® Official Publication of the San Antonio Bar Association
March–April 2022
In Memoriam
Dawn Finlayson
San Antonio Bar Association President 2021
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contents ON THE COVER
In Memoriam 2021
6 In Memoriam 2021
FEATURES 12 Gaveling in the New Year on West Nueva By Matthew Carpenter
17 These Three Words, Part II By ileta! A. Sumner
6
DEPARTMENTS
BAR BUSINESS
27 Fourth Court Update
24 Th e San Antonio Bar Foundation Welcomes the Elected Fellows Class of 2022
By Justice Beth Watkins
By SABA Staff
28 Federal Court Update By Soledad Valenciano, Melanie Fry, and Jeffrie Lewis
March–April 2022
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San Antonio Lawyer® 3
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In Memoriam 2021 I
Frank Baker
was very fortunate and blessed to have worked with Frank at Matthews & Branscomb, as a law clerk, an associate, and then as his partner. I can’t count the number of times I sought Frank’s advice and wisdom over the years. I was always amazed at Frank’s ability to provide me from memory the citation to the controlling case law on legal issues I was researching. One of the first cases I tried as a young associate was with Frank, and I was literally in awe of his ability and prowess in the courtroom. Whenever I had a difficult legal or ethical issue arise, Frank was always there with sound advice and counsel. It was always a joy to be around Frank. I loved his dry wit. Frank was one of the best, if not the best, lawyers I have ever known. He was the epitome of what a lawyer should be. Leo D. Figueroa, Executive Director, Texas Board of Legal Specialization
6 San Antonio Lawyer® | sabar.org
Ernest Acevedo, Jr. died in July at the age of 69. A native of San Antonio, Acevedo graduated from Thomas Jefferson High School and received his law degree from St. Mary’s University. He practiced law for forty-five years, including twenty-seven years in practice with his son, Ernest III. In 2009 Acevedo was appointed as Judge for the newly created County Court-atLaw No. 14. Saul R. Acevedo died in January at the age of 57. Acevedo was a graduate of Thomas Jefferson High School and received his undergraduate degree from the University of Texas at San Antonio. He earned his law degree at Thurgood Marshall School of Law. He served as a Justice of the Peace for eight years and practiced law for thirty years. Francis William Baker died in November at the age of 97. Born in Victoria, Baker received his undergraduate degree in 1948 and his law degree in 1949 from St. Mary’s University. He served in the United States Air Force and achieved the rank of Colonel. In 1984 Baker was honored by St. Mary’s University as a Distinguished Law Graduate. He was the recipient, in 2003, of the Joe Frazier Brown, Sr. Award of Excellence from the San Antonio Bar Association. He was a mentor to many attorneys in San Antonio.
David Arnold Benavides died in July at the age of 74. Benavides was born in San Antonio. His ancestral family farmed and ranched in Medina, Wilson, and Bexar counties. He was a graduate of Brackenridge High School and received his undergraduate degree from St. Mary’s University. Benavides served in the United States Army and separated from service as a Captain. He received his law degree from St. Mary’s University in 1974. Benavides was active in numerous local charitable organizations, including his service as a Shrine clown beginning in 1986. He was a long-time member of the Los Bexarenos Genealogical and Historical Society, and a re-enactor of Tejano history. Taylor Scott Boone died in September at the age of 72. Boone was a Houston native. He received his undergraduate degree from the University of Texas and his law degree from St. Mary’s University. Boone was a well-respected estate planning attorney. He also held a master’s degree in Divinity from Perkins School of Theology at Southern Methodist University. Boone was an ordained Deacon of the United Methodist Church and served at Travis Park Methodist, where he often ministered to the homeless and the marginalized.
J
Jim Branton
im was a lawyer’s lawyer. He was known for his integrity, ethics, trial preparation, and skill in the courtroom. His word was his bond. Jim was a hard worker. He was always the first to come to the office and the last to leave. He loved the law and believed in giving back to the legal community. As a result, he served as president of the State Bar of Texas. During his presidency, he found time to maintain a full docket, tried a number of cases, and managed the office in spite of the demands required of the president of the State Bar. Jim also served as president of the San Antonio Bar Association, the San Antonio Chapter of the American Board of Trial Advocates, the San Antonio Trial Lawyers Association, and the Texas Trial Lawyers Association. He was deeply involved in drafting the Texas Evidence Code and the Texas Lawyer’s Creed. He was an Advocate of the American Board of Trial Advocates and a Fellow of both the American College of Trial Lawyers and the International Society of Barristers. Jim showed tremendous willingness to teach and train both attorneys and staff. His fairness, honesty, and willingness to teach led to a low turnover rate in office staff. A number of the staff remained with Jim more than twenty years. Jim and Molly were married in 1968 and remained married until parted by Jim’s death. They shared the joy of three daughters—Christina, Victoria, and Claudia—and their five grandchildren. James A. Hall, Attorney
James L. Branton died in July at the age of 83. Branton was raised in Cisco, Texas. The first in his family to go to college, Branton attended the United States Air Force Academy on a swimming scholarship. He received his law degree from the University of Texas. Branton was a co-founder of the law firm of Branton, Hall, Rodriguez & Cruz, and focused his practice on personal injury litigation. He was a past president of both the State Bar of Texas and the San Antonio Bar Association. In 2017 he received the Luther Soules III Award for Outstanding Service from the San Antonio Bar Association.
Oscar Luis Cantu, Jr. died in September at the age of 58. The San Antonio native was a graduate of Winston Churchill High School and received his undergraduate degree from the University of Texas. He earned his law degree at California Western School of Law in San Diego. He practiced in and around San Antonio for thirty-one years, with a practice emphasis on family, bankruptcy, and personal injury law. Daniel Diaz, Jr. died in May at the age of 73. Diaz was born in Giessen, Germany. He was raised in Del Rio and was the valedictorian of his high school graduating class of 1966. He received his undergraduate and graduate degrees from the University of Texas. He was a member of the Order of Barristers. For many years he practiced with Plunkett, Gibson & Allen. Roland R. Esparza died in January at the age of 53. Esparza was a graduate of Thomas Jefferson High School. He received his undergraduate degree from the University of Texas and his law degree from the University of Houston Law Center. Esparza practiced law in San Antonio and served as a Municipal Court Judge for six years. He served on the Unauthorized Practice of Law and the Fee Dispute Committees for the San Antonio Bar Association. Dawn Bruner Finlayson died in February at the age of 68. She was the first of seven siblings and grew up on the family farm in Dallas. She received her undergraduate degree in psychology from the University of Texas and her law degree from St. Mary’s University. She began practice as a law clerk to Chief United States District Judge William Sessions and later served as an Assistant United States Attorney. In private practice, she specialized in labor and employment law. Finlayson was highly active in the San Antonio Bar Association and was President-Elect of SABA at the time of her death.
Dawn Bruner Finlayson
D
awn was her father’s daughter. Fred Bruner was a notable larger-than-life Dallas criminal defense attorney who believed that every person deserved equal access to justice and to be treated with dignity. While a college freshman, Dawn watched her father participate in the Roe v. Wade argument from the gallery of the United States Supreme Court. That experience sealed the deal for Dawn. As inspiring as he was, however, watching Fred sometimes accept payment for legal services in live poultry, lawncare, and remodeling services gave Dawn pause, and she settled into an employment law practice with more traditional compensation. Dawn’s sense of fair play and justice ignited her in recent years to volunteer in voter registration and education, block walking, and working the phone bank. She was committed to expanding pro bono services to those in need and was especially proud to be an inaugural board member of the San Antonio Legal Services Association. Dawn was planning for her upcoming term as President of the San Antonio Bar Association, with a focus on identifying and supporting a talent pipeline of bright college students who might eventually practice law in San Antonio. She would be incredibly touched to know that the SABA Board will implement many of her ideas in her honor. What a testament to her leadership and how deeply loved and respected she was by so many. Dan Finlayson, Dawn’s husband of thirty-nine years.
March–April 2022
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San Antonio Lawyer® 7
John Joseph Franco, Jr. died in August at the age of 83. Franco was a native of Vicksburg, Mississippi. He received his undergraduate and law degrees from the University of Mississippi. He later received a Master of Laws degree in Labor Law from George Washington University. He served in the United States Air Force in the Judge Advocate General’s Corps. He was in private practice in San Antonio with Groce, Locke & Hebdon, and served as its President. Franco was a Fellow of the College of Labor and Employment Lawyers, a Life Fellow of the Texas State Bar Foundation, and a Life Fellow of the San Antonio Bar Foundation. For many years he served on the Board of Directors of Fisher House, Inc. Forrest Alan Futrell died in November at the age of 69. Futrell was born in Dumas, Texas, and graduated from Texas A&M University. After several years in the cattle industry, Futrell attended law school at St. Mary’s University and graduated in 1989. His practice focused on state and federal criminal defense, with an emphasis on death penalty defense. A diehard Aggie, Futrell served as Class Agent for his 1974 graduating class, and as a Director and Secretary of the Texas Aggie Bar Association. Sarah Garrahan died in March at the age of 84. Garrahan was born and raised in Stockdale and was the valedictorian of her high school graduating class. While married and raising three children, she pursued higher education and was a member of the first graduating class from the University of Texas at San Antonio in 1977. She earned her law degree from St. Mary’s University in 1981. Upon graduation, she worked as an attorney with the FBI as part of the team that prosecuted Charles Harrelson for the murder of United States District Judge John H. Wood, Jr. In 1986, she won the election for County Court-at-Law No. 4 and served on the bench for more than thirty years.
