Lubbock Criminal Defense Lawyers Association

Good news! In response to the truckloads of Motions to Discover Criminal History of Defendants being filed by our members, the District Judges have signed a Joint Order Regarding the Distribution of Criminal History Reports to Defense Attorneys.

In a nutshell, the CDA is ordered to provide defense attorneys with criminal histories of defendants as part of the discovery that is normally released in pending criminal cases. However, defense attorneys are not to provide copies of the criminal histories to the defendants, and shall use the criminal history report “only for discussion purposes with clients.” Since our files actually belong to our clients, I don’t know if the last part is enforceable, but in general I think the Order is a very good thing.

Click here to view the order: Joint Order Regarding the Distribution of Criminal History Reports to Defense Attorneys

Mark Snodgrass and Fred Stangl have done it again! In a Kent County murder case June 25, they busted the jury panel, resulting in a change of venue to Throckmorton County. Today in Throckmorton County, they busted another jury panel. Some 40-plus jurors were excused or disqualified, leaving only 22 to choose from. I’ve never heard of TWO changes of venue in one case, but next they’re going to Baylor County for another try. Good job, gladiators!

07:45 AM CDT on Wednesday, August 22, 2007

Every country in Europe, and nearly every country in the Americas, has abolished the death penalty. It is carried out today in just a handful of countries: China, Iran, Congo – and the United States. We are out of step with our allies and the countries with which we share history and culture.

In fact, it is mostly the southern United States, and Texas in particular, that is out of step. The top 11 states in number of executions are all southern and border states. Well over one-third of those executions have been carried out by Texas. The next inmate is scheduled to die today; he will be the 400th person put to death in Texas since executions resumed in 1982. That total is over four times as many as the next closest state.

For most Texans, being out of step with non-Texans is not a concern. Indeed, Texans are proud of their distinctiveness, which may be one reason Texans cling so stubbornly to the death penalty.

What is different about Southerners that explains this difference over the death penalty? One distinctive feature is religion. Southern religion has traditionally been dominated by Evangelical Protestantism. (As a life-long United Methodist, I share that tradition.) Evangelical faith emphasizes individual accountability and each person’s direct relationship with God.

For many believers, respecting the dignity of both victim and murderer requires capital punishment.

However appealing in principle, this argument breaks down when we examine the Texas death penalty system. Even in Texas, fewer than 2 percent of all murderers are executed. Although some claim that the death penalty is reserved for only the worst murderers, the system does not separate the wheat from the chaff in this manner.

The factors that lead some murderers to receive the death penalty, while the majority do not, have almost nothing to do with the severity of the crime or the depravity of the defendant. Instead, two factors account most significantly for the selection of who is actually sentenced to death: incompetent defense counsel and race. There is also a large element of mistake and error in the system. These factors have nothing to do with whether a particular defendant deserves death.

•Incompetent attorneys: Nearly every capital defendant is poor, and their attorneys are state-appointed and -paid. Some of these attorneys have provided abysmal representation. The process of sorting out who is most deserving of death does not work when the most fundamental component of the adversary system, competent counsel, is missing.

•Race: Studies show that the race of the victim and the defendant has a direct bearing on sentencing. A Texan who murders a white person is five times as likely to be sentenced to death as one who murders an African-American. And white Texans almost never receive the death penalty for killing blacks. The race of the defendant and the race of the victim are not fair ways to decide who is most deserving of death.

•Mistakes: A shocking number of persons have been freed from death row nationwide because they were proven innocent. Texas officials insist that all persons on Texas death row are guilty. That is an assertion more of faith than of evidence; indeed, the odds are excellent that they could be wrong. (The courts that hear death penalty appeals in Texas – the Texas Court of Criminal Appeals and the United States Court of Appeals for the Fifth Circuit – are among the most willing to overlook serious errors in death penalty trials.)

In its unfairness and the prevalence of mistakes, the death penalty reveals government at its worst. We may disagree in the abstract over the nature of justice and whether the state is justified in taking life. But we should agree to look carefully at the real death penalty in Texas.

As people who value the individual, Texans ordinarily have a healthy distrust of government. When we look at this issue with that skeptical eye, we’ll see that the actual practice of the death penalty does not deliver justice.

