, I '

I
I
SPRING 2009
HARRIS COUNTY CRIMINAL LAWYERS' ASSOCIATION
GREG HURST, KHOU-TV: "Would you implement a policy mandating that defense
attorneys be allowed to photocopy all prosecution documents
to which they have access, Judge Lykos?"
JUDGE LYKOS: "Yes. In fact, the office should copy it for them and that
way if there is any information in there that may endanger a witness it
can be redacted. But, yes, it should be supplied to thenl.
That's justice."
HURST: "Would you favor legislation requiring prosecutors to give defense
attorneys evidence that favors defendants as soon as
prosecutors receive it?"
JUDGE LYKOS: "That obligation already exists and why there
is an unwritten rule that you cannot turn over the offense
report to the defense is beyond me. It can be done
this minute. "
ftft/!td
Sharon Lvine
cfbrtk dJ.i/J erty
State Sen.John Whitm
TH
dft/f/!tee
HYATT 11200
vVlay 14, 1-009
5:00PM 6:30 PM
RECEPTION DINNER
TICKETS:
S90 Members &Guests /S100 Non-Members,
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JoAnne Musi ck
832.448.7748

HCCLA 2008-2009
PRESIDENT
Publisher: HCClA Distribution 650 copies per issue.
Mark Bennett
Editor: Kathryn M. Kase For articles and other editorial
Ads &Distribution: JoAnne Musick &Christina Appelt contributions,contact Kathryn M. Kase
PRESIDENT ELECT
JoAnne Musick
Design &layout: lim b Design at 713.222.7788. To place an ad, call
www.limbdesign.com
JoAnne Musick at 832.448.1148
VICE PRESIDENT
Nicole DeBorde
SECRETARY
T. B. Todd Dupont II
TREASURER
Steven H. Halpert
PAST PRESIDENT
Patrick f. McConn
BOARD OF DIRECTORS
Stoci Biggar
2 . . . . . . . . . . . . . . . . . . From the President
David Cunningham
By Mark Bennett
Ty ler flood
Tucker Groves
Mark Hochglaube
Randall Kollinen
3

Winning Warriors
Joni Maselli
Marjorie Meyers
David Mitcham
Roland MooreII I
9 . . . . . . . . . . . . . . . . . . The Quest to ErnpanelMore Diverse
Earl D. Musick
Grand Juries
John Porras
By Hon. Shawna L. Reagin
Carmen Roe
Amanda Webb
O. Tote Williams
10 .. . .. . . . . . .. . . . . . . Pretrial Release Bonds: One to Put the
Sarah v. Wood
Harris County Plea Mill Out of usiness
PAST PRESIDENTS
By Robb Fickman
1971 2007
C. Anthony fri loux
Stuart Kina rd 11 . . . . . . . . . . . . . .. . . . Motion &Proposed Order of the Month
George Luquette By JoAnne Musick and W. Troy McKinney
Morvin O. Teague
Dick DeGuerin
W.B. House, Jr.
12 . . . . . . . . . . . . . . . . . . HCCLA Documents
David R. Bires
at Juvenile ustice Cen er
Woody Oensen
Will Gray
Edward A. Mol lett
13 Shaken Baby Syndrome
Carolyn Garcia
By L.T. "Butch" Bradt
Jock B. Zimmermann
Clyde Williams
Robert Pelton
19 . . . . . . . . . . . . . . . . . . Changes To The Administrative
Candelario Elizondo
License Revocation Rules
Allen C. Isbell
By Tyler Flood
David Mitcham
Jim E. Lavine
Rick Bross
Mary E. Conn
20

The Association Nurtures Advocates with the
Kent A. SchaPPer
2nd Chair Program
By Sarah V. Wood
Don Cogdell
Ji mSkelton
George J. Pa rnham
Gar land D. MCinni s 22 . . . . . . . . . . . . . . . . . . Fallen Warriors
Robert A. Moen
Lloyd Dliver
Donny Easterling
Wayne Hill
HCCLA Gives Back 25
Richard frankoPP
W. Troy MCKinney
Cynthia Henley
Stanl ey G. Schneider
Wendell A. Ddom, Jr. 26
HCCLA Holiday Party
Robert J. fickman
AS HUMAN BEINGS, wehave adutytoleave theworlda betterplacethanwe found it. But,as criminaldefense
lawyers, what we do often amounts to little more than sticking another finger in the dike, staving offtyranny for one
more day. Every little success keeps us from becoming less free, butthe successes thatreverse the inexorable growth of
governmentalpowerare few and far between.
Sowhatcan we, as individuals and as an organization, do
inthecourthousetomaketheworldabetterplace? Onething
thatwe can do is to nurture the next generation ofcriminal
defense lawyers, who will continue the struggle when we
have leftthefield.It can be hard tomakealiving as acriminal
defenselawyer, and theyounglawyerswhojoin us in speaking
upfor thedamnedneedalI thehelpwe can give them.
As individual lawyers,we cansupportthenextgeneration
by hiringthem,ifwe are in apositiontohire.We cansupport
them by giving them contractwork.We can supportthem by
referringourtablescrapstothem- "If youcan'taffordtohire
me, you mightcall this person,who'sagoodlawyer, butless
expensive becauseshe'sbuildingupherpractice."
Even ifwecan'tafford topay them,andeven ifalI ofour
business is appointed so that we can't refer cases to them,
thoseofuswhohaveestablishedpracticescansupportthenext
generation by letting them sit second with us at trial and by
offeringadvice and mentorship.
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Criminal defense lawyers have always provided younger
lawyers opportunities to get into court and watch trials
from close-upfor nomoney. Myfirst juryuialexperiencewas
sittingsecondwithClydeWtlliamsonamurdertrial. HCCLA
has, through the listserv, made it easier for the lawyers who
offerexperience and the lawyerswhowantexperience tofind
eachother.Andnow,throughthenewSecond-ChairProgram,
HCCLAhas createdamoreformal way topartnerthelawyers
whoneed experiencewith thelawyerswhohave experienceto
share.
ALready, TheSecond ChairProgram has borne fruit with
notable successes on participants' cases. Ifyou are a newer
criminal defenselawyer,whetheryou'vecometothejobfrom
law school, from the DA's Office, or from some other area
ofthe law, don't be shy. Ifyou're an older criminal defense
lawyer,don'tbe modestaboutyourexperience.
Join The Second ChairProgram, and make the world a
betterplace for generationstocome.

Introduces
CHARBAR
:ShoeShine
:CustomSuits
:Two Full Service Bars
:Repairs& Alterations
305Travis@Congress HullServiceTailorsince 1937
713.222.8177
713.227.5867
THE DEFENDER * 2
+
DEBORAH SUMMERS obtained post-conviction DNA testing
and the exoneration of Ricardo Rachell, who in 2003
was convicted of the sexual assault of a child in a case that
highlights the fallibility of eyewitness identification and the
continuing failures of the Houston Police Department with
regard to DNA evidence. Although DNA was collected
from the then-8-year-old victim and fi'om Rachell at the
time of his arrest, the evidence was not tested until five
years after Rachell was convicted and sentenced to 40 years
in state prison, and only after it was sought by Deborah.
The Harris County District Attorney has agreed to support
a "full pardon" for Rachell - nomenclature even we find
difficult to explain given that he never should have been
found guilty of anything.
+
r
Capping an II-year fight for justice, BRIAN WICE persuaded
the United States Court of Appeals for the 5th Circuit to
order a new punishment trial for Gaylon George Walbey,
Jr., who was convicted and sentenced to death in Galveston
County in 1994. See Walbey v. Quarterman) No. 08-70007,
2009 U.S. App. LEXIS 942 (5th Cir. Jan. 19,2009). The
court ruled that Walbey was entitled to a new punishment
hearing because his appointed lawyer (now a Galveston
County ADA) rendered ineffective assistance by failing
to investigate and present a "wealth" of mitigating evidence
about Walbey's "nightmarish" childhood. Brian credits MIKE
CHARLTON, his co-counsel in state court, and PAUL MANSUR,
his co-counsel in federal court, for contributing to this
magnificent victory.
+
One day before their client was to be put to death,
JAMES RmlNG and PHILIP HilDER won an incredible
stay-of-execution from a panel of the 5
th
Circuit
(Jones, Wiener, and DeMoss) on behalf of Larry
Swearingen. This was Swearingen's second stay of
execution in a case that has raised many questions
about whether the State has the right man. (Based
on the newly discovered forensic evidence, we
think the answer is: "No.")
THE DEFENDER "* 4
SCOTT PAWGAN ,1I1d BILL HABERN, \\'ith LO-C()Unst:i RICHARD
GLADDEN (of Denton), secured a big yictnry against the Texas
of Pardons and Parole and the Texas Dep,lrtment of
CriminJI Justice Parole Di\'isiorl that cOlild change P,lrole
lIldiriom tilr sex offenders affcct the mJnner in which
the Board proceeds in imposing parole conditions, Bill, Scott,
and Ridw'd obtained injunctin: and decbrJtory rciid- after a
U ,S. District Court in Austin f<'>L1nd that Special Condition
X (sex otTcnder parole conditions) was
applied to their client. The court ruled that an indiyidual on
parole fill' a non-sex oftensc, but \\'ho has a prior sex offense
con"iction under Texas la\\', has due process right to notice
,lIld an opportunity to be heard bdixc treatment and orlll:r sex
oftcnder conditions of parole imposed.
CHRIS DOWNEY persuaded not one, but t\\'o ( !) prosecllting
offices to drop all charges against a fC)fJl1er HPD otTlcer alleged
to ha"e committed t\\'o bank robbelies ill i\iontgol11ery Count\
and one in Harris County in 2007. The Clses went after
prosecutors im'estigated the tixl1ler officer's alibi, which would
ha\'C included testil1lol1\' trom a ti.:deral air n1.lrsld.
LISA BENGE and MARY SAMAAN, by SARAH WOODS' t:lbulous
bliding, \Von suppression in the 221 st Distlict Court in
County, The C,lse, llIade by a canine cop who
snitlcd ti'OI1t door, innlked a husb,lIld and \\iti.: charged
with possession of l11arijuam and cocaine, two count'> of child
end,mgefment, and engaging in money laundeling. The
O\tTl.ealous oliginally charged the with
15 counts of ti.:lon-in-possessioll of a firearm, even though he
wasn't eyell a fdoll. And no\\', thanks to this legal tIio, neither
he nor his \\ 'iti.: \\ill be,
We\'e he,lrd that it's ne"er too early to begin defending the
client, TODD OVERSTREET, BRIAN BENKEN and PAULA GOODHEART
proved the mit \\"hen they cOl1\ineed a Hartis County grand
jury not to indict a mother who was t:King C1iminal charges tur
ICl\'ing her in a hot car.
The client? An undocumented immigrant \\'ith
hold who wanted to go pm Sf. The ch,lrge?
Aggra"ated Sexual with a Deadly Weapon (knivcs).
The DNA. The lawyer? GREG GLADDEN (the cliem's
tilurth). The outcome? Not Guilty after a th'e-day trial in
thc 18Sth District Court. The value of such a victory
odds? Price\t:ss.
