July 4th – The Defense Bar was Heard.

Friends- I have been off the Blog for some time. I am back. Many topics to talk about. No forewarnings issued. But,  I am back.  Let those who abuse the poor, stop.

I am happy to report that on July 3rd, through TCDLA the defense Bar lead Readings in 74 Counties in Texas.  We conducted Readings in more than 1/4 of all Texas Counties. Next year we will get 100.

Robb

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The Elevator Ride that Went Sideways

Friends-

Last week I  came through the tunnels to get to into the criminal courthouse. I waited with a growing number of folks in line for one of the two elevators in the basement of the criminal court. A young guy with a juror badge stood behind me. After we had all waited for some time, a guy who I have seen before strolled up. I believe is a lawyer. He was in line about 5 people behind me.

The individual, whom I will hereafter refer to as “the  Guy” immediately moved up to chat with a woman he knew who was about 2 people ahead of me.(you can see where this is going). He was quite obviously taking cuts. I was irritated  over the fact he was cutting in front of half a dozen people, including a young juror and me.  I had two bags and was set for trial. The Guy’s time was no more important than ours, yet there he was openly cutting in front of all of us. We had all waited patiently and without a thought he had no qualms about just stepping right in front.

The elevator door opened and the line moved forward. Without hesitating,  the Guy  moved forward taking advantage of his new position. The elevator quickly filled. The young juror and I had to squeeze on. The elevator was packed & some behind me did not make it. The Guy was to my immediate left. I could not help but say something. I told the Guy that it was inappropriate for him to take cuts especially in front of a juror, when we were all waiting. What followed was nothing  short of a full on verbal assault. I will  do my best to quote it.

In raised voice in the crowded elevator the Guy responded to me by shouting at me:      “Fuck You!!!  Get your Fucking Bag off me”

Although I was startled by his response, I responded. “It was wrong for you to take cuts”
Again,  the Guy shouted in the packed elevator,”Shut the fuck up. Shut the fuck up!!!”

I turned to the Guy and said as calmly as I could, ” My name is Robert Fickman, what is your name?”  He responded, “None of your fucking business”. He continued yelling at me to “Shut the Fuck Up”.

I got off the elevator on the 8th floor. I never once cussed. I looked at the Guy and said, ” I will see you later”. Admittedly, I had a tone,  by then I had a strong desire to punch him in the mouth. As I got off the elevator he shouted “Fuck  you, get the fuck off” and the women who allowed him to take cuts, joined him and  shouted at me as well.

I was set for trial. It got continued. Throughout  that day, I kept replaying the events as one does when lunacy strikes. I could not believe  the Guy’s outrageous response. I was disappointed No one else had spoken up.

Late that night I received an anonymous email from a woman that  restored my faith.  This kind woman  was on the elevator, witnessed what occurred, remembered my name and took the trouble to look me up and email me. Her email is below and it speaks for itself.

“Hi. I am just an anonymous person who was in the elevator today when you and another attorney(?) got into an argument. I just wanted to say that not only did that guy cut in front of your witness/juror(?) – he also cut in front of me when he did so. I’m glad you called him on it. I noticed it immediately when he walked right by us and cut ahead. I thought it not only rude but reaking of smugness and self importance. He should have admitted to doing so when you mentioned it and simply apologized instead of arguing.
No one stuck in that elevator should have had to have listened to his obscenities. He didnt give you his name for a reason: he knew you were right. Thanks for speaking up. Signed – Average Jane”

 When we see wrong  we have a duty to speak up. It’s not always easy. It’s not always pleasant. Quite often there is a price for speaking up. But, there is also a steep price for not speaking up. Taking cuts is no big deal. But if you don’t speak up on small things, will you speak up on something that counts? I think not speaking up in the face of wrong is dangerous to one’s self-respect.

 If bad things happen around you and you don’t speak up, how are you defining yourself? Not too well. Silence in the face of wrongdoing is complicity. That’s why I am an outspoken critic of the abuses in the criminal justice system. If I am silent,  I am complicit.  As I view myself as  a good person, I refuse to be complicit. Thus, I have no choice but to speak out. If I don’t speak out about abuses in the criminal justice system,  I would lose  my self-respect. My self-respect is far more important to me than having the respect of those people within the system who abuse people. I am not interested in their respect. I am interested in getting them to stop abusing people. 

As for the Guy’s  over the top response, he defined himself as extraordinarily rude.  His shouting was the obscene verbal pout of  a very small person. He was all bark, a chihuahua nipping at my heel. If he is a lawyer, he is a disgrace. I don’t know the rude Guys name, But in time I will learn it. Perhaps when I get his name, I will  edit this post and  insert his true name. That seems just. He should live with his conduct.  In the meantime, maybe he will think twice before taking cuts.(I am not counting on that.)

More mportantly,  I will keep speaking up, no matter who gets mad or how they express it. Rather than chilling my speech, the Rude Guy is just  another inspiration  to keep at it. People, particularly those with power, don’t like criticism. Their not liking it, their ugly responses, are irrelevant to my need to speak up.

