Laredo • Webb County Bar Association JUDICIAL REVIEW DECEMBER 2013
A Judicial Performance Evaluation www.webbcountybar.com
Laredo Attorneys Weigh in by Anonymous Ballot on the Performance of the Laredo Judiciary RESULTS PAGES 11 & 12
INSIDE Juan Cruz Mentoring : What Attorneys Didn’t Learn in Law School Armando X. Lopez Legislative Changes to Texas Open Meetings Law Baldemar García Jury Service: Public Promise, Privilege, & Power Robereto Balli Criminal Defense Practice Ricardo E. Morales The Eagle Ford Shale: Boom or Bust Marisela Jacaman The Baby Katherine case: rejection, rage, & revenge María Eugenia Guerra Oscar J. Peña Sr. — A lion of the law
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JUDICIAL REVIEW
A perspective on the practice of law What I didn’t learn in law school: the value of mentors
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By JUAN J. CRUZ
he theory that a Doctorate of Jurisprudence provides a person with the ability to be a good lawyer is simply not based in reality. Any lawyer would agree that law school prepares an individual with the fundamentals of the law, but there are many things that are not taught in any law school that lawyers learn once they engage in the day-to-day practice of law, including virtues that a trustworthy person must possess to earn an esteemed reputation. The Texas Disciplinary Rules of Professional Conduct is the “Texas Lawyer’s Creed.” It provides the roadmap by which lawyers should gauge themselves in their practice. Section Two of the Preamble, which is within the Texas Disciplinary Rules of Professional Conduct captures the role a lawyer plays in relation to his client….“as advisor, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others. As intermediary between clients, a lawyer seeks to reconcile their divergent interests as an advisor and, to a limited extent, as a spokesperson for each client.” Unfortunately, one of the greatest disservices to young lawyers is that the State Bar of Texas does not mandate lawyers new to the profession to work under some type of mentor system. Young lawyers would do well to learn from seasoned lawyers regarding
how some key words of Section Two of the Texas Disciplinary Rules should be interpreted and not trampled on when engaging in the practice of law. Take the first role of the lawyer (providing a client with an informed understanding of his legal rights and explaining practical implications), the only manner by which a lawyer can do this is to study the law profusely, be well-prepared when meeting with a client (even a potential one that has not paid the lawyer one cent), and provide reasonable expectations to a client, instead of feigning agreement to simply keep the client content with the lawyer’s services. In my nearly 18 years of practicing law, I have been privileged to work under some great mentors. I learned quickly that the most effective way to provide a client with an understanding of the law and how it affects his situation is through hard work and preparation. I have learned that it is always best to be overly prepared for any meeting rather than to “wing it,” which causes the client to feel uncertainty and develop a lack of confidence in the lawyer’s services. A secondary role of a lawyer to his client established by the Texas Disciplinary Rules is zealous advocacy under the adversary system. To “zealously” advocate for a client does not mean that a lawyer should throw out decency, civility, and decorum. I distinctly remember working for an insurance defense firm fresh out of law school and a then-practicing lawyer under whom I worked. Now a member of the judiciary and a close friend, she told me, “A client does not want to engage the services of a lawyer that has a less-than credible reputation by his colleagues, especially the judiciary.” In the same fashion that doctors
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rely upon each other to refer their clients to specialists when necessary, a good lawyer understands that at any one time he will need the assistance of his brethren to provide adequate legal services to his client. As such, it is only incumbent upon any lawyer to treat his fellow colleagues with respect by doing simple things such as returning a phone call, extending a deadline, conferring prior to filing unnecessary motions, etc. In extending common courtesies, an opposing counsel will most likely extend the same treatment in other cases, only to the benefit of the lawyer’s client, which furthers the goal of zealously representing those in need of legal assistance. When negotiating on behalf of a client, any lawyer wants to get his client the best deal. After all, why would a client retain a lawyer who does not have a successful track record? Agreements that are reached to settle a matter in litigation or a commercial transaction require arms-length negotiations usually among two parties; however, at times, multi-party situations also arise. With the passage of time, lawyers learn who they can trust to keep their word and which lawyers routinely offer up empty promises. To earn the trust of any person, including a fellow lawyer, requires honesty. A lawyer who makes misrepresentations to his adversaries will be hard-pressed to be afforded any concessions when negotiating. There are many successful attorneys in our area who have been in practice for many years because of their fair dealing, candid opinions, and, above all, honesty towards their colleagues, which has earned them a fervent respect only to the benefit of their clientele.
The practice of law in the last decade has made significant strides to a more transparent and efficient system that largely leads litigants to a third party resolution process and away from the courthouse. The fourth canon that a lawyer has to his client is to resolve divergent interests, while at the same time acting as the spokesperson for the individual he represents. Only the craftiest of lawyers have specialized skills to be able to work patiently with their clients through scenarios and options so that they can objectively view their case if it ends up in a court of law. I have learned through many mentors that a lawyer can allow his client to view his case objectively by being frank, but professional. A lawyer that places himself in his client’s position is able to maintain composure and show empathy for his client, thereby expressing his client’s position passionately to the other party. On the other hand, I have also witnessed lawyers who constantly resort to using a strident tone or language in their oral and written communications, which can shut down an open line of communication that may not be in the client’s best interests. In working intelligently and intensely, a lawyer is able to gain the confidence of opposing counsel and his client to resolve an issue in a private setting rather than the public display of a courtroom. Laws are largely a reflection of societal norms. It is often understood that church and state should remain separate, at least in the operations of governmental bodies and agencies. I find it interesting that in spite of this distinct line, it appears to me Continued on page 8
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JUDICIAL REVIEW
Oscar J. Peña Sr. — a lion of the law By MARIA EUGENIA GUERRA
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y virtue of his honed legal acumen and a practice that spans more than a half-century — Oscar J. Peña Sr. is the undisputed and rightful dean of the local legal community. He would argue that point, and no doubt argue it well, for he is modest about his accomplished career as a criminal defense attorney. Criminal cases, Mr. Peña said, bring civil rights and the guarantees of the Bill of Rights into sharp focus. “The First Amendment guarantees free speech; the Second, the right to bear arms; the Fourth, protection from unreasonable search; the Fifth, the right to due process; the Sixth, the right to counsel; the right to call witnesses on your behalf, and the right to confront your accusers; and the Eighth, protection from cruel and unusual punishment. In and out of the courtroom, we have to keep reminding judges and prosecutors of our Constitutional rights. Many who are educated are ignorant of the law,” he said, adding, “It’s a constant battle to keep the Bill of Rights alive.” He recalled three cases in his career that spoke to the importance of those rights in the administration of justice. The first was a death penalty case in which a resident of the Colonia Guadalupe, “El Red” García, shot a police officer whom García witnessed had mistreated his mentally incapacitated sister. He was found guilty, not of capital murder as charged, but of manslaughter. “He was sentenced to 20 years, rather than facing execution. We pulled him from the jaws of death,” Mr. Peña recalled. Another case involved a railroad worker who while drinking at a ThreePoints tavern brandished a pistol and was asked to leave. “He left grumbling and as he drove off, he fired a shot at the building. The bullet went through the wall and shot squarely in the head the
man who had asked him to leave, killing him. If you flee the scene, it’s murder. He was tried and convicted, but on appeal I argued that he had no intent to kill as he was leaving and that he was not fleeing. The court agreed,” he said, adding, “The man went back to work for the railroad.” A third case involved a taxi driver charged in Federal Court with possession of about 180 pounds of marijuana. He said he had been coerced and threatened by some individuals to deliver packages. “The jury believed him and acquitted him. The most unusual aspect of the trial was the reaction of the visiting Federal judge, who was so incensed at the verdict that he broke his pencil in half as he told the jurors, ‘You will never serve on another jury in this court.’ That was just a threat, but still it was quite a display,” he continued. The practice of law and its defense of the Bill of Rights and the American Constitution is especially important, he said, in a time in which “terrorists have changed our lives. We can no longer travel freely across our country. It’s not unusual that we might be stopped without cause or our vehicles searched without a warrant.” Mr. Peña reflected on changes in the local judiciary over the last half-century. “There was initially one district court, the 49th, that heard criminal cases, and the 111th that handled civil matters. Now we have several district courts, two county-courts-at-law, and sitting federal judges. Drug cases have escalated,” he said, “evidence that the War on Drugs has been a flop.” He continued, “The volume of drug cases tells us that things are not as calm and quiet as Laredo leadership says it is. I see more murder, kidnappings, and extortion. In my view, this is a very different place today than it once was.” He recalled two good friends now gone from the legal community. One Continued on page 06
