2010 winter defender
TRANSCRIPT
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NTS
4 : :ClE Events
5 : :
Word from
our President
by Nicole De orde
6 : :
Winning
Warriors
9 : :Dealing
with Immigration Detainers
by
Franklin Bynum
13: : CClA
News
Round Up
Running
Fun, Learning growing,
BBBS/Amachi, Homes for Soldiers &
Teen
Law
18: :HCClA
Mailbag
letters to
the
Editor
A Call
to
Colleagues - Juvenile
Certifications
by
Pat McCann
A Christmas Wishlist
by Robb Fickman
23: :Welcome Alex Bunin!
by Chris Tritico
24: :
HCClA
Fall Picnic
Houston's Downtown Aquarium
26:
:The Deer Hunter
by Pat McCann Tucker Graves
29: :Investigative Corner: E-Discovery
by
Jim
Willis
30: :
HCClA
Extras
New Member
Application
& Ad Rates
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UP OMING EVENTS
THE
PUBLIC DEFENDER S OFFICE
TODD
DUPONT'S
LEGISLATIVE UPDATE
ROBERT FICKMAN
STACI
BIGGAR:
Vetran s Court Medical Treatment in
Ja
il
For
more
information on
CLE
Events contact
Ca
rmen Ro
e
7 3 3677
55
ca rmenm ro e ya
hoocom
0
TH
DEFENDER
HCClA ClE s have been better than
ever
this year and include
the expertise of Brian Rose
(HCDAO),
Brian
Wice, Kent
Schaff
Katherine Scardino and Pat McCann .
HCClA
will continue to
provide
our
members with excellence in our
ClE
speakers
and
materials . We are proud
to
provide our
members
with the
benefit of earning
ClE
credit
while learning
the
tricks of
the tra
from the best of the best.
HCClA ClE
2011 will be even better by
continuing
to
bring
great speakers,
more
material
and even more
ClE hours
to
help
our
members meet their State
Bar
ClE requirements .
By
popular demand
we
are
working to
bring
additional ethics
hou
to our ClE
program . In addition, we
are
making
plans
to
bring
our
ClE classroom into the 2 st-century to make it available
through
other
types
of
media.
This
will
provide for the expans
of
our
ClEs
to a greater
number
of our
members
who may no
otherwise be
able to attend live
sessions .
HCClA
continues
to
work
hard
to
bring the
most
up
to date
a
relevant material
to our
members. We will continue th is effor
2011. Don t
miss
out on
all
the exciting
events
to come .
reasonable doubt
CALL-IN TALK SHOW
hosted y todd dupont
thursday nights
@
8pm
Join us
in discussing
criminal justice issues
in Harris
County
with
weekly guests.
Sponsored
by
HCClA.
Houston
Media
Source
Com east (Channel
11)
AT&T U-verse (Channel 99)
www.hmstv.org/streaming.htm
http://www.hmstv.org/streaming.htmhttp://www.hmstv.org/streaming.htm -
8/11/2019 2010 Winter Defender
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a
word
from
our
president
n ote b e B o r ~
The end of 20IO brings exciting new times for the defense
bar in Harris County . Starting on December 6, 2010 Alex
Bunin will be the first Chief Public Defender of Harris
County. While the indigent defense system in our county
will still have many of the same components and enjoy a
hybrid including the same appointment system we have
known for years, the new public defenders office will offer
a new resource for attorneys representing indigent clients
and a new resource for the indigent defendant . The Harris
County Criminal Lawyers Association extends a warm
welcome to Alex Bunin, and we look forward to working
together as a resource to the defense bar. HCCLA also looks
forward to joining NACDL in inviting the legal community
to a social (TBA) where you can all
get
to know him soon
after
he
embarks on this new journey.
After doing some reconnaissance, I have learned a few things
about Alex Bunin and want to share them with those of you
who have not had the opportunity to get to know him yet. In
this addition you will find an article outlining Mr. Bunins
experience.
He
has a reputation for professionalism, brains
and a passion
for
the defense of the indigent accused . Perhaps
most importantly. those who have worked with him report
that he is extraordinarily talented and gives freely of his time
and experience in the interest of his passion: criminal justice.
We
wish him luck and look forward to watching the success
of his team in their endeavors.
HCCLA also continues to enjoy a uniquely productive and
cohesive defense bar. With membership near 500. we provide
a venue for criminal defense attorneys in our community to
turn for advice. both legal and professional.
We
have also become a resource in the community at large
concerning issues of criminal justice concern. For example.
we have had the opportunity to work hand in hand with the
Harris County Sheriffs Department with a goal
of
improving
medical treatment for inmates and
to
help develop ideas
for relieving overcrowding. We have also been involved in
monitoring voucher underpayments and the issue of seeking
proper expense provisions for attorneys taking appointments .
We
welcome your
input
on issues that affect the defense bar
and the citizens accused in our county . When we take the
time and effort to hold ourselves to the highest standards in
representing our clients. hired and appointed, we improve
the quality of the defense bar in the community
as
a whole.
With
everything from quality, free CLE programs for
our
members to wonderful social events for our membership,
HCCLA should be on everyone s list of reasons to be grateful
to practice law in this county. Special thanks to Carmen
Roe and our fantastic list of speakers so
far
this year at our
LE events. Special thanks also to Christina Appelt. Sarah
Wood, Steve Halpert, Mark Thiessen for such hard work
putting together some really fantastic events for HCCLA
members this year. I continue to hear about how much fun
members and their families had at the Aquarium and we are
all looking forward
to
the year s grand finale Holiday Party
at Kobain on December 9th .
I m not sure how
we
can top
20IO
but I am looking forward
to trying in 2 0 n with a great Board and an active defense bar
membership. Cheers, and continued success helping people
and good verdicts to all in lOl l
T fll R
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In a stunning result that made national headlines,
Katherine Scardino and Jimmy Phillips pushed the
State, investigated everything, and achieved the dismissal
of the Anthony Graves case . With work that was not
done in 1992, 1994 or even 2006 (during various stages
of
this lengthy matter), Katherine and Jimmy helped
save an innocent
I
ife. Katherine was overwhelmed by the
victory and thanked all the lawyers who worked on this
case over the years. Without their work, Anthony Graves
would possibly have been executed by now.
......................................
In Montgomery County,
J.
C. Castillo fought the
govemmentand raised a speedy trial issue. With his
motion granted, his client won a dismissal in his
intoxication
manslaughter
case.
.................................... .
Facing an
offer of
8 years,
Jordan
Lewis and his client
raised the stakes and announced ready for trial in Judge
Hill s courtroom. The State folded .... more cards in the
muck pile
................... ................ .
Big props to Dan Gerson with his dismissal of a kilo of
ecstasy case.
If
you
didn t
see it, you 'd never
know
it as
Dan continues to work quietly behind the
scenes
for all
his clients.
We were
lucky to get these details, sparse as
they are
.................
................. .
Two Times the Winner Cheryl Irvin
won
her second
motion to suppress in a month s time. As a result
of
her
fine lawyering, the officer is being referred to OIG to
investigate his lack of truthfulness in this particular case.
Luckily, her client had the sense to call Cheryl from the
scene and leave a voice mail message which confirmed
the officer ' s untruthfulness
We
hear Cheryl traded the
tape for a dismissal
Baldemar
Zuniga and James McCollum ended
up
wit
a
hung jury
in the 182nd District Court in an aggravate
assault
on
a
peace
officer
case.
.....................................
Our own Benny House
(current member
and
HCCLA Past
President), apparently,
still has it In the
ultra-conservative
McKinney, Texas, Benny
got
a not
guilty on an
aggravated assault
with a
deadly
weapon
case,
and
he litigated a
motion
to revoke probation.
The
court found that 2 counts
of aggravated assault
were simply not true.
...........................
.
To the shock and dismay
of
court personnel and the
State,
Kate Shipman won
a
not guilty
in the
284th
District
Court. Despite having only 2
weeks
to get
ready for trial
after being
appointed, Kate highl ighted
the problems with the
complainant s
story and walked
her client out of the
Montgomery
County jail a free
man. Kate credits Judy Shields and Scott
Pawgan
for
some great advice. And to top it off, she
won
a
negativ
finding
on
an
ALR
hearing and
quickly
ran out to buy
lottery ticket
......... ............................
Those
two magical words
were
heard in Court 3 for
Steven Touchstone and his client following a telephon
harassment case. His client was alleged to have called
and harassed a state senator. Steven put the finishing
touch on the case and walked
out
with a not guilty.
............................. .
Let's hear it for
Randy
Ayers who got a not guilty on a
murder in the 338th District Court
on
an appointed case
.................. ....................