 I thank Average Jane for her good heart and for being anything but average.
Robb Fickman, Houston

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My Christmas Wish: May Our Judges Find a Leader Among Them Who Will Speak for the Poor

Friends-  As we enter into the Christmas Holidays, there are 8 to 10,000 souls  in the Harris County Jail tonight. Not all these folks need to spend the Holidays locked up,  behind bars, and  away from their loved ones.  A  good number of souls are locked up and behind bars who  should not be. Why  do I say this? 

Consider of those 8-10,000 souls, a number  fit the following description:

  1. They are charged but their case is pending and unresolved, thus they are presumed innocent;
  2. They are charged with a  non-violent misdemeanor or a state jail felony of possesion of  under a gram of a controlled substance.
  3. They have never been in trouble before ;
  4. They are US Citizens;
  5. They have family in Houston or Texas;
  6. They have been determined  by a county agency, not to pose a danger to anyone or the community;
  7. They have been determined by a county agency,  not to pose a flight risk;
  8. They would have made a bond but could not afford it;
  9. They didnt get a PR bond because the judge in their court thought it best to let them sit in jail during the Holidays.

 It is  wrong for the above-described presumptively innocent accused, to be denied PR bonds and kept in Jail; Particularly over the Holidays.  For the most part they are in jail simply because they are too poor to hire a bondsman and judges lack either the  heart, the wisdom or political courage to grant them PR Bonds.

If you know of someone who is in jail right now, and they fit the description I have given,  email me at Rfickman@gmail.com .   To be clear, I am not soliticiting cases. I will not represent anyone I am contacted about. I am soliticiting human stories. I want to know who the people are, who are being abused by this system. I want  their stories to be told.I want to put a face on this inhumanity.

As we enter into this Holiday it might be worth reflecting on what our JudeoChristian Religions have taught us  about how we should treat the poor. The present systematic denial of PR bonds to the Poor seems entirely inconsistent with our shared religious upbringings:

Deut 15:11 “There will always be poor people in the land. Therefore I command you to be openhanded toward your brothers and toward the poor and needy in your land.”

Isiah 10:1-3 “Woe to those who enact evil statutes, and to those who continually record unjust decisions, so as to deprive the needy of justice, and rob the poor of my people of their rights…

Ezek. 22:29,31″The People of the Land have practiced oppression and committed robbery, and they have wronged the poor and the needy and have oppressed the sojourner without justice…Thus I have poured out My indignation on Them; I have consumed them with the fire of my wrath;their way I have brought upon their heads,” declares the Lord God.

Proverbs 21:13 “If a man shuts his ears to the cry of the poor, he too will cry out and not be answered.”

Proverbs 29:7 ” The righteous care about Justice for the poor, but the wicked have no such concern.”

Job 29:12 ” I rescued the poor who cried for help, and the fatherless who had none to assist them.”

Matthew 5:3 ” Blessed are the poor in spirit, for theirs is kingdom of heaven”

Matthew 25:41-45  When Jesus comes to the Earth and judges between the sheep and the goats, “Then he will say to those on his left, ‘Depart from me, you are cursed, into the eternal fire prepared for  the devil and his angels. For I was hungry and you gave me nothing to eat, I was thirsty and you gave me nothing to drink, I was a stranger and you did not invite me in, I needed clothes and you did not clothe me, I was sick and in prison and you did not look after me.’ They also will answer, ‘ Lord, when did we see you hungry or thirsty or a stranger or needing clothes or sick or in prison, and did not help you?’ He will reply, ‘ I tell you the truth, whatever you did not do for one of the least amoung you, you did not do for me”

First John 3:17 “If anyone has material possessions and sees his brother in need but has no pity on him, how can God be in him?”

Jesus Christ said, If you want to be perfect, go, sell your possessions and give to the poor, and you will have treasure  in Heaven .  

 As we enter the Holidays, perhaps some of our Judiciary, will look to their own faith and find a renewed commitment to take men one at a time. Perhaps the poor will find a leader among the Judges who will  show the others the way. 

Robb Fickman, Houston

 

 

 

 

 

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Remembering Victor Blaine: A Great Lawyer, A Great Man, An Eagle.

Friends-

I learned yesterday the  sad news that  Victor Blaine  passed away.  I am very sad for his family. I am also very sad  for the entire Houston legal community. Victor’s death is a painful loss for  all of us who knew this wonderful man.

Victor Blaine was a great man and a great lawyer.  I loved Victor Blaine. It was hard not to.

In  the early 1980s, when I was a baby lawyer, I remember going to the Criminal Courthouse looking for a trial to watch. In most courts I saw lawyers pleading clients guilty  or joking around. I  didnt see any lawyer acting  like what I expected a criminal defense lawyer to act like. Then I walked into the Eva Lott trial and all that changed.

The Eva Lott trial was in one of the big courtrooms  at the old courthouse. Eva Lott & her boyfriend were accused of murdering her child.  It was an ugly, high publicity case.

As soon as I entered the courtroom I heard his voice. The voice was not loud, but it was very powerful. I saw a tall, lanky,handsome defense lawyer  who was in constant motion. He owned the Courtroom. His words were carefully chosen, eloquent and intelligent.  He had an unmistakable charisma. His very presence made the entire courtroom smarter and more humane.

This was Victor Blaine.

Pretty quickly I knew I was watching a great  lawyer in action.  He was as comfortable in the courtroom as any lawyer I have ever seen. I remember thinking  there was something about Him that reminded me of an eagle. There was something otherworldly, something noble about him.

