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2 ............... . From the President
By Patrick F. McCann
3 ............... . Winning Warriors
7... The Trial of Harry Potter
By Joseph W. Varela
2. 15 Easy Steps to Your First Habeas Writ
By Patrick F. McCann
Checklist for DNA Cases 16..
By Patrick F. McCann
17.................The D.A. Debate
20 ............... . Motion of the Moment
By Patrick F. McCann

From the Editor
By Shawna L. Reagin
22 ............... . HCCLA 2007 Holiday Party
2
HCCLA ~ ~ ~ ~ ~ ~ ~ ~ 2007-2008
PRESIDENT
Patrick F. McCann
PRESIDENT ELECT
Mark Bennett
VICE PRESIDENT
JoAnne Musick
SECRETARY
Nicole DeBorde
TREASURER
Steven H. Halpert
PAST PRESIDENT
Robert J. Fickmon
BOARD OF DIRECTORS:
Neal Davis
Christopher Downey
Todd DuPont II
Tyler flood
Tucker Groves
Mark Hochgloube
Randall Kollinen
Feraz Merchant
Marjorie Meyers
EarlO.Musick
John Porras
Carmen Roe
Robert A.Scardino
Charles StonPield
Amanda Webb
O. Tote Williams
PAST PRESIDENTS:
1971-2006
C. Anthony Frilaux
Stuart Kinard
George Luquette
Morvin O. Teague
Dick DeGuerin
W.B.House. Jr.
David R. Bires
Woody Densen
Will Gray
Edward A. Mallett
Carolyn Garcia
Jack B.Zimmermann
Clyde Williams
Robert Pelton
Candelaria Elizondo
Allen C. Isbell
David Mitcham
Jim E. Lavine
Rick Bross
Mary E. Conn
KentA. SchaPPer
Don Cogdell
Jim Skelton
George J. Pornhom
Garland D.Mcinnis
Robert A. Moen
Lloyd Oliver
Danny Easterling
Wayne Hill
Richard FronkoPP
W. Troy McKinney
Cynthia Henley
Stanley G. Schneider
Wendell A. Odom. Jr.
Publisher: HCClA
Distribution550 copies perissue.
Editorial Staff: Shawna L. Reagin
For articlesand othereditorial
Ads &Distribution: Shawna L. Reagin &Christina Appelt
contributions, contactShawna l.Reagin
Design &layout: limb Design
at713-224-1641. To place an ad, call
www.limbdesign.com Shawna l.Reagin at713-224-1641
SIDE T
I cannot think of a time when more has happened to and
around our defense community in Harris County. Out of
all the chaos and confusion, one thing has happened that I
feel was worth all the difficulty; we are a stronger and more
united group than we were .
It has been a privilege to be your voice during this year. It
has been an honor to stand up for you and speak out about you and the exceptional work
you all do. It has been worth every bit of time spent to be able to let the public, the bar at
large, and the judiciary know that we stand together, and that we speak for those who cannot
speak for themselves. I was never so impressed with a group of individuals as I have been
with your Board and the Executive Officers who worked with me and helped sustain our
efforts throughout this year. We all owe them a debt of thanks, and I owe them most of all,
in particular our unsung heroes, Shawna Reagin and Christina Appelt, who work tirelessly
behind the scenes to make sure you all have the best organization possible.
It has been extremely humbling to be allowed to represent this organization. I am grateful
for the chance to have served you all, and it is my hope that I did a job of which you could
be proud.
Thank you.
Patrick F. McCann
Winning
I
+
CYNTHIA HENLEY won post-conviction writ relief for her
client in the 208th District Court, on grounds of ineffective
assistance of counsel for failure to disclose exculpatory
evidence and actual conflict of interest, on a plea of guilty.
The trial lawyer has since been disbarred. Ex Parte Jorge Luis
Rodriguez, No. AP-75877.
+
NICOLE DEBORDE won a DWI acquittal in CCCL #10 in
November, 2007, despite very bad driving facts. Then in
February, NICOLE led her team of DEREK HOLLINGSWORTH,
ANDY DRUMHELLER and BRIAN BENKEN to a self-defense Not
Guilty for their client in a high profile murder case in the
232nd District Court . The incredible NICOLE followed up
by getting an aggravated sexual assault no-billed.
+
A no-test DWI in CCCL #13 led to a two-word verdict for
DANNY EASTERLING in CCCL #13. A theft case, set for trial
the same day, was dismissed.
+
In one stellar week, ALAN PERCELY got a murder no-billed
out of the 183rd District Court and an aggravated robbery
dismissed in the 248th.
+
Overcoming the military'S zero tolerance policy on drug usc,
LT. COL. TERRI ZIMMERMANN secured dismissal of two drug
use charges for a service member facing court martial after
her creative filings and expert, aggressive cross-examination
at the motion hearing.
+
MICHAEL PALMER saved his client from adjudication on
aggravated robbery and felony evading charges by getting
a Not Guilty on a possession of a controlled substance case
in CCCL #14. MICHAEL and BYRON FULK followed this
victory by obtaining an acquittal on a felon in possession of
a weapon in the 56th District Court of Galveston County.
+
NEAL "THE REAL DEAL" DAVIS saved a male babysitter charged
with two counts of indecent contact and two counts of
aggravated sexual assault for allegedly sodomizing at gun-
and knifepoint two 9-year-old boys when, after 15 hours of
deliberation, the jury acquitted on all counts except for one
indecent contact, which hung with the majority voting Not
Guilty, in the 230th District Court.
+
Working his usual magic, DAVID MITCHAM persuaded the jury
to vote Not Guilty on a family violence assault case in CCCL
#10. DAVID then topped himself by obtaining an acquittal
on a murder case in the 183rd District Court, immediately
following victory on a 2-count manslaughter trial in the
314th juvenile court [he reportedly did not even have time
to change his suit].
+
Since the accused never received the reqwsIte notice,
JED SILVERMAN convinced the jury to return a Not
Guilty verdict on DWLS back in November of 2007. JED
subsequently teamed with STEVE GONZALEZ in CCCL #13
to prevail on a motion to suppress a .16 breath test that was
the result of an illegal detention. Then JED battled to a 3-3
hung jury on a DWI in CCCL #8 in February, 2008. March
blew in an 8-hour Not Guilty for JED on a DWI in CCCL #8
where, although there was a one-car accident, there was no
reliable evidence the accused was driving the car.
THE DEFENDER * 3
+
Despite the defendant being caught in the store opening
packages, with the merchandise in his pocket and testimony to
that effect by HPD and the LPO, BRIAN WARREN walked him
out of the courtroom after five minutes of jury deliberation.
+
After a PSI hearing that lasted all day, with 15 witnesses for the
defense, CHRISTIAN CAPITAINE convinced the 262nd District
Court to award his client a 10-year deferred adjudication for
murder.
+
It took only 25 minutes for the jury to return an acquittal
on a no-test, accident DWI in CCCL #1 for JOHNNY
PAPATONAKIS. JOHNNY teed it up again in CCCL #6 and
fought off both judge and prosecutor to swing a hung jury
on February 6, 2008.
+
AMANDA DOWNING stared down the prosecution and won
total dismissals for her client charged with DWI-2nd
offense and FSGI, despite the fact of a major accident,
client fleeing the scene and admitting drinking for 12
hours just before the accident.
+
On December 20, 2007, STANLEY SCHNEIDER and
SCOTT ATLAS were awarded the "Order of May" by the
government of Argentina in a ceremony held at the City
Hall Rotunda. This honor is the highest civilian award
given by Argentina, and stemmed from STANLEY'S and
SCOTT'S pro bono work on Saldano v. Texas, a death case
involving State-sponsored testimony that Hispanic people
are more prone to violence than others.
+
TROY MCKINNEY successfully appealed the denial of GARY
TRICHTER'S motion to suppress in Justin Amador v.
