Frisco DWI Lawyer & Attorney Blog : Collin County DWI Lawyer & Attorney : Hunter Biederman : Texas DWI Defense : Serving Collin County, Denton County, Dallas County

About a month ago, I wrote an article Crime Victim Dies of Complications, detailing a certain tree planted in front of the courthouse to commemorate crime victims.  I took a picture showing that the tree had apparently died and been cut down.

I also found it interesting that no one puts up wrongly accused / convicted trees around the courthouse -- that might actually cause a jury to think twice about convicting someone. 

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Regardless, it would seem that the tree has sparked new life after (and probably because of) my article.  Despite the tree dying and being cut down, someone moved the sign, and placed it in front of another tree instead.  This other tree is now purported to be the crime victim tree dedicated in 2007.

Based on the sign and press releases from that time, they say "this tree," (singular) although it is possible they planted two trees.  I wasn't invited to that ceremony, so I cannot be sure.  But I think there is some fraud going on here. . .

One thing is for sure:  The local bird population is not in favor of this new fake crime tree.

If anyone has any information on this coverup, please alert the authorities.  Well, I guess not, as I suspect the locals are in on the coverup. 

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It appears a local crime victim has dies of injuries.  Reports are unclear as to whether the death is related to injuries sustained from the initial crime.

I snapped this photo recently of the "Crime Victim Tree" planted just outside of the new Collin County Courthouse.

As you can see, the tree has been removed and all that remains is a bit of the stump below.

When this sign was first erected, it was met with what I would call,  "non-vocal minority" resistance.  Why would we want potential jurors coming in from a parking lot to jury duty to walk by a sign talking about crime victims?

Maybe to poison the potential jurors?  Maybe just someone from the Government's side not being sensitive to the whole "innocent until proven guilty" premise.

I find it funny that no one seems to be jumping to put up a tree dedicated to the wrongfully accused.  How about a DNA cleared victims tree?  We could plan one, for say, each wrongfully convicted year a man spent in jail here in the DFW area.

Nah... that would take up too many parking spaces.  According to the Innocence project, Dallas alone is up to 20 wrongful convictions by men who have served a total of 250 years in prison for crimes they hadn't committed.

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Recently, a letter was sent to the press criticizing the outgoing District Attorney and reporting their findings.  This letter made it to the Dallas Morning News, where it was reported by Ed Housewright.  The DMN did not publish the letter and I personally had been curious to see it.  I now have a copy, and I am publishing it here.

The letter came to me in a cryptic, no return addressed envelope.  As I opened it up (expecting white powder to fly out at me), I saw the contents containing documents regarding the 380th Grand Jury.

Contained in the letter was a request to clarify the inaccurate reporting of the impaneling of the Grand Jury. I had written about this before.  In some reports, it seemed as if this grand jury was empaneled by Judge Wooten in order to investigate the District Attorney's Office.

This was not the case.

This Grand Jury was empaneled in the normal rotation, just like every other Grand Jury.  Once a Judge picks the commissioners, they select the array of potential Grand Jurors.  The select between 15 and 40 people.

Once that array is selected, objections can be made.  The elected District Attorney can object.  In this case, The district attorney had an opportunity to object on June, 11, 2010.  The District Attorney in this case stated, "... we have no challenge to the array, Your Honor."

Among the letter were documents including:

a) The letter sent reporting the Grand Jury Findings
b) A reporters record showing the selection of the Grand Jury
c) 2 Letters from John Schulte and his wife where John resigned from service due to health issues.
d) Emails from the DA's office to and from Judge Wooten, discussing the process of empaneling the Grand Jury
e) Orders dismissing one Grand Juror (on June 22, 2010) due to a prior conviction in 1977.
f) Transcript of Judge Wooten appointing the Grand Jury Commissioners (May 14th, 2010)
g) Transcript of John Roach not objecting to the makeup of the Grand Jury.

The letter of resignation from John Schulte's wife had some harsh language for Mr. Roach:

"My husband is an honest, honorable man with the utmost integrity.  My family has been reading the "press releases" you sent out the last couple of weeks obviously questioning these qualities.  These press releases have done nothing but add to our stress over the last few weeks.  You should know that my husband has not been attending grand jury sessions over the last few weeks and therefore would obviously not be involved with the "investigation" of your office discussed in your press releases.

This letter also is notice to you that my husband is resigning from his service on the grand jury effective immediately due to his  terminal illness.  I thought a letter to you explaining the circumstances surrounding his resignation was appropriate to stop you from issuing another "press release" claiming you had anything to do with his departure.  You did not."

Below this post is the full Text of the Grand Jury letter.

Editor's Note: John Schulte was a friend and helped my wife and I find our first house.  He was our Realtor and he will be missed.  Part of the reason for my article is to help clear the air of any wrongful implications that may have been levied against him -- either purposefully or otherwise.

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According to the Dallas News, the Judge quashed records-tampering indictment against Collin County assistant DA Gregory Davis. 

So now what does that mean for the case?

Generally speaking the indictment serves to put the defendant on notice of what the charges are against him. If it is too broad, it is subject to being quashed. That's what happened in this case.

Unlike one news report, it does not mean the defendant was "cleared" of the charges.  Don't get me wrong, I suspect if this case ever made it to trial, Mr. Davis would be cleared of the charges -- but that's just not what happened in this case.

The charges are no longer pending and there can be a couple of scenarios from here:

1. Case Over -- No More Indictments Presented - This could mean the end of the case.  If the charges are not presented  to another Grand Jury, the case is over.  Of course, Mr. Davis will have an arrest for a felony on his record for quite some time.  Until the Statute of Limitations has run, whenhe can have it expunged.  (There are some other limited ways to get it off as well). The Statute of Limitations  is 3 years.

Mr. Davis can thank his appellate department for championing the "we are just following the law" rationale for fighting these types of expunctions.

2. Fix the Indictment, Present it to a New Grand Jury -- The problem with the indictment can be fixed, and it can be presented to a new grand jury.  This is what happens in 99% percent of quashed cases -- but this case might not be a 99%'er.  I think there is some sort of provision to reconvene the original Grand Jury as well, but I'm not positive how that works.

If brought to a new Grand Jury, the evidence would have to be re-presented again, and the new Grand Jury would decide whether or not to indict on the facts.

If I were a betting man. . .

My best guess is Number 1.  Case closed.  Mr. Davis moves on to  the  next step in his career.  It seems like now is the perfect out for the Special Prosecutor to not have to move on with the case, and everyone can wash their hands of it.

As soon as this indictment was issued, I predicted this was going to be the result.  The indictment seemed fishy, and not properly composed.  I told a few people that it seemed like this Grand Jury issued the indictment, knowing it would be quashed, as a final jab at the District Attorney for the last 8 years.  As reported by the Dallas News, the grand jury had two competent lawyers, along with a highly regarded Special Prosecutor.  They know what must be in an indictment to hold up.

I guess time will tell whether or not the case is over, but I suspect it is.

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Judge quashes records-tampering indictment against Collin County assistant DA 4:17 PM CT

04:24 PM CST on Friday, January 7, 2011

A judge granted a motion today to quash an indictment against former Collin County first assistant district attorney Greg Davis.

"I'm pleased it worked out this way," said his attorney, Ted Steinke, who filed the motion. "I'm glad the law was on our side."

A grand jury indicted Davis on Dec. 28 on a charge of tampering with a governmental record, a state jail felony punishable by up to two years in jail. The case stemmed from the District Attorney's investigation of the District Clerk's office.

Judge David Brabham of Gregg County granted the motion to quash. He was appointed to hear the motion after state District Judge Mark Rusch recused himself.

"It didn't go our way," said special prosecutor Terence Hart. "But I respect his opinion."

In his motion, Steinke said the indictment wording was too vague.

Brabham didn't state a reason for granting the motion.

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The latest jab in what I like to call, "Indictment Fest 2010" is the indictment of Collin County's District Attorney First Assistant Gregory Davis.  All of the back and forth is a bit too much for one article, so I'll work on the background for another article.

In addition to Gregory Davis' eight years at the Collin County DA, he was also a former prosecutor in Dallas.  Mr. Davis obtained twelve death sentences in Dallas County, including the only two such sentences against women in that county’s history.  He was involved with the Darlie Routier death penalty case, one that garnered a significant amount of controversy.

So what is the First Assistant and what do they do?  In Collin County, the First Assistant could be compared to  the president of operations for a company, along with the chief litigator.

In most larger counties, the elected District Attorney does not handle courtroom trials.  This was true for the last 8 years in  Collin County.  Major trials are usually handled by the First Assistant (death penalty cases, higher profile cases).  The First Assistant in Collin County also dealt with many of the day to day operations of the office, and also supervised the highest level attorneys at the office (the felony chiefs and chief of misdemeanor courts).  These were the duties of First Assistant Gregory Davis.

Mr. Davis has been indicted for Tampering With A Government Record, which is a State Jail Felony.  A State Jail Felony is punishable up to 2  years in a State Jail Facility, and up to a $10,000 fine.

