Parker County District Judge Retires

Word hit this week that Judge Don Chrestman of the 43rd Judicial District in Parker County will retire come December 31.  Chrestman has been on the bench since 2000.  See the Star Telegram Coverage and the Weatherford Democrat Coverage on his retirement.  No word yet, at least not publicly, on who will be appointed to fill the remainder of his two year term.

Jeff Swain of the District Attorney's Office had some positive comments to say about the Judge, and I'd have to agree with him.  The times I've appeared in Chrestman's court, he's been fair, heard both sides of the argument, and made a reasonable legal decision.  I know stories get tossed around about judges that side with prosecutors or, as some defense attorneys say, "sit second chair for the state on every case."  IMHO, Chrestman has never shown me that he is one of those types.  Parker County is losing a good judge.

Remembering Our Veterans

It may not seem like a criminal justice topic to some, but today is Veterans Day and I think it hugely important to remember what this day is about. I know that I would not be able to write this blog if it were not for the courage and sacrifice of those who have fought, who have sacrificed, and who have died to give me the option. Our criminal justice system is what it is because a group of men fought for it to be so. I'm sorry, men and women, who have fought from the beginning to make this country what it is. With that in mind, I think it important that we all take a minute to understand the history—our history—of this day and our veterans.
First, let me say Happy Birthday to the United States Marine Corps, which turned 235 years old yesterday, November 10, 2010. The service was founded in 1775, but it wasn't until November 1921 that Maj. Gen. John A. Lejeune issued Marine Corps Order No. 47 (Series 1921), an anniversary proclamation to be read to the command on November 10 every year. I've heard it said "once a Marine, always a Marine." To all those who are United States Marines, semper fi.
When my father was young, Veterans Day was actually Armistice Day. World War I ended hostilities with an armistice on the 11^th hour of the 11^th day of the 11^th month in 1918. Though not the official end of the war, which would come by treaty in June 1919, many regard November 11 as the "end of the war to end all wars." President Wilson proclaimed the first commemoration of Armistice Day in 1919, and in June of 1926 the United States Congress passed a concurrent resolution stating the day "marked the cessation of the most destructive, sanguinary, and far reaching war in human annals and the resumption by the people of the United States of peaceful relations with other nations." In May 1938, the day became an official holiday.
In 1954, after World War II (the greatest mobilization of fighting men and women in American history) and fighting in Korea, the day was changed to Veterans Day. In 1968, Congress, in an effort to establish the holiday as a three day weekend, moved the holiday to the fourth Monday in October, which did not go over well. In 1975, Congress returned celebration of Veterans Day to November 11, which took effect in 1978.
I hope you all will take the opportunity today to remember why we have the freedoms that we do, and we are able to criticize and attempt to improve our system of justice. Even in a time when you may or may not agree with the politics of a conflict, I hope you will support those who give their body and soul on behalf of their country. From those that pledged their lives in 1775 and up to today, they deserve our honor and respect.
The information above is chiefly obtained from:
U.S. Army Center of Military History
Military.com
Patriotism.org
Office of Public and Intergovernmental Affairs
Marines.coms

Wednesday Bill Proposals

Only 13 bills submitted yesterday, and of those two are criminal bills that we've seen before.

HB 243 is a companion bill to SB 46 which would create a new offense for using a cell phone while driving. As many different versions of cell phone bills as we've seen thus far, it's hard to imagine that something won't come out of this legislative session regarding the use of cell phones while driving.

SB 203 is yet another version of a bill to modify the way burglary of a motor vehicle cases are handled. This version would not make BMV an automatic felony again, as other versions I've discussed would, but it would increase the enhancement. Under this version of the bill, a single prior conviction for burglary motor vehicle would make the offense a state jail felony. As it stands now, a prior BMV conviction makes a new offense an enhanced misdemeanor, and two prior convictions is a state jail felony.

Don't expect much to come in today, being Veteran's Day. So far I haven't seen some of the major discovery bills or other changes we have expected either.