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Oscar J. Peña Sr. with sons David and Oscar Jr. at the Alamo
Marta Cuevas Peña at the Matamoros Street Clinic LAR EDO WE B B CO UNT Y B AR ASSO CIAT IO N
JUDICIAL REVIEW
83rd Legislature: changes in Open Government Laws By ARMANDO X. LÓPEZ
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here is a famous saying that if you don’t want to get sick, you shouldn’t watch the law or sausage being made. The 83rd Texas Legislature, with its theme of governmental transparency, has taken some unprecedented steps to make sure that local citizens and open government advocates can use current technology to increase access to all governmental bodies. Now they will even have more access to levels of communication that were previously inaccessible. As of September, Texas state officials are allowed to communicate with colleagues between official meetings, thanks to Senate Bill 1297 drafted by Senator Kirk Watson, DAustin. The practice of government officials discussing government business between themselves in person, by phone, or electronically outside of a public meeting was previously unauthorized. The bill encapsulates many Texas Attorney General opinions issued by the office of current AG Greg Abbott. Most importantly, governmental units will set up an online message board showing the communications, and the online forum will be accessible to the public. For those not able to access the forum in real time, the searchable content will be archived for six years. The message board should provide an illuminating tool on a number of items at school board, county commissioner, and city council meetings that are tabled and then taken up a week or a month later. Senate Bill 1368 also took effect on September 1, and it makes text messages, emails, and other electronic messaging from either public or pri-
vate accounts between elected officials part of the public record. Citizens will be able to request access to texts sent by elected government officials sent during deliberations under the Texas Public Information Act. The law extends to situations when governments outsource government services to outside vendors. Those communications with the vendors are now open to the public. Under the provisions of House Bill 2414, officials will be able to use video conferencing technology to participate and vote in meetings, as long as the public can hear and see them. The video conferencing provision allows current officials who can’t be at a meeting to participate while insuring that constituents can see and hear them. The legislation is a concession to the technology used in all other sectors of public and private communication. Open government advocates tout the provision of making sure that elected officials cannot elude scrutiny on heated issues. Finally, House Bill 1759 sponsored by Representative Todd Hunter, R-Corpus Christi, would require a prospective plaintiff to give a publisher an opportunity to correct, clarify, or withdraw false content before filing a defamation lawsuit. Under the law, a request for such a correction must be made within a year of the publication and within 90 days of the plaintiff becoming aware of the publication. If the request is granted, and a correction, clarification, or retraction is published “with a prominence and in a manner and medium reasonably likely to reach substantially the same audience as the publication complained of,” the plaintiff cannot be awarded punitive
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damages in a defamation suit. In addition a publisher who has been asked to make a correction may also ask the person making the request to provide “reasonably available information regarding the falsity of the allegedly defamatory statement.” The requestor “must” provide the information within 30 days or be barred from seeking punitive damages in
court. The new laws may be viewed at Texas Legislature Online website, www.capitol.state.tx.us/. Search “Legislation” by bill number. (Armando X. López has been in private practice for 30 years. He is a 1979 graduate of the University of Texas – Austin and a 1982 graduate of the University of Michgan Law School.)
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was District Attorney Oscar Laurel, whom he characterized “as fair, effective, and compassionate, but also strict.” He remembered the late legendary criminal defense attorney Jack Hornberger. “He was a good friend who was very knowledgeable about the law. He had a spark, too.” Mr. Peña is in practice with his grandson Oscar O. Peña, also a criminal attorney, of whom he said, “He is a great comfort to me in and out of the office. I’m very proud of him and his professionalism in his practice. He is an excellent grandson. I consider him a son because he grew up in my house. The love and respect between the two men is mutual. “I am very fortunate to have had the opportunity to spend so much time with my grandfather, both as a family member and as a fellow practicing lawyer. He has taught me a great deal about the practice of law, but he has taught me even more about the practice of life,” said Oscar O. Peña. “Because of him, I was raised in the law office as well as the courtroom. In fact, many of the older lawyers still know me as ‘Hue Hue’ — a nickname that my grandfather gave me when I was a toddler because of the unusual noise I made when I cried. I am often astounded by the breadth of legal knowledge possessed by my grandfather across a wide spectrum of areas. In an age of legal specialization, he is a true lawyer’s lawyer. I am honored and privileged to practice law with him on a daily basis. I love him.” Lifetime friend Gustavo Acevedo Sr. admires Mr. Peña Sr. for his courtroom skills and for being a champion of the underdog. “He may speak and move carefully, but beyond that caution is an excellent criminal defense attorney and a very effective appellate lawyer. He doesn’t use a shotgun method on appeal — he’s very specific — and that’s why he wins. He is honest and hard-working and so well-respected. He is a fine man, the same person in the courtroom as the one you see in his office. He is a very professional practitioner and stays out of
Marta and Oscar J. Peña Sr. on the road politics,” Mr. Acevedo said. Jack Hornberger’s son, Jacob (Bumper) Hornberger, recalled his father’s relationship with Mr. Peña. “My father considered Oscar Pena Sr. to be the best trial lawyer in Laredo and one of the best in the state. He held him in the highest regard, both with respect to his trial skills and his honesty and integrity. In fact, whenever my dad needed a lawyer, he would hire Oscar,” said Mr. Hornberger, an attorney and the founder of the Future of Freedom Foundation in Arlington, Virginia. Oscar Peña Sr.’s path to the law began with a step out of town and down the highway just after graduation from Martin High School in 1951. The four-year letterman had set his mind to try out for a football scholarship at East Texas State Teachers College in Commerce. “I had no money for travel, so I got on the road. Fortunately I was picked up by someone going to Greenville, very near Commerce.” Mr. Peña said the inner drive to secure the scholarship allayed his fears that he would not make the team. “I stuck it out, made the team, and got a scholarship for tuition and room and board. I finished in three years instead of four,” he recalled. He returned to Laredo and to his sweetheart Marta Cuevas. They were married in 1953. “I knew the key to pursuing law school studies was the G.I. Bill, so I volunteered for induction into the Army in 1954. I served for 16 months at Ft. Bliss in El Paso, Ft. Ord in California, and Korea
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just after the war had ended,” he said. Mr. Peña graduated from the University of Texas School of Law in 1959, practiced briefly in San Antonio, and then established his practice in Laredo. He and Marta, who would work for surgeon Dr. Leo Cigarroa for four decades, had three children — Oscar J. Jr., Martita Peña Montemayor, and David. Oscar Jr. died in June 2004, and in February 2013 Mr. Peña lost his beloved
lifetime partner Marta — whom he credited as integral to the building his law practice at 1720 Matamoros. The son of Alfonso and Margaret Kuehner Peña, Mr. Peña was raised in the Three Points neighborhood with his ten siblings — Alfonso Jr., Dora, Anita, Herman, Rosemary, Norma, Robert, Danny, Mary Alice, and José Eduardo. “My parents struggled to provide for us, but we managed somehow. I have many loving memories. I was fortunate to get an education through my abilities as an athlete and through the G.I. Bill,” he said.” Mr. Peña said he considers the law and the administration of justice “an occupation of the first order, very worthwhile. I know I did my little bit as a human activist to make things better in this country and in the world.” He added, “It’s been an interesting ride. Maybe I’ll get around to getting these stories down.” Mr. Peña’s life in the law will long be recounted as the stuff of legend, a lion of the law.
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JUDICIAL REVIEW
Constitutional law, basis in El Fuero Juzgo By HILDEGADO E. FLORES, EdD.