A person commits TGR if they makes, presents, or uses a governmental record with knowledge of its falsity.  This is the "version" of TGR he has been charged with.  Two other items must be included in the charge:

1. What was false; and
2. Who was defrauded.

The allegations in this case say that the false government document was the State's Disclosure of Evidence Favorable to the Defense.  They also say it was "The State of Texas" that was defrauded. This State's Disclosure filing came 8 days after my article regarding the similarities between the DA's "High Five Program and the District Clerks accused behavior.

The indictment is odd for several reasons.  Firstly, it is (ironic/strange/unheard of -- pick your own adjective here) that a prosecutor gets indicted for seemingly turning over evidence favorable to the Defense.  One would think the indictments would fly for destroying evidence and not turning evidence over.

Additionally and arguably,  Mr. Davis was admitting his office committed the same "crime" that he charged the District Clerks with.  He stated, "[a]t least two timekeepers in the CCDA altered employees' time records to reflect that employees were at work when they were actually on 'High Five' leave."  One would think that this "crime" would be prosecuted (probably not against him, but rather other officials in the DA's office), not the filing of the paperwork admitting to it.

Note: Other outlets have reported that he was indicted for falsifying time records -- those reports are incorrect.

Secondly, choosing the State of Texas as the party defrauded sounds odd as well.  Since the Disclosure was meant to give the defense notice, it would seem that they would be the ones defrauded.  Although I guess the argument could be held that when filing that paper, it is also a filing with the court, or the State of Texas.

So this leads us to the question, what is false, and what did Mr. Davis know was false in this filing? It would have to be a statement made within this document.  Here are my best guesses at the possibilities:

1. [Employees were given paid time off]... "The undersigned found no evidence that any paid leave time was awarded for electioneering or political activity."

This could be the statement because it is such a clear statement, with no prefacing. (i.e. "I dont recall finding any information...").  It also could be the false statement because it is one that could easily be proved false through testimony of someone who told Mr. Davis otherwise, or an email showing he knew.  However I doubt this is the false statement mainly because I suspect the statement is true.  I don't think anyone was out campaigning during their days off.

2. An undetermined number of scheduling requests for investigators in the Collin County District Attorney's Office were destroyed without the knowledge of the Criminal District Attorney or the undersigned.

This is another "provable" statement. Either through testimony or an email.  Someone saying Mr. Davis knew these records were destroyed would be a direct conflict with this statement.

Other statements are often prefaced with "at least."  This leads me to believe they are not the false statements he is being charged with.

I don't know what statement is false, and neither does Mr. Davis' attorney.  So what's a defense attorney to do?  Mr. Davis' attorney has filed a "Motion to Quash" the indictment. 

A Motion to Quash in this case (I haven't seen it, but was reported by the Dallas Morning News), is because the indictment didn't "allege which specific part or portion of that ... is false."

Generally speaking the indictment serves to put the defendant on notice of what the charges are against him. If it is too broad, it is subject to being quashed. 

The ironic thing is that the Collin County District Attorney's Office has been famous for putting as little as possible in the indictments and being stingy with discovery.  This often led to meetings where the DA would simply say, "she knows what she did" and she should resign to avoid them taking her "law license, her family, her home, her liberty, and her reputation" as alleged by Judge Wooten's attorney in regards to her indictment).

If the motion to quash is successful, the accused can simply be re-indicted and the charging document (indictment), can be changed to properly conform with the law.  Usually quashing the indictment just delays the whole case.  The same Grand Jury can re-indict, or it can be presented to another Grand Jury.  But not necessarily in this case.

The accusation is that this particular Grand Jury had an ax to grind, and no other Grand Jury would indict on the same evidence.  That means that if the motion is granted, this case could very well be over.

UPDATE -- DMN -Judge quashes records-tampering indictment against Collin County assistant DA

Hunter Biederman is a DWI / Criminal Defense Attorney in Collin County. He publishes his blog (www.friscodwilawyer.com) which focuses on the Collin County and Texas legal system. He can be reached at friscolaw@gmail.com or (888) DWI-FRISCO.

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Immediately after filing Brady Material - Favorable Evidence to the Defense, the Collin County District Attorney's office joined in the Defense's prior motion to recuse the District Attorney.

In the filing today, Gregory Davis, the First Assistant District Attorney explains that "[a]s a result of newly discovered evidence set forth in the State's Disclosure of Evidence Favorable to Defendant, the State of Texas now agrees that the Criminal District Attorney of Collin County and the Collin County's District Attorney's Office is disqualified in this case."

Both of these filings follow my past article, "How To Gut Your Own Case: Collin County District Clerks Case." which outlined the similarities in the District Attorney's High-Five paid time off program, and the District Clerk's "Blue Book" time.

It would seem that the District Attorney's Office employees, and or their policies have the potential to come into play in the District Clerk's case.

After originally refusing to move the case, the case was subsequently moved to Dallas County and postponed until 2011.  But it was originally planned to still be prosecuted by the Collin County District Attorney's office.  Instead, an "Attorney Pro Tem" must be substituted to act as the prosecuting attorney.

The judge has not ruled on the motion to recuse, but generally when both sides agree to a motion, it is granted.

Oh yes, and let's not forget what our friends at the Collin County Observer discovered... an AG opinion discussing elected officials roles in setting schedules.

The Texas General Attorney Opinion : Opinion No. GA-0778
Re: Whether a commissioners court may amend the county budget to reduce salaries for the county clerk's office because the clerk closed her office temporarily for a weather-related emergency (RQ-0834-GA)

In the resulting opinion, the AG states: "Elected county officers have a 'sphere of authority' within which they may manage their offices without interference.

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Today, Gregory Davis, Collin County's First Assistant District Attorney filed a "State's Disclosure of Evidence Favorable to the Defendant."  This is commonly known as a "Brady Material." Brady material, in short, refers evidence favorable to the defense that is known by the State. The State is required to turn this evidence over.  Brady material is often the source of heated debates including what is, and is not, Brady material.  Brady material requirements stem from the US Supreme Court case of Brady  v. Maryland. 

Today's filing goes on to detail some specifics regarding the State's High-Five program.  I previously reported on this program and detailed the shocking similarities to behavior alleged in the District Clerk's case. This stemmed from the District Attorney requesting a new way to code this time off which was denied by the County Commissioners.

The filing states:

1. Approximately 40 employees of the Collin County District ~
Attorney's Office were awarded paid leave in the form of"High Five" leave since January 1, 2003. The Criminal District Attorney awarded the leave in amounts ranging from one to eight hours.  The supporting documents show that the paid leave time was awarded for meritorious conduct. The undersigned has found no evidence that any paid leave time was awarded for electioneering or political activity.

2. A timekeeper in the Collin County District Attorney's Office allegedly had an "off-the-record agreement" with a person in the Collin County Human Resources Department to alter employees' time records.

3. At least two timekeepers in the Collin County District Attorney's Office altered employees' time records to reflect that employees were at work when they were actually on "High Five" leave.

4. A timekeeper in the Collin County District Attorney's Office believes that "everyone" in the county was altering employees' time records, including persons in the Collin County Human Resources Department.

5. Per a department spokesperson, the Collin County Human Resources Department had no knowledge of the "High Five" leave program prior to June 2,2010.

6. Per a department spokesperson, the Collin County Human Resources Department instructed all timekeepers to accurately report county employees' times.

7. An undetermined number of scheduling requests for investigators in the Collin County District Attorney's Office were destroyed without the knowledge of the Criminal District Attorney or the undersigned.

Mr. Davis further states, "While the undersigned believes that much of this newly discovered evidence will be held to be inadmissible at trial, he believes disclosure of this evidence should be made to ensure full compliance with Brady v. Maryland."

Analysis:

This certainly seems to lend credibility to my previous article of the similarities in the High-Five program and what the District Clerks were doing.

So this begs the heated question, "What is the question?"  What must the state prove?  Not just the behavior, but that behavior must actually be a crime.

Mr. Davis' filing seems to suggest the reason for the time off is what is in question.   (I think if this question was posed months ago, that wouldn't be the issue).

It would seem that the State planning on arguing it IS ok for an elected official to give time off on their own made up program.  It IS ALSO OK to lie about that to human resources and say those workers were there when they were not.  But apparently it is a Felony if during their time off they decide to campaign.

The filing seems to make this distinction by the line, ""[t]he undersigned has found no evidence that any paid leave time was awarded for electioneering or political activity."

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The Short Answer? Admit to doing the exact same thing the people charged did.

I have never had a case where a prosecutor has stood in front of a large group and admitted to driving while intoxicated -- or any other crime for that matter. 

But that seems to be exactly what the elected District Attorney in Collin County recently did. No, he did not admit driving while intoxicated, but instead stood in front of the county commissioners and asked for assistance on properly "coding" his Hi-Five Paid Time Off program.  A program that on its face seems to be doing the same thing he accuses Six Collin County District Clerks of doing. Taking time off from work with the permission of their supervisors, but putting in with the county that they were actually present so they can be paid.

From the Commissioners Agenda below:

The request started off innocently enough. DA John Roach was asking for was a way to change the computer coding of employees time off.  Apparently he had already asked HR to do this, but they refused to make the change.

DA Roach explained the program: A supervisor or manager recommends an employee for a certificate that allows some time off. The recommendation is reviewed by manager, division chief and ultimately by me personally (John Roach).  The employee "might get an hour off or two hours off "and they must take it within a certain amount of time, usually 30 days. They must get their managers approval, then fill out a scheduling request. That lets us (The DA) know when they’ll take the time off.