Timothy W. Floyd is a law professor at Mercer University in Macon, Ga., and a former long-time law professor at Texas Tech. He can be reached at floyd_tw@mercer.edu.

Aug. 21, 2007

“230 years ago, our forefathers fought a war to throw off the yoke of a European monarch and gain the freedom of self-determination. Texans long ago decided that the death penalty is a just and appropriate punishment for the most horrible crimes committed against our citizens. While we respect our friends in Europe, welcome their investment in our state and appreciate their interest in our laws, Texans are doing just fine governing Texas.”

This week’s edition of The Texas Lawyer (8/20/07 - Vol. 23, No. 24) has a front-page article titled “West Texas Plans Public Defender Office for Capital Cases.”� An excellent article, it features quotes from veteran LCDLA members Philip Wischkaemper, Jack Stoffregen, Rick Wardroup, and Brian Murray. � There’s also an outstanding color photo of Phil on page 19, in the Lubbock County Courthouse gazebo, sporting a very appropriate stern, hand-on-hip attitude — it ain’t quite like getting your “picture on the cover of the Rolling Stone” but pretty good, anyway.

It looks like the Capital Public Defender’s Office will be off and running pretty soon. � We need to lend every support to these guys and gals.

I thought the LCDLA members might be interested in this case. Two of our attorneys out of Austin worked on the appeal based competency to stand trial for a deaf client. The appeals court reversed the conviction.

NUMBER 13-05-00668-CR

For anyone who hasn’t yet heard, Madison Sowder passed away Monday morning. Here is an interesting article about him: Madison Sowder Dies

Here are the details for Madison’s Services:

Thursday, August 16th, 2007, Pre-Burial at 9 :a.m. Idalou Cemetery Chapel, followed by grave site, followed by services at St. Elizabeth’s Catholic Church Down Town on Broadway, at 11:00 am. Reception to follow at St. Elizabeth’s Hall, same address. No flowers, instead, Donations to the ANDY SOWDER SCHOLARSHIP FUND, University of Notre Dame, Attn: Dr. David Hentges, 4601 88th St., Lubbock, Texas 79424.

First, longtime LCDLA super hero Bob Jones went north to Hale County’s 242nd District Court on a sexual assault case this week. He left with an 11-1 hung jury. Not your usual mistrial, however. Eleven jurors voted not guilty. The twelfth juror refused to vote at all, citing religious/moral scruples: the judge sent the guy to jail for contempt for a month. The complainant went to jail for contempt as well. There may be more to this story in the future. Great job, Bob.

Next, this superb report from Ted Hogan:

Chuck:

I wanted to pass along what I consider to be a win for the Lubbock Criminal Defense Lawyers Association at large. I tried a bail jumping case this week in 137th District Court. Pat Metze had previously been appointed to represent the client on a weak felony domestic assault case that went to trial in April in the 140th. Pat presented a terrific voir dire during the first day of the trial. Unfortunately, the client “lost his head” the next day and failed to return - hence the bail jumping charge. No offer from the
State going in this time around - just go to trial and take your licks.

Pat had the wisdom and foresight to see that he was a fact witness, so he declined the appointment to the new bail jumping case and withdrew on the domestic. Judge Darnell followed suit last week and recused himself, assigning the case to Judge Puryear for trial. So you can guess who shows up on the State’s witness list - Pat, Judge Darnell and Pat’s investigator, Rob Cowie. Pat was served with a subpoena on Monday; they looked for Rob, but never found him. I understand that Judge Darnell was left out of the mess. Of course, the three similarly-situated prosecutors who were involved back in April were conspicuously absent from the State’s witness list.

A number of LCDLA members - including Rusty and Sarah Gunter, Dennis Reeves, Robin Matthews and Mike Montoya came together to formulate a game plan to protect Pat. Subpoenas were served on two of the three prosecutors the morning of trial, two motions were filed in an attempt to quash the State’s subpoena of Pat, and I filed a Motion to Disqualify the three prosecutors and the DA’s office in its entirety. Judge Puryear’s solution was to deny everything and let all subpoenas stand - including the prosecutors! Of course, Pat was the State’s first witness, but Judge Puryear did a commendable job of protecting him while he was on the stand.