Another not guilty makes it way through the courthouse
this time for JL Carpenter and her client in a DWI in
County Criminal Court at Law #1 JL credits Dustin
King and Joseph Gagliardi for their assistance.
D
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Family Violence? Not here ...just another not guilty.
Congratulations to Michael
Panesar
and his client
following a missing complainant, lots of Crawford
objections and issues, and a trial by jury. Michael thanks
Sarah
Wood for promoting the 2nd chair program and
Judge Harmon for keeping the courtroom fair.
...................................... .
Double-teaming it,
Monique Sparks
and
Sunshine
SwaJlers score a not guilty in Galveston County. We've
been told, "They fought the law, and THEY won in a
terroristic threat against a cop."
..................................... .
Alvin
Nunnery
wins again! Judge Carter granted a
directed verdict on 23.5 grams. Alvin's persistence paid
off despite
just
having received
Brady
materials on the
day
of
trial.
..................................... .
In yet another not guilty, Staci Biggar and
Claire
Connors
win a harassment case
where
the
complainant
was a family court district judge. Their client could
have become just another mental health
court
statistic,
but in challenging the State's evidence, they secured an
acquittal.
................. ................... .
In State ofTexas v Sean Roberts II (part I ended abruptly
when Judge Keel suppressed the evidence), Mark
Bennett won a not guilty in Judge Denise Collins' Court.
Let 's see: no evidence and still going to trial, yep, that's
a recipe for an acquittal when you mix it up with a great
lawyer like Mark. Mark credits Sarah Wood for her
assistance throughout the case.
...................................... .
Was that evidence suppressed? You bet it was!
JL Carpenter strikes again, this time in the 228th
after the deputy could not articulate facts amounting
to reasonable suspicion for the stop in a DWI case.
JL
credits
Jed
Silverman for his advice and guidance in
this issue.
RESE RCH WRITING
The
Law
is
n
Your Side
With ProfessionalBrififi.ng
Briefs, Memos, & Caselaw
Trial Help & Emergency Services
Sarah
V.
Wood
7
1
3.530.6
1
47
HCCL Unsung Hero and Member of the Year Recipient
References
&
Writing Samples
Upon
Request
Congrats to Rick Oliver who secured a two word verdict
for his client in Fort Bend #2. Rick was faced with the
possibility of getting small-towned every step of the way,
but the jury came back in 20 minutes with a not guilty .
...................................... .
Brian Wice
and
Randy Schaffer
win a pair of victories
in the Court of Criminal Appeals. Brian flipped the
Corpus Christi Court of Appeals in an aggravated assault
of a peace officer conviction with 20-year sentence on
double
jeopardy
grounds in Teeter
v
State And, Randy
got the
CCA
to keep the granting
of
habeas relief
in
the form of an out of time appeal because of appellate
counsel's ineffective assistance intact in an opinion
denying the State's motion for rehearing
in
x parte Miller
......................................
Hilary
Unger
scores a not guilty for her client in a
shoplifting case where her client turned down an offer of
a class C theft. Hilary performed a horribly excruciating
cross of the loss prevention officer when she wouldn't
even admit the defense photographs were from the store!
The jury saw the loss prevention officer as untruthful.
..................................... .
With
another two-word
verdict,
Wayne Heller won
a
DWI in County Criminal Court at
Law
#7. His client
had wanted
DIVERT
and was rejected twice, so they
tried the case. Wayne says, you can't get a hit unless
you swing the bat."
We'd
say
Wayne
hit one out of the
park!
..................................... .
Tucker
Graves
scores a lesser included class B theft for
his client, from a jury, after being tried for burglary of a
habitation in the 338th District Court. A great result from
another great lawyer!
.................................... .
Congratulations to
Tom
Stickler in convincing Judge
Lowery
to direct out the State in County Court #3.
..................................... .
In
what seems
like a rare occurrence,
Joe Gonyea
received a two word verdict in federal court. His client
was charged with
Delaying,
Secreting, and Detaining
the mail in violation
of
18
USC
1703". Jury
was out
7
hours
before
returning to the court with a not guilty.
Joe sends his sincere thanks to Jimmy
Ardoin
and
Josh Schaffer
for they
went above
and
beyond
to help
with the case.
...................................... .
Herman
Martinez took down a 0.13 breath test
in
County Criminal Court at Law #11 when technical
supervisor Jorge Wong testified the methyl alcohol found
in
the mercury in sushi and soy sauce could produce a
false high positive on the breath test machine.
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A trio
of
fine lawyers, Todd
Dupont,
Casie Gotro, and
Steve Touchstone heard those magic words, not guilty,
two times in a two count aggravated sexual assault trial
in the 338th.
.....................................
Speaking
of
trios, up-and-coming barrister Carmen
Roe convinced Judge Kevin Fine to grant a motion to
suppress in a trio
of
cases - possession with intent to
manufacture a CS over 400 grams, possession with
intent to deliver a CS of more than 4 but less than 200
grams, and a felon in possession
of
a weapon -- based
on a bad search warrant affidavit. State's offer was
5
to do, but Carmen was able to book-and-page the State
on the law and Judge Fine agreed.
..................................... .
Congratulations to new defense attorney
Craig
Still
who got three first degree cases on his true habitual
client dismissed based on a bad search warrant that he
skillfully picked apart. Is it just me or do they not write
good warrants like they used to?
......................................
Kelly Case caught the trooper fudging the truth,
showed it to the
jury,
and won a two word verdict in
Montgomery County in a DWI trial. Kelly credits
Earl Musick with his closing argument because the
"Superman thing" was spot on for this case.
................................ .
David Ryan secured a not guilty
in
a prostitution case
in
County Criminal Court at Law #12. We re sure he will
happily fill in the details, but this is becoming a regular
result to report for David. Excellent job
Joe
Labella
convinced Judge Anderson to suppress a
.12 breath test on an rdman issue. Joe argued that his
client was psychologically coerced into providing a
breath sample by Officer
Hattan s
threats to draw his
blood ifhe refused a breath test, being that it was the
fourth
of
July weekend and it was a no refusal night.
.....................................
Danny Easterling pulled out another great win This one
in a felony DWI case in the 82
nd
With the client turning
down an offer of one year misdemeanor probation (and
no jail time), Danny picked a jury and tried the case.
The jury was deadlocked at 9 for not guilty and 3 for
guilty. Court declared a mistrial and the State dismissed.
Another lesson in "good things happen when you set
cases for trial"
..................................... .
David
Cunningham
and
Jed
SiJverman convinced
Judge Keel to suppress a pound
of
cocaine after they got
two dash cam videos from officers who were involved
on the periphery of the scene. These videos helped
show that the seizing officer was less than candid about
his search. Earlier in the same week, Jed Silverman
convinced Judge Keel to toss out a breath test on another
case because
of
problems with retrograde extrapolation.
..................................... .
Congratulations to Tad NeJson for a not guilty in County
Criminal Court at Law #IO Judge Ross was very close
to granting a directed verdict at the close of evidence in
this DWI, but he withheld his ruling to see
if
the State or
the jury would "do the right thing." . .. the jury did.
Sam
Adamo reports, "Tad Nelson, throughout his illustrious
career, has brought to the courtroom an eloquence and
an unshakable conviction that makes him a legend in his
own time."
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As we all know, the requirements of Padilla v Kentucky
are changing criminal defense of aliens quite
dramatically. The urgency
of
the problem the Padilla
court addressed was precipitated largely by increased
immigration enforcement in local jails across the country.
As a result, criminal defense lawyers should now be
prepared to deal with not only an entirely new set
of
substantive law, but also a myriad of practical issues
regarding bonding and detention of alien clients caused
by the presence of federal officials in local jails.
The last issue of the Defender covered some substantive
tips for advising alien clients. The aim of this article is to
describe the mechanisms of immigration detainers, the
authority for and implementation
of
immigration
enforcement by the Harris County Sheriffs Office in its
jails, and practical ways to deal with bond and prolonged
detention.
Immigration enforcement is now active
in
every county
jail
in
Texas. ;; Much of this atiicle should be applicable to
similar programs
in
other counties.;v
INTRODUCTION
TO IMMIGRATION DETAINERS
What Is an Immigration Detainer
An immigration detainer is a written request from the
Department
of
Homeland Security
DRS)
to any federal,
state, or local law enforcement agency requesting custody
of
a person presently held by that agency, for the purpose
of
seeking to remove that person from the United States:
A detainer indicates only that Immigration and Customs
Enforcement (ICE) believes it has probable cause to
commence proceedings against the person
or
that the
person already has an outstanding order
of
removal.
