Good Golly, Chad Holley!

By: Eric J. Davis

The first police officer tried in the Chad Holley beating case here in Houston was acquitted of all charges.  For those of you that do not know, Chad Holley was an unarmed, black juvenile who was beaten by several non-black police officers while being arrested for a burglary charge.  The beating went unnoticed for days until a store owner reviewing old surveillance realized that the beating was captured on video.  She promptly turned over the video to the authorities and to a local activist.  The officers involved were identified and charged with official oppression.

The lawyers representing the accused  officers moved to have each defendant tried separately (a severance).  And their motions were granted.  This past week, the first officer's acquittal by an all white jury sparked protest and unrest from political activists here in Houston.  Although an officer was not a victim, the trial was attended by many off-duty officers who were in court in uniform in support of the accused officer.  Such actions by officers seems to send the message that officers were condoning alleged unlawful activity.  They weren't there in support of Holley.  They were there in support of the defendant.  Such actions effect the prosecution of these types of cases by placing undue pressure on jurors.  An alleged victim in these types of cases is already unsympathetic because he was committing a crime at the time the beating occurred.  The activity of these uniformed officers makes a jury sympathetic towards the officer accused.  It seems inconsistent with their duty to uphold the law.  Such a demeaning and obvious attempt to influence the system is activity that must be corrected prior to the next trial.  Hopefully, the Houston Police Chief's objections to the officers appearing in uniform will be SUSTAINED! 

Nevertheless, the result has raised a lot of questions.  I spoke to court watchers and others who watched significant portions of the trial; and was told by many that the officer would be acquitted long before the trial concluded.  It was suggested that the accused officer was only involved in a segment of the beating.  He was on the video for approximately four seconds and was only shown kicking the young man in the arm area.  The testimony was that the officer was kicking him in the arm area to get him to move his hands down towards his back.  A tactical expert testified that officers want a suspect's hands behind his back and not behind his head.  This position was important for safe cuffing of a suspect.  The expert also testified that officers were trained to place a suspect's hands behind his back for their safety.  And as long as Holley's hands were not behind his back, the officer's safety was in question.  Following that testimony the jury, probably already wanting to side with the officer, had a reason to hang it's hat on for an acquittal.

Many sounded the bell of race with cries of racism.  They assert that the all white jury devalued Chad Holly in favor of a white officer.  They assert that blacks were systematically excluded from the jury.  And they assert that racial fears were played upon.  But do their cries ring true?  May have sounded the bell of politics with cries of incompetence by the District Attorney's Office.  They assert that the District Attorney went soft on the case and did not put a lot of resources into the prosecution.  They assert that the officers were all undercharged and that an aggressive prosecutor would have charged them with felonies.  But do their cries ring true?  For,

No man is an island,
Entire of itself.
Each is a piece of the continent,
A part of the main.
If a clod be washed away by the sea,
Europe is the less.
As well as if a promontory were.
As well as if a manor of thine own
Or of thine friend's were.
Each man's death diminishes me,
For I am involved in mankind.
Therefore, send not to know
For whom the bell tolls,
It tolls for thee.

John Donne

Some how, the activists have to tell protesters that we are all responsible.  The way I hear it, Harris County has approximately 2 million registered voters and less than half of the registered voters participated in the 2008 election (roughly 45%).  Every time we shirked jury duty... every time we did not go to the polls... every time we did not tell a friend to go to the polls.... we got a larger share of the responsibility.  The bell tolls for thee.

Sticks and Stones....

By: Eric J. Davis

Man Protesting ADA Outside Courthouse

Over a year ago, a man wore a mask and held up signs calling different members of the DA's Office provocative names.  Each day he protested he positioned himself outside the courthouse on a public sidewalk and carried a sign without saying a word.  He was non-violent and non-verbal.  He wasn't causing a scene or disrupting the business of the courts.  He simply stood outside the courthouse holding a sign.  This individual was engaging in conduct that was well within his constitutional right to free speech.

However, certain members of the District Attorney's Office were upset with his carrying of a sign.  By some accounts, one Assistant District Attorney confronted the man and had some aggressive words for him.  The ADA called him a "punk" and discussed some of the facts of his case.  The ADA even angrily asked him questions about his case.  Another ADA threatened prosecution for the man on new and different matters.  This is not all together surprising.  Some emotion should be expected.  After all, his signs were of a personal nature and called out members of their office personally.  Many ADAs take their jobs seriously and do not like to be questioned about their decisions in public....especially from a defendant.