Cynthia Jacobson (HR's appointed official) told the Court Commissioners that they only make the change with these programs are approved by the Court.  And this program has not been approved by the court.

The meeting then took on a much different tone.  The commissioners seemed very disturbed by the elected DA coming up with his own time off compensation program.

One Commissioner asked, "The application should reflect our policies. Do we have policy where people get time off for rewards?"  The question seemed rhetorical, because from the way the meeting went, it was clear that no such program exists within the county.  There are policies in place that dictate time off, and this isn't one of them.

The commissioners not only refused to change the computer coding, but refused to accept that it was OK for the elected DA to start his own paid time off program.

In response to the District Attorney's statement, "if I have someone doing a really good job, I should have the discretion to reward them for it," the commissioner responded with a resounding, "I disagree."

So if the elected District Attorney feels it is OK to come up with his own paid time off program, why is it not OK for the clerks office to do the same?  He charged six clerks with felonies for doing just that.

Here is the major problem I see with the State's case against the clerks.  Even if they did exactly what the District Attorney alleges (and they might very well have), do those actions constitute a crime?  The clerks supposedly padded their time in the office when they were not actually in the office.

According to the District Attorney paying someone for time off when they are not in the office is legal. But apparently only if they are his employees, not employees of the District Clerk's office.  Perhaps it is because the clerks didn't first come up with a name as cool as the "High Five" program.

If you would like to view the video, click on the video picture above.  You can click on the agenda item below the video to jump to that portion of the commissioner's meeting.

Also, for those not normally dealing with Collin Courts, this is the District Clerks office that was accused of wrongdoing -- a different office than the County Clerks office.

Hunter Biederman is a DWI / Criminal Defense Attorney in Collin County. He publishes his blog (www.friscodwilawyer.com) which focuses on the Collin County and Texas legal system. He can be reached at friscolaw@gmail.com or (888) DWI-FRISCO.

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Well, sorry about the crude posts, but I thought my readers would want to know what was going on live in this case.  After speaking with some courthouse workers (who actually had to work and didn't have time to sit in the courtroom), I decided to "live blog" from my iPhone at the last minute.  It was a frustrating experience, and I promise to bring a laptop or at least iPad next time.

The quick background:

6 District Clerks in Collin County were indicted on on charges of Engaging in Organized Criminal Activity.  After setting PR bonds, the presiding judge of the court, Judge Rusch removed himself from the case, but the District Attorney did not.  Visiting District Judge Nuns was assigned to the case, and today all six clerks formally pleaded "Not Guilty."

The clerks are alleged to have .  We know this because the District Attorney took the odd step of filing 13,000 pages of evidence with the court within 3 days of the case being indicted.

This move led to one of the defense attorney's filing a motion to restrict the trial publicity, and subpoenaing Bill Baumbach of the Collin County Observer, Ed Housewright of the Dallas Morning News, and Danny Gallagher of the McKinney Courier Gazette.  I never wrote on my blog about the case before today, and was not requested to appear.  I just showed up because I felt left out (and had to be across the hall on a case anyway....)

I erroneously guessed that this hearing was about a motion to change venue, but it was not.  The attorney involved was truly asking the judge to ban the media from the case -- a move that was obviously not granted by the court.

Judges do have the right to restrict attorneys involved in the case from speaking to the press, but of the press from reporting.

Summary of Today's Proceedings:

TESTIMONY:

A lot seemed to occur in today's hearings.  First, testimony was taken from all three reporters.  Bill Baumbach arrived with his attorney and was asked about how many articles he wrote, and about his readership.  He was also asked questions that he could not answer, in regards to whether or not he thought a fair jury panel could be found on the trial.  As a reporter and not an attorney, obviously he had no clue.

Ed Housewright came equipped with his own lawyer as well, presumably supplied by the DMN.  His attorney objected to his even testifying, and brought a stack of caselaw to backup their position.  Regardless of the objections, the judge required him to answer a couple of questions, but they were pretty simply and only about how many articles he wrote and about his readership.

Danny Gallagher was also called to the stand and similarly testified his articles and readership -- as far as he knew.

All three reporters were questioned by Greg Davis, first assistant to the District Attorney as well.  All three stated that their wish was to continue reporting on this case, as they always do with any case that they feel the public would care about.

Bill Baumbach made a particularly interesting statement about how this case, above any, is most important to report on, considering this is a public corruption case, and the public has the right to know what is going on.

THE RULING:

The judge denied the motion to restrict the reporters from reporting.  He similarly denied the motion to restrict the attorneys or witnesses from talking to the press.  That statement to about 10 seconds, but his follow up took several minutes.  He very plainly stated that he would not be pleased if they talked to the press, regardless of his denial of the motion.  He asked that a "gentleman's agreement" be reached between the State and the Defense to not talk to the press. 

The defense then brought up one of the underlying issues, the roundabout way of talking to the press through case filings.  I was quoted earlier in the DMN as saying that the filing looked to me to be nothing more than a press release.

Greg Davis from the DA's office explained during the hearing that he always files all his discovery, so there might be a record of it to show what is turned over.  While I don't doubt that he files all discover sent to the defense, I feel quite comfortable that in the past 7 years at the office, the state has never filed a "notice of overt acts" within 3 days of a case being indicted.  Much less a 13,000 page document.

If someone wants to call me out on that, and show me another example, I'll retract every word and stand corrected.  But I doubt that will happen.

It was agreed at the hearing that outside of business records (those must be filed with the court to be admissible), future discovery type documents will be shown to the court before filing.

TRIAL DATE:

The next bombshell in the hearing came in regards to a potential trial date.

The underlying issue is what District Attorney administration will be handling the case.  John Roach had announced he will not seek re-election, and the election will be in November.  Republican candidate Greg Willis will be facing Democratic candidate Raphael De La Garza for the position.  Mr. Willis is considered the front runner considering the Republican leanings of the county. (Disclosure Note: I supported Greg Willis in his bid for the republican nomination)

The new DA will take over after January, and with administration change often comes a change in the assistant district attorneys.  This can especially occur with the top positions, like those who would be trying a big public corruption case.  Perhaps the defendants feel they will have a more sympathetic ear with an incoming District Attorney who was Cleared of all charges after being pursued by those who are trying this case. 

THIS IS A SPECIAL CASE:

I guess this is a special case, with special treatment.  You see, this was simply the first appearance on the case.  In general, a normal criminal (felony case) gets about 3-4 settings before a decision is made of whether or not to go to trial or plea.  I guess this special case circumvented that because the judge is already contemplating trial dates.

I don't doubt that a trial is where this case is headed, but it seems pretty unusual for that decision to be made on day one. 

Today, the judge announced that he would like the case to be tried in Mid-November, a date that seems ludicrous to anyone who regularly practices complex criminal law.  Especially in light of the discovery hearing that was announced would be on September 27.

So here's the scenario.  Discovery hearing on September 27.  State must turn over the discovery by ____ (whatever is ordered -- 7 days? 10 days?).  So that brings us to the first week of November.  So then what, the attorneys get about a week to prepare for trial?

All the attorneys on the case are respected local defense attorneys, many of which have thriving practices.  It would be not only difficult, but almost impossible to prepare for a case of this magnitude in that short of a period of time. 

OTHER ISSUES:

A few other issues were brought up as well, but I'm getting tired, and don't think they are too ground breaking -- at least not yet.  Those issues where:

• Whether or not the state is required to put in the charging document that the amount in controversy is being aggregated.
• If the defendants are planning on seeking severance. (If they want to try the cases separately instead of with all the co-defendants).  I know I wouldn't want to be in a trial with the "big fish" if I was the "little fish", nor vice-versa.  Nor would I want some other attorney asking questions or saying things that hurt my case.
• If it is proper to plead this case with several counts on the indictment instead of returning several separate indictments.

A note to my readers:  Sorry I've been absent on posting for a while!  Thanks to everyone who wrote me or mentioned they missed my postings.  But don't worry, I have a whole series on ethical issues I've been observing lately......

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Yesterday, our firm found ourselves in an odd position.  A case of ours was set for trial, and we were ready to go. (That's not the odd part).  The odd part is that although we were willing to waive the jury and allow the judge to make the determination of guilt, the state wouldn't allow it.

In general, the only reason the state would oppose this is because  they think they would have a better chance of a guilty verdict with a jury rather than the judge.  Conversely, a defense attorney would do this if they think they have a better (or equal) chance with the judge.  In this case, we knew the facts of the case, and were very confident of a not guilty no matter who was looking at it.

So we attempted to save our citizens some time, and let the judge decide.  But as has recently been pointed out by the front page article in the Dallas Morning News (just one day earlier), the State has a right to a jury trial.

A quote from the article was running through my mind when the prosecutor said that they wouldn't waive a jury.  Although we asked why, they refused to say why, except to proclaim "we have a right to a jury." Transcript Page I, Transcript Page II.  (Sound like a recent appellate attorney for the State?)

From the DMN article:

Roach said his office does not target specific judges as some allege. "That's an ignorant statement," he said. The law says prosecutors are entitled to demand a jury trial "and it doesn't make any difference what our motives are."