Willingham on Agenda for Medical Examiner’s Conference

I just received word of the agenda for the Tarrant County Medical Examiner's yearly conference, Current Trends in Forensic Science 2010. I have attended the conference in the past, and it is generally a very low priced and excellent program. The Tarrant County ME has made an attempt to stay open and honest in the forensic sciences, and holds the conference every year prosecutors, defense attorneys, and forensic practitioners. This year, though, looks to be especially interesting.

On day three of the seminar, Saturday, December 11, 2010, will be a panel discussion regarding the Cameron Todd Willingham case. Given that this topic was declared off limits for the Texas Forensic Science Seminar in Austin back in October, I'm surprised to see that they are now willing to discuss it. That is especially true given that the speakers include three members of the Texas Forensic Science Commission, and arson expert, and lead counsel for the Innocence Project of Texas.

According to the TCME website, each panel member will discuss aspects of the case and then open for audience questions. I'm sure there will be more than they can answer in the four hours allotted for this segment, but it will be interesting to see. Of course, the first two days also offer some interesting topics related to science and the law, including presentations by Judge Sharen Wilson of Tarrant County Criminal District Court 1 and several members of the TCME staff on the NAS report and admissibility. The cost is $225 for early registration, $250 for regular registration, and includes TCLEOSE credit for law enforcement, CLE credit (pending) for lawyers, and training for forensic scientists.

Bill Filing Day Two

Yesterday closed out with the legislature filing in another 40 bill proposals. See the complete list of 40 here. As was the case yesterday, it appears that many of the bills are duplicates or highly similar versions of bills already proposed by different authors. Here are some of the key points.

HB 215 is a House introduction of the bill to try and fix some of the many problems with photographic and live line up presentations, the inherent bias, and false identifications. In essence, the bill directs the Bill Blackwood Law Enforcement Institute of Texas at Sam Houston State University to create a model for law enforcement agencies to follow. My problem with this bill, already filed as SB 121, has no teeth. It would allow evidence of whether the procedures were or were not followed to be introduced into evidence at trial, but does not exclude its introduction altogether. If we are going to do this, we should be serious about doing it.

Likewise, HB 219 is a copy of Senate bill SB 123, which would make it a requirement to electronically record certain custodial interrogations. I have concerns about the bill allowing the exceptions to swallow the rule. First, rather than include all violations of the law above the grade of a Class C misdemeanor, the bill specifies felony offenses in which recording is required. Second, the "good faith exceptions" seem to allow room for abuse. If we are really going to fix the problem, and I think it's clear there is a problem, then eliminate all potential problems.

I believe I omitted HB 20 from the discussion yesterday. This bill is an attempt by Rep. Debbie Riddle, the early filing author of the immigration plan that reportedly camped out so she could file her bills early, to increase the offense of Burglary of a Motor Vehicle from a misdemeanor to a State Jail Felony. This is actually a reversion, as the offense was lowered from felony level under Governor Ann Richards and will, of course, put more pressure on a State Jail System that is under criticism for not living up to its promises. Yesterday, HB 221 was filed in by Rep. Fletcher to accomplish the same change.

Both the Senate and the House introduced bills yesterday that would tweak the sex offender registration requirements, a system that its advocates argue is beginning to lose its effectiveness due to overuse. SB 198 and HB 227 both relate to registration, with some give and take in each direction.

It will be interesting to see what comes out of today's session, but thus far we have seen an attempt to create a few new felonies and offenses. Changes to BMV law would create new felonies. The cell phone bills I discussed yesterday would create new traffic offenses. HB 47 creates an offense for possession of a spike strip or "tire deflation device." HB 25 adds "watercraft" or boats to the unlawful carrying of a weapon statute. Lastly, HB 41 makes it a felony for making a false report to a police officer when that false report involves a police officer committing a felony. I'm sure there will be more new crimes and new felonies to follow.

Legislative Pre-Filing Begins

I've heard it said, and recently (though I can't remember by whom) that the founders of our state had a twisted sense of humor when they decided our legislature would meet in "odd" years. Be that as it may, the 82^nd
Texas Legislature will begin session on January 11, 2011. Yesterday opened the date for "pre-fling" of bills under House Rule 8, sec. 7, and Senate Rule 7.04(a). I've looked through the list of 388 bills filed in yesterday to pull some of the more interesting criminal justice related concepts.