I don’t know what I had planned for the next few days. I do know I forgot all that, and  returned daily to watch Victor fight like hell for his client.  Victor was a cross between Gregory Peck’s Atticus Finch and Jimmy Stewart’s Paul Biegler.  He was at once modest, tenacious, small town and wise.  Victor was  a natural  born criminal defense lawyer.  He was a tough man, but as I would learn, he had a  tender heart. He cared about his clients.  Being a criminal defense lawyer was much more than a job  to Victor.

At the end of the Eva Lott trial,  I sheepishly introduced myself & Victor was as kind as he could be. In the time that followed, I  remember how friendly Victor  was to me as a young lawyer.  I was always suprised and happy in the courthouse halls when  this great lawyer and great man  would call out my name.  I couldnt  believe he even knew my name.
I came to learn this was Victor’s nature. He was  a  kind-hearted man. It was quite natural for Victor to be nice to a young lawyer. Victor was the quintessential Southern Gentleman.

Victor was a hero to  me.  He was a great lawyer who lacked the conceit so often found   amoung great lawyers. While Victor was always confident, he was never arrogant. Victor was without pretense.  He carried himself in an unassuming manner.  This caused more than a few overconfident prosecutors to learn the hard way that  beneath Victor’s unassuming manner, was a lawyer who was fully prepared to school them.   Year after year Victor  tried and won cases.  I never once heard him brag; Victor didnt brag. He didnt need to.

For the next 30 years, when Victor was visiting with clients in the halls, I would often  interrupt  and ask the clients if Victor was their lawyer. I knew the answer. But I rarely  missed a chance to tell Victor’s clients just how great he was.  I knew Victor would not brag on himself, so I bragged on him.  I would tell his clients how lucky they were to have Victor as their  lawyer. They would nod but that never quite satified me that they really knew how lucky they were. Often I  would launch into a full blown speech about how Victor Blaine was  the first “Real Lawyer” I ever met.  Over the years, Victor would smile  and patiently endure my interruptions and my unneeded praise.

Victor was  from Mississippi. He served in the Army and  came to Houston when there were only 3 Federal courts  in the Downtown Post office.  He tried his hand at insurance  but found it boring. He soon became a criminal defense lawyer. It didnt take him long to realize this was his  calling. There are thousands of Houston  families whose loved one’s liberty was  saved because  Victor Blaine found his calling as a criminal  defense lawyer.

Somewhere along the way, Victor and I had  co-defendants. I was very happy to get to fight side by side with Victor. It was  a  drug case.  Victor studied the case and soon advised  that we should  both  pursue an entrapment defense. Of course entrapment is very hard to prove. I talked to Victor about my concerns.  Victor heard  me out,  but  he was confident we would win with entrapment.  We had the hearing, Victor took the lead asserting entrapment and just as  Victor predicted we won.

In 2002, the Harris County Criminal Lawyers Association presented Victor with the Lifetime Achievement Award.  HCCLA  Honored  Victor  for all his  great work as a Criminal Defense Lawyer.  For me their was a  private honor. It was my honor to present the award to Victor.  Presenting Victor Blaine, with the HCCLA  Lifetime Achievement Award, remains one of my most cherished memories as a lawyer.  Its the first photo on the wall as you enter my office.  A younger version of  me standing with the first Real  Lawyer I ever  met: Victor Blaine the Eagle.

Back in 2002, we thought Victor might be ready to retire. We were wrong.  It was always a mistake to underestimate Victor Blaine.  A mistake prosecutors never made twice. Victor practiced up until the very end. And Victor’s mind was always sharp.

Victor has a beautiful wife, Fama.  Victor and Mrs Blaine were inseparable.  I would see them together in restaurants or bookstores.  Just as in the Courthouse, I would interrupt them and needlessly remind Mrs.  Blaine about what a  great man her husband was. Mrs Blaine  was as modest as Victor, but she always beamed with pride when I recounted stories of Victor.

Last year when my own mother was in Methodist, Victor was on the same floor. I visited with Victor & Mrs Blaine. Even in the hospital, Victor was in good spirits. Victor had  never met my mother,  but her well-being immediately became a  concern to him.  I sent Victor a plant from me & HCCLA.

We have lost one of the finest criminal defense lawyers that this community has ever known. A truly great man and a truly great lawyer, an Eagle.

I will miss Victor. I know I am not alone.

God Bless Victor Blaine & his family.

Robb Fickman, Houston

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Harris County Texas: Where the Innocent Must Plead Guilty to Regain Their Liberty

Friends,

 This letter will be delivered to the 15 Harris County Criminal Court Judges tomorrow.

Robb 

 

ROBERT J. FICKMAN
LAWYER

440 Louisiana, Suite 800
Houston, Texas 77002

(713) 655-7400
Fax (713) 224-6008

November 26, 2013

Judge Paula Goodhart
Judge William Harmon
Judge Natalie Fleming
Judge  John Clinton
Judge  Margaret Stewart
Judge Larry Standley
Judge  Pam Derbyshire
Judge  Jay Karahan
Judge Analia Wilkerson
Judge Sherman  Ross
Judge Diane Bull
Judge Robin Brown
Judge Don Smyth
Judge Michael Fields
Judge Jean Spradling Hughes

Harris County Criminal Court Judges
1201 Franklin
Houston, Texas  77002              
 

Dear Judges,

I hope that you are all well. Happy Thanksgiving to each of you, your families and your very able staffs.