Yet avoiding specific judges seemed to be exactly what was going on in our case.

It needs to be pointed out, that this specific case, the issue was not about who was going to be doing the punishing in the case (as the DMN article was about).  This case was about having a judge or a jury decide the verdict of guilty or not guilty.  So although the quote is telling about the mindset of the District Attorney's office -- it's not directly on point.

So, instead of having the one judge decide, the State insisted on the jury.  About 25 jurors were brought in for the day.  Of those 25 jurors, 6 were selected for the jury and sat through a day and a half of trial.

Oh yeah, the verdict? Not Guilty. I'm sure the jurors were glad to have to take off work.

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Always nice to see the Dallas Morning News reporting on Collin County justice issues.  (Even nicer when they quote me). 

This case was first reported by the CCO, and then a lengthy response and explanation of the law was made by me. 

Basically, the guy wanted to plea guilty and let the judge punish him.  The DA refused to allow that, which left him but one option.  Plea Not Guilty, and elect the judge to sentence him. At that point, there is a sham trial, which involves about 60 citizens (in this case, possibly 240 citizens, because there were 4 charges), a judge, bailiff, prosecutor, and defense attorney who could all be doing better things with their time.  After the sham trial, the judge sentences the defendant, just like he was asking for in the first place!

Unfortunately, this concept does not seem to bother the District Attorney.  That or we are both arguing different issues.  I say we are arguing different issues, because in the article, the response doesn't seem to address the issue/point the article and I sought to make:

Roach stands by his policy to adhere to the law that allows him to refuse to let judges accept pleas without his consent. Even though the law allows Blackburn to be sentenced by a judge after a jury trial.

"I don't think it's a waste of taxpayer money for fellow citizens to make a determination about whether a person is guilty of a criminal offense."

The point the article and I sought to make is that the DA cant stop a judge from sentencing a person.  They jury serves no purpose, and is not needed to make a determination of guilt -- because the defendant conceded to his guilt.  

Below is the entire text of the article:
____________________________________________________

Collin drug defendant wants to plead guilty to judge, but DA won't let him

06:37 AM CDT on Monday, March 22, 2010

Robert Blackburn wants to tell a judge that he's guilty. But the people charged with punishing him – the prosecution – won't let him.

When visiting Judge John McCraw tried to allow Blackburn to plead guilty to drug possession charges, saying taxpayers should not have to pay for unnecessary trials, the ruling set off a flurry of legal maneuvers in which the Collin County district attorney's office asserted its right to demand that a jury hear the case rather than let him plead guilty to the judge.

"We're not up here just going through the motions," District Attorney John Roach said. "We have reasons for everything we do – our reason has to do with the promotion of justice."

The spat between judge and district attorney has created a stir in legal circles and the blogosphere. But Roach says the brouhaha over forced jury trials in Collin County, which has arisen occasionally in other counties, is due to "defense lawyers that don't like being made to go to trial."

Roach declined to discuss the Blackburn case, citing pending litigation. But in a peculiar twist due to Texas law, if Blackburn goes to trial, he can demand to be sentenced by the judge, putting the case back where it started after considerable taxpayer expense. Blackburn's attorney is promising to take the issue to the Supreme Court to allow his client to plead guilty to a judge.

Roach said his office doesn't think it is an "honest process" to accept open pleas in which the accused pleads guilty to the judge and the judge decides the punishment without approval by the prosecution.

"A lot of time the defendant and the state, it's just a wink and nod and forcing the judge to decide what the punishment should be," said Roach, who also is a former judge.

Despite the hallowed American right of defendants to face a jury of their peers, 99 percent of criminal cases in Texas never go to trial. Guilty pleas are the grease that keeps the system moving, because it would break down if everyone entitled to a jury trial demanded one.

Texas is one of a handful of states that allow jury sentencing; most leave that task to a judge. But in the few states that do, if you demand a jury trial, you get jury sentencing. Texas is the only state that allows the defendant to choose who sentences the guilty – judge or jury. Only if a Texas defendant pleads guilty to a jury must he or she be sentenced by the jury.

Juries generally are considered less predictable than judges when it comes to punishment.

And in Texas, like many other states, prosecutors must agree to a defendant's decision to waive a jury trial and go before a judge.

Though it is unusual for prosecutors to demand trial when the defendant wants to plead guilty, it's not unheard of.

"It's costly, but it might serve some educational purpose for the public to air the facts," said Nancy King, law professor at Vanderbilt University. "It's a way to test the proof, if there's some doubt about whether the offense actually occurred."

Shannon Edmonds, government liaison for the Texas District and County Attorneys Association, said a trial also might \enable the judge to "learn something new in that trial he wouldn't have learned otherwise," and give the victim "their day in court, which they don't get to do if there's a plea."

But judge shopping – by the defense or the prosecution – is always a possibility.

In Blackburn's case, McCraw thought he saw just that. In his December ruling, McCraw accused the district attorney's office of "forum shopping for a particular judge to fix the punishment."

Assistant District Attorney John Rolater, who is handling the Blackburn case, denied it in court.

Attorneys cannot request that a case be assigned to a specific judge, but they can try to gauge a judge's calendar to see when he or she will be presiding.

Hunter Biederman, a Collin County defense attorney who was in court the day McCraw accepted Blackburn's plea, said efforts by prosecutors to avoid certain judges are outrageous.

"If we're going to elect our judges, who are supposed to be neutral magistrates, why are we going to take that [sentencing] power away from them?"

Roach said his office does not target specific judges as some allege. "That's an ignorant statement," he said. The law says prosecutors are entitled to demand a jury trial "and it doesn't make any difference what our motives are."

Rolater also pointed out in court that without a trial, a judge could give Blackburn deferred adjudication in which the accused's record is wiped clean if he or she completes this special probation. Authorities said Blackburn, 27, tried to swallow the evidence and scuffled with an officer. He faces four felony counts.

Prosecutors opposed deferred adjudication in Blackburn's case. But McCraw called that argument a "straw man" because Blackburn did not request deferred adjudication.

"The state wants to control who sets the punishment hearing," McCraw said. "Is that what the fight is about here?"

Biederman, who wrote about the twists and turns of the Blackburn case extensively on his blog, mentioned other reasons the district attorney's office might insist on trials in cases in which defendants want to plead guilty, including giving rookie prosecutors courtroom experience or inflating the district attorney's conviction rate for political purposes.

Roach dismissed those ideas as well, pointing out that young attorneys cut their teeth in misdemeanor court, not felony court, and saying his office doesn't need to "pump up" its conviction rate.

"I'm hired by the people of Texas to try criminal trials – that's what we do," he said. "Who wants an idiot for the district attorney who won't work to try a case?"

When McCraw allowed Blackburn to plead guilty over prosecutor's objections, he said, "I would submit the United States Constitution allows a defendant the right to enter a plea based on the court's request."

McCraw cited "judicial economy" in his ruling, saying the county should not have to pay for up to four jury trials at a cost of about $5,000 per trial when the defendant is willing to plead guilty.

Other costs related to any trial – attorney fees, costs to jurors' time – also would be incurred.

An appellate court overruled McCraw, citing the state law that says the case must go to trial because the prosecutor and judge must consent to the waiver of a jury trial and saying Blackburn failed to "specifically raise a constitutional argument for this court to address."

Blackburn's attorney, Michael Curran, said he is filing a motion asking the appellate court to rehear the issue. If he loses in state courts, as others challenging the law have done, "This thing can go all the way to the U.S. Supreme Court," he said. "I intend to take this as far as I can."

Roach stands by his policy to adhere to the law that allows him to refuse to let judges accept pleas without his consent. Even though the law allows Blackburn to be sentenced by a judge after a jury trial.

"I don't think it's a waste of taxpayer money for fellow citizens to make a determination about whether a person is guilty of a criminal offense."

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Bill over at the CCO is keeping us up to date on the Mark Bell case.  The case involves missing evidence, a search of an attorney's private office, and a murder case.  What's not to be interested in??

Interestingly enough, the attorney's office who was searched is Keith Gore, currently running for judge of the 296th judical district court.  His private office was searched after Judge Rusch issued a search warrant allowing the search despite a hearing already being set in another court.

CSI Frisco: The Mark Lyle Bell episode

By Bill Baumbach of the Collin County Observer
Posted 2/28/2010

It was the day after Christmas in 2007 when police were called to a house just south of downtown Frisco.

A woman who had been shot had run to a neighbor's house and called for help. Upstairs in the house next door, the police found the body of 36 year old Craig Nail. He died of gunshot wounds before the police arrived. The woman who was shot was his girlfriend, Therisa Hofman. She was Care Flighted to a hospital, and later recovered.

Mark Lyle Bell

Vera Elizabeth Guthrie-Nail

Thomas Edward Grace

Two weeks later, the Frisco police announced they had made an arrest in the murder/shooting case. Arrested was Craig Nail's ex-wife, Vera Elizabeth Guthrie-Nail.

Later a Collin County Grand Jury indicted Guthrie-Nail, Thomas Edward Grace, and Mark Lyle Bell -- all on charges of capital murder. Guthrie-Nail was accused of using Thomas Grace as an intermediary to contract a murder for hire with Mark Bell, the triggerman.