State, No. 09-04-00507-CR, delivered 12/12/07, on
remand from Amador v. State, 221 S.W.3d 666 (Tex.
Crim.App. 2007). TROY and LEWIS DICKSON won a
motion to suppress a .16 breath test in CCCL #5 on
March 10,2008.
+
A lengthy motion to quash the indictment, based on the
right to sexual privacy established by Lawrence v. Texas,
led to dismissal of promotion of an obscene device charges
in time for RANDALL KALLINEN'S client to enjoy the winter
holidays with his favorite stocking stuffer.
+
The sartorially resplendent GERALD BOURQUE, in just one
month, engineered trial day dismissals of two DWI's and
obtained a 5-minute Not Guilty on a no-test case in CCCL
#15.
+
JIM LEITNER achieved an incredibly good result for a client
facing possible life in prison for causing an accident that
burned to death a 2-year-old child and injured another,
persuading the jury to return a punishment verdict of 22
years in prison, following the State's pretrial offer of life
and trial offer of 35 years. The trial judge reportedly threw
a tantrum in front of the jury and stormed off the bench.
Sigh ...
+
Confronting the first case prosecuted in Texas under
"Lillian's Law," which holds a person criminally liable ifhis
dog attacks and causes serious bodily injury, RAND MINTZER
put together a grand jury packet that resulted in a no-
bill. In March, RAND got a prostitution case in CCCL #4
dismissed the day of trial.
+
JAN FRY won a Not Guilty in an evading case in the 180th
District Court.
+
Houston Texans player Chester Pitts had STEVE SHELLIST
to thank for his grand jury no-bill on charges of felony
evading following a traffic stop.
+
Nine minutes was all it took for the jury to return a DWI
acquittal in CCCL #12 for TYLER FLOOD, even though two
cops were caught flouting the Rule by one cop telling the
other the questions TYLER was asking regarding the HGN;
the judge did not consider this to be a violation. Huh?? TYLER
continued his streak in February by winning a motion to
suppress in CCCL #13, even though the defendant testified
he had a baggie of weed hanging out of his pocket. His
lust for victory unsated, in March TYLER forced the State
to dismiss a DWI mid-trial after Judge Standley granted his
motion to suppress the video and all SFSTs.
+
GARY TRICHTER swept in a five-minute Not Guilty on a DWI
case in CCCL #14.
+
After the State engaged in a little vindictive prosecution
of a bank robbery dismissed by the feds, SARAH V. WOOD
took on the case pro bono and ultimately succeeded in
having the state charges dismissed as well. According to
BRENT NEWTON, SARAH'S former teacher and the lawyer
who handled the federal case, Sarah found even more alibi
evidence than he had and bravely stood up to threats to
seek a life sentence at trial. CASIE GOTRO helped SARAH in
her efforts that freed an innocent man kept incarcerated for
two years.
THE DEFENDER * 4
+
CASIE GOTRO proved herself again by taking a directed
verdict, based on lack of affirmative links for her client
sitting on a sofa in front of a Lifesavers tin containing crack
cocaine, from Judge Terry Flenniken of Caldwell County.
+
WINSTON COCHRAN scored an appellate victory with John
Robert Fischer P. State, No. PD-0043-07, delivered
1/16/2008, wherein the Court of Criminal Appeals
held that a DWI cop's dictated, taped narrative of a stop
is not admissible as a present sense impression exception
to the hearsay rule.
+
In the latest installment of the ongoing saga of U.S.
v. Kevin Howard, JACK ZIMMERMANN and JIM LAVINE
persuaded the 5th Circuit to issue an order vacating Mr.
Howard's convictions and granting him a new trial, due
to an erroneous "honest services" jury instruction.
+
Five years after the motion for new trial based on
ineffective assistance of counsel was denied, BRIAN WICE
succeeded in convincing the 5th Circuit to grant writ
relief on a case where trial counsel admitted he goofed
by leaving a sheriff's deputy on the jury, but the Court
of Criminal Appeals held the trial judge did not have to
believe that uncontradicted testimony. The 5th Circuit
found this to be an unreasonable application of federal
law, since it was contrary to counsel's admission and
common sense.
+
On February 15, 2008, MARK HOCHGLAUBE wrangled a
two-word verdict out of an aggravated robbery case that
was supposed to be a slam-dunk for the prosecution.
Proving once again that he is a double threat, MARK
authored an appellate win in Rusty Bobby Russell P. State,
No. 01-07-00209-CR, delivered 3/20/08, reversed for
Judge Ellis's refusal to charge the jury on mistake of
fact . EARL MUSICK and KYLE VANCE were the trial lawyers
who preserved error.
+
The State's 30-year effort to execute John Paul Penry finally
ended with a life plea structured to guarantee that he is likely
never released from prison, thanks to a team consisting of
lead counsel JOHN WRIGHT and co-counsel FRANK BLAZEK,
JULIA TARVER MASON, DAVID LANE and DANALYNN RECER of
GRACE [and doubtless many, many others over the years].
+
Another multi-decade death case ended with a life plea
in Miller-EI v. Texas, a case involving discriminatory jury
selection by the Dallas County D.A. 's office. DOUG PARKS,
KARO JOHNSON, JIM MARCUS, NAOMI TERR, RICHARD REYNA,
DANALYNN RECER and BILL HABERN were all members of the
team that brought this to fruition.
+
NORM SILVERMAN convinced the 232nd District Court to
grant a motion to suppress evidence seized under a stale
warrant .
+
RONI MOST prepared a winning grand jury packet for his
client charged with aggravated assault with a deadly weapon
against his own son. The complainant gave conflicting
versions of the alleged event, and RONI demonstrated that
things could not have happened as described.
+
CHRISTOPHER CARLSON and JOHN FLOYD did such a great
job in a sexual assault trial in the 176th District Court
that Judge Rains actually granted a directed verdict of Not
Guilty. This was yet another case where the investigator
testified she did not need to interview witnesses other
than the complainant or view the scene, based on her
"experience. "
+
Despite not being allowed to impeach a witness with
inconsistent prior testimony, failure to charge the jury
on self-defense and on suppression of an involuntary
statement, violation of Gaskin and much more, YOLANDA
CORDY finessed a hung jury 4-2 for Not Guilty in CCCL #5
on an assault case. The visiting judge also would not allow
YOLANDA to ask the jury about the issues, even in view of
3 Dotes sent out during deliberations. MARCUS ANDROGUE
sat second, and YOLANDA also thanks HELEN SIMOTAS, GRANT
SCHEINER and TROY MCKINNEY for their help during this
frustrating experience.
+
MATT HORAK walked away with his second acquittal in the
232nd in one month when visiting judge Mary Bacon
granted a directed verdict for his client in an aggravated
assault case.
+
STEVE HALPERT got a Not Guilty on a DWI in CCCL #4 on
March 11,2008.
+
The Court of Criminal Appeals affirmed the First Court of
Appeals' ruling that the trial courterredbyinstructing the jury
on the alleged lesser-included offense offleeing or attempting
to elude a police officer in Quanell X's trial for felony evading.
STANLEY SCHNEIDER and AMANDA WEBB handled the appeal.
Quanell X Abdul Farrakhan v. State, No. PD-1984-06,
delivered March 12,2008.
THE DEFENDER "* 5
+
SANDRA MARTINEZ went in to CCCL #13 armed with
pretrial motions, case law and lots of advice, and convinced
the chief to dismiss her client's possession of marijuana
case due to lack of affirmative links. SANDRA thanks JIM
SKElTON and MARK BENNETT, among others, for their help.
We are thankful that SANDRA is still around to practice law,
after a deputy identified her in court as the prostitution
suspect during a prostitution trial in CCCL #8, where she
and WILLIAM MCCLElLAN, JR., overcame the false ID for an
acquittal for the real defendant.