As I am sure you are aware I have been an outspoken critic of the criminal justice system for a number of years. I have practiced criminal law in state and federal court now for 30 years.  During this time I have represented many indigent defendants, particularly in Federal Court. In Federal Court, I served as the first Panel Attorney Representative for the Southern District of Texas. Panel Attorneys are those lawyers in private practice that are deemed qualified to accept Federal appointments.   I was appointed by the late Honorable Norman Black, to represent the panel lawyers from our District. I also served as the Fifth Circuit’s Panel Representative to Defender Services in Washington DC.  Most recently, I served on the Honorable Kenneth Hoyt’s Panel selection committee. I served for a number of years with a handful of good lawyers, assisting Judge Hoyt in re-vamping the system for selecting Panel attorneys. I believe the aforementioned   demonstrate a genuine and long-standing interest on my part in improving indigent representation.

I would not trade our system for any other system in the world. As many of you may recall, it was my idea to display the Constitution in our courthouse, the Jury Assembly Room, the Civil Court and the Juvenile Justice Center. It was also my idea for the Defense Bar to annually read the Declaration of Independence in front of the Court.  As American lawyers, we all took the same oath to support the Constitution of the United States and the State of Texas. I am sure we all take our Oath seriously.  I think as an American Lawyer, I am duty bound to speak out when I see flaws in our criminal justice system. I think we all have a duty to speak out and act whenever the system has evolved in such a way as to contravene the spirit or words of the Constitution. This is the reason, for the first time in thirty years I have addressed this letter to all of you. I believe part of our current system is an affront to our Constitution. I am petitioning you, in my individual capacity, to change that part of the system which offends our Constitution.

In my 30 years as a criminal defense lawyer, I have concluded that one of the biggest problems in our system continues to be how we treat the poor.  As you know, they make up a large part of the population of those who are charged with crimes. 

For years, I have observed the chain of orange jump suits come into our courts.  I watch people pleading guilty, not long after they have met their appointed counsel. The lawyers who plead multiple clients guilty an hour after they met them, are not truly functioning as defense lawyers. A defense lawyer is duty bound to investigate the law and the facts. Those lawyers who plead multiple clients guilty, not long after meeting said clients, cannot possibly have done an adequate job of investigating the law or the facts. A lawyer who is appointed to represent 6 clients at 9AM, does not have sufficient time to investigate the law and facts for those 6 clients between 9AM and 11AM. Yet we routinely see lawyers who were appointed at 9AM, pleading 6 clients guilty at 11AM.  Doing the math, that affords the lawyer no more than 20minutes tops to work on each client’s case. I suspect if it were our loved one, we would all expect a lawyer to spend more than 20 minutes on our loved one’s case before making even an initial recommendation.

There is no time for these lawyers to interview the client in any meaningful way, interview prospective defense witnesses, investigate potential defenses, investigate the state’s case, or investigate relevant legal issues. That cannot be done in 20 minutes.  I refer to this system as the “Harris County Plea Mill”. I am not picking on Harris County, I am aware similar bad systems exist elsewhere. (Nor am I picking on all lawyers who do court appointed work in the county courts. We have some lawyers who, despite the system, do their very best to provide effective assistance. These lawyers are more the exception than the rule.)

I believe the inherently unfair “Plea Mill” stems largely from the incarceration of the accused. The accused remain in jail because they have not been able to hire a bondsman and because your courts will not give them personal recognizance bonds. Logic dictates that people prefer liberty over incarceration.

All things being equal, if an accused can hire a bondsman to get out of jail, the accused will do so.  Likewise, if an accused cannot hire a bondsman, but they are afforded an opportunity for release on a personal recognizance bond, they will take the opportunity.  However, the opportunity to be released on a personal recognizance bond is almost non-existent in our County Criminal Courts; therein lies the root of the problem.

As things stand the accused in Harris County generally only have one way  to secure their release before court. That entails hiring a bondsman. This suits the bondsmen just fine, as they have a bit of a monopoly on the ability to secure the accused person’s liberty prior to court.  Bondsmen do not work for free, nor should they. They make lots of money based on their established monopoly. 

Those who are too poor to hire a bondsman, having been denied an opportunity for a personal recognizance bond, sit in jail and await their first court appearance. They are brought to jail and placed in a holding tank.

There they sit, with little or no control over their fate.

After a short time the appointed counsel comes back to visit them. As stated the norm entails fairly quick visits between the accused and their newly  appointed lawyer. The accused are presented a “Hobson’s Choice” by their appointed counsel.   We all know the drill.  The accused is told if they plead guilty they will get out of jail sooner; if they plead not guilty they will get out of jail later.

People don’t like to be in jail. Poor people who are trying to support a family and cannot afford to lose their job, cannot afford the luxury of staying in jail to fight to prove their innocence.  No.  People who are poor, who live hand to mouth, will plead guilty to get out of jail sooner.  We have no way of knowing if they are in fact guilty. Except for in rare cases, there has been no real defense investigation.  We are left to wonder, if we care, whether innocent people are in fact pleading guilty to get out of jail.

