voters. These actions send a message out to the criminal element that we are not committed or sincere in our fight against crime.” As noted, Judge Priest almost always believed that the canons prevented him from replying to criticism, however unfounded Wood, 952 S.W.2d 41, 43 (Tex. App. – San Antonio 1997, no pet.) (reducing the total bond in this death penalty case from $450,000.00 to $70,000.00, finding that “Only in rare circumstances would such amounts be justified.”).

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it was. This time he permitted himself this one response about the abilities of our mayor: “Nelson never was a very good lawyer.”11 Wolff also lashed out at what he termed jurors who “start crying” over the plight of killers on trial instead of the victims. Demonstrating a complete misunderstanding of the role of judges and juries, Wolff went on to say this at a news conference at City Hall: “Our judges, juries and probation officers must walk in the shoes of the victims and their families.”12 This level of ignorance would have been surprising in anyone who had passed an 8th grade civics class, but it was positively shocking when one remembers that Mayor Wolff was a licensed attorney. These were the kind of attacks Judge Priest faced on a regular basis, just for doing his job.

On December 29, 1992, the San Antonio ExpressNews ran an editorial styled, “Murder City, Texas.”

Among other things it stated: “Until there is enough prison space for all weapons offenders, and unless judges keep those involved in weapons violations behind bars (are you listening Judges Terry McDonald and Pat Priest?), the murder record will continue to rise annually.”

4. Given his detractors in the media, it is unsurprising that Judge Priest was not elected again.

In 1993, Judge Priest announced he would retire from the trial bench at the end of the year.

Several lawyers lined up in both primaries to replace him, and the rallying cry for them all was “victims’ rights.” Little time, if any, was devoted to defendants’ rights, or to the Constitution, or to judicial courage. “The Hammer” announced his 11 San Antonio Express-News, August 8, 1992.

12 Id.

candidacy, proclaiming the need to “return our district courts back to the people,” and that: “Our district courts as a whole have been dominated by the criminal defense lawyers of this city.” Although he won the Democratic primary in March, 1994, he lost the general election to his Republican opponent.

In December, 1993, Justice Shirley Butts announced that she would not seek re-election to Place 1 on the San Antonio Court of Appeals. Judge Priest then declared his candidacy for this position in the upcoming Democratic primary. A lawyer with little criminal experience, who had served as a municipal judge in a small bedroom community on the outskirts of San Antonio, ran against Judge Priest and won the primary by more than 4,000 votes, despite the fact that Priest had been the overwhelming choice of lawyers polled in a recent State Bar of Texas survey. Though victorious in the primary, the former municipal judge lost to his Republican opponent in the general election.

D.

Senior Judge Pat Priest, for the next 23 years.

I have never been a fan of the visiting or senior judge system, which allows former judges to return to the bench where they can serve with no electoral mandate and little or no accountability to the public, or to the lawyers and defendants who appear before them. Occasionally, though, this flawed system produces good results, and that was the case with Judge Priest. In 1995 he was back in courthouses throughout the State, but most often in and around San Antonio. He carried on as before: working every day and all day; respecting and listening to all who appeared before him; and ruling in every case, as he felt the law and the facts required him to do, without worrying one damn bit about what the media thought or published.

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In the years to come, people who knew Pat Priest will tell stories about what a great legal scholar he was, and they will be right. They will praise him for his fairness and judicial temperament, and again, they will be right. I hope, though, that lawyers and judges who think about Judge Priest will be inspired by his singular and extraordinary judicial courage, and that, when they find themselves in a situation that requires courage on their part, they will ask: What would Pat Priest do? Ruling correctly, according to the law and the evidence, with no regard for how it might look on the front page, would be the best way to honor the memory of Judge Pat Priest.

E.

And he was a good and humble man.

I have spent all my time so far talking about those qualities of Judge Priest that we would wish on all our judges: intelligence, integrity, diligence, fearlessness. In the end, though, it might be most important of all that Pat Priest was a decent, humble man who loved his family, served his community, and treated all those around him with dignity and respect.

I close with a story that Daryl Harris shared at the memorial service for Judge Priest on October 17, 2018. It shows the man’s humanity as clearly as anything I can think of. Daryl is not from San Antonio, but likes to say that he and his wife got here as soon as they could. He has been a prosecutor for the last 18 years and tried many cases before Judge Priest when both were tasked with handling mostly cases involving sexual assaults against children. These, of course, were the kinds of cases the elected judges most wanted to avoid. Daryl remembered a situation every trial lawyer finds themselves in from time to time.

The jury had retired to deliberate its verdict and the judge, the defense, and the prosecution were

sitting in the courtroom, unable to focus on new work and awaiting that awful buzzer. Daryl had brought some sausage to the gathering, the lawyers were enjoying the feast, and they invited the Judge to join them. He did, but he noticed another person all the others had overlooked. It was the defendant sitting alone in the jury box, and the one person in the room who had more to gain or lose by the jury’s verdict than all the others combined. Judge Priest came down off the bench, got himself a piece of sausage, and then cut another piece and gave it to the defendant.

Much like San Antonio had accepted me, Judge Priest was accepting this person into the group and the moment. I don’t remember who I tried that case against, I don’t remember the verdict, but when my group of friends got the word of Judge Priest’s passing … and we started to trade stories … that’s what I remembered. He demonstrated his faith, and I hope that I can come close to his standard in living mine.

Judge Priest swearing in Stephanie Stevens and Wendy Davis

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l Specialization Mail check to: DEFENDER 2019.01.01.indd 35 of Criminal San Antonio Criminal Defense Lawyers Association P.O. Box 831206

12/27/2018 4:26:41 PM

DEFENDER 2019.01.01.indd 36

12/27/2018 4:26:44 PM