The Collin County Observer™

Who You Gonna Call When The Courts Break The Law?

The courts of Texas are allowed a certain amount of discretion in making their judgments and in formulating their own local rules of the court. However, the courts have no discretion in choosing to obey or to not obey the law.

The Collin County State District Courthouse selectively provides the benefits of Texas Labor Code 207.007 to some, but not all of those who file lawsuits under Texas Labor Code 212. In doing so the District Courthouse violates the civil rights of some of the citizens of Collin County. The violation of constitutionally guaranteed rights of even a small group of people is of concern to everyone. Once this kind of judicial abuse is tolerated, no one is immune from its effect and there is no limit to its magnitude. [Add photo 1]

Texas Labor Code 207.007(a) states in pertinent part,

“An individual claiming (unemployment insurance) benefits under this subtitle may not be charged a fee in a proceeding under this subtitle by a court or an officer of a court. A person who violates this section commits an offense. An offense under this section is punishable by:

1. a fine of not less than $50 and not more than $500;
2. imprisonment for not more than six months; or
3. both a fine and imprisonment.”

In passing this law [hyperlink to entire text of law] the State of Texas took the U.S. Constitution’s First Amendment right to seek the redress of grievances in the courts one step further by giving the unemployed the right to obtain access to the courts free of charge. When this law was passed in 1985, the Texas Legislature effectively declared the unemployed to be “poor” for the purposes of filing lawsuits to overturn a ruling by the Texas Workforce Commission denying an individual unemployment benefits.

The law not only makes it a criminal act to charge a fee for filing a petition, it is also a crime to charge a fee for transcriptions of a court hearing or a trial; or a fee for a court record prepared for appellate review. No person claiming benefits "shall be charged fees of any kind" by an officer of the court. [hyperlink appellate Court ruling]

Who pays and who doesn’t

In reviewing the public court records of twelve of the most recent cases involving the Texas Workforce Commission and the application of Texas Labor Code 207.007, a pattern of abuse emerges. Different groups of litigants get different results.

Attorneys, in their own cases against the Texas Workforce Commission to obtain benefits, either do not pay the fee or receive a refund. In case number 416-01007-2008, lawyer Grace Soo Way Liang, paid no fee. In case number 429-01477-2010, lawyer Scott Horner paid the fee and later requested and was granted a refund.

One attorney always obtains a wavier of fees. Attorney Raul Loya includes a copy of the law with his original petition and his clients pay no fees. Those cases are 416-03541-2009 and 199-01593-2009.

Texas Labor Code 207.007 has no “catch 22” requirement that a person must request the waiver before obtaining a waiver of fees. The elements of the crime are simple, first an eligible individual asks to file their case and second a court official charges a fee. Civil litigation cover sheets are required to file lawsuits and the clerks need only to look at the 107 boxes provided to see if any are marked “Employment.”

In five other cases, attorneys had their clients’ pay the fee. It is hard to imagine that lawyers taking labor and employment cases would not know the Texas Labor Code. This is especially true of an attorney who is board certified in labor and employment law. Other than ignorance, one possible explanation is these lawyers fear judicial retaliation for failing to “go along to get along.” These five cases are 401-03809-2010, 199-01657-07, 366-01383-2009, 199-01841-2011, and 401-03340-06. One attorney, who asked not to be named, stated because Texas Labor Code 212 cases must be filed within strict time limits, “it was easier to pay the fee” rather than risk having the case dismissed because of missing a deadline caused by the “hassle” of getting a waiver. The waiver should instantaneous and without any hassle at all.

Think of it as a form of judicial euthanasia

Pro se litigants, those representing themselves, are in the final group. These individuals are asked to pay a an unlawful fee that they cannot afford and then are forced to humiliate themselves by filing affidavits of indigence in order to present their case in court.

Ms. Camilla Thornton (429-01908-2010) jumped through all the hoops created by the administrative review process of the Texas Workforce Commission in order to preserve her right to seek a judicial review of the TWC’s denial of benefits. Ms. Thornton stated when she attempted to file her complaint she was unable to afford the fee and was turned away. The clerk offered no assistance or did she suggest Ms. Thornton file an affidavit of indigence. The clerks are forbidden from offering any legal advice, which begs the question, are they also forbidden from obeying the law?

In a chance conversation with a friend, Ms. Thornton was told she could file an affidavit of inability to pay. Her affidavit was approved and she was able to file her complaint in the 429th State District Court.

Other individuals were not so fortunate. In the review case number 296-00367-08, Mr. Jay Cooper was forced to file an affidavit of indigence that was challenged by the court reporter of the 296th State District Court. Ms. Jan Dugger filed a Contest of Affidavit of Indigence and Inability to Pay Costs. A hearing was held before Judge Chris Older in which Mr. Cooper was afforded yet another opportunity to humiliate himself in a public hearing by truly proving he really was too poor to pay the criminally requested fees. Mr. Cooper prevailed in the hearing.

Others are even less fortunate. Ms. Sandra Parker (401-01641-06) filed the unnecessary affidavit of indigence only to have it denied. Ms. Parker paid the filing fees.

And most unfortunate group is individuals who could not pay the fee and who just walked away. With his or her case never filed, there are no records or proof of the crime committed against them. These unknowns may number in the hundreds and the fact they were not allowed to file their cases without paying filing fees suggests a possible motive for the for the violation of Texas Labor Code 207.007(a).

The courts simply to not want to hear these cases and violating the law is an easy way to keep them out of the courthouse because they always lose. Think of it as a form of judicial euthanasia for lawsuits not likely to survive anyway, but do we really want the courts to have this kind of power?

Of the twelve cases reviewed, only one individual seeking benefits prevailed and this was a case that never went to trial. Attorney Scott Horner’s case was withdrawn by the Texas General’s Office and was remanded back to the Texas Workforce Commission were it was most likely decided in Mr. Horner’s favor.

Almost all cases brought by individuals (with or without legal representation) seeking to overturn a final decision made by the TWC are lost. The reasons vary. First of all the courts are required to provide the ruling of the TWC with a “presumption of validity.” Another reason is some judges possibly look at cases from the point of view of estimating who has the most resources to prevail on appeal.

Filing a lawsuit is a zero sum game and no matter how fair a judge may be, there is always a loser, usually a sore loser at that. Given the fact a judge is going to be criticized fifty percent of the time, the only meaningful benchmark to judicial performance is how many times is a judge overturned on appeal.

The Office of the Texas Attorney General, representing the Texas Workforce Commission, holds a blank check provided by the taxpayers and this gives the lazy judge a clue as to who has the most resources to prevail on appeal.

Ignorance of the law

The District Court may claim ignorance of the law, but the fact some individuals obtained waivers and others did not demonstrates a pattern of abuse. There is little doubt entry-level clerks charging and collecting filing fees don’t know the law. If they did, why would they risk a conviction and six months in jail or even risk the minimum $50 dollar fine? These clerks have little more than on the job training and know only what their superiors want them to know. In fact, the new clerks have large signs posted on their bulletproof windows, “In Training.”

The administrative leadership of the courthouse is legally obligated to properly train, supervise and control its employees to prevent the violation of the constitutional rights of those seeking access to the court.

In 1985 the Texas Legislature passed a law to give a small break to a small group of litigants. The Texas Legislature has a reasonable expectation that the courts will enforce the laws they pass.

So whom do you call when the courts break the law and criminally deny access to the courts based on judicial expedience?

John

And Now For the Rest of the Story. . .

Posted on October 27, 2009 by Hunter Biederman
Frisco DWI Lawyer & Attorney Blog

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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Bill responds:

This weekend I re-posted a story broadcast by WFAA on an alleged "fix" of a DWI case out of Plano. WFAA's Brett Shipp told a story of a senior prosecutor at the Collin County DA's office who took a supposed ironclad case away from a junior assistant district attorney (ADA), and presented the case to a visiting judge without offering any evidence or witnesses, thereby assuring the defendant would be found not guilty.