Sometimes, it's all in knowing who to ask tur assistance -
and then taking that ad"ice. MONIOUE SPARKS \\'on dismiss,ll
of two (!) assault cases in County Criminal COl1l't-at- L1W
No, 12, but modestly shared credit ",ith SAM ADAMO, who
helped her prepare the cases tClr
In her \'Cry first trial as a criminal deknse lawyer, BONNIE
ROGERS defended a client on DvVI charges in County
Criminal Court-at- Ll\v No, 5 and, in the words of
Christopher L. Carlson, he.1rd those two words that used
to make her sad as a prosecutor.
Risking a speeding ticket for his JIM MEDLEY recei\'ed
,1 12-minute Guilty on a DWI in County Criminal
CourhH-La\\' No. 13. for those keeping score home,
this \Vas a no-breath-test, no-accident, and no-\'ideo
case.
WESLEY CORDOVA ,He the prosecution's lunch in tl:lonv
tampcring-\\'ith-C\'idence case in the 178th District
Court. The ddendant, a habitual offender who rejected
a 25-year pica, was to have tampered with the
c"idenct: - - by swallowing same when stopped
by the police, The jury teasted on Wes' deknse ,1nd sen'ed
up an acquittal.
THE DEFENDER "'" 5
+
scon PAWGAN won yet another parole revocation hearing,
this time in Walker County on behalf of a 70-year-old sex
offender who, if revoked, faced spending the rest of his life
in prison. The client was alleged to have had three instances
of improper contact with a child under the age of 10, but
Scott was able to show at the hearing that the contact either
did not occur or was de minimus. The client was released
after the Board of Pardons and Parole issued its findings .
+
TERRI ZIMMERMAN nipped injustice in the bud when she won
a grand jury no bill on behalf of a client accused of trying
to disarm a police officer. In fact, the client - an active-
duty Marine - merely had bumped into said officer at the
airport after flying home for Thanksgiving. Terri's excellent
preparation enabled the client to testify before the grand
jury, which then voted the no bill.
+
Proving that the Constitution is alive and well, NED BARNEn
and AMANDA WEBB secured a dismissal upon winning a motion
to suppress in a DWI case. The police promised their client
a ride home ifhe took and passed the breath test or an arrest
if he refused the test. (Apparently, there was a third option
that went unmentioned - be arrested if you flunk the breath
test - that resulted in the client's detention.) After the officer
admitted under oath that he had made these promises and
the client relied on them, Judge Margaret Harris in County
Criminal Court-at-Law No.5 suppressed the test results .
+
Not Guilty rang out in the 221st District Court, where JUDY
SHIELDS defended a client accused offelony theft at Wal- Mart .
The client already had one state-jail felony conviction for
theft, and undoubtedly was overjoyed by Judy's advocacy.
+
ARNOLD S. COHN made the State say "Uncle!" in a family violence
case involving a stepson and stepfather in County Criminal
Court-at-Law No. 13. The State heard just half of Arnold's
cross-examination before filing a motion to dismiss.
Of his performance, Arnold said: "Not bad for a guy
who's been absent for a while ." We say: "Share that cross-
examination with us. Please!"
+
CHRISTOPHER L. CARLSON and JOHN FLOYD have been
fighting - and winning - a pitched battle on behalf of
a client who has been charged in four different sexual
crime cases. Christopher and John obtained acquittal
numero uno back in October 2008 . In January in the
263rd District Court, they obtained a second acquittal
involving a different complaining witness - and despite
the admission of extraneous offenses over the defense's
Rule 403 and 404(b) objections. The prosecutor sought
to admit yet another extraneous offense and, when the
court sustained the defense objection, she asked the
witness if she was aware that another victim still thought
about what the client allegedly had done to her. Chris
and John's jurors weren't fools, though, and acquitted
after seven hours of deliberations.
+
.IED SILVERMAN'S defense of a DWI charge was so vigorous
that Judge Richardson told the State to "work it out"
(meaning: dismiss) .
+
Did you lose your pencil, too, Officer? JED SILVERMAN and
HENRY NGUYEN successfully defended an alleged prostitute by
focusing on the inconsistencies between the arresting officer's
testimony, the police report, and common sense. Rand Mintzer
reported that the case began falling apart when the arresting
officer claimed on cross that the accused must have eaten the
condom - even though this was mentioned nowhere in his
report and the officer didn't call 911 to advise that the alleged
prostitute was choking on the wrapper.
+
Earl Musick says, "Only one thing can happen with a
guilty plea: the defendant is found guilty. Set it for trial
and all kinds of good things can happen." LISA BENGE
proved Earl correct when she won dismissal of a DWI
+
SAM CAMMACK obtained a Not Guilty in the 351st District
charge on the day she walked into court to pick the jury.
CASIE GOTRO had a similar experience when a burglary-of-a-
building charge was dismissed the day before it was to go
to trial. PAUL KENNEDY also waved bye-bye to a DWI case
(.139/.15, video, minor accident) that he went to try in
County Criminal Court-at-Law No. 10. As Paul relates,
after President Obama was sworn in, Judge Sherman Ross
decided he wanted to hear the case, but the State ended
up dismissing because the officer who "wheeled" the client
wasn't available.
+
RICK OLIVER walked a client in a DWI trial in County
Criminal Court-at-Law No. 15. And, on the very same
day, TYLER flOOD walked a client in a DWI trial in County
Criminal Court-at-Law No.9. Said Tyler, "We need to keep
encouraging trials. Set 'em. Try 'em."
+
TYLER flOOD subsequently demonstrated the wisdom of his
advice in County Criminal Court-at-Law No. 14, where
he won an acquittal on behalf of a diabetic client who had
admitted that he had been out drinking for Cinco de Mayo.
Then, the arresting officer reported, the client threw up all
over himself. We suspect that's what the State felt like doing
when Tyler got that two-word verdict.
+
DEBORAH SUMMERS' decision to go to trial in two cases in the
182
nd
District Court benefitted two clients. The first case
was a sexual assault where the defendant's age at the time of
the offense became an issue. After one witness, the client pled
out to a reduced charge of indecency by exposure and for the
minimum sentence. The second case involved a husband and
wife who decided to litigate their marital troubles in criminal
court. Although the case started as a felony, it ended in a
misdemeanor plea when the State's first two witnesses couldn't
(or wouldn't) abide by the Court's in limine ruling to not
mention the defendant's recent release from prison.
Court on behalf of a client charged with indecency with a
child. Jim Medley noted that Sam prevailed despite multiple
allegations and evidence of extraneous offenses.
+
BRETT PODOLSKY picked a jury for a DWI case, tore apart one
of the arresting officers on cross-examination, and returned
to the courtroom following lunch to find a nolle prosequi
sitting on the judge's bench,
+
The client was charged with aggravated sexual assault of a
disabled child, Judge Joan Campbell presided, and PAm
SEGURA obtained a spectacular Not Guilty from the jury.
+
ANTHONY SEGURA and DAVID HUNTER heard those two wonderful
words in a DWI case they tried in County Court-at-Law
No.1 in Fort Bend County.
+
In a place far, far away - okay, close to Dallas - NORM
SILVERMAN obtained a mistrial on behalf of a client accused of
stealing vacuum cleaners. (Based on what follows, it seems
the State's case sucked.) During the trial even the judge
commented that the prosecution hadn't proven anything
and he felt a Class C misdemeanor coming on. The State
persisted. At closing, Norm pointed out that the State
had not subpoenaed certain witnesses. On rebuttal, the
prosecutor said that, if those witnesses were so important,
the defense could have subpoenaed them. Norm objected to
the prosecutor's effort to shift the burden of proof, moved
for a mistrial, and the rest is history.
+
The Second-Chair program paid dividends for first-chair
PAT MCCANN and his second-chair, MONIIlUE SPARKS, when
they got a Not True verdict in juvenile court on a car theft
case. (For more details, see Sarah V. Wood's story on The
Second Chair Program.)
THE DEFENDER *: 8
THEDEFENDER] SPRING 09
By Hon. Shawna L. Reagin
THE
to Empanel More Diverse Grand Juries
While campaigning for the district court bench, I learned that Harris County
grand juries were regarded with suspicion and distrust by various minority segments
of our community who felt especially disenfranchised. I also learned that correct
information about grand juries was sorely Jacking throughout the commwlity.
After I was sworn in as a judge, one of my first responsibilities was to prepare
to empanel a grand jury in early February. Due to the various steps involved
in putting together the grand juries, the process needed to begin no later than
January 15 or 16, two weeks into my initial term. Given the lack of time, I
decided to visit various community meetings that were happening prior to those
dates to spread the word about grand jury service and to leave applications for
attendees to fill out and send in. Two of those groups were the GLBT Caucus
and Tejano Democrats.
I a d ~ s e d my audiences that I was seeking both grand jury comnlissioners and
grand jurors to add to the pool of available prospects. Like a1J judges, I wanted to
empanel a diverse grand jury that proportionately represented our community.
This is not an issue limited to the newly-elected. For almost 20 years, I have
watched judges struggle to find people of different races, gender and ethnicity
to serve on grand juries. The comnlitment required to attend two-day-per-week
sessions for three months makes it very difficult to identifY people other than the
affluent or the retired who can serve. If the three-to-five comnlissioners are all
of different race, gender, ethnicity and sexual orientation, and they pick grand
jurors who are like them, then would we not have the diverse grand jury we all
seek to achieve?
When applications were slow to arrive, in face of the rapidly approaching
deadlines, I then sent out an e-mail to a group of approximately 8,000 people
whose names were compiled by my friend Carl Whitmarsh. I again encouraged
folks to download applications for service and to submit them to the court.
Judge Randy Rolllike\vise contacted this list, and I have no doubt that the other
newly elected judges faced with empanelling grand juries engaged in sinliJar
tactics to gather applications. (CONTINUED ON PG.28)
THE DEFENDER * 9
---
Pretrial Release Bonds:
ONE WAY TO PUT THE HARRIS COUNTY PLEA MILL
By Robb Flckman
AT THE HARRIS COUNTY CRIMINAL JUSTICE CENTER WE HAVE A PLEA MILL IN FULL SWING.
IT'S NOT A NEW BUSINESS. OH NO, IT'S BEEN IN FULL OPERATION FOR A LONG TIME AND
PRODUCES POOR PEOPLE WITH UNDESERVED CRIMINAL RECORDS. IT'S ALSO A DISGRACE
AND IT NEEDS TO STOP. AND NOW IS THE TIME TO RENEW OUR EFFORTS TO CHANGE IT.
OIlTO't'
r BIISINESs
THE PLEAMILL OPERATESIN SIX EASY STEPS:
1 A poorman- let'scall him George- is chargedwith a
non-violentcrime.
2 Because George is poor, he cannot afford to hire a
bondsman.
3 Although George has no history ofviolence and has
lived a chunk of his life in Houston, he sits in jail
because he cannotmake bond.
4 GeorgegoestocourtandhislawyerconveysaHobson's
Choiceofaplea offer:pleadguiltyand getoutsooner,
orfight yourcase and stayin jail much longer.
The next day, a whole new set ofGeorges arri ves and
steps one through six are repeated. They are repeated day
after day, year after year, and produce generations ofpoor
people with undeserved criminal records.
Poorpeopleshouldnotbeforcedtopleadguiltybecause
theyare poor. The mill as it currentlyoperates makes poor
people plead guilty because theycannotafford to languish
injailuntil thesystemsetstheircaseforadispositivehearing
orfor trial .