Patricia Kay “Tricia” Hernden died in February at the age of 56. Hernden, a San Antonio native, was a graduate of Tom C. Clark High School. She received her undergraduate degree from the University of Texas and her law degree from St. Mary’s University in 1989. She began her legal career as a prosecutor for the Bexar County District Attorney’s Office and later managed a thriving practice of her own with offices in San Antonio, Laredo, and the Rio Grande Valley.
Sarah Garrahan
M
y wife was truly impressed by Sarah when she showed up at the U.S. Attorney’s office as an intern her final year at St. Mary’s. LeRoy admired Sarah’s gumption and effort. After she graduated and was studying for the Bar, Sarah volunteered to continue giving us needed help in the closing days of the investigation of the death of Judge John H. Wood, Jr. She was so helpful that the powers that be in Washington were embarrassed to get so much effort for free and hired her as a Special Assistant United States Attorney, the first and only such hire in our forty years with the Department of Justice. Her job was whatever arose (referred to as “Duties as assigned”), and she never once said she couldn’t do it. As the trial approached, LeRoy decided to assign Sarah duties as one of the trial attorneys appearing in court. She had an enduring spirit, and her sense of humor relieved a lot of stress. On the final day of the first trial, I had the final closing argument and was as nervous as I could be. As I entered the courtroom, Sarah assured me that I was going to do a good job and, with a twinkle in her eye, said, “Remember, you can’t lose my first trial.” She stayed with us for more months until all the trials were resolved, for better or worse. Her future after that is known by all, and I can truly say the world is a better place, and we are better people, because of her. I know the grief the family is going through now, and it is only made bearable by the ability to recall the goodness of her life. Ray Jahn. Jahn and his late wife LeRoy served as Assistant U.S. Attorneys for nearly forty years.
8 San Antonio Lawyer® | sabar.org
Ronald James Johnson died in August at the age of 72. Johnson, one of nine siblings, was born in Mart, Texas. He was a graduate of Hubbard High School and was a member of both the football and the rodeo teams. He received his undergraduate degree from Southwest Texas State University and his law degree from St. Mary’s University. He clerked for United States District Judge John H. Wood and for United States Bankruptcy Judge Joseph C. Elliott. Johnson was a prominent member of the local bar and focused his practice on commercial and bankruptcy disputes. Stella Ortiz Kyle died in January at the age of 70. Kyle was born in San Antonio and attended Mount Sacred Heart Catholic School and Incarnate Word High School. She held undergraduate and postgraduate degrees in Psychology from Texas Tech University and earned a Doctorate in Clinical Psychology from the University of Texas in 1981. After working in the field of clinical psychology for several years, she enrolled in law school at St. Mary’s University, from which she graduated in 1987. She worked for the City of San Antonio before being appointed the first female Presiding Judge of the San Antonio Municipal Court. James Masterson Parker died in November at the age of 95. The San Antonio native was a graduate of Thomas Jefferson High School. Following his first semester at Texas A&M, Parker joined the United States Army during World War II and saw combat at both the Battle of Leyte Gulf and the Battle for Cebu City in the Philippines. He returned to college after the war and received his Civil Engineering degree from Texas A&M in 1947. After more than a decade of work as a construction estimator and field engineer, he enrolled in night law school at St. Mary’s University. Upon graduation, he served as the first briefing attorney for the Fourth Court of Appeals. He later worked in the San Antonio City Attorney’s Office and became the City Attorney in the late 1970s.
Theodore James Ralph died in February at the age of 90. Ralph was a native of Wisconsin. He earned an undergraduate degree in mining from the University of Wisconsin-Platteville in 1952. He received his law degree from the University of Wisconsin in 1962 and was admitted to the bars of Wisconsin, Nebraska, and Texas. Ralph worked as an engineer in the oil industry prior to law school. He also served in the United States Army during the Korean War as an Explosive Ordnance Disposal Specialist. Following law school, Ralph moved to San Antonio and worked for H.B. Zachry Company until his retirement in 2011. Bruce Biggs Robertson, Jr. died in October at the age of 86. Robertson received his undergraduate degree from the University of Texas. Upon graduation he entered the United States Navy, achieving the rank of Warrant Officer. Robertson attended law school at St. Mary’s University and graduated first in his class. He was Board Certified in both Civil Trial Law and Personal Injury Law. Stanley David Rosenberg died in May at the age of 89. He was a 1949 graduate of Texas Military Institute. He received both his undergraduate and law degrees from the University of Texas. He was a Chancellor and a member of the Texas Law Review. Following law school, he served in the United States Air Force as a JAG officer. After
S
his separation from the Air Force, he returned to San Antonio and helped found the law firm of Oppenheimer, Rosenberg & Kelleher, Inc. in 1971. Rosenberg was instrumental in all manner of business and philanthropic activities, including the formation of Southwest Airlines, Tom Benson’s purchase of the New Orleans Saints, and the creation of the Rosenberg School of Optometry at the University of the Incarnate Word. Mark Jay Sideman died in July at the age of 79. Sideman was born at the Nix Hospital in San Antonio. He graduated from Alamo Heights High School. He received his undergraduate degree from the University of Texas and his law degree from St. Mary’s University. Sideman worked as an attorney in San Antonio for fifty-five years. Eunice Elaine (Martin) Smith died in August at the age of 82. Smith was born in Corpus Christi and attended W.B. Ray High School. She received her undergraduate degree from Texas A&I in 1971. She was among the first women to receive a law degree from St. Mary’s University. Her career spanned many years in real estate law and title work. William Frederick (“Bill”) Stolhandske died in March at the age of 84. The Baytown native attended the University of Texas, where he played football and graduated with a degree in Business and
Stanley David Rosenberg
tanley David Rosenberg, leading real estate attorney, visionary business advisor, and philanthropist, died peacefully May 21, 2021. Stanley graduated from his beloved University of Texas School of Law, a member of the Law Review and a Chancellor. Known for his sense of humor, energy, and brilliant negotiating skills, Stanley was deeply involved in San Antonio’s development. People said there was not a real estate project in the 1980s that did not have Rosenberg’s mark on it. Stanley represented Tom Benson for over half a century, from
the purchase of Benson’s first dealership through his purchase and stewardship of the New Orleans Saints and Pelicans. Stanley gave his time and his resources to institutions he loved, creating scholarships at the University of Texas and contributing to the development of the University of the Incarnate Word. Stanley will be deeply missed by his loving wife, Sandra, and their family, but his legacy lives on. Carol Baskin, Attorney, Rosenthal Pauerstein Sandoloski Agather LLP, and daughter of Stanley and Sandra Rosenberg
Harry Swearingen
I
f anyone has ever epitomized the term “selfless,” that person was Harry Swearingen. Harry was smart, hard-working, and extraordinarily loyal to his clients, and he cared deeply for everyone that worked with him. The depth and breadth of his legal knowledge and his devotion to keeping current were extraordinary. Harry’s office was a minefield of advance sheets, issues of The Texas Bank Lawyer, and those huge orange 3-ring binders with the latest advanced banking or mortgage conference materials. He was also very good at forecasting South Texas weather—no easy feat. Far more important, though, were the counsel and emotional support that Harry, and his wife Gail, afforded to countless young people—often, but not always, young lawyers. If you needed help, professionally or personally, Harry and Gail were there for you. Patrick H. Autry, Branscomb Law
Accounting. He received his law degree from South Texas College of Law in 1966. He practiced law with his brother, Tom Stolhandske, for many years. Patrick Henry “Harry” Swearingen, Jr. died in June at the age of 97. Swearingen was born in San Antonio. He graduated from Thomas Jefferson High School and received his undergraduate degree from Princeton University in 1947. Swearingen’s service in the Army Air Corps as a reconnaissance meteorologist interrupted his undergraduate studies. He received his law degree from the University of Texas in 1950. He was Casenote Editor of the Texas Law Review and was inducted into the Order of the Coif. Upon graduation from law school, he joined the San Antonio law firm of Brewer, Matthews, Nowlin, & McFarlane. He spent his entire career with the same law firm in its various transformations, ultimately with Dykema Cox Smith. March–April 2022
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San Antonio Lawyer® 9
Charles Buchanan “Bucky” Tennison died in January at the age of 79. He graduated from Alamo Heights High School in 1959. He received his undergraduate degree in 1963 and his law degree in 1966 from Southern Methodist University. Following eighteen months as a stockbroker in New York, Tennison returned to San Antonio and worked with the United States Attorney’s Office. Later he became a criminal prosecutor with the Bexar County District Attorney’s Office. In private practice he focused on criminal defense.