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s Spain established its world empire in the latter part of the 15th Century, it was governed by three basic human rights principles: i. The Rule of Law; ii. Freedom of Speech; and iii. The Equality of Man (and Woman as women enjoyed the same rights as men including the right to own and inherit property, a right unknown in other European empires until well into the 20th century). These basic human rights were first put into practice in the Second Century during the Silver Age of the Roman Empire in the reign of Emperor Trajan and Emperor Hadrian, both emperors of Spanish origin. In the words of contemporary historian Tacitus, “…during the reign of Emperor Trajan and Emperor Hadrian, any individual could speak on any subject from the Roman Forum without fear of retribution….” The Second Century was a propitious age in which the basic elements of democracy could thrive. The provinces were coming of age reenergizing Rome after the ruinous successive reigns of Nero and Caligula. Hispania positioned itself as the jewel in the Roman crown, becoming not only the granary and provider of metals and other raw materials, but also producing bold and courageous leaders as Trajan, perhaps the best general Rome ever had, and Hadrian, an intellectual of the first rank and a devoted admirer of Greek thought. The letters were dominated by the Stoics with such Hispanic luminaries as Seneca the Elder, Seneca the Younger, Martial, and Quintilian. According to the Stoics, “all human beings regardless of status in life are equal,” and that conformity with your life brings happiness and leads to a peaceful society conducive to the establish-
ment of democratic principles. Successive waves of invasions by Germanic barbarian tribes brought about the final collapse of Roman authority and order in the Iberian Peninsula at the end of the 5th Century. The Visigoths were the last wave of barbarian tribes who settled in and established a semblance of order with their own primitive form of governance. The Romanized Spaniards resented their new overlords who routinely settled disputes through violent means. Their petitions for the reintroduction of Roman law were finally answered in 526 by King Leovigildo when he accepted the Liber Judiciorum, known in the vernacular as El Fuero Juzgo (Book of Laws) proposed by the people. It included the essential elements of a civilized society ranging from the Freedom of Speech, the establishment of courts ruled by judges to settle disputes based on the facts, to the distribution of properties according to the instructions left behind in the form of last wills and testaments. Through the centuries, the fueros have been extended to govern other vital activities of the people in certain specific areas such as El Tribunal de las Aguas practiced in the intensively cultivated areas around Valencia where farmers to this day approach a three-judge panel to petition access to a share of the waters for their crops. From the beginning, the Spanish Empire considered each of its territories to be a part of metropolitan Spain, and thus, as its provinces, all the rights and privileges were extended to the inhabitants. King Charles I, also known as the Holy Roman Emperor Charles V, established a forum to which petitions could be directed in order to guarantee the rights of these new citizens. It was this medium used by Bernal Díaz Del Castillo to successfully challenge the Encomienda System that had been
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used by some Encomendados to curtail certain freedoms guaranteed to all citizens regardless of race or condition in life. Additionally, a charter specifying its Fueros was issued to every settlement and a chronicler was named to write down accounts of all important events. To this day, these same practices continue in Spain as well as in most of the former colonies of the Spanish Empire. In American History classes, we were all introduced to the Magna Carta on which our system of government is mostly based. However, through omission borne of ignorance or indifference, our teachers even at the university level never pointed out that Thomas Jefferson and John Adams drew most of their ideas and inspiration of democratic ideals for our Constitution from the French Philosophes: Voltaire, Rousseau, Montesquieu, and Diderot who in turn drew their own inspiration from Roman law which was originally based on Greek thought. For comparison purposes, El Fuero Juzgo antidates the Magna Carta from England by 700 years. Another fundamental difference between these two important documents is that El Fuero Juzgo gave rights directly to the common people whereas the Magna Carta consisted of rights extracted from the king and given exclusively to the nobles. Under England’s feudal system of government, these basic rights remained mostly in the hands of the nobles and were not passed on to the common people leading to such outrageous abuses as the principle of Prima nocta requiring brides to spend their wedding night with the lord of the manor. More importantly, two-‐thirds of the British citizenry were excluded from the political process until the reforms undertaken in the Post war period of the 1920s.
By contrast, in Spain the devolution of central authority to the various comunidades has taken local autonomy to new heights feeding on the individualist spirit of the people. Through the ages, these yearnings for local priorities have manifested themselves even in the remotest parts of the Spanish World far removed from the origins of El Fuero Juzgo. For example, in Zapata, at the conclusion of the balloting in the presidential election of 1952 declaring Republican Eisenhower as President, a local official of the Partido Viejo, invariably Democrat, exclaimed to members of the Partido Nuevo, invariably Republican, “¿Y de qué sirve de que allá ganó si aquí perdió?” El Fuero Juzgo vive. ¡Vivan la democracia y la libre expresión! References: Braudel, The Mediterranean and the Mediterranean World in the Age of Phillip II De Madariaga, El auge y el ocaso del imperio Español Flores, Historial, Zapata County Museum of History Gibbon, The History of the Decline and Fall of the Roman Empire Jover et al., Historia de España Martínez Marina, Ensayo Histórico McCullough, John Adams Menendez Pidal, Historia de España Nicholson, The Long Silence Seneca, De Vita Beata Tacitus, Histories Wiencek, Master of the Mountain Copyright 2013 (Dr. Hildegardo Flores holds a BA and an MA from Texas A&I University. He earned an EdD from the University of Houston> He is a retired educator, a founding board member of the Texas Tropical Trail, a founder of the Zapata County Museum of History, director of the museum and president of its board and the nonprofit Friends of the Museum. He is a board member of Preservation Texas.)
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JUDICIAL REVIEW
Jury Service: the public promise, privilege and power By BALDEMAR GARCIA JR.
jury summons is rarely welcome. Before even opening the envelope, the addressee’s mind races with negative reactions — “I’m too busy; I’ve got better, more important things to do; what an inconvenience; I don’t care; let someone else do it.” Immediately followed by “Who can I call to get out of it? Does it even matter?” After the initial shock, resignation sets in. But a surprise is lurking, to be discovered by those fortunate few who are selected for jury service. Rarely do we get the chance to make a difference in the lives of others, to affect business, to change society. For most of us, jury service provides that unique opportunity. Historically, the most impactful social changes have emanated from the justice system: school desegregation in Brown v. Board of Education; civil rights; safer consum-
er products; and truthful advertising. The battleground for the most divisive moral issues is the courtroom: abortion; death penalty; immigration reform; affirmative action; gay marriage. Every landmark case began in a trial court, usually before a jury. We cannot aspire to our noblest virtues sitting behind a desk for 40 or more hours a week. Jury service educates our citizenry, and our common law is enlightened by the thoughtful and insightful decisions of juries. Jury verdicts communicate the conscience of a community. Jurors speak with a collective voice, while all other citizens remain silent. No one should choose to remain voiceless. Justice is an abstract principle except in a court of law. Justice is not found in classrooms, boardrooms, libraries, or government offices. Righting wrongs, ensuring fairness, guaranteeing equality — happens exclusively in courtrooms. The ability to impart justice is
Continued FROM page 3 that in writing the rules of the roles a lawyer plays in relation to his client, the authors of the Texas Disciplinary Rules must have read the writings of St. Thomas More who professed the following, “I pray, for the glory of God and in the pursuit of His justice, that I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, cour-
teous to adversaries, ever attentive to conscience.” Irrespective of a lawyer’s religion, any person practicing law who guides himself by these words will be that much better as a person and lawyer, only to the benefit of the clients he is privileged to serve. (Juan Cruz has been in private practice for 18 years. He is a 1991 graduate of UTSA and a 1995 graduate of the University of Houston Law School.)
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a power reserved for juries. To know that power, one must experience jury service. According to Thomas Jefferson, a trial by jury is “the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” All of the promises in the constitution are guaranteed by the judicial branch of our democracy. Legislators and executives have limited accessibility to their constituents due to geographic and time constraints, but judges must hear and consider every single case filed by every single citizen. And if provided by law, a jury is charged with deciding each of those cases. Jury service is both a privilege and a duty. Alexis de Tocqueville wrote that jury service “rubs off that private selfishness which is the rust of society.” Compared with military service, the
sacrifice of jury service is negligible, but it nonetheless provides citizens a chance to contribute in the labor and thus deserve the rewards that come from democracy. There is no better way to be part of a community than by accepting the opportunity and embracing the power to make it better. Jury service affords that rare opportunity and unmatched power. Like Shakespeare’s description of mercy, jury service is twice blessed. It benefits both the jurors and the litigants. Greet your next jury summons with gratitude and reverence, for it represents an invitation to improve your society as well as yourself. (Baldemar García has been in private practice for 19 years. He is a 1991 graduate of the University of Texas-Austin and a 1994 graduate of the University of Texas Law School.)
This 24-page journal, an insert in the December 2013 issue of LareDOS, was prepared for the Laredo Webb County Bar Association. Local attorneys and others with an interest in the law authored the editorial content. The criteria on the evaluation instrument, which was mailed to local attorneys for their anonymous participation, was based on the American Bar Association’s Black Letter Guidelines for the Evaluation of Judicial Performance. The primary goal of the evaluation, per the ABA’s guidelines, is to improve the performance of individual judges and the judiciary as a whole. The LWCBA contracted with Mejia & Company, PLLC, and per agreed upon procedures, Mejia & Company received the anonymous ballots and tallied them independent of input from the LWCBA or LareDOS.
