New traffic laws take effect in Texas

Here is a summary of new traffic laws going into effect in Texas beginning on September 1, 2009...

SB 328

The power of the police to draw blood in a DWI case is expanded. Warrantless blood draws will be mandatory if a person is arrested for an offense under Chapter 49 of the Texas Penal Code (Texas DWI Statute) and refuses the arresting officer's request for a specimen of breath or blood and

• A person, other than the suspect, suffered bodily injury and was transported to a hospital or other facility for medical treatment;
• The driver is under arrest for DWI with a child passenger under the age of 15;
• The person has at least two prior DWI convictions; or
• The driver has a previous conviction for DWI with a child passenger under the age of 15, intoxication assault or intoxication manslaughter.

The bill also allows any magistrate in Texas who is a licensed attorney to sign a search warrant authorizing a blood draw.

HB 357

ALL occupants of a car or truck must wear a seatbelt, regardless of their age or where they sit.

The definition of passenger vehicle will now include passenger vans designed to transport 15 or fewer passengers.

Motorcycle operators may not carry a passenger under the age of 5 unless that passenger is seated in a sidecar.

SB 61

All children under the age of 8 must be restrained in an approved child passenger seat UNLESS the child is at least 4 feet 9 inches tall. The fine for committing an offense will be $250 and a special court cost will be added to help TxDOT provide safety seats for low income families. While the law goes into effect on September 1, 2009, officer may not issue citations until June 1, 2010;.

HB 55

School zones are now off limits to drivers using wireless communication devices -- unless the vehicle is at a stop or the operator is using a hands-free model. In order to enforce this prohibition, signs must be posted at the beginning of each school zone to inform drivers of the prohibition. It is a defense to prosecution if the operator is making an emergency phone call.

HB 2730

A driver's license suspension will now be mandatory for anyone convicted of driving while intoxicated with a child passenger. The reinstatement fee after completing an education class will be raised from $50 to $100. Minors will no longer be able to avoid license penalties if they turn 21 before their court date.

Harris County dismisses arson case against Supreme Court Justice's wife

Last week the Harris County District Attorney's Office dismissed an arson charge against Ms. Francisca Medina, the wife of Texas Supreme Court Justice David Medina. Pat Lykos said the dismissal was the result of new evidence submitted by the defense.

In June 2007, the Medina's house, and those of two neighbors, was damaged in a fire. Investigators determined in October 2007 that the fire was set deliberately. In January 2008, a Harris County grand jury indicted Ms. Medina on arson charges and Justice Medina on charges of tampering with evidence. The following day then-DA Chuck Rosenthal dismissed the indictments. A subsequent panel re-indicted Ms. Medina but no-billed Justice Medina.

The defense team produced evidence that pointed to an electrical problem as a possible cause of the fire. Said Ms. Lykos: "If you can't rule out an electrical fire as the cause, then you can't prove arson."

Is this the new standard the D.A. will use in determining what cases to pursue? Am I to assume that all I must do to have a case dismissed is present evidence to the prosecutor that someone else may have committed the crime? Or that my client's poor driving might have been caused by something other than alcohol? Or does this treatment only apply to those with political connections?

It would appear to me that this new evidence gives rise to a fact question, not a legal question, and, as such, is a factor for a jury to consider.

Overheard at the bench

The names have been changed to protect the innocent (and the not-so-innocent)...

Judge: "What's the nature of the matter?"

Defense Attorney: "A motion to suppress on a hospital blood draw."

Prosecutor: "This is the case I talked to you about yesterday."

WTF!?!?

Think she might have wanted to be on that Southwest flight out of town?

The State of Texas v. Donald Wayne Jackson

This the language of the indictment in Cause No. 1230102; The State of Texas v. Donald Wayne Jackson; In the 351st Judicial District Court of Harris County, Texas:

IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS:

The duly organized Grand Jury of Harris County, Texas, presents in the District Court of Harris County, Texas, that in Harris County, Texas, DONALD WAYNE JACKSON, hereafter styled the Defendant, heretofore on or about FEBRUARY 19, 2009, did then and there unlawfully, while a public servant acting under color of his office and employment, namely THE JUDGE OF COUNTY CRIMINAL COURT AT LAW NO. 3 OF HARRIS COUNTY, TEXAS, intentionally subject __________ hereafter styled the Complainant, to sexual harassment, to-wit UNWELCOME SEXUAL ADVANCES submission to which was EXPLICITLY AND IMPLICITLY made a term and condition of the Complainant’s exercise and enjoyment of a RIGHT AND PRIVILEGE by OFFERING TO GET THE COMPLAINANT A DIFFERENT ATTORNEY TO GET HER CASE DISMISSED IF SHE WOULD BE INTERESTED IN THE DEFENDANT AND ENTER INTO A RELATIONSHIP WITH HIM THAT WAS MORE THAN A ONE-NIGHT STAND.