+
Over a 2-week period beginning January 8, ROBYN HARLIN
achieved the no-bill of a student charged with felony
possession of a controlled substance on school premises
[client passed a Hulsey polygraph], dismissal of a carrying
a weapon case in CCCL #6, dismissal of a juvenile client's
possession of fake ID, dismissal of an accident DWI in
CCCL #10 and a pretrial diversion on a misdemeanor
possession of a controlled substance.
+
Judge Derbyshire granted a directed verdict for DAVE RYAN
after the State failed to prove the alleged act of prostitution
occurred in a public place, as charged.
+
Making us once again glad that he's now on the right side,
CHUCK NOLL heard a two-word verdict on an aggravated
sexual assault trial in the 180th on March 14,2008.
+
Even though the visiting judge denied him an Emerson
hearing on the HGN, FEROZ MERCHANT produced a Not
Guilty on a no test, no accident DWI in CCCL #11.
FUTURE WARRIORS
+
+
Mter establishing that the complainant had made allegations
against every male she had ever known, from a 10-year-
old schoolmate to her 68-year-old grandfather, ALLEAL and
JOHN PARRAS convinced the State on trial date to dismiss
charges of aggravated sexual assault of a child in the 262nd
District Court.
+
MARK BENNETT batted a home run on a DWI in CCCL #6,
even though his hero allegedly ran from the police and fell
down when he got out of his car.
+
The Court of Criminal Appeals reversed the First Court
of Appeals on a brief submitted by SHAWNA l. REAGIN in
Robinson v. State, 240 S.W.3d 919 (Tex.Crim.App. 2007),
holding that a trial court's ruling on a the merits of a pro se
motion presented by a defendant represented by counsel is
subject to appellate review.
CONGRATULATIONS TO ALL THESE
WINNING WARRIORS!
+ On March 6, 2008, JOHNNY and CARYN
JAMESand BEliNDAALSTON welcomed baby PAPANTONAKIS and big brother XANDER
daughter DREW ANN ALSTON on January added baby girl ZOE to their family.
30, 2008, at 12:21 a.m. ZOE weighed 7 lbs., 9.5 oz. and was 21"
long.
THE DEFENDER * I
THEDEFENDER]SPRING 08
THE
LIKETHE ENGLISH TRADITION FROM WHICH IT IS DERIVED,
AMERICAN CRIMINAL JUSTICE IS AN ADVERSARIAL SYSTEM.
THECRIMINAL TRIAL WITH WHICH WE ARE FAMILIAR FEATURES
ADVERSARIES ON ALEVEL PLAYING FIELD, PRESIDED OVER BY
ANEUTRAL AND DETACHED JUDGE ACTING AS REFEREE.1OUR
EDUCATION AND EXPERIENCE MILITATEAGAINST OUR IMAGINING AN
INQUISITORIALTRIALAS AN ALTERNATIVE. IFWE WANT TO SEE SUCH
ATRIAL, WE MUST LOOK TO FOREIGN NATIONS, HISTORY,OR, IN THE
PRESENT ESSAY, ART.
In the fifth installment ofthe Harry Potter series,2 the
*
protagonist is tried for acrime. The trial is in the form ofan
inquisitionratherthanan adversarial action. Let'sexamine this
trial withreference toourownexperience.
Abriefreview ofthefacts is necessary. As thestoryopens,
Harry, aged fifteen, is a student at the Hogwarts School of
Witchcraft and Wizardry in Britain. He is home with his
foster family for the summervacation. These are "Muggles,"
that is, people with no ability at the skills of wizardry.3
Harry and his cousin Dudley are beset by "dementors,"
bizarre and terrifying humanoid creatureswhosuck the souls
out ofpeople. The dementors seize the boys in an alley and
commence to vacuuming. With Dudley down for the count,
Harrywhips outhis wandand producesacharm thatputsthe
dementors to flight. The badlyshaken boys continue on their
way home.
4
a OF
But it is forbidden for a student to perform magic away
from the school, and in a few minutes, an owl delivers a
summonstoHarry:
DEAR MR. POTTER:
We have received intelligence that you performed the
Patronus Charm at twenty-three minutes past nine this
evening in a Muggle-inhabited area and in the presence
ofaMuggle . ...
As you have already received an official warning for
a previous offense under Section 13 ofthe International
Confederation ofWizards' Statute ofSecrecy, we regret to
inform you that your presence is required at a disciplinary
hearingattheMinistryofMagicat9 a.m.onAugust 12th.
Harryis therebynotifiedoftheallegation againsthim and
is given ten days toprepare for trial.
TheMinistryis asortof governingbodyofwizardswhich
has regulatory and judicial powers over the wizard world,
up to and including the power oflife imprisonment for the
most serious misuse of magic. The penalty Harry faces for
unauthorized use ofmagic by a student is confiscation ofhis
wand and expulsion from Hogwarts, effectively ending his
careeras awizard.
s
On the morning of the trial, Harry arrives at the
Ministry building in plenty oftime for a 9 a.m. docket call,
accompanied by thefatherofhis bestfriend atHogwarts.This
man is a Ministry employee, although not employed in any
judicial capacity.6His friend's father stops at the door to the
courtroomand tells Harryhe is notallowed in.
Harry is directed to a chair equipped with chains. As he
sits, the chains rattle awarning butdonotbind him.
THE DEFEIIDER * 7

The court the record. The presiding judge is Cornelius
Fudge, Minister of Magic; the two witches flanking him are
introduced as Interrogators. They are Amelia Bones, Head of the
Department of Magical Law Enforcement, and Dolores Umbridge,
Senior Undersecretary to the Minister. There is a jury of about fifty
professional wizards. A court reporter is present to make a record of
the trial .
To the utter surprise of all parties, Albus Dumbledore introduces
himself as a defense witness . He is a renowned wizard who is the
headmaster of Hogwarts school.
It is important to note here that despite ten days' notice of the
accusation, Harry has done absolutely nothing to prepare for trial.
He has neither sought nor heard advice. He has made no effort to
interview or bring witnesses to court, nor does it appear that he
has acquainted himself with the nature of the tribunal or with any
procedural or substantive law.
Before the trial starts, there has been a bit of chicanery
perpetrated against Harry. The Ministry has changed the time of the
trial to 8 a.m. The Ministry claims that they have that very morning
sent a notice of the change by owl, but Harry did not receive it'?
There is an interruption and a side issue is developed; one of the
Interrogators, Bones, is intrigued by the idea of a mere fifteen-year-
old student wizard conjuring a Patronus. Harry testifies that he can
indeed do so, and the Interrogator allows that this is "impressive.
Harry takes advantage of this exchange and tries to seize the
initiative.
THE DEFENDER *8
AN INDICTMENT IS READ OUT FROM APARCHMENT:
International

.
interrogation of Harry begins
cross-examination
"You are Harry James Potter, ofNumber Four,
Privet Drive, Little Whinging, Surrey?" Fudge said,
glaringatHarryoverthetopofhisparchment.
"Youreceivedanofficial warningfromtheMinistry
forusingillegalmagicthreeyearsago,didyounotl"
"AndyetyouconjuredaPatronusonthenightof
the secondofAugust?" saidFudge.
"Knowing you are not permitted to use magic
outside school while you were under the age of
seventeen?"
"Knowing that you were in an area full of
Muggles?"
"Fullyaware thatyouwereincloseproximitytoa
Muggleatthattime?"

"I did it because of the dementors! " he said loudly, before
anyone could interrupt him again.