The Harris County plea mill is contrary to the
Constitution because it coerces pleas.We violate our oath
to uphold the Constitution by our active participation in
the mill or by oursilence in the face ofit.
I canhear the indignantresponses from all the parties.
Assistantdistrictattorneysmaysay, "Ijustconveytheoffers;
I don't make them take the plea." Defense lawyers might
say the same. Judges may add, "Ijust accept the plea; I
don'tforce themto take it ." And lawyers in the courtroom
mightsay, "It'snotmycase; I don'tmake them take those
pleas."
How do we stop this gross inequity? First, we must
acknowledge the mill's existence and our roles in it.
I understand judicialworriesaboutmovingdockets, but
5 Georgepleadsguilty,as this is hisquickestwayoutof
jail. Neither innocence nor guilt has anything to do
with his plea, which is motivated solely by his desire
to get outofjail as quickly as possible. He is joined
by another 100 Georges, all pleading guilty on the
same day.
6 Because the plea cases are offthe docket, the plea
mill is operatingsmoothly.
sacrificing justice in the name of expediency is wrong.
Judgesshould be reminded: Whenyou leave the bench,no
one will remember the size ofyour docket, but they will
recall whether yours was a just court. Judges, if the mill
operates in your court, it is not a just court, but you can
change that.
There is a simple way to stop the mill and the law
provides the mechanism: pretrial release bonds. Iflawyers
would seek pretrial release bonds and judges would grant
them, the mill would stop. Poor people would get out of
jail,thecountywouldspendlessmoneyhousingnon-violent
defendants, and those defendants would be able to assist
their defense lawyers in working on their cases. Mass pleas
(a related and equally unconstitutional problem) would
diminish. The docket might not move as fast , but justice
would be restored.
And,mostimportant,pleaswould be based on thefacts
and the law,and notonapoorperson'sdesire togetoutof
jail. Using liberty as bait to induce a plea, without regard
to the facts and the law, is notjustice. Itis a perversion of
justice and itmust be stopped.
We cannotdelay, we cannotmake excuses;we mustact
nowto restorejusticeand touphold theConstitution.
ROBll FICKMAN is a past president ofHCCLAand has 25 years ofexperience zealously defending
people charged with criminal offenses ranging from shoplifting to murder. He is reputed to have
invented the Moltovcocktail in aformer life.
THE DEFENDER'" 10
MotionAND ProposedOrderOF THE Month
By JoAnne Musick and W. Troy McKinney
MOTIONFOR RELEASE ONPERSONALBOND
WRONGFULLY ACCUSED, the Defendant, moves this Honorable Court to grant a personal release bond in this
cause and in support would show:
I.
The Defendant is charged with the offense(s) of ____. The Defendant's bond(s) is/are currendy set at _ ___
II .
Pursuant to Article 17.03 a magistrate may, in the magistrate's discretion, release the defendant on his personal bond
without sureties or other security. Tex. Code Crim. Proc. Ann. Art. 17.03.
The purpose of bail is to secure the presence of an accused upon trial of an accusation against him. It is not a revenue
measure intended to be a substitution for a fine, but is intended to secure the trial of the alleged offender rather than turn
his securities or those of his bondsman into a penalty. Trammel v. State) 529 S.W.2d 528,529-30 (Tex. Crim. App. 1975).
The amount of bond is a tool to guarantee the Defendant's presence in court and is not to be used as an instrument of
oppression. Ex Parte Vasquez) 558 S.W.2d 477 (Tex. Crim. App. 1977); Eggleston v. State) 917 S.W.2d 100 (Tex.App.-
San Antonio 1996, no pet.). The granting of a personal bond is proper under the facts of this case because the Defendant
is neither a flight risk nor a danger to society.
III.
Because any personal bond requires the defendant to give a sworn oath obligating him to appear before the court,
this Court wiJJ be given the same assurances of appearance as if the Defendant were released on a surety bond. Tex. Code
Crim. Proc. Ann. Art . 17.04. Moreover, Defendant's financial obligation and commitment is the same whether he posts
bond through a surety or through this court granting release on his own recognizance. Not having to expend the funds to
pay a fee to a surety, however, releases those funds to Defendant to be applied to his defense.
IV.
Defendant is not a flight risk or a danger to the community. He has lived in the local area for _ years. He has relatives who
also live the area: these include . Defendant has no prior criminal history [alternative language: some criminal history, but
nothing indicating that he poses a risk to the corrununity ]. Defendant is employed at , where he has worked for _ years.
Defendant has his own transportation, which he would use to appear in court as required. He completed __ years ofeducation.
WHEREFORE, the Defendant respectfully requests that this Honorable Court grant a personal bond in this case.
Respectfully Submitted,
Abel Counsel
Attorney for WrongfuUy Accused
ORDERON MOTION TO SET PERSONAL BOND
Before the court is the Defendant's Motion for Release on Personal Bond. After considering the motion, the response, the
e \ ~ d e n c e and the arguments of the parties, it appears to the Court that the relief requested should be GRANTED.
It is therefore ORDERED that upon executing a personal bond in the amount of $ , Defendant shall be
released from custody conditioned that he appear before this court when scheduled and notified to do so.
SIGNED on this the _ day of _______, 2009.
Judge Presiding
JOANNE MUSICK is a name partner in Musick & W. TROY MCKINNEY is a name partner in Schneider
Musick, LLP, and is President- Elect of HCCLA & McKinney, PC, and is a past president of HCCLA.
THE DEFENDER *11
Continuing its quest to
remind public servants
and citizens of the
framework by which
justice IS pursued,
HCCLA on December
10, 2008, dedicated
framed copies of
Photo: Dena Fisher the Decl aration of
Murk Bennett speaks ut the dedicution Independence, U.S.
Constitution and Bill of Rights that the Association
donated to the Harris County Juvenile Justice Center.
The dedication, attended by U.S. Magistrate Calvin
Botley and many Association members, marked the hanging
of the documents. It also was the second time that HCCLA
had purchased and donated framed copies of these seminal
works to Harris County for posting in a courthouse.
The occasion featured remarks by HCCLA President
Mark Bennett, President-Elect JoAnne Musick and Past
President Robb Fickman.
"The first thing we swear to do as lawyers is to support
the U.S. Constitution," Fickman told those assembled.
"We are, pursuant to our oath, duty bound to defend the
Constitution, no matter what our role in the system."
Sharon Levine, then in the final stages of Hodgkin' s
Disease, was the best example of a lawyer who kept her
oath, he added. Had Levine not taken on Erik and Sean
Ibarra's criminal cases, Fickman said, there would have
been no civil lawsuit that resulted in the resignation of
District Attorney Chuck Rosenthal and the electoral defeat
of Sheriff Tommy Thomas.
Bennett's remarks focused on the irrevocable
connection between the Constitution and liberty.
"Our founders were remarkable for their zeal
for liberty," he said. "Instead of building palaces or
monuments of stone and brick, they enshrined liberty in
words, culminating in these three simple documents.
"There's no mention in these documents of docket
management . The words 'tough on crime' nowhere
appear. Yet modern public discourse is dominated by
such language. This is the language of fear.
"We face difficult times. In difficult times, people
cling to stability, to safety, and to nationalism. Freedom
can fall by the wayside ."
Musick revealed why prominent copies of our
founding documents need to be displayed at the
juvenile courthouse: because the United States Supreme
Court did not recognize that juveniles were entitled to
constitutional protection until 1967. See In re Gault,
387 U.S. 1 (1967).
"As a juvenile practitioner, I recognize how important
my role is within the juvenile system," Musick said . "As
lawyers we must not only advocate for our clients, we must
protect their rights . It is only through the protection of
each person's individual rights that we protect the collective
rights ofal!. We must continue to advocate for those rights
that have been either ignored or eroded."
THERE'S NO MENTION IN TH ESE DOCUMENTS OF DOCKET MANAGEMENT.
THE WORDS ' tough on crime' NOWHERE APPEAR.
YET MODERN PUBLIC DISCOURSE IS DOMINATED BY SUCH LANGUAGE.
THIS IS THE LANGUAGE OF FEAR. " - Mark Bennett
THE DEHnER 1<' 12
EVIDENTIARY CONSIDERATIONS IN A
a a
Syndrome" CASE'
One need look no further than Galveston's "Baby Grace"
prosecution to know that infants can be, and are, injured
by adults. But this paper does not seek to address those
cases where there has been an impact to the child's skull
or body. Instead, it addresses those cases where the child
is alleged to have been killed by "violent shaking" and no
impact can be shown to have occurred.
2
These are known
as "shaken baby syndrome" cases and, because prosecutors
depend heavily on expert scientific testimony in these cases,
they trigger serious evidentiary concerns.
For a full understanding of expert scientific testimony,
defense lawyers are advised to review a 1999 article
3
by
the Hon. Harvey Brown about Rule 702 of the Texas
Rules of Evidence. That paper addressed the admissibility
of expert witness testimony in general. This article has a
narrower focus and will address what Judge Brown called
the "methodological reliability" and the "foundational
reliability" gates to admissibility of medical testimony
regarding shaken baby syndrome. It also will address the
overlay of evidentiary Rule 403 considerations in the
presentation of the State's case.
If it is to be made at all, the diagnosis of shaken baby
syndrome (SBS) should always be made by exclusion, and
only made after a long list of differential diagnoses has
been ruled out. Unfortunately, it is almost always a spot
diagnosis.
The diagnostic criteria for SBS require the combination
of subdural hematoma, retinal hemorrhage, and cerebral
edema. In some cases, the presence of rib or long bone
fractures is also taken as a sign of abuse.
4
Shaking an infant
to the point of severe brain injury is usually associated in
the literature with the diagnosis referred to as the shaken
baby syndrome.
5
A careful review of that literature,
however, shows that much of it is predicated upon beliefs
and assumptions
6
that have never been corroborated or
that are based on flawed extrapolations of data.
It is not clear how shaken baby syndrome originated It may have
originated with a pediatric radiologist who believed that the presence of
a subdural hematoma and a long -bone fracture in a child had to have
been caused by abuse:
The current description of the SBS in the literature
evolved over a period of nearly a half a century with
some reports attributing its genesis to Caffey, a pediatric
radiologist, who had the notion that an association
between chronic subdural hematoma and long bone
fracture in children should be a red flag for child abuse.
Caffey'S notion remained less known for about 10
years until he encountered the case of Virginia Jaspers,
a nurse caretaker who confessed to shaking a 2-week-
old infant who died. Jasper's confession is a legalistic
characterization and thus did not provide scientific
support for Caffey'S notion but did help start the use
of the SBS label in the literature .?
Alternatively, SBS may have been a counterpart to " battered ch ild
syndrome," which is used by proponents to explain a plethora of
symptoms -
Kempe contributed to the current description of SBS
by introducing the "Battered Child Syndrome" and the
concept that inconsistency between clinical observations
and reported event history should signal abuse.
s
The cornerstone of the SBS movement is that injuries are caused
by shaking alone. In Its purest form. SBS is alleged to be caused by
rotational head accelerations derived from a sequence of mechanical
events. The following theorizes how the injuries occur
An infant is gripped by the chest or shoulders and
forcefully shaken back and forth whipping the head in
the anteroposterior direction. The nearly non-existent
THE DEFENDER *: 13
muscle strength of the infant neck makes the head
highly susceptible to high head-whipping rotational
acceleration so severe that the brain moves relative
to the interior surface of the skull resulting in torn
bridging veins and so acute subdural hematoma.