The junior ADA was fired after the story came to light.

Since I posted this article I have received several emails from respected defense attorneys who warned me that the whole story had yet to come out. Every one of these defense attorneys spoke up for the Felony Division Chief Curtis Howard. Remember these are defense attorneys - they make their living defending accused in cases prosecuted by Mr. Howard and Ms. Walker.

This is an example of the comments I received:

"I think if you knew Curtis [Howard] and Kerrie [Walker], you’d know them trying to dump or cover up a DWI case is ridiculous. If anything, they are hardcore on the other end of the spectrum. Kerrie is a former Frisco PD officer who went to law school to become a prosecutor. Apparently she has her eye on the FBI. Does this sound like someone who is going to lay down on a criminal case?"

The "whistle blower" was a young and very green recent law school graduate. He was fired for more than just "whistle blowing". What caused his termination, I'm told, is that he wrote a letter to his law school professor, who then incorporated most of the original letter into an email the professor then sent to a wide distribution. By September, most defense attorneys in the county had seen it.

In his letter, the young ADA talks about disparate justice that is afforded to wealthy clients but not to indigents. He first levels charges that the Collin County DA's office takes advantage of defendants without lawyers. He then tells the story of the DWI to show how a good, paid lawyer could use the system in ways not available to the less wealthy suspect.

The writer than critiques the county's indigent defense system, accusing the local defense bar of often doing as little as possible to earn the low fees paid by the county.

The Collin County Observer will print the entire letter in the next few days. I hope it will spark some interesting discussion on the county's (and for that matter the nation's) ability to ensure equal justice for rich and poor.

In my comments on the WFAA report, I aimed most of my criticism at DA John Roach. I stand by my comments. The DA has not acted in a way that will reassure the citizens that the wheels of justice in Collin County are greased with fairness for all.

If, as Mr. Biederman implies, the evidence was not compelling enough for a conviction, the DA's own policies may have left Kerrie Walker with no choice but to either force a bench acquittal or got to trial with a weak case that would likely result in an innocent verdict. The current DA does not allow prosecutors to ask for a dismissal of DWI cases. He insists that all cases filed be prosecuted.

Added to the issue of the lack of ability to dismiss a weak case is the current practice by the DA's office of rating prosecutors by their number of jury trial convictions. Every week, each county prosecutor must turn in a report listing the number of jury trials heard and the number of convictions gained. The resulting numbers are a primary tool used to rate the performance of staff.

Bench trials, those decided by a judge, are not included in the reports.

Did Walker act in the best interests of the State and in the best interest of justice? That is the real question.... and one I don't think can resolved without a detailed review of both the evidence and of the District Attorney's policies.

John Roach should immediately request an independent review of this case by a trusted out of county jurist. If the State's attorneys and the defense lawyer acted improperly, then appropriate and severe penalties should be sought.

But, however, if their actions were in the pursuit of justice, then they must be exonerated as fully and thoroughly as was done for the defendant.

Bill

FOR IMMEDIATE RELEASE: Sept. 3, 2009

Statement issued regarding Fernandez capital murder case

(McKINNEY, Texas) – Greg Davis, First Assistant District Attorney for Collin County, issued this statement today regarding the pending criminal case against Ada Betty Cuadros Fernandez:

“The Collin County District Attorney’s Office is currently reviewing the opinion by the 5th Court of Appeals in the Ada Fernandez case to determine our next course of action.

“We will either try to reinstate Ms. Fernandez’s conviction through an appeal to the Texas Court of Criminal Appeals in Austin, or forego an appeal and re-try her for capital murder. We will have no further comment until we make a final decision in this matter.”

On Friday, the Texas 5th Court of Appeals overturned the 2006 capital murder conviction of Ada Betty Cuadros-Fernandez.

Cuadros-Fernandez, a Peruvian national, was given a life sentence, without parole by Former Judge Charles Sandoval in September of 2006 after being convicted by a jury in the death of 14 month old Kyle Lazarchik of McKinney. Cuadros Fernandez who was 29 at the time of the child's death was the nanny to Renee and Mike Lazarchik's three children.

Ada Cuadros Fernandez arrived in Dallas two years earlier after she obtained a visa in a government lottery in January 2004. Before she started working as a nanny she was a waitress in a local restaurant. She had given notice to the boy's parents that she was planning to return to Peru. She had a one-way airline ticket for Oct. 29, according to the arrest warrant affidavit. She had moved out, but the family asked her to return for two more nights while the couple interviewed candidates for the nanny job, according to the affidavit. The police charged her with murdering the boy by beating his head against a kitchen cabinet door.

Throughout the trial and appeals, Ms. Cuadros-Fernandez has maintained her innocence.

In the appeals court opinion, written by Judge Kerry Fitzgerald, the court found that Judge Sandoval wrongly excluded expert testimony by David Gardner that contradicted the Collin county DA's contention that the young boy's head was slammed into a cabinet door. Judge Fitzgerald wrote:

"We conclude the trial court abused its discretion by excluding Gardner's testimony of his opinion of the cause of the damage to the cabinet door and whether the damage was caused by its being used to inflict blunt force trauma."

In testimonty outside the jury's hearing,

"Gardner testified he was the production manager at Texas Woodsmith, the company that built and installed the Lazarchiks' cabinets" ... "As production manager, Gardner was responsible for determining the cause of failures of the product, including cracks and separations in cabinet doors. One of Gardner's duties was to determine the cause of damage to cabinets that are returned. This investigation was often necessary to determine whether the cost of replacement cabinetry must be borne by the homeowner, the homebuilder, or the manufacturer. Gardner also tested new cabinet doors, observing how different forces on different woods and on different places cause damage.Gardner examined the photographs in evidence of the Lazarchiks' cabinet door as well as the door itself. He testified the door was not damaged in the manner that a door would be damaged from something hitting against the back side of it with great force. Gardner stated for that kind of force, “I would expect to see damage all the way down[-]not just at the top[-]and damage on the opposite side.” Gardner stated the damage shown by the door had two likely causes. A “very common” cause of that kind of damage was a hairline crack created by the insertion of the metal fasteners in the door and the crack growing over time. The damage could also have been caused by someone leaning on the door while open, using the door as leverage to stand up, or standing on the door, and a hairline crack would make the door more susceptible to this damage." ...

The State asserts on appeal that the trial court's exclusion of Gardner's opinion testimony was not an abuse of discretion because “the manner in which the door was broken does not conclusively resolve the ultimate issue of fact because the issue was not what caused the crack in the door, only whether Appellant had smashed Kyle's head into it. The State's position on appeal is disingenuous in light of its stated position at trial that the impact with the child's head caused the door to break and that the fact the door was broken proved it was the murder weapon. In its opening statement, the State asserted that the “Defendant took that baby and slammed his head up against a cabinet door in the kitchen and slammed his head against that cabinet door so hard, in fact, that it cracked the cabinet door.” In the jury argument as well, the prosecutor stated, “Defendant, who was supposed to protect and who was supposed to care for Kyle, took him and beat his head repeatedly over and over and over in the cabinet door, and she did that with enough force that that door broke”; “[a]nd we not only know what Kyle's injuries were, but we know exactly how they were caused because we have this broken door, State's Exhibit No. 23, that was not broken before this happened to Kyle.”

"... State's position that the broken cabinet door and its subsequent repair were evidence of her guilt. Furthermore, Gardner was the primary witness and the only expert presented by the defense who had knowledge regarding the specific type of cabinet at issue. Thus, Gardner's expert testimony formed such a vital part of appellant's case that the trial court's exclusion of that evidence effectively prevented appellant from presenting a defense. Finally, we cannot overlook the fact that during its rebuttal closing argument, the State specifically drew attention to appellant's failure to call any expert witnesses in her defense. By drawing attention to the defense's failure to call any expert witnesses, the State increased the harmful effect of the trial court's erroneous ruling. We conclude the trial court's error in excluding the evidence amounts to constitutional error."