Just because an immigration detainer issues does not
mean that the person is removable.
Many aliens, especially Lawful Permanent Residents,
have
relief
available to them.
In fact, even a United States citizen could be issued a
detainer and removed; this happens frequently.v
The physical document that creates the detainer is called
the 1-247: ; A copy of the 1-247 should be on file with
both the local agency and ICE, and should be disclosed
by either pursuant to a freedom of information request.
v
How Long ay the County
Keep Someone with a Detainer
The county must release a person with an immigration
detainer if DHS has not taken custody of the person 48
hours after the person would have otherwise been
released from county custody, excluding holidays and
weekends.;
ho Decides Whether a Detainer Issues
The decision
of
whether to issue a detainer is made by
one several types offederal officials such as Customs and
Border Patrol agents and ICE deportation officers. Note
who does not have the authority to issue detainers: state
and county officials. County employees may screen
prisoners for immigration violations and may then
present a person suspected of an immigration violation to
a federal official, but the federal official ultimately makes
the decision .
THE SECURE
COMMUNITIES
PROGRAM
The federal government has the exclusive authority to
make and enforce immigration law:; The mechanism by
which the federal government allows local government
to
assist in enforcing immigration law
is
described in the
Immigration and Nationality Act at Section 287(g).
Section 287(g) authorizes the federal government to enter
into agreements with local governments to enforce
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immigration laws under the supervision of federal
officers. The term "287(g)"
is
thus used to refer to a
number of different types of cooperative enforcement,
mostly taking on one of two forms: "task force"
agreements in which OHS agrees to participate in
street-level enforcement with local police; and, more
commonly, the so-called "Secure Communities"
program, which purports to screen jail inmates for
"criminal aliens. ';;
Harris County has participated in Secure Communities
since 2008, and was the first county
in
the nation to
implement sending livescan fingerprints to the federal
government's immigration database.";'
The Harris County Secure Communities
Memorandum
of
Agreement
The document that allows immigration enforcement in
Harris County jails is the "Memorandum of Agreement"
between the County and OHS. That document (the
MOA )
is
provided publicly by ICE on its w e s i t e
For a more in-depth understanding
of
how the program
works, the MOA is an excellent resource.
Why
Does an Immigration Detainer Issue?
The regulations say that a detainer issues when OHS
seeks to arrest and remove a person. However,
removability in eve ), case involves factual and legal
issues. With the large scale of the Secure Communities
program-2 .9 million fingerprint queries in the eleven
months from October 1 through August 31,2010.
are some fairly rigid categories that help officers make
determinations as quickly as possible.
Unfortunately, those categories do not exist in federal
regulations but instead only in a "Standard Operating
Procedures" manual. The manual classifies crimes that
will result
in
detainer issuance into three " levels ." Level
1 crimes are mostly serious felonies. ; Level 2 crimes are
mainly property crimes and Level 3 are miscellaneous
misdemeanors.""
Level I crimes are the most important, because those are
crimes that can result
in
a detainer being issued with a
charge alone; no conviction is necessa )'.
The "Standard Operating Procedures" manual states that
Level 2 and 3 crimes only result
in a detainer if there
is
a
final conviction for one of the listed crimes.
Understanding this
is
essential to helping your clients and
their bonding companies understand what may happen if
the person bonds out. Here are two examples:
Example One
Client entered on a tourist visa, overstayed for ten years ,
and has
one conviction for OWl, a Level 2 offense.
Client
is
then arrested for a second
OWl
and an
immigration detainer issues. Client posts state bond, ICE
retrieves client within 48 hours. Once in immigration
custody, ICE issues Notice to Appear alleging
removability because the visa overstay and sets bond at
$3,000. Client posts bond, and
is
released from
ICE
custody.
Example wo
Client is a Lawful Permanent Resident with no criminal
record and is arrested for aggravated assaUlt, a Levell
offense. Client posts state bond, ICE takes custody of
client within 48 hours. Client
is in
immigration custody,
but ICE does not issue a Notice to Appear because Client
is not removable from the United States: for an
aggravated assault charge to lead to removability would
require jin l
conviction
for the aggravated felony. So
client sits in immigration custody, unable to bond out.
Client misses next state court date, and bond
is
revoked.
What
makes
this second example so troubling is that
there is no relief available to force a bond determination
until OHS files a Notice to Appear,"';;' and OHS may
refuse to file a Notice to Appeal until it has a conviction
record. This situation has not been litigated in federal
court yet, but given the high volume of bodies running
through the system and low competence of both
ICE
and
its private prison contractors, surely it will be litigated
one day.
BOND STR TEGY fOR CLIENTS WIT DET INERS
To
successfully bond a person with an immigration
detainer out of custody requires posting of one bond with
the local authority and one with ICE. Posting the bond
with the state
is
usually the easier part.
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Persons with Immigration Detainers re Eligible t
ond Out
of
Local Jail
Persons with immigration detainers can post bond
if
the
person is otherwise entitled to bond in the state court .'
At the point at which they would be released, the 48-hour
clock begins for ICE to retrieve the person. Once ICE
takes custody
of
the person, it has 48 hours to issue a
Notice to Appear, which will also set an initial bond
amount. Note that
in
removal proceedings, the
prosecuting
agency-not
a
magistrate-sets
the initial
bond amount, and then the detainee may ask the
immigration court" for a bond redetermination.
Procedures for Immigration ond
Once in DHS custody, the detainee can be released on
"conditional parole" (the equivalent
of
release on
recognizance)
or
can be released on bond
; Conditional
parole
is
virtually unheard
of
for a detainee with a
criminal history. The minimum bond amount
is 1
,500.
xxii
When a Notice to Appear
is
filed and served on a
detainee, an attorney can file a bond motion with the
immigration court at 5520 Greens Road
in
Houston. A
bond hearing will be scheduled for sometime within a
few days up to a couple
of
weeks after filing the motion.
In Houston, bond hearings are held before one of three
immigration
judges-Benton,
Rose,
or Greenstein-at
the court on Greens Road. Once the judge sets the bond
amount and the detainee posts a bond, the case will be
transferred, upon a perfunctory motion to change venue,
to
the immigration court at 2320
La
Branch Street in
Houston.
';;;
The
La
Branch calendar is severely
overloaded, and court dates for initial appearances are
routinely set for many months out.
For a client with absolutely no criminal convictions and
who was inspected and admitted upon entry to the
United States, the process
of
getting an immigration bond
hearing
is
simple enough for the criminal defense
attorney
to
handle herself, with only a little assistance the
first time or two from someone with more experience.
heri Schultz onsulting
Probation
Expertise
/ Pre-Sentence
Reports
Mitigation Special ist / Licen
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Private Investigator
Mitigation Repon Preparation Motion to Revoke/Adjudicate Expertise
Pre
-S
entence Repon Preparation Former
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Liaison Probation Officer
In -Custody Interviews
Available to Oversee
Pr
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c h c ri sc
hllit
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713-783-5333
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Mandatory Detention
Broad categories
of
individuals with convictions
of
some
very
common crimes are ineligible for bond . The
following are the most
common
categories
of
crimes
requiring mandatory immigration detention:
two
or
more crimes involving moral turpitude;";'
aggravated felony ;'"
controlled substance conviction;"';
firearms offense;"'
;;
on the basis
of an
offense for which the alien has been
sentenced to a term
of
imprisonment
of
at least one year-
committing a crime
of
moral turpitude witrun five years
of
admission and being sentenced to a year
or
more:"';;;
If
a person has an immigration detainer and a conviction
of
one
of
these crimes, the alien will be categorically
inel igible for
bond
. If the person were to post bond with
the state, the person would be delivered to
ICE
and not
released .
Bond Forfeiture and Immigration Detention
Many bonding companies will not write a bond for a
person with an immigration detainer. This should not be
the case. In nearly all cases you should be able to assure
the bondsman that they will not be liable on the surety
because
of
the immigration problems.
The
key to that
assurance is in Article
17
.16
of
the Code
of
Criminal
Procedure.
Under Article 17.16, when a person is released to ICE
after posting a bond, the surety can relieve herself
of
liability by immediately presenting the Sheriff"an
affidavit stating that the accused
is
incarcerated
in
federal
custody. ",,;, Once the Sherif f verifies that the person is
in federal custody, the surety
is
automatically relieved
of
further liability.'" The Court
of
Criminal Appeals has held
that this procedure is effective to prevent bond forfeiture
when a person is in immigration detention but not
if
the
person has already been removed from the United States
at the time the bonding company applies for a release."' ;
When someone bonds out of state custody and is sent to
immigration detention, one
of
three things will happen:
1) person will bond out of immigration detention and
appear as required for criminal court; 2) person will
not bond out of immigration custody in time to appear
in criminal court, but will not yet be
removed
from the
United States; 3) person will be removed and will likely
not appear again in the criminal court
In every single one
of
those scenarios, a well-informed
bondsman can present some basic documentation to the
Sheriffs Office and relieve herself
of
liability on the bond.