The client had a tough time at trial - 60 years from the jury after a long history including robbery, forgery and a string of domestic assaults came to light in punishment. Of course he had to have his say - you know how that usually goes.

In spite of the outcome for my client, I am genuinely thankful for the support shown by our members for Pat and myself in a tricky and potentially dangerous situation for each of us. So thanks to all who were there - it’s good to know that we have colleagues such as these at a time when the professionalism that we are supposed to aspire to is sorely lacking in segments of our bar. In spite of the outcome, I consider this to be a win for LCDLA - if not at trial, then in the spirit and support shown in the face of adversity. I hope that I can some day - in some way - return the favor to all involved.

Number One, from Shery Goodwin:

Hi, Chuck:

Denise Williams wanted me to have you convey the following information regarding Roger McRobert’s Retirement Dinner. She wants everyone to know that they are invited. The information is as follows: The Retirement Dinner for Roger will be held on Friday, September 7, 2007, at 7:00 p.m. at Cagles Steakhouse, 4 1/2 miles west of Loop 289 on 4th Street. The cost for eating dinner is $17.00 per person and dinner will consist of a 3 meat buffet. A cash bar will also be available. Dress is Casual. If you want to attend, please contact Denise Williams at 472-7560. She would like for you to give her your money by no later than August 10, 2007. Naturally, there are those of us from the FPD Office who plan to attend. We hope to see you all there. Sincerely, Shery Goodwin

Number Two, from Dennis Reeves:

Chuck, would you please send to our members? To all of my good friends of LCDLA. I need your help. I will be incarcerated by MDA on August 15th. As you know MDA does a lot of great things for kids and adults with MD. Even though some of you would like to see me behind bars, I would like to keep that time to a minimum. My bail has been set at $1,300.00. The will not let me PR out. Just call my office, 797-3720 or reply by email and tell them how much, $25, $50, $100, and how you want to pay.

Number Three, from Chip Parker: Former LCDLA member Steven Denny has returned to the light by leaving the Potter Co. District Attorney’s office and is now employed with the Federal Public Defender’s Office for Amarillo and Lubbock.

And, finally, this note from George Nelson regarding the late Bobby Rogers:

Chuck:

Bobby was the only person I ever met who connected his window washer container under the hood of his car to a tap he installed on his dash, filling the container with good bourbon whiskey. I was riding with him to Big Spring to take a deposition when he offered me a drink from the apparatus. He was a great guy, fun to be around, an excellent court reporter, and a friend to lawyers.

George Nelson

A couple of LCDLA’s elder statesmen responded to the news of court reporter extra ordinaire Bobby Rogers:
From Tommy Turner:

Sorry to hear that. He was indeed a good guy, and had a great sense of humor. Please pass this along: He worked for Judge Boone in Littlefield, but occasionally he’d fill in for the regular 99th reporter. I was prosecuting an attempted murder case, and realized that Judge Davison had failed to swear the jury. With my first witness on the stand, I said, “Your honor, this might be a good time to administer the oath to the jury.” He agreed, found his cheat sheet under the pile on his bench, and asked the jury to repeat the following, “I, state your name, do solemnly swear or affirm that I will true answers make to all questions propounded to me by the Grand Jury or under its direction, so help me God.” At a break I asked Bobby what he’d written. “Jury sworn” was his answer.

From Professor Dan Benson:

Thanks for letting us know about Bobby Rogers. I remember him well. He was a good, fast, accurate reporter. He used that purple Scrip brand of ink in his pens — I think they were Esterbrook pens, the same kind I used to use in high school — and I asked him about the purple color one time, since most of us would use blue or black ink. Bobby said that it was the fastest flowing ink on the market, and he used it for that reason, it flowed fast. He was a good court reporter.

On a lighter note, another LCDLA elder statesman (and Professor), Chuck Bubany, was featured in the sports pages of the Lubbock Avalanche-Journal on Tuesday, August 7: he made a hole-in-one (the sport is golf) at The Links of Sierra Blanca in Ruidoso last weekend. It was a nine-iron from 118 yards, and among the witnesses was Chuck’s lovely wife Jenny. Jenny, an Asst. Lubbock County CDA, is reported to have objected and asked for an official ruling from the pro shop about whether Chuck used a ball with too many dimples. The objection was denied. Good job, Chuck!