The court also found that Cuadros-Fernandez was not given an opportunity to cross examine the forensic expert who wrote a DNA report on the evidence.

"We conclude that the trial court erred by admitting the DNA report in violation of appellant's constitutional rights under the Confrontation Clause. We also conclude that the trial court erred by excluding relevant and admissible defense expert testimony that would have tended to rebut the State's theory of the case. Because we cannot say beyond a reasonable doubt that these errors were harmless, we are constrained to reverse the trial court's judgment and remand the cause for further proceedings."

According to Collin County court records, the trial cost the county over $73 thousand in just defense attorney fees. It will be up to District Attorney John Roach to decide if he will seek a new trial against Ms. Cuadros-Fernandez.

Click here to read the appeals court opinion.

Food for thought -

This is the second reversal by the 5th Court of Appeals over the last three months in a Collin County case. Both defendants were immigrants. Both were condemned by an all Anglo Collin County jury.

In both cases, the appeals court ruled that the judge exceeded his/her authority in granting the wishes of the prosecution.

The 5th Court of Appeals is not a liberal court. It rarely overturns convictions, yet it felt compelled to do so in both these cases.

While I am loath to draw sweeping generalizations from only two trials, I think it fair to ask the question, "Can an immigrant expect a fair trial in upscale Collin County?"

Bill

A couple of months ago, I wrote of a young lady from Mexico I called Alandra who had her baby taken away by a Collin County jury and FPS.

Read the story of "Alandra":

• Justice Collin County style: Be careful what you say in the recovery room!
• Alandra's baby

Alandra never had a chance to take care of her son, the state took her baby from her while she was still in the hospital recovering from the cesarean section.

For over 2 years, Alandra had only seen her son for 2 hours a week. Her visits take place in a supervised counseling center. Her son is being raised by white, Anglo foster parents who don't speak Spanish. Alandra doesn't speak English, only Spanish and her native Nahuatl.

The State, concerned that she was not 'bonding' with her son, filed suit to terminate her parental rights. The foster parents want to adopt her son.

Alandra did nothing wrong. She never threatened her boy, she never harmed him. She is only guilty of being young, poor, and lost in a foreign culture - and of living in Collin County while poor.

After the jury terminated her parental rights, Alandra's attorney appealed the decision to the 5th Court of Appeals in Dallas. The appeals court ruled that the mother had been wrongfully denied her son and reversed the decision of the jury. However, the court's decision allowed time for the State to appeal before returning the boy to his mother.

Since the jury verdict in May, FPS has not permitted Alandra to see her son. He is lost to her for now, and as he grows up she becomes even more of a stranger to him.

On July 1, the Collin County District Attorney filed a brief with the Supreme Court, but last Thursday, the court rejected the DA's filing because it was not in proper form. The DAs office made a rookie mistake; in the filing, it referred to the boy by his name. Court rules require that juveniles can only be identified by their initials.

However, the court then gave the State 30 more days to refile the paperwork. Thirty more days added to the time that Alandra will not see her son. Thirty more days where the boy will grow up without knowing his mother.

After the DA refiles, Alandra's attorneys have 30 days to respond. Then after a while, the court will rule. How long it will take is anyone's guess, but these cases can drag on for a year or more.

Meanwhile Alandra waits. She has managed to keep a job, an apartment and is in a stable relationship. She visits with her lawyers, but not her son. She loves her son, so she waits.

Also waiting for the court's decision are the foster parents. They have indicated that if the court rules for Alandra, they may file a seperate suit to terminate her rights, so they can adopt him. That could take another year or more to wind its way through the courts.

And during all that time, Alandra and her son will remain strangers - stuck in two different cultures, two different religions, and with two different languages. Strangers.

Bill

This from the Dallas Morning News' Ed Housewright writing in the McKinney Blog:

State preservationists love old courthouse

I had a story today on the Texas Historical Commission trying to save the recently abandoned Collin County Courthouse.

Many consider the 1979 building generic and boring.

The historical commissioner head, however, says the six-story cube is a "good example of a modern form of architecture known as Brutalism which is gaining notoriety and appreciation among architects and historic preservationists."

"Brutalism", eh? I think that term accurately describes a whole lot of what I observed in the 6th floor commissioners courtroom there over the last several years.

Bill

Judge Greg Brewer adds another laurel to the crown of iniquity that seems to be the Collin County District Courts. He leaves a man in limbo in the county jail for almost 3 months and denies him counsel because the man, "shows a lack of respect for the courts."

Let's see, One former Collin County District Judge sides with her secret boyfriend DA in condemning a man to death, another authorizes a search warrant on a defense attorney's files, another schedules an appeals hearing for 2 days after an execution date, one tries out experimental drugs on probationers... the list goes on and on.

While I appreciate Judge Chris Oldner's efforts to free Mr. Maupin, the problems with the Collin County judiciary go far beyond one man's unjust detention.

After writing about the Collin County District Courts for almost 2 years now, I'm saddened to have to say that the judges can add my name to those who have "a lack of respect for the courts" in this county.

Bill

==========================

Judge's orders put Collin County man in Catch-22

Friday, May 15, 2009
By KATIE FAIRBANK / The Dallas Morning News

It was no accident that Douglas Maupin spent 83 days in jail after being arrested on a 6-year-old warrant for failure to appear for jury duty.

State District Judge Greg Brewer acknowledged Friday that he knew Maupin had been sitting for months in the Collin County Detention Facility. He said he decided not to set a court hearing date for Maupin – or review his requests for a court-appointed attorney – until after some traffic citations were settled.

"The thing is, Mr. Maupin shows a lack of respect for the courts. He doesn't show up for jury duty or pay his traffic tickets," Brewer, of the 366th District Court, said in a telephone interview Friday.

Maupin, 34, was taken into custody on the 2003 warrant after he was stopped for going 65 mph in a 45-mph zone in Parker on Feb. 15. A municipal judge set a $1,500 bond, which required the full amount in cash. Maupin, a masonry contractor who recently lived in Allen, said he didn't have the money, and his friends and family couldn't afford to help him.

He wrote a letter, postmarked April 30, to the DMN Problem Solver column at The Dallas Morning News. At first, when The News started researching Maupin's situation, his case appeared to have simply fallen through the cracks.

The 2003 warrant was signed by a judge who has since retired. Maupin's case was assigned to the 366th District Court, but state District Judge Chris Oldner, of the 416th District Court, handles all administrative contempt cases. A clerk in Brewer's office verified that the case belonged to Oldner.

But Oldner said last week he had no idea that Maupin was in the jail. Upon hearing about Maupin's situation from The News on May 8, the judge released Maupin from jail. Oldner, a Republican, accepted responsibility and promised an investigation. He called the situation "unacceptable," and said he didn't know why "the process failed to notify us."

A review of inmate paperwork this week, however, shows that Brewer had been handling Maupin's case, at least since March. That's when Maupin first asked for a court-appointed attorney. At that point, he had already been in jail for more than a month.

Eleven days after the request was made, Brewer's office denied Maupin's request. The paperwork, which typically is filled out by jail and courthouse personnel, informed Maupin: "Spoke with clerk of the 366th. She said Judge Brewer does not want to appoint counsel until he speaks with you."

A month later, Maupin's second request to start the court-appointed attorney process was denied. That response stated: "The judge will speak with you about counsel when you go to court."

Collin County Sheriff's Department spokesman John Norton said that the jail notified the court four times that Maupin was still in jail.

Brewer, a Republican who has been on the bench since 2007, said Maupin's case was the only one that he took from his predecessor. He said Maupin needed to clear his traffic tickets before the judge would set a hearing on the failure to appear for jury duty.

Maupin arrived at the jail with seven outstanding toll tickets, as well as two traffic tickets in Arlington that he had failed to pay. "I know it was my responsibility, but I didn't have the money," Maupin said.

The judge's decision to wait created what amounted to a Catch-22: Collin County jail policy does not allow another city to come get an inmate until all legal matters are completed in that county.