THE DEFENDER
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8/11/2019 2010 Winter Defender
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However, to prevent bond forfeiture will probably take
some
hand-holding with your client's bonding company to make sure
they don't
jump
the
gun
and get a warrant issued for your client.
By
working
with
the
bonding company and keeping them
continuously informed about the progress of the immigration
bond
process, you
can
buy
your
client time to attempt to bond
out of immigration detention. If it becomes apparent that your
client
will not be
able
to make
immigration bond
, the
bonding
company will need to quickly provide the Sheriffs Office
proof that she
remains
in immigration detention.
Ethical Considerations
If
you plan
to
keep
the
bonding
company
appraised
of
the
case's progress, make sure your
clients knows
and gives you
permission to disclose any confidential information.
Commonly, clients
who
face removal at the conclusion of their
sentence ask if they can
"just
be deported." One response might
be that it is up to the judge, jury, or prosecutor, and that mercy
from
any of
them
may
not be forthcoming.
However, being removed without serving a state-court sentence
could be possible in certain cases where removal is a certainty.
Arguably, ethical problems could arise for an attorney that
advises a client to bond out of the criminal proceeding while
reasonably certain that the client would never
appear
before the
state court again.
Those concerns should not stop you, even in
close
cases, from
taking a cautious approach to attempting to gain your client's
freedom
while charges
are
pending.
i Member, HCCLA, the American Immigration Lawyers
Association, and the National Immigration Project of the National
Lawyers Guild . Special thanks to my officemate Amy Martin for
editing assistance and putting up with me all day .
130 S. Ct. 1473 (2010).
iii
Julian Aguilar,
Controversial Program Now Includes
ll
Texas Counties, Texas Tribune (Sep . 29, 2010),
http://www.texastribune.org/immigration -in-texas/immigrationlco
ntroversial-program-includes-all-texas-counties/.
iv ICE maintains an incomplete list of 287(g) agreements on its
website:
http://www.ice.gov/pi/news/factsheets/section287_g.htm. Each
county's signed agreement should be disclosed in response
to
an
open records request.
v See 8 C.F.R.
287.7(a).
vi Search Google for "United States citizen deported."
vii http ://tinyurl.comlfonn247
THE EFEN ER
VII
If
you are seeking an 1-247 regarding a person who
is
a Lawful
Pennanent Resident, DHS will require you to provide the alien's
written consent.
x
8 C.F.R.
287.7(d).
x 8 C.F.R. 287.7(b).
xi This is perhaps a bit of an overstatement, but not as
controversial as it may seem. Tfyou're interested
in
federal power
to preempt state immigration enforcement, follow the United
States v. rizona pleadings on the District of Arizona's PACER
site, under case 10-cv-01413.
xii
"Purports" because the program is being used to remove
massive numbers of non-criminal aliens. See, e.g. Travis County
leads nation
in
deporting noncriminal immigrants, groups find,
Austin-American Statesman, Aug 10, 20 I
O
xiii !DENT/IAFIS Interoperability Monthly Statistics through
August 31, 20 I 0 (Sep. 7, 20 I 0)
(http://www.ice.gov/doclib/foialsecure_communities/nationwidein
teroperabilitystatsaug 10.pdf).
xiv
http ://tinyurl.com/Harris287g
xv "!DENT/IAFIS Interoperability" memo .
xvi "National Security" crimes (sabotage, sedition, espionage, and
treason; terrorist threats; and weapons, arson/incendiary devices,
and bombing offenses); Homicide; Kidnapping; Sexual assault ;
Robbery; Aggravated assault; Threats; Extortion-threat to injure
person; Sex offenses; Cruelty toward spouse or child; Resisting an
officer; Hit and run; and Felony drug charges
x
vii
"!DENT
/IAFIS Interoperability" memo.
xviii Matter of Werner 25 I&N Dec. 45 (BlA 2009).
xix
Castaneda v. State,
138 S.W.3d 304, 306-07 (Tex. Crim. App
2004).
xx
The "immigration court" is the Executive Office for
Immigration Review, a part of the Department of Justice.
xxi 8 U.s.c. I 226(a)(2)(B).
xxii
8 U.s.c. I 226(a)(2)(A).
xxiii Until this summer, cases were automatically transferred to La
Branch when the person was released on bond , but now a motion
to change venue is required.
xxiv
Immigration and Nationality Act
237(a)(2)(A)(ii), 8 U.S .
c.
I 227(a)(2)(A)(ii) .
xxv
Immigration and Nationality Act 237(a)(2)(iii), 8 U.S.c.
I 227(a)(2)(A)(iii) (2006).
xxvi
Immigration and Nationality Act 237(a)(2)(B), 8 U.S.c.
1227(a)(2)(B) (2006).
xxvii Immigration and Nationality Act 237(a)(2)(C) , 8 U.S.C.
I 227(a)(2)(C) (2006).
xxviiilmmigration and Nationality Act
237(a)(2)(A)(i), 8 U.S.c.
I 227(a)(2)(A)(i) (2006).
XXIX
Castaneda, 138 S.W.3d at 308.
xxx
Jd.
xxxi
Jd.
At 310.
http://www.texastribune.org/immigration-in-texas/immigrationlcohttp://www.texastribune.org/immigration-in-texas/immigrationlcohttp://www.texastribune.org/immigration-in-texas/immigrationlcohttp://www.texastribune.org/immigration-in-texas/immigrationlcohttp://www.texastribune.org/immigration-in-texas/immigrationlcohttp://www.texastribune.org/immigration-in-texas/immigrationlcohttp://www.texastribune.org/immigration-in-texas/immigrationlcohttp://www.texastribune.org/immigration-in-texas/immigrationlcohttp://www.texastribune.org/immigration-in-texas/immigrationlcohttp://www.ice.gov/pi/news/factsheets/section287_g.htmhttp://www.ice.gov/pi/news/factsheets/section287_g.htmhttp://www.ice.gov/pi/news/factsheets/section287_g.htmhttp://www.ice.gov/pi/news/factsheets/section287_g.htmhttp://www.ice.gov/pi/news/factsheets/section287_g.htmhttp://www.ice.gov/pi/news/factsheets/section287_g.htmhttp://www.ice.gov/pi/news/factsheets/section287_g.htmhttp://www.ice.gov/pi/news/factsheets/section287_g.htmhttp://www.ice.gov/pi/news/factsheets/section287_g.htmhttp://www.ice.gov/pi/news/factsheets/section287_g.htmhttp://www.ice.gov/pi/news/factsheets/section287_g.htmhttp://www.ice.gov/pi/news/factsheets/section287_g.htmhttp://www.ice.gov/pi/news/factsheets/section287_g.htmhttp://tinyurl.comlfonn247/http://tinyurl.comlfonn247/http://tinyurl.comlfonn247/http://www.ice.gov/doclib/foialsecure_communities/nationwideinhttp://www.ice.gov/doclib/foialsecure_communities/nationwideinhttp://www.ice.gov/doclib/foialsecure_communities/nationwideinhttp://www.ice.gov/doclib/foialsecure_communities/nationwideinhttp://www.ice.gov/doclib/foialsecure_communities/nationwideinhttp://tinyurl.com/Harris287ghttp://tinyurl.com/Harris287ghttp://tinyurl.com/Harris287ghttp://www.texastribune.org/immigration-in-texas/immigrationlcohttp://www.ice.gov/pi/news/factsheets/section287_g.htmhttp://tinyurl.comlfonn247/http://www.ice.gov/doclib/foialsecure_communities/nationwideinhttp://tinyurl.com/Harris287g -
8/11/2019 2010 Winter Defender
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RIIIIIIIII
HCCLA
donated
120
to
sponsor 6 runners
for
the September Run for Recovery fun run
recognizing National Recovery
Month
The
Run for
Recovery
event is
designed
to
promote
addiction awareness and community
connections. Runners
involved
with
the drug
court programs
in
Harris County participated.
LEARNING growing
During
our
new member's social in August,
HCCLA members generously donated over 500
at Hearsay on August
6
to benefit
the
school
aged children
of
mental health
court
probationers.
Our
own
Staci Biggar was able to use these
funds to purchase backpacks, school supplies,
and lunch kits for families participating and
succeeding in
the
mental health court.
