Shout Outs

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Friday, March 9th, 2018
Shout Outs

Kudos to TCDLA Director Keith Hampton for his big save in front of the parole board. For the first time since 2007, the Texas Board of Pardons and Paroles voted to recommend a lesser sentence for a death row inmate. The board voted unanimously in favor of clemency for Thomas Bartlett Whitaker, halting a scheduled execution. Gov. Greg Abbott then approved the recommendation, the first such approval after 30 denied. Keith was also the attorney for the 2007 grant of clemency—for Kenneth Foster Jr. Congratulations, Keith, for the latest in a string of big wins.

A big shout out to SDR Editor Michael Mowla for working overtime trying to save the life of a man gone off the deep end. Michael was appointed to represent D, who suffered from a severe delusional disorder, shortly before his first execution date—which he got stayed. Before he could set a date to determine competency, Michael faced a judge arguing that he wanted the next execution date set. (“He actually asked me if I would ‘agree’ to a date. Yeah, right.”) Judge went ahead anyway. Michael fought it in state trial court and lost, then got the execution stayed by the TCCA. His expert, the state’s expert, and one of the court-appointed experts agreed that he was incompetent to be executed, using the correct standard under Panetti. Michael lost the case in the TCCA 8–1, then took it to federal court. The trial judge immediately set a third execution date. Michael fought it through federal district court, the Fifth Circuit, and by the day of the third execution date, had two petitions for certiorari and motions to stay execution pending in the SCOTUS. The SCOTUS delayed the execution for about three hours before they denied the petitions and motions. Shortly after he was executed, Michael notes, the trial judge posted the news on his Facebook page.
 Michael says: “At first [he] wanted to ‘fire’ me, believing I am (in his words) a ‘faggot Muslim Arab c**ksucker who is in cahoots with the DA and judge’ (he wrote this in a letter to the court—shows just how severely delusional he was). Eventually he came around and liked me, especially after the stays of execution. And, he found out that I am an ethnic Georgian, a Georgian Orthodox if anything, married to a woman, and my favorite beer is Duvel. Identity politics matter sometimes! Ha.”
 Hats off to you, Michael, for fighting until the bitter end. You did everything you could to save this man’s life.

And another shout out to the professor, M. Mowla, for his latest win in the CCA, this one on the issue of whether a defendant has a right to appeal from an order of shock probation if that order imposes an unconstitutional condition. The Court said yes it did, 5–4, deciding that the Court of Appeals erred when it dismissed D’s appeal for want of jurisdiction because (1) Texas Code of Criminal Procedure Article 44.02 allows appeals from a criminal action and a hearing on a motion for shock probation is a criminal action; and (2) the issue appealed was an unconstitutional imposition of restitution. Keep the wins coming, MIchael.

Kudos to Jack and Terri Zimmermann for a huge victory in the highest military appellate court. D, an active-duty Air Force Lieutenant Colonel and squadron commander, was charged in 2015 after a woman accused him of a 1997 rape. In the preliminary hearing, Terri established that the hearing officer found no probable cause—but that was only a recommendation and the command sent the case to trial anyway. The trial judge dismissed the case with prejudice on constitutional due process speedy-trial grounds (he found actual prejudice from the 18-year pre-charging delay). The government appealed and the intermediate appellate court reversed. Terri and Jack appealed to the Court of Appeals for the Armed Forces, the highest military appellate court. After oral argument on the due process issue, the court sua sponte ordered briefing on the statute of limitations issue, and ultimately reversed its own precedent. Congratulations, Jack and Terri, after a long and difficult battle.

Shout out to TCDLA Board member Jason Cassel of Longview for his wins in two murder appeals in the past couple months—in Kirkland v. State and McFadden v. State. In Kirkland, Jason got a 40-year sentence overturned due to erroneous instruction in the punishment phase. In short, the instruction as given had improperly required her to prove insanity beyond a reasonable doubt before the jury was authorized to even consider that in assessing punishment. In McFadden, the conviction overturned was where defendant asked for, but did not receive, a jury instruction on defense of property. Jason credits co-counsel Christie Merchant for her work on the cases, as well as trial lawyers Tim James and Sean Hightower for preserving the issue in McFadden. Good job all around, people. And especially to Jason for fighting the good fight.

