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Houston Policing: Lessons from the Past Social and Racial Justice Through Bail Reform How the Death of George Floyd May Impact the Law George Floyd and the Connection to Houston Lawyering While Black Texas Law Schools Chart a Course Protecting the Right to Jury Service Judicial Ethics and Racial Justice

lawyer

THE HOUSTON

inside...

Volume 58 – Number 2

Race. Equality. Justice.

September/October 2020


In this year of challenges, help promote access to justice for all in our community.

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contents September/October 2020

Volume 58 Number 2

10

FEATURES

14 18

Policing: Lessons 10 Houston from the Past By David T. López

Social and Racial 14 Advancing Justice through Bail Reform By Brandon L. Garrett and Sandra Guerra Thompson

Changed the World”: 18 “Daddy How the Death of George Floyd May Impact the Law By Stacy M. Allen

18

22

Floyd and the 22 George Connection to Houston: A Call for Local Reform By Jay Jenkins

While Black: Examining 26 Lawyering the Practice of Law through the Prism of the Black Experience By Anietie Akpan and Mia Lorick

Do We Go from Here? 30 Where Texas Law Schools Chart a Course

26

30

By Andrew Pearce

Protecting Every 34 Batson: Citizen’s Right to Participate in Jury Service

By Judge Steven Kirkland, Judge Latosha Lewis Payne and Judge Ravi K. Sandill

Intersection of Judicial 37 The Ethics and Racial Justice

The Houston Lawyer

By Judge Genesis E. Draper and Judge LaShawn A. Williams

Cover: Artist Samson Bimbo Adenugba works on a mural honoring George Floyd at The Breakfast Klub on Travis Street. The mural was the product of a collaboration by the (RCA Studios Team) i.e., Reginald C. Adams Studios in downtown Houston. Artists were Reginald C. Adams, (lead artist), Samson Bimbo Adenugba, Mathieu Jeanbaptiste, Kedavian Baylor, Joshua Bennett and Avion Love​. Mr. Adenugba is a graduate of Yaba College of Technology in Lagos, Nigeria, and now lives in Houston. He is an award-winning visual journalist and social communicator who has been involved in art and design for over two decades. He says that painting the mural was an outlet for Houston artists to take a stand against racial injustice. “We cannot remain silent when things are going wrong. We must use our voice to say something in protest of wrong treatments and injustice. Art is my voice and my tool of engagement, so as I drew every brush stroke and rendering, what I was saying is NO to racial injustice and inequality. The team, through our visual creative tools, is hoping to influence change in our society.”­ To learn more about Adenugba’s work, visit www.bimboadenugba.com or @art-of-bimboadenugba, or his studio at Silver Street Studios on Edward Street.​ Elizabeth Conley/©Houston Chronicle. Used with permission​. The Houston Lawyer (ISSN 0439-660X, U.S.P.S 008-175) is published bimonthly by The Houston Bar Association, 1111 Bagby Street, FLB 200, Houston, TX 77002. Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1111 Bagby Street, FLB 200, Houston, TX 77002. Telephone: 713-759-1133. All editorial inquiries should be addressed to The Houston Lawyer at the above address. All advertising inquiries should be addressed to: Quantum/ SUR, 10306 Olympia Dr., Houston, TX 77042, 281-955-2449 ext 1, www.thehoustonlawyer.com, e-mail: leo@quantumsur.com. Views expressed in The Houston Lawyer are those of the authors and do not necessarily reflect the views of the editors or the Houston Bar Association. Publishing of an advertisement does not imply endorsement of any product or service offered. ©The Houston Bar Association/QuantumSUR, Inc., 2019. All rights reserved.

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contents September/October 2020

Volume 58 Number 2

39

40

departments Message 6 President’s Listening and Learning from

Diverse Voices By Bill Kroger

the Editor 8 From Justice and Equality for All:

This Is Not Controversial By Anna M. Archer

Milestones 39 HBA Bringing the Bar Back to the

Community: Habitat for Humanity By Anna M. Archer

41

43

THE RECORD 40 OFF Tom Berg: Strengthening Our

Democracy, One Voter at a Time

By Cindy Dinh

Profile in professionalism 41 AVivian King

Chief of Staff, Harris County District Attorney’s Office

Spotlight 42 Committee Weathering the Storm: HBA’s

Inaugural Disaster Preparedness Committee By Kimberly A. Chojnacki

46

Spotlight 43 Section Health Law Section: Pandemic-

era Programming

By Kimberly A. Chojnacki trends 44 legal Passwords & Security: An Ethical

and Technical Guide for Lawyers By Trey Peacock

Use It or Lose It: SCOTX Draws Line for Implied Waiver by Litigation Conduct By Luke Ott

reviews 46 Media Antiracist Reading List

Compiled by Christina Beeler

The Houston Lawyer

Harvard’s Implicit Association Test Regarding Race Reviewed by Koby Wilbanks

48 Litigation MarketPlace 4

September/October 2020

thehoustonlawyer.com


president’s message By Bill Kroger

Listening and Learning from Diverse Voices Baker Botts L.L.P

T

The Houston Lawyer

he Houston Bar Association has a remarkable history, but it is marred by its early segregation which persisted for 90 years. I have read decades of The Houston Lawyer articles to prepare for this bar year. During the late 1960s, there were columns written about the need for law and order; I saw no articles from that era written by Black leaders, or any written expression of grief or outrage over civil rights violations or murders from that era. It is therefore appropriate to mark our 150th Anniversary with an issue dedicated to justice and anti-racism, enhancing our path forward. I have never personally experienced systemic racism, or feared police enforcement or the justice system. And I have struggled with effectively recruiting, mentoring, and retaining Black lawyers. For these reasons, I found the views and opinions of our writers in this edition challenging and important to read. I hope you do too. My first direct experiences with racial divisions were relatively mild but remained lifetime memories. They arose when I worked in my family’s music company. It was through the music store that I learned to love music from artists like James Brown, B.B. King, Muddy Waters, Marvin Gaye, The Isley Brothers, Lightnin Hopkins, and Bob Marley. They remain important and lasting heroes for me. But the music industry was more segregated in the 1970s. White kids in my neighborhood generally didn’t listen to Parliament or the Kashmere “Thunder Soul” Stage Band. The marketing of music was also segregated. One of my jobs was sorting new records and tapes based on categories provided by music distributors. Records by white artists were placed in sections called “Male Vocals” and “Vocal Groups”; Black artists like Jimi Hendrix, Bill Withers, and even Michael Jackson at his popular peak, were placed in sections with black labels called “Jazz” or “Soul.” It was a practice dating back to the 1920s when the industry called Black music “Race Records.” One day in the late 1970s, Fats Domino’s band came into our Memorial City store. I tried to help his bass player with some items he needed. I knew all of Domino’s songs, and it was an honor to meet his band. Yet, the bass player took it as an insult, thinking that he was being disrespected by having a boy wait on him. Looking back, I understand why he felt that way. At the University of Texas Law School, I spent a year work6

September/October 2020

thehoustonlawyer.com

ing on a committee with Dean Bill Powers on admissions and saw the challenges that Black applicants faced getting into law school. When I became a young lawyer, these experiences motivated me to want to mentor Black law students and lawyers and help them succeed at our firm. I started a legal internship program with Communities in Schools for outstanding students attending at-risk schools. That program has been ongoing for 30 years and is now an HBA program. Many Black youths got their first jobs through that program. But over the years, I struggled to make any real measurable progress mentoring Black lawyers. I currently don’t have any Black lawyers who work within the practice group I lead. Over the years, I didn’t regularly serve on employment committees but, instead, like many, became more preoccupied with family, work, and other projects. I have mentored many other diverse lawyers over the years, but on helping Black lawyers succeed within my group, I mostly failed. Maybe Domino’s bass player was right to be disappointed in the young man before him. That is why many of us—including yours truly—need to listen, learn, and decide what we can do better. We live in a country that has great potential and a bright future if it can effectively engage, include, and respect its many diverse residents. Most people have good hearts and want to work and live in diverse communities. But if this is to be achieved, we all have to roll up our sleeves and become engaged. COVID-19 and George Floyd’s murder are wake-up calls for action. We have unfinished business, and must improve economic opportunity, health care, and our police and justice systems so that all have equal access to essential services and receive fair treatment. I believe that the legacy of slavery, systemic racism, and bigotry facing Black Americans for hundreds of years presents a special case deserving attention, but these concerns also extend to all diverse members of our city facing such obstacles. All sides and views on these issues need to be heard, with more compassion and less hate and intolerance. We also need collaboration across schools, communities, families, churches, companies, non-profits, law enforcement, government, and law firms. I hope reading the voices of concern expressed in these pages motivates and inspires the wonderful members of the Houston Bar to take the needed steps forward.


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September/October 2020

7


from the editor By Anna M. Archer U.S. District Court

Associate Editors

Anietie Akpan METRO

Brooksie Bonvillain Boutet Shipley Snell Montgomery LLP

Kimberly Chojnacki Baker Donelson

Elizabeth Furlow Baker Botts

The Houston Lawyer

Andrew Pearce BoyarMiller

Koby Wilbanks Murrah & Killough

8

Justice and Equality for All:

This Is Not Controversial

W

e started discussing covering social or racial justice in this issue shortly after George Floyd’s death. While I was excited about the opportunity to inspire Houston lawyers, I was also apprehensive. We had all witnessed George Floyd’s tragic death on our televisions or computer monitors. Everyone was outraged. Both my conservative and liberal friends and colleagues were appalled. On this, we were united, but the divisions in our society quickly re-emerged. I am hoping this issue of The Houston Lawyer will bring back into focus something about which all lawyers agree—equality and justice. “Racial Justice” is defined as “the systematic fair treatment of people of all races that results in equitable opportunities and outcomes for all.”1 This is not a controversial definition. It’s something we all want to ensure in Houston and beyond. It is, however, not easy. While I wish this issue provided a clear roadmap of the problems our city and nation still face with regard to racial equality and laid out solutions everyone agrees with, that is an impossible task. We all look at the world through different lenses, and the solutions are not one size fits all. That being said, we each have a role in ensuring that all people in our community are given the dignity and respect they deserve and that Lady Justice’s blindfold remains intact. So, as you read through the issue, ask yourself, what can I do to inspire justice and equality for all? Before reading the articles in this issue, I reflected on Oliver Wendell Holmes’s advice—“It is in the province of knowledge to speak, and it is the privilege of wisdom to listen.” Now, more than ever, is the time to listen. We are fortunate that the authors in this issue, who knew that not all would agree with them, were willing to share their thoughts with our community in an effort to help us think about these issues, learn, and grow. David Lopez provides a haunting look at police violence in two Houston cases from the 1970s and encourages us to learn from the past. Professors Thompson and Garrett inspire us with evidence that real change is possible and that Houston can be in the forefront with their article that discusses their monitoring work on the ODonnell Consent Decree relating to bail reform. Stacy Allen summarizes

September/October 2020

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the legislation that has been proposed in response to cries for police reform, and Jay Jenkins writes about the changes that have been made in local law enforcement and challenges local authorities to continue this momentum. The issue then turns to racial justice in the legal profession and education. Anietie Akpan and Mia Lorick confront us with the reality that our Black colleagues often face when practicing law while Black in Houston. They also inspire us to become allies for our friends and colleagues who must deal with this unfortunate reality. Then, Andrew Pearce provides an update on how the law schools in Texas are ensuring racial justice in legal education. Finally, we turn to the courts and are honored to have input from five members of the judiciary. Judges Sandill, Kirkland, and Payne educate about Batson challenges and challenge judges and lawyers to discuss, learn about, and use Batson challenges more often so that we can ensure diverse juries. Then, Judges Draper and Williams provide insight into the struggle judges face when attempting to balance their ethical obligations to remain impartial with their desire to remain engaged in the community. Before closing, I want to thank the Guest Editors for this issue, Koby Wilbanks and Ben Sanchez, and the Articles Editor, Anietie Akpan. This was a challenging topic, and they did a great job putting together sub-topics that will be helpful to our readers. I also want to thank the authors, some of whom stepped outside their normal comfort zones to write for this issue, the editors who edited the articles of this issue, the associate editors, and everyone who contributed ideas or suggested authors. And, thank you to all the Board members who accepted my challenge to take the Harvard implicit bias test on race to provide data for Koby Wilbanks’s Media Review (see page 46). This issue was truly a group effort, and all involved worked with the intention of promoting equality and justice. I hope each member of the HBA finds something inspirational in the following pages. Endnotes

1. Nat’l Educ. Ass’n, Racial Justice in Education: Resource Guide, https://neaedjustice.org/wp-content/uploads/2018/11/Racial-Justicein-Education.pdf (last visited Aug. 25, 2020).


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Diana Gomez

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September/October 2020

9


LAW ENFORCEMENT

By David T. López

Houston Policing:

Lessons from the Past

P

olice brutality incidents in Houston in the 1970s1 presaged the current demonstrations of frustration and anger against law enforcement agencies. Questions persist. Does ethnicity or race affect how individuals are treated by police? If there is a systemic problem, can it be effectively addressed through the laws? On August 29, 1975, a going-away party was held for a University of Houston doctoral Joe Campos Torres was a veteran of the Vietnam War. student. Attending were about 60 present and former university students. They included lawyers and several activists of La Raza Unida Party, some of whom had been candidates for local and statewide office. The party was held at a private residence in the near East Side, not far from the university. As the party was ending, Elliott Navarro and his soon-to-be-spouse got into an argument on the street outside the party. A Houston Police unit patrolling the neighborhood stopped to investigate. The two police officers were told it was just a disagreement, but offered to drive Navarro’s girlfriend home. When Navarro protested, the police angrily attacked him. The party was breaking up, and Daniel Bustamante, a host, saw the police with Navarro. Bustamante asked Douglas DeBakey, licensed the previous year and the only lawyer left at the party, to go with him to check the situation. Eduardo Canales and Fred Garza, Bustamante’s friends and fellow political activists, followed Bustamante and DeBakey. The four men found Navarro groaning in

physical distress. DeBakey identified himself to the police as a lawyer and attempted to get information. One of the police officers drew his revolver and pointed it at Bustamante, Canales, and Garza, ordering them away. As he was walking toward the sidewalk, Bustamante was struck on the head with a flashlight, and he turned to see Canales and Garza also being beaten. Another police unit arrived, and two other police officers joined in the assault. Navarro, by that time, had been thrown to the ground, picked up, and put into a patrol car. About a dozen party guests witnessed the incident, including Mrs. DeBakey and other women who were crying and loudly protesting. Bustamante, Canales, Garza, and DeBakey were arrested and charged with assault and interference with the police. Bustamante, his head, face, and shirt covered with blood, asked to be taken to a doctor, but he was taken to jail with the others. DeBakey’s family posted his bail bond. Bustamante, Canales, Garza, and Navarro spent the night in jail until the DeBakey family posted their bail in the morning. Charges eventually were dismissed in municipal court against all except Navarro, who entered a guilty plea to a misdemeanor charge. In October, 1976, Bustamante, Canales, Garza, and Navarro filed a federal civil rights lawsuit, Bustamante v. Hofheinz,2 against the four police officers, the police chief, and the mayor. The plaintiffs’ claims against a federal agency that challenged the funding of police programs were dismissed because the issue had not been administratively presented. The remaining claims were set for trial. During the pendency of the Bustamante suit, there was an occurrence so grievous that it drew considerable national attention. It happened in 1977 on May 5th, Cinco de Mayo, a date celebrated by Mexican-Americans with pride, and similar, but not yet quite as boisterous, as St. Patrick’s Day. On that day, 23-year-old Jose “Joe” Campos Torres went to drink at a canti-


na. He was a veteran of the Vietnam War, who upon his return home had planned to open a karate school to teach Chicano kids how to defend themselves. Torres got into an argument with the bar owner, and police were called. There might have been mention in the call about Torres’s defense skills because six police officers responded. They arrested Torres, handcuffed him, and drove him to a secluded spot bordering a bayou. It was a “hole,” one of several places used by police to get away for a quiet time. One of the six officers, who only recently had joined the force, subsequently described in court testimony what occurred. The five other officers made a semi-circle around Torres and proceeded to curse and beat him. Throughout the attack, Torres remained handcuffed. They left him in such a poor physical condition that when Torres was taken to be booked and jailed, the Desk Sergeant would not accept him. He ordered that Torres be taken to Ben Taub Hospital for treatment. Instead, Torres was returned to the “hole” for more abuse. His handcuffs were removed and he was spread-eagled on a patrol car. Seeking to be freed, Torres told the officers that he had served as an Army Ranger. To that, an officer responded, “Let’s see if this wetback can swim.”3 Torres was taken to the edge and pushed into the bayou, more than 20 feet below. Torres drowned. His body was recovered three days later, on May 8th, and his family was informed.4 It was Mother’s Day. The rookie was told to destroy his report of the incident, to shut up and not worry about it.5 Believing that Torres, although badly beaten, had survived, and fearing retaliation, he did not report the incident until the day after Torres was found dead. All six officers were then fired. Two of the officers were indicted by a Harris County Grand Jury on charges of murder. One other officer was charged with misdemeanor assault. The other

of up to $1,000. officers were granted immunity in exU.S. District Judge Ross N. Sterling ischange for their testimony at trial. sued a ten-year suspended sentence for An all-White jury in a state district the officers, but the sentences were apcourt convicted the officers on a reduced pealed and overturned by the Fifth Circharge of negligent homicide, a misdecuit Court of Appeals. Upon remand meanor, and the judge sentenced them to of the case, one-year proJudge Sterbation and a ling imposed fine of $1.00. jail terms of Public proone year and tests that the one day in sentence was prison.6 With too lenient led to the credited time, U.S. Justice the three forDepartment mer officers conducting a were in prisfederal inves- The bayou location known as “the hole.” on for nine tigation. Three of the officers were inmonths each. dicted and convicted of civil rights violaThe year after Torres’ death, the Latino tions. One count, violation of civil rights community had gathered at Moody Park in which death results, is a felony with a for a Cinco de Mayo celebration. Recolmaximum penalty of life in prison. The lections of Torres’s killing tempered the other, violation of civil rights by intimicelebratory mood. A disturbance, so midation, a misdemeanor, has a maximum nor that the cause is now not recalled, punishment of one year in jail and a fine led to police arriving, provoking an an-