Bones seems interested in hearing him out, but the
Minister abandons any pretense of impartiality:
"Ah. Yes. Yes, I thought we'd be hearing something
like this . . .. He's been thinking it through and decided
de mentors would make a very nice little cover story . . .. So
it's just your word and no witnesses ... a very well-rehearsed
story .. . "
Now Dumbledore breaks silence. He informs the court
that the defense does indeed have a witness present. The
Minister is discomfited but recovers and objects on grounds
of time:
"We haven' t got time to listen to more taradiddles, I'm
afraid, Dumbledore. I want this dealt with quickly-"8
But Dumbledore cites a Charter of Rights for the
proposition that the accused has the right to present witnesses
in his defense. The witness is allowed to testifY. At the
conclusion of her testimony, the Minister comments on the
weight of the evidence:
"Not a very convincing witness," said Fudge loftily.
The Interrogator, Bones, finds the witness credible. The
Minister then tries to hold that the behavior of the dementors
is not relevant. But Dumbledore is ready with a statutory
defense and a proffer of admissibility:
" . . . [T]he presence of dementors in the alleyway is
highly relevant. Clause seven of the Decree states that magic
may be used before Muggles in exceptional circumstances,
and as those exceptional circumstances include situations that
threaten the life of the wizard or witch himself, or witches,
wizards or Muggles present at the time . . . . "
This is of course the heart of Harry'S defense; the Decree
provides for use of magic in self-defense and in defense of third
persons.
9
Now the Minister tries to introduce extraneous offenses,
for the purpose of showing Harry'S bad character.
10
These are
allegations of Harry'S previous misuse of magic to produce a
Hover Charm, to inflate his aunt into a human balloon, and
certain unspecified misdemeanors while at school. Dumbledore
offers to call a house-elf instanter to refute the Hover charge;
he notes that the Ministry let Harry off with a warning for
inflating his aunt;ll and he challenges the jurisdiction of the
court over misdemeanors occurring at Hogwarts. Dumbledore
further raises a blanket objection to extraneouses, which are
not admitted, and then rests.
A few jurors vote to convict, but most vote not guilty.
Harry is acquitted.
*
Let'sanalyzetheprocedure.
First, Harry has notice of
the alleged offense in the
summons,andsometime to
prepare for trial. Although
a copy of the indictment
was not served along with
the summons, itselfgive him
notice ofthe contents ofthe
indictment.
The indictment
12
elements not at all foreign
to the Texas practitioner. There are allegations ofa culpable
mentalstate,aprohibitedact,adateuponwhichitwasallegedly
committed, and even a sort of jurisdictional enhancement
allegation. Like a Federal indictment, it names the statutes
allegedlyviolated.Theonlythingmissingis avenueallegation,
and possibly the name ofthe Muggle in whose presence the
offense was committed, but at any event, the defense makes
noexception tothe indictment.
13
The court appears to be regularly constituted, not some
extraordinary ad-hoc tribunal. It is called the Wizengamot.
TheWizengamotis muchmorethanacourt; itis noless than
the wizard parliament. The presiding judge is the Minister of
Magic himself. Sittingas acourt,ithas more-or-less thesame
criminal jurisdiction as ourdistrictcourts.
There is a basic separation of powers problem in the
structure ofthe court. We are not told in the books much in
THE DEFENDER *' 10
thewayofdetail ofMinistryorganization, however, it appears
that the functions ofthe legislative,14 executive and judicial
branchesare combinedin oneinstitution. Inotherwords, the
Ministeris anexecutivewhoalso hasthepowerof punishment.
Thisis foreign tooursystem,whichembodiestripartitetheory
ofgovernment.
15
Althoughit maybearguedthatHarry'Strial
is merelyan administrative hearing, theproceedingis referred
to as a "full criminal trial."
Perhaps the most foreign aspect is the inquisitorial
method used to develop the evidence. This is perhaps the
fundamental distinction betweenwizard and Mugglecriminal
jurisprudence. The Minister rules on the admissibility ofthe
evidence, but also crossexamines the witnesses to prove a
casein-chief. The Head ofthe Department ofMagical Law
Enforcement-a sort of wizard Attorney General-acts as
Interrogatorbutalso passes onthecredibilityofthewitnesses.
It is impossibletotellwhereoneroleendsandanotherbegins.
Anotherodd feature is the fact that the Minister and the two
Interrogatorsvote alongwith thejury.
Although thereis aCharterofRights thatappears tohave
a status similar to our Bill ofRights, it is notat all clear what
rights it grants to the accused. There appears to be no right
to a public trial.
16
We know that there is a right to present
defense witnesses, and we can deduce from Dumb1edore's
threat to produce the house-elfthat there is some sort
ofcompulsory process.
17
We do not know if there is
a right to counseJ.l8 Ifthere were, it is reasonable to
expect thatthecourtwouldinquireofHarry,astudent
aged fifteen, if he desired a lawyer, but it is never
discussed. Ontheotherhand,whenDumb1edoreactsas
defense counsel, theMinistermakes no objection,and indeed
acquiescesand treatsDumb1edoreexactlyas he wouldtreatan
attorneyofrecord.
We can infer that there is a presumption ofinnocence,
because the Ministerquestions Harryin anefforttodrawout
incriminating statements, rather than assuming that Harry is
guiltyunless he can explain himself.
We are not told directly whether Harry has the right
against self-incrimination.
19
The court arraigns Harry and
immediately begins hostile examination. Harry acquiesces
in the Minister's questioning. The Minister makes no effort
to call any witness butinstead relies on Harry's testimony to
establish the elements ofthe Ministry's case. This procedure
stronglysuggests that there is nothingin the Charterlike the
FifthAmendment.
It appears that there is no separate system ofjuvenile
justicein thewizardworld. Anydistinction betweenadultand
juvenile crimes may be reflected in the penalties. Whatever
rightstheChartergrantstoadults,itseems tograntto minors
as well.
20
Either because ofhis age, or the relative lack of
seriousness ofthe offense, Harry is served a summons rather
than arrested pursuant to a warrant, and is not bound to the
chairduringthe trial.
21
There is no voir dire process for jury selection.
22
The
juryis already assembled whenHarryenters the courtand he
has no role in theirselection. Thejurors are theWizengamot
council and therefore thevenire pool is not randomly chosen
from the general population ofwizards.
TheMinistercasuallyexhibitsbehavior,suchaspre-judging
the credibility of witnesses yet unheard, and commenting
on the weight of the evidence, which casts doubt on his
impartiality. This seems to be normal behavior for the
presiding judge. There are numerous instances ofthis in the
record, and had it occurred in a Texas court, an appellate
lawyerwould have a field day.23
On the bright side, it appears that the Interrogators
are not necessarily toadies ofthe Minister. The Interrogator
Bones,HeadoftheDepartmentofMagicalLawEnforcement,
is no friend of the accused, but she does not hesitate to
disagree publiclywith the Minister over his assessment ofthe
credibility ofthe witness, and she steers the examination in
directionsshe wants it to go.24
Thetrialisapparentlyabifurcatedproceeding.Dumbledore
is successful in keeping out extraneouses which might be
admissible onpunislunent,butnotonguilt. Thejuryis asked
only tovote on guiltatthisstage.
There may not be a requirement of unanimity in the
verdict.
25
All we know is that a few jurors vote to convict,
most vote to acquit, and the court's judgment reflects an
acquittal.
*
The proceeding under which Harry is tried is not entirely
without virtues. It is not to be lumped in with Hitler's
"People's Court" (Volksgerichtshof) or the Stalinist
show trials. Defendants have some rights familiar to the
Anglo-American practitioner. But there is enough missing to
suggestthatwizards have reason toworryaboutcivil liberties
in Potterworld. Perhaps those wizards concerned about
individual liberties should look to the Muggle courts ofthe
UnitedStates for guidance.
1 "IntheTexasadversarialsystem,thejudgeisaneutralarbiterbetweenthe
advocates;heis the instructorin thelawtothejury,butheis notinvolved in
the fray." Brownv. State,122S.W.3d794(Tex. Crim.App. 2003).
2 J.K Rowling, Harry Potter and the Order of the Phoenix (2003).
3 Theterm"Muggle"is notpejorative.
4 Rowling,Ql2,.QL, chapter1.
5 .l.\l,chapter2.