Yet, this situation raises an interesting issue.  If a prosecutor is in trial and a defendant who that prosecutor previously prosecuted was upset with the handling of his case and decided to protest by carrying signs outside the courthouse as potential jurors for one of the prosecutor's cases are walking by; does the potential effect that this could have on the prospective jury outweigh the man's constitutional right to free speech?  Or does the fact that the media's questioning of the District Attorney's Office (which has the potential to lessen their credibility and potentially hurt their standing in trial), threaten public safety?  To put it plainly, can the DA argue that the right to free speech can be curtailed if it makes their jobs more difficult?  The answer to all of these questions is "Of course not."  Certainly courts can restrict the free flow on information in a trial through the imposition of a gag order or by placing items under seal.  But those measures are generally in place to protect a defendant's right to a fair trial by insuring a fair and impartial jury.  Certainly an individual has the right to protest.  Our nation was founded after people decided to oppose conduct by government that they thought was wrong.  Observers of the protest are free to give the protestor as much or as little credence as they want.  But it is well understood that a person cannot yell fire in a crowded theater.  

Surely, this was not a case of a man inciting a riot.  He was only drawing negative attention to the DA's Office.  The fact that it may draw negative attention to government officials does not outweigh the interest in protecting free speech.  All objections to actions that unreasonably curtail free speech should be SUSTAINED!  Only those drunk off the spirits of their own power, would want to drive a vehicle of oppression to stop free speech.  These actions are something about which to get MADD.  Certainly the words of this man do not justify ADAs questioning him about his case outside the presence of his attorney.  And certainly words do not justify aggressive behavior towards an individual who is merely voicing his disapproval in a peaceful, nonverbal way.  Thinking that a prospective juror would put aside their oath because of a protestor, discounts the intelligence of juries.  Thankfully, the man's lawyer stood her ground and the District Attorney's Office agreed to recuse themselves from the prosecution of this man.  Thankfully cooler heads prevailed.  Because sticks and stones may break one's bones, but....

From Private Practice to Public Defender

My representation of Arthur Mumphrey (above) in 2006, put me on the map.  After that my private practice took off.  I began getting hired on other media sensitive cases and "high profile" cases.

By:  Eric J. Davis

Over two years ago, I blogged about the benefits of having a public defender's office here in Houston, Texas.  See PD or Not PD.  Back then, there was only talk about a Public Defender's Office.  Little did I know that I would be working as an Assistant Public Defender in Harris County's newly formed Public Defender's Office.

And working in the Public Defender's Office these last seven months has been a great experience.  In private practice, we strove to provide representation of the highest quality to all of our clients.  My motto was "Keep fighting."  I could not guarantee an outcome for my clients, but if I worked hard on my client's cases and kept fighting; I knew good things would come.  For many years I have purposed my heart to work hard on my clients' cases, always trying to do right by my clients and their families.  At the Public Defender's Office, my purpose has been the same.  And we have been able to achieve similar results.  

For example, within weeks of being hired at the PD's Office I was appointed to represent a young black man who took time off from college to return home to help his mother financially.  He was a student on scholarship in Iowa, but his mother struggled financially with him gone.  So he gave up his scholarship and returned home.  One evening he was hanging out with some friends when a police officer pulled him and a friend over.  The police arrested them at gun point and drove them to an area where they were identified as participants in an Aggravated Robbery.  A white man identified them as the two people who robbed him.  No alleged stolen property was recovered in the client's possession.  No alleged weapon was recovered.  And no evidence showing that there had even been an Aggravated Robbery was recovered.  They were charged solely on the uncorroborated word of a white man.  But in Harris County, that was all the police needed.  

The Public Defender's Office was appointed to represent one of the young men.  A private attorney who took court appointments was appointed to represent the other young man.  While interviewing my client, I realized that he had been to gas stations and convenience stores that may have captured his image on video.  So quickly we sent an investigator to those places and obtained some video (usually in gas stations, video is only maintained for a day or two).  One of the videos showed the client in a gas station convenience store at the time of the alleged robbery.  The convenience store was several miles from the scene of the alleged aggravated robbery and it was not possible for the client to have been in both places at the same time.  Moreover, we subpoena'd the 911 tape which showed that the man who identified the client had made multiple inconsistent statements during his multiple calls to 911.  And we obtained other evidence that would have been destroyed within a few days of the client's arrest.  The evidence cast great doubt on whether or not the client committed the Aggravated Robbery.  On behalf of my client, I presented the information to the Assistant District Attorneys assigned to the case and they dismissed all charges against my client and his friend.  My client's friend called me at the conclusion of the case to thank me because his appointed lawyer had never visited him at the jail and only talked to him briefly in court. 