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at their counsel table. gry reaction. There were yells of “Are you In response to the Torres killing, going to arrest us? Are you going to do then Houston Mayor Fred Hofheinz reus like Joe?” It culminated in rioting. A marked, “There is something loose in policeman was struck by a car and his this city that is an illness.”7 Soon after leg was broken. One reporter was struck by a brick and another stabbed in the the discovery of Torres’s body, the City leg. Police cars were set afire. Shops were implemented its first internal affairs diburned and looted. vision. Citizens’ review panels were later While controversy still raged over the established, as was an ombudsman to sentencing of the police who attacked assist in resolving claims of police misTorres, the Bustamante case came up for treatment. Today’s Chief of the Houston trial. Presiding was Judge Sterling. The Police Department is a Latino. Is there Latino plaintiffs presented evidence of more to be learned from events of more their injuries. Most striking was a phothan 40 years ago? tograph of Navarro’s face as he lay on Some might say that the answer can be the ground. On his head was imprinted stated in three letters—“BLM” 8 —in view the logo from the heel of a of the extended public policeman’s boot. The mark protests of George Floyd’s evidently could not have murder. Others could been the result of a kick, but consider that as a valid, Most striking was rather, of the officer’s stepcomparative lesson, but ping very firmly on his head a photograph of also could consider it to for some time. be deceptively superfiNavarro’s face as he The police defendants cial. It might not directly lay on the ground. answer how mistreatclaimed that there had been a lawful arrest because an ofOn his head was ment by police of minorificer had noticed a bulge on ties can be avoided. imprinted the logo Navarro’s shirt and discovConsider that Stephen ered a marijuana cigarette. from the heel of a Orlando, one of the two They denied injuring the officers convicted in the policeman’s boot.” plaintiffs. As their main witTorres case, is the son of a ness, the police defendants police detective and a popresented the youngest and newest offilice dispatcher, with two older brothers cer. As in the Torres case, however, that who served as Houston police officers. It officer candidly described a time when would not be difficult to picture Orlando he had been instructed to lie to conceal as someone who could share a friendly misconduct by a fellow officer. beer with a former Army Ranger at an The jury returned a verdict against East Side cantina. the police, awarding $15,000 in personal In different circumstances, would the injury damages and $12,500 in punitive policeman who bloodied Bustamante damages. After trial, jurors disclosed with a flashlight while pointing a revolvthat at one time they had voted 5-1 to er have attacked him if he had known award plaintiffs the entire $50,000 damBustamante as a two-year law student ages that they had sought. Judge Sterdedicated to child welfare and treatment ling awarded the $25,000 sought by the of drug abusers? plaintiffs as attorney’s fees. The police Looking back to 1975, we can ponder were defended by the Houston City Atwhether criminal or civil punishment torney’s Office, and the damages and atof police for abusing minorities might torney’s fees were paid by the City. avoid further problems. Or is this an area As soon as the jury and the judge exin which history repeats itself? Mexiited the courtroom, the police officers can-Americans in Houston still include began throwing and kicking the chairs remembrances of Joe Campos Torres in

‘‘

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their celebrations of Cinco de Mayo. Perhaps the entire community could join the observance at least for the day. In 1867, observing the restoration of the Mexican Republic, following the defeat of French troops on Cinco de Mayo, Benito Juarez, President of México, declared, “Entre los individuos, como entre las naciones, el respeto al derecho ajeno es la paz” [Among individuals, as among nations, respect for the rights of others means peace]. David T. López, a former journalist, civil rights litigator and now domestic and international arbitrator and mediator, was the plaintiffs’ attorney in the Bustamante case. Endnotes

1. The facts of the cases discussed in this article are from the author’s recollection as a practitioner during this time period and a lawyer on the Bustamante case. 2. The trial in Bustamante v. Hofheinz, Civil Action No. 76-H-1771, was on June 27–29, 1979, in the U.S. District Court for the Southern District of Texas, U.S. District Judge Ross N. Sterling presiding. The case documents are on file with the author. 3. Houston Policeman Testifies Against Colleagues in Chicano’s Slayings, N.Y. TIMES, Sept. 19, 1977, https:// www.nytimes.com/1977/09/19/archives/houstonpoliceman-testifies-against-colleagues-in-chicanosslaying.html. 4. Id. 5. Id. 6. Billy Curry, 1-Year Sentences Imposed in Houston Brutality Case, WASH. POST, Oct 31, 1979, https://www. washingtonpost.com/archive/politics/1979/10/31/1year-sentences-imposed-in-houston-brutalitycase/26bd9c2f-ff7b-4228-9e31-cbe7c8284187/ 7. Tom Curtis, Police in Houston Pictured as Brutal and Unchecked, WASH. POST, June 13, 1977, https://www. washingtonpost.com/archive/politics/1977/06/13/ p ol ic e-i n-hou st on-pic t u r e d- a s - br ut a l- a n du n c h e c k e d / b a c d b d e d -32 65 - 4 e79 - a c 5 a 48ed6e47ad23/. 8. BLACK LIVES MATTER, https://blacklivesmatter.com/.

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I Advancing Social LAW ENFORCEMENT

By Brandon L. Garrett and Sandra Guerra Thompson

and Racial Justice through Bail Reform

I, Loetha Shanta McGruder, am a 22-yearold woman. I was arrested on May 19, 2016, for a misdemeanor in Jacinto, Texas. I was taken to the Harris County Jail early on Friday morning, May 20. A sheriff’s deputy told me that my bond was $5,000, and that if I could post the bond I would be released. I can’t afford to pay. I saw a judge on a TV screen who said he found probable cause and told me my bail is $5,000. I was told my court date would be on Monday, May 23. I knew that because I cannot afford to pay that amount, I would have to stay in jail until then. I was never asked if I could afford my bail. I have two children, one is 4 years old and another who is almost ten months old. My older child has Downs syndrome along with other medical needs. I am pregnant. I am going to apply for Medicaid so I can get an OB/GYN. I am indigent. I have no money or savings. My only sources of income are disability payments and child support. The disability payments are to help support my son with Downs syndrome. I have no job. I am going to apply for food stamps. I live with my boyfriend. We share household expenses. When I find work, I contribute what I can.1

n 2016, Loetha Shanta McGruder, like thousands of others in Harris County that year, suddenly found herself locked up in the Harris County Jail, the third largest jail in the country, solely because she was too broke to make bail. For a nonrefundable fee (10% of the bond amount—$500 in McGruder’s case), commercial bondsmen regularly arrange to release people of means within a few hours. This convenient option was unavailable for a poor person like McGruder. McGruder joined with Maranda ODonnell and other plaintiffs to challenge the Harris County misdemeanor bail system in federal court. Harris County’s bail system, like those in many other jurisdictions in Texas and around the country, allowed people with money to walk out of jail within a few hours, with minimal disruption to their lives. For people with means, an arrest did not usually result in losing their jobs or leaving children unattended, and the trauma and danger of time spent in jail was minimal. But for a poor person, an arrest for a minor crime could have devastating effects. Those effects are heightened post-COVID, when jails have become some of the nation’s largest epicenters of the pandemic. We write to describe the ODonnell class action litigation and the resulting Consent Decree. From our perspective as the court-appointed monitors in the case, we can report that Harris County’s bail practices have fundamentally changed for the better and continue to improve—but also that much work remains to be done. The ODonnell Consent Decree has the potential to set a national model for pretrial reform in advancing social and racial justice while promoting public safety. The Misdemeanor Bail Reform Lawsuit in Harris County In 2016, ODonnell and other plaintiffs brought a federal class action against Harris County and moved for a preliminary injunction to end the practices that unfairly kept the poor locked up. On a typical night, 500 people arrested for misdemeanors were detained in the Harris


County Jail.2 Between 2009 and 2015, 55 people who could not afford bail died in Harris County Jail while awaiting trial.3 It bears mentioning that these people were not in jail serving a sentence after being convicted of a crime—they were merely awaiting their day in court and thus presumed innocent. At the time the lawsuit was filed, arrestees in Harris County appeared before magistrates without the assistance of attorneys to speak on their behalf. Nor were they allowed to speak in their own defense. They were not informed of their rights. In hearings that typically lasted only a minute or two, magistrates almost invariably set bail amounts according to a fixed bail schedule without regard to a person’s ability to pay.4 Poor people like McGruder languished in the Harris County Jail, at exorbitant taxpayer expense. They were not jailed because they presented a danger to society or a risk of flight. The only difference between people like McGruder and those who walked out of jail was the ability to pay. Needlessly locking up the poor has another bad consequence for the community: Studies show that holding a lowrisk person in jail, even for just a day or two, significantly increases the likelihood of her committing another crime after release.5 Low-risk people become more likely to commit future crimes if we lock them up than if we release them. Moreover, poor people in jail face the choice of agreeing to plead guilty as a means of getting out sooner or staying in a jail cell for weeks or months awaiting a trial date. Not surprisingly, studies show pretrial detainees were less likely to have their cases dismissed and more likely to plead guilty and be sentenced to a jail term as compared to similar defendants who got out of jail pretrial.6 The unfairness of the Harris County misdemeanor bail practices also exacerbated racial disparities in the Harris County jail population. As the Federal District Court noted, a 2011 study showed that in Harris County, 70 percent of white misdemeanor defendants obtained early

pretrial release from detention, but only 52 percent of Latino misdemeanor defendants and 45 percent of African-American misdemeanor defendants did so.7 While convictions for non-violent drug offenses have driven mass incarceration in federal and state prisons, the money bail system has driven it in county jails, wasting taxpayer dollars to lock up the poor, and, disproportionately, racial minorities, for no reason other than their inability to pay. The district court relied on a comprehensive set of factual findings in concluding that “Harris County’s [bail] policy and practice violates the Equal Protection and Due Process Clauses of the United States Constitution.”8 The ODonnell Consent Decree After three years of litigation, the parties reached a settlement resulting in a landmark Consent Decree, which was approved on November 21, 2019.9 The ODonnell Consent Decree sets forth a blueprint for creating a constitutional and transparent pretrial system to protect the

due process and equal protection rights of misdemeanor arrestees. Its terms envision transformative and lasting change. First, the Consent Decree incorporates the new Amended Local Rule 9 of the Harris County Criminal Courts at Law, which rescinded the secured money bail schedule, and provides for a new set of procedures. Effective since February 16, 2019, preceding the Consent Decree, Amended Local Rule 9 requires prompt release of misdemeanor arrestees except those arrested for six carve-out categories of offenses such as offenses allegedly committed while out on bond or community supervision, DWI second offenses, and family violence offenses. 10 Persons arrested for misdemeanors that do not fall within the list of carveout offenses must be promptly released under General Order Bonds which do not require a monetary payment. Persons arrested for misdemeanors on the carve-out list must promptly receive a hearing before a magistrate. For these arrestees, pretrial conditions, including financial con-

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ditions, may be set, but only if supported by clear and convincing evidence. Public defenders attend the hearings to represent all misdemeanor defendants. These attorneys meet with each arrestee before the hearing and gather other information to use in each person’s defense. Second, the Consent Decree introduces many improvements in the handling of misdemeanor cases. It offers muchneeded flexibility and clarity in scheduling court appearances for misdemeanor defendants, providing options for waiving or rescheduling appearances. Court forms have been translated into Spanish and other languages for the first time, which will more effectively inform arrestees of their rights and responsibilities. Further, a new court date notification system will provide text and voice messages and emails in English, Spanish, Chinese, and Vietnamese. A study will also examine the causes of nonappearance and possible remedies to address those causes. Plans are in place to provide training on the Consent Decree policies. Another county project aims to improve the standards for effective representation in indigent defense. Third, the Consent Decree provides transparency through the collection and dissemination of data. County officials will make available robust data, including decisions regarding misdemeanor pretrial release and detention, demographic and socioeconomic information of arrestees, and prior data dating back to 2009.11 County officials will also hold public meetings and issue reports on the status of Consent Decree implementation, which will be published online every 60 days.12 Finally, the Consent Decree calls for a Monitor, with a set of responsibilities to evaluate compliance with the Consent Decree and to approve a range of decisions to be made as the Consent Decree is implemented. On March 3, 2020, we were honored to be appointed to serve as Monitors for the Consent Decree. Our Monitoring Work The principal task of this monitorship is to 16

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report to the Court as we oversee and support Harris County officials implementing a new pretrial justice system that restores the public’s trust, safeguards constitutional rights, and accomplishes the twin aims of bail: to keep the community safe and promote the integrity of judicial proceedings by preventing defendants from fleeing justice. As the Consent Decree states, it “is intended to create and enforce constitutional and transparent pretrial practices and systems that protect due process rights and equal protection rights of misdemeanor arrestees.”13Despite the crisis posed by COVID-19, remarkable progress has already been made on account of the adoption of Amended Local Rule 9 and the Consent Decree. We have seen a dramatic increase in the proportion of misdemeanor arrestees released promptly (on the same day or next day) without any secured financial conditions. The share jumped from approximately 66 percent in 2016 to nearly 80 percent in 2019. In 2015, more than 10 percent of misdemeanor defendants were detained for more than 14 days, but that figure dropped to less than six percent in 2019. Prior to the implementation of Rule 9 in 2019, most misdemeanor cases did not involve a personal or general order bond. After Rule 9’s adoption, the vast bulk of misdemeanor arrestees (more than 70 percent of the cases in 2019 and 2020) gain pre-trial release under personal or general order bonds, which require no secured financial payment. Under Rule 9, Harris County judges are releasing more people pretrial than in the past, and this has proven to be a benefit for public safety. The rule has significantly reduced the length of pre-trial detention and dramatically reduced the reliance on secured bonds, meaning that far more defendants are returned to the community. Yet the rate of recidivism has remained largely stable over the last few years. Rule 9 has also reduced racial disparities. In 2015 and 2016, for example, the share of Black arrestees who gained their freedom was considerably lower than white arrestees.14 This disparity was al-

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most entirely eliminated following adoption of Rule 9 in early 2019. In short, the fundamental transformation of Harris County’s misdemeanor bail system has begun, and it is already reaping benefits in equalizing the playing field for the poor, reducing racial disparities, and improving public safety. Nevertheless, much remains to be done. We look forward to working with county officials as they strive to implement innovative and effective approaches to pretrial justice. Brandon L. Garrett, , the L. Neil Williams, Jr. Professor of Law at Duke University School of Law, and Director of the Center for Science and Justice, serves as the Monitor for the ODonnell Consent Decree. Sandra Guerra Thompson, the Newell Blakely Chair and Director of the Criminal Justice Institute at the University of Houston Law Center, serves as Deputy Monitor. For more information, see https://sites.law. duke.edu/odonnellmonitor/. Endnotes

1. The First Amended Class Action Complaint, Ex. 2, ODonnell v. Harris Cty., Tex., No. 16-cv-1414 (S.D. Tex. Sept. 1, 2016), ECF No. 54. 2. First Amended Class Action Complaint at 2, ODonnell v. Harris Cty., Tex., No. 16-cv-1414 (S.D. Tex. Sept. 1, 2016), ECF No. 54. 3. Id. 4. ODonnell v. Harris Cty., Tex., 251 F. Supp. 3d 1052, 1100–01 (S.D. Tex. Apr. 28, 2017). 5. CHRISTOPHER T. LOWENKAMP, ET AL., THE HIDDEN COSTS OF PRETRIAL DETENTION, ARNOLD FOUND. 11 (2013), available at https:// craftmediabucket.s3.amazonaws.com/uploads/ PDFs/LJAF_Report_hidden-costs_FNL.pdf. 6. Prior research in Harris County has found that for similarly situated individuals, those detained for misdemeanors pretrial were “25% more likely to be convicted and 43% more likely to be sentenced to jail.” Paul Heaton et al., The Downstream Consequences of Misdemeanor Pretrial Detention, 69 STAN. L. REV. 711, 717 (2017). 7. ODonnell, 251 F. Supp. 3d at 1122. 8. Id. at 1060. 9. See Consent Decree, ODonnell v. Harris Cty., Tex., No. 16-cv-01414 (S.D. Tex. Nov. 21, 2019), ECF No. 708, available at https://www.clearinghouse.net/ chDocs/public/CJ-TX-0010-0025.pdf. 10. Memorandum and Opinion at 6–7, ODonnell v. Harris Cty., Tex., No. 16-cv-01414 (S.D. Tex. Nov. 21, 2019), ECF No. 707; see also HARRIS CTY. CRIM. CT. AT LAW, R. OF CT. 9 (am. Apr. 22, 2020), http:// ccl.hctx.net/attorneys/rules/Rules.pdf. 11. Consent Decree, supra note 9, ¶¶ 83–85. 12. Id. ¶¶ 87–88. 13. Id. ¶ 2. 14. See Heaton et al, supra note 6, at 736.