6 .l.\l,chapter8. Theeventsof thetrialarerelatedpassim. Thechaptergives
acompleterecordofthe trial.
7 ReadersfamiliarwiththestorywillunderstandthattheMinistryhad made
itapriority todiscreditHarry,for reasons ofhighest-level politics.
8 Texas law does indeed allow exclusion ofevidence "by considerations of
unduedelay," Tex.R. Ev. Rule403.
9 Tex. PenalCode9.31 and 9.33.
10Extraneous bad acts introduced solely to show character conformity is
ordinarily inadmissible at the guilt stage ofthe trial. Tex. R.
Ev. Rules 401,402,403 and 404;Montgomeryv. State,810S.w.2d 372
(Tex. Crim. App. 1990)(en bane);Rankin v. State,974S.W.2d 707 (Tex.
Crim. App.1996)(enbane).
11 "Fighting words;" Harry's Aunt Marge had said, with reference to
Harryand his deceased mother, "You see it all the time with dogs. Ifthere's
somethingwrong with the bitch, there'll be somethingwrong with thepup
-" J.K Rowling, Harry Poller and the Prisoner ojAzkaban (1999), chapter
2.
12 I use the term "indictment" loosely. There is no reference to anything
resembling a grand jury. Probably the formal charge is more akin to an
information.
13 It is doubtful Harry could have shown harm, even had he excepted to
the indictment. Golliharv. State,46S.w.3d 243 (Tex.Crim. App. 2001) ;
Fullerv. State,73S.w.3d250(Tex. Crim.App. 2002).
14The onerous "educational decrees" after school starts are issued in the
name oftheWizengamot. Rowling, Order ojthe Phoenix, chapter17etseq.
15Montcsquieu,Del'Espritdes Lois(1748);JamesMadison,FederalistNo.
47 (1788); U.S. Const. arts. I, II, III; Texas Const. art. II, 1;Meshellv.
State,739S.W.2d246(Tex. Crim. App. 1987).
16U.S.Const. amend.VI; Tex. Const. art .I, 10.
17.l.\l
18.l.\l
19U.S.Const. amend. V; Tex. Const. art.I, 10.
20Fundamental constitutional guarantees apply to juvenile defendants, In
reGault,387U.S. 1,87S.Ct. 1428,18 L.Ed.2d 527(1967).An excellent
discussion with bibliography is found in Lanes v. State, 767 S.W.2d 789
(Tex. Crim. App. 1989)(en banc)(juvenile arrest must be based onprobable
cause).
21 In contrast to the handling ofaccused adult wizards elsewhere in the
books. See, e.g., J.K Rowling, Harry POller and the Goblet oj Fire (2000),
chapter30.
22 Tex. CodeCrim. Pro. art. 35.17; Chapter 35 generally.
23The trial courtimproperly comments onthe weight ofthe evidence if it
makes a statement that implies approval ofthe State's argument, indicates
disbeliefinthedefense'sposition,ordiminishesthecredibilityof thedefense's
approach to the case. Clarkv. State, 878 S.W.2d 224 (Tex. App.-Dallas
1994,no pet.).Agooddiscussion is found in Simonv. State,203 S.W.3d
581 (Tex. App.-Houston[14th Dist.)2006,nopet.).
24The other Interrogator, Umbridge, is indeed a toady ofthe Minister.
Immediatelyafter the trial, she is installed as Inquisitor over Hogwartswith
dictatorial powers. Rowling, Order oj the Phoenix, chapter15.
25The Texas Constitution has been interpreted to require a unanimous
verdict in felony cases, and statutes require one in misdemeanors, Ngo v.
State, 175 S.W.3d 738 (Tex. Crim. App. 2005)(en banc) (citing Francis
v. State, 36 S.W.3d 121 (Womack, J., concurring) (citing Tex. Const. art.
V, 13;Tex. Code Crim. Proc. Ann. arts. 36.29(a), 37.02, 37.03,45.034-
45.036 .TheU.S. Supreme Courthas held thatunanimityinstate verdicts
is notrequiredby theU.S. Constitution,Apodacav. Oregon,406U.S.404,
92S.Ct.1628,32L.Ed.2d 184(1972).
THE DEFENDER * 11
Easy Steps TO YOUR
FI RST Habeas Writ By Patrick F. McCann
THE FOllOWING IS PROVIDED AS ASIMPLE WAY TO ORGANIZE YOUR WORK WHEN YOU ARE DOING AHABEAS
WRIT UNDER ARTICLE 11.07 OF THE TEXAS CODE OF CRIMINAL PROCEDURE. IT IS NOT INTENDED AS A
LEGAL REFERENCE, NOR AS AN INSTRUCTIONAL GUIDE. HOWEVER, ON THE "KEEP IT SIMPLE STUPID" OR
KISS THEORY, THE AUTHOR BELIEVES THAT THIS COULD BE AUSEFUL GUIDE PARTICULARLY TO THOSE WHO
DO NOT TYPICAllY DO HABEAS WRITS AND WHO MAY BE ASKED TO WRITE ONE FOR ACLIENT. GOOD LUCK!
STEP 1
Don't panic! Writs of habeas corpus are essentially a
way to attack the fundamental fairness of a person's conviction
and restraint of liberty. They are ancient remedy, and they are
covered in Texas State Courts by Article 1107 (and 11071)
and the Texas Code of Criminal Procedure.
STEP 2
Read the statute. I know this sounds silly, however, the statute
has a lot of useful things that can help you and organize your
thoughts and your legal research.
STEP 3
Interview the client . Trus is not a standard pretrial interview.
You are not trying to gauge a defense at this point. You
are instead trying to figure out wruch of the constitutional
grounds that are available to a habeas petitioner you can use.
Typically, the grounds you will encounter most often are
incompetence, insanity, and ineffective assistance of counsel,
5th and 6th Amendment violations and occasionally cruel and
unusual punishment under the 8th Amendment. These are
not, repeat not, items that were available at trial otherwise
someone would have raised them on direct appeal. Your job
in doing a habeas is to reinvestigate the case and find out
if there were grounds under the Constitution that acted to
make your clients confinement illegal. To that end you have
...., to go back and investigate the clients medical rustory, service
records, school and disciplinary records . If he has prior prison
time speak with the attorney at both trial and appeal, talk
with jailers, schoolteachers, and family members and possibly
obtain the services of a mental health professional and/or an
investigator. You are not looking to come up with something
to convince a jury; instead you are trying to convince the
Trial Court and the Court of Criminal Appeals by developing
something they did not know about, that this man was not
given a fair trial .
THE DEFENDER * 12
Habeas IS ACOMBINATION OF GOOD
DETECTIVE WORK AND LEGAL BRIEFING SKILL.
STEP 4
Get the client to sign releases for his entire life. They include
releases and letters indicating that the trial and appellate
attorney have to cooperate with you and turn over their files;
releases for school records, service records, prison disciplinary
and medical records, mental health records, work records, etc.
You have to develop facts that were not put in at trial . Many
times the only way to establish these things is by getting releases
from the client and filing requests for information under
either the Open Records Act or the Freedom of Information
Act. These records are crucial to developing claims such as
incompetence or insanity. We were able to obtain medical
records from one client's time in the marines that indicated he
suffered a traumatic brain injury during bayonet and punjee
stick practice. This never would have come to light without
the releases and the records request.
STEPS
Get and obtain the record and read it. Everything in the trial
record including pretrial settings, docket sheets, post trial
hearings and motions, and the appellate brief are important.
You are going to have to look at areas and read between
the lines to figure out what may not have been in the trial
record that you can develop. You may need to talk with the
jurors, particularly if you are faced with a client who was
unusually unpopular or has a history of illness, or if there is
any indication from either juror notes, the polling or any side
bar that was recorded, that there was some irregularities in
the jury, in either the jury selection or the jury deliberations .