It is further presented that in Harris County, Texas, DONALD WAYNE JACKSON, hereafter styled the Defendant, heretofore on or about FEBRUARY 19, 2009, did then and there unlawfully, while a public servant acting under color of his office and employment, namely THE JUDGE OF COUNTY CRIMINAL COURT AT LAW NO. 3 OF HARRIS COUNTY, TEXAS, intentionally subject __________ hereafter styled the Complainant, to sexual harassment, to-wit REQUEST FOR SEXUAL FAVORS submission to which was EXPLICITLY AND IMPLICITLY made a term and condition of the Complainant’s exercise and enjoyment of a RIGHT AND PRIVILEGE by OFFERING TO GET THE COMPLAINANT A DIFFERENT ATTORNEY TO GET HER CASE DISMISSED IF SHE WOULD BE INTERESTED IN THE DEFENDANT AND ENTER INTO A RELATIONSHIP WITH HIM THAT WAS MORE THAN A ONE-NIGHT STAND.

It is further presented that in Harris County, Texas, DONALD WAYNE JACKSON, hereafter styled the Defendant, heretofore on or about FEBRUARY 19, 2009, did then and there unlawfully, while a public servant acting under color of his office and employment, namely THE JUDGE OF COUNTY CRIMINAL COURT AT LAW NO. 3 OF HARRIS COUNTY, TEXAS, intentionally subject __________ hereafter styled the Complainant, to sexual harassment, to-wit VERBAL CONDUCT OF A SEXUAL NATURE submission to which was EXPLICITLY AND IMPLICITLY made a term and condition of the Complainant’s exercise and enjoyment of a RIGHT AND PRIVILEGE by OFFERING TO GET THE COMPLAINANT A DIFFERENT ATTORNEY TO GET HER CASE DISMISSED IF SHE WOULD BE INTERESTED IN THE DEFENDANT AND ENTER INTO A RELATIONSHIP WITH HIM THAT WAS MORE THAN A ONE-NIGHT STAND.

AGAINST THE PEACE AND DIGNITY OF THE STATE.

It makes one wonder if the rumors earlier this month regarding Judge Jackson's supposed resignation were actually the terms of a proposed plea bargain. Was Judge Jackson afforded the opportunity to resign his bench in exchange for the matter being dropped?

Not being one to say "I told you so," but...

Well, it appears that, in the end, I was right. Okay, he hasn't resigned but a special judge is being appointed to sit in his court after this morning's bombshell.

I received a phone call from a reporter at KHOU-TV at lunchtime today asking me whether I knew if Judge Donald Jackson was resigning from the bench after being indicted for misdemeanor official oppression.

So, Mr. Anonymous (and since there are at least two of y'all, I don't know who is who), I'll toss your snarky comment back at you...

Anonymous said...

Not sure where you get your information, but to my knowledge and resources, Judge Jackson has not resigned. It may be wise to get the facts with confirmation before spreading defaming blotter about an elected official. It is obvious you wanted to be the one to 'break the news' as if you are some sort of an insider, but instead, you 'broke' the law!

Section 39.03 of the Texas Penal Code defines the offense of official oppression.

A public servant acting under color of his office or employment commits an offense if he...intentionally subjects another to sexual harassment.

Allegedly telling a defendant that things would go much easier if she laid down seems to fall under the category of "unwelcome sexual advances, request for sexual favors, or other verbal of physical conduct of a sexual nature, submission to which is made a term or condition of a person's exercise or enjoyment of any right, privilege, power or immunity, either explicitly or implicitly." (Texas Penal Code Section 39.03(c)).

Official oppression is a Class A misdemeanor carrying a maximum punishment of up to one year in the county jail and a fine of up to $4,000.

Manipulating the innocent through video

"You might as well confess. We have you on video."

"Okay, okay. I did it. Can I go home now?"

Maybe that's not exactly how it goes, but a new study indicates that people who did nothing wrong are more likely to confess if they are told they were caught on video. In the study, a group of subjects were asked to complete a task. They played a game in which they were asked a series of questions. For every question they answered correctly, they were told to withdraw money from a bank account. For every question they answer incorrectly, they were told to deposit money in that account.

After completing the task, each test subject met with a researcher. The researcher debriefed the test subject and then told him or her that there was evidence the test subject stole money from the bank. Some test subjects were told there was a video showing their dishonesty while others were shown a doctored video showing the thefts.

The test subjects were asked to sign a confession - and 87% of the test subjects signed it when asked the first time. The remaining 13% signed it on the second request.

It is very disturbing that researchers were able to obtain confessions from innocent persons by merely telling them that there was a video. It is even more disturbing that innocent persons were convinced to confess their "guilt" after seeing a doctored video. These folks knew they had done nothing wrong but confessed anyway.

Regardless of the mechanisms involved in creating our see-video versus told-video effect, the results show that doctored videos, or simply the proposition that video evidence exists, are potent forms of suggestion that can contribute to false confessions and foster false beliefs. According to these results, our advice to those who receive digital footage of themselves is: be warned, digital images from untrustworthy sources are like a box of chocolates; never know what you are going to get. -- Robert Nash and Kimberly Wade

Those of us who practice criminal law already know that a person who can't post a bond is more likely to confess to a crime than a person who bonded out. The lure of "time served" is very powerful for those folks in the holdover.

Factor in the threat of video evidence and that poor schmuck doesn't stand a chance.

* A special thanks to Dennis C. Elias, Ph.D. and Zagnoli McEvoy Foley, LLC for the tweets.