I do not believe in self- deception or communal self- deception.  It is quite obvious under our system, innocent people are pleading guilty to get out of jail. Our system, is a system that “corners” poor people into pleading guilty to obtain their liberty. I do not believe a system that by design or default coerces men into pleading  guilty  in order to obtain their liberty is a fair system. Quite the contrary, our  system is offensive to  our Constitution. Our perpetuation of  this system daily offends what our Founding Fathers envisioned.  It is an odious system where a free man must plead guilty and accept a criminal label in order to restore his liberty.

This is our long-standing, self-perpetuating abusive system. 

I have spoken to many of you one on one about the county court’s systematic denial of personal recognizance bonds to the poor who are charged with non-violent misdemeanors. I will breach no confidences.  I will however, advise you, as a group, that individually a number of you privately agree with me.

I am writing this letter to request that all Fifteen of you address this ongoing serious problem in our system.  Enough is enough!  I am advised that as of now only 7% of those charged with misdemeanors are given PR bonds.  A few years ago that number  was  5-6%.   That is very little progress.  Every day the current system goes on, is another day where  innocent people are  pleading guilty to gain their freedom. We are all responsible for our system. I appeal to you, to work together to change this. Let us  free poor people charged with non-violent misdemeanors on Personal recognizance bonds. Let us do this  to afford their lawyers time to represent them. Let us do this so that innocent men and women are no longer forced to plead guilty to regain their liberty.

I am appealing to you to address the inequities brought about by the continued systematic denial of   personal recognizance bonds  to those accused of non-violent misdemeanors.  Poor Houstonians who are accused of misdemeanor theft, possession of marijuana, trespass, driving while license suspended and other non-violent offenses should  not have to choose  to plead guilty to obtain their liberty.

As long as this system remains in place, we are all accountable for the damage done. I need not tell you, what a conviction for misdemeanor theft does to a person’s chance to obtain employment and support their family.

On a final note, to demonstrate the sincerity of my request, I have begun a short fast. The fast is simply my way of protesting our denial of PR bonds to the poor. The fast is my attempt to get your attention.  I hope during this Holiday Season, during this time of Thanks, as we gather with our families we consider those less fortunate than ourselves. In the spirit of the Holidays, I ask the Fifteen of you to immediately change course and begin systematically granting personal recognizance bonds to those charged with non-violent misdemeanor offenses. Our fellow Houstonians, who are presumed innocent under our Constitution, deserve our taking better care of their “God Given Liberty”.

Respectfully

 

Robb Fickman
Lawyer

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Texas: Where it’s Better for 10 Innocent Men to Go to Prison, than for 1 Guilty Man to go Free!! Yee Ha!!! Hang Em High!!!

Scene: Somewhere in  the Texas Hill Country. A Giant Well Appointed Country House sits  above a beautiful sprawling ranch. Workers are everywhere busily adding  improvements. The owner, an older man of extreme wealth and  Power sits comfortably in his rocking chair. A house phone sits on a table next to him. He sips Bourbon, enjoying his  spread.  He is self-contented. Things are mostly jist as he would have them. Seated nearby, hanging on every word of the older man, is a cub reporter.  The older man, is  “splaining “how things work in Texas to  the cub reporter.

We Catch The Power Broker Mid-sentence:

“But you see, down here in Texas. We do thangs our way!!!  We always have and we always will.  The Innocent man he does the 25 years!!! The guilty man with a badge? Well son, He gets what we call a HALL PASS.”

 ( chuckles to himself)

“You know why that is? Come here. No, lean closer son. That’s it. Cuz down here in Texas we rather see 10 Innocent men go to prison than one guilty sombitch go free. Thats right. Thats it in a nutshell son. (Gesturing with finger as to make the point). We aint letting one guilty sombitch go.”

“So cuz of that, we gotta give our DA boys what we call  ”Plenty of Leg Room”. They got to do whatever it takes. We can’t be tying their hands. And Ifn the process a few 1000, who ain’t done nothing wrong, get some time, well hell its a price WE’RE WILLING TO PAY!!! Yessireebob, its a price WE’RE willing to pay.”

“So when we get one wrong, it aint really wrong. Its just the system we done dee-vized.”

( The man Sips Bourbon while the cub reporter scratches his  head tryin to understand. The Cub reporter dutifully writes ” IT AINT WRONG”.
After Looking over his spread once more, the old power broker looks back at the  cub reporter)

“And By Gawd son, we aint fer a secund changing!  Oh hell these local trouble makers,like  than Houston lawyer John Whatshisname  just stirs thangs up. They brang them  Inn-O-Cent  Carpet baggin Yankees down here & get their picture taken huggin some ex con.” 

 ”It don’t matter one bit. And  you wanna know why?” ( He is momentarily distracted by a small family dog. This is his youngest daughter Barbara Sue’s dog. She is up at the TCU)

“Come here  Chewchew. That’s a good dog.” ( he scratches the dog then flings a dog toy off the porch which the dog chases)

“That ChewChew is the dumbest damn dog we ever had. I dont know  why we have a dawg that caint hunt.”