The Arlington police said they were not aware that Maupin was being held until they were notified by The News on May 8. Within an hour, an Arlington municipal judge signed off on Maupin's release for time served.

"They have to call us and tell us they're ready for us to come get them," said Lt. Blake Miller of the Arlington Police Department. "If they would have said he was ready for Arlington pickup, we would have gone and got him, and he would have sat in jail here for a day or two and then been let out."

Brewer said it was not his court's responsibility to figure out how Maupin should settle his Arlington tickets.

"Obviously, you're trying to lay blame somewhere," Brewer said. "I can't contact Arlington. I'm not going to contact Arlington. I don't take care of traffic tickets. We didn't ignore him. He had to take care of his stuff in Arlington."

When told that Maupin's case had also been listed as a felony instead of a civil case within the court system, Brewer said he was unaware it was mislabeled. "That was a mistake on someone's part, whoever entered it. Probably it was listed because it was in the 366th. It shouldn't have been listed like that," he said.

Brewer said that the Board of District Judges will discuss what happened to Maupin and see if "we need to change the way we handle" contempt of court cases.

read more....

DMN Problem Solver: Collin County man held for 83 days for missing jury duty

Friday, May 8, 2009
The Dallas Morning News

Douglas Maupin was held at the Collin County Detention Facility for 83 days on a warrant for failure to appear for jury duty. During those days of legal purgatory, he said he was unable to hire a lawyer, post bail or even get a clear explanation of what type of charge he was being held on.

His case was finally handled Friday afternoon – a few hours after a judge heard from The Dallas Morning News about his situation.

"He should not have spent that much time. This is unacceptable," said 416th District Judge Chris Oldner, who returned to the courthouse late Friday specifically to handle the case of Maupin, who was expected to be released soon. "I don't know why the process failed to notify us."

Maupin, 34, who recently lived in Allen, was taken in on the 6-year-old jury duty warrant after he was stopped for speeding 65 mph in a 45-mph zone in Parker on Feb. 15.

He was then taken to the Collin County Detention Facility, where he said he spent the next 36 hours sitting on a plastic chair waiting for a bond hearing. A videoconference with a municipal judge set a $1,500 bond, which required the full amount in cash, according to court documents.

Maupin, a masonry contractor, says he didn't have the money, and his friends and family couldn't afford to help him. "My mother knows I'm in here, but she's on partial disability and a small income," he said during a jailhouse interview early Friday afternoon. He also said it was hard to reach his friends, because all of them have cellphones, and they could not receive collect calls.

When asked why Maupin was being held so long, John Norton, a Collin County Sheriff's Department spokesman, said, "We hold him until he posts bond or a judge says, 'Release him.' "

"I'm disappointed this has happened. I am going to investigate."
Collin County Administrative District Judge Chris Oldner

"After a while, I realized that this is about more than just me. If it can happen to me, it might happen to anyone."
Recently released inmate Douglas Maupin

Wearing an orange jumpsuit and talking by phone from behind a glass partition, Maupin said that the notice of the original summons and contempt hearing back in 2003 was sent to his parents' home. That's why he didn't show up, he said.

"I understand I am partially responsible, but I just want my day in court," he said during the interview. "I do know I have the right to due process and a speedy trial. I've had neither. It's not right."

He said at one point he had asked for a form to try to get a public defender, but he was told by a clerk that he couldn't have one because his was a civil case – even though the court's Web site identifies the case as a felony.

He also said that released inmates wrote him and told him they had tried to tell the court of his situation but were ignored.

So he wrote a letter, postmarked April 30, to the DMN Problem Solver column at The News. The letter was received on Thursday.

"I have been given conflicting pieces of information about my case," he wrote. "Also, I have been denied representation. There is still no court date set and I'm becoming quite concerned. My situation has become critical."

Maupin wrote that, because of his time in jail, he lost his rental home, his car and his dog. "I find myself now homeless, with no job, and a vehicle repossession," he wrote. "Along with the loss of all my personal possessions, and my beloved dog, Daisy."

In the interview, he said he wasn't sure what happened to his dog, or where his possessions are.

Aside from not appearing for jury duty, Maupin also had seven charges for failing to pay tolls with fines totaling $2,236. Five of those cases were canceled by the court on March 5. The remaining two were finally dropped for time served on April 17.

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Bill comments:

There is much in this story that begs for further explanation.

• Why wasn't the guy allowed to apply for indigent defense?
• There needs to be a discussion over the whole 'warrants for civil cases' concept. Only criminals belong in jail, and indigent defense attorneys should be available for all inmates who can not afford an attorney.
• What triggers exist to make sure that no one rots in a jail cell because of lost papers, or are simply forgotten?
• What role did video arraignments play in depersonalizing court appearances? Do these type hearings make it more likely that a prisoner will be forgotten and left to rot?
• And what's with the Pontius Pilate routine by Sheriff's spokesman John Norton, who told the DMN, "We hold him until he posts bond or a judge says, 'Release him.'" Shouldn't jailers be paying attention too?

Bill

INDIGENT: A new report from the NYU School of Law calls for stricter indigent defense determination guidelines, which Collin County judges say they have already met.

By Danny Gallagher, McKinney Courier-Gazette
Monday, September 29, 2008

The line for indigence eligibility isn’t as simple as just drawing one.

“I agree that there is a huge problem with indigent defense in that it is a very subjective process,” Collin County Justice of the Peace for Precinct 1 Judge Paul Raleeh said. “If the guidelines that are used are from the federal poverty rate guidelines, so somebody there who is in fact indigent and should get legal counsel, but it doesn’t address those who don’t fit poverty guidelines but who still have car and house payments and raise four kids but has no money left over to take their husband to a movie let alone hire an attorney.”

A new report compiled and published earlier this month by the Brennan Center for Justice at the New York University School of Law mentions Collin County as an example of a court system that “explicitly require screeners to view the non-liquid assets of potential clients as available to pay for counsel” citing a financial consideration in the county’s fair defense plan for felony cases that defendants with assets of $2,500 or higher are not consider indigent from a story published by the Dallas Morning News back in 2007.

Collin County judges said that their indigence screening process goes much deeper than just a single financial observation.

“I know in Collin County that we have never had denied anybody counsel that we know of that should have had counsel,” 366th District Court Judge Greg Brewer said.

Collin County defendants requesting indigent status must apply for it through an indigent defense coordinator. Defendants fill out a form listing several criteria including their personal background, occupational information and financial history, according to the county’s fair defense plan.

The coordinator determines if they are indigent based on guidelines set in place by Texas Senate Bill 7 approved in 2001, Brewer said.

“The indigent defense coordinator gets the information and makes sure they fall within the guidelines to get an attorney,” Brewer said. “If they are deemed eligible, they get an attorney and if they aren’t, then they are denied. The policy says if they sit in the jail for 14 days, then we can review it again to make a determination if they should get an attorney.”

A judicial review consisting of Raleeh, JP Precinct 3-2 Judge John Payton and County Court at Law No. 2 Judge Jerry Lewis hear the application again and serves as the “final say” on a defendant’s indigent status, Raleeh said.

“If somebody is just barely on the line of whether they are indigent or not but it’s a crime so heinous that we feel they need to have legal representation, let’s err on the side of the defendant and make sure they get their legal representation,” Raleeh said. “That rarely happens.”

The coordinator and the judicial review can not factor in whether the defendant posted their bail, the assets’ of the defendant’s friends or relatives or the employment status of the defendant as required by state law. They can also consider factors such as food stamp allocation, ongoing incarceration and eligibility of state or federal health benefits such as Medicaid, public housing or indigent health care, according to the county’s fair defense plan.

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Bill notes:

I don't think the situation is as easy or as fair as Mr. Gallagher presents, but I wanted to present the county's side of the story.

From what I've seen, too many defendants are in court without an attorney, and too many are forced to plea bargain either without an lawyer or because they can't afford one.