9
In fact, there are inherent problems in assuming that
this theory suffices to explain the injuries and symptoms
that are claimed to add up to SBS. It is these problems that
trigger the court's gatekeeping function under Rule 702 of
the Texas Rules of Evidence.
EXPERT TESTIMONY
Admissibility of expert testimony is governed by the
Texas Rules of Evidence and the Robinson factors.
lo
An
expert's testimony must be both relevant to the issues and
based on a reliable foundation. I I An expert who fails to rule
out other causes of the damage renders that expert's opinion
little more than speculation and, therefore, unreliable. 12
In the context of a shaken baby case, there are many
signsl3 that must be excluded before expert testimony should
be permitted. There are also the forces and mechanisms of
injury that must be accounted for, before expert testimony
should be permitted. These are discussed below.
FORCES OF INJURY
Physicians who are proponents of SBS will testify
that the force that the baby's brain is subjected to during
shaking is equivalent to the force created when a child falls
head first onto concrete from a height of three stories.
Alternatively, the physician will say the force generated by
shaking is equivalent to the force generated when a car
runs into a concrete barrier at 30 mph with an unrestrained
passenger who hits an unpadded dashboard.
Impressive testimony. Highly inflammatory. And not
true.
Let's examine this testimony to expose the flaws. First,
there is literature showing what happens when someone
falls three stories onto concrete. Falling from thirty feet
onto concrete causes severe marks, severe fractures,
severe external injuries on the head and the head would
not be pristine, as shown in SBS. These injuries would be
unmistakable .
Second, courtesy of Newtonian physics, we know
that forces have equal and opposite reactions. This law is
recognized in the unit of energy called the foot-pound,
which is the force required to lift a one-pound weight one
foot. Therefore, the energy of a 12-pound child falling
three stories onto concrete would be equivalent to the
same energy required to throw the same child straight up
30 feet (or three stories). How does a person generate such
force? No one can throw 12 pounds straight up 30 feet.
If no one can generate the force necessary to throw that
weight straight up 30 feet, no one can generate that same
THE DEFENDER *' 14
force as detailed by shaken baby syndrome. Remember, the
force is the same; only the direction has changed.
Third, proponents of SBS tend to express the
intensities offorce generated by shaking only in qualitative,
unsubstantiated terms that analogize the damage resulting
from acceleration or deceleration of rotational injury to falls
onto hard surfaces from great heights or to impact injuries
due to severe motor vehicle crashes .
14
These are misleading
analogies, without support in science. IS
Generally, head injuries are classified according to their
biomechanical causes. Biomechanical forces acting on the
head can be dynamic or static. Because shaking is a dynamic
event, static forces should be ignored in the context of
SBS. Additionally, dynamic head loadings are categorized
as either contact or non-contact, and refer to loading to the
head and through the neck.
16
Fourth, physicians are not trained to calculate forces
exerted on the brain and body by a biodynamic event.
Biomechanicians are. Yet, physicians routinely are permitted
to testify aboutthe "forces" that the child's brain supposedly
was subjected to through shaking - and these physicians do
this without having the first clue as to how to calculate
those forces or what they actually were. Questions such as,
"What was the acceleration that the brain was subjected
to?" or "What was the tangential acceleration of the head?"
or "What was the shear force the brain was subjected
to?" produce blank stares from most physicians. When a
physician does not know the answer to those questions, any
testimony about the forces that were allegedly exerted on
the brain is pure conjecture.
Fifth, injury to an infant's cervical spine can occur
at much lower levels of head velocity and acceleration
than those reported for the SBS.17 In other words, if an
infant were subjected to the levels of rotational velocity
and acceleration detailed in the SBS literature, that infant
would experience a structural failure of the cervical spine. IS
It therefore is impossible to generate the forces necessary
to cause brain damage without also damaging the cervical
spine or spinal cord. Thus, when SBS is alleged but there
is no injury to the infant's cervical spine, it is physically
impossible for the infant's brain to have been subjected
to forces sufficient to cause injury. Any testimony to the
contrary is completely unfounded in science.
1:IiJiMi'
If someone were to try to shake a baby hard enough
(like alleged in SBS cases) to cause injury to the child's
brain, it would be natural to ask, "Where are the bruises?"
If one assumes that the infant weighs 12 pounds, and that
the child is being shaken with sufficient force to injure
the brain, the infant's chest or shoulders would have to
be held very tightly to keep the infant from flying out of
the adult's hands during shaking. That kind of grip should
leave imprints of the hands. No imprints means the child
was not held with a force sufficient to shake violently.
Physicians frequently testify in shaken baby cases that the
there are certain diagnostic signs that are pathognomonic
of the syndrome - in other words, that they exclude all
other causes or conditions.
19
It is important to understand
how the term pathognomonic is used in medical science.
For example, if amoebas are present in a patient's stool,
that is pathognomonic of amoebic dysentery. On the
other hand, if the patient presents with profuse diarrhea,
vomiting, cramps and dehydration, those symptoms are not
pathognomonic for amoebic dysentery because the patient
could have one of several diseases that affect the digestive
and intestinal tracts in these manners.
In connection with SBS, retinal hemorrhages, subdural
hematomas and rib or long bone fractures are assumed to
be pathognomonic of the syndrome. But unless the other
possible causes of the signs are excluded, they are nothing
more than signs. They are not pathognomonic.
An examination of each sign in turn demonstrates why
they cannot be caused exclusively by SBS and are, therefore,
not pathognomonic ofSBS. Further, because each sign can
have many different etiologies, it is important to remember
that an absence of a history for a traumatic event is not
pathognomonic for non-accidental injury.
Physicians will testify that the presence of retinal
hemorrhages are believed to be pathognomonic of SBS.
Not necessarily. Many infants diagnosed as suffering from
SBS and presenting with retinal hemorrhages will have
been administered cardio-pulmonary resuscitation. And
CPR can cause retinal hemorrhages.
2o
Therefore, unless
the physician can rule out CPR as having caused the retinal
hemorrhages, Robinson and its sister cases stand for the
proposition that he should not be permitted to testify that
the presence of retinal hemorrhages is proof of SBS.21
Hypernatremic dehydration has also been shown to
cause massive bilateral retinal hemorrhages.
22
It also has
also been shown to cause subarachnoid hemorrhage, a
23
subdural collection and focal intracerebral hemorrhages .
Therefore, unless the physician can rule out hypernatremic
dehydration as a cause ofthe retinal hemorrhages, testimony
that these hemorrhages are caused by SBS also should not
be permitted.
Vaccine injuries also are known to cause retinal
hemorrhages. Reports ofvaccine injuries filed with the CDC
describe retinal hemorrhages as a known complication of
vaccines, with the effect showing up as much as 32 days after
administration of the vaccines.
24
If the infant was recently
vaccinated, the physician should be required to rule out the
vaccine as having caused the retinal hemorrhages before
being permitted to testify that SBS was the cause.
Indeed, vaccines present several distinct problems for a physiCian
who testifies that certain Injuries are pathognomonic of SBS The first
problem is that vaccines have never been subjected to proper double-
blind studies. As Sherri J. Tenpenny, D.O. , has written:
Vaccines have not been proven safe by the same
standards applied to other procedures or drugs: a
double-blind, placebo-controlled investigation. In a
placebo-controlled study, the safety of a medication is
determined by comparing it to a neutral substance, such
as a sugar pill. In vaccine safety trials, a new vaccine is
not compared to an inert substance, such as a shot of
sterile saline. Instead, the designated inert substance,
the placebo, is another vaccine with a "known safety
profile." If the number of side effects caused by the
new, experimental vaccine is found to be the same as
the number of reactions caused by the placebo vaccine,
manufacturers declare the new vaccine to be as safe as
the placebo. In actuality, this is true: It is as safe as the
older, existing vaccine. That does not mean it is as safe
as a true, inert placebo.
25
If an inert substance is used in the "double-blind
study," it is to see whether the placebo creates an immune
response; it is not to see the type, number and severity of
adverse reactions caused by the vaccines.
The assumption that vaccines are safe and efficacious
goes back to Edward Jenner's 1796 experiments with
cowpox to produce resistance to small pox. Compare that
benign image with what happened in Australia about 40
years ago. Aboriginal children, some of Australia's most
impoverished and malnourished children, were vaccinated
in a government push to improve their health. They were
given multiple vaccinations (DTP & Polio) at the same time.
And almost half of them died (until general practitioner
Archivides Kalokerinos began giving these children large
doses of vitamin C).26
A second problem with vaccines is the developing
state of medical literature. So many problems have been
associated with vaccines that, in order to induce vaccine
manufacturers to continue making vaccines, the federal
government has established the Federal Vaccine Injury
Compensation Fund - an administrative body set up to
compensate patients injured by vaccines. Associated with
that are the Vaccine Adverse Event Reporting System
(VAERS)27 reports, which show an ever-increasing number
of adverse reactions to common childhood vaccines.
28
Reported adverse reactions include seizures, subdural
hematomas, retinal hemorrhages, subarachnoid bleeding
and even death. Many physicians testifying to SBS will
THE DEFENDER * 15
not have seen the infant's vaccination records, much less
examined the VAERS reports to see if the signs could have
been caused by an adverse reaction to vaccines.
29
The presence of rib or long bone fractures often
IS offered as proof of the "violence" that the child was
subjected to by shaking. There are multiple problems with
such testimony.
First, there is no peer-reviewed medical literature that
shows that broken bones in an infant are pathognomonic
of abuse. 30 Indeed, there are several conditions that lead to
very fragile bones that break easily. Vitamin D deficiency
and Barlow's Disease, which is caused by a Vitamin C
deficiency, both can cause an infant's bones to be susceptible
to fractures. Without ruling these conditions out, it is
speculation as to the cause of the fractures.
31
Where the fractures are found also can be important.
For instance, as documented on videotape, a humeral
fracture can be caused by attempting to roll an infant from
a prone to a supine position.
32
Additionally, the age of the fractures is significant.
Peri-mortem fractures are said to have happened at or about
the time of death. If the child was hospitalized for a period
of days, without any contact by the alleged perpetrator
of the abuse, how can peri-mortem fractures be evidence
of abuse? They can't. Similarly, fractures of the ribs can
be caused by chest compressions in CPR. Unless medical
intervention is ruled out as the cause of the rib fractures,
the presence of rib fractures does not prove that the child
was subjected to a criminally violent act.
The age of the fractures is important in another way.
Peer-reviewed medical literature has documented rib
fractures occurring during a vaginal delivery, because of
birth trauma.
33
If there are healing (or healed) rib fractures,
how has the physician ruled out birth trauma as the cause?
Unless this is ruled out, testimony ofthe presence of healing
fractures should not be permitted as proof of abuse.
While the presence of a subdural hematoma often IS
said to be the sine qua non of SBS, here are several reasons
why shaking and subdural hematomas do not go hand-in-
hand.
First. the conclusion that SBS causes subdural hematoma is predicated
on experiments by Ommaya. whose research methodology was as
follows;
Ommaya's experiments as well as follow-up primate
experiments by Ommaya 's previous co-workers,
Gennarelli and Thibault supported a rotational
acceleration mechanism for the generation of cranial
subdural hematomas. This is the much-heralded
differential rotational skull-brain motion mechanism
that causes parasagittal bridging veins to rupture and
thus hemorrhage below the dura. This mechanism
was postulated for the adult head with a fully ossified,
stiff, skull which plays a major role in its activation.