THE EFEN ER
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8/11/2019 2010 Winter Defender
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HCCLA
Big
Brothers/Big
Sisters
HCClA,
in
collaboration with Big Brothers-Big Sisters
of
Greater Houston
I"BBBS"} and the Houston Young lawyers
Association ( HYlA l. hosts events annually - since 2007
-
for
local
children in
the Amachi
program.
Affectionately
nicknamed "Celebrating
Amachi All-Stars," all
events in this
bar
year include a sports aspect with
an
emphasis on
the
importance
of
physical fitness and
leading a
healthy life.
"Celebrating Amachi All-Stars" events in
2011 planned
for Amachi children
are:
Houston Aeros hockey game
(January
16);
Houston Rockets game (February 5); Brunch
Honoring
a local Sports Celebrity (March
19);
and
the
Field Day with
B-B-Q
at a local park (May
7).
"Celebrating
Amachi All-Stars" events are graciously funded and made
possible by child-ticket donations from the Houston Aeros
organization, Houston Rockets player-Brad Miller, a Houston
Young lawyers Foundation grant, and continued
support
from the
Harris
County Criminal lawyers Association .
The time commitment typically required to be an adult
mentor
makes many
lawyers
shy
away
from
volunteering
in the BBBS program, but
the
"Big for a Day" events with
HCClA HYlA
allow
professionals that exact opportunity
- to serve as BBBS mentors. Other than the time needed
to watch abasketball game
or
attend a luncheon, there
are
no
other commitments.
Past
event locations hosted for
Amachi children by HCClA HYlA include the Houston
Zoo,
Downtown Aquarium, Edwards Marq*E
movie
theater,
and a tour
of
the Houston SPCA.
TH
EFEN ER
The Big-For-a-Day events help make a
difference in
the lives
of
local at-risk youth. The Amachi Texas program provides
mentoring
for
children with one
or more
incarcerated parents
guardians.
Children of incarcerated parents are five times mor
likely to commit crimes, and without positive adult interventio
will
more
than likely follow their parents into prison. But
this is a chance to make a difference in a child's life
(and an
otherwise unforgiving cycle). What only takes a
moment
for a
lawyer-mentor
can
impact a lifetime for an Amachi child.
Due to
the
limited number
of
adult volunteers in
BBBS,
not
every
child registered in the Amachi Texas Program in
Housto
has been assigned a permanent big brother
or
big sister. Ther
are on
average
seventy children left unassigned every year. Th
"Big for a Day" events
help address
this problem by
organizing
events specifically for Amachi children without permanent
"Bigs"
. Events are always 100%
free
for
the
children.
Besides
volunteering as a mentor at
an
event, there is anothe
way to
help
support this extraordinary program The lawye
Bowl",
an
annual
bowling-tournament
fundraiser for
BBBS
of
Greater Houston, will
happen
on a Saturday
in
early April
of
2011. HCClA
has
had a team
in
the
tournament of
legal
bowling teams for the
past
four years. HCClA
in
2009 even
took home the prize for
1st Place Help
continue our
winning
streak.
If
interested
in
joining
"Team
HCClA" either as
a bowler or
sponsor, please email [email protected].
mailto:[email protected]:[email protected] -
8/11/2019 2010 Winter Defender
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~ r T R O O P S
[O]]]]lillJ-[[(([(ffi]J
www homesforourtroops org
HCCLA volunteers - Tom Berg, Denise Poole, and Darla
McBride - got down dirty on
behalfof
a disabled war
. HCCLA members volunteered at
the Landscape Clean-Up Day for the new home for a
Houston-area war veteran built by Homes for Our Troops
on June 25-26, 2010.
The new home was built for Naval Petty Officer-Anthony
Thompson and his family, including his young son, AJ.
Thompson was on his second deployment to Iraq with the
2nd Battalion, 7th Marines Fox Company 3rd Platoon near
FaI\ujah, when a suicide bomber detonated an explosive
under an overpass where Thompson and his Marines had
taken up post on April 20, 2007. During recovery efforts
Anthony was found unresponsive on a pile of concrete
rubble.
After being transported to three separate Battalion Aid
Stations, Petty Officer Thompson was finally stabilized for
transport to Landstuhl, Germany. As a result of the blast he
suffered a Traumatic Brain Injury, an incomplete spinal cord
injury and a punctured right lung.
Before his life-altering injuries, Anthony enjoyed playing
and watching football and baseball, bowling, going to the
movies, and listening to music. His wife, Ivonne, believes
that Anthony knows the support that surrounds them. She
says that having a home that the family can come home to
together
is
a dream come true. [A video
on
Thompson and
his
family as
well
as
photos of the completed
new
home can be
seen
at:
www.homesforourtroops .org/thompson.]
BOUT
Homas rOur
Troops
The American Institute of Philanthropy, one of the country's
premier charity watchdog organizations, includes Homes
for Our Troops in their Top-Rated Veterans Military
Charities listing. Homes for Our Troops, a national
non-profit, non-partisan 50
I
(c)(3) organization was founded
in 2004. The organization is strongly committed to helping
those who have selflessly given to our country and have
returned home with serious disabilities and injuries since
September 11, 2001.
Homes for Our Troops assist severely injured Servicemen
and Servicewomen and their immediate families by raising
donations of money, building materials and professional
labor and to coordinate the process of building a home that
provides maximum freedom of movement and the ability to
live more independently.
The homes provided by Homes for
Our
Troops are given at
NO COST to the Veterans they serve. [ Note: n eligible
Veteran
or
service member may receive a Veterans
Administration Specially Adapted Housing Grant up to a
maximum amount of$63,780. Homes for Our Troops'
assistance covers all costs over and above this grant and
works closely with the VA to ensure that when resources are
combined, the home is provided at no cost to the recipient.]
THE
EFEN ER
http:///reader/full/www.homesforourtroops.orghttp://www.homesforourtroops.org/thompsonhttp://www.homesforourtroops.org/thompsonhttp://www.homesforourtroops.org/thompsonhttp:///reader/full/www.homesforourtroops.orghttp://www.homesforourtroops.org/thompson -
8/11/2019 2010 Winter Defender
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TEEN
LAW
SUMMER
PROGRAM
The four-day Teen law summer
program
in 2010 in Houston at
the
Family
law Center and the
Civil
and Criminal
courthouses was
made
possible
by
HARRIS COUNTY
CRIMINAL
lAWYERS ASSOCIATION
in
conjunction
with the Houston Young lawyers
Association
.
HYLA
covered the Family and Civil courthouse duties (July
14
and 16), while
the
focus for
HCClA
efforts
was
the two
days spent by the area high
students at the Criminal courthouse (July 20 and 21). Fourteen teens
from YES
Prep-North
Central and Southeast campuses (grades 10
-
12)
participated
in the program each day
(attendance
was
limited
to fourteen
to allow
the teens
if
invited by
the
courtroom judge,
to
sit
in the
jury
box during courtroom
observation timesl.
From 9
AM-2:20
PM
daily,
HCCLA
volunteer attorneys
escorted the teens
to courtroom observations and, when not in
a
courtroom, conducted in
the 7th-floor Attorney
Ready room crash
courses
for the teens
covering
the basics of criminal
law
court procedures, and the rights of teenagers.
The students were
responsible for their own
transportation
to and
from
the courthouse
each
day,
but HCCLA
organized
the
agenda
each
day
and provided
for
the teens all
materials, lunches, copies of
To
Kill
a
Mockingbird, segment ribbon awards, and Teen Law completion
medals.
SpeCial
THANK YOU to
the following
Judges
and
their courtroom
staff
for
hosting
the
participating
teens
IYou
made the
experience
OUTST ANDING for
the
teens/l: Judge Jay Karahan-Co
.
Criminal
Crt
nO.8, Judge
Jan
Krocker-184th,
Judge Kevin Fine-l77th and
Judge
Shawna Reagin-176th
(Judge
Belinda Hill-230th
also invited
the teens
to
her
courtroom, but
time ran
out
for
the teens during
that session
and
they did not make it to
her
courtroom). For more
information
on the
2010 summer program
and
the upcoming
2011
program, please
send
an
email [email protected].
mailto:[email protected]:[email protected] -
8/11/2019 2010 Winter Defender
17/32
Thursday ecember
9 2010
3720 Raymond Street
Houston
TX
77077
{off Washington Heights}
UNDERWRITERS
Arnold S.
Cohn.
PC
Codar Law
Offices
&smyer. Tritico Rainey, LLP
Musick Musick. LLP
Schneider McKinney. PC
Trichter Murphy, PC
SPONSORS",
David Adler, PC
Adrogue
Law
Firm, PLLC
Allied Bonding Agency
James
Abron
Colin B. Amann
Jennifer Bennett
Mark Bennett
Tom Berg
Lori
A.