To win, you must not be afraid to lose

This week noted chess columnist Shelby Lyman writes about his amazement that United States chess champion, 21-year-old Hikaru Nakamura, is not afraid of losing. Mr. Lyman argues that is one of the traits that makes him a champion. He writes that one loss doesn't have a negative impact on skilled performers because they realize there's always tomorrow.

The same applies in the theatre we know as the courtroom. To be a successful trial lawyer you can't be paralyzed at the thought of losing. I had a prominent criminal defense attorney tell me one time that in order to be your very best, you have to be willing to lose big. Only if you're willing to lose big will you be able to cast aside your inhibitions and self-doubts and put everything into the fight.

Inspection turns up problems in the city jail, too

This time it's the City of Houston facing criticism over the conditions at its two municipal jails. According to the Houston Chronicle, a court-appointed inspector, the city's two jails are overcrowded and filthy and need to be replaced.

The problems are so severe that the city may not be able to tap into federal funds to screen inmates for immigration status, as that program would require the city to hold those inmates until Immigration and Customs Enforcement decided to pick them up.

City jails have been under court-ordered inspections since a lawsuit over the jails' conditions in 1989. Up through June 2008, the inspections were carried out by criminal justice consultant Gordon Kamka (now deceased). His last report (in June 2008) was just two pages long and noted that some phones weren't working and some inmates had been forced to choose between having a mattress or having a blanket.

Either Mr. Kamka wasn't looking, didn't care or covered up the problems, because in May 2009, the new inspector, David Bogard, found, shall we say, a shitload of problems.

Here are the highlights:

• • The frequent use of “interlocking,” a controversial restraint technique in which a person's hands are cuffed behind the back and connected to shackled legs in a way that forces an inmate to lie on his stomach or side on the floor. The report says interlocking has been discontinued by many law enforcement agencies across the country because of “concerns about it being degrading and potentially medically harmful.”

• • Inadequate investigation of a death in custody in November 2008 in which police behavior was examined but not any potential problems in the jail.

• • Food that was improperly cooled in refrigerators in a kitchen area that had been cited by the city health department for unsanitary conditions and gnats.

• • Inmates who had stayed in the jail for days without being arraigned.

• • “Unacceptable” delays in following up on inmate medical care.

Police officials said they are confident that Mr. Bogard's most recent inspection (this month) will show that improvements have been made. The city thinks building a new jail/intake facility and turning its operation over to Harris County would be a good idea. The voters disagreed last year in rejecting the proposal in a referendum.

Here's an idea for the powers-that-be in Houston -- how about issuing more personal bonds on minor cases? It's absurd to fill the jails with people charged with driving on suspended licenses, possession of small amounts of marijuana or criminal trespass. Think fishing -- catch and release.

Review of Judge Killer's trial, day 4

Once again, thanks to both Ms. Jessica Phipps of the The Ackerman Law Firm and the Texas Criminal Defense Lawyers Association for providing notes of the proceedings.

Judge Keller's team called Mr. Roy Greenwood as an expert witness on appellate procedure. Mr Greenwood went to work with the CCA in 1971 and remained there until 1978. He said that it is very important for attorneys handling post-conviction matters to be familiar with the Texas Rules of Appellate Procedure.

Mr. Greenwood testified that TRAP 9.2 gives attorneys two options for filing pleadings - they may file the pleading with the court or with a judge on the court who will accept the filing. He testified that he found the arguments made by Mr. Richard's attorneys regarding the request to file after hours to be incredulous.

Mr. Greenwood said that TDS was largely to blame for the events of September 25, 2007 - from not being staffed adequately on an execution day to Dr. Dow's late appearance to filing the wrong pleadings. He said that he did not feel that Mr. Richard received adequate representation that day.

On cross examination Mr. Greenwood testified that he had never filed any writs based on the lethal injection method of execution, that he was often critical of short habeas writs and that filing a writ of prohibition might be a sound strategy to get around the subsequent writ statute.

He then testified that he was unfamiliar with the workings of TRAP 9.2 until he ran into a late-filing situation.

The next witness was Mr. Greg Wiercioch by deposition. Mr. Wiercioch was one of the founding members of the TDS in 1995. He was Mr. Richard's attorney of record on September 25, 2007.

Mr. Wiercioch stated that he was unfamiliar with TRAP 9.2 on the day of Mr. Richard's execution. He also said that until the US Supreme Court granted ceriorari on the Baze case he had not filed any writs based on the method of execution.

He acknowledged not filing a complaint against Judge Keller and he admitted to saying that the Richard execution was the end result of a "perfect storm" of circumstances. When asked about saying Judge Keller was not to blame for what transpired, he said she was not at fault for TDS not filing its pleading before 5:00 pm but that she was to blame for closing the court and not allowing them to file the pleading.

Mr. Wiercioch admitted that although the numbers for the judges' chambers are public information, he never bothered calling any of the judges. He also stated he never saw a draft of a motion for leave to file a writ of prohibition.

Finally, Mr. Wiercioch said that under the previous general counsel to the CCA, Mr. Rick Wetzel, the court had a policy of accepting late filings.