Immigration is a hot topic, and some such as Rep. Debbie Riddle have gone so far as to file an "Arizona Style" immigration plan that would create a new criminal offense for immigration. HB 17, HB 18, HB 21, HB 22, HB 176 (English as primary language), HB 177, and HB 183 have been submitted in the House regarding immigration. In the Senate, SB 124, SB 126, and SB 146 all address the issue, including the creation of a new offense for transported an undocumented individual.

Cell phone usage while driving seems to be a big player this session. In the House, HB 37, HB 93, HB 103, and HB 105 all address varying issues of the topic, from removing the "sign defense" for use of a cell phone in a school zone to making it an offense to use a cell phone while driving at all. The Senate has proposed SB 46 and SB 119 to deal with the topic. While I'm sure there is more to come, it seems clear that the use of a cell phone while driving, be it talking, texting, or emailing, is very much on the agenda this time around.

HB 163 and the accompanying Joint Resolution, HJR 35, seems interesting. It's an attempt, as short lived as I believe it will be, to abolish the Texas Court of Criminal Appeals and put us in line with the vast majority of the country in having a singular Supreme Court to be the ultimate decision maker for state criminal issues. While I don't expect this to get far, I have to wonder how much is based on the Sharon Keller hearings.

For those who are using K-2 as a substitute for marijuana, the legislature has the product clearly in their sights and may follow the lead of many local cities in prohibiting its use. HB 49 and HB 108 are an attempt to address the issue by adding (certain synthetic derivatives of marihuana" to the Texas Controlled Substances Act. I'm particularly interested in seeing the medical and scientific testimony on these bills and the reasoning behind the bans.

I find HB 96 to be somewhat troubling. With HB 96, the legislature seeks to establish an exemption to "the rule" in criminal trials, which would allow the prosecutor to pick a police officer or investigator to remain in the courtroom during the entirety of a trial. As the state chooses the order of its witnesses, that means the primary "investigator" could remain in the courtroom to hear all witness testimony before taking the stand to tell the jury what he/she learned and believes happened. I believe it is both unnecessary and casts additional doubt on a system that does not need it at this point.

HB 99 seeks to establish a new offense for Aggravated DWI, HB 101 would establish a new DPS run hotline for DWI reporting. HB 137 would establish a distinctive symbol on the driver's license for a person convicted of certain intoxication offenses. HB 189 looks like it would allow the judge to give a defendant deferred adjudication in certain circumstances, forbidden under current law.

Note that the deferred adjudication pardon has reappeared this term. Last session, the lege passed the bill that would allow the Governor to pardon an individual who has completed deferred adjudication. Under Texas law at present, pardon is not allowed because the conviction is not final, but expunction is not available because of the community supervision and other components. Gov. Perry vetoed the bill after the last session because the Constitutional Amendment that went with it failed to get done. This is our second shot at a good bill for the community. SB 144 is the bill to modify the CCP, SJR 9 is the resolution for a constitutional amendment.

There are various other provisions put forth in the Senate that would influence the integrity of convictions and the system that are worth talking about more in depth as the session draws closer. SB 121 is an attempt to clean up line up procedures to eliminate institutional bias and influence leading to false identification. SB 123 would require all custodial interrogations to be electronically recorded, thus lowering the risk of false confessions, which are a growing concern.

The voter ID bill is once again rearing its head as well. I don't, however, see any of the regular discovery bills requiring open file policies or some of the other issues rumored to be headed our way. Stay tuned.

The Daily Show with…Ricky Perry?

That's right, Texas Gov. Rick Perry will be on The Daily Show with Jon Stewart tonight to promote his new book Fed Up! Our Fight to Save America From Washington. In the book, Perry appears to argue that Washington is guilty of overspending and has taken too many rights away from the states. See the NPR coverage here, coverage from the Dallas Morning News here, and Newsweek here to name a few. The appearance on tonight's show is part of the tour to promote Perry's views on the way government should be run.