Equal Access Champions The firms and corporations listed below have agreed to assume a leadership role in providing equal access to justice for all Harris County citizens. Each has made a commitment to provide representation in a certain number of cases through the Houston Volunteer Lawyers. Large Firm Champions Baker Botts L.L.P. Bracewell LLP Hunton Andrews Kurth LLP Kirkland & Ellis LLP Locke Lord LLP Norton Rose Fulbright US LLP Vinson & Elkins LLP

Corporate Champions CenterPoint Energy, Inc. Exxon Mobil Corporation Halliburton Energy LyondellBasell Industries Marathon Oil Company Shell Oil Company

Mid-Size Firm Champions Akin Gump Strauss Hauer & Feld LLP BakerHostetler LLP Beck Redden LLP Chamberlain Hrdlicka Clark Hill Strasburger Foley & Lardner LLP Gibbs & Bruns LLP Gray Reed & McGraw, P.C. Greenberg Traurig, LLP Haynes and Boone, L.L.P. Jackson Walker L.L.P. Jones Day King & Spalding LLP Morgan, Lewis & Bockius LLP

Porter Hedges LLP ReedSmith LLP Winstead PC Winston & Strawn LLP

Shortt & Nguyen, P.C. Squire Patton Boggs (US) LLP Trahan Kornegay Payne, LLP

Individual Champions Boutique Firm Champions Abraham, Watkins, Nichols, Sorrels, Agosto, Aziz & Stogner Blank Rome LLP Dentons US LLP Fullenweider Wilhite PC Hogan Lovells US LLP Jenkins & Kamin, L.L.P. McDowell & Hetherington LLP Ogden, Broocks & Hall, L.L.P. Ogletree, Deakins, Nash, Smoak & Stewart P.C. Weycer, Kaplan, Pulaski & Zuber, P.C. Wilson, Cribbs & Goren, P.C. Yetter Coleman LLP

Small Firm Champions Coane & Associates Frye, Benavidez and O’Neil, PLLC Fuqua & Associates, P.C. Gibson, Dunn & Crutcher LLP Givens & Johnston Katine & Nechman L.L.P. Katten Muchin Rosenman LLP KoonsFuller, P.C. MehaffyWeber, P.C. Quinn Emanuel Urquhart & Sullivan, LLP Rapp & Krock, PC

Law Office of Peter J. Bennett Law Office of Travis A. Bryan I, PLLC Burford Perry, LLP The Dieye Firm The Ericksen Law Firm Law Office of Todd M. Frankfort Hasley Scarano L.L.P. David Hsu and Associates The Jurek Law Group, PLLC Law Firm of Min Gyu Kim PLLC The LaFitte Law Group, PLLC Law Firm of Catherine Le PLLC C. Y. Lee Legal Group, PLLC Law Office of Gregory S. Lindley Martin R. G. Marasigan Law Offices McGarvey PLLC Law Office of Evangeline Mitchell, PLLC Rita Pattni, Attorney at Law Pilgrim Law Office Law Office of Robert E. Price The Reece Law Firm, PLLC Law Office of Cindi L. Rickman, J.D. Sanchez Law Firm Law Office of Jeff Skarda Angela Solice, Attorney at Law Diane C. Treich, Attorney at Law Law Office of Norma Levine Trusch Trey Yates Law

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LAW ENFORCEMENT

By Stacy M. Allen

“Daddy Changed the World”:

How the Death of George Floyd May Impact the Law

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n May 25, 2020, a video capturing the last moments of the life of George Floyd uttering the words “I can’t breathe” as the knee of an officer remained on his neck went viral. The next day protestors began marching in the streets of Minneapolis demanding justice for George Floyd. That spark spread like wildfire leading to protests in all 50 states and internationally, from Europe, to Asia and Afr ica.

The sustained protests awakened an examination of a racist and broken criminal justice system. The cries for justice on the streets reached the halls of Congress, leading to police reform legislation in the U.S. House and Senate as well as in the Texas Legislature. A. The House Bill On June 8, 2020, House Democrats introduced H.R. 7120, the George Floyd Justice in Policing Act (the “House Bill”), which they hailed as the “the first-ever bold, comprehensive approach to hold police accountable, end racial profiling and change the culture of law enforcement.”1 The George Floyd Justice in Policing Act bans the use of deadly force by federal law enforcement, including chokeholds and carotid holds, “except as a last resort to prevent imminent and serious bodily injury.” The House Bill harnesses Congress’s power of the purse by conditioning funding to state and local governments through the Byrne Memorial Justice Assistance (Byrne) and Community Oriented Policing Services (COPs) grant programs on their adoption of a law prohibiting the use of chokeholds and carotid holds, the type of hold that took the life of George Floyd. Restricting funding through Byrne and COPs is significant because the two federal programs have helped expand police funding by over 200 percent since 1980.2 The House Bill also targets the controversial use of no-knock warrants, which came under scrutiny after the death of Breonna Taylor, a Black woman employed as a frontline medic who was at home sleeping on March 13, 2020, when police, utilizing a no-knock warrant, entered her home and riddled it with bullets, killing Taylor. The House Bill forbids “no-knock warrants” in federal drug cases and conditions funding to state and local law enforcement agencies on adopting a policy to that effect. The proposed law also addresses “qualified immunity,” a legal protection that shields government officials from li-


ability for misconduct. In the 1982 U.S. Supreme Court case Harlow v. Fitzgerald, the Court held that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”3 The House Bill would amend 42 U.S.C. § 1983 to eliminate the defense that the defendant was “acting in good faith, or that the defendant believed, reasonably or otherwise, that his or her conduct was lawful at the time when the conduct was committed.”4 The measure also would amend 18 U.S.C. § 242 to lower the requisite mens rea for criminal liability from “willfully” to “knowingly or recklessly.”5 In order to increase transparency, the House Bill creates two primary reporting mechanisms for law enforcement officers: (1) the National Police Misconduct Registry, a public, searchable database compiling complaints of misconduct for federal, state, and local law enforcement officers, including those for use of force and racial profiling, discipline records, and lawsuits; and (2) the Police Reporting Information, Data, and Evidence (PRIDE) Act, which would require states to report to the Department of Justice any use of force against a civilian or law enforcement officer and retain related records for four years.6 The proposed law additionally forbids racial profiling by law enforcement and expands the term to include profiling based on ethnicity, national origin, religion, gender identity, and sexual orientation in addition to race.7 It also creates a cause of action for racial profiling that can be filed by the Attorney General or any injured party for declaratory or injunctive relief, with attorney’s fees for the prevailing party.8

June 19, 2020: S. 3985, the Just and Unithe House Bill, the Senate Bill conditions fying Solutions to Invigorate Communithe receipt of Byrne and COPS grants on ties Everywhere (JUSTICE) banning the use of choke9 Act (the “Senate Bill”). The holds except when deadly Senate Bill focuses on data force is authorized.12 collection and restricting If passed, the Senate The proposed law Bill would create a crimifunds to law enforcement departments, rather than pealso addresses nal penalty punishable nalizing police misconduct. by a 20-year maximum ‘qualified immunity,’ The Senate Bill seeks to sentence for “knowingly increase police accountabila legal protection and willfully falsify[ing] ity by reducing federal fundthat shields a police report in a mateing for localities that fail to rial way with the intent to government falsify... a material fact,” if annually report to the FBI National Use-of-Force Data officials from said report leads to a civil Collection program any law rights violation resulting liability for enforcement events involvin serious bodily injury or misconduct.” death.13 It also “[c]reates a ing fatalities, serious bodily injury, or discharge of a new criminal offense for weapon either at or by the police.11 Simiconspiracy to injure, intimidate, or interfere with protected civil rights activities, larly, the Senate Bill includes the Breonna e.g., voting.”14 Taylor Notification Act, requiring entities receiving federal law enforcement grants The Senate Bill would create a new to report the use of “no-knock warrants” commission to study the systematic “conor face a 20 percent reduction in federal ditions affecting Black men and boys, law enforcement grant money.12 As with including homicide rates, arrest and in-

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B. The Senate Bill The George Floyd Justice in Policing Act overwhelmingly passed in the House, but it became stalled in the Senate after Republicans introduced a competing bill on thehoustonlawyer.com

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carceration rates and health issues,” and propose measures to alleviate those issues.15 The law also directs the formation of a National Criminal Justice Commission to comprehensively review the criminal justice system and to develop best practices for policing, which is similar to the National Crime and Justice Task Force recommended by President Barack Obama’s 21st Century Task Force on Policing.16 C. The Texas Bill On August 13, 2020, the Texas Congressional Black Caucus announced its intention to introduce the George Floyd Act (the “Texas Bill”) in the forthcoming legislative session.17 The Texas George Floyd Act would mirror some provisions found in the House Bill and focus on policing issues amplified by the death of George Floyd. The Texas Bill is expected to ban the use of chokeholds across the state, rather than leaving the tactic to the discretion of each police department and locality. Under the proposed legislation,

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police would be required to intervene or render aid if they witness another officer using excessive force while on duty. The Texas Bill would address qualified immunity by allowing civil lawsuits at the state level “for deprivation of rights under color of law.” The Texas George Floyd Act builds on the 2017 Sandra Bland Act18 by ending arrests for fine-only offenses. In 2015, Sandra Bland, a Black woman who was arrested incident to a traffic stop, died in jail three days after her arrest. D. Curtailing Efforts to “Defund the Police” On August 21, 2020, Texas Governor Greg Abbott announced legislation that would permanently freeze property tax revenues at current levels in cities that vote to defund police,19 a move that came just eight days after the Austin City Council voted to cut their police department budget by one-third.20 If passed, the law “could prevent local officials from redistributing money typically dedicated to law enforcement purposes.”21 Governor Abbott, who previously committed to working with George Floyd’s family on police reform, said he prioritized this issue because he believes that “defunding the police puts residents in danger and it invites lawlessness into our communities.”22 Police reform will undoubtedly remain a top priority in the 2021 United States and Texas legislative sessions, but the passage of any version of the cur-

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rent proposed laws is uncertain. What is clear is that the death of George Floyd was not in vain. As his six-year-old daughter Gianna Floyd exclaimed, her “Daddy changed the world.” Stacy M. Allen is the Principal of the Law Office of Stacy M. Allen PLLC, a Houston-based boutique law firm providing legal expertise in areas of criminal, civil, and probate law. Stacy currently serves as a Director of the Houston Lawyers Association. Endnotes

1. House Comm. on the Judiciary, Justice in Policing Act, https://judiciary.house.gov/issues/issue/?IssueID =14924 (last visited Sept. 10, 2020). 2. Nathaniel Lee, Here’s How Two Federal Programs Helped Expand Police Funding by Over 200% Since 1980, CNBC (June 25, 2020), https://www.cnbc.com/ 2020/06/25/two-federal-programs-helped-expandpolice-funding-by-over-200percent.html. 3. Harlow v. Fitzgerald, 457 U.S. 800, 801 (1982). 4. George Floyd Justice in Policing Act, H.R. 7120, 116th Cong. § 102 (2020). 5. Id. § 101. 6. Id. § 201, § 221. 7. Id. § 302. 8. Id. § 332. 9. Just and Unifying Solutions to Invigorate Communities Everywhere (JUSTICE) Act, S. 3985, 116th Cong. (2020). 10. Id. § 101. 11. Id. § 102 12. Id. § 105. 13. Id. § 106. 14. U.S. Senate Republican Policy Comm., Notable Bill Provisions: S.3985 – Just and Unifying Solutions to Invigorate Communities Everywhere (JUSTICE) Act (June 19, 2020), https://www.rpc.senate.gov/legislative-notices/ s3985_just-and-unifying-solutions-to-invigoratecommunities-everywhere-justice-act (discussing § 403). 15. George Floyd Justice in Policing Act, H.R. 7120, 116th Cong. § 505. 16. Id. § 703; see David Hudson, President Obama Creates the Task Force on 21st Century Policing, THE WHITE HOUSE (Dec. 18, 2014, 5:28 p.m.), https://obamawhitehouse.archives.gov/blog/2014/12/18/president -obama-creates-task-force-21st-century-policing. 17. Cassandra Pollock, Texas Legislative Black Caucus Unveils the George Floyd Act to Ban Chokeholds and Limit Police Use of Force, TEX. TRIBUNE, Aug. 13, 2020, https://www.texastribune.org/2020/08/13/texasgeorge-floyd-act/. 18. TEX. CODE CRIM. PROC. ANN. art. 16.23 (West 2017). 19. Jessica Schladebeck, Texas Gov. Greg Abbott Suggests Freezing Property Tax Hikes for Cities Defunding Police, N.Y. DAILY NEWS, Aug. 20, 2020, https://www.msn. com/en-us/news/us/texas-gov-greg-abbott-suggestsfreezing-property-tax-hikes-for-cities-defundingpolice/ar-BB18bJEJ?ocid=uxbndlbing. 20. Meena Venkataramanan, Austin City Council Cuts Police Department Budget by One-Third, Mainly Through Reorganizing Some Duties Out from Law Enforcement Oversight, TEX. TRIBUNE, Aug. 13, 2020, https://www. texastribune.org/2020/08/13/austin-city-council -cut-police-budget-defund/. 21. Schladebeck, supra note 19. 22. Id.


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LAW ENFORCEMENT

to the growing dialogue on race and policing. Prior to moving to Minneapolis, Mr. Floyd lived in Houston’s Third Ward, where he played football at Jack Yates High School, made music with the Screwed Up Click, and was known throughout the community for mentoring youth.3 Despite being an asset to the Third Ward community, it appears that Mr. Floyd was targeted by police during his time in Houston. Shortly after Chief Acevedo’s national media appearances, Harris County District Attorney Kim Ogg announced that she was probing a 2004 arrest of Mr. Floyd by HPD Officer Gerald Goines.4 Goines, an HPD officer for over 20 years, presently faces murder charges for a January 2019 noknock raid that resulted in HPD killing two innocent civilians.5 The District Attorney’s probe of Mr. Floyd’s arrest was part of a larger review of Officer Goines’s cases, which has already resulted in the n May 25, 2020, the Minindictment of additional HPD officers,6 neapolis Police murdered the examination of other cases handled George Floyd. by Officer Goines,7 and a The bystanderheavily redacted internal recorded video HPD audit of its own narfootage of the cotics unit that one crimiThe national nologist asserted showed killing showed Officer Derek Chauvin kneeling on Mr. conversation on race “an operation completely 8 Floyd’s back for eight minutes and policing... out of control.” and 46 seconds as Mr. Floyd Without the video of gave police depart- the Minneapolis Police protested that he was unable to breathe. ments and elected killing George Floyd, it Though the murder of Mr. is unlikely that his case leaders...an opportuFloyd happened in Minneapwould have become a nanity to listen...” tional story. In Houston, olis, the video footage quickly circulated and its impact similar videos of police reverberated throughout the killings have been hard to country, sparking a national conversacome by, despite no shortage of police tion on race, policing, and the nature killings; in the six weeks prior to Mr. of public safety. Houston Police DepartFloyd’s murder, HPD killed six9 citizens ment (HPD)1 Chief Art Acevedo was an and has since refused to release any of the active participant in these conversations, body-cam footage publicly.10 While Housappearing on national television and reton Mayor Sylvester Turner and Chief sponding to calls to defund police deAcevedo agree that transparency is im2 partments and reinvest in communities. portant, they assert that they are “trying Chief Acevedo’s discussions with to strike a very delicate balance” between Wolf Blitzer on CNN, however, were transparency and the wishes of the famnot the only thing connecting Houston ily members of the deceased citizens.11 By Jay Jenkins

George Floyd and the Connection to Houston:

A Call for Local Reform

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Local Reform Efforts in the Aftermath of the Killing of George Floyd The national conversation on race and policing, along with George Floyd’s connection to Houston’s Third Ward, gave police departments and elected leaders in the Houston area an opportunity to listen to the tens of thousands of local residents who took to the streets in protest of police violence and Mr. Floyd’s death. Mayor Turner immediately issued an executive order banning chokeholds and requiring officers to intervene if they see another officer engaging in wrongdoing, among other policy changes. Chief Acevedo hailed the order as a “watershed moment”; however, many of the policy prescriptions were already codified as part of HPD policy.12 The city of Prairie View, under the direction of Police Chief Kenny Lopez, followed suit with a similar executive order in July, though the Prairie View policy changes go further by also prohibiting the use of tear gas by police.13 The same day of his executive order, Mayor Turner signed a reduced city budget that nonetheless increased HPD’s annual budget to nearly one billion dollars, while publicly opposing proposals for minor reforms, such as cutting 199 vacant positions from the police department.14 Mayor Turner pledged “this is not the end” to the local discussion on policing practices15 and has subsequently established a local task force to review HPD policies; however, broader engagement with the public is needed.16

down’ (with the law or courts governing the police) but ‘bottom up’ (with police experimentation driving the law).”17 Legal deference to police practices has also helped build a legal framework that makes holding police accountable for their misconduct nearly impossible. Consider the numerous opportunities for police violence to be transformed into legally justifiable force throughout the process: when internal affairs dismisses a civilian complaint as insignificant; when

a prosecutor refuses to file charges against the police; when a grand jury refuses to indict; and when the use of force is deemed reasonable and therefore justified in either a criminal or civil process. Qualified immunity provides police an almost insurmountable defense to civil rights claims. Police union contracts protect police power and insulate police violence from review and consequence. Moreover, indemnification practices mean that police do not

Where Do We Go from Here? While the dialogue on race and policing continues to grow, the lack of progress in achieving meaningful police reform in the Houston area is discouraging, though not unexpected. Crafting and implementing real public safety measures will require substantive, ongoing discussions between elected officials, law enforcement, and the communities they serve. That conversation should also include a discussion of the role that the law plays in excusing police violence. As one study put it, “the rules of policing are not so much ‘top thehoustonlawyer.com

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pay an actual dime of any civil damage awards—local governments do.18 Any meaningful conversation on policing must acknowledge that the history of policing in the United States (and particularly in Texas) is a history of uninterrupted racial violence. The slave patrols of the antebellum years19 gave way to the enforcement of Black codes and the convict leasing system,20 which helped lay the groundwork for the system of mass incarceration that exists today. This fact is rarely mentioned in police reform conversations, nor are law enforcement and elected officials pressed on explicit steps that they’ve taken to address the historical racism of the institution of police. Absent a discussion of the history of policing in the United States, reform efforts can and will tend to focus on the actions of individual officers and produce superficial reforms, such as implicit bias training, which trains individual officers to be more aware of their own internal biases without looking at the historical biases of the institutions they serve. Rather than attempting to root out the “bad apple” officers, local efforts to transform policing should instead focus on weakening the structural and legal framework that continues to protect individuals committing acts of racialized violence. A great first step in that direction for Houston would be releasing the videos of the most recent HPD killings, which would show the public that the city and its police department are committed to transparency, accountability, and improvement. Elected officials must also listen to community voices, including calls from the community to shift funding to programs that prioritize public health, safety, and wellness. Rather than demanding evidence from communities as to why the police fail to make them feel safe, elected officials must demand that police departments justify their budgets by providing specific evidence as to how their practices (and the practices of the criminal justice system in general) make communities safer. The collateral consequences of an 24

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arrest can last a lifetime, increasing the likelihood of future justice system involvement (at taxpayer expense), while an arrest itself fails to address the underlying causes of individual behaviors that lead to police interaction. Change is long overdue. Conclusion The path forward locally must include an acknowledgment of the historical, racialized nature of policing in Texas and a thorough examination of whether the police have adequately accounted for that history in their practices and procedures. Lastly, there must be a full and independent evaluation of whether HPD’s policing practices are actually keeping people safe, as well as an evaluation of the collateral impact that policing is having on certain communities, all on the taxpayers’ dime. It is an enormous task, but it is also a necessary one if we are to ensure that all Americans are considered equal under the law. Jay Jenkins is the Harris County Project Attorney at the Texas Criminal Justice Coalition, where he works with local communities to develop more effective strategies for public safety. Endnotes

1. The Editorial Board of The Houston Lawyer reached out to the Houston Police Department (“HPD”) in an attempt to obtain a different viewpoint on the issues discussed in this article, but HPD was unable to provide a statement prior to the print deadline. 2. See, e.g., The Situation Room with Wolf Blitzer (CNN 8 television broadcast June 8, 2020), transcript available at http://transcripts.cnn.com/TRANSCRIPTS/2006/08/ sitroom.02.html. 3. Rick Jervis, “George Floyd Changed the World”: Public Viewing in Houston Honors the Man Behind the Social Justice Movement, USA TODAY, June 9, 2020, https://www. usatoday.com/story/news/nation/2020/06/08/georgefloyd-third-ward-presence-athlete-police-history/ 3154912001/. 4. Nick Powell, Harris County DA Probing Disgraced ExCop’s 2004 Arrest of George Floyd, HOUS. CHRON., June 13, 2020, https://www.houstonchronicle.com/news/ houston-texas/houston/article/Harris-County-DAprobing-disgraced-ex-cop-s-15338574.php. 5. St. John Barned-Smith & Keri Blakinger, Former HPD Officer Charged with Murder in Botched Raid at Harding Street House, HOUS. CHRON., Aug. 23, 2019, https://www. houstonchronicle.com/news/houston-texas/houston/ article/Former-HPD-officer-charged-with-murder-inbotched-14373874.php. 6. St. John Barned-Smith, Ogg Announces Charges Against Former HPD Narcotics Supervisors in Connection with Fatal Drug Raid, HOUS. CHRON., July 1, 2020, https://www.

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houstonchronicle.com/news/houston-texas/houston/ article/Ogg-announces-new-charges-against-Houston-15380722.php?. 7. Richard A. Oppel, Jr., A Police Officer’s Word Convicted Them. Now He’s Charged with Murder, N.Y. TIMES, Feb. 26, 2020, https://www.nytimes.com/2020/02/26/us/ houston-convictions-goines.html. 8. St. John Barned-Smith, “An Operation Completely Out of Control”: Damning HPD Narcotics Audit Reveals Hundreds of Errors, HOUS. CHRON., July 2, 2020, https://www. houstonchronicle.com/news/houston-texas/houston/ article/HPD-narcotics-audit-shows-sloppiness-lackof-15381193.php. 9. The Editorial Board of The Houston Lawyer notes that between the time the author submitted this article and publication, HPD released footage from one of the six shootings and terminated the employment of four of the officers who were involved in the shooting. Nicole Hensley & Anna Bauman, “I Cannot Defend That”: 4 Officers Fired as HPD Releases Footage of Fatal Shooting of Nicolas Chavez, HOUS. CHRON., Sep. 10, 2010, https://www. houstonchronicle.com/news/houston-texas/crime/ article/hpd-police-video-nicolas-chavez-shootingbody-cam-15556648.php. 10. Editorial, Houston Police Have Killed 6 Men. We Need to See the Videos, Chief Acevedo, HOUS. CHRON., May 29, 2020, https://www.houstonchronicle.com/opinion/ editorials/article/Editorial-Houston-police-have-killed6-men-We-15302437.php. 11. Ciara Rouege & Chris Costa, HPD Chief Acevedo Says Officer-Involved Shooting Videos Aren’t Being Released to Protect Victims’ Families from More Pain, KHOU-11, June 6, 2020, https://www.khou.com/article/news/local/ houston-police-not-releasing-officer-involved-shootingvideos-to-protect-families/285-7173f204-3a63-486fb8b4-6409d9e88e8e. 12. Dylan McGuinness, Turner Signs Order on Use-of-Force Policies, No-Knock Raids, HOUS. CHRON., June 10, 2020, https://www.houstonchronicle.com/news/houston-texas/houston/article/Turner-signs-order-on-useof-force-policies-15331411.php#photo-19534680. 13. Erica Simon, Prairie View Adopts Police Reform Policies Following George Floyd’s Death, KTRK ABC 13 HOUS. (July 15, 2020), https://abc13.com/amp/prairie-viewchief-kenny-lopez-george-floyd-law-enforcement/ 6319234/. 14. Dylan McGuinness & Jasper Scherer, Houston OKs $5.1 Billion Budget that Increases Police Spending Despite Calls to ‘Defund’ HPD, HOUS. CHRON., June 10, 2020, https://www.houstonchronicle.com/politics/houston/ article/Houston-passes-5-1B-budget-that-avoidssteep-15330947.php (emphasis added). 15. McGuinness, supra note 12. 16. Paul DeBenedetto & Emma Hansen, Mayor Turner Announces Task Force to Review Houston Police Practices, HOUS. PUB. MEDIA (June 25, 2020), https:// www.houstonpublicmedia.org/articles/news/houston/ 2020/06/25/376860/mayor-turner-announces-taskforce-to-review-houston-police-practices/amp/. In contrast, the Austin City Council, in apparent response to calls for reform, unanimously adopted a budget that cut $150 million from the Austin Police Department and immediately reallocated over $20 million to programs for supportive housing, mental health services, and violence prevention, amongst other things, in an effort to improve community health and safety. Meg O’Connor, Austin Cuts Its Police Budget by About A Third, THE APPEAL (Aug. 13, 2020), https://theappeal.org/austintexas-city-council-cuts-police-budget-by-150-million/. 17. Amna A. Akbar, An Abolitionist Horizon for Police (Reform), 108 CALIF. L. REV. 101, 110 (2020) (forthcoming). 18. Id. at 111. 19. Mario Marcel Salas, Slave Patrols in San Antonio, SAN ANTONIO OBSERVER, Feb. 26, 2019, https://www. saobserver.com/single-post/2019/02/26/Slave-Patrolsin-San-Antonio. 20. Donald R. Walker, Convict Lease System, TEX. STATE HISTORICAL ASS’N, http://www.tshaonline.org/handbook/ online/articles/jnc01 (last visited Aug. 24, 2020).


Join the HBA 100 Club! The Houston Bar Association 100 Club is a special category of membership that indicates a commitment to the advancement of the legal profession and the betterment of the community. The following law firms, government agencies, law schools and corporate legal departments with five or more attorneys have become members of the 100 Club by enrolling 100 percent of their attorneys as members of the HBA. Firms of 5-24 Attorneys Abraham, Watkins, Nichols, Sorrels, Agosto, Aziz & Stogner Ajamie LLP Baker, Donelson, Bearman, Caldwell & Berkowitz, PC Baker Williams Matthiesen LLP The Bale Law Firm, PLLC Berg & Androphy Bradley Arant Boult Cummings LLP Buck Keenan LLP Bush & Ramirez, PLLC Carter Morris, LLP Cozen O’Connor Crady, Jewett, McCulley & Houren, LLP De Lange Hudspeth McConnell & Tibbets LLP Dentons US LLP Devlin Naylor & Turbyfill PLLC Dobrowski, Larkin & Stafford, L.L.P. Doyle Restrepo Harvin & Robbins LLP Ewing & Jones, PLLC Fisher & Phillips LLP Fizer Beck Webster Bentley & Scroggins Fogler, Brar, O’Neil & Gray LLP Frank, Elmore, Lievens, Chesney & Turet, L.L.P. Funderburk Funderburk Courtois, LLP Galligan & Manning Germer PLLC Givens & Johnston PLLC Gordon Rees Scully & Mansukhani Henke, Williams & Boll, LLP Hirsch & Westheimer, P.C. Holm | Bambace LLP Horne Rota Moos LLP Husch Blackwell LLP Irelan McDaniel, PLLC Jackson Lewis P.C. Jenkins & Kamin PC Johnson DeLuca Kurisky & Gould, P.C. Jordan, Lynch & Cancienne PLLC Kean | Miller LLP

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LEGAL PROFESSION

By Anietie Akpan and Mia Lorick

Lawyering While Black:

Examining the Practice of Law Through the Prism of the Black Experience

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o understand what it means to “lawyer while Black,” you have to first appreciate the magnitude of what Black lawyers endure outside of their working environments. For many of us, that means watching the morning news while sipping coffee only to see that yet another Black person was unjustifiably killed by police. Or opening our social media accounts to see a video of Amy Cooper lying to the police about a Black man threatening her in Central Park. We repeatedly see Black people harassed and killed for participating in the most mundane, everyday activities. We watched as 12-year-old Tamir Rice was killed by police for playing with a toy gun. We watched as Eric Garner was choked to death for selling a loose cigarette. We watched as Botham Jean was killed for eating ice cream in his apartment. We watched as Rayshard Brooks was killed for sleeping in his car. We watched as Philando Castile was killed in front of his four-year-old daughter when

he reached for his wallet. And we watched as Elijah McClain was killed while walking home because someone thought he looked suspicious. This dark pathology has perpetuated the complex and troubling historical dynamic between communities of color and the police (a dynamic that certainly has been amplified as of late). The over-consumption of this racial violence over the past several weeks in particular has been challenging for us all. But Black lawyers have the added challenge of enduring the silent trauma of racism, while continuing to navigate our respective workspaces, fulfilling our billable hours with smiles on our faces. Coping with racial trauma while balancing work responsibilities is just one illustration of the “lawyering while Black” experience (or LWB), a concept that illuminates both the personal difficulties experienced by Black attorneys (i.e., interactions with other attorneys, judges, and clients) and the way racism presents itself in the legal profession collectively (i.e., navigating the workspace, the courtroom, and social spaces). We asked other Black lawyers in Houston about their LWB experiences. Here are a few examples of their responses: “An opposing counsel called me ‘nigger’ after he lost a hearing.”1 “I was once told that the room I was sitting in needed more light because of how dark my skin was.” “When I asked why I was not invited to play golf with the partners at my law firm, a colleague told me it was because they didn’t need a caddy.” “A judge looked at me, in my suit, sitting at counsel table, and asked when the lawyer would arrive because the judge assumed that I was the legal assistant and not the lawyer.” “A White coworker touched my hair without asking and then said it felt like cotton.” “One time I was mistaken for the Defendant.”


“The court bailiff grabbed my arm when I walked into the courtroom ‘well’ after my case number was called, and (rudely) told me that the well was ‘for attorneys only.’ Neither he nor the judge apologized after I explained that I was an attorney and had a hearing.” These examples only scratch the surface of what Black lawyers encounter in our profession. After we experience a microaggression or blatant racism, we typically have nowhere to turn, no one to talk to, and no one who understands the severity of what we just experienced. One isolated comment may not seem that severe, but Black lawyers rarely deal with only an isolated comment. We deal with repeated comments and actions that over time tear us down in a way our White counterparts will never experience. Now that racism and workplace inclusion are getting more attention, many White people respond, “Well, I’m not racist so I’m not the problem.” But it’s not enough to not be racist, one must actively be antiracist. Although frequently conflated, nonracism and anti-racism are two completely distinct concepts. Most people purport to be what is referred to as “non-racist,” which is the passive rejection of racial discrimination. Anti-racism, on the other hand, is a twopronged process that requires (1) identifying one’s individual and collective privilege and (2) engaging in the active process of identifying and eliminating racism by changing organizational structures and attitudes, so that power, representation, and accessibility to resources is redistributed and shared equitably. Action is the key difference between being non-racist and being anti-racist. Within the legal profession, there are many ways attorneys can actively practice anti-racism and promote equality. This is known as allyship. Allyship has become increasingly important when discussing how to eliminate racism and inequality. Although there are a litany of social science journals, blogs, and online resources that generally discuss allyship, for the purposes of this article, we

‘‘

and empathy toward define allyship as the lifelong the experiences of their process of building relationcolleagues of color.2 ships based on trust, consistency, and accountability with We deal with This type of culture shift marginalized individuals and is paramount to effectuate repeated comments groups of people. structural change, and can An ally is any person who and actions that over be promoted in the followactively promotes and aspires time tear us down ing ways: to advance the culture of in• Acknowledge racial inin a way our White clusion through intentional, justice tragedies and the positive, and conscious efcounterparts will impact they may have on forts that benefit marginalized us. Law firm partners, never experience.” shareholders, and other communities as a whole. It is a practice that involves sacrifice workplace leaders should and often means having to be uncomfortnot be afraid to check in with Black colable. This leads to the question: How can leagues in the aftermath of these tragWhite attorneys practice allyship in our edies. Being oversaturated with racial profession? Since “lawyering while Black” trauma and violence informs our menis experienced at two levels, individual and tal and physical health. Acknowledging institutional, allyship, therefore, must be these events and their impact must come practiced at these two levels. from the top. • Recognize that racism is systemic and Institutional Allyship has historically been a part of many Institutional allyship is demonstrated foundational aspects of law firms. Exwhen law firms change their governing coramples include nepotism in hiring pracporate practices to reflect both inclusivity tices and promoting only those attorneys