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FOI: the public can be trusted with the truth By WANDA GARNER CASH The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created. — Preamble, Texas Public Information Act
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hen America faced chaos during the Civil War, Abraham Lincoln trusted Americans to process information responsibly as long as the government was open to them. “If given the truth (the people) can be depended upon to meet any national crisis,” Lincoln said. “The great point is to bring them the real facts.” Today, as fear of terrorism inspires modern chaos, most Americans share the nationwide concern for our country’s safety. We might also be experiencing a national shiver at how little our government trusts us. Daily news brings new revelations of the U.S. government’s domestic surveillance programs and spying on its own citizens. In Washington, the NSA and the Patriot Act and its various iterations continue to propose an alarming erosion of civil liberties and a damaging dilution of the First Amendment that severely compromise the publicˆs right to know. Here in Texas, the Freedom of Information Foundation is fighting similar attempts to stifle public ac-
cess. Since 1978, the FOI Foundation has worked to ensure that the public’s business is conducted in public, a goal that can be achieved without jeopardizing national security. The foundation holds elected and appointed officials accountable and reminds all Texans to insist that lawmakers uphold our basic right to information. Because the news media seem to be the most vocal supporters of open government laws, it’s easy to believe that reporters and editors are the only ones who really care about this kind of legislation. But open government is important to all citizens who care about how their elected and appointed representatives attend to public business. This year marks the 40th anniversary of the open records law, now called the Texas Public Information Act. And while the name is different, the intention is unchanged: to guarantee that public business is accomplished in the open because open government is at the very core of our democracy. The passage of this landmark law dates to the Sharpstown banking and bribery scandal in the Legislature in the early 1970s and to the legislative reform movement that saw the incumbent governor and lieutenant governor defeated, nearly half the House of Representatives ousted and the House Speaker indicted. Texas voters demanded accountability from elected officials and access to the government they paid for. Then and now, the open records law offers taxpayers that scrutiny and establishes a researchable history of how well — or poorly — our government works.
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Indeed, shutting off information doesn’t make us any more secure and if some state and federal lawmakers continue to tamper with the hard-won public access laws, it will not be security which is compromised, but freedom, along with the publicˆs trust in government. The open records act is prefaced on the presumption that the public has a Constitutional ‘right to know.’ Indeed, the preamble clearly establishes the basis of open government in Texas by declaring that government is “the servant, not the master of the people.” Think back and remember what was happening in our country 40some years ago. The criminal abuses of the Nixon administration combined with the unrest about the war in Vietnam created a toxic environment that likely contributed to a basic change in our cultural attitude. Historians and social scientists view the Vietnam War era as the pivotal point when America grew up and grew cynical. We hardened at revelations that our government, mainly the Nixon White House, had been engaging in wiretapping and other intrusive spying on political activists, candidates, dissent groups, and journalists. `After the scandals of Watergate and the Pentagon Papers, Congress stepped in and passed protections to eliminate this unjustified spying in the name of national security. Today, the NSA revelations create a sad resonance as Congress debates acceptable levels of domestic spying. President Obama, hoping to reassure Americans that their government is not overstepping, has called
upon Congress to add increased oversight and safeguards to provisions of the Patriot Act in a similar balancing act of national security and civil liberties. “It’s not enough for me as president to have confidence in these programs,” Obama said in early August. “The American people have to have confidence in them, as well.” Those safeguards are essential if the government truly believes in accountability and in the preservation of Constitutional freedoms. While history shows that Americans have endured decreased civil liberties during wartime, there’s more reason than ever to protest such erosion. Remember Vietnam and the Johnson and Nixon administrations’ attempts to keep the press from publishing information about the war. Remember U.S. Supreme Court Justice Hugo Black’s opinion in the Pentagon Papers ruling, that only a “free and unrestrained press can effectively expose deception in government.” And finally, remember Ben Franklin’s warning that those who “give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.” The FOI Foundation believes, as Mr. Lincoln did, that the public can be trusted with the truth. To find out how you can help the FOI Foundation’s fight for public access, go to www.foift.org (Wanda Garner Cash is a professor and associate director of the School of Journalism at the University of Texas. She is past president of the Texas Press Association, Texas Associated Press Managing Editors, and the Freedom of Information Foundation of Texas.)
LAR EDO W E B B CO UNT Y B AR ASSO CIAT IO N
LA R ED O WEB B COU N TY B AR AS S OC IATION
JUDICIAL R E VIE W | D E CE MB E R 20 13 | 1 1
ry,
2013 Judicial Evaluation by Anonymous Ballot Substantive Knowledge of the Law
Clear & Logical Oral Ability to Communicate
Effective Docket Mgmt
Punctuality & Preparedness
Impartiality, Treats All w/ Dignity & Respect
Work Ethic: Bases Decisions Without Regard to Identity of Parties or Counsel
JUSTICES OF THE PEACE Hector J. Liendo-pct. 1 pl.1 oscar Liendo-pct.1 pl. 2 Ramiro Veliz-pct. 2 pl. 1 Ricardo Rangel-pct.2 pl. 2 Alfredo garcia-pct.3 oscar Martinez-pct. 4
2.5152 2.8750 2.0606 2.1875 2.4815 3.1111
2.7188 3.0968 2.0000 2.1613 2.8077 3.3529
3.1667 3.7241 2.9333 2.9310 3.1200 3.6061
2.7419 3.5667 2.9032 2.8387 3.0000 3.7941
3.0000 3.5517 2.5517 2.6333 3.0800 3.6471
2.6452 3.2000 2.3333 2.2581 2.6923 3.4412
3.5306 2.9592
2.8367 3.1250
3.6939 2.9583
3.9388 2.7917
3.3265 2.9375
3.2041 2.7292
4.0196 4.3600 3.4286 4.2653
4.2000 4.5306 3.8298 4.3191
3.8958 4.4167 3.9130 4.1739
3.7917 4.4375 3.8696 4.0000
4.1875 4.4792 4.0870 4.4783
4.0417 4.3125 3.9091 4.2391
2.7500 3.5217
3.1154 3.7143
3.2692 3.7619
3.0385 3.8000
3.1923 3.9500
2.9615 3.8500
4.7714 4.2222 4.3429
4.5588 4.2000 4.4118
4.4412 4.3714 4.4412
4.5294 4.3143 4.4412
3.8529 3.9429 4.1765
4.5294 4.3429 4.2941
4.3000 4.1613 4.1429
4.3103 4.1667 3.7407
4.4828 4.2667 4.2222
4.4483 4.4000 4.4444
4.4138 4.4000 4.0370
4.3793 4.3333 4.0370
3.5455
3.5938
3.4375
3.6563
3.5000
3.3125
4.2973
4.3784
4.2500
4.3889
4.3056
4.3333
3.1250
3.3750
3.5000
3.5625
3.6875
3.4375
4.3462 4.0000 4.5357 4.0833 4.0000 3.7917 4.0000
4.3333 4.0952 4.4231 4.1818 4.0000 3.8636 4.0455
4.2917 4.2857 4.4000 4.2727 4.0909 3.8636 4.1818
4.5217 4.4500 4.5833 4.3810 4.3333 4.1905 4.3333
4.2500 4.1429 4.3200 4.1818 4.0455 3.8182 4.0000
4.2500 3.9524 4.4000 4.0909 4.0455 3.7273 3.9091
COUNTY COURT AT LAW Avino Ben Morales - 1 Jesus garza - 2 DISTRICT COURT JUDGES Jose Antonio Lopez-49th Monica Z. Notzon 111th Beckie palomo 341st oscar J. Hale-406th MUNICIPAL COURT JUDGES Rosie Cuellar Assoc. Judge Jose Luis Castillo FEDERAL JUDGES Judge george p. Kazen Judge diana Saldana Judge Marina garcia Marmolejo FEDERAL MAGISTRATES J. Scott Hacker guillermo R. garcia diana Song Quiroga ASSOCIATE JUDGES Judge paul gallego CHILD SUPPORT MASTER JUDGE Belinda Melendez JUVENILE MAGISTRATE Roel Canales JUSTICES FOURTH COURT OF APPEALS Catherine Stone, pl. 1 Marialyn Barnard, pl. 2 patricia o. Alvarez, pl. 3 Luz elena Chapa, pl. 4 Karen Angelini, pl. 5 Sandee Marin, pl. 6 Rebeca Martinez, pl. 7
YOU ARE ENCOURAGED TO USE THE BACK OF THIS EVALUATION FOR AD 1 2 | JUDICIAL R E VIE W | DE C E MB E R 2 013 LAR EDO W E B BON CO UNT Y BADDITIONAL AR ASSO CIAT IO NPIECE OR TO NOTE YOUR COMMENTS AN
Judicial Temperament: Ability to Make DifďŹ cult or Unpopular Decisions
Knowledge of Rules of Procedure & Evidence
2.7333 3.2414 2.5862 2.4667 2.8800 3.5152
2.1333 2.6207 1.8621 1.8667 2.1600 3.0303
3.5862 4.0000 3.2500 3.2143 3.3750 4.0625
2.9474 3.2778 2.8947 2.6316 2.8235 3.7500
3.0408 2.6250
3.3673 2.8125
3.8750 3.7021
2.9767 2.7674
3.9167 4.3750 3.8409 4.1522
4.1250 4.4375 3.5745 4.2391
4.4255 4.4894 4.1556 4.4000
3.9535 4.1905 3.7073 4.0732
3.1600 3.9000
2.8846 3.9000
3.3846 3.9500
3.1111 3.8462
4.0588 4.1143 4.3529