W
Luis Vera
e have lost a great friend and a hero. To have known and worked with Luis Vera was to have touched history. His work has made the League of United Latin American Citizens (LULAC) ever more vigilant, stronger, and unrelenting in championing civil rights for the oppressed and justice for all brothers and sisters, including those in Puerto Rico. Luis did not know what impossible odds meant, and he did not cower before the forces of power and influence. He charged at the centers of political and judicial authority because he believed fiercely in the promise of our democracy and the righteousness of our constitutional protections. Luis was respected in the halls of justice and beloved in his community because of his passion. He has left an imprint that shall remain indelibly etched in our souls and in our hearts—a man whose legacy will endure for years to come. Sindy Benavides, LULAC National Chief Executive Officer
10 San Antonio Lawyer® | sabar.org
Luis R. Vera, Jr. died in November at the age of 65. The San Antonio native received his undergraduate degree from St. Mary’s University and his law degree from Western New England University School of Law. Vera was a nationally recognized civil rights leader and advocate, and he worked with the League of United Latin American Citizens (LULAC) for three decades. In 2017 the government of Mexico presented Vera with the Ohtil Award, one of its highest civilian honors, for contributing to the empowerment of Mexican communities abroad. At the time of his death, he was national General Counsel to LULAC. Ben Alton Wallis, Jr. died in January at the age of 84. Wallis was raised in Llano. He received both his undergraduate and law degrees from the University of Texas. Wallis practiced for more than fifty years. He was a long-time member of the San Antonio Bar Association’s District Courts Committee, former chairman of the State Bar Agricultural Tax Committee, and an active real estate law practitioner. He also served as Associate Counsel on the Impeachment Task Force for the United States House of Representatives Committee on the Judiciary in 1974 regarding President Nixon’s involvement in the Watergate scandal. Dale Weyand died in November at the age of 61. The Dallas native attended St. Mark’s School of Texas from kindergarten through twelfth grade. He received his undergraduate degree from the University of the South in 1982 and his law degree from St. Mary’s University in 1985. Weyand had a general civil practice, with an emphasis on bankruptcy and real estate matters.
Jon Clair Wood died in February at the age of 78. Wood was a native of Wichita, Kansas. He received his undergraduate degree from Yale University in 1964 and his law degree from the University of Texas in 1967. Following graduation, Wood clerked for United States District Judge D.W. Suttle in El Paso and San Antonio. He and his wife, Connie, settled in San Antonio, and he joined what was then known as Matthews, Nowlin, McFarlane & Barrett. He served as outside general counsel for City Public Service (now known as CPS Energy) and, in addition to many other duties, helped manage the utility’s involvement in the South Texas Nuclear Project for more than three decades.
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Investment management services and trust services are offered through Frost Wealth Advisors of Frost Bank. Investment and insurance products are not FDIC insured, are not bank guaranteed, and may lose value. Brokerage services offered through Frost Brokerage Services, Inc., Member FINRA/SIPC, and investment advisory services offered through Frost Investment Services, LLC, a registered investment adviser. Both companies are subsidiaries of Frost Bank. Additionally, insurance products are offered through Frost Insurance. Deposit and loan products are offered through Frost Bank, Member FDIC. March–April 2022 | San Antonio Lawyer® 11
Gaveling in the New Year on West Nueva By Matthew Carpenter
A
This photo captures two key pieces of art designed for the atrium of the new courthouse. The hanging, colored glass sculpture is the artist’s nod to the scales of justice, and the large rectangular painting in the background is the artist’s tribute to the San Pedro Creek location, where the courthouse was built. 12 San Antonio Lawyer® | sabar.org
fter forty-six years of dedicated public service, the John H. Wood, Jr. United States Courthouse in San Antonio has seen its last day of court. The iconic building that hosted events during the 1968 World’s Fair in Hemisfair Park has gone through many changes over the years. Officially dedicated as the federal district courthouse in November 1975, it has seen several infamous cases come and go. In recent years, however, the building has struggled to remain habitable due to structural challenges that are well documented. Since the building was not intended to operate as a courthouse, it is an impressive feat for it to have stood as long as it has. The list of issues with the physical infrastructure grew in recent years, as have other issues that affect effective operation. As trial practices have modernized in the past twenty years, the site fought to remain current and meet the technology needs of attorneys, judges, and the public. It has been clear for quite some time that no amount of work in the existing space would enable the court to meet those needs in full. After more than a decade of work to secure funding and location, the project to build a new federal courthouse in San Antonio is finally complete. With the new year, comes new opportunity on 262 West Nueva Street. The doors to the new federal courthouse officially opened to the public on January 3, 2022. This state-of-the-art building offers a fresh perspective in many ways, but none as seismic as the technology it affords to all parties. The new courthouse is home to multiple federal agencies, all of which benefit from the modernization effort. In the design process, it was important for us to use the experience of attorneys in court who navigated the limitations the Wood courthouse presented. This is the same approach taken in projects throughout the Western District of Texas. For example, these efforts are in line with recent projects to modernize the historic courtroom in Waco and the district courtroom in Del Rio. Using features implemented in these projects and key input from various parties, the San Antonio courthouse is the district’s most advanced offering to date. From complex litigation matters that have significant public interest to recent challenges with the pandemic, many factors were taken into consideration to implement technology to meet current and future needs in the courtroom. In the new courthouse, there are eight courtrooms. Five are for district judges. Two are for magistrate judges, and one is a special proceedings courtroom. New standards in national policy require courts to be prepared for courtroom sharing. This can present challenges in a growing division like San Antonio. How can the court be agile enough to meet the courthouse’s future needs with limited resources? This was a prime consideration in the design process, leading us to push for all of the technology offerings in all of the courtrooms to be equal. Although not every proceeding needs it, we implemented all of what we will cover in this article in every courtroom. Whether you are a court employee, an attorney, a party, a juror, or the public, your experience will be the same.
View of new courtroom from the gallery toward the bench
Integrated Cameras If there is one thing the pandemic has taught us, it is that remote hearings, witnesses, and sometimes criminal defendants are here to stay in some form. To accommodate that shift in the way court runs, in-room cameras of high quality are a necessity. There are two permanent cameras in each courtroom. One is in the back of the room by the entrance, and one is behind the witness stand. The camera in the back of the room is intended to frame either the judge or the witness. Presets at the courtroom deputy’s station control panel allow the camera to quickly switch back and forth, as needed in real time. The second camera is available to point at any of the attorney tables, the podium, or the parties. Depending on what is occurring in court, the courtroom deputy can make one or both cameras visible to those outside of the room. Along with making remote proceedings possible, the cameras also allow the people in court to spread out if necessary to accommodate social distancing. With video streaming available, the public can also be seated in other areas of the courthouse, such as the jury assembly room or another courtroom, should the judge prefer. Aside from health concerns, this is also an opportunity to better serve cases of high public interest, which may draw more visitors to the courthouse. This approach has been used in other Western District divisions, such as Austin.
View of new courtroom public entry where camera is mounted
State-of-the-Art Audio Coverage and quality of the audio at the Wood courthouse have been a challenge for many years. Because high-quality audio is the lifeblood of the court record, the opportunity the new courthouse presents to modernize this service is crucial for public interest. Great effort has been put forth to design a system that provides excellent sound and recording quality. You can expect gooseneck and shock mount microphones in various locations. In the layouts shown here, everything you see in gold is a permanent microphone location. There are two at each attorney table and one at the probation or pretrial table, which can double as another attorney table when needed. There is one microphone at the podium, the witness stand, the judge’s bench, and the lower bench. A hidden boundary microphone in the podium enhances ambient coverage. Finally, there is a side bar microphone next to the judge’s bench. The two that are marked in purple are optional microphone opportunities. One is at the jury rail, and the other is in the gallery to support voir dire. These are all physically connected microphone options, which provide the best audio quality experience. There are also wireless handheld and lavaliere microphones available. Audio recording has been upgraded to provide eight channels for isolation, and this capability can be set up in any courtroom should the need arise, but it is active by default in magistrate courtrooms. You can anticipate a professional level audio experience in all of our courtrooms.
Diagram showing angles associated with the camera behind the witness stand
Diagram of microphone locations (gold and purple indicators) March–April 2022
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San Antonio Lawyer® 13
The courtroom deputy controls all aspects of video in the room and will decide when and what is published in each location. When evidence is being presented, the courtroom deputy will preview and then publish it to the court. If a witness is involved, there is the flexibility for the court to show him or her alongside the evidence on the screen. This includes annotation capability for attorneys and a witness in the same view.