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who you better identify with because of social and economic status. • Review unspoken policies and practices within institutions. This includes recognizing one’s own personal implicit biases against Black attorneys, such as passing judgment on how we dress, how we style our hair, how we speak, our names, and what neighborhood we grew up in. • Listen to the experiences of Black lawyers without feeling the need to challenge those experiences but with the goal of understanding and seeing the world through their eyes. • Commit to diversity initiatives by recognizing that “diversity” is more than a buzzword and implementing policies that actually make a difference. After the murder of George Floyd, there was an influx of postings on professional and social platforms from law firms and companies who pledged their commitments to diversity and inclusion initiatives. No one will disagree that law practice has historically suffered from a lack of diversity. But let’s be clear: “diversity and inclusion” is not a trend. In order to disrupt the traditional continuum of success in the legal profession, there must be a conversation about accountability methods for organizations to support Black lawyers’ success and construct a diversity and inclusion agenda that is actionable and measurable. Review hiring and retention, ensure recruiting is done at diverse law schools, hire a neutral third party to vet your firm’s hiring practices, black out names on resumes before sending them to the hiring committee, review any retention issues, and have a zero-tolerance policy for racism. Individual Allyship Allyship includes more than making changes to the way your firm operates. Your Black employees and coworkers need to know and trust that you are an ally on a personal level. The first step to becoming an ally is to understand the actions and phrases that are not helpful. Telling 28

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a Black lawyer that she is articulate or well-spoken implies that you expected her not to be. Telling a Black lawyer that you do not see color indicates you do not see the obstacles that Black lawyers face—if you cannot see the differences Black and White lawyers face, you cannot work toward inclusion. Telling Black lawyers they benefit from being Black because of the recent push for diversity in organizations shows that you are ignoring the burdens we have endured for the last 400 years. With that being said, being an ally means saying something, even if you are not sure what to say or worried about saying the wrong thing. Too often Black lawyers face isolation from White colleagues because our White colleagues do not know what to say. If that is the case, then say so. Be honest that you are unsure about how to approach the subject but that you are here as an ally. Letting Black lawyers know you are there if they have an issue or concern is one of the best ways to be an ally. Finally, while establishing sustained allyship practices within the legal profession is paramount, it is just as important to address how these allyship practices should also manifest before students even become attorneys. Understanding the education pipeline for Black students to law school and beyond deserves to be thoroughly addressed in its own separate article. For now, we briefly introduce this information to demonstrate that the LWB experience is often premised on (lack of) equitable practices related to the transition, enrollment, and retention in law school of underrepresented students.3 The remedy to these disparities is establishing diversity pipeline programs that focus on early academic intervention (i.e., engaging students in academically rigorous coursework to improve writing, reading, and critical thinking skills), developing strong mentor connections (i.e., connecting students with attorneys of color), and creating partnerships across pipeline programs (i.e., build working relationships with law firms and legal organizations). These community-based efforts can help minimize the financial, racial,

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and other stressors Black students face in their journey to get into law school, as well as provide support while enrolled in law school and after they graduate. Though allyship can be synonymous with many things, the most important is education. Allyship is a learning journey, and education is key to understanding how oppressive systems operate. Condemning racism is easy, but being a true ally requires time and research. This means avoiding putting your Black colleagues and friends in the position of “teacher” regarding racial trauma and injustices, as doing so can be emotionally and spiritually burdensome. There are many resources available to help people better understand our experiences. We encourage you to use the following, along with the books outlined in the Anti-Racist Reading list on page 46 of this issue of The Houston Lawyer,4 as a starting point on your learning journey. Anti-Racism Resources Guides • Anti-Racism for Beginners: • http://antiracismforbeginners.com/ • A Resource Guide for Anti-Racism + Being An Educated Ally for BIPOC (Black, Indigenous and People of Color): http://theglitterguide. com/2020/05/30/resource-guide-foranti-racism-being-an-educated-allyfor-poc/ Documentaries & Lectures • Get Comfortable with Being Uncomfortable, Luvvie Ajayi (TED): https://www.ted.com/talks/luvvie_ ajayi_get_comfortable_with_being_ uncomfortable • How Studying Privilege Systems Can Strengthen Compassion, Peggy McIntosh (YOUTUBE): https:// www.youtube.com/watch?v=eBY9UEewHw&feature=youtu.be • I Am Not Your Negro (AMAZON PRIME) • 13th (NETFLIX) Podcasts • How to Be an Ally Even When You Feel Overwhelmed (DEAR WHITE WOMAN PODCAST): www.dearwhitewomen.


com/episodes/how-to-be-an-ally-evenwhen-you-feel-overwhelmed • Leading with Empathy and Allyship Series (CHANGE CATALYST) https:// changecatalyst.co/allyshipseries/ • Seeing White (SCENE ON RADIO): https://www.sceneonradio.org/seeingwhite/ • How to be an Antiracist (BRENÉ BROWN): https://brenebrown.com/ podcast/brene-with-ibram-x-kendi-onhow-to-be-an-antiracist/ • Code Switch (NPR): https://www.npr. org/podcasts/510312/codeswitch. Anietie Akpan is in-house counsel for the Metropolitan Transit Authority of Harris County, Texas (METRO). She is also the Articles Editor of The Houston Lawyer. Mia Lorick is Shareholder and Director of Diversity and Inclusion for Roberts Markel Weinberg Butler Hailey PC. Endnotes

1. It is the policy of The Houston Lawyer not to print racial slurs, obscenities, or other offensive language. However,

the authors of this article requested that the full word be used, and the editors believed printing the offensive word was appropriate in the context of this particular article. 2. Though this article focuses on allyship in the context of race and race relations, the authors recognize that there should also be institutional allyship practices established related to the experiences of women, people with disabilities, and other underrepresented and marginalized communities. 3. Over the past several years, there has been substantial literature on racial disparities in bar passage rates, tuition debt, employment rates, and LSAT scores. See, e.g., Michelle J. Anderson, Legal Education Reform, Diversity and Access to Justice, 61 RUTGERS L. REV. 1011 (2009); Nareissa Smith, Factors Affecting Bar Passage Among Law Students: The Real Connection Between Race and Bar Passage, AFR.AM. ATT’Y NETWORK (May 15, 2018), https:// a a attor ney net work. com/factors-affectingbar-passage-amonglaw-students-the-realconnection-betweenrace-and-bar-passage/; Erin Thompson, Law Schools Are Failing Students of Color, THE NATION (June 5, 2018),

https://www.thenation.com/article/archive/law-schoolsfailing-students-color/; Melissa Heelan Stanzione, Law School Enrollment Up Overall, But Not for Minorities, BLOOMBERG LAW (Dec. 12, 2019, 2:23 p.m.), https:// news.bloomberglaw.com/us-law-week/law-schoolenrollment-up-overall-but-not-for-minorities. 4. In addition to the excellent list of books in Christina Beeler’s Media Review, we recommend White Fragility: Why Is It So Hard for White People to Talk About Racism by Dr. Robin DiAngelo and Tears We Cannot Stop: A Sermon to White America by Michael Eric Dyson.

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LEGAL PROFESSION

By Andrew Pearce

Where Do We Go from Here? Texas Law Schools Chart a Course

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his year has witnessed a renewed resolve concerning diversity and antiracism, with many asking: “Where do we go from here?” To answer that question, we reached out to the leaders of Texas’ law schools to learn what they have been doing, and what more they plan to do, to engage in meaningful conversations with their students, faculty, and community. We also asked how they plan to move from conversation to action, in an effort to make meaningful and lasting change.1 For many, the work to foster a diverse and inclusive law school and legal profession began years ago, and those efforts have already begun to show results. For example, SMU Dedman School of Law has increased the diversity of its incoming class from 18.7% students of color in 2014 to over 30% in this fall’s incoming class. South Texas College of Law Houston saw its percentage of students of color increase over the last decade from 31.1% to 45.5%, and the percentage of women went from 46.0% to 54.4%. Similarly, Texas Tech School of Law’s admissions numbers are among the school’s most notable diversity successes over the last three years. The school’s entering class went from 28.1% students of color in 2017 to 38.8% by 2019. More recently, Texas law schools have begun

efforts to identify and implement wideranging initiatives, such as creating new faculty positions focused on diversity and inclusion, requiring implicit bias training, finding ways to increase the pipeline of diverse students applying to study law, and encouraging authentic conversations between faculty, staff, and students. Below is what the deans and other representatives of several Texas law schools had to say. Thurgood Marshall School of Law at Texas Southern University Thurgood Marshall School of Law (TMSL), named after the late Justice Thurgood Marshall, is the only law school in Texas created as a result of state-sanctioned discrimination. Yet, despite its unprivileged beginning, TMSL has embraced its mission of expanding opportunities for the underserved in the legal profession and has been at the forefront of diversity and inclusion initiatives since its founding. According to Chevazz Brown, a partner at Jackson Walker and former TMSL valedictorian, “No school in Texas has done more in terms of creating access for people of color to the legal profession than TMSL.” And the numbers back up that statement. As reported by Texas Lawyer in a March 2018 article, 91% of TMSL’s students hail from minority racial and ethnic backgrounds. TMSL plays a critical role in addressing racial injustice by, among other things, supplying the legal profession with lawyers from those communities who truly understand and represent the experiences of their communities. For many, TMSL provides the only opportunity into the profession. As Dean Joan Bullock stated, “TMSL’s next chapter in addressing racial injustice is its emphasis on educating law students not just on the law, but more importantly, on the history and context in which the laws as we know them were created. This knowledge will equip these soon-to-be attorneys as discerning advocates leading the charge to address seemingly neutral laws that have a disparate and negative impact


on the underserved. Further, with the majority of its student population being diverse, TMSL will champion education that centers on skills development to enhance students’ ability to tactically utilize inclusion and equity initiatives in navigating their professional destiny.” South Texas College of Law Houston Dean Michael F. Barry noted that “diversity is at the core of South Texas College of Law Houston (STCL Houston), which began as a school of opportunity.” In fact, STCL Houston has long included diversity as one of the pillars of its mission, which is to provide “a diverse body of students with the opportunity to obtain an exceptional legal education, preparing graduates to serve their community and the profession with distinction.” “We’ve got to get this right,” Barry said. “It is imperative for our school, our students, and the community they will serve.” Likewise, Professor Shelby A. Dickerson Moore, Vice President of STCL Houston’s new Office of Diversity, Equality, and Inclusion, stressed the need to “move forward in a more intentional way.” To that end, STCL Houston has implemented a number of initiatives, such as conducting a diversity audit to determine the school’s strengths, as well as identifying opportunities for improvement and promoting racial awareness throughout the school to foster more meaningful conversations about race and bias. These efforts begin even before students start at STCL Houston, with events that include get-togethers for African-American law school applicants, led by the school’s African-American student population, a pre-orientation “boot camp” for AfricanAmerican students, and implicit-bias awareness training as part of its new student orientation. STCL Houston also actively seeks and encourages minority students to apply, and then works with its diverse faculty and student body to reach out, welcome, and build an internal support network to help these new students. The goal is to ensure that new and first-generation students become

fully part of, and engaged in, the school’s community. University of Houston Law Center “Diversity is our nation’s strength,” says Dean Leonard Baynes of University of Houston Law Center (UHLC). “There is a lot of talent that is unfortunately sometimes overlooked and underutilized.” He additionally points out that the full participation of this overlooked group in our profession “will add considerable value and breadth to our analysis of complex legal issues and lead to greater societal good.” UHLC, as an institution, welcomes conversations. “It is important for members of [the] community to tell their truths, but not to become prisoners of the past. It is important to forgive when that forgiveness is justified. To this end, [UHLC has begun]... holding a series of events and dialogues with different groups.”2 UHLC also recommitted to making its community an even more diverse and inclusive place to learn and work. For example, all incoming students will receive diversity and inclusion training (with a goal of expanding training to all students), and diversity and inclusion workshops will continue for law faculty and staff. The school’s Law Center Diversity and Inclusion Committee is also developing workshops for the upcoming academic year that will be open to the Law Center community. UHLC continues to be committed to ensuring diverse undergraduate students who want to pursue a legal career are prepared to do so. UHLC’s award-winning Pre-Law Pipeline Program, which was designed to “increase the diversity of law school applicants by providing law school preparatory resources,” “provide[s] opportunities for [its] scholars to learn from, engage with, and be inspired by leading scholars and experts.”3 Baylor Law “Baylor Law is addressing the issues of race and racial relations through a planning group (including students) that is being convened and that will be going forth to develop programming,” says Dean Bradley

J.B. Toben. “The objective is to involve the entire Law School community— students, faculty, and staff—in meaningful discussions involving racism, policing, and other policies and legal constructs that have been identified as furthering the racial divide and fostering the tensions that have become, once again, painfully evident in the wake of recent tragedies, including the death of George Floyd.” Baylor Law has had ongoing programs focusing on these issues, such as programming this past academic year involving the appearance of Anthony Graves, an exoneree, who gave a riveting presentation focused upon the ills of mass incarceration. More recently, Baylor Law had a webinar featuring Jarvis Parsons speaking on racism in the criminal justice system. Baylor Law is also considering different ideas and programming vehicles, including Race Equity Training, a program on Intro to Law and the Professional Development, and a Racial Equity Challenge. SMU Dedman School of Law “At SMU Dedman School of Law, we are committed to fostering diversity and inclusion at both our school and in the legal profession,” said Dean Jennifer Collins. “Our special obligation to do justice means we must do more than simply offer words of support—we must take real and concrete action.” SMU Dedman Law’s initiatives include efforts to increase the pipeline of diverse students applying to study law. During orientation week, SMU Dedman Law provides a special day of programming for, and in support of, its incoming diverse students. It also requires participation in SMU’s university-wide cultural intelligence initiative (which encourages students to be aware and respectful of differences), and a poverty simulation program has been mandatory for incoming 1Ls for the past two years. Additionally, SMU Dedman Law has instituted a Diversity Week every fall, which consists of student-driven programming, and many other conversations and collaborations with attorneys throughout the community. SMU Dedman Law also created the

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Dean’s Diversity Council to give students an opportunity to provide key law school administrators with their feedback and ideas about the campus climate and future programming efforts. St. Mary’s University School of Law At St. Mary’s University School of Law, serving its diverse community—both on campus and beyond—is at the core of the school’s mission. According to Dean Patricia Roberts, “As a Marianist and Catholic institution, St. Mary’s promotes the dignity and rights of all people, acknowledges the special responsibility of those training and forming students to raise awareness of the inequity in our nation and world, and works to eliminate it where it still exists.” Dean Roberts is scheduling monthly meetings with the leadership of student identity groups to maintain open dialogue with the dean’s office. In addition, the Dean’s Advisory Committee for Diversity, Equity and Inclusion was created to advise the dean on ways to increase diversity among faculty, staff, and students. Racism and immigration topics are also addressed in the law school’s curriculum. Faculty lead a course on Racism and the Law, and every J.D. student must complete at least 30 hours of service prior to graduation. In addition, St. Mary’s Law’s robust clinical program includes assistance for those in need, such as immigrants, those wrongfully convicted, and, during the COVID-19 pandemic, those facing eviction. Texas A&M Law “What is notable about the current moment is the opportunity to make real societal headway. Both as lawyers and as Aggies, we are called upon to be part of the change—to build and to help uphold a legal system that protects each and respects all,” said Dean Bobby Ahdieh. “We have much work to do to get there. I hope our Law School community can play its vital part in that journey.” Texas A&M Law created the Diversity Council, chaired by Professor Neal Newman, and comprised of five faculty, five staff, five students, which is intended to reflect and engage the broad diversity of 32

September/October 2020

the school and community. For Professor Newman, the goal is to “navigate both the fierce urgency of now and the longer-term imperative to reach justice.” Texas A&M Law has begun by asking how to foster frank dialogue and candid, uncomfortable conversations. In his position as Diversity Council Chair, Professor Newman explained, the “hope and the goal is for each faculty member to assess what they are teaching in their individual classes and think about how issues of race, implicit biases in the legal system, cultural and structural inequities, may be playing into the ultimate verdicts or decisions the courts are reaching. We recognize this may be taking a lot of us out of our comfort zones. But that’s the point. A lot of this is uncomfortable.” The school has also begun internal-facing initiatives, such as implicit bias and related training during and after orientation, coupled with efforts to facilitate employment opportunities. Those efforts include Texas A&M Law’s Texas Apprenticeship Network, working with diversity programs within law firms, and looking at professional opportunities in which minority students have not been adequately represented. Texas Tech University School of Law “There’s much more work to be done,” said Dean Jack Wade Nowlin, a former firstgeneration college student. “We all need to learn and improve each year. We owe it to our students to help build a better future— for them and for everyone.” As part of its commitment, Texas Tech Law recently named Professor Wendy Ross and Associate Dean Sofia Rodriguez Chapman as diversity directors to further advance the school’s goals in this crucial area, and the administration at Texas Tech Law has made diversity, equity, and inclusion an increasing priority since 2017. As part of its new diversity focus, the school for the last two years has offered all first-generation college students a scholarship. Diversity programming in the law school has also increased dramatically since 2017—led by a faculty-staff diversity committee, the office for student life, stu-