During the grand jury investigation, prosecutors learned that Mark Bell's wife had given his attorney, Keith Gore, some letters and a sealed shoe box, which she told Gore contained evidence crucial to his defense, but which prosecutors allege contained evidence that would tie Bell to the murder.

The District Attorney's office then went to Judge Robert Dry, who was supervising the Grand Jury and asked for a subpoena for the box, letters and a pair of boots they believed were also given to Gore by Mrs. Bell. Dry scheduled a hearing on the request for 5 days later.

However later that same day, the DA and a Frisco police detective also filed a request for a search warrant on Keith Gore's office with a different judge. Judge Mark Rusch issued the warrant, and detectives seized some letters, a multi-page, stapled document, and a sealed shoe box. No boots were found.

The seized items were taken by police to Judge Rusch, who was at home at the time, and later to the Frisco police evidence room.

What happened next is in dispute.

The Collin County District Attorney's office and the Frisco police allege that Judge Rusch used a knife to open the seals of the shoe box and inspect its contents. Judge Rusch denies this and says he gave the box back to the prosecution team still sealed.

According to a motion filed with the appeals court by the defense, at a later court hearing officers involved in the search stated that the contents of the box had been switched out. They said the box originally contained a Wal Mart receipt, but later the receipt was missing and a business card from a Wal Mart security officer was substituted. The defense claims that the receipt was exculpatory evidence - that it would prove that the boots sought by police were purchased after the murder.

But the receipt is gone. Who done it?

Claiming that by inspecting the seized evidence, Judge Mark Rusch became a material witness, the defense team sought to have Judge Rusch recused. A hearing was held before an assigned judge who ordered that Rusch recuse himself from the case -- to be replaced by Judge Chris Oldner.

The defense also accused the Collin County District Attorney's office of prosecutorial misconduct and sought to question the First Assistant District Attorney, Greg Davis. Judge Oldner denied the request.

Oldner also denied a defense motion to disqualify the District Attorney's Office from the case.

Bell's attorneys appealed Oldner's decisions to the 5th Court of Appeals in Dallas, which also refused to force the DA off the case. Bell has now appealed again, this time to the Texas Court of Criminal Appeals, which earlier this month agreed to hear the case and has ordered that arguments be submitted.

So who is lying - The judge? The DA? The police?

Perhaps we'll never know who opened the shoe box, and what happened to the evidence. It does seem possible that misconduct and mishandling of evidence could make prosecution of Mr. Bell difficult if not impossible.

This 2 year old case is starting to look like something from a television detective story plot. Unfortunately it's unlikely that a super detective is going to come on the scene with his scientific tool kit and tell us who done it.

CSI:Frisco? Not hardly.

Bill

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     Recently, a collaborative effort was made to get a questionnaire answered by the candidates for Collin County District Attorney.  All candidates in the Republican contested primary returned our questionnaire.  (The Democratic candidate has not responded).

     I thought one way for me to add my commentary is to take what I see as the best answer from each question (sometimes shortened), and post them here.  As was promised to the candidates, the full text of their answers appears at the bottom of this article.

     I hope none of the candidates take my comments too personally.  I consider all three friends.  This is a great race because it is not about who is qualified versus who is not, but rather which is the best from three qualified candidates.  _______________________________________________________________________

BACKGROUND For #1– Right now there are 3 attorneys per misdemeanor court (1
chief, 2 others), and 1 Misdemeanor chief over it all. There are 3 “teams” of
attorneys for District Courts. I believe there are 3 attorneys staffing 3 courts on
one team, and 2 attorneys staffing 2 courts on the other team. Additionally, there
are 4 attorneys in the crimes against children section, 6 in “special crimes” (civil
and criminal), 5 in appeals, and 3 in Juvenile. (These numbers might be slightly
off, but are generally correct.)

1. What do you think about the current structure/staffing of the ADAs? Would
you shift attorneys around?

Best Answer: Greg Willis

     I believe the present District Attorney’s Office staffing matrix lacks a sufficient
number of prosecutors in the individual courts. There are currently seven district
courts hearing criminal cases. Staffing these courts with two permanently
assigned assistant district attorneys will increase efficiency. A felony chief
prosecutor will supervise two or three of these court teams depending on the
respective caseloads for the individual courts. These changes will provide law
enforcement and defense attorneys more access to prosecutors, as well as for
more consistency in handling cases without the need for additional staff and
connected growth in the budget. Additionally, I plan to implement a program of
rotating misdemeanor prosecutors into the felony division before they are
promoted to a chief’s position within the Misdemeanor Division. These
assignments will not only provide these prosecutors with felony trial experience,
but also give them practical experience within the intake and grand jury sections.
The benefits for implementing this specific program are many, not the least of
which is providing better qualified and more experienced misdemeanor court
chiefs to supervise and train new prosecutors who are responsible to handle
misdemeanor cases in the Collin County Courts at Law.

Why This Is The Best Answerr: All candidates addressed the problems with the "team method" of prosecutors currently implemented. However, Mr. Willis' answer addresses the misdemeanor chiefs. One of the things I envied about the Dallas DA's office is that they will make an attorney a felony prosecutor before becoming a misdemeanor chief. This helps the prosecutor gain perspective on what cases are important, and what cases are not. It also allows them to be better prepared when training new attorneys -- a crucial aspect of the office.

2. What do you think about the criminal special crimes section? Would you make changes in that section, and if so, specifically how?

Best Answer: Jeff Bray

     In addition to taking over the Special Crimes division, I will change it's
orientation and responsibilities. It is supposed to be a white collar crime section, but it
seems to have drifted over the years to a major fraud/catch-all division. It has also
caused quite a bit of controversy. The Specialized Crime division of the Dallas County
D.A.'s office handles all felony white collar crime cases, starting with a loss value of
$1500. These cases, and these victims, need an experienced white collar prosecutor just
as much as the large cases, but the Collin County Special Crimes division only handles
cases with a loss of at least $20,000, and even then sends many eligible cases to the trial
teams for prosecution after they are indicted. Unless a case goes through the standard
intake process, it should be tried by the prosecutor that prepared it. I believe this division
will be able to handle the cases that need special crimes attention even though we would
be giving up a prosecutor to the new trial team. The section may also handle the same
type of "special" cases it has handled in the past, including investigations of local
attorneys and officials, but these will either be handled by me or under my direct
supervision. If there is any negative impact from one of these investigations or
prosecutions, I will be directly responsible and answerable to the involved parties, the
press, and the voters.
Further, as a former special prosecutor for a neighboring county, I will not
hesitate to call in a prosecutor from another office to take over an investigation if my
office could be perceived as having an improper bias.

Why This Is The Best Answer: Mr. Bray has the edge in experience in complex special crimes investigations.  I like the fact that his face will be part of the investigations and keep him motivated to do the right thing.  Jeff also knows of some cases starting out in that division, then transferring out, and has vowed to stop that practice.

3. Will you get in the courtroom and actually try cases? Why or Why Not?

Best Answer: Jimmy Angelino

     Anyone who knows me knows that I am not a politician who will just sit behind a
desk drawing a paycheck. I am the only candidate in this race who has extensive jury
trial experience, with over 190 jury trials taken to a verdict as a prosecutor. Of the cases
I took to trial, I had a 98% conviction rate. I am a skilled prosecutor and I don’t think I
should just shelve those skills, but I have to balance that with the time commitment
managing and training will take up.
Because of that, especially at the beginning, I do not expect to be in the
courtroom trying cases on a daily basis. Not to mention there are plenty of excellent
prosecutors who need to be left to do their jobs. I do however expect to second-chair
trials occasionally in order to help our junior prosecutors develop their trial skills,
especially in the misdemeanor courts. Training and mentoring the Assistant District
Attorneys will be a priority for me.

Why This Is The Best Answer: Conviction rate doesn't mean much to me.  Any attorney can win all of their cases if they pick the right one.  Plus, there are many cases that you shouldn't be winning in the  interest of of justice.  However, I like the fact that he singles out the misdemeanor division to sit in on cases and help out.  Mr. Angelino's background with trial and DWI prosecution would be helpful to new attorneys.

4. In general, what changes would you be making if you became District Attorney?

Best Answer: Greg Willis

     First is my commitment to make the just prosecution of criminal cases the number
one priority of the Collin County District Attorney’s Office. I will permanently
assign prosecutors to the individual courts. Assistant district attorneys will take
ownership of their cases as I implement a new protocol that not only gives each
prosecutor more discretion over their individual cases, but also broadens the
authority of chief prosecutors. My administration will work hard to build interagency
relationships with law enforcement throughout Collin County to increase
our investigative and prosecution effectiveness. My administration will also
create an on-call system, making veteran prosecutors available to Collin County
law enforcement officers on a 24 hour / 7 days a week basis as we strive to make
the pursuit of just results the guiding principle of the District Attorney’s Office.

Why This Is The Best Answer: Both Bray and Willis discuss giving individual prosecutors more discretion by making cases their own.  I have thought and blogged about that being a major problem within the office.  However, Willis also writes about the implementation of an "on call" prosecutor to assist law enforcement.  I think this would be a welcome addition by local law enforcement agencies.