Modern Evidence Presentation Offering
Diagram showing screen locations (red and blue indicators)
Access to Video for All Having integrated video in every courtroom is a new venture for San Antonio. Gone are the days of video carts or the need to bring your own with you. In fact, please do not do that. Everyone in the room now has a clear path to view evidence. All the red locations indicated on the room layout (above) represent either a monitor or control panel that can display video. These are available at the podium, attorney tables, probation table, law clerk station, the upper and lower benches, the witness stand, and the jury box. The jury has access to a twenty-seven-inch (27-inch) monitor for every two jurors, spaced perfectly to allow full visibility. They also have the flexibility to move the screen up and down, giving line of sight access to a witness or the parties, instead of having to look down. For the public, there is a large screen that can swing out and face the gallery.
One of the most important improvements that we are offering is advancement in evidence presentation. We know that a successful argument in court is dependent upon the reliability of the services provided, as well as options that are current and standard practice. Having modern connectivity to the courtroom for evidence presentation is an essential function, one that we struggled with at the Wood courthouse for years. Long ago, the “courtroom of the future” was developed in the former courthouse, offering technology that was current over twenty years ago. Only one courtroom was updated, leaving all others far behind. Unfortunately, even that courtroom fell out of standard over time. In the new courthouse, great efforts have been made to not only modernize, but also to maintain, standards as we move forward. The other critical element in future success is consistency. Consistency of input type and availability ensures that all parties know what to expect when they arrive for a proceeding. As mentioned, all courtrooms in the new courthouse offer the same evidence presentation opportunities. Through a Wolfvision document camera, display of physical evidence is broadcast in 4K UHD quality with 64x zoom capability. This option is available in a drawer on the side of the podium. When not in use, it can elegantly be hidden away. Aside from physical evidence, the most common evidence display is through a laptop, camera, or other technology that attorneys bring to court. All are accounted for through
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View of the witness stand with microphone, speaker, and evidence presentation screen
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any iOS, Android, or even Windows device if you prefer.2 Use of this application, though, requires a unique set up for each courtroom. A “key” is provided by the courtroom deputy in each courtroom to register the location of your AirMedia application. Once set up, you can reuse that set up on your next visit to the courthouse. This option offers excellent flexibility, but it takes more work to set up. We encourage all attorneys to test and verify any evidence option they will be using in advance.
View of document camera in slide-out drawer of the podium
HDMI connections available in various locations in the courtroom. Providing a single connection type simplifies what you need to bring to court and ensures that the highest quality standard is available. The design of the courtroom also allows us to upgrade the connection type very easily when standards change in the future. Modern cabling techniques allow for flexibility, something not previously available in the district. Attorneys will bear the responsibility for either having an HDMI output or an adapter to convert to this standard. HDMI accounts for video and audio output, so no other connection is needed when presenting. This is different from older standards like VGA, which cannot transmit audio and require multiple connections. If you are presenting from an iOS device such as an iPad or an Android-based Courtroom diagram with evidence inputs in the room. tablet, adapters are typically available to connect such devices to HDMI, Note the two litigation support locations by the gallery rail. as well. Simply put: one connection, many devices. HDMI connections are available at the podium, each attorney table, and the witness stand. To maximize flexibility in evidence presentation, we have the unique offering of connections at two additional locations in front of the gallery rail. We call these “litigation support” locations. Either party can have staff sit at the gallery bench in front of the rail and provide input to the room.1 There are power and HDMI inputs available there. This allows litigation support in complex cases to be out of the way of the attorney tables. As is almost always the case, a hard-wired connection is the most reliable and simplest to execute. Resolving Cases Simply plug into an HDMI connection, and the Delivering Results courtroom deputy can publish your connection, a two-step process.
It’s settled
Alex Katzman
Wireless Presentation Option If you are interested in a more modern option to connect, we also offer wireless sharing. As you may know, Apple products can many times be an adapter challenge due to changes in connection options, or lack of outputs altogether. This comes into play, for example, when you need to share content from a device such as an iPad and do not have an adapter for HDMI. In that case, you can use our new AirMedia system from Crestron. AirMedia allows for the built-in screen share capability on a device to broadcast into the room. To prepare for this, you can install the application provided by the manufacturer on
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San Antonio Lawyer® 15
Summary chart of all technology available in each courtroom
The Public Atrium Aside from the courtrooms, there are many other areas of the courthouse that are enhanced with technology. From the jury assembly room to state-of-the-art conference rooms, deliberate enhancements will make the building a productive space for many years to come. One area that presents a new opportunity in San Antonio is the 215-footdeep atrium that covers 10,000 square feet. This space, located in the center of the courthouse, features two key pieces of local art that pay tribute to the San Pedro Creek and an abstract homage to the balance of justice through a two-story tall glasswork piece at the east entrance. The atrium is equipped with a large stage at the deep end, near the jury assembly room, and is ready to host three hundred to five hundred
people for events. The Court anticipates being able to host its own naturalization ceremonies. The space is designed to have three mobile projection screens to share video from the main stage. These screens are positioned throughout the space to ensure that all visitors can see clearly. Audio is balanced to cover the full atrium with sound, with JBL speakers positioned at various locations. To ensure that hearing impaired and non-English speakers can participate in such events, the system also has infrared emitters and interpretation capability through court-supplied headsets. In the past, large events always had to be held at offsite locations. The ability to host the naturalization ceremonies onsite is a great privilege that the court family looks forward to in our new home. The Western District of Texas is committed to providing services that fulfill the mission of the court to advance the administration of fair and impartial justice. As public servants, we take that mission very seriously, and our technology team has spent countless hours designing resources in the new courthouse. These decisions are not made in a vacuum. You play a critical role in the success of this endeavor. We welcome the federal bar to open and consistent dialogue with the court to ensure that all stakeholders have input in the future success of federal court proceedings in San Antonio. As I always say, innovation requires participation.
RELENTLESS PURSUIT OF EXCELLENCE
Matthew Carpenter is the Chief Technology Officer for the United States District Court, Western District of Texas.
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ENDNOTES Gallery benches are not available in magistrate courtrooms. Should seating be needed at these support locations, be sure to communicate with the courtroom deputy. 2 AirMedia Apps [Crestron Electronics, Inc.] 1
These Three Words
Part II
by ileta! A. Sumner 1
Author’s Preamble: This series tries to find an explanation for why BLM affects different sectors of our population differently. Accordingly, there is a deep look into policing of this country that can seemingly portray me as anti-cop. I am anything but. I truly understand that it is a small minority of police who have managed to smear the word “police” with the taint of their hatred or fear, and my research may seem as if I too am filled with bias based on hatred. It is quite the opposite. Instead, because two local police departments went over and above what was expected of them, keeping my family safe, their extra measures may be the only reason that we are alive. The majority of my active legal career involved the bilingual representation of homeless victims of family violence. In one instance, I procured a divorce for a client and sent her to one of five facilities around the country to guarantee her family’s safety. This was predicated upon the condition that she never contact me again. Why? I
knew from experience that once her ex-husband was released, he would haul me into court accusing me of hiding his wife. That scenario came to pass. After the case was dismissed, the adverse party began harassing me by phone at my place of employment. Soon, that segued into his stalking me. He would show up in the Presiding district court when I was working with other clients, and he sat facing me, no matter where I was located in the courtroom; moreover, his empty truck was seen in my neighborhood outside of San Antonio. One problem with “Orders of Protection” is that they provide no safety for the person representing the petitioner. Yet, in this case, the SAPD worked in conjunction with my local police department, and together they went the extra mile to serve this attorney and protect her family. The SAPD precinct that worked in my client’s neighborhood was familiar with the family. An officer from there first gave me the license plate number of the adverse party’s truck, just in case I saw an empty truck parked anywhere
I went. The officer knew the adverse party well for that was exactly what happened; often, it is used as a method of exerting power and control over a victim by instilling fear in the victim so that she becomes terrified to go anywhere. Most importantly, they explained everything to my local police department. One needs to understand that, when this happened, I begged my husband NOT to purchase any kind of weapon even though as a retired United State Air Force veteran, he had extensive knowledge about guns. We had two small boys in our home, and I was not going to be responsible for the death of ANY curious child. Thus, a different plan was developed: The police of my city would drive past my home, at regularly timed intervals, lights a-blazing, day and night, for months—long enough for the gentleman finally to get the memo that he was not going to get me. I have great respect for our public servants. It is one of the reasons that the growing numbers of acts of brutality perplex me . . . .