In his summation, the commission's attorney pointed out that Mr. Marty had given three different accounts of what happened that day while Judge Johnson had only given one version. He also pointed out what Judge Keller knew, heard, said, thought, did, decided and refused to do - as well as the consequences of each. He pointed out that Judge Keller had refused to accept any responsibility for her actions that day and kept pointing the finger at Mr. Richard and his attorneys. He finished off by restating Judge Keller's claim that, given a chance to do things differently, she would have done things the same.

Judge Keller's attorney blamed the events of September 25, 2007 on TDS. He provided a timeline and questioned why TDS waited so late in the day to prepare their pleadings. He said that TDS had bungled the process by not being familiar with TRAP 9.2. He then added that no one had ever asserted that Mr. Richard was not guilty. He said Judge Johnson's testimony was absurd and that Judge Keller did nothing to prevent TDS from filing their writ.

The judge thanked the attorneys and concluded the proceedings.

Review of Judge Killer's trial, day 3

Once again, thanks to both Ms. Jessica Phipps of the The Ackerman Law Firm and the Texas Criminal Defense Lawyers Association for providing notes of the proceedings.

Judge Sharon Keller returned to the stand on day 3 of her trial to resume cross-examination.

Judge Keller told the court that she was not Mr. Marty's primary supervisor and that she had not given him any guidance regarding the execution day protocols. She made the cryptic statement that she assumed, however, that Mr. Marty "would do what he was supposed to do." She also stated that she did not feel that following the execution day protocols was part of her job - she said it was her responsibility to the other judges to follow the protocols.

She testified that there were no training sessions for court staff on how to follow the protocols -- which were never written down until after the Richard execution. She said that people learn by doing.

Judge Keller relied upon Texas Rule of Appellate Procedure 9.2 to defend her decision to close the clerk's office at 5:00 pm. She said that TDS had all day to file their pleadings and that last minute filings tended to be "voluminous and meritless." She maintained her view that TDS' call to Mr. Marty on the afternoon of the execution was an administrative matter.

She was asked about a lawsuit filed against her by Mr. Richard's family that was dismissed upon her plea of judicial immunity. Judges are granted immunity for judicial acts, not for administrative acts. Judge Keller tried to explain how her actions were judicial in response to the family's lawsuit but only administrative in this action. In that lawsuit, Judge Keller argued that since the act of granting or denying a stay was judicial in nature she was protected by judicial immunity. When asked to explain the distinction in that suit and this one she told the commission's attorney that he was comparing apples to oranges.

Judge Keller then denied that any of her "no's" that day impacted Mr. Richard's case. She then said that, given a chance to revisit the events of that day, she would have handled it the same.

Under direct examination, Judge Keller denied that the execution day protocols were "court rules" because they were not made through a public process. She then claimed she did not deny Mr. Richard's the right to seek a stay of execution.

When asked whether she still believed Mr. Marty had violated the court's protocols she said she no longer felt that way and intimated that Mr. Marty had indeed spoken to Judge Johnson. She claimed that Judge Johnson was either confused or just didn't remember speaking to Mr. Marty on the afternoon of September 25, 2007.

After Judge Keller stepped down, Mr. Ed Marty testified via deposition. He testified as to preparing documents for the judges in case Mr. Richard filed a last minute stay based on Baze. He claimed that the CCA would have denied the stay on a 5-4 vote; though he admitted that Judge Price was preparing a dissenting opinion.

Mr. Marty testified that he received a call from TDS that afternoon regarding their computer problems and that TDS asked if they could file their pleadings after 5:00 pm. He said he called Judge Keller and was surprised that she told him no. He also testified that Judge Keller called him at 5:00 pm to see if any pleadings had been filed.

In August 2008, Mr. Marty testified that Judge Keller told him there was no reason the clerk's staff should have to work past 5:00 pm if TDS couldn't file their pleadings on time. In his deposition, Mr. Marty backed off that statement though he said the sentiment was the same.

Mr. Marty also testified that, even though he was general counsel for the CCA, he did not realize that all communications regarding Mr. Richard's case should have been directed to the assigned judge (Judge Johnson) - this despite his testimony that he helped develop the execution day protocols.

He also testified that he knew how to get in contact with Judge Johnson after hours.

He then stated that he was called into Judge Price's chambers to discuss the events of September 25, 2007 and that, upon being accused of not telling Judge Johnson what was going on, that he said he had called her. He then said Judge Johnson told Judge Price that Mr. Marty did talk to her but that she understood his statement to mean that Mr. Richard was not filing a request for a stay.

He concluded by saying that he thought he and Judge Keller acted properly and lawfully that afternoon.

Ex-Super Bowl hero to be grounded for 2 years

Former New York Giants wide receiver Plaxico Burress, who made the game-winning catch against the then-unbeaten New England Patriots in the 2008 Super Bowl, today pleaded guilty to a reduced charge of attempted criminal possession of a handgun in Manhattan. Mr. Burress will be sentenced to 2 years in prison when he appears again before the judge on September 22, 2009.

If you'll recall, Mr. Burress was charged with criminal possession of a weapon shortly after shooting himself in the leg at a Manhattan nightclub in December 2008. (See also "Doctor who treated Plaxico Burress suspended."