It is important to note that the Gennarelli- Thibault
experiments were conducted in a way that protected the
neck from head whipping forces. In those experiments,
the head of the primate was potted in a metal cylinder
which was constrained to accelerate and then decelerate
along a prescribed arc in a prescribed time frame.
34
III d< 0" maya basec I,s lode on ar ao lit rea a, J
hat tile experJlllent provided neck prot'?cIIOIl. And there 'Ivf' olll
differences with his model a Finis Bandak Ph 0 . d research or
111 the of Neurology at nle UI 110rmed p.rvlves Jnlver Ity ,I
r Health SCiences. has obsuvec.
[T]he neck was not subjected to the forces of the
accelerated free head as it would be if the loadings were
applied at the chest. This is precisely and erroneously
the presumed SBS head motion where equivalent
rotational accelerations of the infant human head were
calculated by scaling this type of data. The important
question when using the results of these experiments
to interpret infant shaking injury is whether it is
naturally possible for a free human head to reach such
head accelerations through chest shaking without neck
injury. This question was not addressed by those primate
experiments nor has it been addressed quantitatively in
the literature.
35
As a result, Dr. Ommaya's experiments on adults were
erroneously used to obtain a foundation by extrapolating
his conclusions that shaking causes subdural hematomas in
infants.
Second, research has shown that the maximum forces
that can be generated through chest or shoulder shaking of
an infant are, in fact, one-tenth of the force that pro-SBS
physicians say that shaking generates.
36
Third, the mechanism of injury to the infant's brain,
through shaking, requires that the forces be transmitted
through the neck to the head. Head acceleration and
velocity levels commonly reported for SBS generate forces
that are far too great for the infant neck to withstand
without injury. Shaking head accelerations can potentially
cause severe, if not lethal, cervical spinal cord or brain stem
injury in the infant at levels weU below those reported for
shaken baby syndrome. 37 Thus, ifthere is a subdural hematoma
but there is no neck injury, then another cause of the subdural
hematoma must be suspected and ruled out.
Fourth, many children who are alleged to be victims of
SBS also are alleged to have been found by their caregivers
to be nonresponsive or to not be breathing. Ifan infant does
not breathe for a period oftime or is not properly intubated,
this can lead to anoxia, which is the lack of oxygen to the
THE DEFENDER '* 16
brain. And anoxia leads to an ischemic cascade, which can
then lead to a subdural hematoma.
An ischemic cascade is a series of biochemical reactions
that take place in the brain after seconds to minutes of
inadequate blood supply or inadequate oxygenation of
blood (a condition known as ischemia). Most ischemic
neurons that die do so due to the activation of chemicals
produced during and after ischemia. The ischemic cascade
usually occurs for two-to-three hours but also can last
for days, despite the return of normal blood flow. 38 The
ischemia can cause coagulopathy, which is a failure of the
body's blood clotting mechanism.
Hemodilution also can cause coagulopathy.
Hemodilution is what happens when you infuse a patient
with IVs such as normal saline and lactated ringers.
Coagulopathy, in turn, can cause bleeding within the
cranium. Bleeding in the cranium manifests as subdural
hematomas and as subarachnoid bleeding. Coagulopathy
also can cause bleeding from any blood vessel within
the body and serves as another possible cause of retinal
hemorrhages.
The presence ofa subdural hematoma and coagulopathy
poses a significant chicken-or-egg question. This is
because an injury producing a subdural hematoma can
result in ischemic cascade, coagulopathy and ultimately
death. Conversely, anoxia can cause an ischemic cascade,
coagulopathy, a subdural hematoma and/or subarchnoid
bleeding and ultimately, death. Therefore, a child whose
signs included not breathing presents the courts with the
significant scientific question of whether ischemia stemming
from anoxia caused the coagulopathy that caused the subdural
hematoma or vice-versa.
RULING OUT ALTERNATIVE CAUSES
As the foregoing demonstrates, the signs typically asserted
to be pathognomonic of SBS are not. This means that ruling
out alternative causes is critical to the admission of any
testimony about the presence of a subdural hematoma and its
medico-legal significance.
The methodology by which the physician rules one
alternative out is dispositive of whether the testimony is
admissible. For instance, if the medical examiner opines that a
subdural hematoma was caused by SBS but has not seen the
medical records to see that the infant was improperly intubated
(resulting, for example, in extended periods ofanoxia/ hypoxia
and that the initial CT brain scan showed no bleeding within
the skuli, but did show changes consistent with anoxic brain
injury), a conclusion that the subdural hematoma caused the
brain damage, resulting in death should not be permitted. No
proper methodology is employed in reaching that conclusion
and it is not scientific. It is speculation.
DEMONSTRATIVE EVIDENCE
Proponents of SBS will frequently use a Raggedy Ann-
type doll as a demonstrative aid. This raises serious Rule 702
concerns because there is no scientific validity associated
with such a demonstration. Why? Because one can never
reach the head accelerations estimated by the proponents
of shaken baby syndrome.
39
Additionally, demonstrations
with dolls have variables that are never consistent with the
child in question.
RULE 403 CONSIDERATIONS
In addition to the Rule 702 considerations for
admissibility of expert testimony in shaken baby syndrome
cases, a case involving a dead child requires additional
considerations about the application of the constraints of
evidentiary Rule 403 .
Non-scientific evidence is never relevant and should
not be admitted. Assuming that the court somehow finds
that the testimony of the physician is scientific, then the
one frequently used demonstrative should be excluded
under Rule 403 due to capacity to result in unfair prejudice,
confuse the issues, and mislead the jury. That demonstrative
is the Raggedy Ann doll that is shaken by the physician
while "explaining" SBS .
Use of the doll is not an appropriate example of an
infant for any number of reasons . First, the demonstration
dolls typically weigh about a pound, which is nowhere near
the weight of the dead infant. Second, because the weight is
so light, it exaggerates the movement of the body that can
be obtained by shaking. Consider the difference that would
be seen between shaking a baseball and shaking a 12-pound
bowling ball. Third, unlike an infant, the dolls have no
rigidity whatsoever, which exaggerates the movement of
the head. One need only consider the difference in shaking
a three-eights-inch wooden dowel and shaking a baseball
bat of the same length to understand this effect. Fourth,
demonstration dolls have no neck and the head is not
proportional in weight to the rest of the body, as it would
be in an infant.
If the physician wants to shake a doll, it should be
one filled with beans, so that the weight approximates the
weight of the child. And the head should have a weight that
is commensurate with tlle dead infant's head. Otherwise, aU
the jury is being shown is theatrics - highly prejudicial and
inflammatory theatrics that are excludable under Rule 403.
In the absence of ademonstrable Impact and injury to the Infant's neck/spinal cord , testimony about SBS
Conclusior
should not be permitted unless the other potent ial causes of the signs found are ruled out. Failure to rule
these other causes out renders the testimony unscientific and excludable under Rule 702.
THf DEFENDER * 17
1 2009 L.T "Butch" Bradt Permission given to Harris County Criminal
Lawyers Association to copy, reprint or republish in any format. All others
must secure written permission from the author befOre copying, reprinting or
republishinginwholeorin part.
2Most ofthe infOrmation in this paper also relates to children who are alleged to
have been injured byshaken babysyndrome. Butsomeofit,suchasdiffi.LSe axonal
injury, applies mostly by microscopic postmortem evidence tochildren who have
died. Practitionersare advised toseek expert assistance if they have questionsas to
which iswhich.
3H. Brown,"EightGates for ExpertWitnesses," 36Hous. L. Rev. 743(1999).
4TJ. "Shaken baby (shaken impact) syndrome: non-accidental head
injuryin infancy,"99Royal Soc. Med. 556-61 (Nov. 1999):J.TWeston, "The
pathology ofchild abuse," in R.E. Heifer & R.E. Kempe, eds., The Battered
Child 77-100 (Univ. ofCh.icago Press 1968); J. Caffey, "On the theory and
practice ofshaking infants: its potential residual effCcts ofpermancnt brain
damageand mental retardation," 124Am. J. Dis. Child 161-69( 1972).
5 F.A. Bandak, "Shaken baby syndrome: A biomechanics analysis of injury
mechanisms," 151 ForensicSci. Int' l71-79(2005).
6 See, eg., Sinead Fenton,"Bilateral Massive Retinal HemorrhagesIna6-Month-
Old Infant: A Diagnostic Dilemma," 117 Arch. Ophthalmology 1432-34
(1999)(retinalhemorrhagesin inf.mcyare believedtobeacardinalsignofnon-
accidental injury).
7F.A. Bandak, "Shaken baby syndrome: A biomechanics analysis of injury
mechanisms," 151 Forensic Sci. Int'l 71-79 (2005) (citing J. Caffey, "Multiple
fractures in the long bonesof infantssuffering from subdural hematoma,"56Am.
J. Roentgen 163 (1946);J. Caffi:y, "Onthetheoryand practice ofshakinginfants:
its potential residual effixts ofpermanent brain damage and mental retardation,"
124Am. J. Dis. Child. 161 (1972); and J. Caffey, "The whiplash shaken infant
syndrome: manual shaking by the extremities with whiplash- induced intracranial
and intraocularbleedings, linked residual permanentbrain damageand mental
retardation,"54Pediatrics396-403(1974)).
8 FA. Bandak, "Shaken baby syndrome: A biomechanics analysis of injury
mechanisms,"151 ForensicSci. Int'l71-79 (2005)
9Jd.
10 See Tex.R. 702,705(c);see also E.l. du Pont de Nemoul"S & Co. v. Robinson,
923S.w.2d549,556-57(Tex.I995).
11 Robinson, 923SW.2dat556.
12 See Merrell Dow Pharms., Inc. P. Havner, 953S.W2d706,720(Tex.l997),cert.
denied,523U.S. 1119(1998)("[I]fthereareotherplausiblecausesoftheinjuryor
condition thatcould be negated, the plaintiffmustoffer excluding those
causes reasonablecertainty.");Robinson, 923S.W2dat559("Anexpertwho
istryingtofind acauseofsomethingshouldcarefullyconsideralternativecauses.");
Hess P. Mclean Feedyard, Inc., 59S.W3d 679,687(Tex. App.- Amarillo 2000,
pet.denied)("[A]nexpertshouldcarefullyconsiderand ruleoutalternativecauses,
and the failure to rule outothercauses results in speculation and conjecture and
amOlUlts tonoevidenceofcausation."); Purina Mills, Inc. v. Odell, 948S.W.2d
927,934(Tex. App.- Texarkana 1997,pet. denied)(analyzing expert testimony
underRobinson factorsandconcludingtestimonyunreliablewhenexpertsfujJed to
excludeotherpotentialcauses).
13 Asignis definedas anobjectivefindingasperceived byanexaminer,suchas afever,
rash, thewhisperheard overthe chestin pleural effusion.Compare thisdefinition
to that for symptom, which is asubjective indication ofa dise."1Se orachange in
conditionas perceived bythepatient. Mosby'sMedical Dictionary(5thed. 1998).
14 FA. Bandak, "Shaken baby syndrome: A biomechanics analysis of injury
mechanisms," 151 ForensicSci. Int'l.71-79(2005).
15Id.
J6Id.
J7 Id.
IS Id.