The criteria for claiming indigency are entirely too severe. Owning a 3 year old Kia can keep you from getting a court appointed lawyer. Prisoners are handed long intimidating forms, and I've heard stories that they've been told that if one thing is untrue, they will be prosecuted for perjury.

See Collin County has cut spending on legal defense for the poor - by Ed Housewright of the DMN, Jan. 27, 2008

Also see Collin cuts court costs, but at what price? by Ed Housewright of the DMN, Aug.4, 2007

Bill

The Dallas Morning News reports that, "A visiting judge made no decision Tuesday on a request to disqualify state District Judge Mark Rusch from presiding over a murder-for-hire case. After a brief hearing attended by defense attorneys, the Collin County district attorney's office and the Texas attorney general's office, Judge Gary Stephens said he would make his ruling on Aug. 15 or later."

Defense attorneys are upset because Judge Rusch issued a search warrant in February to let police enter the office of Keith Gore, an attorney for defendant Mark Lyle Bell. Prosecutors, who requested the search warrant, said they believed the defense was hiding evidence.

Steven Miears, Mr. Bell’s lead counsel, filed a motion asking Rusch to recuse himself from the case and ask for a hearing to discuss the evidence collected from the search warrant. The motion claims Rusch made himself a witness when he signed the warrant for violating his client’s right to "due process in the breach of attorney/client privilege."

According to the Dallas Morning News article, "Judge Rusch did not attend Tuesday's hearing and has declined to comment. The Texas attorney general's office, which represents the judge, says he should not be taken off the case."

Visiting judge Judge Gary Stephens quashed defense subpoenas to Judges Rusch and Dry. Last month, Texas Attorney General Greg Abbott sent a letter to the court stating that, in his opinion, the subpoenas against the 2 judges should not be issued. Judge Stephens is scheduled to rule on the defense motion to recuse Judge Rusch after Aug. 15.

Also at the hearing, The Texas Criminal Defense Association filed an amicus curiae brief which in strong terms, condemned the "raid on lawyer's office" as being "offensive to the Texas Constitutional and the Constitution of the United States" and called it "reprehensible".


The TCDA's brief noted that a hearing was already scheduled to require attorney Kieth Gore to turn over evidence. Five days before the hearing, according to the TCDA brief, "the state raised the stakes in the most dramatic way possible - a search warrant on an attorney to obtain material belonging to his client."

The brief goes on to state that, Such invasions strike at the very heart of the attorney-client relationship". TCDA argued that, "When persons can not trust their attorneys, the prosecution has effectively isolated the accused, leaving only the government to present its version of what happened. No exploration of the truth can succeed under these conditions."

Bill

Notes and Links:

Amicus Curiae brief of the TCDA, August 5, 2008

Defense attorney search warrant motion hearing moved - McKinney Courier-Gazette, Aug. 6, 2008

One of these days these boots are going to walk all over your attorney-client privilege - Grits for Breakfast, Aug. 3, 2008

Where are the boots?: Details from the Gore warrant, affidavit and return - CCO, July 31, 2008

The Warrant, affidavit and return and more

The Defense motion in Response to the State's Motion to Disqualify Defense Counsel

MCG - AG opposes subpoenas of Rusch and Dry - CCO, July 23, 2008

Not Judge Rusch's first controversial warrant - CCO, July 21, 2008

NBC5 - Detectives Seize Documents From Murder-For-Hire Suspect's Attorney - CCO, July 18, 2008

The case of The state of Texas vs. Mark Bell has been getting a lot of attention. However, the details of the grizzly murder for hire crime have been overshadowed by a search warrant issued to a defense attorney's files.

In the affidavit for the search warrant, Frisco police Detective Clay Anderson told of talking with "a female individual whose telephone voicemail message identified her as 'Shawna'." in the parking lot after the grand jury hearings on the Bell case.

Detective Anderson wrote that "Shawna" said that Mark Bell's wife, Linda was agitated and enraged, and told her that the "dumb bastards" think they have the shoes Mark Bell was wearing at the time of the murder, but that she(Linda Bell)had sent them to "Gore". A week later, Detective Anderson spoke with Linda Gore,who admitted sending attorney Keith Gore the boots, some letters Mark Bell had written her from jail, an orange box, and a timecard. Linda Bell told Anderson that as far as she knew, the items were still at Keith Gore's office.

Based on this story, Judge Mark Rusch issued a search warrant, stipulating that a court "Master", Eric Higgins would be present. The warrant also required all evidence seized to be turned over to Judge Rusch for his "in camera" inspection.

The warrant specifically required the police to seize:
"a. Letters, cards and envelopes written at and/or sent from the Collin County Jail by inmate Mark Bell, to his spouse, Linda Bell..."
"b. A shoe box and
c. Men's boots."

The return inventory of items seized, however listed:
1. "Six envelopes containing handwritten letters"
2. "Sealed orange and white box"
3. "Multiple paged stapled document"

No boots were found, no timecard was ever mentioned and even more troubling was the seizure of the "Multiple paged document" not listed in the warrant.

In a pleading to the court, Keith Gore asserts that he "has never been in possession, at any time, of any boots, shoes or any type of footwear relevant to this cause." Gore also swore that he has "no actual knowledge of what was in the sealed box." Gore stated that he had planned to open the "box under conditions that would preserve the integrity of its contents", and that he has "no way of now knowing what was in the box or how it may have assisted the client's defense." Gore went on to state that he now has "no way of assessing how the seizure of the box may have forever compromised the defendant's ability to present an effective defense."

Visiting Judge Gary Stephens will hear testimony on conflicting motions by the State and the defense in a hearing scheduled for August 5. As of now, the defense has asked for the recusal of Judge Rusch, and for suppression and return of seized evidence. The State has asked for Keith Gore to be dismissed as defense counsel, so the DA can call him as a witness.

The Gore warrant is gaining national attention. Last week, the Texas Attorney General wrote that there was no grounds to seek Judge Rusch's recusal. the Attorney General also asked Judge Stephens to, "'quash' the subpoenas requiring Rusch and Dry to appear in court for the hearing". And the Texas Criminal Defense Attorney's Association has assigned an observer to monitor the case.

As Alice noted in her own slide down a rabbit hole, "couriouser and couriouser".

Bill

Notes and Links:

The Warrant, affidavit and return and more

The Defense motion in Response to the State's Motion to Disqualify Defense Counsel

MCG - AG opposes subpoenas of Rusch and Dry - CCO, July 23, 2008

Not Judge Rusch's first controversial warrant - CCO, July 21, 2008

NBC5 - Detectives Seize Documents From Murder-For-Hire Suspect's Attorney - CCO, July 18, 2008

AG opposes subpoenas of local judges

BY DANNY GALLAGHER, McKinney Courier-Gazette
Tuesday, July 22, 2008

The Texas Attorney General’s Office made known its disagreements with motions filed by the attorneys of a capital murder suspect to recuse two Collin County district court judges.

Several high-ranking members of the attorney general’s office, including Texas Attorney General Greg Abbott, signed and submitted a letter to the 401st District Court on Monday, expressing their opposition to recent motions filed by attorneys for Mark Lyle Bell. The motions stemmed from a search warrant signed by 416th District Judge Mark Rusch that authorized law-enforcement officers to search defense attorney Barry Keith Gore’s McKinney? office at the behest of the Collin County district attorney’s office.

Bell, of McKinney, faces a capital murder charge in connection with the Dec. 26, 2007, murder of Craig Nail of Frisco. Also arrested were the deceased's estranged wife, Vera Elizabeth Guthrie-Nail of Frisco, and Thomas Edward Grace of Carrollton. Allegations have been made that Guthrie-Nail hired Bell as a hit man to kill her estranged husband.

Bell allegedly shot Nail multiple times while in the upper level of the Frisco home that he shared with Guthrie-Nail before they separated in 2006. Nail’s girlfriend, Therisa Hofman, was wounded in the shooting but remained conscious and called 9-1-1 during the incident.