“Where was I? ”

“ Rat, I was telling you why It dont matter a bit. None of this here  stir matters. Cause Once these fancy lawyers leave, we just go on back to doing thangs like we always done.  We aint changing a Gawd damn thing! (spits). Ken   is a good ole boy. Hell, he was just doing his jawb.” 

“They put him through hell.  That there Court of Inquiry was a damn “Court of Injury”*  for old Ken.  It aint right. He had to sit  in  the Sheriff”s Office drinking coffee and shooting the breeze For Five whole days. He missed his Golf game!!!! Hell he missed THE BARBEQUE!!!! THAT JUST AINT RIGHT!!!! ”

“And for what???”

“I will tell for what son.  For just  just doing his Jawb. That is all he done. Just done his Jawb.  I swear. We caint be givin in to this.  If we aint careful, next thang you know, ever DA in this State is gonna have to show his cards to them criminals and that just aint rat.”

“Will  let the dust settle on this  here deal and  then  I will make a few calls.  Well  get Ken  up and running again as a Visiting Judge and set this here matter rat.” 

( the pnone rings. Ignoring the cub reporter, the man picks up the phone and shouts into it)

 ”Who is it?”

“Charlie? Charlie Sebesta, you old sumbitch. How are you getting by….”

****
Former Williamson County DA Ken Anderson deliberately withheld critical exculpatory evidence from Michael  Morton’s Lawyer. As a result Michael Morton was convicted of murder. After Serving 25 years in prison, Michael Morton was exonerated. Anderson’s punishment for deliberalty withholding the critical exculpatory evidence,lying about it and sending Michael Morton to prison for life, was 10 days in jail. Anderson  served only 5 days.  For every 5 years Michael Morton spent in prison as a direct result of Anderson’s criminal conduct,  Anderson  served 1 day in Jail. The innocent man did 25 year. The man who sent him to do the 25 years, did just 5 days.

The criminal justice system is often more criminal than just.  

Until the Texas Legislature does the right  thing, and enacts laws providing for  felony prosecution of  rogue prosecutors, all Texas  Das will feel free to just “keep doin their jawb”, even if that includes hiding evidence and framing the innocent  like Ken Anderson did.

* Texas County and District Attorney’s Association (TCDAA) Exectutive Director referred to the Court of Inquiry earlier this year as a “Court of Injury” for former DA Ken Anderson. The reference was made during a recorded training seminar for DAs in Harris County, Texas.

Robb Fickman, Houston Texas, @rfickman

Sent from my iPhone

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ATTENTION BULLIES OF THE CRIMINAL JUSTICE SYSTEM!

Friends-   

I have now practiced criminal defense law For 30 years.  In the early years, being an Eagle Scout and all, I held  certain false, rather naive beliefs. It took me a number of years to learn that not everyone called “Your Honor”, had  honor. It took me a few more years to overcome my natural fear of those called “Your Honor”.  After courting death a few times, during my mountaineering years, I gained a broader view of the world. The mountains tend to dwarf men,  even those who wear robes.

The world is much bigger than the  Harris County Criminal Courthouse.  With clearer vision, I have come to see that not all  judges are worthy of being called ” Your Honor”. Some are quite abusive, particulary to  the poorest amoung us. 

The criminal justice system draws bullies. Some wear police uniforms, some carry DA badges, some wear Robes, some carry probation officer badges, and some even  call  themselves defense lawyers.  I try not to discriminate. I dislike all bullies and I dont give two shits what their role in the system is. If they are bullies, they are my adversary.

A justice system should not tolerate bullies. A justice system that tolerates bullies, encourages abuse by these same bullies. Unfortunately,  The Texas criminal justice system is rife with  bullies abusing  whomever they like. Even more unfortunately, too many good men and women with bar cards stand silenty by, while bullies treat the poor as mean as hell.  Most unfortunately, too many good judges sit silently by,  knowing that their brethern or sistren* are abusing the presumptively innocent.

Some in  the criminal justice system,  think I am too harsh in my criticism . Well,  I  am not too harsh in my criticism. They are wrong.  We each have a duty to speak  up regarding  this disgraceful system. 

I dont believe this malignant self-perpetuating, fraud of a justice system is capable of ever self-correcting. In 30 years, I have seen no evidence that those who perpetuate the evils within this  system will have an epiphany and do the right thing.  That doesnt happen.  I do believe that with constant pressure, raised voices, lawful provocation and bad publicity- change may be forced on those in power.

To those who would like me to “Shut Up”, I am sorry.  In  the Fickman house we were raised Never to say “Shut up” to anyone.  Likewise we were raised to ignore the words “Shut up”, if we were in the right.  So, while the bullies may like me to shut up, I aint shutting up.  Not till  they are tossing dirt on my box.

Those who participate in perpetuating the evils of the  system, make excuses to  justify what they do. I guess it makes it easier for them to look in the mirror. Additionally,Those who are part of the meanness in the system support one another. They reinforce each other with “ends justify the means” arguments and communal deliberate ignorance.

They can pat each other on the back  till they knock each other down. The System is a disgrace and I will  keep saying it, till  there is true change.