5. Right now, only three people in the District Attorney’s office have authority to dismiss a case. The misdemeanor division chief for misdemeanor cases, the first assistant for felony cases, and of course, the elected District Attorney. What do you think of this policy? Would you allow misdemeanor court chiefs and or felony court chiefs to dismiss cases they feel should be dismissed?

Best Answer: Greg Willis

     I believe those individual assistant district attorneys assigned as court chiefs
should have my support in the day-to-day operations of their courts. Those
individuals must demonstrate integrity, professionalism and wisdom in order to
justify occupying this very important role. Any prosecutor working with me in
that capacity will have the ability, when justice requires, to reduce charges, reduce
sentence recommendations and in appropriate cases, dismiss charges.

Why This Is The Best Answer: Both Willis and Angelino propose allowing misdemeanor prosecutors to dismiss or reduce charges.  However Angelino prefaces it by saying that there is less of a need when proper screening of cases occurs.  I think that is a myth.  No office (on a misdemeanor level), can ever "properly screen"  all the misdemeanors that come in.  Unless Mr. Angelino is proposing that all DWI cases that come in will come in with videos that are watched before the filing of the case (what can show a rightful on non-rightful arrest), there can never be "proper screening" of cases.  Mr. Willis gets the nod on this question by unequivocally stating his answer. It also shows the benefit from #1, allowing misdemeanor chiefs to first gain experience felony prosecutions before starting that  position.

6. Current DA John Roach recently proposed using funds to purchase weapons and body armor for the Investigators in the office. What do you plan on doing with these weapons, and will your investigators continue to train to be a emergency security staff for the court?

Best Answer: Jimmy Angelino & Greg Willis & Jeff Bray

    You can read all the full answers linked at the bottom to this question.  I didn't find this questions to be a major differentiator of candidates.

Why This Is The Best Answer: All three answered pretty similarly.  That they aren't going to create a SWAT team out of investigators.  They would seek out the advice of local law enforcement to see how they could best be utilized.

7. Do you have any plans to expand or develop alternative/deferred sentencing programs? What programs have you seen or heard of that you would implement?

Best Answer: Greg Willis

     Yes. The current system is bloated with criminal cases that would be more
appropriately handled by diversion out of the courts and into an alternative
program of rehabilitation. I would favor diversion for youthful, non-violent
offenders with a demonstrated desire to change their behavior in exchange for
keeping their record clear. This means I will expand the current divert program
within the misdemeanor division and create a felony diversion program.

Why This Is The Best Answer: Mr. Willis goes the furthest in saying he'd like to expand to felonies.  I give Mr. Angelino a close second on this one.  I'm not sure if Mr. Angelino agrees, although he stated he wanted to expand the current diversionary system.  I would have liked to hear the candidates opinion on the current system (which is rarely used, and riddled with problems in my humble opinion).  Mr. Bray wont commit to saying what if any programs he'd use until he learns more which makes sense. However, I think that all candidates running for DA should have already researched or experienced programs that worked.

8. What lessons should the Collin County District Attorney learn (if any) from Dallas County’s experience with their Innocence Commission?

 Best Answer:  Greg Willis

     When the Dallas County District Attorney became aware that innocent individuals
had been convicted and incarcerated, he moved swiftly to rectify these injustices.
Such actions are completely consistent with Texas law -- a district attorney’s
paramount duty is to seek justice. As District Attorney it will be one of my
priorities to make sure that Collin County prosecutors and all of our law
enforcement agencies take full advantage of the important lessons we have
learned from uncovering and studying the kinds of problems that led to those
wrongful prosecutions and convictions of all those innocent individuals, who have
now finally been exonerated.

     Beyond the grave injustice to the wrongfully convicted, a credible criminal justice
system simply cannot tolerate the number of violent criminals who (as a result of
charging and convicting innocent citizens) were never prosecuted, but rather were
allowed to remain at large to commit additional crimes against our citizens.
After meeting with the various law enforcement agencies these past few months, I
am confident that the professionals at all levels of the Collin County criminal
justice system sincerely want to be respected by their peers and by the public for
performing their duties aggressively by zealously investigating and prosecuting
criminal offenses, while at the same time diligently protecting the rights of our
citizens.

Why This Is The Best Answer: All candidates give good answers to this question.  I don't know that there is a "right answer" to this question.  I think that good hiring and creating an atmosphere of it being OK to do the right thing is key.  Through Mr. Willis' answer, I get the feeling that this would be accomplished. 

9. Do you believe our indigents are well served and fairly treated in our “Indigent Defense Plans”? What changes to the plans might you recommend to the Board of Judges?

 Mr. Willis gave a REALLY long answer with links to studies, etc. -- You can read the entire text below. However, one line struck me as the most telling:

"I believe an emphasis should be placed on working to keep well qualified defense attorneys involved with the programs and removing those with records of inadequate representation."

Why This Is The Best Answer: Truth is, this question was designed more to get at the core of the candidates ideals than to find real answers to the problem (if any).  The judges are the ones in charge of the Indigent Defense Plan, however the DA certainly sees what works and what doesn't.  I think quality of court appointed lawyers is always an issue, and some attorneys don't treat it with the respect it deserves.  Mr. Willis being a judge and seeing a plethora of court appointed and retained attorneys in court and trial gives him some insight that others may not have. 

10. Would you bar defendants from open pleas before a judge if a plea agreement can not be reached, or would you reserve the right to object if you thought the judge might be more lenient than your plea offer was? Which level of prosecutors in the office would be allowed to make this decision?

Best Answer: Greg Willis & Jimmy Angelino

WILLIS (partial answer): "The decision to waive a jury trial on behalf of the State is not a decision that can be lightly made and must be evaluated on a case by case basis. Certainly, it is not my intention to universally bar defendants from open guilty pleas to the Court but every case must be independently evaluated on its particular merits. . . If the question asked is whether I will predicate a decision to request a jury trial solely on whether or not I believe we can obtain a greater sentence from a jury, my answer to this question is no.

ANGELINO (full answer): In general, I believe defendants who want to plead guilty to the charge against them, should be allowed to enter a guilty plea. This is because guilty pleas avoid the necessity of a trial which takes up the time of the jury members and extra cost to the taxpayers. The DA’s office should generally not bar defendants from entering open guilty pleas, except for extraordinary circumstances.

Why This Is The Best Answer: I thinks these two answers explain for themselves why they are the best answers.  Judges are also elected, and sometimes we need to allow the elected judges to make the decisions on punishment.  It is also a GROSS waste of money and time to have a "sham" trial, just to allow the prosecutor to get another win at trial, when a person wanted to plea guilty in the first place.

Jimmy Angelino's full responses are here

Jeff Bray's full responses are here

Greg Willis' full responses are here

Full Disclosure: I have been a supporter of Greg Willis' campaign. Although I haven't "campaigned" for him, I have sent in a donation to his campaign.

PAST ARTICLES ON COUNTY RACES

• Collin County Campaign Websites
• Collin County District Attorney
• Collin County District Attorney Q & A
• Collin County Court 2
• Collin County Court 3 (Collin County Observer)
• Collin County Court 4
• Collin County Court 6
• 219th District Court
• 296th District Court
• JP - 4
• District Clerk

 Hunter Biederman is a DWI / Criminal Defense Attorney in Collin County. He publishes his blog (www.friscodwilawyer.com) which focuses on the Collin County and Texas legal system. He can be reached at friscolaw@gmail.com or (888) DWI-FRISCO.

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Recently, we sent out 10 questions to the DA candidates. I will go back and analyze some of the answers soon.
Unfortunately, my blog platform is having problems, and I am not able to edit these post very well right now. As soon as it's back up, I'll add more. Below is the first article by the Collin County Observer publishing those answers. ---

District Attorney candidate questionnaire responses

The Collin County Observer, in a collaboration with the Frisco DWI Lawyer's Blog recently sent all four District Attorney candidates a 10 question form designed to give the voters an insight both into the plans each candidate has for operating the DAs office and their approach to criminal justice.

The Collin County District Attorney is responsible for prosecution of all criminal cases in the county. The DA runs a large operation, divided into ten divisions. These divisions are: Intake/Grand Jury, Misdemeanor Trial, Felony Trial, Family Justice (crimes against children section, domestic violence section), Special Crimes, Appellate, Hot Checks, Investigations, Operations and Victim/Witness Assistance. The DA also may represent the County in civil cases.

The DA's office has 116 employees and its 2010 budget is $10,775,827.

The questionnaire contained 10 questions. The first 5 involved the organization and operation of the department:

1. What do you think about the current structure/staffing of the ADAs? Would you shift attorneys around?

2. What do you think about the criminal special crimes section? Would you make changes in that section, and if so, specifically how?

3. Will you get in the courtroom and actually try cases? Why or Why Not?

4. In general, what changes would you be making if you became District Attorney?

5. Right now, only three people in the District Attorney’s office have authority to dismiss a case. The misdemeanor division chief for misdemeanor cases, the first assistant for felony cases, and of course, the elected District Attorney. What do you think of this policy? Would you allow misdemeanor court chiefs and or felony court chiefs to dismiss cases they feel should be dismissed?

The next question addressed the recent attempt by DA John Roach to arm a "Rapid Response Team" with automatic weapons and riot gear:

6. Current DA John Roach recently proposed using funds to purchase weapons and body armor for the Investigators in the office. What do you plan on doing with these weapons, and will your investigators continue to train to be a emergency security staff for the court?