A shout out to Brian Bouffard of Fort Worth for his work in the continuing saga of the Twin Peaks mass indictments. District Judge Ralph Strother dismissed cases against 13 of the bikers indicted in the May 2015 shootout, leading Brian to remark: “Though McLennan County prosecutors are ‘re-evaluating’ the cases, the fact is that an ethical district attorney’s office evaluates cases before they are indicted, instead of indicting people just to see if they will be intimidated enough to plead guilty . . . To the great credit of these innocent men, none of them, and none of us as their counsel, blinked. Jorge Salinas, a decorated United States Marine with two combat tours and an honorable discharge, an innocent man, did not blink. As his lawyer and his friend, I could not be more proud of him.” Stay tuned as events further unravel in the Waco cases, chronicled in the Facebook posts of member Robert Callahan. At press time, the latest development had Judge Strother asking the Texas AG’s office to pitch in and help on some of the remaining cases, but the state demurred, citing a lack of resources.

Kudos to Mark Griffith of Waxahachie for his recent string of successes. “After trying a case for a client for Continuous and getting the not guilty,” he says, “there were three other sexual allegation cases still pending. Today I was able to make the call that makes this job so rewarding. The other three cases were dismissed while waiting on trial dates. Client broke down weeping as I told him it was ALL over. There are bad days in this work and then there are days like this that make it awesome.” Congratulations, Mark. Keep up the good work.

Kudos to TDCLA member Bill Mason of Cleburne, who recently got a Not Guilty from a jury on count two (Indecency with a Child by Contact) of a two-count indictment in February. Count one (Sexual Assault of a Child by Contact) was declared a mistrial. Nine witnesses were called during the trial, and the jury deliberated for more than 12 hours—sending out notes 11 times requesting various parts of the trial testimony and review of video exhibits. After being instructed with an “Allen Charge” (“Dynamite Charge”), the jury was unable to arrive at a unanimous verdict on count one (a note from the jury indicated that 8 members voted not guilty). The case involved a 2 males and 2 females (one being the complainant) in a hotel room, doing drugs and alcohol. According to testimony from the mother of the 15-year-old complainant, she had run away from home 7 times since August 2016 (offense date was January 2017). D was 20 years old at the time of the alleged offense. Bill credits TCDLA member DeeAnn Strother of Joshua for her help on defense. Congratulations, team, on a job well done.

Shout Outs March 2018-1

Why We Do What We Do

A special shout out this month for a couple guys who really didn’t care to be mentioned: Jim and Jeep Darnell. Sorry, guys, but this was an extraordinary case that serves as a prime example of what drives us in our work, and it deserves to be heard.

D, a teacher in a very low-income part of El Paso recognized several times as teacher of the year, was charged with first- and second-degree injury to a child and criminally negligent homicide. Prior to teaching, she had been a single mother playing basketball at UTEP—and obtained a bachelor’s degree then a master’s degree on the way to becoming a high school business teacher. She also suffers from a genetic heart defect that killed her mother when she was barely out of college. While a teacher, she married a veteran of tours in Iraq and Afghanistan who had sustained a traumatic brain injury and suffered from PTSD to the point he does not sleep at night but just paces their home. Her husband has two kids from a prior marriage, one developmentally challenged, and they had two kids together. Her first daughter, valedictorian of her high school class, went on to play basketball in college and graduated early with both an undergrad degree and a PhD.

D’s charges arose when she was in the middle of standardized testing week at school. Her medication for her heart condition had just been changed that week, and she was physically and mentally exhausted. Her husband tried to help her that morning by loading their vehicle with their infant daughter, toddler daughter, and all the sundry bags for two daycares and mom’s books for school. But he placed the bags in the back seat of the vehicle near the children and not where D always put them in the front seat. His son, who went to the high school where D taught, sat behind her with the infant and toddler.

She was unable to eat breakfast that morning, though she needed to before taking her meds. Contrary to her normal routine, she dropped the toddler off at daycare, then drove through McDonald’s for breakfast before continuing. She left McDonald’s and instead of driving to the daycare, she assumed her normal route and went straight to the high school while her infant was asleep in her car seat covered by a blanket—right next to her developmentally challenged stepson. She arrived at school and she and her stepson got out of the car and went in. That afternoon they returned and discovered the infant, passed away from heat exhaustion.

At trial, the State put into evidence the 911 call by a student standing near the vehicle, and in that call you can barely hear the 911 operator or the student over the blood-curdling screams coming from D. Witnesses heard the screams from all over campus: “My baby, my baby, I dropped her off at daycare. Take me, God, take me.” The trial judge was forced to look away from the jury and wipe tears from his eyes hearing the recording.