Robb Fickman, Houston   @rfickman

 

 

 

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Anthony Graves & Michael Morton Survive & Rise above Two Evil Prosecutors: Ken Anderson & Charles Sebesta

On May 8, 2013, The Harris County Criminal Lawyers Association held its Annual Banquet and Award Ceremony.  It was  my great honor to present our Torch of  Liberty Award to Exonerees,  Mr Anthony Graves and Mr.  Michael Morton.  What follows is  my presentation speech.

 

Presentation of Torch of Liberty Award to  Mr. Anthony Graves and Mr. Michael  Morton.

 First of all I would like to welcome our Torch of Liberty Award Recipients.

 Mr. Anthony Graves  and Mr.  Michael Morton.

 Michael is also joined by his remarkable lawyer, Mr John Raley.

 Let’s give a warm welcome to Michael Morton, his family and to  the Raleys.

 TORCH OF LIBERTY AWARD

 The  HCCLA’s Torch of Liberty Award is given annually to someone who has advanced the cause of liberty in Texas.

 Through their good works, Anthony Graves and Michael Morton have each advanced the cause of liberty inTexas.

 That is why they are this years recipients of our Torch of  Liberty Award,

 Anthony & Michael’s lives are remarkably similar.  Their lives are the story of Betrayal, Courage and Grace

 Betrayal

 Both Anthony and Michael were the victims of the worst kind of betrayal.

 They were both betrayed by prosecutors  charged with enforcing the law.

  There can be No Doubt now, that their Prosecutors violated the law in order to obtain Anthony and Michael’s  convictions.

 Anthony was prosecuted in Burleson Countyby DA Charles Sebesta.  Anthony was convicted of capital  murder and sent to Death Row.

 Michael was  prosecuted in  Williamson County by DA  Ken Anderson.

Michael was convicted of murder and sent to prison for life.

 These unscrupulous prosecutors both hid critical exculpatory evidence.

 These prosecutors  betrayed their oath and duty.

 These  Prosecutors Robbed  Anthony & Michael of their  liberty.

 Courage

 Anthony and Michael, maintained their innocence from day one.

  Imprisoned for years, neither man ever gave up his fight,

 They both showed extraordinary COURAGE during their many years of incarceration..

 Both men were offered deals by the Prosecutors, if they would abandon their appeals and plead guilty.

 Both men told the Prosecutors NO!

 Neither Anthony nor Michael would  plead guilty to a crime they did not commit.

 Neither Anthony nor Michael  ever backed down, ever surrendered or ever relented in their quest for freedom.

 After many years Relief Came first for Anthony.

 In reversing Anthony’s  conviction, The Fifth Circuit found that the prosecution had  elicited false statements during the trial  and withheld critical  testimony from the jury. 

 The Fifth Circuit Said,

Perhaps even more egregious than District Attorney’s Sebesta’s  failure to disclose Carters’s most recent statement is his DELIBERATE  trial  tactic of eliciting testimony from the chief investigating officer  that DA Sebesta  knew was  FALSE.”

 The special  Prosecutor assigned to investigate Anthony’s case said,

After months of investigation & talking to every witness whose ever been involved in this  case and people who’ve never been talked to before,

After looking under every rock we could find,we found not one piece of credible evidence that linked Anthony Graves to this Commission of this  capital  murder.”

“He is an innocent Man”.

 In October 2010, after 18   years behind bars, Anthony Graves was  at long last freed. !!!!

 

After Anthony’s release, relief finally came for Michael.

 John Raley’s dogged  investigation revealed that critical  exculpatory evidence had been withheld by DA Ken Anderson.

 A bloody bandana was found near the Morton home. DA Anderson hid  the existence of the Bandana from  the Defense.

 In 2005, John Raley, began  relentlessly seeking an order for DNA testing of the  bloody bandana.  Then Williamson County DA, John Bradley fought the DNA testing every step of the way, and thereby unnecessarily & cruelly  extended Michael’s incarceration.

 In 2011, the  court finally relented and ordered DNA testing.  None of  Michael’s DNA was  found on the bloody rag.  DNA testing linked another man, to the murder.

 In October, 2011, after spending 25 years behind bars, Michael was  freed and exonerated. 

 After Michael  was freed, attention focused on his prosecutor Ken Anderson. A rare   Court of Inquiry was held. Judge Louis Sturns  presided. 

 After weeks of testimony, Judge Sturns found that DA Ken Anderson acted to defraud the trial court and Michael Morton’s Defense Lawyers.  

 On April 13,  the Court of Inquiry concluded with Judge Sturns ordering Ken Anderson’s immediate arrest.

 Judge Sturns  said, “This court cannot think of a more intentionally harmful act than a prosecutor’s conscious choice to hid mitigating evidence so as  to create an uneven playing field for a  defendant facing a murder charge and a  life sentence.”

 GRACE

 Both Anthony  and Michael  could have turned their backs on Texas and the Texas criminal Justice system.  One could  easily understand if they chose to leave a  state where the criminal justice system IS OFTEN MORE CRIMINAL THAN JUST.

 But neither Anthony nor Michael have turned their backs  on Texas.

 Instead, Anthony and Michael have each gracefully used  their notoriety to draw attention to Texas’ flawed  criminal justice system.

 Anthony and Michael  have both  relentlessly fought to improve the criminal justice system..

 Anthony has been an outspoken critic of the death penalty in Texas.