Borello
Gerald E Bourque
Morgan
A
Bourque
Don R Cannell
Christopher L
Carlson
J.e.
Castillo
Daniel J. Corrigan
Paul J Coselli
EricJ. Davis
Nicole DcBorde
Gordon
Dce.
Dick DcGuerin
Danny Easterling
Michael Essmyer
Robb Fickman
Tyler A
Flood
David
L Gano
T ueker Graves
Guerra
Farah. PLLC
Guerrero Biggar. LLP
Guy L Womack Associates, PC
Steven H. Halpert
Ron
Hayes
Richard Haynes
Thomas
M
Henderson
Bo
Hopmann
SPECIAL
THANKS TO.
Kobain
Chatters Cafe
&
Bistro
Mark Thiessen
Steven Halpert
Christina Appelt
W.B . 'Bennie' House, Jr.
Johnson. Johnson Baer, PC
Kathryn
M. Kase
Paul
A
Kubash
Richard B. Kuniansky
Chip
B Lewis
Melissa Marti n
Scott Martin
Brent Mayr
Kiernan A McAlpine
Patrick McCann
W.
Troy McKinney
Bobby D. Mims
David D Mitcham
Gerardo S. Montalvo
Mary Moore
Richard
L
Moore
Thomas D. Moran
Earl Musick
JoAnne Musick
John
Parras
Michael Pena
Michael H. Pham
Thomas
A
Radosevich
Scott Ramsey
Gary Roth
Joseph Salhab
Katherine Scardino
Kent
A
Schaffer
Stanley G. Schneider
Don
C. Smith
James T. Stafford
Chris T ritico
George
H.
Tyson. Jr.
Jane Scott Vara
as o
time
o primin
"Starting
with
virtually no resources and no support, this
scrappy little group of volunteers and underpaid defenders
have changed 'the capital of capital punishmenf in ways no
one believed possible. I encourage you to support the lifesavin
work of
GRACE.
Their compassion
WId
energy
will
multiply the impact of your gift many times over,"
a charity
for the defense of the indigent -Sister Helen Prejean
Activist and Author of
ead Man Walking
Never
another
sleeping lawyer.
What can you do to help?
Visit our website at www.gracelaw.org .
IHE
EFEN ER
http:///reader/full/www.gracelaw.orghttp:///reader/full/www.gracelaw.org -
8/11/2019 2010 Winter Defender
18/32
;
I ( Cay
t
~ o l l e 1 t g u e ~ "
/ / about Juvenile Certificatiol1
rPat
McCann
\
j
, - '
Every once and a while, ~ m e sees o m e t h i n g being don
(
by
one's friends and colleagues, and one scratches one'
~ a d wondering why l certain thing
is
done this way o
'/ that. Sometimes the answer .is simply "That is ~ way
judge wants it , sometimes there is
no
answer. Sometim
the answer
is
that the w we
o
things
is
wrong. I
about
to
publicly scratch my, head and ask my collea
gu
who p r c t i ~ m j u v e n i l e courts a public question, and
'I h o ~ f n l i n d e e d I am truly asking, that somoone
wilLrespond, perhaps even being kind enough to pen a
response in this magazine for the next issue .
!
I am asking about what appears
to
be the current Harris
County'practice
ef
rolling ove}and never fighting juve
( certification of young
"
'ccused offenders as adults
in
fel
/
matters. I have cometo this question hones,1y, because
have
followed in
the p ~ t I : l
this a ~ p a r e n t rubbe samp
attempt to certify a young.offender for
trial
iii
(
the felony district courts. By that I mean I have
c o m
~
in
'AFTER such a deal was done, and after the young
offender had screwed up on community supervision of
deferred adjudication. I have seen the usual tragic resul
in
such cases, which are that the offender, o n
no mor
than sixteen, is sen,tenced
to
twenty or thirty or forty 'ye
on thep riginal charge of Aggravated Robbery, one of
S
most cOI11Ipon such charges for which
the
State see
certification
)
\
I
am
not going
to
pretend
to
be a juvenile
law
' expert. I
not
board certified in that area. I do not practice in thos
Harris County couds, so perhaps I am ~ s i n g someth
The general explanation I a v e heard o f f e r e d t h e
courthouse coffee shop for not fighting such certificati
is in fact
the
hope that the client w.ill get, due to their
tender years, the exact option of deferred I mentioned,
.'
THE EFEN ER
-
8/11/2019 2010 Winter Defender
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J (
/ b
/ /thus
~ r . n e h o w
keeptheirrecord
d e ~
getout
of
.detention,andavoidincarcerationinthe c u s t o ~ y
of
the
TexasYouthCommission.Iamsorry,but if thatisthe
/ r e ~ o n , thenIhave tochallengethelogic,atleastasit
normallyworksout.
(
,
/
Mostteenagerswho
~ n i m i t
felony&imesarenot) ikely
(
gOIng tohavetheskillstoc,ompletealongperiod
of
communitysupervision,particularlyinHarrisCounty,
wheretherevocation/adjudicationrateisfarhigher h ~ n
theaverageinthestate.Teenagershavetroublegettingto
schoolontime; letalonetakirigcaretofulfill-the
\ Q l i g a
i o n s of
adultprpbation.The"prize"
of
gettinga
slimchance{ocompleteanoneroussupervisionisthat
one
e x p o s e
youngmen[thestatisticsareoverwhelming
thatthosecertifiediiiHarrisCountYareblack
or
Hispanic
males]to ~ e n g t h y potentiallylife-long,sentencesfor
minorviotations
of
theterms
of
theirsupervision.The
certainty
of
theirb,ringadjudicatedis.almosta'given.This
(
P
tlze"
of
possible
d e f e
adjudicationisnot'inthe
client'sbestmterests,nomatterwhatthey
or
theirparents
mayask.
J ' of /
f . / . .
( > / .
Thesenearlyautomaticcertificationsalsotakeplace
(
despitesignificantevidence
of
mentalhealthproblems
withmany
of
theseyoungmen.Theseproblemsare /
usuallydocumented
in
theverysamepsychological
evaluationsmandatedbythecourtsforeveryjuvenile!
Thatmeansthattheyareorshouldbeavailabletothe
attorneysonthecases.UndertheFam!lyCodeprovisions
applicabletocertificittion,suchmentalhealthconditid
nS
).
aresupppsedtopreventcertification
and
transfertothe
adultsystem.Oftensomeover:workedcontract
'psycbologistthatdoestheevaluationsfor
u v e n i l e
P r o b a t hasdetermined,despitethe .evidenceof anIQ ,
of
sixtyandthepresence
of
hallucinations,thatthe
youngsteris"competenttobetransferred"toadult
criminalcourt ; .
(
J
'. ) \
Nooneeverseemstofighttlleseassembly .
assessments,or asksformore.timetocontestthe
.certification,
or
getsarealadlitem ~ p p o i n t e d .
if
the .
(parentsarenotprovidinganyhelp
tQ
contestthetransfer
toadultprison,
..
er,Imeantcourts,right. In felonycourts,
oncethevirtuallyinevitableadjudicationtakes\place,this
evidenceoftencomesto1light. It simplycomestolightfar
toolatetohavedonetheclientmuchgood.
I
/
/
Approximatelyahundredor soyoungmeneachyearare
certifiedtostandtrialasadultsintheHarrisCounty
JuvenileCourts. Theseteenagersfacealmostcertain
adjudicationIFtheyobtaincommunitysupervision;
otherwisetheyfacelongstretchesinadultprisonsw}1ere
theyarelikelygoing
to
bepreyforolder,larger,more
violentpeople. Theirchances
of
actuallychangingthe
course
of
theirlifeisvirtuallynil. IrecognizethatTYCis
n o ~ theplaceanyone itwere,orthatanyonewishes
toseeanyyoungoffendersentthere. However,Juvenile
Probation, ~ n d TYC,atleasthavesomeaspects
of
their
programsthat
try
to,ehabilitateorretrain-educatethese
youngmefi. WeknowthatIDCJ doesnotaccomplish
that. Nor istheremuchlikelihoodthatyouthfuloffenders
willhavetheirmentalproblemsgetadequateattention.
L
BeforeanyonethjnksIamunqulyweep! aboutthis,letme
remindyoutheseyoungmen,whomighthavebecome
peacefulcitizensunderjuvenilesupervisionor inTYC,
...
willgetout
of
prisononevday.Theywillstillbequite
young,angry, ~ t r e a t e d uneduca1fl.andvirtually
unemployable. >
- ) " .