You may need to file a motion if it is a recent case to unseal
the jury information records.
STEPS
Establish a relationship with the trial attorney and the appellate
attorney. You do not always have a claim of ineffective
assistance of counsel. If you approach the trial attorney and
the appellate attorney in a frank and forthright manner and ask
their opinions about the case this can go a long way toward
diffusing hostility. Most defense attorneys have no desire to
injure their client or to do anything other then be helpful .
They want to help your guy. They don't want to do it if it
means they are going to be attacked without grounds or have
their professional reputation smeared. Their cooperation,
perceptions, and access to their files are critical to you being
able to create an effective application for habeas relief. As
Grandmas says "You get more flies with honey than you do
with vinegar".
STEP 7
Make an investigation plan. After reading the record, talking
with the client, getting the releases and talking with the
attorneys you should have a picture of the case, not just the
trial but the case as a whole. You should be starting to ask
yourself questions such as, was my client really in his right
mind before or during the trial? Was there someone else
involved in this case who was never charged or never appeared?
Was there a witness who's testimony was untruthful? Is there
some indication that a juror or jurors may have come to
their deliberations improperly? Is there some evidence out
there that would establish that my client is actually innocent
of the charge? Am I sensing that there was some prosecutor
misconduct in this case?
Once these issues start popping up in your mind you
need to figure out how to prove them. This is the fun part
of habeas work. Habeas is a combination of good detective
work and legal briefing skill . You have to figure out how to go
about presenting evidence to the court in the form of records,
affidavits, sworn statements or any way you can to convince
the court that you are entitled to relief. As an example: if you
believe that there is a mental health issue (a not infrequent
occurrence with our clients) that was not raised at trial or
not developed sufficiently, then you could consider additional
releases and requests for records in order to provide as much
medical documentation as possible and get the assistance
of a mental health expert both to evaluate your client and
to evaluate the records and what they show. That mental
health expert can then deduce his conclusions and results of
his examinations to an affidavit that can be attached to your
THE DEFENDER * 13
to evaluate the records and what they show. That mental
health expert can then deduce his conclusions and results of
his examinations to an affidavit that can be attached to your
application for your habeas relief. If your application results
in an evidentiary hearing then that mental health expert's
testimony and the ability to introduce records in as evidence
may be key. If you have an investigation plan all of this goes
much more smoothly and gives you an outline to focus on.
STEP S
Put down on paper what grounds you are claiming.
This is a very effective way to test yourself and see if you
can actually prove what you are claiming. Under each claim
of relief outline what types of proof you have to back it up.
Remember, the line from the movie "A few good men", "It
doesn't matter what I believe - it matter what I can prove."
Remember the burden is on you to establish that your client's
restraint of his liberty is unfair and unconstitutional. You have
to show the courts that he is incompetent not simply raise it
as a potential defense. You have the burden. If you are raising
insanity it must rise to the level of insanity. If you are raising
competency at the time of the trial it must rise to that level
and since the legal test for competency directly relates to the
clients ability to help the lawyer and the client's understanding
of the nature of the charge, the lawyers affidavit here would be
a key. If you are raising ineffective assistance of counsel on any
attorney do not simply raise it without some kind of evidence
or proof. This leads me to my next point.
STEP 9
Get affidavits from the people involved in this trial including
trial attorneys and the appellate attorney. Let's be clear on
this - one of the principal reasons that ineffective assistance
claims fail is that the moving party doesn't get any affidavit
from the person who was suppose to have been ineffective or
from a person who knew the person that was with them at
trial and saw what they did. As soon as an application raises
a claim of ineffectiveness that is unsupported by the trial or
appellate counsel's affidavits the District Attorney's office
takes them into their warm embrace and shows them how to
defeat the evil client and bad writ attorney who are attempting
to besmirch their professional reputations. Let me suggest
another tack to take: if instead of simply raising the issue and
claiming with the help of a client, with a clients affidavit, which
may be less than credible that an attorney was ineffective
what if you were actually able to go speak with the attorney
and show them that if only the court had permitted adequate
resources that they wouldn't have been ineffective? Resources
like an investigator, or a mental health expert who could have
realized these claims. What if you were able to show that
much of these new pieces of evidence you are developing
were things that could not have been revealed through
diligent investigative work at the time because for instance
they involved recantation by a states witness, or evidence that
the prosecution withheld, what if you could show the defense
attorney or the appellate attorney that there were things they
were kept from them? In all fairness often time's people are
attacked without good grounds in habeas writs for things
that they simply did not know. The other thing you have to
consider when raising a claim of ineffectiveness is that there are
some issues that you are simply not going to be able to present
except by saying that it is ineffective counsel for either the trial
counsel or the appellate counsel to fail to raise it therein they
may have made a call or they may just not have been aware ofit or
they may not have been able to develop a record such that it was
at the time. The point is that you cannot look at ineffectiveness
as an attack on a lawyer; you have to look at it as a check on a
system where people are held wrongly.
STEP 10
Pay attention to the time lines ofthe anti-terrorism and effective
death penalty act of 1996. This is a federal act that limits
federal review of state convictions and federal convictions as
well. After direct appeal the general consensus is that you have
a one-year time limit to bring a state habeas action in order
to toll the one year statutory limit. The time line is generally
considered to be either the time that the supreme court of the
United States refuses a petition for writ of certiorari, or the
90 days following the mandate of affirmance from the Court
of Criminal Appeals during which you can bring a petition for
Writ of Certiorari . This time line is a significant hurdle and
if your client has any hope of preserving a claim for federal
review under 28 USC Section 2254 then you must bring that
action within the one-year time limit.
STEP 11
After you got you issues briefed and researched your evidence
collected, so you can attach it to your application remember
that your client needs to verify the application under Article
1107. You must get him or her to sign and swear that all the
allegations contained therein are true. Failure to do this could
result in a dismissal of your claim. You also need to make sure
that you attach copies of the judgement and sentence because
under Article 1107 there must be some evidence of a restraint
order or an order of confinement that fulfills the requirement
of a legal restraint.
THE DEFEIIDER * 14
I HOPE THIS PROVIDES YOU WITH SOMETHING USEFUL. POST CONVICTION HABEAS WRITS ARE
CHALLENGING AND CAN BE ALOT OF FUN. YOU GET TO PLAY PART DETECTIVE, PART APPELLATE
ATTORNEY AND PART TRIAL LAWYER. THESE COMBINATIONS OF SKILLS CAN CHALLENGE YOU
AND GIVE YOU ANEW APPRECIATION OF HOW TO AVOID PROBLEMS IN YOUR OWN PRACTICE.
STEP 12
Don't think your job is done yet . After you file the
application the District Attorney's office will get a
copy and then will file its response. They will probably
also -file a proposed designation of a fact issue to be
resolved if it believes there is one. Frequently these fact
issues involve mental health, prosecutorial misconduct,
or in effectiveness of counsel. It is important here in
order to preserve your clients rights of review that you
also request designation of fact issues that you believe
warrant development either through further discovery
or evidentiary hearing. It is also important that you
request an evidentiary hearing or further discovery at
every opporturuty so that you may preserve any federal
review that you have.
STEP 13
Prepare for an evidentiary hearing. If you get a hearing
granted do everything you can to prepare for it,
keeping in rillnd that the burden is on you to prove by
a preponderance of the evidence that a constitutional
violation occurred or in a case of actual innocence
that your client was not guilty by presenting clear and
convincing evidence such that the court would not
have faith in the underlying verdict . It is important to
develop a record here to make sure that everything is
recorded.
STEP 14
If you have been through the court proceedings below
had an evidentiary hearing or been de rued one and the
court has recommended that your relief be derued the
final decision is still the Court of Criminal Appeals.