And the last 4 questions with policies affecting the administration of justice:

7. Do you have any plans to expand or develop alternative/deferred sentencing programs? What programs have you seen or heard of that you would implement?

8. What lessons should the Collin County District Attorney learn (if any) from Dallas County’s experience with their Innocence Commission?

9. Do you believe our indigents are well served and fairly treated in our “Indigent Defense Plans”? What changes to the plans might you recommend to the Board of Judges?

10. Would you bar defendants from open pleas before a judge if a plea agreement can not be reached, or would you reserve the right to object if you thought the judge might be more lenient than your plea offer was? Which level of prosecutors in the office would be allowed to make this decision?

As of the deadline at midnight on Sunday 3 of the candidates had returned their completed questionnaires:

James Angelino's responses are here

Jeff Bray's responses are here

Greg Willis' responses are here

The questions are specific and so the responses are long. The Observer offers this in-depth look at each of these candidates in the hope that the discerning voter will gain valuable insight into the plans and philosophy of each of these well qualified candidates.

The Observer thanks each of these gentlemen for taking the time to submit thoughtful answers to our questions. Our readers can look forward to further analysis and discussion of these issues in both The Collin County Observer and the Frisco DWI Lawyer's Blog.

Bill

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Coming Soon!  A 10 Question and Answer session with the candidates for Collin County District Attorney.  This Q&A is a collaborative effort between myself and the Collin County Observer (CCO).

In the next couple of days, we will be sending out 10 questions to the candidates for DA.  I think it will be helpful to see where the candidates stand on several of these issues.  Because I am a criminal defense attorney who practices in the county, I have tailored some of the questions to reflect important issues to practicing attorneys.  The other questions, with the help of the CCO are more geared towards the average voter who will not have much direct contact with the Judicial System.

The candidates will be given the questions in writing, and have several days to respond.  I will post their answers here on the blog.

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Recently, several candidates for the Republican primary came to the Allen Area Patriots club to discuss the race for Collin County District Attorney.  Videos of the candidates were uploaded to youtube, and I have added them here to the blog.  A big thank you to "mopenshaw" whoever you are.You can read bios of the candidates on my previous post HERE.

JEFF BRAY

GREG WILLIS

JAMES ANGELINO

PAST ARTICLES ON COUNTY RACES

• Collin County Campaign Websites
• Collin County District Attorney
• Collin County Court 2
• Collin County Court 3 (Collin County Observer)
• Collin County Court 4
• Collin County Court 6
• 219th District Court
• 296th District Court
• JP - 4
• District Clerk

 Hunter Biederman is a DWI / Criminal Defense Attorney in Collin County. He publishes his blog (www.friscodwilawyer.com) which focuses on the Collin County and Texas legal system. He can be reached at friscolaw@gmail.com or (888) DWI-FRISCO.

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A couple of weeks ago, I happened to be present in the 429th District Court and saw an individual, Mr. Robert Blackburn trying to plea guilty, but was barred in doing so by the Assistant District Attorney.  I didn't think too much of it at the time, because I have seen the DA do this many times -- including to my clients.

What happened differently on this occasion, is that the (visiting) Judge John McCraw stood up to this ridiculous practice. I was pleased to read a great article by the Collin County Observer reporting the incident and subsequent appeal by the DA.

The Law

First, lets go through how a criminal case is disposed.

A person accused of a crime may either plea guilty or plea not guilty regarding criminal charges against them.

Plea Not Guilty

Texas has a bifurcated trial system, meaning "two parts."  The first phase is to determine whether or not a person is guilty, the second phase is to determine punishment (if found guilty).  Obviously if found not guilty, there is no punishment phase.  As far as the second phase goes, one must choose before the trial begins as to whether or not to have the judge or jury handle sentencing if found guilty.

1. Plea Not Guilty, Judge Punishment:  A citizen requests a jury to determine if they are guilty or not guilty, and if  found guilty, elect the judge to impose punishment.  This is the most common, as most attorneys know that judges get to see lots of cases and can understand the seriousness/non-seriousness of the particular crime.  Additionally, it is easier for an attorney to advise a client on the likely punishment if you know who will be doing the sentencing opposed to jurors you have never met.

2. Plea Not Guilty, Jury Punishment: A citizen requests a jury to determine if they are guilty or not guilty, and if found guilty, elect the jury to impose punishment.  If in front of a tough, unreasonable, or unknown judge, one might elect a jury of their peers to decide their fate. 

Plea Guilty

1. Negotiated Plea:  This is the most common plea.  The DA and the citizen (often with the help of their attorney), negotiate a punishment, and they plea and receive punishment.

2. Non-Negotiated "Slow" Plea: If a citizen accused wants to plea, but cannot agree with the DA on punishment, they can enter a "slow plea."  This means the accused will plea guilty, but allow the jury to assess the punishment.

2. Non-Negotiated "Open" Plea: If a citizen accused wants to plea, but cannot agree with the DA on punishment, they can enter an "open plea."  This means the accused will plea guilty, but allow the judge to asses the punishment.

The Case

In this case, the defendant, Robert Lee Blackburn was charged with 4 felonies after he bit a Plano Police officer while being arrested for possession of cocaine. It seemed that everyone agreed as to his guilt, but there was no agreement on what the punishment would be.

Mr. Blackburn and his attorney agreed he should plea guilty, and wanted the presiding Judge (in this case, Judge Jill Willis) to assess punishment.  Mr. Blackburn wanted to plea guilty in an "open plea," but the District Attorney refused to allow him to do so.  They did this by invoking the State's right to a Jury Trial. 

In Texas, the State has a right to a jury trial.  It's a bit silly in my opinion, but too complicated to debate in this article the legality of the whole issue.  I'll save that for another article.

By invoking the right to a jury trial, it means that a defendant CANNOT enter an "open plea."  This means that if Mr. Blackburn wants a judge to assess his punishment, he must plea not guilty, go through the farce of a jury trial, and elect the judge to impose the sentence. 

That is exactly what the Assistant District Attorney, Gary Knapp forced upon Mr. Blackburn's.  I do not know if this was his personal decision, or if someone higher up in the office instructed him to do this. (The Observer reported and provided a transcript showing Appellate Chief John Rolater who was arguing the case -- which is accurate at the second hearing.  Originally it was Knapp barring the plea of guilty, and calling  the Appellate department for assistance).  In this case, the Judge did not allow the State to invoke their right to a jury trial, and ordered the plea be accepted.  The State has since appealed, and the case is in limbo until the appellate court reaches a decision.

Why would the DA force a "sham" trial on a defendant when everyone agrees on their guilt?

There can be several possible reasons, none of which seem justified to me:

1. Forum Shopping - Forum shopping is an attorney (on either side of the case) attempting to pick what judge is going to hear a case.  Defendant's cases are randomly assigned to courts, so one cannot pick a judge.  However, visiting judges are often called in when judges are out of town, or want to run a "double-docket," to help clear out some cases. 

I am almost positive I heard the DA that if Mr. Blackburn wanted to plea to a visiting judge, they would allow it, but not to the presiding judge.  I cannot remember for sure, and am not willing to make this claim positively.  I wish that a transcript available of the hearing that took place before the appellate department got involved.  That is where the true hearing took place.  I personally believe forum shopping was part of the reason why the DA did not allow the plea.

2. Padding Statistics - This is political gamesmanship. If a DA wants to boast about their conviction rate, they can pad the stats.  I have seen Collin County DA literature boasting about conviction rates in the past. Additionally, if a prosecutor wants to look good to their superiors, they will try to win as many cases as possible.

The DA can offer really tough plea bargains to a defendant.  This will bar someone from pleading guilty in a negotiated plea.  In a court where the defendant chooses to allow the judge to accept punishment, this will force a trial if the state invokes their right to a jury trial.  The DA will have a slam dunk case of guilt, and get to put it down as a win.

They will additionally get to put it up on the "Board" which is at the DA's office.  The "Board" is where attorneys write down their trials they are having that week, along with the results.  It was there when I was an assistant district attorney, and assume it is still there.

3. Practice for young prosecutors:  I guess if someone wants some experience in a trial, they could force a sham trial just to get some experience.  This is not what happened in this case, because these are felony prosecutors with plenty of trials under their belts already. 

4. Manipulating the Punishment Range: The entire range of punishment is available to either a judge or a jury.  With one exception: Deferred Adjudication.  A citizen accused can only get deferred adjudication from a judge after a guilty plea (negotiated, or not negotiated).  By barring a person from pleading guilty, the DA is barring the possibility of them getting Deferred Adjudication.  Basically usurping the elected Judge's powers.  The DA in this case says this is the reason for their behavior, however I have personally seen them do this in cases where the client is not even deferred eligible.  I don't see why the DA would stop an elected presiding Judge (or in this case, a judge appointed by Governor Rick Perry) from doing the job they were put there to do.

My hope is that with this article, one of the new candidates for District Attorney will stop this archaic practice of barring a person from pleading guilty to an elected Judge thus forcing a sham trial.  In the end, it is about the difference of what should be done, versus what can be done.  After about seven years of the same elected District Attorney, I think a new DA will be the only factor that change this practice.