While it's likely that Mr. Burress' celebrity played a role in the severity of the sentence, celebrity-hood works both ways. Head west and you will come to a land where juries will suspend belief if the person at the defense table is a movie star, athlete or musician.

Review of Judge Killer's trial, day 2

Once again, thanks to both Ms. Jessica Phipps of the The Ackerman Law Firm and the Texas Criminal Defense Lawyers Association for providing notes of the proceedings.

On day 2 of the Keller trial, Liz Waters, a paralegal with the TDS, testified that Mr. Acosta at the CCA told her the court would not accept any late (after-hours) pleadings in the Richard case. Judge Keller's attorneys attempted to impeach Ms. Waters by pointing out she obtained her paralegal certificate from an out-of-state school and that she testified in her deposition that Mr. Acosta told her the clerk's office was closed at 5:00 pm, not the court.

Ms. Waters testified that it was the Houston office of the TDS that was having e-mail issues on September 25, 2007. She also stated that she had never filed any pleadings after hours in the CCA.

The next witness was Dr. David Dow, a professor at the University of Houston Law Center and litigation director of the TDS. He testified that up until September 25, 2007, TDS was anticipating filing a writ of prohibition on the grounds that Mr. Richard was mentally retarded (an Atkins claim). He said that TDS had been unsuccessful on challenging the constitutionality of the lethal injection delivery system for the previous 2 1/2 years. It wasn't until the US Supreme Court granted ceriorari in the Baze case that morning, that he directed his office to prepare writs based on the constitutionality of death by lethal injection.

Dr. Dow began editing the writs around 3:30 pm but he, and other staffers in the Houston office, suffered numerous computer problems that afternoon. Dow then testified that he had staff in the Austin office contact the court again about filing the writs after hours and was told that Mr. Acosta made it clear the court would be closed at 5:00 pm. He then testified that he had never been denied the opportunity to make an after-hours filing before the Richards case.

Between 5:30 pm and 6:00 pm the US Supreme Court notified TDS that the Baze challenge had been denied. TDS then filed a motion for a stay of execution with the US Supreme Court and informed the court they had been unable to file their writs that afternoon but would be filing them in the morning.

On cross, Dr. Dow said he didn't contact Judge Johnson under Rule 9.2 because he did not think he could invoke Rule 9.2 since he was told the court was closed. He said he didn't call the court's general counsel, Mr. Marty, because he assumed that Mr. Acosta was talking to someone who told him the court was closing at 5:00 pm.

Judge Keller's attorney intimated that there never was a computer problem and, even if there was one, TDS had not filed a motion for leave to file a writ of prohibition.

When her attorney pointed out that Dr. Dow's article in the Washington Post about the Richardmatter blasted the CCA for not staying open an extra 20 minutes to accept a late filing, but that it was almost 6:00 pm before the pleadings were ready for filing, Dr. Dow said it didn't matter because the court "couldn't be bothered to stay open one minute late."

Judge Keller's attorney called Ms. Alma Lacosta to testify via deposition. In her deposition, Ms. Lacosta stated that she didn't fax the pleadings because of their length and that she had never worked on a writ of prohibition before. She also testified that she was not familiar with Rule 9.2 of the Texas Rules of Appellate Procedure.

Judge Keller then took the stand under cross. She testified that the CCA did not reduce its execution day protocols to writing until October 2007, after Mr. Richard was executed. Judge Keller testified that even though the oral protocols stated that all communications regarding the execution should be directed to the assigned judge handling the case, Mr. Marty was in compliance because he felt the communications from TDS were only administrative and not substantive.

Judge Keller said that neither Mr. Acosta nor Mr. Marty were to blame for the events that occurred on September 25, 2007, but they were hardly ringing endorsements. She said Mr. Acosta did no wrong by not contacting Judge Johnson - because he didn't know the protocols. She said she did not know why Mr. Marty did not disclose the name of the judge assigned to the case.

Judge Keller also said she didn't know for certain if she had checked her e-mail before leaving the court at 3:45 pm that afternoon. She remembered speaking to Mr. Marty about the TDS request for the court to accept an after hours pleading. She did not, however, remember much else about the conversation. She could not explain why she didn't direct Mr. Marty to Judge Johnson, the judge assigned to the Richard case.

Judge Keller maintained that, even though she told Mr. Marty on at least two occasions that the clerk's office would close at 5:oo pm, she did not believe she was making a decision in the case. She also testified that she knew what was going on with the case during the course of the evening.

Review of Judge Killer's trial, day 1

Before I get started I want to thank both Ms. Jessica Phipps of The Ackerman Law Firm and the Texas Criminal Defense Lawyers Association for providing notes of the proceedings.

While the State Commission on Judicial Conduct informed the court that the purpose of the hearing was not to pursue any political or moral argument against the death penalty, but, instead, to find out what Judge Keller knew and when she knew it on the date the state executed Michael Wayne Richards.

Judge Keller's lawyer then stood up and presented that old favorite from law school - the "it ain't my dog" defense.

The first witness was Court of Criminal Appeals Judge Cheryl Johnson who expressed outrage that the proper execution day protocols were not followed on September 25, 2007. She familiarized herself with Mr. Richards' case and, once the U.S. Supreme Court decided to hear arguments in a case involving the constitutionality of Kentucky's lethal injection method of execution, she prepared herself for a request for a stay of execution.