19 Random House Dictionary(2006).
20SeeA. PolitO,"BilateralRetinal HemorrhagesinaPretermInfantWitl1 Retinopathy
of Prematurity Immediately FoUowing Cardiopulmonary Resuscitation," 119
Arch. Opthamology 913-14 (2001); Sinead Fenton, "Bilateral Massive Retinal
Hemorrhages In a 6-Month-0Id Infant: A Diagnostic Dilemma," 117 Arch.
Ophthalmology 1432-34 (1999); Mark Goetting, "Retinal Hemorrhage Mer
Cardiopulmonary Resuscitation in Children: An Etiologic Reevaluation," 85
Pediatrics585-88( 1990).
21 Stlpranote 12.
22Sinead Fenton,"Bilateral Massive Retinal HemorrhagesIn a6-Month-0IdInfant:
ADiagnosticDilemma," 117Arch. Ophthalmology1432-34(1999).
23Jd.
24 See Event 113478,VAEl\sdatabase(32days),availableathttp://W\vw. medalerts.
org (last Feb. 2, 2009); see also id., Event 123168 (31 days); id., Event
228586(28 days).
25 Dr. Sherri J.TenpeJ1J1Y, Saying NoToVaccines- AResource Guide ForAll Ages
25-26(NMAMedia Press 2008).
26 Archie Kalokerinos,EverySecondChild(ThomasNelson,Australia 1974).
27 VAERS is a United States program fOr vaccinesafety that is co-sponsored by the
CentersfOrDiseaseControlandPreventionandtheFoodandDmgAdministration.
VAERSis apost-marketingsafetysurveillanceprogram,collectinginformationabout
adverse events(otherwise knownas side effects) thatoccurafteradministration
ofvaccines. The program is an outgrowth ofthe 1986 National Childhood
Vaccine Injury Act, which requires health care providers to report: (1) Any
event listed by the vaccine manufacturer as a contraindication to subsequent
dosesofthe vaccine; and (2) Any event listed in the Reportable Events Table
that occurs the specified time period after vaccination. See 42 U.S.c.
300aa-l to 300aa-34. Thedata are storedelectronically by the CDCin the
VaccineSafety Datallnk. See "VaccineSafetyDatalink(VSD) Project,"available
at http://www.cdc.gov/vaccinesafety/vsd/ (lastvisited Jan.30,2009).
28 VAERS reportsare probablybestresearched by a physician fumiliar them.
SherriTenpenny, D.O.,haswrittenabookt11at addressesmanyof theproblems
vaccinesandvaccine injuries. Sherri J. Tenpenny, Saying NoToVaccines:
AResource Guide for NIAges( NMAMedia Press2008).
29There is a misconception about the temporal relationship between the
vaccination and the onset ofadverse reactions. While some happen the day of
administration,adverseeffi:cts,includingdeath,have beendocumentedas muchas
32days afterthevaccinations. See, eg., Event 113478,VAERS database, available
at http://www.medalerts.org(l3l>tvisited Feb.2,2009).
30This is unlike knife stab wounds, certain burns, depressed skull fractures,
and gunshots.
31 C.A.B. ClementsOn,"Barlow'sdisease," 59(1)Medical Hypotheses52-56(2002);
see a/.so KAKeller & P.O. Barnes,"Commentary: Ricketsvs. abuse: anationaland
internationalepidemic,"38 Pcdiatr. Radiol. 1210-1216(2008).
32 KP. Hymel,c.L.Jenny, "Abusivespiral fractures ofthe humerus:a
exception," 150Arch. Pediau. Adoles. Med. 226- 228( 1996).
33 Blake Bulloch,"Cause AndClinical CharacteristicsofRibFracturesin Inf.mts,"
105 Pediatrics48(2000).
34 F.A. Bandak, baby syndrome: A biomechanics analysis of injury
mechanisms," 151 ForensicSci. Int'l. 71-79(2005).
35Id.
36Id. (head velocity from human manual shaking is ofthesame orderas free-fuJI
head velocityfrom aheightofaboutonemeter(approximatelythree feet).
37Id.
38 "Stroke: Hope Through Research," National Institute of Neurological
Disorders and Stroke (NINDS), available at http://www.ninds.nih.gov/
disorders/stroke/ detaiUtroke.htm(last visited Feb. 2,2009).
39A.C. Duhaime, T Gennarelli, L.E. Tibualt, et aI., "The Shaken Baby
Syndrome: A clinical, pathological, and biomechanical study," 66 J.
Neurosurgery409-415 (1987).
L.T. "BUTCH" BRADT is a general practitioner who has been licensed for 32 years and has represented clients in civil, corporate,
criminaland family law matters. As a criminaldefense lawyer he has prevailed in cases ranging from speeding tickets to capital murder.
THE DEFENDER * 18
By Tyllr Filid
To The Administrative license Revocation Rules
The new rules of procedure for Administrative license Suspension Hearings took effect on January 29th, 2009 and
can be found in the Chapter 159 of Title 1 of the Texas Administrative Code. The most important changes are in the
witness subpoena procedure and deadlines.
There were concerns about other sUbstantial changes, but none of them were realized. Live hearings are still in
existence and you still do not have to issue a subpoena for the breath test operator or breath test technical supervisor
as they are required to appear upon request. Here is the link to the new rules: http://www.soah.state.tx.us/AboutUs/
ALR_Rules_Bikmkd_n_linked_eff_20090120.pdf
ASummary of the New Subpoena Rules and Guidelines
1. Forupto twoattorney-issuedsubpoenas,use theSOAR
form. For additional (judge-issued) subpoenas, requests
must be filed with SOAR and done so at least ten days
priorto the hearingdate.
2. For attorney-issued subpoenas, you must serve
DPS a copy ofthe subpoena on the date it is issued.
Judge-ssuedsubpoenarequestsmustbeservedonDPSat
the time therequestis filed withSOAR(atleast ten days
before hearing).
3. Allsubpoenas(attorney- orjudge-issued)mustbeservedon
thewitnessatleastfive calendardays before the hearing.
4. For all subpoenas (attorney- orjudge-issued), you must
file the return ofservice with SOARalong,vith a,vitness
fee check, and serve the return on DPS at least three
calendardaysbeforethehearingdatealongwiththe\vitness
fee check.Thewitness fee should be $10plusanadditional
amountifthewitness'round-triptravelwill bemorethan25
miles. Mileage can be calculated by using theguide found
at:http://ecpa.cpa.state.tx.us/m.ileage/Mileage.jsp
The old rules required all subpoena requests to be filed with the State
Office of Administrative Hearings (SOAH) for a judge's approval and
signature. This is no longer required for certain witnesses. Now a
licensed attorney in Texas can issue his or her own subpoenas for up
to two witnesses:
1.the officer who found reasonable suspicion for the
stopordetention;and
2. the officer who found probable cause to arrest. If
this is the same officer - which it will be in some
situations- theattorneycanissueonlyonesubpoena.
For attorney-issued subpoenas, the SOAR form
must be used and can be found at theSOARsite by
using following link:
aboutus/ air_subpoenajorm_dec_2008_4. pdf
Additional subpoenas, other than the two attorney-issued subpoenas, are
allowed but must be requested through SOAH at least 10 days prior to the
hearing date. These requests must demonstrate good cause to compel a
witness' appearance when:
1. seeking to calJ more than two peace officers to
testify,
2. requesting the presence of a non-police officer
witness,and
3. when a pro se defendant seeks to compel a witness'
appearance.
A properly issued subpoena remains in effect until the
judgereleasesthewitnessorgrantsamotiontoquashorfor
protectiveorder. Ifahearingis rescheduled and asubpoena
is extended, and unless the judge directs otherwise, the
TYLER FLOOD is a OWl Trial Attorney and a name partner in White Flood, PLLC. His website is
www.tylerflood.comorthe better-knownwww.DoNotBlow.com.Hise-mailaddressistyler@tylerflood.com.
partywho requested the continuanceshall promptly notify
anysubpoenaedwitnesses ofthenewhearingdate.
Default judgment timelines also have changed.
Now, within 10days ofa default judgment, the defendant
may file awritten motionwithSOARand DPS requesting
that the default order be vacated because the defendant
had good cause for failing to appear. The old rules
required that the motion be filed within five days ofthe
defaultjudgment.
Deadline computation has not changed but is always
importantto note .When computingdeadlines, ifthe rules
specifyadeadlineorsetnumberof daysforfilingdocuments
ortakingotheractions,thecomputationoftimeshall be by
calendar days rather than business days, unless otherwise
providedin the rules orbyajudge'sorder. However,ifthe
periodtoactis five daysorless, theinterveningSaturdaysor
Sundays are not counted unless otherwise specified by the
rules orajudge'sorder.
The foregoing outlines the main changes to the new
rules, but it should also be mentioned that there is now
a provision allo\ving for hearings by videoconference, 111
addition to in-person and by telephone.
Everyattorneywhohandles aDWIshouldrequest
with an ALR hearing and familiarize themselves
the rules and procedures for securing witness
appearanceswhenthestrategycallsforit.License
suspension is notautomaticandALRhearings
can be avaluable tool in DWI defense.
THE ASSOCIATION NURTURES
ADVOCATES WITH THE
"Did you forget your books? Do you need me to lend you
some paper?!" Monique Sparks said, while frowning at the
counsel table's empty surface. Trial was beginning and first-
chair counsel did not even have a pen.
"Don't worry, Monique. Everything I need is right in
here." Pat McCann gave his second-chair lawyer a knowing
look and firmly tapped his temple. Thus began the first official
trial of The Second Chair Program.
In December 2008, the Association proudly launched its
innovative new mentorship component, The Second Chair
Program. The curriculum is designed to provide real-world,
on-the-job training to a select group of ambitious criminal
defense lawyers - the "Second Chairs" - who are interested
in perfecting the art of their profession. They will learn the
secrets of the masters as they are teamed with some of the
finest and most experienced lawyers of the defense bar: the
"First Chairs."
The scope of the program centers on the evolution of one
case. First Chairs each contribute a case from their own docket
in which to allow their Second Chair partner to participate
and sit as co-counsel. First- and second-chair partners attend
each case setting together and work in alJiance toward the best
resolution for the client. If the program case goes to trial, First
and Second Chairs wiJl sit together at counsel table. Ideally,
the Second Chair will not simply shadow the First Chair, but
will work on the case. For example, McCann entrusted Sparks
to contact all of the witnesses prior to trial, to question the
character witnesses for the defense, and to cross-examine the
police officer - all of which she did very well, McCann said.
So far, the program seems a smashing success, with
more than 80 participants. Our members recognize that
the integrity of our justice system and the strength of our
organization depend upon ourability to support and nurture
one another. The vision of The Second Chair Program is
to bring members together in unique collaborations in the
hope that epiphanies will occur, that lessons will be learned,
that good can be done and freedom can be won. Ifwe can
teach a significant lesson to just one member, that lawyer
may use that knowledge toward exponential good, perhaps
using it to free future clients and even teaching that lesson
to second chairs of their own so tha t they, in turn, may one
day free their own clients.
"Sir, don't turn around," McCann directed the State's
witness. "But can you please read me the sign on the wall
behind you?"
"Dmm, I can't remember what it says," the witness
responded. "I didn't pay much attention to it earlier."
"Can you normally see what's behind you without
turning around?"