Had the Public Defender's Office not been in existence, my client probably would have also been appointed a private lawyer who did court appointments.  Perhaps my client would have been appointed a lawyer who would have waited to interview him (if he interviewed him at all).  Maybe he would have gotten a lawyer who would have let the evidence which showed his innocence be destroyed.  Or maybe my client would have retained a lawyer who would have had to wait to get the money to hire an investigator to try to obtain the evidence.  The PD's Office had the resources and structure available to get the job done when it needed to be done.  Its creation saved that young man's life.  And his is just one of many stories I can tell.

But the very existence of the Public Defender's Office is being questioned by financially motivated pirates of justice who seek to steal the poor's opportunity for fair representation.  Misinformation has been their cannon as they make truth walk the plank of political expedience.  A lawyer who made close to $400,000.00 doing court appointments is the captain of the ship as he leads the charge against the PD's Office because, of course, he may lose a lot of money if the PD's Office succeeds.  And some judges who are driven by a desire to control their dockets (the PD's Office could assist them with controlling their dockets because the office has the resources to handle case more expeditiously) and a desire to reward political cronies have refused to appoint the Public Defender's Office.  But the objections to the "good ole boy" network are being SUSTAINED!  Many judges in Harris County are giving the Public Defender's Office an opportunity and are appointing our office on cases.

Right now, the Public Defender's Office cost Harris County nothing.  The entire funding of the Office comes from a state grant.  Yet some Judges have decided to support their cronies instead of hiring the PD.  The poor deserve quality representation.  And all Judges should adhere to the Fair Defense Act and make appointments as they come up through the system.  We cannot let justice for the poor escape our grasp.  

Round Table Discussion: Trayvon Martin

By:  Eric J. Davis

I had the opportunity to be part of a Round Table discussion on the law of Self-Defense that aired last night.  The discussion was spurred by the shooting of Trayvon Martin in Florida.

The Price of Good P.R.

By Jacquelyn R. Carpenter

Pat Lykos is taking $475,000 of money forfeited from criminal activity and giving it the Houston Police Department to buy reliable breath testing equipment to fix the PR nightmare involving the mobile breath test machines.   D.A. Lykos Gives Check to HPD for New Breath Test Machines  First, let me put this out there, congratulations on having the ability to buy reliable breath test machines.  Personally, I will not trust those results enough to blow in them.  Nevertheless, if you are going to prosecute someone, reliable machines should be used.  Even Jim Leitner concedes that people fail to maintain the equipment in the BAT vans the way they should.  Translation: The BAT vans are unreliable.  Of course, I’ve been saying that because Pat Lykos has been saying it.  Since I was the defense attorney on the first BAT van case Lykos had her prosecutors try, I am glad to see that the unreliability of the BAT vans will be fixed by taking them out of the equation all together. 

Second, why $475,000?  There are commentators on Murray Newman’s Blog  and on the Channel 13 website that question the costs.  So HPD will buy 4 new Intoxilyzer machines that cost no more than $50,000 all together.  What, pray tell, is the remaining $425,000 supposed to go toward?  If memory serves correctly from Wayne Dolcefino’s initial story, the BAT vans cost the taxpayers $600,000.  Not using the BAT vans would have been a waste of taxpayer funds.  So it appears from my view that Lykos is simply reimbursing the taxpayers and encouraging the discontinued use of the BAT vans.  Nice spin though: HPD, I will pay you $475,000 to not use those machines (and to help repair our publicly broken relationship).  Essentially, Pat Lykos is paying to get herself out of the muck-and-mire of the BAT vans so that everyone can and will stop talking about it.  Lykos wants to make sure it is no longer news, which, of course, helps with her re-election bid.  After all, no one is talking about Rachel Palmer still working as a prosecutor after pleading the “fif.”

Despite Lykos’s agenda, I think this is probably pretty good for citizens of Harris County because faulty equipment will no longer be used in prosecuting those same citizens.  It also helps reduce the effect of pointing the finger of blame on HPD so that prosecutorial relations with police can be mended, although I do not expect the police unions to suddenly decide to endorse Lykos’s re-election bid.