4.6176 4.3429 4.5152
3.9091 3.9412 3.9394
4.1852 4.1429 4.0370
4.4828 4.1667 3.8519
4.4483 4.3667 4.1852
4.0345 4.0333 4.0000
4.2727 4.1304 3.9048
2.9688
3.6129
3.5667
3.2917
4.4286
4.2222
4.4571
4.1111
3.5000
3.3125
3.5714
3.5000
4.2083 4.0476 4.4800 4.1818 4.0000 3.7727 4.0455
4.4167 4.2857 4.4800 4.2727 4.0909 3.8636 4.0000
4.1739 4.0000 4.2500 3.9524 3.7619 3.7143 3.9500
3.9000 3.5000 3.9091 3.7778 3.3333 2.8889 2.5556
Access to court staff
Fairness in Appointment of Counsel, Civil & Criminal
DDITIONAL COMMENTS LA R ED O WEB B COU N TY B AR AS S OC IATION E OF PAPER
JUDICIAL R E VIE W | D E CE MB E R 20 13 | 1 3
JUDICIAL REVIEW
Eagle Ford Shale: boom or bust By RICARDO E. MORALES
T
here is an old joke in the real estate business that goes like this. Question: “In establishing the value of a house, what are the three most important factors?” Answer: “Location, location, location.” In the Eagle Ford Shale, the three most important factors are the same: location, location, location. The Eagle Ford Shale play is now in its fifth year. The discovery well was drilled by Petrohawk in July, 2008. Although over the last five years, the discovery well has produced nearly two billion cubic feet of gas and nearly 50,000 barrels of liquid hydrocarbons, many have questioned whether enough Eagle Ford wells could reach ‘payout’ — enough to recover their drilling, completion, and equipping costs. Eagle Ford wells require the use of expensive horizontal drilling techniques, including drilling lateral boreholes nearly a mile long and performing multi-stage fracks along the wellbore. With well costs approaching $10 million dollars and falling natural gas prices, many operators have questioned whether the Eagle Ford Shale was headed towards an enormous bust rather than a game-changing boom. However, much has been learned about the Eagle Ford Shale over the last several years that gives us a clearer picture of what the future holds. First, the EFS has windows: the dry gas window, the liquids window, and the oil window. The heart of the trend begins in northern Webb County and continues for 400 miles through La Salle County towards as far northeast as Gonzalez County. Producers with wells in the
liquids window may see initial production of over 1,000 barrels of oil equivalent per day (bopd). Although these numbers start impressively, they will not hold up and will quickly fall. Recent studies have shown production decline rates as high as 92%. There has been a dichotomy in hydrocarbon prices for several years now, oil has hovered near $95.00 per barrel while gas prices have remained stagnant below $4.50 per thousand cubic feet (mcf). That is a ratio of 21 (dollars per barrel to dollars per mcf). From August 1997 to August 2007, the ratio was closer to 7.5. However, since the shale boom in 2007, the ratio has averaged 19.4. So while historically, higher oil prices meant higher gas prices, recent history has shown us a pattern of high oil prices and low natural gas prices. While this may be great for consumers using natural gas to cook their food and heat their homes, it is not good for landowners and operators in the dry gas window of the EFS. Many are watchful and hopeful that a return to a more historic oil price to gas price ratio will kick off a new drilling cycle in the dry gas window. There are currently several shale booms throughout the country — the Bakken in Montana and North Dakota, as well as the Permian Basin in West Texas, with several more promising locations throughout the United States. However, it is the Eagle Ford Shale that is showing the most impressive results. What makes EFS special is the amount of oil that it is producing. IHS Data is now reporting that the EFS has surpassed the Bakken Shale and is producing more oil than any other shale play in the U.S. While the Bakken has recently shown
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a decrease in the growth of oil production, the EFS continues to ramp up to a staggering 750,000 barrels of liquid hydrocarbons per day (oil and condensate combined). I use the word staggering, but everything is relative. To put this into perspective, the amount of oil produced from the Eagle Ford Shale in 2007 was zero. Today it makes up 22% of Texas’ oil production and 7% of all of the oil produced in the United States. Many have seen the shale boom as an opportunity to make the U.S. energy independent. In order to accomplish this, however, we would need to more than double our current oil production. The U.S. currently produces 7.5 million barrels of oil per day, yet it consumes over 18 million barrels of oil per day. Although it is expected that oil production will continue to increase in the coming years, we have an enormous gap to overcome in order to match our oil production with oil consumption. One aspect of EFS wells that caused early concern was their substantial rate of decline. Generally, a well’s highest production rate is its first day of production. Production rates tend to tumble downhill after that. The rate at which the production declines is an important early measure signaling whether the well will be a success or a failure. Once the production rate begins to fall, will it start to level off over time or continue to fall so that the well is no longer profitable? An EFS well could produce 40% of its production in the first 12 months of production. The remaining 60% will take many years to be produced at a much lower rate of production. The question on the industry’s mind since the shale boom started is, what will that decline curve look
like over the long term? Will the wells continue to produce for many years at an economic rate or will they stall out before the operator is able to recoup its investment? A recent study of EFS wells calculated that the average well has an estimated ultimate recovery (EUR) of 206,800 barrels of oil equivalent (BOE). This number includes oil, gas, and condensate production. If oil prices continue near $95.00 per barrel, that means the average well could produce close to $20 million dollars over its lifetime. With drilling and fracking costs beginning to come down below $8 million dollars per well, this is good news for South Texas. Another surprising aspect of the EFS wells, is the apparent small size of their drainage patterns. While operators have requested the authority to pool large tracts from the Texas Railroad Commission (the inappropriately named state agency responsible to monitor oil and gas operations), oil and gas companies will readily admit that they believe EFS wells can be drilled on spacings as small as 40 acres. That means that a 640-acre section could theoretically support up to 16 wells. The entire Eagle Ford Shale is over 12,000,000 acres. You do the math. Ok, I’ll do the math. If only 20% of the acreage in the EFS is productive, that means there is the potential for 64,000 wells. Last year, 4,143 Eagle Ford wells were permitted by the Texas Railroad Commission. At that rate, it would take 15 years to completely develop the Eagle Ford. So long as that trend continues, and oil prices continue their rates, we Continued on page 15
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Continued FROM page 14 can expect drilling and production from the EFS for many years. But what will happen to our South Texas land and water after all of this development? George Mitchell, considered the ‘father of fracking,’ died this past summer at the age of 91. For much of his career, Mr. Mitchell was convinced that oil and gas trapped in hard shales could be extracted at a reasonable cost. For years, he experimented with different techniques to coax the hydrocarbons out of the ground, including using foams and gels injected under extremely high pressures into the cracks. After years of failure, he was proven right in the 1990s when his company drilled dozens of successful horizontal Barnett shale wells in North Texas near Fort Worth. Although Mr. Mitchell was an oilman through-and-through, he also knew the importance of sustainability and responsible oil and gas development. Since the 1970s, he championed
environmentally friendly growth and built the planned community north of Houston called The Woodlands. Later, he began to worry about the environmental damage that irresponsible oil and gas companies could cause using the high pressure fracking techniques he perfected. He understood that not all oil and gas operators exercise the same care and supported tight government regulation of fracking. Mr. Mitchell showed that oil and gas development does not have to be a zero-sum game. Oil and gas can be extracted responsibly, but oversight is absolutely essential to prevent essential corners from being cut. The future looks bright for the Eagle Ford Shale, and I am hopeful that we will see Mr. Mitchell’s vision of responsible oil and gas development in South Texas for many years to come. (Ricardo E. Morales has been in private practice for 18 years. He is a 1992 graduate of Rice University and a 1995 graduate of the University of Houston Law Center.)