The DA’s office submitted the search request for Gore’s office on W. Virginia Parkway after Frisco police learned Gore may have received evidence from Bell’s wife, Linda, including a pair of shoes that he wore during the initial murder and letters detailing escape plans and suicide attempts, according to the warrant affidavit.

Steven Miears, Mr. Bell’s lead counsel, filed a motion asking Rusch and 199th District Judge Robert Dry to remove themselves from the case and ask for a hearing to discuss the recusal and the evidence collected from the search warrant. The motion claims the defense plans to call Rusch and Dry as witnesses for the hearing, scheduled for Aug. 5 with District Judge Gary Stephens presiding. The AG’s office faxed an 11-page letter to the court on Monday asking Stephens to “quash” the subpoenas requiring Rusch and Dry to appear in court for the hearing. They claim the judges’ testimony would not be legally admissible because the defense failed to show they have material relevant to the alleged act of murder.

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Judge Mark Rusch finds himself at the center of a legal storm over his issuing a search warrant on the office of defense attorney Keith Gore.

Judge Rusch had appointed the well regarded attorney as second chair in the capital murder trial of Mark Bell.

According to news reports, both the state and national criminal defense associations have mobilized task teams to probe the possible violation of attorney client privilege.

Attorneys for Bell have meanwhile filed motions to recuse Judge Rusch and to return and suppress any evidence gained by the search warrants. The defense team, lead by Steven Miears have issued subpoenas duces tecum to Texas Ranger AP Davidson, and Frisco detectives Clay Anderson and Bryan Sartain. Also served with subpoenas duces tecum were Collin County prosecutors Ben Smith and Christopher Milner.

A subpoena duces tecum is a subpoena that requires the witness to bring documents to the court.

Perverted Justice
This incident isn't Judge Rusch's first controversial search warrant. Last year, at the request of the Murphy police department, Rusch issued a search warrant for the home of Kaufman County prosecutor Bill Conradt.

That warrant was served on television as part of Dateline NBC's "To Catch a Predator" series with Perverted Justice and the Murphy Police Department. While executing the warrant in the glare of television lights, Bill Conradt committed suicide.

In June, NBC agreed to a settlement on behalf of Conradt's family.

The warrant itself contained several factual errors, including the date, the city and the county where it was to be served.

According to Esquire Magazine, Judge Rusch was angry after he learned that Dateline had been at Conradt's home when the warrant was executed. Esquire reported that Rusch called the Murphy police to vent his ire.

The Gore warrant affidavit
According to an article published Sunday by the McKinney Courier-Gazette, the search warrant affidavit contains a statement that a "Frisco police detective spoke to a friend of Mrs. Bell’s identified in the affidavit as “Shawna” in late February. She accompanied Mrs. Bell to the Collin County Courthouse on Feb. 21 for Mr. Bell’s grand jury appearance."

In February, Judge Robert Dry of the 199th District Court served Gore with a subpoena to testify before the grand jury in the case against his client. Gore was ordered to bring any items sent to him by Mrs. Bell. Gore refused and filed a motion to quash the subpoena. Judge Dry then scheduled a hearing on Gore's motion.

The Courier-Gazette article says that, "Gore allegedly told the judge “he would not produce the items even if Judge Dry held him in contempt and fined him,” according to a motion filed last Thursday by the DA’s office to dismiss Gore as Mr. Bell’s defense attorney."

Four days before Judge Dry's scheduled meeting, the DA's office went to Judge Rusch and obtained a search warrant for Gore's office, which was executed in February. Attorney Eric Higgins was tasked to monitor the search “to ensure that the attorney-client privilege and attorney work product were protected during the search.”

No boots or shoes were found - only documents.

The Collin county DA has filed a motion to remove Keith Gore from the defense team, and to require that he testify as a witness in the case. Austin attorney David Schulman, who has been brought into the case for the defense, described the DA's motion as nothing more than a publicity stunt. The Courier-Gazette quotes Schulman as saying, “You have to understand the motion filed yesterday (Thursday) is really not about getting Gore disqualified. It was nothing more than a press release by the DA justifying what is in reality an unconscionable, illegal warrant.”

Bill

Channel 5 has picked up the story on Judge Rusch's search warrants in the Mark Bell murder trial. It seems to me that the issue of attorney client privilege is at the core of the dispute.

The suspect, Mark Bell, wrote letters to his wife detailing "suicide and escape plans", and one describing an orange shoe box that "could be crucial to the prosecution's case". Police learned of the letters which the suspect's wife had delivered to Keith Gore, who is Bell's defense attorney.

Four days before a hearing to determine if the police could see those items, the police instead executed a search warrant on the defense attorney and seized the letters and shoe box.

Now the legal wrangling begins. According to the report, the defense is filing suit to return the items seized and to remove them as admissible evidence in the trial. They are also asking that the judge be recused.

NBC also reported that the prosecutor is asking the court to remove Keith Gore as the defense attorney so that the state could call him as a witness in the case.

Channel 5 posted a video of the story here.

Bill

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Detectives Seize Documents From Murder-For-Hire Suspect's Attorney

July 18, 2008
NBC Channel 5 /NBC5i.com

FRISCO, Texas -- The Frisco Police Department has taken what some legal experts call an unprecedented step in the investigation of an alleged murder-for-hire suspect.

Police said Mark Bell fired the shots that killed Craig Nail in his home a day after Christmas 2007.

While in jail, Bell wrote letters to his wife asked her to hang on to certain items in their home.

Bell's wife ended up turning all the items and the letters over to her husband's attorney.

A few days before a scheduled hearing to determine whether detectives were entitled to any of the items, Frisco police served a search warrant and seized the documents from the attorney's office.

The attorney has now hired another attorney who calls the search "illegal" and a violation of attorney client privilege.

read more....

I heard this story yesterday on KRLD, but have been unable to find any other media coverage.

Judge Mark Rusch of the 401st District Court in Collin County apparently issued a search warrant at the request of the DA's office for defense attorney files in a murder case before his court. On its face, Rusch's action would seen a violation of the 5th amendment and attorney-client privilege. I'd be interested in hearing the Judge's reasoning on this, and in reading the affidavit that justified such an unusual warrant.

Bill

July 18, 1:00 PM Channel 5 has posted an updated story that offers more insight into this strange case. Read about it here.

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KRLD Radio 1080 AM Dallas - It's a legal case that may be a first in Texas....a judge allows police to rifle through files in several McKinney law offices in a high-profile murder case. L.P. Phillips has the story you're hearing only on 1080 KRLD.

The case is the capital murder trial of Mark Bell...one of three accused in the murder-for-hire slaying of Craig Nail of Frisco. The shooting happened the day after Christmas. Legal papers show prosecutors sought...and judge Mark Rusch granted...permission to search the defense attorney's law office. Legal analyst and attorney John Teakell thinks that's a violation of attorney-client privilege. The legal papers say other law offices in the same building were also searched. A hearing is scheduled for next month to try and have Rusch removed as judge. Judge Rusch tells 1080 KRLD he can't talk about the case.***

Task force to serve as watchdog for Texas criminal justice system

Wednesday, June 4, 2008
By DIANE JENNINGS and JENNIFER EMILY/ The Dallas Morning News

A month after a handful of Dallas exonerees traveled to the state Capitol to tell their stories of wrongful conviction, the state's highest criminal court announced the establishment of a task force to address problems within the criminal justice system.

The new Texas Criminal Justice Integrity Unit is "good for Texas," said Dallas County District Attorney Craig Watkins. "It's putting policy aside and looking at the criminal justice system."

The integrity unit was organized by Judge Barbara Hervey of the Texas Court of Criminal Appeals. Mr. Watkins said Judge Hervey recruited him to join the group this week after telling him six months ago that she was watching his office's conviction integrity unit.

"I want this to be more than a study group," Judge Hervey said. "We've studied already, so now it's time to act."