They rushed the baby to the hospital where she was pronounced dead, and D had to be taken as well in shock. At the hospital, the doctor informed her that her baby was dead, and in testimony it came out that she held the baby in her arms, sobbing and rocking her.

As Jeep relates: During trial, D testified to all that happened to her that week and that day, sobbing throughout. The folks from Kids and Cars helped find an expert who testified in support of the lapse and replacement of memory in D’s brain that morning because of the change in routine. Her husband testified despite his challenges. Her college basketball coach flew in from Arkansas to testify, her college teammates testified, her preacher who had moved to Abilene came and testified. The school nurse testified. Other teachers and students testified. Even students who were never in her class testified as to her character. Everyone cried. Even a janitor who was an eyewitness called by the State began to cry on the witness stand—and told her he was so sorry for her and began to cry.

The State wanted her to die in prison and felt no remorse for the plight this woman suffered and would suffer for the rest of her life. But, as the trial judge noted, it was the only time in his memory that the best person in the room was the defendant.

He directed out the first-degree count at the close of the State’s evidence, but sent the second-degree count to the jury as well as the criminally negligent homicide count. After two hours the jury decided not guilty on the second-degree injury to a child count, but after two days of deliberation—and just before the judge was going to hang them on the criminally negligent homicide count—the jury returned a verdict of guilty. Although they found her guilty, the jurors would not speak to the State’s attorneys after the trial because they were so angry. “Instead,” Jeep says, “members of the jury met us with our client as we tried to get to the elevators and stopped and prayed with her.”

At the punishment trial a few weeks later, Jim and Jeep called 26 character witnesses to testify, and the judge placed her on non-reporting community supervision for two years.

“We appealed to the 8th Court of Appeals on one issue: The evidence was insufficient to support the verdict when analyzed under the appellate standard of ‘moral blameworthiness’ that does not appear in the pattern jury charges. The 8th Court reversed and rendered. The State filed a PDR in its quest to further destroy a woman who could never be punished any worse than she would punish herself for the rest of her life. On February 7, the Texas Court of Criminal Appeals denied PDR and our client is fully and finally acquitted of all charges. I have tried not to cry just writing this email. They don’t make clients like this very often.”

Thanks for sharing that, Jeep. You and your dad did yeoman’s work bringing justice to this poor woman, and it’s a story to remind us all why we do what we do.

How It’s Done

Bill Trantham of Denton sent along this note that illustrates what our members will go through to see justice properly done. A big shout out to Bill for his efforts in this poor lady’s behalf:

I got appointed some time back on a lady who obviously to me was not competent to stand trial and would not have been able to assist me in her defense.

 I did the normal and filed to have her examined for fitness to stand trial. Kelly Goodness found she was not. The client was then sent to the State Hospital to see if she could be made competent. It was obvious the system was not working when they asked she be kept for an additional period when the first time period expired.

 This was for a case of criminal tresspass and failure to I.D.

 After a couple of months she returned, competent but drugged up as the usual returns from the State Hospital. I cleared her cases with a plea to the criminal trespass and dismissal of the other.

 While talking to her, I asked who would come for her on release. She replied her mother from El Paso. Unless her mother was on the way, which she was not, the client would be released with no money, what she wore when arrested, and no one to help her. Not a good scenario.

 I called her mother, who was shocked and said she had no money to buy a bus ticket or assist her daughter due to January being slow for business and paying her bills and would likely be so till March.

 I immediately contacted the Sheriff’s Office and worked with them to get her to the bus depot in Denton. They imme­diately offered to have the transport officers take care of it.

 I then got a bus ticket, but it would be 5:30 pm before the bus would leave and my client was going to exit the jail about 11:00 am. Talking with the Chief of the Jail led to finding a ticket warrant for failing to pay an A Train bill. He contacted the JP, who agreed to pull the warrant about 4:45 pm. This allowed the client to go to the common room in the jail and have lunch and dinner before going to the bus stop in Denton.

 The next hurdle was for a change of bus and a 4½-hour layover in Dallas waiting for the El Paso bus. I got around this by having my sister, who lives in Dallas, go to the Dallas bus station and take the client to McDonald’s for a couple of hours and then put her on the right bus home. $67 for the bus ticket and an additional $100 I gave her was the total cost.

 It all worked a miracle it seemed to me. I called and thanked the sheriff’s office, and they were all thrilled they could help.

 The difference between dumping the homeless person at the jail door and seeing that she got home—where at least her family was there to help—made my day.

Shout Outs March 2018-2