The big question, however, is what else Jon Stewart will have access to question Perry about. As Grits has pointed out, we can only hope that Stewart will corner the esteemed governor about his comments regarding Anthony Graves, a Texas man released from Death Row after some 18 years. Following the release of Mr. Graves, the Governor announced that this exoneration is proof that "…our system works well…" Somehow, having an innocent man in prison for almost two decades is a shining example of the way the criminal justice system should work. This is particularly frightening in light of how Graves came to be in prison in the first place.

Graves was released based on what special prosecutor Kelly Siegler described as "horrible" and one of the worst cases of prosecutorial misconduct she had ever seen. The misconduct was committed by former prosecutor Charles Sebesta, who went so far in the case as to threaten to prosecute the wife of the actual killer if he did not name Graves as an accomplice. Charles Sebesta represents everything that is wrong with the criminal justice system, but unfortunately will not be held accountable for his actions. He flatly denies the complaints about his fraudulent prosecution of an uninvolved party, a denial that Siegler seems to have trouble believing, and the State Bar of Texas has dismissed a complaint filed against Sebesta by Graves' attorney. See coverage by the Houston Chronicle here. With no real teeth to prosecute district and county attorneys who play so fast and loose with the rules, Sebesta will go untouched for his actions.

Beyond Graves is the question of the Texas Forensic Science Commission and the Cameron Todd Willingham case. Willingham's case is a hot issue in Texas now, given the fact that our state may well have executed a man for a crime he did not commit. Indeed, our state may have executed Willingham for a crime that did not even happen. Perhaps even hotter, however, is Gov. Perry's rotation of the TFSC tasked with hearing evidence regarding arson investigation "science" in Texas, in particular evidence about the Willingham prosecution. In the months leading up to this year's election, Perry rotated the chair to Williamson County DA John Bradley, who has done everything short of burning the Commission's files to prevent a hearing on the matter.

Now, the election is over, and Perry will appear on a show not known for pulling punches or supporting a "Conservative Agenda." Certainly, appearing on the show is still a risk for Perry where speculation runs that he may make a run at the Presidency in 2012. Of course, his people are aware of the risks, and surely they would not allow the governor to appear without taking precautions regarding the questions he is to be asked. Either way, it should be fun to watch. To help make sure of that, the Criminal Justice Blog at change.org is running a twitter petition here to convince Stewart to ask our governor the critical questions we would all like answered.

Watkins Wins Reelection

Between court appearances and everything else yesterday, I did not get a chance to congratulate Craig Watkins on winning his second term as District Attorney for Dallas County. Watkins survived a fairly nasty election and some rather ridiculous suggestions from his opponent, Danny Clancy. Clancy, for example, based Watkins for not trying cases, but apparently fails to grasp the concept that the District Attorney in big counties does not try cases. In fact, I've had some Assistant District Attorneys in other large counties make it clear to me that the last thing they want is their elected official, who is supposed to be the big picture guy, in the courtroom instead of making the global decisions.

Watkins has done great things for Dallas County and the State of Texas. His Conviction Integrity Unit has set an example for what the Code of Criminal Procedure requires of all prosecutors, to see that justice is done. I don't venture into Dallas County courtrooms very often, but it's good to know that Watkins is still keeping the ship on course over there. And yes, that is despite some of his recent missteps, which Grits for Breakfast has covered well.

On a separate election note, sympathies to Keith Hampton for losing his bid to become the newest judge on the Texas Court of Criminal Appeals. It is clearly time for change on that court, given the recent news and events, but the State of Texas was apparently not ready for that change to be in his direction. At least, no change in the democratic direction during this election year. Keith has done great things for the criminal justice system, for his clients, and for the Texas Criminal Defense Lawyers Association. The Court's loss will continue to be his clients' gain.

Another Prosecutor Out of Control

Last night the Dallas CBS affiliate, KTVT channel 11, ran this story about Nora Quezada, a North Richland Hills (a Fort Worth, Texas, suburb) soccer mom jailed by the District Attorney in Cameron County, Texas, for not appearing as a witness in a murder trial. Problem is the murder trial hasn't happened yet. It's been delayed at least twice now. Bigger problem, Quezada never said she would not appear, but instead advised Armando Villalobos, the elected prosecutor for Cameron County, that she did not have the money to make the trip and asked for help.