But some observers are skeptical that the group, which does not yet have aninitial meeting scheduled and has no official power, will do more than talk.

"I would have been more comfortable with the Legislature doing this because they're immediately charged with writing the laws," said Keith Hampton, legislative chairman for the Texas Criminal Defense Lawyers Association.

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Zero Health Insurance In Collin County
Low Cost Clinic Offers Relief

By Brett Ryder / McKinneyNews.net Staff Writer
Monday, May 19th

Driving down the regal streets of McKinney past the countless posh homes and pristine private county clubs, it might be easy to forget that many Texans – some say as many as 25 percent – have zero health insurance. Get sick or injured and these are the people who either have to a) ride it out at home and hope for the best or; b) run to the emergency room and sustain extraordinarily costly medical bills which, of course, they cannot repay.

But if Dan Shepherd’s medical and humanitarian vision comes to full fruition, McKinney, long the shimmering jewel of prosperity in a county known for its material bounty, will no longer be without preventative health care for the poor. Enter McKinney’s newest women’s health clinic that aspires to be more: McKinney Family Planning Center (MFPC).

Under the direction of Shepherd, CEO for Community Health Service Agency out of Greenville, a private, non-profit company operating several medical clinics in the area for the uninsured or underinsured, many of whom are undocumented, MFPC quietly opened its doors the last week in March.

The roughly 3000 square foot facility boasts a full time staff of six, an in-house lab and a pharmacy in a nondescript office complex just north of Hwy 380 on N. McDonald. Right now they’re busying themselves with sexually transmitted disease screenings, breast and cervical examinations, birth control, and the occasional testicular examination. If Shepherd has his way, MFPC services, funded largely through governmental subsidies, will expand greatly to include general medical care for those struggling to make ends meet.

In anticipation of MFPC's Tuesday grand opening, Shepherd and Physician Assistant, Dana Coker, took a few minutes to address several questions about the clinic's philanthropic mission.

MNN: Who is your target demographic?

Shepherd: We’re here to service those that either have no access or limited access to health care. At this point that means women’s health issues. We’re operating five other medical facilities in the area – one of them in Bonham. The Bonham clinic is a general medical care clinic and we’re hoping that one day the McKinney clinic will expand its services as well to offer general care for men and women in the community.

Coker: We also do what basically amounts to a complete physical. If someone comes in for a breast exam and we find a mass, for example, we’re going to do everything we can to refer that person to the appropriate physician.

MNN: So you provide health services to illegal immigrants?

Shepherd: Yes.

read more....

Collin County has cut spending on legal defense for the poor
A defense expense is cut

12:00 AM CST on Saturday, January 26, 2008
By ED HOUSEWRIGHT / The Dallas Morning News

Collin County commissioners pride themselves on saving money.

The latest example involves indigent defense spending. Commissioners recently learned the county spent $800,000 less on lawyers for the poor last year than in 2006.

Expenditures dropped about 15 percent to $4 million, even though the number of cases rose 2.7 percent. Why has spending dropped? Commissioners say the poor aren't denied free representation. Instead, officials are more carefully screening defendants who claim to be indigent.

Commissioners began enforcing strict eligibility guidelines after indigent defense costs rose 31 percent between fiscal 2002 and fiscal 2005.

Now databases are used to verify defendants' income and assets. To be eligible for a court-appointed attorney, a defendant must have less than $2,500 in assets, not including the value of his or her primary care. The accused can't earn more than 125 percent of the federal poverty level. For a single person, that translates into a maximum annual income of $10,210.

"No one has complained about the new rules – at least not loudly. Poor people accused of crimes don't have much of a voice anyway."

The crackdown is paying off. In fiscal 2006, indigent defense costs fell 10 percent, records show.

Judges emphasize that even if a person doesn't meet the income or asset guidelines, he or she can be granted a lawyer. Judges say deserving people are not denied attorneys.

No one has complained about the new rules – at least not loudly. Poor people accused of crimes don't have much of a voice anyway.

The county also is cutting spending by reducing fees paid to court-appointed attorneys.

Attorneys have griped that the new fee structure isn't fair. They say they're working too hard for too little money.

But no one seems to be listening.

Link to Ed Housewright's column

Bill's Comments: This is the third year since the crackdown began on indigent defense costs, and the second year of declining expenses.

Click here for the county's data and analysis of indigent defense spending

The County's indigent defense policies:
Fair Defense Plan for Felony Cases
Fair Defense Plan for Misdemeanor Cases
Fair Defense Plan for Juvenile Cases
Collin County's indigent defense web page

Lisa Virgoe of Lucas: Can we afford it?
Fewer families make enough to pay for the Collin lifestyle than you might think
Dallas Morning News Community Opinions
11:17 AM CDT on Friday, September 21, 2007

Can you afford to live in Collin County?

According to the Center for Public Policy Priorities, the minimum annual salary needed to sustain a family of four in North Texas is $43,723. Their study used averages across the metroplex, which is a large, economically diverse region. So I wondered what the minimum salary would be to sustain a family in our county. The results aren't pretty.

After making adjustments specific to Collin County and for increased taxes owed, I found that mom, dad and their two kids would be eking by on an income of $49,000, assuming they had employer-paid health benefits. If not, they needed to earn $59,000.

That's assuming, as the study did, that they lived in a two-bedroom apartment. CPPP allotted a paltry $404 for transportation costs. In our county, where the typical commute to work is about half an hour, that's not going to cover gas and insurance – or a loan payment.

Let's be clear. Families with income this low aren't living in houses with yards, taking annual vacations, or splurging at Gymboree. With a mere $334 a month to cover utilities, cleaning supplies and school expenses, they don't have those luxuries. Scariest of all, they're saving nothing. Nothing for retirement. Nothing for college. Nothing for emergencies.

But the median Collin County family income in 2005 was $75,709. Most families are doing fine, right? Wrong.

In our county, where few adults can rely on public transportation, most families have at least one car payment. If you add in minimum savings for retirement and college, and costs incurred by owning a modest home, required family income climbs to $86,000.

If the median income is $76,000, fewer than half of Collin County families earn enough to cover realistic expenses. And I based my estimate on a $150,000 house, a rare find, but doable. Consider this. In July 2007, the median selling price for a Collin County house was $207,200, and the average was $253,600.

But what if you don't pay for child care, budgeted at $927 in the study? It's difficult to imagine having no child care costs at all. Even when parents stay home, families pay for anything from Mother's Day Out to preschool to summer camp.

Experts also say that before one parent contemplates leaving a job, the family should have enough cash to cover at least six months of expenses in case of layoffs, illness, divorce or disability. That's in addition to retirement and college savings. According to my estimate, that's roughly $35,000.

Most families in our county can't afford to lose any extra wages, not when they need $86,000 to sustain a modest lifestyle – without luxuries like entertainment or dance classes. Certainly, it's possible to survive on less. For example, you can forgo saving for retirement or college. To skip saving for college, you need $20,000 per child invested at birth, $40,000 for two kids.

How many families have an extra $75,000 in assets during their childbearing years?

We live in the most expensive county in Texas. While there are many Collin County families doing well financially, my concern is for the people who aren't. Since our housing prices are up 5 percent over last year despite the subprime mortgage crisis, there's no reason to expect our county's status to change.

Each family has to make its own financial choices. But if being middle class means a house, two cars and kids dreaming about the University of Texas, more than half of Collin County residents are falling short.

Lisa M. Virgoe is a resident of Lucas and a Voices of Collin County volunteer columnist.

Collin cuts court costs, but at what price?

12:00 AM CDT on Saturday, August 4, 2007
By ED HOUSEWRIGHT / The Dallas Morning News ehousewright@dallasnews.com

Collin County, fed up with soaring court costs, has become the toughest county in Texas for criminal defendants seeking court-appointed lawyers to defend them.

Some legal experts say the new county-imposed limits on a defendant's income and assets raise questions about the quality of justice in Collin County, one of the state's wealthiest suburban enclaves.