DOCUMENTS

Petition for Writ of Mandamus, In re John Roach, Fifth COA case number 05-09-01451-cv

Reporters Record, December 3, 2009 Texas vs Robert Lee Blackburn

Order granting Emergency Motion for Temporary Relief, In re John Roach, Court of Appeals, Fifth District.

Link to Court of Appeals case 05-09-014510-CV, In re John Roach

Link to Collin County cases 199-80283-08, 199-80284-08, 199-80285-08, 199-80286-08, State vs. Robert Lee Blackburn

Hunter Biederman is a DWI / Criminal Defense Attorney in Collin County. He publishes his blog (www.friscodwilawyer.com) which focuses on the Collin County and Texas legal system. He can be reached at friscolaw@gmail.com or (888) DWI-FRISCO

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Saw this recently, and thought I'd share it.  Although I love what Craig is doing down in Dallas, I really think he could have been a bit funnier. . . .

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I recently showcased an article, "Two Local Judges Investigated in Grand Jury Investigation"  by the Collin County Observer.

In general, I don't like just grabbing an entire article and posting in on our blog.  I instead try to post and show my take on the matter.  But his article was too good on the matter to do anything but post the entire article.

What I have found interesting, is not just the article itself, but the massive amounts of comments about the article.  As of today, there are 64 comments on the article.  I think that is the new story of the day.

I am posting the responses to the article below.  It is interesting the progression from anonymous comments, to non-anonymous comments.  Specifically with local attorney who often are the targets of these investigations.

Below are the comments from the site:

Comment from: FM Voter [Visitor]

Mr. Willis has served the citizens of Collin County with the utmost integrity and he will continue to do so if elected as our next DA. What happened to our secretive grand jury process? What a shame that this information is out in the public. This entire situation smells of political intimidation

 

Permalink 11/19/09 @ 09:43

 

Comment from: Christobell [Visitor]

Bill, thank you for tracking down this story. Both Jill and Greg Willis are honorable public servants. This certainly sounds like a political witch hunt.
In regards to Judge Wooten, wouldn't the Ethics Commission be the one filing charges, or am I mistaken.
I hope Judge Willis is our next District Attorney.

 

Permalink 11/19/09 @ 10:21

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Bill at the Collin County Observer is back again with a commentary & article on the DA's office going after local officials. I will not be commenting.  Below is his unedited article. You may also want see a very active discussion on his "comments page."

Two local judges targets of grand jury investigations

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I have not written about a recent DWI incident because I didn’t want to soil the names of  prosecutors accused of wrongdoing.  Those accused have now found their names in print and put on TV.  I have chosen not to add their names to this article.

WFAA & the Collin County Observer have published stories, so I guess on a small scale, the cat is now out of the bag about the “story.”  Which in my opinion is not much of a story at all.

The truth is, if these reporters personally knew the stellar reputations of the two prosecutors accused and the great reputation of the defense attorney accused versus the young prosecutor accuser, they wouldn’t have been so quick to believe what they heard from the accuser.

The 30 second recap of the story is that an “iron-clad” DWI case was effectively dismissed by a Collin County prosecutor by holding a trial and not putting on any evidence.

Brett Shipp from WFAA and the Collin County Observer got this one way wrong.  At the very least, they made a premature jump to conclusions:

The first conclusions asserted are that the citizen accused is definitely guilty and there would be plenty of evidence to prove his guilt in court.

The second conclusion was that the actions of the prosecutor was motivated by some ulterior motive.

Assuming the citizen is guilty and there is enough evidence to prove his guilt can often be a big leap in a DWI case.  I do not know the facts of the case.  But from courthouse talk, I am told that the citizen burped seconds before the breath test.  Anyone who regularly practices in the area knows that this would invalidate the breath test.  Additionally, the state’s own experts who are required to certify the test will not do so if someone burps within the required 15 minute observation period.  This is because the machine would be testing the mouth alcohol instead of the alcohol from the lungs.  No jury would ever hear the results of the test. 

If a prosecutor has this knowledge, they may a) try to put on the evidence anyway, knowing it is no good, or b) self-regulate and not offer the breath test evidence.  Apparently the prosecutor chose the latter.  So then, what is left is the facts of the case without the breath test.

Without going into too much detail, often young, just out of school prosecutors think cases are “iron-clad” when they are anything but that.  As a DWI attorney, I could give a list of DWI not guilty verdicts in cases with seemingly significantly worse facts where prosecutors thought the case was a slam dunk.  Especially in cases where there are no chemical tests.  There is a reason why the State is pushing so hard for blood tests when people refuse breath tests – because it is difficult to obtain convictions on opinion testimony alone of some police officers.

I have heard that the citizen accused in this case looked stellar on the tape.  Just because a person is weaving and cant stand on one leg doesn’t mean they are guilty of DWI.  So again, the prosecutor may have had doubts about the guilt of the person, who is by law required to "seek justice" can then either, a) put on the evidence anyway, or b) do what apparently was done in this case – not put on the shaky evidence.

I believe the WFAA report deceives the audience in what I gather is an attempt to shield the true source of his story – a young prosecutor accuser.  The report purports to display two citizen callers as the people who are upset about the trial results.  And they very well may be upset, but certainly they did not bring this story to the attention of the reporter.  You see, this “story” was known for a while by many local attorneys.  The young prosecutor accuser sent a long email to a law professor about his views on the indigent’s representation in local courts.  In the email, he blasts his fellow prosecutors for effectively dumping the DWI case for their own personal gain.  His email did not mention the names of the prosecutors, but gave enough personal information about them to make them easily identifiable to anyone in the tight knit Collin County legal community.

WFAA’s story relates and shows that the “incident report spells out what happened next.” Smelling of alcohol and stepping off line during a walk and turn test.  So the reporter has the incident report of the event.  Where did the reporter get it?  Witnesses aren’t given police reports and never went to court.  The case is expunged and you cannot get the paperwork from the court or from open records.  So it would seem that maybe young prosecutor gave it to the reporter?  This prosecutor proclaimed in his email to the professor that he “got the file from the ‘disposed’ files and made sure that none of it was attributed to me.  I made copies of the file.”

Under the law, the reporter of the story didn’t do anything wrong, but our hero young prosecutor accuser might want to study up on expunction laws:

55.04. Violation of Expunction Order

1. A person who acquires knowledge of an arrest while an officer or employee of the state or of any agency or other entity of the state or any political subdivision of the state and who knows of an order expunging the records and files relating to that arrest commits an offense if he knowingly releases, disseminates, or otherwise uses the records or files.

2. A person who knowingly fails to return or to obliterate identifying portions of a record or file ordered expunged under this chapter commits an offense.

Violation of an Expunction order is a Class B misdemeanor.  Ironically enough, it the same level crime as the DWI in question.  It would appear likely that the accusing young prosecutor may have committed the same level crime that he is complaining was not effectively prosecuted.  I wonder if he would object if someone prosecuting him were to drop the case if they felt the evidence against him was shaky?

Hunter Biederman is a DWI / Criminal Defense Attorney in Collin County. He publishes his blog (www.friscodwilawyer.com) which focuses on the Collin County and Texas legal system. He can be reached at friscolaw@gmail.com or (888) DWI-FRISCO.

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Today I had an experience with the Collin County District Attorney's office that gives some great insight into the minds of some (not all) prosecutors.  The "Win At All Costs" mindset.

In general, I have seen this win at all costs mindset from prosecutors locally, and in articles around the country.  Arguments that get away from the merits of why we have the judicial system at all.  Consider a case where an inmate is requesting DNA to prove their innocence.  A prosecutor would argue not about whether or not that person is guilty, but whether or not he should be allowed to test the DNA sample. This gets away from the primary concern - is he guilty or not?  It moves into the realm of, should we test to see if he is guilty or not.

The illogical win at all costs argument is what I saw from the Collin County DA today, and it was shameful.

A while back we requested a hearing for a new trial for a client.  He had a different attorney for a trial, was convicted, and felt like he didn't get a fair shake at things.  We agreed and offered to represent him.  We requested, and were granted a hearing on the motion for new trial.  At this hearing, the judge would decide for himself whether or not the client gets a new trial.

We prepared for the hearing, and headed into court today. The judge asked if we were ready, we said "yes," but the prosecutors said "we just have a quick issue to take up first."

Instead of having the hearing today, and deciding whether or not the client got a fair trial, the DA decided to argue procedural issues.  Their arguments are not whether or not he got a fair trial, but whether or not he should even get a hearing to determine if he got a fair trial.

They proceeded to argue for quite some time that we were not entitled to even have a hearing to determine if the client had a fair trial. (I'll leave the post about whether or not they are right for later)

The Code of criminal procedure states that "It shall be the primary duty of all prosecuting attorneys . . . . not to convict, but to see that justice is done."

Can the argument of whether or not to even have a hearing be done? Sure.  Does it seem to me like this is a way to see that justice is done?  No way.

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I have been told today from several sources that Collin County District Attorney John Roach will not be seeking re-election. I haven't seen an official press release, but believe it is true.

His campaign website says it is being readied for the 2010 re-election campaign, but hasn't been updated in a while.

You heard it here first.

Let the rumors fly of who will be the next Collin County District Attorney. . . .

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