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dent organizations, and a gender equity task force, which was established in 2018. Texas Tech Law also established a studentled Diversity Advisory Board at a diversity weekend retreat for students held in 2019. In 2020, the law school formed an alumni-focused Special Committee for Diversity, Equity, Inclusion, and Justice to bring more resources to bear to offer support and opportunities for diverse students. Understanding cultural competency, intersectionality, and implicit bias will be an important part of the ongoing conversation. A new mentoring program for students is also in development. University of Texas School of Law Texas Law responded swiftly. As Dean Ward Farnsworth noted, “Above its front doors, these words are etched, ‘that they may truly and impartially administer justice.’ The UT Law School views racism as an affront to that mission. We are committed to producing lawyers who lead the fight for justice under law in this and all other respects.” Texas Law established a faculty committee right away to oversee the school’s response to the current dialogue about racism. That committee created great programming for our community about racial economic equality and about problems of police brutality. It was sophisticated and well-received. But, of course, that’s just a start. The committee has also been working with the rest of the faculty on ways that problems of race and racism can be addressed more effectively in Texas Law’s classrooms this fall and beyond. This is an ongoing project. Texas Law has other initiatives in mind, and they will be developed over the weeks and months to come. In Texas Law’s view, this is not a time for rushing to tell students what they need. It is a time for listening to them well and carefully on that subject. That’s what Texas Law is doing. Conclusion Although the percentage of African American citizens in Texas is 12.8%, only 6% of attorneys are African American.4 The per-


centage of African American partners and associates at large law firms is even lower. The efforts above are intended to improve these numbers and the experiences of African American lawyers and students, in general. Maybe as immediately important is the recognition among the leaders of Texas’ law schools that now is the time to work on these issues collectively through joint efforts, discussions, and the willingness to share best practices moving forward. This effort began with a joint statement by the 10 Texas law school deans condemning racism5 and was followed by the work of the deans of SMU Dedman Law and UHLC, who have collaborated “to organize a joint workshop this fall among Texas legal leaders to work on addressing the underrepresentation of African American and other minorities in our legal profession.” In an editorial published in the Houston Chronicle, they stated that by “working together to increase these numbers, we can ensure that, unlike 170 years ago, the progress of African Americans in the state is not further delayed.” 6

Andrew Pearce is a shareholder and the litigation group chair at BoyarMiller. He is also an associate editor of The Houston Lawyer. Endnotes

1. Unless otherwise noted, the statistics discussed in this article were provided by individuals representing each institution. The quotes are from telephone or email conversations the author had with the person to whom the quote is attributed. Notes from these virtual interviews are on file with the author. 2. University of Houston Law Center, A Note from the Office of the Dean Leonard M. Baynes (June 2020), https://www.law. u h.e du / new s /de a n / 2020-0626.html. 3. University of Houston Law Center, UHLC PreLaw Pipeline Program, h t t p: // l a w.u h . e d u / pipeline/about.asp (last visited Sept. 7, 2020); University of Houston Law Center, Racial and Human Rights Initiative, http://www.law.uh. edu/rjhr/ (last visited Sept. 7, 2020). 4. Leonard M. Baynes & Jennifer Collins, Opinion: Black Lawyers Matter: What the Texas Legal Community Can Do to Eradicate Racism, June

19, 2020, https://www.houstonchronicle.com/opinion/ outlook/article/Opinion-Black-lawyers-matter-What-theTexas-15349954.php. 5. Amy Starnes, Texas Law School Deans Issue Statement Condemning Racism, Remembering George Floyd (June 11, 2020), https://blog.texasbar.com/2020/06/articles/ law-schools/texas-law-school-deans-issue-statementcondemning-racism-remembering-george-floyd/. 6. Leonard M. Baynes & Jennifer Collins, Opinion: Black Lawyers Matter: What the Texas Legal Community Can Do to Eradicate Racism, June 19, 2020, https://www. houstonchronicle.com/opinion/outlook/article/OpinionBlack-lawyers-matter-What-the-Texas-15349954.php.

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COURTS

By Judge Steven Kirkland, Judge Latosha Lewis Payne and Judge Ravi K. Sandill

T

ticipating in the “administration of law” violated the Fourteenth Amendment.5 The Strauder Court did not address the issue of peremptory challenges. However, that issue was front and center when the Court considered peremptory challenges in Swain v. Alabama in 1965. The Swain Court stated that the mere allegation of discrimination was not enough and that it must be proven.6 After discussing the origins of the peremptory challenge and its seemingly inviolate nature, the Court concluded that the exercise of peremptory strikes should not be regulated by the courts.7 The gist of the opinion is encapsulated in the following quote, “[W]e cannot hold that the striking of Negroes in a particular case is a denial of equal protection of the laws. In the quest for an impartial and qualified jury, Negro and white, Protestant and Catholic, are alike subject to being challenged without cause.”8 Twenty-one years later, in Batson v. Kentucky, the U.S. Supreme Court finally recognized that courts have a duty to make sure a person’s Fourteenth Amendment right to serve on a jury is not violated during the selection process and established a test to determine whether that right had been violated.9 Central to the Court’s decision was the belief that “selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice.”10

The Rise of Batson and Its Progeny The first time the United States Supreme Court invoked the Fourteenth Amendment as it relates to race in jury selection was in Strauder v. West Virginia in 1879.3 West Virginia had excluded anyone who was not a white man from serving on a jury.4 The Strauder Court made clear that excluding African-Americans from par-

The Batson Challenge The Batson Court created a three-step burden-shifting paradigm to challenge the use of race-based peremptory strikes. In 1991, the U.S. Supreme Court, in two separate cases, expanded Batson into civil matters and ruled that the party exercising a Batson challenge does not need to be the same race as the excluded potential juror.11 The Court prohibited peremptory strikes based solely on gender in 1996.12 Texas has not expanded regulation of peremptory strikes beyond what the U.S. Supreme Court has done. The current framework for a Batson

Batson:

Protecting Every Citizen’s Right to Participate in Jury Service his article1 will provide a brief overview of the case law that brought us Batson v. Kentucky and its progeny.2 We will then give you a flavor for our experiences with Batson challenges, and we will discuss the possible reasons for the small number of Batson challenges we have seen. Finally, we will offer some recommendations for the Bar to help reduce the stigma of Batson challenges and to ensure that they are made when appropriate.


challenge is as follows: 1. Prima Facie Case of Discrimination The movant must establish that the peremptory strike was used to remove a person from the jury based on their race or gender. The movant must show that under the circumstances the challenged strikes raise an inference of purposeful discrimination.13 2. Neutral Explanation Once a prima facie case is made by the movant, the burden then shifts to the respondent to articulate a neutral reason for exercising the strike. The actual reason that the strike was exercised does not need to be articulated; all that is required is a race/gender neutral explanation related to the instant case.14 3. Trial Court Determination Because the movant bears the ultimate burden of persuasion, the trial court should provide a reasonable opportunity for the movant to rebut the neutral explanations.15 The trial court then has the duty to adjudicate whether the movant has shown “purposeful discrimination.”16 The trial court must consider all the “relevant” and “surrounding” circumstances to determine whether the inference of discrimination exists, which may include statistical disparity and comparative juror analysis.17 The Judges’ Perspectives Judge Payne Of the 28 juries selected in the 55th District Court in 2019, Batson challenges were made in only two cases: a commercial contract case and an automobile personal injury case. They were legitimate challenges; I overruled one and sustained the other. I was surprised that neither of the cases involved employment discrimination, an area of the law in which discrimination is top of mind for trial lawyers. In a few other cases, Batson challenges

Court Judge and a Civil District Court Judge, I have presided over 900 voir dires and Batson issues seldom are raised. However, I am the only person in the courtroom who is required to protect the prospective jurors’ right to participate in the process. It’s an odd duty. If the litigant does not make the challenge, how do judges fulfill this Batson requires a duty?

could have been made, but were not. My personal experiences at trial prior to taking the bench were similarly devoid of Batson challenges. In some of those cases, a properly sustained challenge could have made the difference in winning or losing and in protecting the constitutional rights of citizens who answer the call to serve on a jury.

‘‘

Judge Kirkland direct conversaJudge Sandill When I was a Houston Mution between the In nearly 12 years as nicipal Court Judge, I had judge, counsel, and the 127th District Court one lawyer who always made a Batson challenge at trial; I litigants about race Judge, I have only witnessed two Batson chalknew he would make a Batthat likely has rarely lenges. Both challenges son challenge. Invariably, the or never occurred in were made on the basis lawyer would claim the prosecutor struck all the Blacks, the legal dispute or of race; I granted one and denied the other. There Hispanics, and women, and in law practice.” have been a number of claim the strikes somehow other instances in which disadvantaged his client, all members of a protected class were who often was not a member of those struck from the venire, and yet a Batson protected classes. To him, it was just a challenge was not raised. game. I knew this because he even demanded to know the prosecutor’s reason for a strike when he himself struck the person. Rarely did the prosecutor fail to state a race-neutral reason, and the trial proceeded—only moderately slowed. In contrast, as a Harris County Civil District Court Judge, I rarely see a Batson challenge. Frequently, I seem to be the only person who notices that all the members from the specific protected classes were struck. As both a Municipal thehoustonlawyer.com

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not know how to present sufficient eviThe Lack of Use of Batson in Our Courts dence to carry their respective burdens. Our experience tells us that Batson chalHence, the lawyers opt not to raise the lenges are rare. It has been more than 12 issues before the court. As a result, reyears since the Texas Supreme Court rengardless of how long the judge has served, dered a decision involving a Batson chalthe judge may have very little practice in lenge. In that case, Davis v. Fisk Electric analyzing and ruling on Batson challengCompany, the Texas Supreme Court rees. CLEs regarding jury selection should versed a trial court’s decision to overrule all have a Batson component or at least a challenge in a race discrimination case some time devoted to the public’s right in which five of the six peremptory strikes to participate in juries. Also, law school were used against African-American ju18 trial advocacy courses should make this rors. a component of their mock trial curricuWe believe there are many reasons Batlum. Preparing this generation of lawyers, son challenges are not made more often, but also the next, needs to be an integral but the three primary reasons are: (1) the part of our profession’s procedure is complicated; mission. (2) the burden to sustain the Second, law students, challenge is high; and finally, lawyers, and judges need (3) our society is very uncomThis intersection is to engage in more bias edfortable talking about discrimination. As you can see one of tension be- ucation. The issues raised in Batson challenges are from the jurisprudence, Battween the desires complicated, hard to talk son challenges are not easy. of a judge to remain about, and can be stigThe shifting burden of proof is difficult to satisfy, especialengaged in her matizing. Batson requires a direct conversation bely since most jurors are comcommunity and her tween the judge, counsel, plex individuals who bring their own biases into the jury responsibility to be and litigants about race selection process irrespective and appear to be that likely has rarely or never occurred in the of their race or gender. In the impartial.” legal dispute or in law rough and tumble of trial, it practice. No lawyer wants is hard to keep track of who to accuse another lawyer of discriminahas what burden. And, perhaps most imtion in jury selection. Because counsel is portantly, the challenge is almost always required to allege and defend against an perceived as an accusation that the opposallegation of purposeful discrimination, ing lawyer is a racist or sexist. the ability to speak on these issues in a We live in one of, if not the most, dicogent, calm, and reasonable way takes verse city and county in the United States. practice. The only way to have a civil diaOur juries should reflect that diversity. logue on these issues is to speak about Batson challenges, when invoked approthem outside of the courtroom in a safe priately, protect the right of each member environment. CLEs can help foster an atof our diverse community to serve on a mosphere in which lawyers become more jury. To that end, more education is reccomfortable speaking about issues that ommended. The education should have we have seen far too long as being outside two goals. the scope of our civil practice. First, the trial Bar needs to be more comfortable with the burden shifting And what about the judges? paradigm put in place by Batson. Because They would have to confirm the purBatson challenges are rare, many lawyers poseful discrimination of the respondent and judges are not knowledgeable enough by sustaining the challenge. No one in about the procedure to appropriately raise the courtroom is immune to the discomor rule on challenges. The lawyers also do

‘‘

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fort that these issues may raise; however, just because the issue isn’t comfortable doesn’t mean that we should not as a profession address it. As members of the Bar, we all took an oath to support the Constitution. It is incumbent upon us to protect the public’s right to participate in jury service because: The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community.19 The Hon. Steven Kirkland is the Judge of the 334th District Court, the former Judge of the 215th District Court, and served on the City of Houston Municipal Bench for over 10 years. The Hon. Latosha Lewis Payne is the Judge of the 55th District Court. The Hon. Ravi K. Sandill is the Judge of the 127th District Court Endnotes

1. The article speaks to the use of Batson challenges prior to the COVID-19 pandemic. A petit jury has not been picked in Harris County since the middle of March, 2020. 2. Batson v. Kentucky, 476 U.S. 79 (1986). 3. Strauder v. West Virginia, 100 U.S. 303 (1879). 4. Gina M. Chiappetta, A Battle of the Amendments: Why Ending Discrimination in the Courtroom May Inhibit a Criminal Defendant’s Right to an Impartial Jury, 83 FORDHAM L. REV. 1997, 2007 (2015) (citing Strauder, 100 U.S. at 305). 5. Strauder, 100 U.S. at 310. 6. Swain v. Alabama, 380 U.S. 202, 205 (1965). 7. See id. at 220–22 (stating that “the essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court’s control.”). 8. Id. at 221–22. 9. Batson, 476 U.S. at 95–97. 10. Id. at 87. 11. Powers v. Ohio, 499 U.S. 400, 402 (1991) (noting that “that a criminal defendant may object to race-based exclusions of jurors... whether or not the defendant and the excluded juror share the same races.”); Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991) (expanding Batson to also apply to civil proceedings). 12. J.E.B. v. Alabama, 511 U.S. 127 (1996) (disallowing gender to be the sole basis for exercising a peremptory strike). 13. Batson, 476 U.S. at 96. 14. Id. at 97–98. 15. Davis v. Fisk Electric Company, 268 S.W.3d 508, 515 (Tex. 2008). 16. Batson, 476 U.S. at 98. 17. Id.; Davis, 268 S.W.3d at 516–17. 18. Davis, 268 S.W.3d at 526. As then-President of the Houston Lawyers Association, Judge Payne coordinated the filing of Amicus Curiae briefs in favor of reversal. 19. Batson, 476 U.S. at 87.


COURTS

By Judge Genesis E. Draper and Judge LaShawn A. Williams

The Intersection of Judicial Ethics and Racial Justice “Now, this country is a constant work in progress. We were born with instructions: to form a more perfect union. Explicit in those words is the idea that we are imperfect; that what gives each new generation purpose is to take up the unfinished work of the last and carry it further than anyone might have thought possible.” 1

W

ithin the last six months, the United States has undergone what feels like two seismic shifts that have shaken us to our national core—the first being the onset of the novel coronavirus, and the second being the death of George Floyd. Both events magnified racial inequities and thrust us into a much-needed conversation about race, equality, and justice. As these conversations are occurring throughout the country, a noticeably absent voice is that of the judiciary. The judiciary’s silence is not surprising, as historically judges have refrained from commenting on events that may dominate the news cycle. This silence is, in part, because judges are governed by ethical rules that are

meant to promote public confidence in the integrity and impartiality of the judiciary. Judicial canons that order judges not to be “swayed by partisan politics, public clamor or fear of criticism”2 and prohibit them from engaging in extrajudicial activities that cast doubt on the “judge’s capacity to act impartially as a judge”3 have left judges hesitant to comment on issues like racial justice. So this spring when the country erupted in protests and calls for action in the wake of George Floyd’s death, judges largely remained silent, declining to make any public comment about issues such as police brutality, over-policing of minority communities, and inequities in all levels of the justice system. Even as I type the words “police brutality,” I struggle with whether as a judge I should use the phrase in this article. As the conversations surrounding racial justice grow louder and louder, judges are beginning to use their voices to weigh in; however, they are still struggling to navigate the waters of how best to do that while maintaining the impartiality that the bench demands. Indeed, the success of our tripartite government was founded on the concept of checks and balances, including the independence and impartiality of the judiciary. A recent opinion by Judge Carlton Reeves (United States District Judge for the Southern District of Mississippi) demonstrates that finding the balance is not an impossible task. Judge Reeves opined that while the defendant in the case was legally entitled to qualified immunity, the harm suffered by the plaintiff was significant and the status quo relating to qualified immunity is “extraordinary and unsustainable.”4 He applied the binding precedent that required dismissal of the claims against an officer who had “transformed a short traffic stop into an almost two-hour, life-altering ordeal,” but Judge Reeves warned that we should “not be fooled by legal jargon [because] [i]mmunity is not exoneration. And the harm in this case to one man sheds light on the harm done to the nation by this manufactured doctrine.”5 In this scathing criticism

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of qualified immunity and the unequal application of our nation’s laws, Judge Reeves shows us that a judge can lend his voice and unique perspective to acknowledge issues in our justice system that need to be re-examined, and still maintain impartiality and equitably apply the law. Recognizing that there is a difference between being impartial and promoting confidence in impartiality, judges will continue to struggle with how and when to use their voice to promote equality in our legal system. While the canons afford us the right to remain silent, should we? If what is said or done by a judge can be used to cast any doubt on her ability to act impartially, then she should not say or do it. Yet, under the Texas Code of Conduct, judges are allowed to “speak, write, lecture, teach, and participate in... activities concerning the law, the legal system and the administration of justice,” provided that in doing so the judges do not cast doubt on their “capacity to act impartially” on any matter that may come before them.6 Herein lies this intersection of ju-

dicial ethics and giving voice to racial injustice, or more aptly stated—giving voice to equality. This intersection is one of tension between the desires of a judge to remain engaged in her community and her responsibility to be and appear to be impartial. This intersection is profound because when our founders formed America’s judiciary, they did not anticipate that minority female judges would one day exist. This begs the question of whether in becoming a more diverse community and consequently judiciary, we are challenged to review a code of ethics/conduct that did not contemplate such growth. The tension created between the ability to “speak, write, lecture, teach and participate in extra-judicial activities concerning the law” while not casting reasonable doubt on the judge’s capacity to act impartially necessitates continued discussion because we have an increasingly diverse judiciary (and society) grappling with racial inequality and undertones of a caste system like never before. In the evolving work of

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democracy toward a more perfect union, how must the judiciary evolve? There was a time when the intersection of judicial ethics and racial justice did not even exist. We conclude however, that the tension that arises at that intersection is a part of the work of progress toward a more perfect union. The Hon. Genesis E. Draper presides over the Harris County Criminal Court at Law No. 12, and The Hon. LaShawn A. Williams presides over the Harris County Civil Court at Law No. 3. Endnotes

1. Fmr. President Barack Obama, Eulogy at Funeral of Rep. John Lewis (July 30, 2020), in N.Y. TIMES, July 30, 2020, https://www.nytimes.com/2020/07/30/us/ obama-eulogy-john-lewis-full-transcript.html. 2. TEX. CODE OF JUDICIAL CONDUCT, Canon 3(B) (2) (2019). 3. Id. at Canon 4(A)(1). 4. Jamison v. McClendon, No. 3:16-CV-595-CWR-LRA, 2020 WL 4497723, at *29 (S.D. Miss. Aug. 4, 2020). 5. Id. at *3. 6. TEX. CODE OF JUDICIAL CONDUCT, Canon 4(A)– (B).


