A big Shout Out from Bill Habern to his fellow recipient of last year’s Percy Foreman Lawyer of the Year award—Richard Gladden of Denton, Texas—for his daunting work landing a restraining order against the DPS. DPS had forced his client, who had no conviction for a sex offense, to register as a sex offender without benefit of the required due process, disregarding established law. Richard then learned the DPS had posted the identifying information of D on the sex web page without any kind of prior notice. Within 24 hours, working through the night, Richard drafted a petition with TRO, drove to Austin and filed it, and got subpoenas issued. To his surprise, he obtained a TRO order against the DPS, which Bill says is in itself noteworthy: “For those of you who do not know, obtaining a TRO in a federal civil rights case where one’s client is the sole plaintiff is about as likely as me getting pregnant. This is the second time I have been involved with a Gladden case where he obtained such a temporary order from a Federal Court.” Bill hastens to add that though he’s listed as co-counsel, “I had nothing to do with what Richard has accomplished in those 24 hours. I will be second chair when Richard can use my support, but the lesson here is when it comes to the Constitutional rights of one of his indigent clients, don’t piss off Richard Gladden.” Exemplary work, Richard, and a lesson for us all. And kudos to the dynamic duo for once again fighting—and winning—the good fight.
Kudos to Kerri Anderson-Donica, TCDLA’s second vice president, for her recent big win in a Navarro County sexual assault case with some weird twists. Complainant claimed she was passed out drunk at a party on a twin mattress on the floor and awakened with a naked man, D, beside her. She felt a “discharge” so she decided he must have flipped her over, removed her shirts, all his clothes, climbed on top of her, and had his way with her—and she never felt a thing. She claimed she passed out on her belly and never, ever turns over during sleep, but “came to” on her back. A gentleman sleeping in the other bed in the room also didn’t hear or see anything. Complainant then left the room and made this claim to the man who lived in the party home, who then beat the hell out of D. CW’s friend (whose husband is the one who beat up D) called 9-1-1 the next afternoon, CW says, because said friend told her they needed to report the “rape” to avoid assault charges against her husband.
No investigation was done other than taking audio statements from a group of the partygoers who were all together at the house the evening after the party. Not one called at trial to testify claimed to have been sober. A SANE exam done that night only showed that D could not be excluded. Kerri notes the DNA report was quite bizarre, not separating out the likelihood of contributors: It even had client and complainant at the same likelihood (1 in 11,000). Although the prosecution knew that D had passed a polygraph—given by the guy the prosecution uses—he insisted on going to trial.
But it got stranger, Kerri discovered: “The SO investigator had the name of the homeowner (really renter) misspelled, so I didn’t get a hit on him through DPS. When I learned the actual spelling of his name, I found that he had been to prison for Aggravated Sexual Assault of a Child. The State failed to tell us this despite having filed a 39.14 request and repeated questioning during the early phase of the trial. A prosecutor texted me the night before they called this guy that he’d learned of the offense. We raised hell with the court about the withholding of this info, to no avail. The prosecutor says he didn’t know of it, so he didn’t have to tell us AND that I should have found out myself anyway.”
When all was said and done, after an 18-month ordeal, jury only took about 20 minutes before coming back with what Kerri calls the two most beautiful words in the English language: NOT GUILTY! She notes that D’s whole family, who’d sat through the entire trial, wept.
As Mark noted: “Of course she testified she never makes a mistake, the machine always performs correctly, she always follows proper protocol and always testifies the result is accurate.”
The jury, allowing that D just didn’t look drunk on the video, questioned the forensic science. The kicker: The analyst testified that SFSTs don’t test intoxication, so Mark then got her off the stand and made her do the Walk-and-Turn—which she failed. Yowzah. Mark expressed thanks to a tough, professional prosecution, a judge that didn’t “small-town” him, and a jury that sent his client back to his daughters and wife as a free man and not a criminal. Congrats, counselor, on another in a string of big wins.