Black Lives Matter
as a casual glance or the failure to refer to a white person as “Mr.” or “Miss” and creating an entirely separate system for housing, recreation, dining, and working for black people, instituting a grossly inferior way of life for them and carrying over the vestiges of slavery long after the end of the Civil War. Time Goes By. The struggle for equality for black Americans from the time of slavery to today has been marked by slow milestones of progress followed by measures to thwart that progress. Consider that nine decades passed between a President proclaiming that slaves would be free and the Supreme Court’s holding unconstitutional the school segregation of descendants of those slaves. The advances won by black Americans in the decades following emancipation were mirrored by racist backlash. It is no accident that the Ku Klux Klan was formed during Reconstruction, in an effort to counteract the protection afforded blacks by federal troops
stationed in the South. In 1877, the federal government abandoned Reconstruction and withdrew its troops, leaving the former Confederate States free to implement laws that restored and reinforced the racial, social, and economic hierarchy of the antebellum period. These efforts were sanctioned in the Supreme Court’s 7-1 decision in Plessy v. Ferguson in 1896. Even after the separate but equal doctrine was overturned by the 1954 decision in Brown v. Board of Education, black students integrating schools—from six-yearold Ruby Bridges to twenty-nine-year old college student James Meredith—needed protection from federal law enforcement. In the 1950s and 1960s, the efforts by black Americans to secure the rights guaranteed to them by law were met with violent resistance by white Americans. In 1955, Emmett Till, a fourteen-year-old, was lynched and his murderers were acquitted.2 In the summer of 1961, Freedom Riders (including future
Vestiges of Slavery. In Part I of this series, I discussed some of the history of policing blacks because the form and methodology used by those who police the United States in the twenty-first century go directly back to 1619, when Africans were first brought to this country. Slave Codes, that were used to control behavior as opposed to stopping crime, were the underpinning for the development of Slave Patrols. Once the slave population grew to greatly outnumber those in control, these slave patrols morphed into the bases for Police Departments. With the passage of time, Black Codes and Jim Crow Laws—though illegal by their very nature—continued to guarantee the dominance of the white population by criminalizing any and all behavior of black people that could be deemed as threatening to the dominance of white people. Again, this was a behavior-based system, enforcing serious repercussions for actions as simple
March–April 2022
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San Antonio Lawyer® 17
John Lewis and Emmett Till
United States Representative John Lewis) were met with violent protests while police declined to intervene. Civil rights leader Medgar Evers was killed on June 12, 1963, and it would be thirty years before his murderer, a white man, was convicted. A few months later, on September 15, 1963, a bombing at a black church in Birmingham, Alabama, killed four little girls. One defendant was convicted in 1977, but it would be twenty-five years before two of his accomplices were convicted, and a fourth man died without ever being charged. On June 21, 1964, three civil rights workers disappeared in Mississippi, and their
buried bodies were discovered six weeks later. During the investigation, it was rumored that law enforcement officers were involved in the crime. In 2005, a single defendant was convicted of the murders, and the cases were closed by state and federal authorities, foreclosing the possibility of further investigation. On Sunday, March 25, 1965, about six hundred voting rights advocates (including John Lewis) set out from Selma, Alabama, on a march toward the state capital of Montgomery, but only got as far as the city’s Edmund Pettus Bridge before they were stopped and beaten by state troopers, a day that became known as “Bloody Sunday.” Illustrating the insidious nature of white supremacy in the South, the Edmund Pettus for whom that infamous bridge was named was a Confederate general, a leader in the Alabama KKK, and a United States Senator in the 1890s. And on April 4, 1968, Rev. Dr. Martin Luther King, Jr. was assassinated by James Earl Ray in Memphis, Tennessee. King’s murder is commonly marked as the end of the Civil Rights Movement.
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2/3/22 5:15 PM
Rev. Dr. Martin Luther King, Jr.
Stop and Frisk. Despite the legal and economic gains made by and for black citizens, the more things changed, the more they have stayed the same. As demonstrated above, much of the backlash against the increasing social, economic, and political power of black Americans was aided and abetted by (at best) the indifference or (at worst) complicity of law enforcement and judicial officials. The vestiges of slavery continue to animate law enforcement procedures and attitudes of the populace. While equal treatment may have been the letter of the law, that was not always the experience of black citizens. A cornerstone of criminal justice is the protection accorded each citizen that they cannot be questioned, searched, hauled into jailed and/or imprisoned indefinitely by any peace officer or entity without there first being probable cause for such action. In most instances, an officer is prohibited from conducting any unreasonable search or seizure of a person or place. However, there are many methods of getting around this prerequisite that have been deemed legal and allowable. One of the most infamous techniques is called “Stop and Frisk.” While the black population of the South had been accustomed to seemingly unending methods of being interrogated, inspected, or incarcerated, as they migrated from the rural South to other urban parts of the nation— moving in increasing numbers especially after World War II—blacks seemed to be accorded more local, state, and national protections. Nonetheless, the strategy of harassment and intimidation continued and, until very recently, was even deemed legal. An officer of the law was permitted to stop and frisk without probable cause for an arrest if he could “articulate a reasonable basis” for the stop or suspected that the person was armed and/or dangerous. Few places indulged in the practice more than New York City. In New York, it was acceptable for the police to halt pedestrians and question and inspect someone, if the office
had “reasonable suspicion” that the person in question was in possession of contraband or illegal weapons. Likewise, the individual could be stopped if the officer felt that the individual was committing, had committed, or was about to commit a felony or penal law misdemeanor. It is the last part of that phrase that was most disturbing. Suddenly, officers were authorized to be fortune tellers. While stop and frisk had been legal since 1968, the numbers of stops began to escalate during Rudy Giuliani’s mayoral terms (19942001). It was then that data began to show the disparate effect that stop and frisk had on black and Hispanic neighborhoods. Giuliani adopted a zero-tolerance policy for low-level offenses, claiming that stop and frisk saved lives. His stated goal was to catch persons who had committed more serious crimes. Elite teams were dispersed among “high crime” areas, detaining thousands of individuals. In 1998, there were 27,061 reported stops. However, it was Mayor Michael Bloomberg’s administration (2002-2013) that could be called “Cops Gone Wild.” Over 685,000 people were stopped in 2011, the highest number under his tenure. Nearly 90% of the individuals stopped were African-American RISK-TAKING CAN BE FUN...
or Hispanic, although the population of those two minorities combined only totaled approximately 50% of New York’s residents. The more disturbing statistic was that 88% of those stopped were found to be innocent of any crime. Thus, the stops did not identify perpetrators of serious crimes, but they did create an environment of fear among the people targeted. Questionable behavior that might have been prohibited elsewhere was given the green light in New York. Mirroring the beliefs of
many white officers of the South, northern police operated on the misbelief that black people, particularly the men, had an innate inclination to commit crimes. Consequently, black people were arrested and roughed up at incredibly disproportionate rates when compared to their statistical makeup of the general public. Still, authorities justified their actions of consistently surveilling, restricting, and hampering the movements of black people in New York as they had all across the nation. This continued until 2013,
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Judge Shira A. Scheindlin
Authorities justified their actions of consistently surveilling, restricting, and hampering the movements of black people. This continued until 2013, when Judge Shira A. Scheindlin finally put a stop to it. Contrary to the finding in Terry v. Ohio, 392 U.S. 1 (1968), the court found that the policy of pulling over or apprehending pedestrians without probable cause was in violation of the Fourth Amendment.
when Judge Shira A. Scheindlin finally put a stop to it. Contrary to the finding in Terry v. Ohio, 392 U.S. 1 (1968), the court found that the policy of pulling over or apprehending pedestrians without probable cause was in violation of the Fourth Amendment. The fact that stop and frisk had an amazingly adverse effect on people of color only added to its being unconstitutional. America the Beautiful. The justifications for New York City’s stop and frisk policy showcase a detrimental law enforcement philosophy. Too often, the people authorized to secure the safety of the public see themselves as being in constant danger and believe that the only way to protect their community— and most importantly themselves and their brothers and sisters in blue—is to dominate black people. This fear has caused a small number of law enforcement officers to commit growing numbers of attacks, often by escalating encounters that begin as quasiinnocent inquiries and end with inhumane actions. Thus, the hatred that motivated the slave patrols to inhibit the behavior of enslaved black people, regardless of innocence, continues to be a vital justification of overly aggressive acts even when, seemingly, no crime has been committed. The deep-seated stereotype of black people as violent or
aggressive makes some officers feel attacked even when no threat truly exists. Conditioned to fear black people in general, and especially to fear any reversal of power structures rooted in concepts of white supremacy, officers can merely feel disrespected and decide to exert force in order to reestablish their edge of power, often with tragic results. A House Divided. What is even more unnerving is the fear or refusal of honest police officers to turn in or report their outof-control colleagues. What could explain such callous behavior by good people? Loyalty to the badge, which is paramount to police. Thus, the reporting of excessive force or use of racial slurs by a colleague could be seen as an act of treason. There seems to be a siege mentality among some officers. Many officers see themselves as engaged in combat against an armed enemy. In turn, success within their profession is based on their success in this fight (i.e., arrest numbers, crime rates). This causes friction with the people that they are paid to protect. The 2017 Pew Report found that 86% of police feel underappreciated by the general public, for if one is not a member of the blue line, it is hard to understand all of the risks and challenges of the job. Instead of feeling a part of the community, they feel “at war” with it.