Don't forget at this stage you still have options. You
can ask for oral argument, submit briefs to point out
why you believe the trial court was wrong, or request
consideration and provide alternatives including your
own proposed findings of fact and conclusions of law.
Make sure you object to any proposed findings that the
court adopts if they go against you.
STEP 15
Don't forget to ask for help. Some of the best habeas
practitioners in the state are located in and around Harris
County and they have generally always been willing to
answer questions or help new people get into this area
or do a writ. If you carmot find someone local who has
done them and can advise you then try and get hold of
the PCDLA or your local bar association to see if you
can be referred. If that fails, then just keep asking until
you find a person who can assist you. Two heads are
always better than one, and two sets of eyes never hurt .
(patrick McCann can be reached at (713) 223-3805 - 909 Texas, Ste 205 Houston, Texas 77002)
THE DEFENDER * 15
D PLUS THIRTY
16. _ IfDAagrees to voluntary re-test, prepare
transmittal orderfor shipmentto your expert
17. _ Ifnoevidence totest, don'tbelieve themand
repeatfirst fifteen steps
18. _ If17is actually true,makecertain affidavits in
place, write clienttoprepare them for badnews,
and prepare agreed findings for court tosign
19._ Ifthereis stufftotestand DAopposes test,
prepare lengthyaffidavit as toall the underlying
reasonswhy your guydid notdoit,and attach
all extraneouspieces ofinformation [ORcopies,
photos,witness statements, record excerpts, etc]
thatsupportit, and file withcourtas partofthe
Motionfor testing
TREAT THIS AS AROUGH DRAFT OF THE WRIT
THAT WILL NEED TO FOLLOW IF YOUR GUY IS
ACTUALLY CLEARED.
20._ File and requesthearingdatefrom court.
Whenever court orDAgetaround todealingwith
yourpeskyrequest
21. _ File briefin support,keep itshort
22. _ File NoticeofAppeal ifdenied testing
23._ Iftestingis granted, file orderfor transmittal as
in # 16
24._ When testingresults come back, again ask
clientwhythis DNAcontinues to be him
25. _ IfDNAactually [oreven arguably] clears
client,oritdoesnotsupportconviction, file 11.07
CHECKLIST forDNA CASES
By PatrickF. McCann
D PLUS FIVE
1. _ Write clientand gettheirversion ofevents
2. _ File OpenRecords requestfor DA's file and any
LEAfiles youknowabout
3. _ Pull and copy Clerk's file, checkouttrial record
iftherewas oneprepared forappeal. Read trial
record.
4._ Call andinterviewtrial attorneyre; a.)
identification b.) typeofcrimec.)issue onguilt/
innocence d.) request to review file
5. _ Call the clerk'soffice for any physical evidence
maintained,andinspect
D PLUS TEN
6. _ Prepareorderfor Preservation ofForensic
Evidence,file andserve onall parties
7. _ Prepareobjections to anydestructionofforensic
evidenceandfile
8. _ Considerfiling requestfor Bradyv. Maryland
disclosure
9._ Makeappointmentwith DA/LEAtocopy
andobtainall relevantinfo,especially OR,photos,
evidencecustodylogs, scenevideo, testresults, etc.
10. Writeclientandobtainreleases for his files
andall personal records and follow upwithspecific
questions. Call/interviewwitnesses andif needed
getaffidavits [alibi, mistaken ID,etc.]
D PLUS TWENTY
11._ Considerwhether toapproach DAreo
voluntaryre-testing. Ifalreadydone, ask clientwhy
the DNAstill comesback tohim. :)
12._ Identifyand alertandprice expertfor retesting
orreviewoftestingprocedures
13._ Prepare discoveryorderfor court reoprior
testingproceduresorfor untesteditems
14._ Demandaffidavits from all whinyLEA
personnel whoswearthis stuffis notaround/lost/
eaten by packs ofrovingdogs/soldto foreign
country
15.__Ask clientwhyhis claim ofconsensual sex
withfourteen yearoldis helped by DNAtesting
THEDEFENDER] SPRING 08
THE

On February 19, 2008, HCCLA co-sponsored a pre-primary
debate among the Republican contenders to replace Chuck
Rosenthal as Harris County District Attorney. South Texas
College of Law and KHOU Channel 11 joined us as partners,
and the debate was held at the law school. Democratic nominee
C.O. "Brad" Bradford was invited, but did not participate.
Greg Hurst, anchorman for Channel 11 news, moderated the
debate. The candidates, Jim Leimer, Pat Lykos, Kelly Siegler and
Doug Perry, fielded questions submitted online to KHOU and
through HCClA Each candidate was given the opportunity to
APPROXIMATELY 250 PEOPLE ATTENDED THE DEBATE AND
HTTP://WWW.KHOU .COMIVIDEO/NEWS-INDEX.HTML
answer each question, except for a segment where in each candidate
got to direct a question to the candidate ofhis/her choosing.
HCCLA Board member Earl Musick originated the idea
for the debate, and he and daughter/law partner/HCCLA
Vice-President JoAnne Musick worked tirelessly to
put it together in record time. Sheila Hansel of STCL
provided invaluable assistance before and during the debate.
Tate Williams, Steve Halpert, Feroz Merchant and Mark Bennett
all acted as escorts to the debaters, helping them with various
logistics for the evening and assuring their overall comfort.
COUNTLESS OTHERS HAVE VIEWED IT ONLINE AT
THE DEFENDER * 17
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Motion
OF THE Moment I By Patrick F. McCann
NO. 968719-A NO. 740416-A
In The Court Of Criminal Appeals In The 230th Judicial District Court Of
No. Ap-74-983 Harris, County Texas
Ex Parte Calvin Letroy Hunter
MOTION TO RECUSE JUDGE KELLER UNDER T.R.A.P. 16
COMES NOW, the Applicant by and through his undersigned appointed counsel
of record, Patrick F. McCann and offers this, his Motion to Recuse Judge Keller.
In support thereof he would show this Honorable Court the following:
That complaint is still pending before the
Judicial Conduct Commission. As such
this creates an appearance of bias and is a
The Applicant's undersigned counsel ground forrecusal under clearly established : This complaint will likely not be resolved
was a signatory, like several hundred : state and federal law. When a judge is : in the next several months, and in the
other lawyers, on a judicial complaint shown to have some basis for rendering : interest of fairness , the Applicant asks
filed against Judge Keller for her : biased judgment one must presume : that Judge Keller be recused from any
actions regarding the execution of the process was impaired, regardless of and all proceedings associated with
Michael Richard. the motivation. Vasquez v. Hillery, 474 : this cause.
U.S. 254, 263 (1986). See Bracy v.
Granunerly, 520 U.S . 899 (1997); see also
Johnson v. Mississippi, 403 U.S. 212
(1971).]
FOR THESE REASONS,
the Applicant respectfully prays that this Honorable Court will grant this Motion to Recuse and that
Judge Keller will remove herself in all proceedings associated with this cause in any and all other
matter in which Mr. McCann is counsel of record.
Respectfully submitted,
Patrick F. McCann SBN: 00792680
909 Texas Ave #205 Houston, TX 770021 713-223-3805 1 713-226-8097 FAX
CERTIFICATE OF SERVICE
r hereby affirm a true and correct copy of the following has been served on the Office of the Harris County District
Attorneyis office via first class mail at 1201 Franklin, Houston, Texas 77002, on , 200__.
Counsel of Record
THE DEFEIIDER *" 20
FROM THE
Shawna L. Reagin, Editor
One of several interesting developments to stem from Chuck
Rosenthal's unprecedented fall from grace has been the forced
dialogue concerning allegations of both institutional and
personal racism within the Harris County District Attorney's
Office. After Chuck's emails were revealed to include some
utterly tasteless missives about women and African-Americans,
we learned about inner-office code words and de facto policy
encouraging the racially discriminatory use of peremptory
challenges to rid jury panels of African-American venire
persons. These were hardly revelations to lawyers who have
practiced in Harris COW1ty courts, but for the first time the
issue was broadcast to the citizenry at large. Republican
D.A. candidate Kelly Siegler's actions in the capital retrial of
Howard Guidry fanned the flames of suspicion, when it was
reported that she justified the strike of a black male juror by
claiming an agreement with co-counsel to eliminate any and all
members of Lakewood Church, while failing to strike at least
two Caucasian members of the same congregation.