Judge Johnson testified that both she and her research attorney remained at the court after hours in anticipation of receiving Mr. Richards' pleadings. She hinted that Ed Marty, the general counsel for the CCA, appeared to know something about the goings-on in Mr. Richards' case that he wasn't sharing with the judges. That something, apparently, were repeated requests from Mr. Richards' attorneys for more time to file their pleadings.

She testified that the next day, when the judges tossed around a hypothetical about a request for a late filing in a case on execution day, Judge Keller did not comment.

On cross, Judge Keller's attorney attempted to deflect blame for the incident toward Judge Johnson. He hinted that the judge's portrayal of Mr. Marty was fictional at best.

The second witness was Ms. Dorinda Fox of the Texas Defenders Service. Ms. Fox testified that on September 25, 2007, TDS was having problems with its computers and that she contacted CCA clerk Abel Acosta about filing their pleadings late. She said Mr. Acosta had accepted late filings in the past, but on that day he told her the clerk's office was closing at 5:00 p.m.

At 5:45 pm, Ms. Fox testified she told Mr. Acosta she was on her way but was told no one was at the courthouse. When she asked if she could file the pleadings electronically, Mr. Acosta told her she could not.

On cross, Judge Keller's attorney questioned Ms. Fox on the computer problems TDS was having, the length of the pleadings, when they were ready to file the pleadings and whether or not she was a paralegal on the date in question.

Mr. Acosta was called to the stand next and he testified that he was at the courthouse until 7:00 pm on September 25, 2007 and that it would not have been a hardship for him to accept Mr. Richards' filing. He also testifed that he was told by Judge Keller to close up shop at 5:00 pm that evening. He also testified that he was not told that TDS was having computer problems and that he was unfamiliar with the CCA's execution day protocols.

On cross Mr. Acosta stated that he did not believe Judge Keller blocked access to the court. When asked he said he did not advice Mr. Richards' attorneys to file under Rule 9.2 or to contact Mr. Marty or Judge Johnson because he was told not to be proactive.

On the way to confront Pat Lykos...

I was all geared up today to attend the Houston Police Northwest Division PIP meeting at Long Point Baptist Church tonight located at 8009 Long Point and pose the "hard questions" to Harris County District Attorney Pat Lykos on the new DIVERT program -- only there is no Long Point Baptist Church anymore. The former sanctuary is now a funeral home.

So there I am, cruising up and down Long Point with my daughters in tow, calling information trying to find the church. As it became more and more apparent that we weren't going to the meeting I realized that my colleague, Houston criminal defense attorney, Mark Bennett, was having a recital of sorts as he had just finished the advanced improvisation class at ComedySportz Improv off the Katy Freeway. And it was free!

We quickly motored down to the freeway and over to the CSI Arena as my oldest daughter tried her hand at telling knock-knock jokes (I know... patience).

My daughters got to meet Mark before the show began and he commented that they must have gotten their looks from their mother.

In the end we got to see three folks trying stand up for the first time and some very funny improvisation work from the newbies. My oldest was in stitches during one of the skits and was still laughing about it when she tried to describe it to my wife after we got home.

Here's a little SEO for you, Andy Nolen

For more on criminal defense "attorney" Andy Nolen, please see the following:

Houston Attorney Andy Nolen: A Dishonest Lawyer? (John T. Floyd, Criminal Jurisdiction, 8/18/09)

In Houston, Criminal Defense Lawyer Andy Nolen Is The Best. Everyone Else Sucks. (Brian Tannebaum, Criminal Defense Blog, 8/17/09)

Thinking about hiring Andy Nolen - let's put it this way - you better shop around (Cynthia Henley, Defender of the Accused, 8/17/09)

"jerry k." - an imposter (Cynthia Henley, Defender of the Accused, 8/17/09)

Andy Nolen, "Lawyer" (Mark Bennett, Defending People, 8/17/09)

The Further Adventures of "Lawyer"Andy Nolen (Mark Bennett, Defending People, 8/17/09)

The Continuing Adventures of "Lawyer" Andy Nolen (Mark Bennett, Defending People, 8/17/09)

Andy Nolen: Total Fraud? (Mark Bennett, Defending People, 8/17/09)

Andy Nolen: Today's Last Chapter (Mark Bennett, Defending People, 8/17/09)

State Bar of Texas - James Andrew "Andy" Nolen

Harris County DA to speak in Spring Branch

The Houston Police Department Northwest Division's Positive Interaction Program (PIP) meeting will be held at the Long Point Baptist Church located at 8009 Long Point Drive in Spring Branch. The meeting begins at 7:00 p.m. and the guest speaker is Harris County District Attorney Pat Lykos.

I would imagine the new DIVERT program will be front and center with a different focus that Roger Bridgwater's "meet and greet" with Harris County defense attorneys.

I will be there with a couple of questions, a couple of colleagues and a couple of daughters. I encourage everyone within earshot to attend to find out more about the program and to ask Ms. Lykos the questions that need to be asked.