The troubles for Quezada, technically speaking I guess, began when she was 15 and living in Brownsville, Texas. Quezada's boyfriend at the time, Ricky "El Boy" Hernandez, allegedly killed three teenage boys as part of a robbery attempt—Jason Sexton (14), Robert Moreno (18), and Ricardo Mata (18). See the Brownsville Herald story here. Also note coverage by the Houston Chronicle from 2006 here. According to Quezada's account, and the coverage of accomplice trials such as here, she wasn't involved with or present during the shootings. That was on April 25, 1998. Quezada hasn't seen "El Boy" since.

Fast forward to present day. "El Boy" is in custody and Cameron County is planning a trial. They want Quezada to be there, even though she doesn't even remember her boyfriend from more than a decade ago, and so they subpoena her to appear in May, which she did. But after making the 9 hour trip with her husband and two young children, the judge continued the case and told her she would have to make the 551 mile trip again another day. That's when Nora realized she was in over her head. The economy is bad, and that makes it hard for a mother of two to take off from her job at a daycare, lose pay for at least a day or two at a time, spend money on food and motels, and drive across the state on a regular basis. Still, Quezada wanted to do what the prosecution asked, she wanted to do what she felt was her duty and help make sure justice was done. So, she did the logical thing and asked the Cameron County District Attorney responsible for prosecuting the case for help getting to the courthouse. Nora Quezada asked for some monetary assistance.

You would think such a request for assistance would not be a problem. The Texas Code of Criminal Procedure, article 35.27, provides for the reimbursement of witness expenses when they come from out of county. The law specifically spells out that every witness from out of county shall be reimbursed for necessary meal, transportation, and lodging expenses incurred as a result of attendance as a witness. Granted, the law specifies that the witness make out an affidavit, but how is a regular, everyday person—a lay witness untrained in legal matters and not represented by counsel— supposed to know the ins and outs of that provision? Doesn't it make sense that the prosecutor, the guy that put Quezada in this position in the first place, should help her with the process? Instead, what she got was a slap in the face from Assistant District Attorney Gillman, who allegedly told her that he was "not the Bank of America." Perhaps Mr. Gillman hasn't read 35.27 himself. I understand that these expenses are to be paid by the State and that the county may pay them and be reimbursed, but Mr. Gillman's response was not only ridiculous, it was inhumane.

Once the prosecution refused to help their witness come testify in their case when she could not afford to do so, Nora Quezada had no choice. She sent a brief letter to the Court advising that she could not afford to attend and would not be at the next setting. The letter and a note for the judge were placed in the file and that was that, nobody contacted her to suggest a solution, nobody offered to help her make a payment. Instead, Cameron County DA Armando Villalobos had her arrested in Tarrant County, jailed, transported in custody to Cameron County, and held her for three weeks until she could find an attorney to file a motion and get her out. Oh, and while she sat waiting in jail, the Cameron County DA interviewed her again about the case, and she told them again she could not remember anything. She and her husband are left now with a belief that the DA was attempting to coerce her into false testimony to help their case.

Nora Quezada is out of jail now, having had to promise the judge that she will be in Cameron County for trial, presumably to give testimony for Armando Villalobos on absolutely nothing at all. Hopefully, now that she has a lawyer of her own, somebody will help her pay the expenses for the trip, and certainly someone will file the proper forms to get her reimbursed. She appeared in Court on November 1 for a set trial date, but the case was continued to January.