LA R ED O WEB B COU N TY B AR AS S OC IATION
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JUDICIAL REVIEW
TCRP-Odessa helps organize Veterans Treatment Courts
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By JIM HARRINGTON
n early August, TCRP’s Odessa office launched a new program to protect veterans’ rights. The West Texas Justice for Veterans Campaign aims to provide services to members of the military from any era who struggle with post-traumatic stress syndrome, traumatic brain injury, physical disabilities, or other service-connected ailments. One major component of the new campaign is to organize Veterans Treatment Courts in West Texas. The specialty courts focus on mental health treatment and rehabilitation for participants in lieu of criminal convictions. Texas currently has about a dozen such courts, and many of the defendants are arrested for crimes such as DWI or public intoxication because they are self-medicating to deal with the symptoms of their PTSD or related condition. “The timing and location are exactly right for this type of program,” said TCRP attorney Cassandra Champion. “There are a lot of men and women recently returned from Iraq and Afghanistan who have invisible wounds stemming from their service. They might not yet know how to articulate the problem or where to go to seek treatment, much less deal with the symptoms.” The Department of Veterans Affairs estimates up to 20% of those returning from the most recent wars and 30% of those from Vietnam, may suffer from PTSD. Symptoms can be nightmares, insomnia, flashbacks, irritability, and hypervigilance. As part of the campaign, TCRP
advocates for the rights of disabled veterans to have equal access to buildings and services despite any diminished mobility, vision, hearing, or major mental health condition. “Many of our veterans have sustained serious and permanent injuries from serving in combat,” explained Lucero. “Our advocacy through the Americans with Disabilities Act can help improve their quality of life after their service.” TCRP also focuses on community education and outreach. From Know Your Rights Trainings to legal education for attorneys, the campaign increases awareness about issues common to this worthy population. “What TCRP is offering to these men and women is commendable,” commented Renato Ramirez, TCRP Board Member and a fire direction officer in the U.S. Army Artillery from 1961-63. “Readjusting to civilian life is difficult for anyone, and even more so for individuals with a service-connected disability. They are doing really meaningful work out there and we all appreciate it,” Ramirez said. “After less than three months, the courts are already being considered by judges in three counties. We are working closely with other veteran and military organizations in the area to provide a comprehensive range of services to veterans in need. We think we are on the right track to have a positive effect on many lives in this area,” stated Champion. The activities of the Odessa program are an expansion of TCRP’s statewide program headed by Brian McGiverin, which began September 2011. For two years, the statewide
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campaign has educated veterans leaving incarceration about finding work and housing, protected their civil rights, and produced materials to help those with PTSD handle their symptoms while they move through the court system.
“As time goes on, more and more veterans adversely affected by war will return home,” said McGiverin. “We need to help them, and we’re trying to do whatever it takes to more effectively achieve that goal.”
LAR EDO W E B B CO UNT Y B A R ASSO CIAT IO N
JUDICIAL REVIEW
Why we choose to be defense lawyers By ROBERTO BALLI
R
ecently, not one, but two people and at the same back yard party, told me they could not be a criminal defense lawyer because they could not represent the guilty. As as a criminal defense lawyer, I hear this all the time. Neither person made the comment to be disparaging or rude, nor did I take it that way. I believe that they were both sincere in expressing their confusion as to why anyone would willingly decide to represent someone accused of committing a crime. Although it’s straightforward statement, a proper response is not so simple. Thinking about it made me realize that my response to that question is influenced by my experiences as a lawyer and the people who I have been fortunate to work with throughout my career. Mentors influence a young lawyer’s attitudes and values. Seventeen years ago, when I was starting out at the Webb County District Attorneys Office, I was being mentored by District Attorney Joe Rubio and First Assistant Monica Zapata Notzon. Meanwhile I always admired defense lawyers Julio Garcia, Oscar J. Peña, Sr., and David Almaraz. Over the past several years, as I have gained experience as an attorney, I have had the privilege to mentor other attorneys and law students, and in particular, my wife Claudia V. Balli, who just graduated from law school. In my role as a mentor, I encourage respect for the profession, respect for the clients, and love for the law and the legal process. Why do criminal defense lawyers represent people who are guilty? Although many have difficulty fathoming the idea, the reality is that some of those arrested are not guilty of
committing a crime. Even though innocent people are in the minority of those arrested, the number of people that are wrongfully arrested is substantial. The Innocence Project, an organization composed of criminal defense lawyers dedicated to representing people wrongfully convicted of serious crimes, has to date had over 300 convictions reversed based on exoneration, including the convictions of 18 people that were on death row. One recent case was the exoneration of Michael Morton, who had spent 25 years in prison for the death of his wife in Williamson County, Texas. DNA evidence eventually proved that Morton was innocent. It was discovered that during Morton’s 1987 murder trial, the original prosecutor on the case, Ken Anderson, disobeyed a court order to provide Morton’s attorneys with exculpatory evidence. The evidence withheld by the prosecutor was a statement by Morton’s three-year-old son about witnessing the murder by a stranger while his dad was away from home. The evidence withheld also included the statement of a neighbor who saw a suspicious vehicle parked outside the Morton home at the time of the murder. The prosecutor failed to disclose the evidence. The consequence: the jury convicted Morton and sentenced him to life in prison. The prosecutor on the case, Anderson — now a District Court Judge — is facing prosecution for his conduct. But you don’t have to drive north on I-35 to find people who are wrongfully arrested. Any person that has been part of the criminal justice system in Laredo or in any community can tell you about bad arrests. Not just a few, but many. Just like people in any other profession some police officers are good
LA R ED O WEB B COU N TY B AR AS S OC IATION
and some not so good. But officers and prosecutors are advocates. U.S. Supreme Court Justice Warren Burger said in U.S. v. Chadwick, “Officers are engaged in the often competitive enterprise of ferreting out crime.” It is this competitive nature that leads the arrest of some innocent people. I can think of several very serious cases in Laredo in which innocent people were arrested. In most of these cases, it was a criminal defense lawyer that pointed out the evidence of innocence, and then the prosecutor did the right thing in dismissing the charges. Nevertheless, had the defendant not had legal representation, there is a likelihood that the prosecution would have continued. It is not just in high profile cases that you see people wrongfully ar-
rested, but small cases too. Officers are out on the streets where things get hot, and there are some officers willing to teach someone a lesson for talking back or arguing with the officer. These confrontations often result in arrests for charges of resisting arrest, retaliation, failure to indentify, interfering with public duties. No one should not be arrested for disagreeing with an officer or arguing with an officer. Officers have difficult jobs, but they are public servants trained to deal with argumentative or difficult people, and they should not arrest someone just for being difficult. As Justice Harry Blackmun wrote in Lewis v. City of New Orleans, “Police officers in this day . . . must be thick skinned.” The reality is that some ofContinued on page 18
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Continued FROM page 17 ficers do arrest in these situations. I have seen countless cases in which a person was arrested for “resisting arrest” without any other charge. It begs the question, how can a person resist an arrest if they were not being charged with a crime in the first place? These may seem like insignificant matters, but to the person arrested, it is quite serious. The person is publically humiliated, especially if employed in education, law enforcement, or government. For other people, the arrest may affect the ability to hold a license, for example for nurses or teachers. Being arrested can be aggravating and expensive as the individual is forced to post bond and pay legal fees. It is criminal defense lawyers that advocate for these individuals and help them get their life back. In reality, the majority of persons represented by criminal defense lawyers are guilty. Nevertheless, most of these people are not serious felons.