"No. "
"Is that because you don't have eyes in the back of your
head?"
Sparks could barely contain a smirk. Like everyone else
in the courtroom, except for the State's witness, she knew
there was no sign on that wall. She also knew that the first
client of The Second Chair Program would be exonerated.
With any luck, she will use that non-existent sign to free
her own clients.
SARAH V. WOOD is a criminal defense attorney and directs The Second Chair Program. Last year, the
Association honored her as an Unsung Hero.
THE DEFENDER * 20
FIRST CHAIRS
DO:
+ Introduce your Second Chair to judges, attorneys, and
court staff members and try to foster a good working
relationship.
+ IncludeyourSecondChairinout-of-courtactivities,including
meetings with the client, witnesses, or investigators.
+ Give your Second Chair assignments so that he/she can
contribute to the case.
+ Consider inviting your Second Chair to work on other cases
with you after the program case is finished.
+ Spread the good word, if warranted, about your Second
Chair.
+ Report seriously offensive conduct or unusual
circumstances to the administrators.
+ Uphold the highest ethical and professional standards as a
representative of The Second Chair Program
DON'T:
+ Don't overload your Second Chair with bothersome work
or unwanted responsibility.
+ Don't ask him/her to do menial tasks like making coffee or
ironing your socks.
+ Don't have your Second Chair attend settings without you.
+ Don't depend on program administrators to resolve
disputes between you and your Second Chair.
FIRST CHAIRS
David Adler Vivian King
Lisa Benge Andrea Kolski
Mark Bennett Laine Lindsey
Staci Biggar Thomas A. Martin
Adam Brown Troy McKinney
Dan Cogdell Pat McCann
David Cunningham Rand Mintzer
Eric Davis Robert Morrow
Nicole DeBorde Brett Podolsky
Gordon Dees Tom Radosevich
Todd Dupont Kent Schaffer
Danny Easterling Grant Scheiner
Rosa Ebades Jed Silverman
Robb Fickman James Stafford
John Floyd Deborah Summers
Tucker Graves Chris Tritico
Heather Harrison Hall Joe Varela
David Kia tta Tate Williams
Don't
FOR SECOND CHAIR PROGRAM PARTICIPANTS
SECOND CHAIRS
DO:
+ Respect the privacy and dignity of the client and the
authority of the First Chair with regard to the case.
+ Offer to draft motions, do research, and perform other
tasks helpful to the case.
+ Ask your First Chair questions about the program case as
well as other cases you may have.
+ Spread the good word about your First Chair, if warranted.
+ Report seriously offensive behavior or unusual
circumstances to the program administrators.
+ Uphold the highest ethical and professional standards as a
representative of The HCCLA Second Chair Program
DON'T:
+ Don't speak to anyone about the case without specific
prior approval.
+ Don't do anything on the case without specific prior
approval.
+ Don't put your name on any motions or other documents
relating to the case.
+ Don't overload your First Chair with pestering questions
about other cases.
+ Don't depend on the program administrators to resolve
disputes between you and your First Chair.
SECOND CHAIRS
Lori Adrogue Patrick Ngwolo Marissa Garcia
Marcos Adrogue Sandra Oballe Ramona Franklin
Shannon Baldwin Rick Oliver
Williams
Annie Basu Jimmy Ortiz
Robert Tuthill
Te'iva Johnson Bell Peyton Peebles
Sandra Martinez
Matthew Darby Ross Palmie
Sarah Mueller
Delia DeLaGarza Bonnie Rogers
Troy Locklear
Dena Fisher Carmen Roe
Sunshine Swallers
Alexander Gurevich Gary Roth
Joaquin Jimenez Daucie Schindler
Audrie Lawton Paula Silva
Amy Martin Monique Sparks
Ryan Matuska David SuhJer
Don McClure Greg Tsioros
Heather Morrow Hilary Unger
Jessica Needham Nick Westbrook
Henry Nguyen Joshua Willoughby
THE DEFENDER *21
AN UN IKELY HER But A Real Hero Nonetheless
By Chris TrltleD
of us have those
we look up to and
those that we revere
and respect as heroes.
There are recognized
heroes like John Glen
or Audie Murphy.
Walking among us
every day, however, are
heroes. They don't seek
the limelight; they just
perform heroic acts as
if those things come
naturally.
Sharon Levine was
Sharon levine with Kevin Fine (lePt) and Robb Fickman just that person. Sharon
graced us for 39 years. She had a great wit, keen sense of
humor, and a rare beauty. Her smile lifted your spirit and her
laugh was so hearty that it invaded your soul with happiness.
Sharon lived for four years with Hodgkin's Disease. For
four long years she fought a war with her own body. Her fight
was to continue breathing. She fought this battle through
more than 40 rounds of chemotherapy. She rarely missed a
day of work and never asked for a continuance because she
was sick. She did all of this with a smile on her face and a
winning attitude. All of us are better and stronger for having
had the pleasure of knowing her. She was a hero.
I consider Sharon an unlikely hero because she did not
ask for this fight. However, when the fight came to her she
accepted it. She didn't want to - who would? - but she fought
hard and never gave up on her dreams or her life's work.
Sharon Levine is a hero because of her work. Much credit
has been given to those who sued the county in the Sean
and Erik Ibarra case. It has been said that the civil lawyers
brought down former Harris County District Attorney
Chuck Rosenthal and exposed the Harris County Sheriff's
Department for its egregious acts of violence against two
All innocent people. The first person to take up the cause of the
Ibarra brothers was Sharon Levine.
Sharon was hired to represent the Ibarras on the criminal
charges filed as a result of Sean Ibarra's photographing of
Sheriff's deputies who served a search warrant on a neighbor's
property. She took the case not for publicity, not for money (the
Ibarras had almost none), but because she believed that these
two citizens had been treated shabbily by the sheriff She took
tl1e case because she felt it was her duty to help these people.
With no money in trust, Sharon spent days investigating
tl1e case herself. She made numerous visits to the I barras'
home to interview witnesses. It was Sharon's work that
resulted in the ultimate acquittal of me Ibarras. I stepped in
and tried Erik's case and Sharon tried Sean's. However, don't
be mistaken: I did nothing but take her work and go try a
case. Sharon Levine is the lawyer solely responsible for the
acquittal ofSean and Erik Ibarra.
Why, one may ask, is this important? If Sharon had not
taken on this case for
virtually no money and
invested her personal "I think a HERO is
time effort and energy
an ordinary individual who
in it, the Ibarras would
be two mOre convicted
finds to strength
minorities, and Chuck
Rosenthal and Tommy persevere and endure in spite
Thomas would still be in
of overwhelming obstacles."
office today.
This unlikely hero
- Christopher Reeve
did her job. She did it
so well that her work
was the basis for the civil rights case that brought down the
District Attorney and the Sheriff. Christopher Reeve once
said, "I think a hero is an ordinary individual who finds
strength to persevere and endure in spite of overwhelming
obstacles." Sharon lived that definition every day. Sharon
Levine was a hero .
CHRIS TRITICO is a name partner in Essmyer, Tritico & Rainey, LLP. He defended Erik Ibarra at trial
in County Criminal Court-at-Law No. 2, and obtained a directed verdict of not guilty on the charge of
evading arrest for Mr. Ibarra.
THE DEFENDER * 22
AGIANT
"We are constitutional
law dammit!"
Andrew L. Jefferson, Jr. blazed a
path that most lawyers can only
dream of judge of the United
States Court of Appeals for the
Fifth Circuit, first African-
American district court judge
in Harris County, first African-
American assistant district attorney in Bexar County, and a
formidable criminal defense attorney. Association member Craig
Washington told the local news media that Judge Jefferson was
(;giant who possessed ((unrelenting dignity. What follows are
the recollections of other Association members on the passing of
this singular lawyer. - Editor
ROBERTJ. FICKMAN: There is a story about how in a recent
trial he castigated a federal judge for that judge's arrogance.
HCCLA honored Judge Jefferson with a lifetime achievement
award a couple ofyears ago. Jim Stafford made the presentation.
Judge Jefferson gave a short, memorable speech. In reference to
being a judge, he said (and I paraphrase): "It's not so hard; just
do the right thing."
Judge Andrew Jefferson was a great, noble man. His
photograph hangs on my office wall where it will remain. It will
be my sad duty to add his name to our memorial plaque.
DAN COGDELL: It was in Judge Hittner's court ... actually,
Andrew called out Hittner several times. We (all the co-
defendants' lawyers) kept calling Andrew "Judge" in the presence
ofthe jury.
Judge Hittner was impressed enough by Andrew he actually
didn't bristle when we did so. It was one ofthe few bright spots
ofthat trial.
I am certain that there isn't another ex/retired/defeated
judge of any sort that Judge Hittner would have allowed us to
refer to in that fashion.
AL LEAl: Judge Andrew Jefferson brought grand jury service
to the minority community in Harris County. It took courage
to do so in a very difficult case. He ruled for the defense when
attorney Ernest Valdez challenged the composition ofthe indicting
grand jury. He did so because he believed in inclusion and an
integrated justice system. He served as a family district judge
and later as the judge in the 208th criminal district court. He
impacted our criminal justice system and brought fairness and
true justice into our courts .. . I am so glad that he witnessed this
past presidential election.
SAMADAMO: I was an Assistant District Attorney when Judge
Jefferson was sitting on a criminal district court bench. I recall
shock waves going thru the office when he asked an assistant
district attorney if he had any case law to support his position.
He made us better prosecutors by requiring us to be prepared.
Judge Jefferson elevated the professionalism of all the lawyers
who appeared in his court. He treated everyone with dignity
and professionalism. He set a judicial standard of fairness and
neutrality that few Harris County judges have been able to
emulate.
VIVIAN R.KING: Thank you, Judge Jefferson, for paving the
way for me and making it a little easier for me to defend one's
constitutional right to a fair trial.
Thank you for ensuring inclusion. In your memory and
those of others like you, I will continue to "fight the good
fight" for fairness and inclusion.
STEVE SHELLlST: Dear Judge Jefferso n:
Although I never had the chance . . . strike that... I never
made the effort to speak with you after our o ne trial we had
together, I hope that somehow you will get this message from
above. I wanted to apologize for my behavior during our trial .
At the time, as a prosecutor, no one taught me the proper way
to act or the proper way to treat defense attorneys; especially
ones like yourself who have earned that right. I was taught to
win trials; to put people in jail; to get convictions. Well, I got
none of the three with your client that day. What I got was an
ass-whipping. What I got was a lesson in humility.
See, when you called me a "lil' shit" in front of the jury,
I shouldn't have responded in kind. I should have said "Yes,
sir," because I was a "lil' shit" that day and you had every
right to call me out on it.
When Judge Brown warned me about your skills and
who you were and what you had accomplished, I should have
listened. But, I didn't. I was a prosecutor and I was doing
the Lord's work. I was invi ncible. Or so I thOUgllt, until you
convinced me otherwise.
Judge Jefferson, you were the best lawyer I've battled
to this day. You were articulate, passionate and convincing.
You were cleaning up that courtroom and I was your mop.
Thank you for teaching me a valuable lesson that day. And I
hope (although, in my heart, I know it' s too late) that you will
accept my apology for the disrespect I showed you that day.
For years, I meant to find you to apologi ze for my behavior. I
am sorry. You will not be forgotten.
Sincerely, Steve Shellist, Former ADA, CCCL #12.