I want to know about the tenor of the meeting the DA's Office had with the judges in Harris County. Was it an "informational" meeting or did Ms. Lykos and her team try to persuade the judiciary to go along with 30-day minimums for all first-time DWI's?

Did Ms. Lykos' team consult with the legal department at the Department of Public Safety to determine whether this "pretrial diversion" program is a pretrial diversion and not deferred adjudication under a different name? Did they ask the DPS attorneys whether or not the DPS would oppose requests for expunctions after successful completion of the program?

Is the purpose of the program to offer a mulligan to first-time offenders who are arrested for drunk driving, or is it to force defendants into accepting a supervision that is more stringent that a regular probation?

Jury summons

When I got home from a seminar (and a cold one on the deck at Onion Creek in the Heights), there was a letter waiting for me. It was a letter from Harris County District Clerk Loren Jackson. Could it be?

Yes, it was. A jury summons. I was so excited.

In the past I dreaded that little card in the mail. It was a pain to have to go to a courthouse and sit around for hours hoping I wouldn't get picked.

Now it's all changed. I'm hoping I do get picked to serve on a jury on September 2, 2009. I can't think of a more educational tool than sitting in the jury room seeing what really goes on back there. I look forward to voir dire. Will the lawyers let the jurors talk? Will they ask open-ended questions? Will they ask questions designed to invite discussion?

I'm calling you out, Andy Nolen

In the old days, marketing in the legal profession was scoffed at. You built a reputation over years and you worked hard to protect it. It worked great for established firms and attorneys - but it made the cost of entry into the "club" prohibitive.

Now we are hit with a barrage of attorney ads on billboards, newpapers, television, radio and the internet. Every attorney knows that it's not enough in this era to have a good name, you must be able to market your services.

Some choose to market themselves based on what they can do for the prospective client. They hold themselves out to be an expert in a particular area of the law, they publicize their credentials, they publish papers and legal guides, they speak at various functions. They put together a web site and maybe a blog.

Others choose to smear their colleagues with lies and half-truths. Instead of telling the client what they can do, they spend their time badmouthing other attorneys. They use shills to publicize negative comments, they use "SEO" firms to disseminate lies.

Houston criminal attorney Andy Nolen is one such attorney.

Now I don't usually go and bad mouth my colleagues. They may be my competitition for the client facing a drunk driving charge, but they are also my brothers-in-arms when it comes to defending the Constitution. I have friends who will take the time to answer a question or e-mail a form or brief if I ask; and I am more than willing to do the same.

Andy Nolen, on the other hand, is but a warm bucket of spit. His idea of marketing? Having someone post fake "reviews" of other criminal defense attorneys on Yahoo! while simultaneously posting glowing "reviews" of Mr. Nolen's lawyering prowess.

Hey, Mr. Nolen, at some point in time we all need someone to stand with us. Just who do you think is going to stand by your side? Who's going to have your back? You burn enough bridges you end up stranded on an island all by yourself.

And what does it say about your sense of ethics? You don't seem to think it's a problem to have someone post fake "reviews" about other attorneys. Is there any line you won't cross? Is there any conduct that makes you cringe?

Hal Holbrook had a great line in Wall Street when he told Charlie Sheen that a man has nothing left but his character when he looks down into the abyss and sees nothing looking back. Mr. Nolen, the evidence of a man's character is not what he says, it's what he does when no one else is watching.

I just have one question remaining -- just how many times has this reviewer been arrested for theft, possession of marijuna and driving while intoxicated? Well, make that two -- how many times has he been a guest of the county at the Grey Bar Hilton?

ReviewsAdd RSS

Power, Tim - Power Law Firm

Humble, TX

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Review Date: 07/23/2009

when i called these guys acted like i wasn't good enough for them

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Don D Becker

Houston, TX

Review Date: 07/23/20091 comments

kept me waiting in court wondering if he was showing up, then rushed me out after taking my money...thabks a lot!!

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Piercy and Landry, Attorneys at Law, LLP

Pearland, TX

All Law Firms, Criminal Lawyers

Review Date: 07/23/2009

chatged a lot of money and acted like they didn't care about my case

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Todd A Leffler, Attorney at Law

Houston, TX

DUI Lawyers, Criminal Lawyers

Review Date: 07/23/2009

Never returned my phone calls, my sister called him and he was realy rude

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Corrigan, Daniel J - Corrigan Law Firm

Houston, TX

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Review Date: 07/23/2009

Maybe this guy is better at traffic tickets.....not good on my weed case

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Houston Criminal Attorney John Floyd

Houston, TX

Review Date: 07/23/20091 comments

I didn't thinbk this guy was very bright and wanted like way too much money..get real

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Purvis, Jeff W - Crenshaw & Purvis Law Office

Angleton, TX

Review Date: 07/23/2009

had a dwi, paid a bunch, got the same deal everyone gets i later learned

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Mc Cormick, Jack - Jack Mc Cormick Law Offices

Conroe, TX

Family Lawyers, All Law Firms, Criminal Lawyers

Review Date: 07/23/2009

What can i do about my weed case? didn't get a straight answer

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Mekisha Murray, Attorney at Law

Houston, TX

Review Date: 07/23/2009

Didn't feel comfortable with this lawyer. Hired someone else.