One thing is definite, and that is that the Quezada's will never look at the Texas Criminal Justice System the same way again. Continuances are a part of criminal trial law, and they are necessary and proper. I don't fault the prosecution or the defense for having to reset this case, but there is great fault for the ignorance, arrogance, and abuse of authority exhibited by the Cameron County District Attorney and his staff. I doubt Mrs. Quezada will be able to trust Texas Justice again, if she ever did, and who could blame her? For that matter, if the prosecution really is this set on forcing her to testify when she has said she remembers nothing of importance, and if they are set on putting her in jail, questioning her while she is in custody, and forcing her to spend money she doesn't have with no hope of assistance, I'm beginning to question, as both she and her husband have, what the real motive is here. Maybe the prosecution is trying to avoid the mistrials they had in the co-defendant cases by securing some "stronger" or additional testimony. That is a real problem. Either way, Armando Villalobos, Mr. Gillman, and the staff of the Cameron County District Attorney's Office were way out of line. Hopefully, now that Nora Quezada's story has come to light, their actions will have consequences.

What Is Happening to Presumption of Innocence?

Recently, I was discussing with another lawyer the trial operations of a judge in a nearby county. This judge, sitting over felony cases, had apparently chastised my friend for taking a case to trial that involved only a State Jail Felony, the lowest level felony in the State of Texas. State Jail Felonies are punishable by anywhere from 6 months to two years in a state jail facility and a fine of up to $10,000. That is, of course, when probation is not an option and when the prosecution does not suggest a 12.44, which would allow for the felony to be treated as a misdemeanor. This judge does not generally allow for a 12.44, and the case in question was not probation eligible. In other words, the defendant had prior felony convictions which made it impossible under the law for the jury to give him probation.

The judge seemed to be irritated that this State Jail Felony was going to trial at all. In the court's opinion, it seems, the trial of such a low level felony is a waste of the county's time and resources. (Not, it seems, enough of a waste to prompt the judge to attempt to broker a better deal or suggest that he might issue a better sentence). This conversation made me wonder, what is becoming of the right to a trial by jury? More and more it seems that our system is one of plea bargains, which is a wonderful way to save time and money and secure a good outcome for a client with a weak case. But, what about those clients that maintain their innocence, that want a jury trial? Can their trial really be "fair" when the judge is angry that their case is not important enough to be contested in front of a jury of their peers?

This concept is not unique to smaller counties. For example, I have been in courtrooms where the judge is angry that the case is going to be tried at all, most often in misdemeanor courts. All too often judges want to admonish the defendant about going to trial, want to make sure that they understand how easy it will be for the prosecution to prove their case, and want to see if there is a deal the court could make to get rid of the case. Some of these judges go so far as to hold a grudge against the defense attorney for allowing the case to go to trial at all, suggesting that the lawyer, who will have other clients to represent and perhaps a family to support from being in court in the first place, will suffer untold consequences. It has to beg the question, where is the presumption of innocence going? Are judges presuming that every defendant before them is guilty, or are they legitimately trying to save the taxpayers (a/k/a the people that vote for them) money?

I'm a big believer in making sure that defendants know exactly what they are getting themselves into. There is a reason the system involves lawyers educated in law and procedure and a reason indigent defendants are provided with counsel at no cost. The reason, no doubt, is that the system can be tricky, and people can end up with results they never intended. Even with an attorney this is a very real danger. But, there is a difference between Judge X beating the defense attorney about the head and then brow beating the defendant into a plea with "admonishments" and giving the defendant the necessary information for their decision.

I have not had these same experiences myself, but I'm aware that they do exist. In court Friday, I asked a judge to make sure that my client was aware of the dangers in going to trial, but I never asked her, and she did not attempt, to "admonish" my client into a preferred choice. I can, however, see how easily another judge could go in the wrong direction. I cannot honestly say what the solution is, other than electing the right judges, but what does that mean when the cost benefit to the people at large is in direct opposition to the rights and needs of the Accused Citizen?

And So It Begins…

Texas is always in the news and at the forefront of criminal law. From the death penalty to controversial forensic sciences, we always seem to be a player nationwide in how criminal justice will proceed. My goal with this blog is to concentrate on those issues impacting the counties where I practice—Tarrant, Hood, Parker, Johnson—but also to generate debate about the issues that always face the criminal justice system. Debate breeds change, breeds freedom, and makes this country what it is. I can't say what ideas or comments will appear on this blog from day to day, or that it will have new content every day, or that you will even want to read what content is here. What I can say is that I will do my best to talk about issues that begin on the local level, in the courtroom and on the street.