At the candidates' debate sponsored by HCCLA, KHOU-
TV and South Texas College of Law, Ms. Siegler noted that
defense coW1sel's Batson challenge had been overruled by the
trial judge, suggesting that this vindicated her conduct. As the
transcript illustrates, the visiting trial judge realized that the
prosecutor had offered at least one patently pretextual reason
for striking the juror, but he still refused to grant the defense
motion. Given the claimed "proprietary" relationship between
the D.A.'s office and the present judiciary, this apparent shifting
of the burden to the bench is problematic.
The United States Supreme Court has recently again
confirmed that it is serious about enforcing its holdings in
BtJtson in Snyderv. LouisiIJ7UJ, 128 S.Ct.1203
(2008) . Snyder was a 2-day-long death penalty case where the
prosecution struck all five ofthe blacks who survived challenges
for cause. The prosecutor's reason for striking one of the black
jurors was a resolved scheduling conflict, despite accepting
white jurors who had more compelling conflicts. As the Court
points out, this disparate treatment signals p-r-e-t-e-x-t, for
those who remain unclear on the concept.
Snyder is disturbing in that it invites continued reliance
on demeanor, both of the juror and of the lawyer exercising
the strike. Demeanor calls are entirely too subjective, and offer
the perfect subterfuge for those of a mind to discriminate,
since the cold record cannot reflect how a person looks. A few
years ago, one trial judge repeatedly interrupted a trial to claim
that the sole minority juror was "falling asleep;" when defense
counsel countered this observation, the trial judge lined up all
of her employees and had them state on the record that the
judge was correct. If the defense is going to be gang-banged
on demeanor calls to protect discriminatory strikes, then
it will definitely become necessary to videotape all voir dire
proceedings - an idea whose time is long overdue, anyway.
The fact that a trial judge rules in favor of the State no
more bleaches the stain from the racially discriminatory use
of peremptories than does the recent rubberstamping of this
behavior by the appellate courts. Instead, this attitude signifies
the chickens come home to roost: By excusing blatant Batson
violations for the past several years, Texas courts have created a
prosecutorial mindset that believes any rule violation that does
not cause a conviction to be reversed is acceptable. "Win at any
cost" has become prescription rather than proscription.
It is not the trial court's obligation to sua sponte seat any
minority juror who has been peremptorily struck by either
party, as has also been hinted by lawyers who should know
better. However, the events of the past few months should
serve as a wake-up call to the judiciary to cast more than a
jaundiced eye to Batson challenges and not to automatically
rule in favor of the State while ignoring arguments proffered
by the defense. It has become evident that many prosecutors
throughout the nation do not W1derstand Batson, perhaps by
virtue of being brainwashed throughout their legal careers to
believe that minority jurors think and react in a stereotypical,
monolithic manner that precludes guilty verdicts. Many of the
Harris COW1ty judges who are the direct product of the D.A.'s
office and had minimal, if any, defensive or appellate experience,
have been loathe to extend thoughtful consideration to the
State's discriminatory use of peremptory challenges.
It should not be sufficient for either prosecutors or trial
judges to define their conduct in terms of whatever is the
minimum with which they can get by without inviting a
reversal. One never knows when legitimate appellate review
will resurface.
Thetimesmay be a-changin.'
* The Editor's opinion is purely personal, and in no way reflects the viewpoint or position of the Harris Counry Criminal Lawyers' Association.
-raE DEFENDER "* 21
THEDEFENDER]SPRING 08
7
HOLIDAY P
HCCLA'sannual HolidayParty,vas December6,2007,atTheSocial
onWashington. Turnoutwas spectacular, as was theweather, which
easily accomodated the Carraba'scateringserved onthe patio.
In addition to all the usual fun and games, HCCLA raised S700 for its
adoptedsoldiersinIraq: G Company, 3rdSquadron,2ndStrykerCalvary
Regiment, 1stArmored Division. The group plans to use the money to
buyasetofweights. HCCLAwill continueitsfundraisingonthesoldiers'
behalfat the annualbanquetonMay8,2008.
THE DEFENDER "* 22
HOLIDAY COMMITTEE
T.B. Todd Dupont, II
Tucker Graves
Q. Tate Williams
UNDERWRITERS
Corlar Law Offices
Guerra & Farah, PLLC
Habern, O'Neil & Buckley, LLP
Steven H. Halpert
Musick & Musick, LLP
Robert A. Scardino, Jr.
SPONSORS
Sam Adamo
Adrogue Law Firm, PLLC
James Alston
Gilbert J. Alvarado
Mack Arnold
Brad Beers
Mark and Jennifer Bennett
Thomas S. Berg
Dean M. Blumrosen
Adam Banks Brown
Sean Buckley
Jay W. Burnett
Christopher L. Carlson
J.L. Carpenter
Arnold S. Cohn
Paul J. Coselli
M. Fox Curl
Eric J. Davis
Nicole DeBorde
Gordon Dees
C. Logan Dietz
Christopher Downey
Jeffrey Downing
T.B. Todd Dupont, II
Danny Easterling
Robert Eutsler
Robert J. Fickman
Kevin D. Fine
Trent Gaither
David L. Garza
Lori J. Gooch
Tucker Graves
Juan L. Guerra, Jr.
Allen J. Guidry
Ronald N . Hayes
Thomas M. Henderson
Hinton Bailey Bond, LLP
Bo Hopmann, III
Barbara Hudson
Dane Johnson
Leslie Johnson
Kahn & Harrison, LLP
Randall L. Kallinen
David W. Kiatta
CENSORED
CENSORED
Vivian R. King
Paul A. Kubash
Jim Lindeman
Robert K Loper
Scott J. Markowitz
Jani J. Maselli
Patrick F. McCann
Don E. McClure, Jr.
W. Troy McKinney
Feroz Merchant
David D. Mitcham
Gerardo S. Montalvo
Roni M. Most
REASONABLE DOUBT
Doug Murphy
Earl D. Musick
JoAnne Musick
Wendell A. Odom, Jr.
Todd Overstreet
TODD DUPONT
John Parras
Daphne L. Pattison
Jonathan J. Paull
Michael G. Pena
Michael H . Pham
Michael Ramsey
Shawna L. Reagin
Dan W. Richardson
Bonnie R. Rogers
Katherine Scardino
Grant M. Scheiner
Stanley G. Schneider
Judith Shields
Norman J. Silverman
James Randall Smith
Paul St. John
James T. Stafford
Charles Stanfield
Mark C. Thering
Christopher L. Tritico
Hilary Unger
William H. Van Buren
Amanda Webb
Joe Wells
Q. Tate Williams
Joseph R. Willie, II
THEDEFENDER]SPRING 08
r
Notes
OF Interest
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THE DEFENDEI *' 24
IN BECOMING AMEMBER?
HCClA
-+ Promotesaproductive exchange ofideas and encourages
bettercommunicationwith prosecutors and thejudiciary.
-+ r o ~ d e s continuing legal education programsfor improving
advocacyskillsand knowledge.
-+ Promotesajustapplication ofthe court-appointed lawyer
system for indigentpersons chargedwith criminal offenses.
-+ Files amicuscuriae briefs in supportof freedom and
human rights.
APPLICATION
APplicant:
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Email;
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Dateadmittedtobar:
Lawschool;
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Expectedgraduationdate: ____
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moralcharacter.Theapplicantis activelyengagedin thedefense
of criminalcases.
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