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Breston, David A

Houston, TX

Review Date: 07/23/2009

Mr. Breston seemed like a nice guy but he costs too much.

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McNabb Associates, PC

Houston, TX

Criminal Lawyers

Review Date: 07/23/2009

NOT THE GUYS FOR HARRIS COUNTY COURT, WHO KNOWS ABOUT FEDERAL COURT

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Don D Becker

Houston, TX

Review Date: 07/23/2009

HIRED THIS GUY FOR A THEFT CASE, WENT TO JAIL WHEN I COULDA GOTTEN OFF

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Elton R Mathis Attorney at Law

Hempstead, TX

Adoption Lawyers, Family Lawyers, Estate & Probate Lawyers, Divorce Lawyers, Criminal Lawyers

Review Date: 07/23/2009

SMALL TIME LAWYERS WITH SMALL TIME SKILLS, GET SOMEONE ELSE

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Garcia, Israel Attorney - Garcia Jr, Israel B - Garcia Law Offices

Houston, TX

Accident Lawyers, Criminal Lawyers

Review Date: 07/23/2009

NEVER RETURNED MY PHONE CALLS AND JUST WANTED TO TALK ABOUT MONEY

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Stewart, Keith Attorney - Stewart & Stewart Attorneys at Law

Conroe, TX

Real Estate Lawyers, Estate & Probate Lawyers, Criminal Lawyers

Review Date: 07/23/2009

don't hire these guys, at least not for a houston case, they clearly didn't know anyone in the courthouse

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Slate, Dennis Attorney - Dennis M Slate Attorney at Law

Deer Park, TX

Review Date: 07/23/2009

This is a nice man, but i didn't feel that criminal law was his primary interest.

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Simpson, Allan - Simpson Allan

Bellaire, TX

Family Lawyers, All Law Firms, Criminal Lawyers

Review Date: 07/23/2009

dont go here for a criminal charge-they dont know nothing about it

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J Cole Brooks, Attorney at Law

Houston, TX

Landlord:Tenant Law Attorneys, Family Lawyers, Estate & Probate Lawyers, Criminal Lawyers

Review Date: 07/23/2009

overpriced ripoff, money, money,money...what about my life

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Douglas, Larry B - Douglas Larry B

Houston, TX

All Law Firms

Review Date: 07/23/2009

Maybe it was me, but i got the impression this guy still wants to be a prosecutor.

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Gerson, Dan B - Gerson Dan B

Houston, TX

Criminal Lawyers, All Law Firms

Review Date: 07/23/2009

Thjis guy was ok, he jusn't didn't seem to have much to say about my case

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Stewart, Keith Attorney - Stewart & Stewart Attorneys at Law

Conroe, TX

Real Estate Lawyers, Estate & Probate Lawyers, Criminal Lawyers

Review Date: 07/23/2009

don't hire these guys, at least not for a houston case, they clearly didn't know anyone in the courthouse

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Durham, Douglas M - Durham Douglas M

Houston, TX

All Law Firms, Criminal Lawyers

Review Date: 07/23/2009

I could tell this guy was a former prosecutor, he still actrs like one.

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Johnson, Dane DWI /DUI - Johnson & Johnson Law Firm, PC

Houston, TX

Criminal Lawyers, DUI Lawyers

Review Date: 07/23/2009

cost a fortune, barely even saw me, rushed through my case

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Reyes, George - Gd Reyes & Association

Pasadena, TX

Real Estate Lawyers, Insurance Lawyers, All Law Firms, Criminal Lawyers, DUI Lawyers, Elder Law Attorneys, Bankruptcy Lawyers, Estate and Probate Lawyers

Review Date: 07/23/2009

hired him, went to jail, lost my job, he didn't help me at all

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Johnson, Leslie Lawyer - Johnson & Johnson Law Firm, PC

Houston, TX

DUI Lawyers, Criminal Lawyers

Review Date: 07/23/2009

Pompous, this guy acted like he was the president or sumthin and treated me like i was trash.

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The Law Office of Dennis W, Richards

Houston, TX

Accident Lawyers, Litigation, Criminal Lawyers, Real Estate Lawyers, Sexual Harassment Lawyers

Review Date: 07/23/2009

Not happy at all with his handlinmg of my criminal case.

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Power, Tim - Power Law Firm

Humble, TX

All Law Firms

Review Date: 07/23/2009

when i called these guys acted like i wasn't good enough for them

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Don D Becker

Houston, TX

Review Date: 07/23/20091 comments

kept me waiting in court wondering if he was showing up, then rushed me out after taking my money...thabks a lot!!

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Piercy and Landry, Attorneys at Law, LLP

Pearland, TX

All Law Firms, Criminal Lawyers

Review Date: 07/23/2009

chatged a lot of money and acted like they didn't care about my case

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Todd A Leffler, Attorney at Law

Houston, TX

DUI Lawyers, Criminal Lawyers

Review Date: 07/23/2009

Never returned my phone calls, my sister called him and he was realy rude

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Corrigan, Daniel J - Corrigan Law Firm

Houston, TX

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Review Date: 07/23/2009

Maybe this guy is better at traffic tickets.....not good on my weed case

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