TOMlAKES: Judge Jefferson was one of the greatest people
I ever had the honor to meet. He was also the United States
Attorney for the Western District when Carl Walker was in the
Southern Disuict.
I remember going to a seminar that he was the final
speaker at. I was very glad that I stayed to hear hi m. The
theme was, "We are constinltionallawyers, damrnit!" I have
looked back to that for inspiration many times since.
He was rightfully held in awe at the courthouse. He is
listed in JIMS as "Judge Andrew Jefferson" - the only person,
I believe, listed that way.
THE DEFEII DER *
ic
THE DUD Abides in Our Memories
HON. TRAVIS B. BRYAN III: I first met Dude
in the Fall of 1965 at Texas A&M,
where he was a star fifth-year football
player and I was a lowly walk-on
freshman. When he befriended me, I
knew he was special. Dude, I learned,
always tried to help the little guy.
I saw Dude in one of the most
famous plays in A&M football
history. Early in the second quarter against Texas in 1965,
A&M quarterback Harry Ledbetter bounced an apparent
pass out to wide receiver Jim Kaufman. Kaufman caught the
ball on the first hop and acted disgusted as he headed back
to the huddle. Suddenly, Kaufman lofted a backwards lateral
to Dude, who was 15 yards away. Dude scored on the 91-
yard play. It was the longest play in school and conference
history and helped A&M to a 17-0 half time lead. Dude
also had 13 catches in that game for 150 yards. This, too,
was an A&M record for many years. He ended the season
with 60 total catches for 835 yards and was drafted by the
Green Bay Packers.
It is no surprise Dude and I turned out to be criminal
defense lawyers. We were arrested together in Spring 1966.
We were watching a fight near a local college hangout. The
fighters ran off as the police arrived . We were still standing
there, so we got cuffed and stuffed. We didn't get any
Miranda warnings, so we both gave a statement. When our
stories matched, I guess they figured we were telling the
truth and they let us go. Dude and I laughed about it many
times through the years.
ROBERT PELTON: In the mid-1970s I was working during
the day and attending South Texas College of Law at night .
I had been placed on scholastic probation and had to make
a 90 on my Torts exam or I was out of there. With the help
of Jay Burnett I made a 95 in Torts and the Dean's List. I
met Dude, Jay, Terry Gaiser and Don Hendrix, who were
seniors, when I was a freshman. Jay and Hendrix wanted
to be judges, while Dude, Terry and I wanted to be rich
and famous like Percy Foreman and Racehorse Haynes. We
learned more about law and life at Shelby's, the beer joint
across the street from law school, than we did in class. We
remained friends through divorces, IRS audits, cases won
and lost, and an occasional social drink.
Dude always said that la\vyers are too busy to have
friends, but he had many, including Mike McSpadden, Mac
Seacrest, Todd Bennet, Travis Bryan, Rique Bobbitt and
Bill Johnson.
Dude and I talked often about the Saturday picture
shows we loved as children. I got a picture of Dude's favorite
one, The Durango Kid, which I gave to him along with a
pair of ostrich boots like Durango wore.
THE DEFENDER * 24
II Ken was a IDude
l
in
every facet of his life
ll
Hon. Jay Burnett
A few weeks ago, some friends of Carson Joachim were
looking at some land that I own in Abilene for use as a deer
hunting lease. I gave one of them the gate key and, when
he couldn't open the lock, I asked him if he was an Aggie.
He replied, "No, but my dad is." I told him that I had a
friend in Houston who was an Aggie named Dude McLean.
"Not the Dude?" he asked. Yes, I said, I am friends with
"The Dude."
HON. JAY BURNETT: I was privileged to have attended law
school and practiced on and off with Dude for about 25
years. We lived in the same neighborhood and shared the
same hairdresser, where he got his hair colored at least once
a month and swapped stories about what a miracle plastic
surgery had become.
Ken was a "Dude" in every facet of his life, from his
meticulous dress to his gentlemanly demeanor. His suits
were tailor-made, often with five buttons in front, and never
did the trousers have back pockets. As he once explained,
"Burnett, if one has back pockets one may be tempted to
put something in them and that, of course, would destroy
the line of the suit. I don't expect you and Bennie House to
understand this concept because you buy your suits off the
rack and are truly no slaves to fashion ."
While Dude loved the ladies, his true mistress was the
law. He never failed to be a gentleman unless he felt that his
client was not getting proper treatment by a prosecutor or
judge. In that case, he might say that the offending party
not only was not curious about the law, but, in fact, "did
not know a law." He epitomized that very rare com bination
of criminal practitioner: a pit bull trial attorney as well as a
highly talented and successful writ and appellate attorney
who won most of his cases without having to go to trial.
He could, and did, do it all. Hardly a day went by without
him calling and asking if you had read a particular opinion
or what you thought about the CCA or 5th Circuit decision
rendered that day. He was a stickler for grammar and
composition and would agonize for hours over a sentence
to convey a particular concept. We would joke about having
to pry his fingers from a brief or writ. His dry and sometimes
acerbic wit, coupled with his never-ending humor, had the
ring of truth which he used frequently in his conversations,
briefs, and writs.
Yes, Dude was a football legend and a criminal lawyer
legend, but most of all he was a legendary and loyal true
friend who we will all miss. It is not often one can claim
to have had a true legend as friend and colleague, but for
those of us who knew him we have and will cherish that
distinction. So long, pal.
DrugTreatnlent Court getsAssociation Support
The Association donated $500 to the Harris
County Drug Treatment Court's Success
ThroughAddictionRecovery(STAR)Program
late lastyear.
In a letter to Association president Mark
Bennett, Special Programs Manager Mary
Covington stated that STAR was honored
to be the recipient of the organization's
generosi ty.
"STAR not only assists clients in battling
drug addiction and dependency, but we also
struggle to maintain our daily operations and
financial obligations with limited resources,"
Ms. Covington wrote. "Your contribution will
allow us to provide incentives and recovery
supportservices that help STARclients achieve
their goal of being responsible, law abiding,
sober membersofthecommunity."
Holiday Party Produces Donation for Hurricane Ike Survivors
The Association's Holiday Party at The Social for Mrs. Haslerand her husband, Rick.
also provided an opportunity for members to In a letter to Association Treasurer Steven
honor182ndDistrictCourtCoordinatorDiane Halpert,theHaslerswrote:"Thegenerosityand
Hasler,whosehomewasdestroyedbyHurricane support ofeveryone is truly overwhelming and
Ike,and tocontributetoa fund for herbenefit. really helps ease ourburden in what has been a
Memberscamethroughwithatotalof$810 difficultfew months."
Mental Health Court Participants Rewarded for HardWork
By Stacl Biggar
Every year, the Association selects a Christmas
projectandrewardsthisprojectwithamonetary
donation. This past December, HCCLA
awarded atotalof $2,000invaryingamountsto
15 exemplary individuals on the mental health
dockets in the 351st and the 228th district
courts.
The mental health courts in the 351st and
228thdistrictcourtswereestablishedtosupervise
select probationers whosementalillnessesprevent
themfromsuccessfullycompletingprobation.In
these courts, participants are highly supervised
by a trained team ofmental health professionals.
The primarygoal is to lead them tostabilitywith
medication compliance, and transition them back
into independent living. They are represented by
counselatall times .
The Association chose to reward
participants who had shown improvement in
lifestyle, medication compliance and a true
financial need. These fifteen people ranged
from a motherofsevenwho had justobtained
her GED and enrolled at UH Downtown, to
a participantwhohadsuccessfullytransitioned
into independent living, was paying for her
ownapartmentwithou tgovernmentassistance,
but possessed no furniture whatsoever. After
hearing these and 13 other touching success
stories, the Association Board voted to select
these individuals as theirChristmas project.
On December 18, 2008, a ceremony was
held at the courthouse. Association Treasurer
Steve Halpertindividually congratulated each
recipient on behalfofHCCLA. On behalfof
the mental health court and its very special
participants- thankyou!
THE DEFENDER * 25
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WE CANNOT DO IT
On the date my grand jury commissioners met, they
were presented with a batch of applications and instructed
to compose a list of potential grand jurors that numbered
between 15 and 40 people. The array of applications
permitted them to make a list that was not limited to
whichever of their best friends they thought might show
up for service. Instead, they were able to review the
qualifications of people who had demonstrated a desire to
participate. The commissioners' list is sealed and delivered
to the District Clerk, who then compiles the names and
returns a list to the judge of the empanelling court. A copy
of that list also goes to the District Attorney's office so that
criminal background checks can be run.
Subpoenas are issued to the names on the list, instructing
them to appear in their particular court on a certain date to be
qualified under oath. Once those who show up are qualified,
the judge then selects 12 grand jurors and two alternates. This
selection is made with a careful eye to overall qualifications and
appropriate diversity.
The grand jury empaneUed by the 176th District Court
consists of six men and six women, three of whom are
HispanicjLatino, four ofwhom are African-American and five
of whom are Caucasian. They range in age from 30 to 70. The
two alternates are a Hispanic female and a Caucasian male. It
is my understanding that all five ofthe grand juries empaneUed
by newly elected criminal district court judges are similarly
diverse. Each of the five judges acted independently.
After all this work, I was surprised to open my Sunday
newspaper in early February and learn that two local law
professors had decided that we new judges, a mere five weeks
into our terms of office, had failed in our mission to deliver
the citizens of Harris County from non-representative grand
juries. Gee whiz, President Obama hasn't fixed the economy
yet, so let's throw out the rascal. With only a couple of weeks
to prepare, we could have taken the easy route, maintained
the status quo and presented our grand jury commissioners
with the existing database of names from which to make their
selections, but we did not. Vlfe reached out the best way we
could within our limited time. Real world timelines sometimes
run afoul of ivory tower expectations.
Given more tinle, I expect we will emulate the practice ofsome
of our more experienced judges and ask for volunteers from
our petit jury panels. We did not have trial juries in the month
ofJanuary (which I'm sure will likewise draw criticism), so we
did not have that pool available in time for these grand juries. I
offered applications to a trial venire of 60 people on February
2, and got three takers. Only one of those takers would break
the existing stereotype of the standard grand juror, but all will
go into the selection pool once their applications are received.
General venires frequently fail to proportionately represent
the community at large. Just ask any of the several minority
defendants who have been convicted by all-white juries.
The good professors also need to review the separation of
powers. Implementing an entirely new method ofempanelling
grand juries will require change at the legislative level.
Judges don't make the law; they interpret it. We are statutorily
authorized to gather grand jurors in only two ways:
1. the commissioner system, and
2. summoning an array of 20 to 125 prospective grand
jurors, who are qualified and empanelled in the same
manner as through the use of commissioners. Making
applications available to historically disenfranchised
segments of our community, so that more names may be
submitted to the grand jury commissioners, is a much
more straightforward method of ensuring diversity
than relying upon the random call of a venire that
experience teaches may grossly under-represent all but
the Caucasian constituency.
All judges want the community to be educated about the
grand jury process because the legitimacy of the system
depends upon acceptance of its institutions. Clearly, there
is a lot of work to be done when even some of those
who teach "criminal justice" are unclear on the concept.
We welcome participation by all those who are more
interested in construction than they are in destruction.
We cannot do it alone.
SHAWNA L. REAGIN is Judge of the 176th Criminal District Court and the
immediate past editor-in-chief of The Defender.
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