For example, cases involving a husband and wife getting into a pushingshoving match, the teacher that had one coconut martini too many at a local bar, or the young college student who walked out of the mall with a coat that he did not pay for. They may be guilty, they may have done wrong, but that does not mean they should not be represented by a lawyer. Although prosecutors are advocates for the State, most prosecutors are compelled by a sense of justice. A good criminal defense lawyer will reach out to the prosecutor and explain that the husband and wife have worked out their differences and the family needs him to keep his job, that the teacher has no prior history and she has been going to AA meetings, and the college kid’s lapse in judgment will wreck his career. The prosecutor may be moved by these arguments, and ultimately dismiss, even if the prosecutor could prove guilt. Of course criminal defense lawyers represent guilty people that have
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committed serious crimes. Many of these cases end in guilty pleas with the clients receiving either probation or prison terms. Still, that does not mean that the individual should not have a lawyer. Both the Fifth Amendment and Sixth Amendment of the U.S. Constitution guarantee citizens the right to representation in a criminal case. Defense lawyers are there to ensure that a person’s constitutional rights are protected and to advocate for the person with the prosecutor, the judge, or the jury. Having a competent lawyer means that the person will have a fair fight with the prosecutor and that the person, although guilty, will get a sentence that is appropriate and fair given the defendant’s conduct, prior history, and other mitigating or aggravating circumstances. Finally, wrongful convictions don’t merely fall on law enforcement officers and prosecutors. Defense counsel is sometimes to blame. The Innocence Project cites 29 DNA exonerations in
which the defendant pleaded guilty. To me, that calls into question the job of defense counsel for allowing an innocent person to plea guilty. This is why it is important that defense counsel have the experience to handle the case at hand. Defense counsel just, like police officers, prosecutors, and judges can fall into the trap of becoming cynical, thinking that they are “all guilty.” Defense counsel should keep an open mind in each case, dedicate sufficient time to each individual case, and listen to what the client has to say. Defense lawyers should prepare for court and constantly study the law. The job of a defense lawyer can save someone’s life, someone’s family, or someone’s career. That is why we choose to be defense lawyers. (Roberto Balli is a criminal defense lawyer, certified in criminal law by the Texas Board of Legal Specialization. Roberto Balli also served a prosecutor for the Webb County District Attorney’s Office as First Assistant District Attorney.)
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JUDICIAL REVIEW
Cyber law and Freedom of speech – no rest for cowards By RON RODRIGUEZ PALO ALTO, CA - First Summer Session, June, 2012. My wife Mari and I have just arrived here from the Napa wine country, after stopping by to see part of the famous trial, Apple Inc. v. Samsung Electronics Co., Ltd. I am sitting in the Quad at Stanford University awaiting our son Christian, who has just completed his summer program here. It is a beautiful California day. I am surrounded by brilliant young minds. I overhear one student on a diatribe with his colleague, on some matter related to quantum physics and its connection to the Internet. I am at Cyber Mecca, after all. The distance from where I sit to Cupertino, Apple’s HQ – 15 minutes; to Menlo Park, Facebook’s HQ – six minutes. The entire campus seems focused on the cutting edge technologies that form the basis of the trades here in Silicon Valley I think back to a time not long ago without the Internet, when a library consisted of a building with a card catalog, and real books in stacks. In 1993, at the University of Texas School of Law, I had the first taste of the Internet. We were one of the first students to be issued AOL accounts, using our telephone line to “dial up” Westlaw, a legal research provider, via the Internet. We were amazed at the coolness factor — a virtual library accessed from anywhere with a phone line, but only by a select few in academia. Now everyone has cyber tools (mobile device, laptop or desktop, etc.) with a virtual library and means for global communication in the palm of their hands. Like many things in life, cyber tools can be used for good, or bad. Little do individuals know that ev-
ery move they make on their mobile device, laptop or desktop is not only traceable but admissible in a court of law in both civil and criminal cases. Cyber tool misuse can and will subject evil-doers to civil and criminal consequences. Some foolish individuals believe that freedom of speech includes freedom of anonymous defamatory and obscene speech. They cowardly cloak themselves with anonymity falsely believing that they can say and do whatever they wish — harm, defame and hurt others — with impunity. Not so. Their vacuous minds cause them to feed on the defamatory trough, like mice feeding on the cheese in the trap. That is until the trap is sprung. Recently, the most sophisticated criminal market place on the Internet, Silk Road, was brought down by NY’s FBI cyber-crime unit. Users of that website — used a virtual currency known as bit-coin, and unwittingly believed that their illegal transactions were covered in layers of privacy. Consequences are not limited to criminal cases. Civil damage claims against both known and anonymous defamers are also viable and will have a predictable proliferation based on recent court decisions. Courts have rejected the claims of a “social media privilege” and have required individuals and companies to turn over usernames and passwords. Freedom of Speech under the First Amendment does not protect defamatory statements posted on the Internet, and it does not matter whether the posters use their real names or post anonymously. The true identity of defamers is relatively easy to find out if you know where and how to look for the information, using litigation tools and recent develop-
LA R ED O W EB B C OU N TY B AR AS S OC IATION
ments in cyber law. A treasured gift handed down from our founding fathers who drafted our Constitution, the freedom of speech and expression is to be used often and protected always. Everyone should stand up and speak out, freely expressing their opinions and ideas. However, those same individuals will also be held accountable for what they say under cyber law, as their freedom thankfully is not unbridled, lest criminals and civil delinquents would get a license to harm by the First Amendment. The First Amendment was not meant to protect a nation or community of cowards, who plan and plot in secrecy, throwing stones and then
running and hiding when others turn and look. It is the brave and honorable who affix their identity to what they say so that others may be able to analyze the credibility of the source and content, and be emboldened to do the same. Regardless, persistent law enforcement and civil attorneys using litigation devices and cyber law will continue to hold accountable all who misuse their cyber tools for bad deeds, even the cowards who hide behind the transparent veil of anonymous cyber speech. (Ron Rodriguez has been in private practice for 20 years. He is a 1990 graduate of the University of Texas-Austin School of Business and a 1993 graduate of the University of Texas School of Law.)
JUDICIAL R E VIE W | D E CE MB E R 20 13 | 2 0
JUDICIAL REVIEW
New laws protecting Texas newsrooms By LAURA LEE PRATHER
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ver the last three legislative sessions, newsrooms have gained significantly greater protections under Texas law. On May 13, 2009, Texas became the 37th state to enact a reporter’s privilege protectig sources and information gathered during the newsgathering process. During the next session (2011), the Texas legislature joined 27 other states in adopting an Anti-SLAPP statute aimed at providing a mechanism for early dismissal of meritless lawsuits brought against those who exercise their free speech rights. And, finally this last session (2013), Texas became the 32nd state to enact a retraction statute enabling publishers to correct their mistakes in a timely manner and limit their litigation exposure in so doing. This trifecta of First Amendment advances makes Texas one of the best states in the nation to be a journalist or media organization. Reporter’s Privilege3 (effective May 13, 2009) The Texas Free Flow of Information Act (also known as the Texas reporter’s privilege) is a qualified privilege with separate civil and criminal sections. The civil section applies to confidential and non-confidential sources, journalist’s work product and published and unpublished materials. In order to require a reporter to testify or produce materials, the party issuing the subpoena must meet the following three-part test: (1) the party must have exhausted all reasonable efforts to get the information elsewhere, (2) the information must be relevant and material to the proper administration of justice, and (3) the information sought must be essential to the maintenance of the claim or defense of the person asking for it. The criminal section, on the other hand, is separated into three parts with different tests applying to various
sources and information. When a confidential source is involved, there is an absolute privilege except when: (1) the journalist was an eyewitness to a felony, (2) the journalist received a confession of the commission of a felony, or (3) probable cause exists that the source committed a felony. In those three scenarios, the only hurdle one must overcome before calling the journalist to testify is establishing by clear and specific evidence that they have exhausted all reasonable efforts to get the information elsewhere. Further, a journalist can be compelled to give up a confidential source if disclosure is reasonably necessary to stop or prevent reasonably certain death or substantial bodily harm. With regard to unpublished materials (i.e., work product) in the criminal setting, the same three-part test as the civil arena applies. Published materials are not covered specifically by the statute but rather are governed by existing common law. The Texas reporter’s privilege also has a few unique aspects, including: (1) with criminal subpoenas, the elected district attorney is required to sign all subpoenas issued to journalists, (2) also with criminal subpoenas, the subpoenaing party is required to pay the journalist a reasonable fee for the journalist’s time and costs incurred in responding to the subpoena (the calculation of cost is based on the cost provision in the Texas Public Information Act), and (3) finally, there is a provision making broadcasts self-authenticating, like newspaper articles, so that a reporter will not have to be put on the stand solely for the purpose of authenticating a broadcast tape. With more and more newspapers putting video footage on their websites, this addition will help newspapers as well as broadcasters throughout Texas. Anti-SLAPP Statute (effective June 17, 2011) The Texas Anti-SLAPP statute is one of the strongest in the nation. It was