HBA Milestones

construction crew of HBA volunteers was kept going by Gatorade and snacks delivered by the HBA staff and provided by the HBA Auxiliary.8 During the 2006-2007 bar year, the Habitat for Humanity Committee raised money to build two houses in celebration of the committee’s 10-year anniversary. Nancy J. Brown, who was the committee chair that year and had helped build a house in 2006, noted that the “best part was working alongside the homeowner to be.”9 By Anna M. Archer She pointed out that because the new homeowners must pay mortn its early years, the HBA’s primary focus was on legal ethgages and help build Habitat for Humanity homes, “It’s not a handics and preserving the dignity of the profession. It eventuout, it’s a hand up.”10 Brown’s committee recruited 250 volunteers ally turned to providing services for lawyers. With notable to build the two Habitat homes in 2007, and they worked for three exceptions such as establishing Legal Aid clinics, Law Day consecutive weekends on new homes programs, and the Houston Lawfor families of a toll authority worker yer Referral Service, the HBA did not and a childcare worker.11 turn its attention to serving the comIn 2017, Houston Habitat for Humunity until 1974, when the HBA manity honored the HBA with its ininstituted “Operation Reachout” to augural Legacy Award during its 30th “bring the bar back into the commu1 Anniversary celebration. The award nity.” The HBA leaders behind this recognized the HBA’s commitment to effort believed that “lawyers had a building homes for low-income famiprofessional responsibility to serve lies over the past 20 years.12 the public and give something back to While the HBA was originally foundthe community.”2 This change in foed to preserve the dignity of our procus provided immense benefits to the fession, the modern HBA has realized Houston community in the following If you are interested in giving back to the community years, but perhaps the most concrete through the HBA’s Habitat for Humanity program, the that our dignity is partially tied to servand lasting effect of the HBA’s deci- committee still needs $5,000 to meet its goal to build ing the community in which we live. Through building Habitat homes, we the HBA’s 23rd Habitat Home in the Spring of 2021. sion to reach out to the community Donate at hba.org/habitat. continue the tradition established by came 23 years later when the HBA HBA leaders from the 1870s through today of building an organizabuilt its first Houston Habitat for Humanity house. tion that continues to evolve as Houston’s needs evolve. The HBA began participating in Houston Habitat for Humanity during the 1997-1998 bar year. The Hon. Richard Trevathan was Anna Archer is editor in chief of The Houston Lawyer and a member the HBA President, and the Honorable Andrew S. Hanen was the of The Houston Lawyer’s history subcommittee Habitat for Humanity Committee Chair. The first house was part

Bringing the Bar Back to the Community:

Habitat for Humanity

I

of a special “Blitz Week” during which 100 Habitat for Humanity homes were built in Houston.3 Blitz Week was a component of the Jimmy Carter Work Project and was “the largest effort attempted in the United States.”4 Since 1998, over 4,556 HBA volunteers have helped build 22 houses. Families that have benefitted from the HBA’s Houston Habitat for Humanity projects include single parents, families who were displaced due to freeway construction or hurricanes, and Vietnam Veterans. The HBA funds the building materials and provides volunteers to build the houses.5 In order to qualify for the program, the new homeowners must demonstrate a need for housing, provide up to 250 hours of “sweat equity” with Houston Habitat for Humanity, and meet certain income and credit requirements.6 Judge Andrew S. Hanen, who helped build the first home, said that he could not “fathom an experience more intense or rewarding than the five days many of us spent in June hammering, sawing, and sweating.”7 He noted that the heat was constant, but the

Endnotes

1. ERIC L. FREDERICKSON, A COMMITMENT TO PUBLIC SERVICE: THE HISTORY OF THE HOUSTON BAR ASSOCIATION (1992). 2. Id. 3. The homeowner of the first HBA Habitat House, Alex Lane, paid off the mortgage for this home in June 2013. 4. Christine Nguyen, Habitat for Humanity and Its Home in Houston, HOUS. HIST., Fall 2017, at 13. 5. The materials totaled $45,000 in 1998; they have now increased to $70,000 per house. The HBA has raised and spent a total of $1,390,000 on Habitat for Humanity houses. 6. Homeownership,Hous.HabitatforHumanity,https://www.houstonhabitat.org/services/ homeownership/ (last visited Aug. 13, 2020); see also Shelley Elias, HBA Helps Build Someone’s Dream Through Habitat Project, HOUS. LAW. (May-June 1998). 7. Andrew S. Hanen, Habitat: One Hand One Heart One House, HOUS. LAW. (July-Aug. 1998). The HBA originally built these homes in the summer, but now the building typically is completed in the spring. 8. Id. 9. Ruth E. Pillar, Habitat Committee’s Tenth Birthday Has It Seeing Double, HOUS. LAW. (Sep.-Oct. 2006). While homeowners must still provide “sweat equity,” they are no longer required to help build their own home. 10. Id. 11. HBA Habitat Project Celebrates First Decade with Two Homes, HOUS. LAW. (May-June 2007). 12. Press Release, HBA, Houston Habitat for Humanity Honors HBA with First Legacy Award (Oct. 31, 2017) (on file with the HBA).

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OFF THE RECORD

Tom Berg:

Strengthening Our Democracy, One Voter at a Time

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The Houston Lawyer

By Cindy Dinh

In June 2020, Berg registered voters at the George Floyd om Berg, a criminal defense attorney, veteran of the memorial service. Donning a mask and gloves, Berg made his U.S. Army Reserves, former public defender, and forrounds, standing six feet away from potential registrants. “It mer Harris County First Assistant District Attorney takes 25 seconds to register someone to vote,” Berg said. After has found many pathways to public service. On this handing over his clipboard for the registrant to fill out the regoccasion, he wields a pen and clipboard, ready to registration card, Berg would review ister voters who minutes before the information to make sure it became naturalized U.S. Citiwas complete, hand the person a zens. For over a decade, Berg receipt, and submit the registrahas teamed up with the League tion card to the county, fulfilling of Women Voters of the Houston his duties as a volunteer deputy Area to register voters at monthly voter registrar. naturalization ceremonies. Berg hopes that changes to Lawyers are particularly election law will make it easier equipped for this role. “When to reach voters. “One thing you you’re facing 200 people in your can’t do in Texas is register to section who are eager to rush off vote online,” Berg said. “I would to receive their naturalization like to see that changed, even if certificates, you have to persuade them that [registering to vote] Tom Berg says voter registration is a non-partisan activity that allows it meant the outreach efforts in person were reduced.” He also is something that they should registrars to rise above the political fray. recalled the historical connection between voter registration and do today,” Berg said. Many of the presiding U.S. District Court the tax assessor’s office, which previously collected poll taxes, a judges also encourage the effort, waging a friendly competition form of voter disenfranchisement. He is hopeful that the county over the percentage of new registrations each can accomplish. will consider an independent commission to manage registraIn 2008, Berg attended his first naturalization ceremony in tion and elections. Iraq, where he witnessed fellow soldiers receiving their U.S. For the 2020 elections, Berg recommends people vote early, citizenship. After retiring as a Colonel and military judge, Berg returned to Houston and was a one-time judicial candidate. He noting that Harris County facilitates drive-through voting at realized that in order to get votes, he would first need to ensure certain locations. “You’re at greater risk at the grocery store that people were registered to vote. [than when voting],” Berg said. “It’s a nominal risk, but it’s According to Berg, registering people to vote is a non-partisan worth it.” activity that allows the registrar to rise above the political fray. Cindy Dinh is a litigation associate at Mayer Brown LLP. In 2017, “You don’t turn anyone down who is eligible to vote,” Berg said. she gave the keynote speech at a naturalization ceremony presided “You’re helping someone participate in our democracy and be an by the Honorable Gray H. Miller. Prior to law school, she worked active citizen.” in the Voter Outreach and Communications Department at the Pre-COVID-19, Berg registered voters at naturalization cereHarris County Clerk’s Office. monies, Veterans Affairs hospitals, churches, and high schools— reaching people wherever he could find them. But social distancEndnotes 1. As of the date of printing, the Texas early voting period is October 13–30, 2020. See ing has not stopped Berg from registering voters altogether. He VOTETEXAS, www.votetexas.gov (last visited Aug. 18, 2020); Election Division, HARRIS CNTY. CLERK’S OFFICE, www.harrisvotes.com (last visited Aug. 18, 2020). just has to take a more creative approach.

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A Profile

in pro f e s s i o n a l i s m

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Vivian King Chief of Staff, Harris County District Attorney’s Office

enacious. Relentless. Stubborn. Three synonyms with wildly different connotations. My challenge to you is to press on, no matter what others say. After graduating from UH in accounting in 1980, I focused on a career in modernizing finance. But banking was a lonely place for a Black woman, so after a decade I got my J.D. The Harris County DA’s Office recruited me from TSU because of my accounting background, and three years later I left to start my own practice. Law was also a lonely place, but I just focused on the work. I vowed to be the most well-prepared attorney in court. I studied great lawyers to learn to win. My goal was to get results. I worked hard and was the second Black woman in Texas to be Board Certified in Criminal Law. In 2011, I was awarded Lawyer of the Year by both the Texas Criminal Defense Lawyers Association and the Harris County Criminal Lawyers Association. In the four years that I have been Chief of Staff for DA Kim Ogg, we have gotten results. We streamlined the restitution process to fix a $2 million backlog. We’ve now sent crime victims $30 million in restitution. Our office has focused on recruiting incredible lawyers from around the country. By widening our search, we increased diversity and are now more diverse than the state bar and the Houston bar. Wherever you are, you can make change happen. It may be lonely, and you may get called stubborn, dogged or worse, but getting results is its own reward.

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41


Committee spotlight

Weathering the Storm:

HBA’s Inaugural Disaster Preparedness Committee

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The Houston Lawyer

By Kimberly A. Chojnacki

ouston is no stranger to catastrophic events, namely hurricanes and flood events. This year Houstonians faced an especially active hurricane season under the glaring lights of COVID-19. With such uncharted territory ahead of us, the Disaster Preparedness Committee arose. The Houston Bar Association has had to react over the years to events that have shut down the city. In those circumstances, the need for legal assistance from the community rises as capacity to provide aid struggles due to closures and missing links in resource chains. COVID-19 has made those challenges ever starker: the majority of people are working remotely, businesses have shuttered, and once available resources have dried up. The Disaster Preparedness Committee was created to establish a preparedness plan and corral resources that the HBA can provide to the community, including those needing legal help as well as members of the bar who may need resources or assistance due to their own practice considerations. Wasting no time, the Disaster Preparedness Committee first tackled the current hurricane season. The typical concerns during a hurricane season are flooding events and the resultant city shutdowns. To address those concerns, the Committee produced three videos with the help of volunteer attorneys who specialize in business interruptions and the legal issues that arise during severe weather events. The videos address “Hurricane Season – Lawyers’ Insurance Tips,” “Houston Office of Emergency Management’s Tips for Preparing for Hurricane Season,” and “Disaster Recovery for Lawyers.” The videos are available for free and to all at hba.org/disasterprep. 42

September/October 2020

thehoustonlawyer.com

The Committee’s broader goal, however, is to capture the myriad ways that the HBA can adjust its ability to serve the community during disasters. To that end, the Committee intends to develop plans for future catastrophic events, whether flood events, global pandemics, or otherwise. These are intended to be active response plans that allow the HBA immediately and seamlessly to mobilize in addressing moderate to wholesale business interruptions across the HBA’s scale of resources for the community and Houston bar. For example, the plan would address how the HBA could continue its work during a flood event that does not impact its office operations, as well as during events that require office closures. As committee co-chair Mitch Reid put it, they intend to answer the question of “how do we best coordinate all volunteers across the legal organizations and providers [the HBA] would normally reach out to” during a disaster? As this is its inaugural year, the Committee needs volunteers to assist with its initiatives and prepare the plans and resources for future disasters. If you are interested in serving on the Committee or assisting with its initiatives, please contact co-chair Keri Brown at keri.brown@bakerbotts.com or co-chair Mitch Reid at mitchreid@andrewskurth.com. Kimberly A. Chojnacki is an associate editor of The Houston Lawyer. She also is a litigation associate at Baker Donelson in Houston. She represents corporate clients in eminent domain proceedings, complex commercial litigation, and insurance defense disputes.


SECTION spotlight

Health Law Section:

A

By Kimberly A. Chojnacki

Pandemic-era Programming

s it has for most of us, 2020 has presented unique challenges and opportunities for the Health Law Section. The section typically is a space for health law practitioners to network, share resources, and support each other’s practices. This year, however, the section is faced with a changing health law landscape with limited (if any) opportunity to come together for in-person programming or meetings. Yet that hasn’t stopped them from taking the lead in this particularly health-focused bar year to provide the resources we all need to assist our clients and, in some instances, ourselves as we navigate this pandemic. COVID-19 has required shifts in a number of health law areas because it has presented previously unseen and, in fact, unimagined scenarios that healthcare providers have had to navigate on the spot. “One thing[, for example,] that is getting heightened focus is that there are some things HIPAA doesn’t cover that patients believe it should cover. They think there is an expectation of privacy around certain information and really the law doesn’t require that sort of privacy,” says Sara Brinkmann, the chair-elect of the Health Law Section. “The issue isn’t what you’re required to do to cover yourself under HIPAA, but also what is the best practice to ensure patients feel comfortable in how their data is handled.” These types of twists on previously well-known health law topics are the focus of the Health Law Section’s programming this bar year. At the end of August, for example, the section hosted “Updated Federal Guidance on HIPAA Compliance Issues in providing COVID-19 Treatment,” a discussion with Hanly P. Funderburk, an investigator with the U.S. Department of Health and Human Services, Office for Civil Rights. As its title suggests,

the program was driven by the unique challenges the pandemic has presented regarding HIPAA, patient care, and privacy. Telemedicine is another area the pandemic has transformed. Telemedicine is not a new resource for practitioners or patients. In fact, it has been around for decades. However, the pandemic has pushed forward—in earnest—the reliance on telemedicine for patients who don’t necessarily need in-person examination by a physician for diagnosis and treatment. The Health Law Section will be devoting an entire program to this topic as more seek to understand the nuanced legal challenges it presents, such as prescription authority and reimbursement rules. The balance of the section’s programming this year will focus on the “nuts and bolts” of health law in the age of a pandemic. Presentations will include investigations and compliance; the intersection of legal and compliance from the perspective of a compliance and ethics officer; IT, healthcare, and privacy; and a year in review, all through the lens of COVID-19. Tucked in between their programs will be the section’s annual happy hour, currently set for October 22. As with most things this year, it is subject to change based on COVID-related developments. If you are interested in becoming a member of the Health Law Section, or for more information about the programs planned this year, please visit hba.org/healthlaw. Kimberly A. Chojnacki is an associate editor of The Houston Lawyer. She also is a litigation associate at Baker Donelson in Houston. She represents corporate clients in eminent domain proceedings, complex commercial litigation, and insurance defense disputes. thehoustonlawyer.com

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LEGAL TRENDS

Passwords & Security: An Ethical and Technical Guide for Lawyers

I

The Houston Lawyer

By Trey Peacock

n today’s world, hardly a month passes without a major technology or web company regretfully announcing a breach of its users’ personal data. As remote work becomes more common, issues of security and password protection take on greater importance as work moves outside the safer confines of office network environments. Security and password protection should be important to any user, but additional ethical obligations require lawyers to protect client information and communications. The Texas Supreme Court recently adopted a change to Comment 8 of Rule 1.01 of the Texas Rules of Disciplinary Conduct which states, “Because of the vital role of lawyers in the legal process, each lawyer should strive to become and remain proficient and competent in the practice of law, including the benefits and risks associated with relevant technology.”1 Implementing strong password protection is one of the most important steps a lawyer can take toward fulfilling the obligation to protect client data. A system of strong, unique, and practical passwords guards your electronic information and communications and serves as one of the most potent lines of defense against inevitable data hacking. This article offers several rules and tips, which are easy to implement and will help safeguard your data, communications, and devices.