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As a result, officers of the law believe they only have two choices when they see wrongs committed by fellow officers: They can either participate or ignore it. In 2017, Heidi Reynolds-Stenson, a sociologist at Colorado State University– Pueblo, conducted a study of 7,000 protests from 1960-95. She discovered that police were more likely to put down a protest than speak harshly about police who conduct such behavior. An example of this is the chaos created after Terence Monahan, a white officer who was then the Chief of the NYPD, knelt in unison with Black Lives Matters protestors. At the time, Monahan said he felt the pain of the protestors, having witnessed horrors against women in his own department. He agreed with the message that public safety officers should not be causing fights but stopping them. His photo was all over social media, kneeling in unison with protestors, even hugging them. While some praised him, many law enforcement officers questioned his judgment and his loyalties. Monahan retired the very next year, after having served in the police force for thirtynine years. Before leaving his position to take a post as an advisor to New York Mayor Bill de Blasio, overseeing recovery, safety and planning for NYC, Chief Monahan wrote three emails, apologizing for his act. He declared that he had made a “horrible” decision to display such a sympathetic act with a mutinous group. He just could not win. He was damned when he committed the act, and he was feeling damnation if he did not participate with people with whom he agreed in his heart. Monahan initially stated that he kneeled with the protestors because he believed that some of them were not anti-cop, but wanted to “embrace change.” Though he announced that he felt that in order for there to be real change in the NYPD, both sides would need to come together and work with each other—not attack and blame the other side—he still caught flak from the President of the Sergeants Benevolent Association, Ed Mullins, who claimed that Monahan was leaving the police to soften the upcoming blows that would probably emerge from the multiple complaints filed by the Civilian Complaint Review Board, the group that handled hearings about improper police tactics, the same group that was to hold hearings about Monahan and his actions during multiple George Floyd protests. Social Dominance Orientation. Psychological research suggests that white officers are disproportionately likely to demonstrate a personality trait called “social dominance orientation.” White officers of
the law who score high for the likelihood of possessing this trait tend to use force more frequently than those who do not. People with high levels of this trait tend to believe that the existing social hierarchies are not only necessary, but morally justified. If one feels that social hierarchy is good, then maybe one will be more willing to use state-sanctioned violence to enforce that hierarchy and to think that it is one’s job to do so. The complexity involved with policing one’s community, being on the lookout for wrongs to happen, being always ready to respond quickly, creates the tensions associated with the position. This tension can bring out the worst in any person. Overt racism may prompt some officers to engage in abusive acts towards black people. On the other hand, the police officer could merely be mirroring the overwhelming feelings within the community and reflecting a desire to maintain the traditional social hierarchies. Taking all of this into consideration may begin to explain why black people were 28% of those killed by law enforcement in 2020 despite making up less than 13% of the total population of the nation. They were three times more likely to be killed by police than white people. In fact, police have been shown to kill black
people in higher rates than white people in the forty-seven largest United States cities. It is not unusual for most police killings to begin as innocently as a mere traffic stop. Likewise, they can escalate from a mental health call or reported low level offenses. Police-involved killings are not correlated to crime. Why does this continue to occur? From 2013-20, 98.3% of police killings did not result in any officer being charged with a crime. Thus, because there is little accountability, there has been little deterrence of this pervasive problem.
What’s Going On? Black people have been acutely aware of the danger lurking in police forces. However, the rest of the world— the rest of the nation, even—has not been as cognizant of this troubling fact, although there are frozen moments in United States history that have blown this secret wide open. In March 1991, for instance, George Holliday heard a ruckus outside of his apartment. Instinctively, he ran outside to see what was happening, grabbing his video camera to tape the scene. The video of what happened
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San Antonio Lawyer® 21
The video of what happened to Rodney King that day was played on the news, blatantly showing that the police were definitely guilty . . . of something. The video became the lynchpin of the prosecution’s argument of abuse by the Los Angeles Police Department officers.
to Rodney King that day was played on the news, blatantly showing that the police were definitely guilty . . . of something. The video became the lynchpin of the prosecution’s argument of abuse by the Los Angeles Police Department officers. Catch and Release. Confronted with this incontrovertible evidence, many Americans were shocked that the people who were supposed to guard the public were caught doing the exact opposite. Nevertheless, all four of the officers involved in the Rodney King beating were acquitted on state charges, although two of the officers were later convicted on federal civil rights charges. While the world was surprised by the outcome of the Rodney King case, the residents of what was referred to then as “South Central LA” were not. For decades, there had been mounting tension between those with power (the police department) and the powerless (the residents) within South Central. Black residents in South Central could not get justice whether they were the accused or the victim of crime. A mere month before the King beating, a store owner claimed she was being robbed by an armed fifteen-year-old African-American girl who, it was uncovered, was clutching wadded money with which she was going to pay for the juice she was accused of trying to steal. The store owner fatally shot the girl and was convicted of manslaughter. Her sentence? Probation and a fine of $500. So when the verdict of the four police officers who participated in the beating of Rodney King was announced as “Not Guilty,” the locals knew that the defendants were not innocent in the least. Once the foreman gave the verdict, the city literally caught fire. South Central was fed up with being overwhelmed, overlooked, and overcharged for so long, and they refused to stand idly by and just let the verdict’s announcement trail off into the wind. Probably the most surprising outcome from the 22 San Antonio Lawyer® | sabar.org
Rodney King debacle was the LAPD’s failure to respond to the growing number of looters and the mounting amount of damage that came not long after the trial. There was no response. None. There was no plan to protect the city should the policemen not be held accountable for the acts that were seen all over the world. LAPD Police Chief Darryl Gates spoke at a fundraiser. In fact, he ordered his men to retreat. It was only after Mayor Tom Bradley declared a state of emergency that 2,000 National Guardsmen were ordered to bring order to the city. I See You. Fast forward through the rest of the 1990s and ten years into the new millennium. One little piece of technology would again change how the world viewed American police tactics: the smartphone. It was not the primary feature, the actual calling part of the apparatus, that was to be central to changing or enlightening opinions of racism in American policing. It was its capability, at least initially, to capture actual photographs and video. And most everyone had smartphones. And those photographs and videos could be shared almost instantaneously by the average person and circulate virally around the world in a matter of hours. After the onslaught of news reporting time after time after time that an unarmed black man had been beaten and/ or killed by white authorities, Alicia Garza, of Oakland, California, coined the phrase Black Lives Matter. Another tsunami of victims (especially the merciless killing of Michael Brown of Ferguson, Missouri) moved Patrisse Cullors, an avid user of the social media platform Twitter, to put the phrase Black Lives Matter into the Twitter-verse, creating the hashtag #BlackLivesMatter. Ayo Tometi (formerly known as Opal Tometi) joined forces with Garza and Cullors and used her experience with activism and community organizing to turn the hashtag into a political and social movement. #BlackLivesMatter grabbed the entire world’s attention and
became the voice of black victims killed in the most heinous manners by an outrageous number of white police officers all over the country. The Black Lives Matter movement is one of the quickest forming, largest, most controversial—yet most effective— contributors to the Civil Rights Movement ever. Black Lives Matter has also sparked questions. For instance, what effect did the Black Lives Matter movement have on the George Floyd trial? Has the George Floyd verdict brought accountability for heinous, illegal acts by police? Why does the Black Lives Matter agenda include voting reform? The answers to these and other nagging questions will be considered in an upcoming issue of San Antonio Lawyer, in Part III of this series: These Three Words. ileta A. Sumner, esq. is a former President of the Bexar County Women’s Bar (2002) and the original General Counsel and creator of the legal department of the Battered Women’s and Children Shelter. She has been disabled since 2006. She can be reached at (210) 421-2877 (cell), litig8rij@aol.com. SELECTED BIBLIOGRAPHY Civil Rights Movement, History (Jan. 29, 2021), https://www.history.com/topics/civil-rightsmovement/civil-rights-movement-timeline. Emancipation Proclamation: Definition, Date, Summary, Significance, & Facts, Britannica (Jan. 1, 2022), https://www.britannica.com/event/ Emancipation-Proclamation. Extra!: Civil Rights Timeline, CNN (5:50 p.m. EST, February 21, 2007), https://www.cnn.com/2006/ EDUCATION/01/31/extra.civil.rights.timeline/ index.html. This Day in History: American Civil War ends, History, https://www.history.com/this-day-in-history/ american-civil-war-ends.