/
U ,
Iknowtheact
of
askingthisquestionwillirritatethose
whodonotwishtoquesnbnthewaythingshavealways
workedor thosewhobelieveIamnGtqualifiedtoask
/
thesequestions.Idonotwish
to
hurtfeelingsbutIdonot
knowawaytoaskthiswithoutcausingsome
consternation. However,asmyfatheroncesaid
to
me.{
"son,
if
youneedlove,youshouldHavebeenafireman." I
hopethatmycolleagueswhopracticen juvenilecourts
willjointhis,debate,a n ~ answerthesequestions;Whyare
weinsucharushtoputsomanyyoungjuvenilesonthe
fasttracktoprison? Whyaren'tthesecertificationcases
foughtmoreor debatedmoreinthejuvenilecourts?',
Pat McCann is a past president ofHCCLA. He is certified to
handle death penalty cases in Texas and has taught on death
.
penalty appellate law
aniJ.
criminal procedure as an adjunct
professor at
hurgood
Marshall Scliool
9f
Law
. He has served
as a Board member or the Fort Bend Criminal Defense Lawyers
ppcigtion
and
is Chair
of
the AdvisoryBoardfor the Fort
BendMental Health Defenders. .
Offices o fPatrick F. McCann I
909 Texas Ave Ste. Houston:Fexas
7"7002
.;J
3-223-3805
' /
J
/
/ /
THE
EfEN ER
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8/11/2019 2010 Winter Defender
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Letters
to the Editor
9
I sent my Christmas wish list to our judges two years ago.
Some of them are stiLi talking to me.
T9 lJI 'W Ft twt J
t./:
First, let me say I am a big fan of all our Federal Judges
The fact you are all appointed for life, has nothing to do
with it Seriously, 1 like the fact that in federal court we
are not saddled with the ugly partisan politics that we
fi
nd
in state court.
But, I still have a Christmas wish of you: How about
allowing lawyer voir dire?
On a misdemeanor OWl with a maximum punishment of
six months, a county court will give me 30 minutes to
voir dire. On a federal fraud case, where my client is
looking at
1
years without parole, I get no voir dire.
I know federal law allows this, but is this really fair?
Potential jurors are intimidated by federal court.
When a federal judge asks questions, potential jurors
lUlderstandably tend to be mostly quiet
or
agreeable.
Even the nicest Federal Judge can be intimidating to a
potential juror, simply by virtue
of
his
or
her position.
Maybe it 's the robe, I don't know.
1do know that allowing me one measly hour of voir dire
ttb
1ere is
so much at stake, (particularly when the
QitltmneIlt has spent months
or
years investigating),
hardly bring the wheels
of
justice to a halt. So, for
.l .ICIi3. my wish is for you to consider allowing
IR W
V f r voir dire.
T9
lJl W
f
fiAtt;
~ U t . 1
~ u - v t
i ~ ~
I know you all, and know that while we have our ......
1.; 1
.....
differences, you are in
my
opinion well-intentioned. I
know that being a state judge must be very difficult. 1
would not want the job. I once told
my
friend, Judge
Caprice Cosper, It must be very hard to be fair .. .ALL
DAY LONG "
You may recognize some of these Christmas Wishes;
that's because they were on my
2 8
Christmas Wish
List. I am hoping they will not still be onmy
2 12
Christmas Wish List.
1.
Grant Pre Trial Release Bonds
This issue came up during our recent election and is
finally getting the attention it deserves. again urge our
District Court judges to grant PTR bonds to non-violent
first offenders, particularly on state jail felonies like small
possession cases.
We
are exporting pre-trial detainees,
chained humans, to Louisiana. Granting PTR bonds is
fair and it will help solve the problem
of
jail
over-crowding and save the county hundreds
of
thousands of dollars.
In County Court, please stop the dismal practice of
denying PTR bonds to poor people, thereby keeping these
same poor people in jail on misdemeanors.
A presumptively innocent person, charged with a
non-violent misdemeanor, should not have to stay in jail
because they are poor. Ifyou deny a
PTR
bond to a
person on a misdemeanor, we all know the Hobson'
choice" they will face. They will be told, "You c
an
plead
guilty today and get out in 30 days,
or
you can reset your
-
8/11/2019 2010 Winter Defender
21/32
cbOose're plead
than to
fight their
nvr
They plead guilty
to get
ou tofjail. They
- . J to secure their liberty. My wish is for all
Co
urts to stop this insidious practice. When you
poor people PTR bonds and then an hour later
their guilty pleas (all of whom are represented by
or maybe two lawyers) is justice really being served?
Stop the Plea
MUI
in County Court
My wish is to stop taking mass pleas from a chain
of
defendants, most ofwhom just met their lawyers that
mo
rning, on the first setting in court. Your Federal
Brothers and Sisters might be shocked by the Plea Mill
at
12
01
Franklin. What effective investigation has been
ne for these indigent folks? re they really pleading
guilty because they are, or do they just want out ofjail?
Federal Judges and some of our more distinguished state
judges, take guilty pleas very seriously. They are all on
the record. The judges ask detailed questions to ascertain
whether the defendant has received effective assistance of
counsel. There is no such inquiry when our County Courts
accept mass pleas of guilty each day. If the defendants
were asked how many times did you meet with your
lawyer? The answer would most often
be
Once today,
for 5-10 minutes or even Who is my lawyer?
A Federal Judge would rightfully reject such a plea; so
sbouldyou.
3. Stop
x
Parte Communications with the ADA
My wish is that State and County Court judges would stop
long standing practice of ex parte communications
r u J l the Assistant District Attorneys assigned
to
their
'II '.
t
is not fair. Could you imagine the outrage that
occur
on
a civil case iflawyers from one fmn were
-given non-stop ex parte access to the judge? Sometimes
the communication is simply about which trial might go
first but
tlrls gives the prosecutor the advantage of
owing which to
pr
epare and gives the appearance of
" l ' D ] : I r : i e 1 t y
that
we should all seek to avoid.
4.
P
JI)
Appointed
awyers
for
Their Work
My wish is that State and County juages would
arbitrarily cut vouchers for court appointed
I H U i
I I I I I
Arbitrarily cutting their vouchers serves only
to
~ i d I I I
other good lawyers from participating in the co
urt
appointed system. Lawyers must be reasonably
compensated for their work. If we think there are too
many court settings . ..well, see wish #5 .
5.
Justice is Not Measured
by
the Size Your Docket
My wish is that judges stop worrying so much about the
size of their dockets. Please remind your Colleagues to
care more about the quality ofjustice in their court and
less about the size of their docket; their place in history
will depend far more on the former rather than the later.
Please, consider all of the above as simply one lawyer's
Christmas Wishes on how to make the Criminal Justice
System a better system. I mean no offense by my
suggestions. and I make them in good faith in the hope
that someone out there with a robe on will be less
affronted and more inspired. We must lean toward the
future
if
we are ever to get there.
Robb Fickman is a past president
and
current board
member ofHCCLA with
27
years ofexperience zealously
defending people charged with criminal offenses in state
and ederal court. He is reputed to have invented the
Molotov cocktail in a former life.
I
713 655 7400
mailto:[email protected]:[email protected] -
8/11/2019 2010 Winter Defender
22/32
BURNS
B IL
BONDS
Shaun, John, Shannon and Shelby
License 74346
Family owned
and operated
since 1971
Bilingual staff
with
over 100 years of
experience
.:. We advocate a paid in full attorney
is
a defendant's best defense
.:. Non-Arrest Bonds - we
accompany
your
client to
the jailor from the courtroom
713 227 340
exas 77007 [email protected]
mailto:[email protected]:[email protected] -
8/11/2019 2010 Winter Defender
23/32
-
8/11/2019 2010 Winter Defender
24/32
With its annual Fall Picnic, the Harris
County
Criminal
Lawyers Association proves
to be
a
progressive
organization. I remember when our
events used to be in the
banquet
room at
the
Holiday Inn, said attendee
Mark
Bennett. Yeah,
and
it
would just
be
the guys with their dates,
said
Jen as she
helped
the kids
to rainbow
bowls
of Dippin' Dots ice
cream.
We've
come
a
long
way, baby.
Our job
sets
us
apart from all others. Criminal
defense
s
meaningful
and
rewarding - but
it
s also controversial, and it s definitely not PG
rated.
With
the
Fall Picnic,
we
set out to
generate
good
will
and unity. Welcoming families and
friends with open arms and creating some good
wholesome fun nicely
balances out the
radical
aspect
of
our profession.
At
heart, the nature
of
our
group s to be
supremely generous
and
compassionate, particularly for the less fortunate.