How Your Passwords Get Hijacked and Distributed Many believe the maximum damage that 44

September/October 2020

results from a hack of your Facebook username and password is an embarrassing post or two, and the annoyance of resetting the account. However, the true danger of a hack like the one that occurred at Facebook,2 materializes when the tenacious hacker capitalizes on the reality of human user error. All too often, the password to your Facebook account isn’t just for Facebook. It’s also your Amazon password, and your Wells Fargo password, and it’s just one letter or digit off from your work computer network login. Suddenly, what began as a simple breach of your Facebook account has developed into a full-fledged disaster, allowing a clever hacker to access your address and credit card data stored in your Amazon account, your banking information, and potentially, your entire library of sensitive, confidential legal files. Once the hacker has your information, he can use it in his own phishing or fraud scheme, or sell it on the dark web to other exploiters. The domino effect in cyber form. Rule #1: Use Lengthy, Complex, Unique, Truly Random Passwords for Each Site Creating unique passwords for each of your online accounts is essential to maintaining the integrity of your data. That way, if one domino goes, the others stand fast. Several criteria factor into the creation of a strong, unique password. First and foremost, never repeat any password, in part or whole, across more than one account. This includes tacking on characters, numbers, or capital letters. Hackers know that trick too, so just start from scratch. Second, not every account hack arises from a big tech company data breach. Sometimes, hackers employ a “brute force” attack on a user’s account. This entails trying dozens of possible password combinations every second until the correct one is reached. The only safeguard against this measure is a password long and complex enough to render a brute force attack impractical. For example, the simple

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password “lawyer” would take a modern computer only milliseconds to guess. In contrast, the moderately more complicated password “Law&yer2” would hold up for weeks or months. The longer and more complex a password is, the harder it is to crack. Thus, a secure password ought to include at least 10 to 12 characters, both lowercase and capital letters, and preferably a few numbers and symbols. These additions can increase the amount of time it takes to crack your password exponentially – from a few milliseconds to a few decades. Rule #2: Use a Password Manager The point at which I urge the creation of long and seemingly impossible-to-remember passwords for every account, is the point at which many abandon the cause. How can anyone create and remember a complicated, unpronounceable, 12-character password for every single one of the dozens of accounts you operate? The answer to this question is also the most useful tool in combating online security breaches: high-performance password manager software such as Dashlane, 1Password, or Keeper. These password management applications allow users to easily create, store, and retrieve lengthy, randomly-generated passwords for each of their online accounts. Utilizing a single program to store all of your passwords may feel irrational; if all my passwords are in one convenient place, doesn’t that make it easier for hackers to get at my stuff? No. These companies combine heightened encryption technologies with your unique Master Password (stored only on your computing device) to protect your passwords. With the help of a password manager, the savvy internet user need only remember THREE unique passwords: (1) a work or office network password; (2) a single mobile device password (more on that later); and (3) the master password for the password manager. With this set up, a hacker cannot use data gleaned from one account breach to access data in another account.


LEGAL TRENDS

Rule #3: Create Three Easy to Remember, Lengthy, Complex Passwords Those three passwords you are going to have to remember still need to be unique, lengthy and complex. To create them, think of an easily-remembered song title, lyric, street name, quotation, or other tidbit of information, and use it as a starting point. For example, say you are a Jimmy Buffet fan. Then, you might start with the lyric “wasting away in Margaritaville.” Compress that, add a few characters, and you’ve got “JBwaiM1946.” Easy enough, right? Compare this complex password, which would take years to brute force, with the simple alternative: “buffet,” which would fold under an attack in only seconds. Utilize this approach for the three main passwords in your daily life and your data will be far more secure. Rule #4: Change the Passcode on Your Phone and Tablet Finally, you should implement these same password criteria on your mobile devices. Mobile phones and tablets carry a much greater risk of breach via physical theft than a network does. Yet, as all tech-savvy professionals know, the files contained within these devices are no less confidential or sensitive than the information on your network server. Users should take full advantage of newer devices with fingerprint or facial unlock technology, as they are far harder to beat than a standard passcode. However, users are still required to enter a passcode every 10–14 days, or whenever the device reboots. Thus, you should upgrade the passcodes on your mobile devices to an eightdigit or 10- to 12-character alphanumeric password. You can easily do this by avoiding the default six-digit passcode default and selecting “password options” when changing your password on your device. You may choose to use all, some, or none of the precautions discussed in this article. Regardless of your current level of securityconsciousness, there is a myriad of resources and programs available to help users secure and protect electronic information. Savvy

lawyers understand that ignoring cybersecurity precautions can have far-reaching and long-term consequences. Trey Peacock, a partner at Susman Godfrey, has been winning cases based on science and data for over 25 years. He has also chaired the firm’s IT committee for over two decades. Endnotes

1. TEX. RULES OF PROF’L CONDUCT R. 101 cmt. 8 (2019) (emphasis added). 2. See Peter Blumberg, Facebook Vows to Improve Security After Hack of 29 Million Uses, BLOOMBERG (Feb. 8, 2020, 9:42 a.m.), https://www.bloomberg.com/news/ articles/2020-02-08/facebook-vows-to-improvesecurity-after-hack-of-29-million-users.

Use It or Lose It: SCOTX Draws Line for Implied Waiver by Litigation Conduct

I

By Luke Ott

t isn’t easy to waive a substantive right with no deadline, but apparently it can be done. When a lawsuit is filed in Texas against a licensed engineer without a certificate of merit (an affidavit from another engineer setting forth bases for liability), the case is ordinarily dead on arrival. All an engineer has to do is move to dismiss under Section 150.002 of the Civil Practice & Remedies Code, and the case will be dismissed. There’s no statutory deadline for dismissal, but since the certificate-of-merit requirement is mandatory rather than jurisdictional, it can— theoretically—be waived.

So, what happens if an engineer forgets to move for dismissal until the eve of trial, 1,219 days after the plaintiffs file a petition without a certificate of merit? Enter LaLonde v. Gosnell.

In LaLonde, when homeowners Paul and Kim Gosnell sued some licensed engineers over damages to their home’s foundation, they neglected to file a sworn certificate of merit. This oversight should have been fatal to their claim. But rather than taking this opportunity to seek immediate dismissal, the engineers filed an answer, agreed to a scheduling order, engaged in failed settlement efforts, supplemented their answer, made and responded to discovery requests, designated expert witnesses, sought attorneys’ fees, and twice filed motions for leave to designate responsible third parties. Only after the close of discovery—40 months after the Gosnells filed their defective lawsuit—did the engineers file a motion to dismiss. This past summer, the Texas Supreme Court held 6-to-3 that the engineers’ conduct amounted to an implied waiver of their right to immediate dismissal. After all, the engineers slept on their right until 1,219 days from the Gosnell’s original petition, 492 days from the first mediation, and after limitations had expired on the Gosnells’ contract claim. In that same time, Apple released five new iPhones, Adele won eight Grammy Awards, and Russia annexed Crimea. Apparently, this lollygagging cleared the high bar for implied waiver with room to spare. The Court also took this opportunity to provide a universal test for implied waiver by litigation conduct: “whether the party’s conduct—action or inaction—clearly demonstrates the party’s intent to relinquish, abandon, or waive the right at issue—whether the right originates in a contract, statute, or the constitution. This is a high standard.” In making their determination, trial courts must consider all of the facts and circumstances attending to a particular case. After LaLonde, what factors bear on whether a party’s litigation conduct clearly demonstrates their intent to repudiate a known right? Before the Texas Supreme Court decided LaLonde, most case law about implied wai-

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Continued on page 49 September/October 2020

45


Media Reviews

Antiracist Reading List

T

8. Just Mercy: A Story of Justice and Redemption by Bryan Stevenson 9. The New Jim Crow: Mass Incarceration in the Age of Colorblindness by Michelle Alexander 10. Eloquent Rage: A Black Feminist Discovers Her Superpower by Brittney Cooper

The Houston Lawyer

Compiled by Christina Beeler

here are thousands of significant books about racism affecting Black people, indigenous people, and other people of color in the United States. All struggles against racism are important. This reading list is focused primarily on anti-Black racism because of the recent killings by police officers of unarmed Black people, including George Floyd and Breonna Taylor. The below recommendations are in no particular order. These adult nonfiction books are focused on Black history, racism, and social justice. These books will guide readers in learning how to become antiracists who actively stand against racism. 1. How to Be an Antiracist by Ibram X. Kendi 2. Stamped from the Beginning by Ibram X. Kendi 3. So You Want to Talk About Race by Ijeoma Oluo 4. Between the World and Me by Ta-Nahesi Coates 5. Biased: Uncovering the Hidden Prejudice That Shapes What We See, Think, and Do by Jennifer L. Eberhardt 6. Chokehold: Policing Black Men by Paul Butler 7. The Fire Next Time by James Baldwin 46

September/October 2020

These adult fiction and poetry books written by Black authors are not solely about racism, but they have important things to say about racism and are all beautifully written. 1. The Vanishing Half by Brit Bennett 2. The Revisioners by Margaret Wilkerson Sexton 3. Citizen: An American Lyric by Claudia Rankine 4. Such a Fun Age by Kiley Reid 5. I Know Why the Caged Bird Sings by Maya Angelou 6. The Water Dancer by Ta-Nahesi Coates 7. The Underground Railroad by Colson Whitehead 8. The Gone Dead by Chanelle Benz 9. Deacon King Kong by James McBride 10. Americanah by Chimamanda Ngozi Adichie These young adult and children’s books show Black characters doing both ordinary and extraordinary things and will help parents talk about anti-Black racism with their children. 1. Stamped: Racism, Antiracism, and You by Jason Reynolds and Ibram X. Kendi 2. The March Trilogy by John Lewis and Andrew Aydin 3. The Hate U Give by Angie Thomas 4. Brown Girl Dreaming by Jacqueline Woodson 5. Monster by Walter Dean Myers 6. The Day You Begin by Jacqueline

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Woodson 7. Hair Love by Matthew A. Cherry 8. Last Stop on Market Street by Matt de la Peña 9. I Am Enough by Grace Byers 10. Antiracist Baby by Ibram X. Kendi. Christina Beeler graduated from the University of Houston Law Center in 2018. She recently completed an Equal Justice Works fellowship sponsored by Latham & Watkins LLP at the Juvenile and Children’s Advocacy Project, where her work focused on disrupting the school-to-prison pipeline by providing representation in school disciplinary proceedings. As a lifelong reader and a former high school English teacher, Beeler has read over 500 books during the past decade. She is currently a term law clerk in federal court.

Harvard’s Implicit Association Test Regarding Race

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Reviewed by Koby Wilbanks

uring this time of national discourse surrounding racial disparities in our society, individuals and organizations are contemplating their roles and responsibilities in recognizing and reducing such disparities. The wide range of opinions on this topic are part of a multi-generational discussion that


Media Reviews

will not reach a conclusion overnight. their current mood, or even the time they provide such information. There is One popular discussion regarding racial of day. In fact, a user’s results are likely no way to take the test without providjustice is the debate regarding the extent influenced merely by the fact that they ing such information. that an individual’s internal views know they are being tested for racial In an effort to solicit opinions regardinfluence their actions, both explicitly bias. ing the method and implicitly. Many board and efficacy of By its nature, implicit biases are difmembers also inthe Race IAT, ficult for anyone to recognize in themdicated that they The Houston selves, but the Harvard Implicit Associaagreed with, disLawyer Editotion Test (“IAT”) is publicly touted as the agreed with, or rial Board volgold standard for recognizing various were surprised by untarily proforms of implicit bias, including race. their test results. vided feedback The IAT is part of “Project Implicit,” These mixed reafter they took a non-profit collaboration between responses regardthe test. Twenty searchers at various universities that ing the accuracy board members are interested in collecting information of the results provided feedTest your implicit bias with science. Project Implicit and educating the public regarding their back regarding was founded in 1998 by scientists of the universities parallel the re“thoughts and feelings outside of [their] sponses of many the test. One of Harvard, Washington and Virginia. 1 conscious awareness and control.” professionals in public discourse who user chose not to take the test due to have mixed opinions regarding whether Project Implicit’s data privacy policy, The Race IAT measures the user’s inthe test accurately tests for implicit bias four users did not provide relevant comternal bias towards or against faces dein a single user or whether the results ments, seven users pointed out flaws picting a lighter or darker skinned inare accurate only when measured in the in the structure of the test, nine users dividual. The test has the user quickly aggregate. Since the results of the IAT thought the test results were accurate, associate positive and negative words are publicly available, other organizathree users thought the test results were with lighter and darker colored faces. tions have conducted meta-analyses not accurate, and two usThe test then measures the regarding the reliability of the test in ers were surprised with user’s response time to depredicting racist behavior and have gentheir results. termine the user’s internal erally found it to have weak predictive Among the board bias regarding race and proThe Race IAT abilities.3 members who pointed vides the user with a result measures the out flaws in the structure regarding whether they have Regardless of your opinion on current a strong, moderate, slight, or user’s internal bias of the test, the most com- discussions regarding racial justice, it is no preference for a specific towards or against mon comment was the important to educate oneself on the isfact that the test is more race. sue, including introspection regarding faces depicting a likely to measure an in- internal beliefs and critical analyses of Before taking an IAT, uslighter or darker dividual’s test taking data and statistics underlying external ers should be aware that the test requires that you proskinned individual. ability than their implicit discussions. bias. Users found it too vide your demographic inThe test has the Koby Wilbanks is a senior associate easy to train themselves formation (age, race, gender, user quickly assoat Murrah & Killough, PLLC, which to do well at the test rathetc.) as well as your email address and that Project Imciate positive and er than taking the test provides privately owned businesses with legal advice and business support without a specific result plicit publishes your anonynegative words with they need to grow and succeed. She is the already in their mind. mized results.2 Given generassociate editor for Media Reviews on lighter and darker This comment is al societal concerns with oncolored faces” echoed by others, attor- The Houston Lawyer Editorial Board. line privacy and the use (or neys and non-attorneys non-use) of collected data Endnotes alike, who point out that a user’s IAT (even when anonymized), users should 1. https://implicit.harvard.edu/ 2. https://osf.io/y9hiq/ results are influenced by many factors, consider their personal opinion on data 3. https://qz.com/1144504/the-world-is-relying-on-aflawed-psychological-test-to-fight-racism/ including the user’s test taking ability, privacy on such a sensitive topic before

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LEGAL TRENDS From page 45

ver dealt with arbitration and forum-selection rights, which only affect the arena of dispute and rules of engagement. The right at issue in LaLonde, on the other hand, would eliminate the litigation entirely. In such a case, a trial court must consider different factors to determine whether the defendant has thrown itself into the vortex of the merits. One factor recognized in LaLonde is the extent of the defendant’s participation in pretrial discovery. Fending off a plaintiff’s attacks or attempting to determine the case’s eligibility for dismissal is not enough. But intent to waive the statute’s threshold requirements is strongly indicated where a party actively pursues discovery oriented towards a resolution on the merits. Another factor noted by the Court is the point in the litigation process where the defendant first attempts to seek dismissal. As a case develops and moves closer to trial, each passing day is a small but cumulative indication that the defendant intended to waive its dismissal rights. Under Section 150.002, dismissal for non-

compliance with the certificate-of-merit requirement may be with or without prejudice (this is a matter within the trial court’s discretion). Thus, a trial court should also consider whether the defendant has sought affirmative relief, especially summary judgment. Such action is inconsistent with a defendant’s right to dismiss the case on terms within the trial court’s discretion and without regard for the merits. Similarly, a defendant who waits until after limitations has expired—causing a de facto dismissal with prejudice—has effectively repudiated its statutory remedy of immediate dismissal. What’s the bottom line? The Texas standard for implied waiver by litigation conduct is high but not impossible. Let LaLonde be a lesson: if you can get a case immediately dismissed, don’t wait over three years to do so. Luke Ott is an associate at AZA Law where he practices commercial litigation.

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