The new rules also set Collin apart from Dallas and other Texas counties whose judges routinely grant court-appointed attorneys to criminal defendants with no financial background check.

Other cases:

In Gideon vs. Wainwright (1963), the court held that an indigent person accused of a felony was entitled to be represented by a lawyer at the state's expense.

"The right of one charged with [a] crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours," the opinion read.

In Miranda vs. Arizona (1966), the court ruled that a person in police custody must be told of his or her right to an attorney and of the right to remain silent.

"The person in custody ... must be clearly informed that he has the right to counsel with a lawyer and to have the lawyer with him during interrogation and that, if he is indigent, a lawyer will be appointed to represent him."

Collin County Commissioner Joe Jaynes, who originally approved the new guidelines, says he is having second thoughts.

"I hate to see us starting to chip away at constitutional rights in the name of trying to save money," Mr. Jaynes said. "It's a very slippery slope we're starting to tread."

More than 1,000 defendants in Collin County who applied for a court-appointed lawyer last year failed to receive one because they didn't meet new strict financial guidelines, records show. That figure represents about a third of those who sought free counsel.

Consequently, Collin County's indigent-defense costs fell more than 20 percent in the year ending last September, the first full year under the new crackdown.

In the county's current fiscal year, expenses continue to fall.

Commissioner Jerry Hoagland and some other county officials applaud the savings.

"That's what we wanted to do -- reduce expenses," Mr. Hoagland said.

David Udell of New York University law school said screening people who want free legal representation is a sound public policy.

"The problem is when you have overly stringent guidelines that mean people who can't afford counsel end up not being able to get it," Mr. Udell said.

Malia Brink, an attorney with the National Association of Criminal Defense Lawyers, believes Collin County now has stricter financial guidelines than most counties around the country.

To be eligible for a court-appointed attorney, a defendant must have less than $2,500 in assets, not including the value of his or her primary car. People who own a home don't qualify.

In addition, the accused can't earn more than 125 percent of the federal poverty level, which translates into a maximum of $10,210 a year for a single person.

Most counties with eligibility guidelines use 150 or 200 percent of poverty, said Ms. Brink. People who are denied a court-appointed attorney and can't afford to hire one face a serious disadvantage against prosecutors, she said.

"If the system isn't balanced, it doesn't work," Ms. Brink said. "Defenses aren't presented appropriately, the wrong people go to jail, the real criminal remains at large.

"The whole process becomes more expensive because there are more appeals -- more valid appeals -- and then you have to try the case all over again."

State District Judge Chris Oldner, one of eight felony court judges in Collin County, said he sees no evidence that the county is denying representation to deserving people. County staffers initially verify income and asset information provided by defendants, but judges make the final decision.

"If an individual is denied an attorney through the process we put in place, we have the ability to review it," said Judge Oldner, administrative judge for the felony courts.

County Judge Keith Self, who heads the Commissioners Court, said he trusts judges to make sure deserving defendants receive court-appointed attorneys.

"We're relying on the judges' discretion," Mr. Self said. "We have to trust our judges to help us with the expenditure problem, but at the same time meet our legal requirements."

The Dallas Morning News reviewed a database of hundreds of felony cases. In some cases, electronic data indicated that a defendant didn't have an attorney -- court-appointed or otherwise.

But in every case file The News reviewed, original paperwork revealed that one of two things happened to a defendant who was denied court-appointed counsel: the accused hired his own attorney or the judge reversed county government staffers and appointed one.

Rights for accused

In a landmark 1963 decision, Gideon vs. Wainwright, the U.S. Supreme Court unanimously held that an indigent person accused of a felony is entitled to a lawyer paid for by the government.

The court took defendant rights a step further in 1966 with its decision in Miranda vs. Arizona, which required police to warn arrested suspects that they have the right to remain silent and that they will get a court-appointed attorney if they cannot afford one.

In the four decades since those decisions, judges in most jurisdictions began to routinely approve a defendant's request for court-appointed counsel. It became their way to avoid any suggestion that they were violating the Gideon or Miranda rulings.

Collin County began using computer databases to verify defendants' financial data in May 2005. Before that time, almost everyone who claimed indigency received a court-appointed attorney.

Other Texas counties have income guidelines for people seeking free representation, said Wesley Shackelford, legal counsel for the Texas Task Force on Indigent Defense. But he said none screen defendants as thoroughly as Collin County, which has the state's highest median household income.

"I'd say it's very unique," Mr. Shackelford said.

A total of 3,337 Collin County defendants sought a court-appointed attorney in the year ending Sept. 30, 2006 -- the first full year with the eligibility guidelines. A total of 2,119 -- or 63.5 percent -- initially received one. Of the 1,217 defendants denied, judges later appointed attorneys to 398.

In the year ending Sept. 30, Collin County spent $3.5 million on indigent defense -- a 22 percent drop from the previous 12-month period. And records show the trend is continuing.

Throughout the state, other counties are struggling with runaway indigent-defense costs.

The rising costs stem from the Texas Fair Defense Act, a comprehensive set of reforms aimed at improving indigent defense. The Legislature passed the law six years ago.

It requires police to bring a defendant before a magistrate within 48 hours of arrest. At this point, the accused can request a court-appointed attorney.

On a recent morning, 30 Collin County inmates sat in a makeshift courtroom in the jail, awaiting arraignment. Those seeking a court-appointed attorney filled out affidavits and then handed them back to a county staff member who verifies their financial information within a few hours.

Justice of the Peace Paul Raleeh appeared on a TV monitor from his bench at the courthouse. He called up the inmates one by one to read their charges.

"Good morning, I'm Judge Raleeh," he said to Valerie Edwards, who was clad in a dark-blue jail jumpsuit.

"Good morning, your honor," she answered.

"You have been charged with the offense of abandoning and endangering a child with criminal negligence," Judge Raleeh said. "I'm setting your bond at $20,000."

He also issued an emergency protection order, prohibiting the woman from returning home for up to 60 days. She protested.

"Do not interrupt me," Judge Raleeh shot back. "You are not allowed to be at that address."

Ms. Edwards elected to hire her own attorney.

Costs soaring elsewhere

From 2001 to 2005, Collin County's indigent-defense costs rose 68 percent -- from $2.5 million to $4.2 million, state records show. Most Texas counties saw sharp increases during that period.

But since 2005, Collin County's measures have lowered expenses at the same time they've been soaring in other urban counties -- Harris, Dallas, Tarrant and El Paso.

No defendants or criminal defense attorneys have legally challenged Collin County's cutback on court-appointed counsel.

Karee Johnson of Dallas faced a misdemeanor DWI charge in Collin County early last year. At the time, he said, he earned $9 an hour repairing computers part time. His income and assets exceeded the guidelines for a court-appointed attorney, county records show.

Mr. Johnson, 31, wound up hiring his own attorney.

The crackdown on indigent-defense costs has put more money in the pockets of some lawyers. When county officials deny people court-appointed attorneys, some defendants go out and hire one.

W. Craig Barlow, a Richardson defense attorney, said he can earn $20,000 or more when he's hired to defend someone accused of a first-degree felony such as sexual assault, murder or armed robbery.

By contrast, the county might pay him only $3,500 to represent an indigent person facing one of those charges, he said.

He may gain financially, but he said poor defendants can lose if they go too long without an attorney after arrest.

"Once you have a case filed on you, should you have legal representation? Absolutely," Mr. Barlow said.

The Texas Fair Defense Project, which works to improve poor people's legal rights, urges defendants to insist on receiving an attorney.

Even a misdemeanor conviction can have severe consequences, the group says. A person can be denied a job, face eviction, forfeit child custody, be required to register as a sex offender or become ineligible for government assistance.

"What you don't know can hurt you," the Texas Fair Defense Project says. "Having an attorney ensures that you are aware of your rights, reduces your chances of being convicted of a crime that you did not commit and helps to prevent you from receiving unfair and unequal punishments."