At the Fall Picnic, our
members
bestowed
considerable
donations
on
the Gulf Region
Advocacy
Center (GRACE), a Houston based
charity providing
high
quality capital
defense
services, and Friends of BARC, a
non-profit
organization
rescuing innocent
animals from
capital punishment at the Houston pound.
Todd
Dupont graciously
donated
a brand new
O'Connors Criminal Codes
and his book, Crimes
and
Consequences, to the highest bidder. Thanks
to
Robert Pelton
for
his generosity as he
topped
the
charts in
bids.
With over 200
members
and friends in
attendance,
criminal
defense
lawyers overran
the
Downtown
Aquarium on October
24th.
W e
pet
stingrays and watched
white
tigers bat pumpkins
around like balls. We took
a
train under
water
with
the
sharks and
sawall of
downtown from th
top
of the ferris wheel. For this, we
are all
stronger
and
happier.
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8/11/2019 2010 Winter Defender
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8/11/2019 2010 Winter Defender
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Since moving to Texas 20 years ago, I have gradually
taken up hunting. Aside from providing a great way
to spend time outdoors and forget the problems at the
office, this hobby has occasionally provided some
food for the holidays and good times with friends. I
will confess, however, that when I started doing this
I was terrible. Over the years, through pointers from
friends, one
o
whom was Tucker, a fine sportsman
and an avid shooter. I have progressed from being a
true tenderfoot
to
actually being a mild threat to an
unwary deer, provided it was distracted and taking
medication from a feeder. Even a few slow and
straight flying ducks have wound up in my stew pot.
One thing both Tucker and I have agreed upon over
many conversations is that hunting can teach much to
criminal defense lawyers. This article is an attempt to
distill a few principles that apply
to
both good hunters
and good lawyers. Any mistakes are mine, and frankly
any wisdom is Tucker s, who truly distilled these
thoughts into a usable format.
Good
hunters like
good
lawyers
.
are quiet observers.
Would good hunter bririg a Blackberry or an iPhone
to the tree stand? Probably not, and therein lies a good
lesson for the novice lawyer. Put down your smart
phone in court for a moment. Don t lie and pretend
you are not texting while the bail iff or the judge is
busy.
Now
.look around. Which ADA is in a bad mood?
Observe your surroundings. Is the judge irritated and
sentencing a defendant with a case eerily similar to
yours to a long term
o
years? Listen. What is the
trial case load like for this court? Look. Is the court
probation officer saying something tq another attorney
about what rehab programs this court prefers? Watch.
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8/11/2019 2010 Winter Defender
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Is the bai liff trying to
be
kind
to
an accused's family
member? These are things we all need to know , and
frankly given our busy dockets and time pressures often
do not pay attention to. Try this
just once in an unfamiliar
court,
or
even a
court
you think you know well, and I
promise it will be worth the fifteen minutes you will be
unable to answer email.
Good hunters
are
patient
If your experiment above results in a situation where you
realize it
is
just a bad day to be in court...leave. Sign the
reset and do not attempt to stay -
it
is
just
not
your
day.
There will be another. Do not risk a terrible offer
or
a bad
result when you can return to the deer stand another day.
This also applies to dealing with Assistant District
Attorneys. These are an underpaid, often over-worked, and
harried lot. Realize that they have good and bad days , may
be following policies that they do
not
agree with, and may
not have had time to actually examine your case. Do you
want to approach them on unfavorable ground, where the
shot conditions are bad? Or do you want to pick a better
spot, where the shot is clear and the wind is right, say, at
their office over a cup
of
coffee? When you read a case
file, do you know when you are going to need a bit more
investigation to convince the ADA that your case
is
much
better than they realize?
e
the patient hunter, and do not
fall victim
to
wanting
to
get this matter resolved. A good
result for your client is worth the wait,
just
as a good buck
or a fine meat-doe is worth the patience.
Good hunters pick their shots
There is a moment in the day, usually right at dusk, when
the wind stills, the light is soft, and the insects buzz dies
way, when every sense in your body tells you a deer is
about to show. These moments happen
in
a trial , and
they happen in court every day,
when
the people are
ready to listen, you have the good reasons handy
why
your case should be dismissed or reduced to a very small
misdemeanor, and that is when you, the good hunter,
should take your shot. If that
moment
is not there, then
do not shoot. Sometimes this is hard, and requires a great
deal of the patience mentioned in point 2, but with
diligence, investigation, and a knowledge
of
the ground
and the winds, you will have a much better chance of
getting that deer
or
that dismissal.
y
the way, there is a corollary
to
this - the prey has the
right
to
get away, if one is following the rules. The duck has
the right
to
be swifter than you, and the deer more clever.
Try reminding your friends of this when the situation
arises, whether on the defense side or the prosecution.
Good hunters practice
There is a reason good hunters spend time at the shooting
range, and in walking the ground they will hunt,
or
in
reading about deer
or
other animals' habits. It helps.
Good hunters spend time honing skills so they can depend
on them when the time comes. Good lawyers do the
same. They spend time at CLE, reading the law, talking
with other lawyers who have hunted the same courtroom
ground, and learning the facts of their case so they can
depend on their knowledge and skills when the time
comes.
Good
hunters
are
careful
The
things I watched good hunters do that impressed me
most was
how
deliberate they often are. These habits
make good
sense
around firearms, in bad
weather
, and
in unfamiliar
ground.
They
make
just
as much sense
in
court.
As an example, one of the better hunters I ever saw [and
I am still learning] would check and walk every part
of
his lease several times a year, doing nothing other than
observing.
He
laid out his camp and his gear exactly the
same way every time he set up. I even knew which pocket
he kept a small first aid kit
in
[something he shared
in
case an accident happened]. Good success comes from
good habits. This hunter was methodical even in the way
he field-dressed game, taking care
to
never spoil the meat
or endanger himself because of acting without thinking.
This has implications for us in so many ways. Do you
know enough about your client to truly recommend what
is best for him? Are you methodical about gathering the
information in your case? Are you careful to inform your
client fully about every possible down range complication
in
your case, such as the implications for immigration
or enhancement
ifhe
takes a deal? Doctor s take an oath
whose first precept is Do
no
harm. When we slow down
and think for a moment about the things we do, it usually
works out better. Having done lots of thoughtless things I
later wished I had not, trust me on this one .
THE EFEN ER
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8/11/2019 2010 Winter Defender
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The Deer Hunter by Pat McCann and Tucker Graves
Good
hunters
work hard
to
preserve their
hunting grounds and improve them.
Ever seen a hunter plant some oats on his lease for the
next season?
Or
remove some brush that could be a source
of
potential fire problems?
Or join
a hunting group, like
Ducks Unlimited, to be certain his voice is heard with the
legislature? Lawyers, like hunters, need to preserve and
improve the places we hunt, which means
COUltS.
t
means that , yes,
we
should
join
professional
organizations.
We
should work with the legislature and
the state bar
to
improve how we do things.
We
should
treat
judges
and adversaries
with
respect and try to gi ve
them the tools they need to help us.
Plant some
oats. You
may be surprised
at
the results.
Good
hunters are teachers.
would never have gotten a duck or a deer without
someone
to
teach me.
[
am fairly certain that some
of
the
folks who tried were pretty frustrated with me most days]
would never have gotten a not guilty verdict or a reversal
or a good plea or a dismissal without someone to teach
me. When you get those things, you have an obligation
to
pay them forward . Give a pointer
to
another lawyer. Tell
someone what the court they are heading into is like. Be a
mentor. Share what you know, whether at a
CLE
,
or
over
coffee at the courthouse, or a beer after work .
Good hunters
know
that last season's trophies
won't help you this season.
Trophies are great for memories and offer teaching
moments. They do not move tomorrow's cases. They are
proof of past success, but not of today's efforts. Trophies do
not make a hunter - work, patience, practice, and hunting
make a hunter. Hunters hunt. Talkers brag about trophies .
Good
hunters are
always
trying
t learn
and try
new things that may work.
This seems counter-intuitive to being careful ,
but
it is not.
Good hunters regularly test and evaluate new gear, try
new places to shoot from,
or
apply a friend's suggestion
to
improve their shooting,
or
new recipes for cooking and
enjoying the fruits
of
their hunting. [Cooking up a new
recipe for deer tender loins for
my
family was
one of
the
ni
cest hunting moments have had.]
What
works is kept,
what does not
is
ruthlessly discarded, as it should be.
Each good hunter, like each good lawyer, is a constant
THE EFEN ER
laboratory for their own improvement.
We
should not fear
new things, we
just
should evaluate them
in
the tough
laboratory
of
reality that we all work within.
Good
hunters are humble
but
confident
A realistic tempering
of
one's view
of
one's
own