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passed during the 2011 legislative session and further strengthened and clarified during the 2013 session. The statute allows a judge to dismiss meritless lawsuits (including claims and counterclaims) filed against one who speaks out about a “matter of public concern” (which is defined expansively) within the first 60-90 days after the case was filed. Once an Anti-SLAPP motion is filed, discovery is stayed unless there is a showing of good cause and the judge orders discovery, but it is still limited to what is necessary to address the motion. In order to obtain a dismissal under the Anti-SLAPP statute, one must establish, by a preponderance of the evidence, that the lawsuit was filed in response to the exercise of one’s First Amendment rights. Then, the burden shifts to the plaintiff to establish, by clear and specific evidence, that they have support for each essential element of their claim. In addition, the court can dismiss the case, if the moving party establishes a valid defense to the claim. If the Anti-SLAPP motion is denied, one can file an immediate interlocutory appeal which is to be handled on an expedited basis and during which the entire underlying proceeding is stayed. Finally, there is a mandatory fee shifting provision if an Anti-SLAPP motion is granted so the person or entity wrongfully filing a lawsuit must pay the defense costs. There is also a discretionary fee award if the court finds the Anti-SLAPP motion was frivolous or brought solely for the purpose of delay. Retraction Statute (effective June 14, 2013) The Texas Retraction Statute encourages one to come forward in a timely manner if a mistake has been made in a publication and give the publisher the opportunity to correct the mistake. In order to be considered timely, one must make a retraction request during the period of limitations; however, to
be able to request exemplary damages, the request must be made within 90 days of learning about the publication. There are specific parameters that must be followed in requesting a retraction, including who to notify, how to notify, the request must state, with particularity, what is alleged to be false, and when and where the publication was made (if known). Then, the statute gives the publisher the option of correcting the mistake by publishing a correction, an apology or the requester’s own statement of facts or summary thereof. To comply with the statute, the publisher must correct the mistake within 30 days of receiving the request and in the same manner and medium as the original publication or, if that is not possible, in a prominent manner and medium intended to reach the same audience as the original mistaken publication reached. If the original publication was over the Internet, the retraction has to be permanently attached to the original article. One can still sue after a retraction is run; however, the damages will be mitigated by the retraction, and if the publisher complies with the statute by running a retraction, one cannot get exempl asking for a retraction, the publisher can get the case abated for 60 days in order to have an opportunity to cure the mistake, and all deadlines in the case are stayed during the abatement period. (Laura Lee Prather, is a partner in the Austin office of Haynes and Boone, LLP and a past president of the Freedom of Information Foundation of Texas. Prather focuses her practice on First Amendment litigation and legislation, including all forms of content protection. Laura was the drafter, lead negotiator and builder of the coalitions for all three legislative initiatives — the reporter’s privilege, the AntiSLAPP statute, and the retraction statute.) v
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JUDICIAL REVIEW
The Baby Katherine case: rejection, rage & revenge By MARISELA JACAMAN
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he tag on Baby Katherine’s size two blouse read “That’s my girl.” These words echo in my heart today as much as it did when we first saw the autopsy photos of Baby Katherine Cardenas. Baby Katherine Cardenas was from our family, our neighborhood, our community; she was Laredo’s little girl. Life is sacred; especially that of a child’s, and when that life is taken, truth and justice must prevail. Preparing for this case gave our office a heightened sense of responsibility and honor in being prosecutors. The case of José Eduardo “Lalo” Arredondo, the teenager who kidnapped, sexually abused, and murdered Baby Katherine Cardenas began in the early morning hours of September 5, 2009. This case was about rejection, rage, and revenge. The rejection of Lalo Arredondo by Baby Katherine’s mother, Patricia. The rage of Lalo Arrendondo and the revenge he took on Patricia when he snatched her youngest and most vulnerable child, Baby Katherine, as she slept on her favorite purple blankie and carried her to the back shed to commit the unimaginable. The prosecution of Arredondo began with the certification of the teenager as an adult; a process that took approximately six (6) months; he was certified on April 2, 2010. By certifying Arredondo, he would be subjected to the same punishments that are applicable to an adult — except the he could not be subjected to the death penalty and because the law changed on September 1, 2009, only four days before the crime was committed, he
would be eligible for life with possibility of parole. This is distinguished from adult capital offenders, because they are punishable for life without parole. Thus, Arredondo as a certified juvenile would be eligible for parole after 40 years for the capital murder. On June 16, 2010, our office indicted Arredondo on aggravated kidnapping, two (2) counts of aggravated sexual assault, and capital murder. We took special considerations of the new juvenile capital offender law, so we opted to file a motion to stack the two sexual offenses. Our goal was to obtain convictions on the two sexual offenses and have it served consecutively, have the second punishment begin only after the first punishment ended; effectively ensuring that Arredondo would serve a minimum of sixty (60) years before being eligible for parole. We worked for several months sorting through the evidence, meeting with experts, researching and arguing at hearings, and on March 28, 2012, the trial against Arredondo began. Every witness and the testimony elicited were strategically planned and deliberate. We wanted to answer the jury’s questions before they even asked. We wanted each juror to see, hear, and feel the case. We did that by creating visual maps and charts and through the photos. We also played audio recordings of Arredondo speaking to his father, in which he admitted this heinous crime. We outlined the expert testimony on DNA and explained the cause of her death and source of her injuries. We wanted to take the jury to the crime. It took jurors just under one hour to reach a “guilty” verdict. José Edu-
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ardo “Lalo” Arredondo was found guilty of having kidnapped, raped, and murdered Baby Katherine. The Honorable Judge Joe Lopez pronounced the sentence; four life sentences, two of which would be consecutive. Justice was done! The only way we would achieve justice was to bring Arredondo to trial to ensure he would face the maximum punishment — consecutive life sentences! “It shall be the primary duty of all prosecuting attorneys, not to convict, but to see that justice is done.” This is the oath that we, as your prosecutors, take. Justice simply defined is protecting rights and punishing wrongs us-
ing fairness. Arredondo was afforded all of his Constitutional rights. We represented Baby Katherine and this community’s rights. Our office will continue to share the lessons we learned with other law enforcement agencies to continue to serve justice. Being a public servant may not sound prestigious to some; but for us at the District Attorney’s office, it is an honor and a privilege. (Prosecutor Marisela Salinas Jacaman is the Chief Assistant Webb County District Attorney. She is a 1990 graduate of St. Mary’s University and a 1993 graduate of the University of Texas School of Law at Austin.)
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JUDICIAL REVIEW
LWCBA increasingly proactive with scholarships and CLEs
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By MARIELA RODRIGUEZ
n the last decade the Laredo Webb County Bar Association’s presence in the community has become increasingly proactive, assisting attorney members in providing quality legal services by offering continuing legal education (CLE) workshops; raising public awareness regarding legal issues; maintaining high ethical standards of professionalism; and offering pro bono services to those who cannot afford legal representation. Among the CLE topics this year were criminal law; domestic violence; U.S. Sentencing Commission guidelines; appellate court; federal estate and gift tax strategies; wills, estate, and pro-
bate law; family law; guardianship; and expunctions. “Currently we have approximately 120 members. Free membership is provided to first- year attorneys, attorneys over the age of 70, or those who have practiced law for more than 50 years,” said LWCBA executive director John Sabas Pérez. Of late the organization has devoted its energies to raising scholarships funds for pre-law students through the wildly popular WBCA event, Noche de Agave Tequila Tasting. Funds go to the Barbara Kazen Scholarship Endowment at TAMIU and the Laredo-Webb County Bar Association Endowment at LCC. “We have been community focused
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for years, but more recently we have began to support students through the endowments we created at each campus,” said Pérez, adding, “On January 24, we will have our annual Noche de Agave at Paseo Real. This fundraiser was started with the prospect of providing students a means to prepare for law school.” The Laredo Bar Foundation (LBF), a nonprofit charitable corporation that is part of the LWCBA, aims its community outreach to the Laredo-Webb County Safe Haven Noche de Niños, Bethany House, South Texas Food Bank, Veterans Serving the Need, and Hospital Civil (Nuevo Laredo). This year the LWCBA celebrated diversity by hosting its first-ever Multi-
Cultural Fest at TAMIU as part of the organization’s efforts to combat bullying and to engender a better understanding of other cultures. The event showcased the food, art, and dance of other countries. The current roster of officers of the LWCBA include president Silverio Martinez; immediate past-president Edward A. Nolen; vice president Karla Valdez; vice president of events and fundraising Anali Vargas; treasurer Guillermo “Memo” Del Barrio; director of continuing legal education Linda Garza-Martinez; and director of pro bono and community outreach Suntrease Williams-Maynard. The Laredo Webb County Bar Association was established in 1936.
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