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Sharon Pruitt-Young, Slavery Didn’t End on Juneteenth. What You Should Know about this Important Day, NPR (June 17, 2021, 6:00 AM ET), https://www.npr. org/2021/06/17/1007315228/juneteenth-what-isorigin-observation. Civil Rights Movement Timeline – Timeline & Events, CNN (Jan. 19, 2021), https://www.cnn.com/2006/ EDUCATION/01/31/extra.civil.rights.timeline/ index.html. Mapping Police Violence, (January 13, 2022), https:// mappingpoliceviolence.org/. Bridge Initiative Team, Factsheet: NYPD STOP AND FRISK POLICY, (June 5, 2020), Factsheet: NYPD STOP AND FRISK POLICY - Bridge Initiative (georgetown.edu). U.S. Constitution, 4th Amendment, United States Courts, https://www.uscourts.gov/about-federalcourts/educational-resources/about-educationaloutreach/activity-resources/what-does-0. Dylan Matthews, Here’s What You Need to Know about Stop and Frisk and Why the Courts Shut it Down, Washington Post (August 13, 2013), https://www. washingtonpost.com/news/wonk/wp/2013/08/13/ heres-what-you-need-to-know-about-stop-andfrisk-and-why-the-courts-shut-it-down/. Ashley Southall and Michael Gold, Why ‘Stop and Frisk’ Inflamed Black and Hispanic Neighborhoods – Michael Bloomberg has apologized for overseeing an expansion of the controversial street-stop program as mayor, The New York Times (February 19, 2020), https://www. nytimes.com/2019/11/17/nyregion/bloombergstop-and-frisk-new-york.html. NYCLU – ACLU of New York, STOP-AND-FRISK
DATA: Annual Stop-and-Frisk Numbers, https://www. nyclu.org/en/stop-and-frisk-data. Dorothee Benz and David Lerner, Landmark Decision: Judge Rules NYPD Stop and Frisk Practices Unconstitutional, Racially Discriminatory, Center for Constitutional Rights, https://ccrjustice. org/home/press-center/press-releases/landmarkdecision-judge-rules-nypd-stop-and-frisk-practices. Floyd, et al. v. City of New York, et al., 959 F. Supp. 2d 540 (S.D. N.Y. 2013). Leonard Moore, Police brutality in the United States, Britannica https://www.britannica.com/topic/ Police-Brutality-in-the-United-States-2064580. Zack Beauchamp, What the police really believe – Inside the distinctive, largely unknown ideology of American policing – and how it justifies racist violence, Vox (July 7, 2020) https://www.vox.com/policyand-politics/2020/7/7/21293259/police-racismviolence-ideology-george-floyd. A.W. Geiger | 17 striking findings from 2017 | Pew Research Center | December 26, 2017 | https://www. pewresearch.org/fact-tank/2017/12/26/17-strikingfindings-from-2017/. Heidi Reynolds-Steneon, Protesting the police: antipolice brutality claims as a predictor of police repression of protest, (September 22, 2017), https://www. tandfonline.com/doi/abs/10.1080/14742837.2017 .1381592. Amanda Woods, NYPD Chief Terence Monahan reveals why he took a knee with BLM protestors, (February 26, 2021 11:52am), https://nypost.com/2021/02/26/ terence-monahan-reveals-why-he-took-a-kneewith-blm-protesters/.
The Associated Press, George Holliday, Who Shot The Video Of Officers Beating Rodney King, Has Died, NPR (September 21, 2021 9:37 AM ET), https://www. npr.org/2021/09/21/1039236256/george-hollidaywho-shot-the-video-of-officers-beating-rodneyking-has-died. Anjuli Sastry and Karen Grigsby Bates, The Los Angeles Riots, 25 Years On – When LA Erupted in Anger: A Look Back At the Rodney King Riots, (April 26, 2017 1:21 PM ET), https://www.npr.org/2017/04/26/524744989/ when-la-erupted-in-anger-a-look-back-at-therodney-king-riots. Charlee Dyroff, Here’s how much cellphones have actually changed over the years, Insider (July 25, 2018), https://www.insider.com/the-history-of-thecellphone-2018-7. Alicia Garza on the Origins of Black Lives Matter, CBSnews (October 18, 2020, AM), https://www. cbsnews.com/news/alicia-garza-on-the-origin-ofblack-lives-matter/. ENDNOTES 1 Author’s Note: The author extends her warmest thanks to Articles Editor Natalie Wilson and Copy Editor Steve Peirce, for it was only with their assistance and dedication that this article came to fruition. 2 For an in-depth exploration of the murder of Emmett Till and the subsequent acquittal of his murderers, please see my two-part series entitled En Bocas Cerradas, No Entran Moscas: The Emmett Till Story, which was published in the September-October 2019 and November-December 2019 issues of The San Antonio Lawyer. PDF copies of the articles may be requested by sending an email with the issue date and article name to comm@sabar.org.
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San Antonio Lawyer® 23
bar business
The San Antonio Bar Foundation Welcomes the Elected Fellows Class of 2022 By SABA Staff The San Antonio Bar Foundation is pleased to announce its 2022 class of twentyeight elected Fellows. Established in 1984, the Foundation is the philanthropic arm of the San Antonio Bar Association (“SABA”). The Foundation, comprised of Fellows who serve as patrons of the charitable heart of the legal community, hosts civic education programs, helps fill gaps in people’s access to
justice, and supports the pipeline of future leaders in the San Antonio legal family. Selection as a Foundation Fellow is by nomination only and restricted to members of the SABA. Fellows must demonstrate professional achievement, an exemplary reputation, and commitment to the legal community. Each year’s class is limited to no more than one third of one percent of SABA
members and is subject to confirmation by the Foundation Board of Trustees. Today, the program is comprised of more than 650 Fellows who volunteer and financially support the Foundation’s programs and mission. For more information about the Fellows Program, the Foundation, or SABA, please visit www.sabar.org.
Rebecca Hughes Aduddell, Gonzalez Chiscano Angulo & Kasson, PC
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Judge Rosie Alvarado, 438th Civil District Court
David Angulo, Gonzalez Chiscano Angulo & Kasson, PC
Tom Bagby, Tom Bagby Law Firm
Paul D. Barkhurst, Barkhurst & Hinojosa, PC
Andrew L. Baumgardner, Jackson Walker, LLP
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Brad Lee Sklencar, Resnick & Louis, PC
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24 San Antonio Lawyer® | sabar.org
Hon. Carla Martinez Riedl, Judge David J. Rodriguez, Bexar County District Bexar County Court Attorney’s Office at Law #3
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San Antonio Lawyer® 25
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Fourth Court Update
Election Contests By Justice Beth Watkins
A
s I write this article, political ads are starting to appear in the media, and candidates’ literature is beginning to show up in our mailboxes. That’s right, friends, it’s election season again. At the Fourth Court of Appeals, we also recognize the season by the election contests that are filed. This year was no exception. From December 15, 2021, to January 11, 2022, the Fourth Court received five election contests—all mandamus proceedings arising out of Bexar County primaries. Our court denied relief in all but one of those cases, underscoring what an extraordinary remedy mandamus truly is. The first “wave” of filings, which occurred in mid-December, generally involved complaints about the initial review of a candidate’s application to be placed on the primary ballot. The Texas Election Code provides that “the authority with whom the application is filed” must review the application “not later than the fifth day after the date the application is received by the authority.” Tex. Elec. Code Ann. § 141.032(a), (b). Typically, the “authority with whom the application is filed” is a county or state political party chair. The Election Code requires those individuals to determine whether a candidate’s application to appear on the primary ballot complies with statutory requirements “as to form, content, and procedure.” See id. § 141.032(a). If the party chair concludes that an application satisfies the statutory requirements, an opposing candidate may then challenge that determination. Tex. Elec. Code Ann. § 141.034. Additionally, either candidate may seek mandamus review to compel the party chair to perform his or her statutory duties. See Tex. Elec. Code Ann. § 273.061(a). In the first wave of filings in our court, candidates for public office sought mandamus relief to compel party chairs to either accept or reject individual applications before a December 2021 deadline. The second “wave” of filings came in early January after the party chairs completed their initial review of the candidates’ applications. These filings argued largely that a candidate’s right to appear on the ballot should not
be certified to the Texas Secretary of State or that the Elections Department should not print a candidate’s name on the ballot. Like the first wave of filings, these petitions implicated duties owed by both the candidates themselves and the party chairs who must review their applications. Unlike the first wave of applications, however, these filings also affected the work of the county election supervisors charged with printing the ballots. Because eligible mail-in voters may request a ballot forty-five days before an election— which, for this primary season, meant voters could begin requesting ballots as early as January 15, 2022—any delay in resolving these early January cases would have severely hampered the first days of the 2022 primary. All cases filed in our court raise interesting and difficult legal issues, but the election disputes in both “waves” presented unique legal and logistical challenges. While these cases must be resolved quickly—sometimes within only hours—the parties are entitled to the same careful consideration we give every other case. Additionally, in reviewing these cases, we must remain mindful that “[a] candidate’s access to the ballot lies at the very heart of a constitutional republic.” In re Green Party of Tex., 630 S.W.3d 36, 37 (Tex. 2020) (per curiam). For that reason, we take our responsibility to review these important cases, and our duty to timely issue well-written and well-reasoned opinions that faithfully apply the law, very seriously.
From December 15, 2021, to January 11, 2022, the Fourth Court received five election contests—all mandamus proceedings arising out of Bexar County primaries. Election disputes are a fast-moving, sometimes stressful, and vitally essential part of ensuring that our electoral system operates as the legislature intended and as the voters of this district deserve. Candidates for elected office—and the lawyers who represent them— must always remain aware of the applicable statutory requirements and deadlines and should plan to file any necessary paperwork well in advance of those deadlines. But as always, when disputes arise, the Fourth Court of Appeals stands ready to serve. Justice Beth Watkins practiced before federal and state appellate courts for sixteen years before her election in 2018. She is Board Certified in Civil Appellate Law.
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San Antonio Lawyer® 27
Federal Court Update
Western District of Texas Court Summaries By Soledad Valenciano, Melanie Fry, and Jeffrie Lewis
If you are aware of a Western District of Texas order that you believe would be of interest to the local bar and should be summarized in this column, please contact Soledad Valenciano (svalenciano@svtxlaw.com, 210-787-4654) or Melanie Fry (mfry@dykema.com, 210-554-5500) with the style and cause number of the case, and the entry date and docket number of the order.
Organizational Standing Vote.org v. Callanen, No. SA-21-CV-00649JKP-HJB (Pulliam, J., December 17, 2021). Vote.org, a non-profit and non-partisan organization that facilitates voter registration through a web application, sued Attorney General Ken Paxton and two individual county voter registrars to challenge a provision of the Texas Election Code. For voters’ registrations to be effective when submitted by fax, Texas Election Code § 13.143(d-2) requires voters to mail or personally deliver the original copy of their voter registration application to the county registrar within four days of the faxed submission. The defendants moved for dismissal under rule 12(b)(1), arguing that Vote.org lacked standing to challenge the statute. In evaluating standing, the court found Vote.org demonstrated the causation element of standing because the statute would render the Vote.org web application obsolete in Texas because voter registrations submitted via the app would be rejected. Moreover, the Texans served by Vote.org would suffer a hardship because the law would require them to have access to a printer and scanner. The court further concluded that Vote.org’s injury was redressable by a favorable ruling because a favorable ruling would allow voters to register to vote without needing a printer and scanner, and because Vote.org would be able to reallocate resources that it would otherwise use to combat the effects of the law. The court found there was standing.
28 San Antonio Lawyer® | sabar.org
Diversity Jurisdiction; Amount in Controversy Procare Auto., LLC v. MidAmerican Energy Servs.. LLC, No. SA-21-CV-00896-XR (Rodriguez, X., December 7, 2021). Procare Automotive, LLC sued MidAmerican Energy Services, LLC to recover for allegedly excessive energy charges incurred during the February 2021 winter storm. After the storm, the energy cost assessed to Procare was $81,825, mostly attributable to ancillary charges incorporated into the energy cost for fees charged to MidAmerican by ERCOT. Procare paid MidAmerican an amount equal to 125% of the cost of electricity charged over the prior billing period, but disputed the remaining amount, which totaled $62,381.53. Procare sued MidAmerican in state court, in part seeking declaratory judgment that MidAmerican was not entitled to the ancillary charges—the reimbursement for the ERCOT charges—because the ancillary charges were either illegal price gouging or not owed under their contract. MidAmerican removed the case to federal court based on diversity jurisdiction. Procare moved to remand the case to state court, arguing that the amount in controversy was less than $75,000. Procare’s state court petition did not include an amount in controversy, but rather alleged that it sought recovery in an amount not to exceed $250,000. In determining the amount in controversy, the court found that all of the ancillary charges—even the ones Procare already paid—should be included
in the amount-in-controversy calculation because Procare sought a declaration that MidAmerican was not entitled to any of the ancillary charges. That, in combination with the likely amount of the attorneys’ fees that Procare sought, put the amount in controversy at more than $75,000. The court denied the motion to remand.
Discovery; Production of ESI Trmanini v. Ross Stores, Inc., SA-21-CV00044-JKP (Chestney, E., December 15, 2021). In a personal injury case filed by an employee against her employer, the court heard a motion to compel filed by the employee seeking production of certain electronically stored information (“ESI”) related to her defense against a motion to compel arbitration filed by the defendant employer. The plaintiff claimed the ESI relating to the training modules she was required to complete was relevant to her defense against the motion to compel arbitration. The defendants produced PDF documents and several JPG files relating to the specific training modules, but the plaintiff claimed she was entitled to the documents in their native format and all associated metadata. The defendants argued they were not required to produce the native documents and metadata because the parties agreed in their Joint Discovery Plan that all ESI would be provided in PDF format. The court rejected this argument, holding that although the Joint Discovery Plan provided a
method for initial production, it did not result in a waiver by either party for ESI associated with those documents when the requesting party could articulate the potential relevance. The court declined to compel production of all the ESI requested, but did compel production of the ESI for those modules that the plaintiff established were relevant to the motion to compel arbitration. The court ordered the defendants to produce the ESI or explain in sworn testimony why the ESI did not exist. If the ESI did not exist, the court directed the defendants to provide an affidavit from an employee with knowledge of this fact and permitted the plaintiff to call that individual as a witness at the hearing on the motion to compel arbitration and/or take a brief deposition tailored to the ESI issue.
Removal and Remand; Post-Suit Election of Legal Liability Wyatt v. Allstate Vehicle & Prop. Ins. Co., No. SA-21-CV-00960-JKP (Pulliam, J., December 3, 2021). The court considered the effect of a post-suit election of legal liability on proper joinder for purposes of diversity jurisdiction. In an action filed in state court against Allstate and an adjuster, Allstate removed to federal court on the basis of diversity jurisdiction and alleged the adjuster, a Texas resident, had been improperly joined. Allstate included as an exhibit to its notice of removal an Election of Legal Responsibility in which it elected to accept responsibility for any liability and damages assessed against the adjuster pursuant to Texas Insurance Code § 542A.006. The plaintiff filed a motion to remand, arguing the court must determine whether diversity jurisdiction exists from the posture at the time the suit was filed, not at the time the suit was removed and, therefore, the post-suit election of liability does not create an issue of joinder to defeat diversity jurisdiction. The plaintiff argued Allstate must prove the adjuster was improperly joined for reasons independent of Allstate’s election of responsibility filed with its notice of removal. The court, recognizing a split of authority on the effect of a postsuit election of legal liability, followed its own previous decisions and concluded the improper joinder question must focus on the plausibility of claims against the non-diverse party at the time of removal, not at the time of filing. The court held an insurer’s postsuit election of legal liability, whether filed in state court or with the notice of removal, may
establish an impossibility of recovery against the party who is subject of the election at the time of removal. The court denied the motion to remand concluding that because of the post-suit election of legal liability, the adjuster was improperly joined, and his citizenship must be disregarded for diversity jurisdiction purposes. The court dismissed the adjuster without prejudice.
Removal and Remand; Service on Secretary of State Bowen v. Wells Fargo Bank, N.A., SA-21CV-01076-XR (Rodriguez, X., December 8, 2021). The plaintiff sought remand of its premises liability case, claiming the defendants’ removal was untimely, based on the date on which service was effected on the Texas Secretary of State, rather than on the date on which the defendants actually received process. The removing party bears the burden of showing federal jurisdiction exists and that removal was proper. When service is on a statutory agent, the removal period begins when the defendant actually receives process, not when the agent receives process. Service on the Texas Secretary of State is not sufficient to commence the time period for removal. Despite stating in their notice of removal that they were actually served on a stated date, which would have made removal timely, the court noted that the defendants failed to offer any evidence in support of their asserted date of service and also failed to respond to the motion to remand. Accordingly, the court found that the defendants had not met their burden of establishing that the removal was timely, further noting that ambiguities are to be construed against removal.
faith demand. Thus, the removing party had the burden to prove by a preponderance of evidence that the amount in controversy exceeded $75,000. The court did not agree that the pleading itself of “$250,000 or less” made it facially apparent that the amount in controversy had been met. Nor could the defendant rely on the plaintiff’s post-removal affidavit, which simply recited the defendant’s basis for removal, as a either a concession or evidence that the amount in controversy exceeded the threshold. While exemplary damages were pled, without evidence of potential actual damages, the court had no way to estimate potential exemplary damages. Although attorneys’ fees can be considered in determining the amount in controversy, the plaintiff’s claims in this case were not the type for which attorneys’ fees are awarded. The court added that, at most, the state court petition was ambiguous, which would be construed against removal and in favor of remand, and that such ambiguity would permit the court to consider the plaintiff’s post-removal affidavit. Here, the affidavit limited the plaintiff’s damages to $50,000, and the defendant did not attempt to respond to or rebut that damages limitation. Soledad Valenciano practices commercial and real estate litigation with Spivey Valenciano, PLLC.
Melanie Fry practices commercial litigation and appellate law with Dykema Gossett PLLC.
Removal and Remand; Amount In Controversy; Post-Removal Affidavit Plummer v. Witty Yeti, LLC, No. SA-21-CV00966-JKP (Pulliam, J., December 6, 2021). The court granted the plaintiff’s motion to remand. The plaintiff’s state court petition tracked the language of Texas Rule of Civil Procedure 47, which sets out ranges of damages, here “$250,000 or less.” Normally, the sum demanded in good faith in the initial pleading is considered the amount in controversy. When the initial pleading demands a specific amount, that sum is considered to be made in good faith. Because a range was pled instead, the pleading did not have a good
Jeffrie B. Lewis is Senior Legal Counsel with Zachry Group.
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