 He has traveled across the United Statesand to Europe educating people about what is  wrong with our system.

 He has  fought the use of solitary confinement in prisons.

  Just weeks ago, Anthony had an Editorial  published in the Chronicle about the dangers of solitary confinement. 

 When Anthony Graves speaks about the flaws in our criminal justice system, people listen. 

 Judge Jay Burnett said of Anthony Graves, “ Anthony Graves is an intelligent and effective speaker who has, from the time of his release, used his prison experience in conjunction with his notoriety to bring to the forefront the necessary publicity for reforms regarding the inhumane treatment of inmates in our Texas Prisons”

“ I believe him to be a formidable force that can operate to  promote the prison reform so desperately needed in our Texas prisons.”

 Michael Morton has also  used his voice to try to Improve Texas’ flawed  criminal justice system.

 Michael has spent months in Austin meeting with lawmakers.

 Michael   has  fought to broaden a Defendant’s  right to the basic discovery.

  He has  fought to require prosecutors to turn over  offense reports to the defense.

 He has fought to  require prosecutors to turn over witness statements to the Defense.

 Michael has graciously allowed his name to be attached to a discovery Bill.  The Michael Morton Bill.

 This Bill requires prosecutors to give the defense offense reports and witness statements in every case.

 Brandon Dudley, Senator Ellis’  very able Legislative Aid, said of  Michael,

He has committed to using his  life and his tragedy to make a difference in the lives of others-to  try and protect others from the injustice he was forced to endure. There were times when the bill was in a great deal of trouble; and if it  weren’t for Michael Morton,  we would have given up.”

 John Raley, who calls Michael his brother, said of Michael, “ He met with Senators one on one. He  looked them in the eyes,  and asked what basis, if any they had to oppose it. It is hard to avoid the gaze of someone with moral integrity. He willed  it to pass”

 Conclusion

 Anthony Graves and Michael Morton  were betrayed byTexas.  For a combined 43 years they courageously fought for their  liberty.

 Since being freed, they both have worked  very hard to  make significant changes in the  Texas criminal justice system.

  For their efforts to improve the system, we all owe them. All of Texas owes  them a debt that can never be repaid. 

 It is our   privilege, to honor these two  extraordinary men with our Torch of Liberty Award.

 Wont you please help me welcome Mr Anthony Graves and Mr. Michael Morton.

 Gentlemen.

 

 

 

 

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Please Honor Becky Pope By Helping Fight Ovarian Cancer

Friends-
Over the years we meet a lot of people. Occassionally, we  meet someone who is extraordinary.  About twenty years ago  I met  Becky Pope. Becky Pope was one of the most  extraordinary people that I ever knew. Over the years Becky and I  became  friends. I can say without reservation, that  I  loved Becky Pope. I am no softee, but it was virtually impossible not to love Becky Pope!
 
When I first posted this Becky was alive. She recently passed away.
 
 Let me tell you about this wonderful woman. Becky had  recently retired from the Federal Probation Department in Houston.  At the time of  her retirement, Becky was  a Senior Federal Probation Officer. Upon her retirement, Becky recieved high praise from many quarters. She was lauded by her fellow Probation officers, the Judiciary, the United States Attorneys Office and the District Clerk’s Office.  The entire Federal  Courthouse came out to praise this extraordinary woman. The praise was  all well-deserved.
 
Becky was also honored by the Harris County Criminal Lawyers Association.  I know this, as I was the defense attorney who  had the  privilege of presenting my friend  Becky with  HCCLA’s  Recognition.  To my knowledge,  Becky was the only federal or state probation officer who  ever recieved this  recognition from the defense bar. That alone should tell you something about Becky.
 
 As a Federal Probation Officer, Becky had enormous power over the lives of the accused. With  a few key strokes she could have influenced judges to hammer the hell out of the accused.  Becky never did that. As a Senior Probation Officer, Becky could have influenced younger probation officers to hammer the hell out of the accused. Becky never did that either.  Becky never abused her position or authority. Quite the contrary. Becky made herself available to the Defense.  Becky was an expert in the Guidelines and she routinely fielded questions from defense counsel,  helping defense counsel understand the often confusing   Guidelines. I was one of many defense lawyers who called  Becky and sought her expert opinion. Becky always made time for me and  other defense lawyers. Becky often  went the extra mile, pointing  out to defense counsel, guideline issues we had not considered. More than once,  Becky kept Defense lawyers,( myself included), from stepping in it.  Finally, Becky never viewed herself as an advocate for the prosecution. She was the rare Probation Officer who applied the rules without an agenda. If Becky saw a Guideline that would help the Accused, she would not hesitate to point it out to Defense Counsel.  Her intellect, her integrity and her charm made her a favorite among all who met her. So you see, it was quite natural for  the Defense Bar to join with everyone else in thanking Becky for all she had done for us.
 
For the last four  years  Becky  fought ovarian cancer.  Her battle  was nothing short of  gallant. When Becky went for Chemo, she would  wear different costumes to cheer the other women.  Becky’s favorite costume was that of  Wonder Woman.  It most certainly fit her the best. 
 
Becky’s   fight was courageous and inspirational. Becky went home right before she died. She was surrounded by loved ones, continuing her  fight. I visited Becky , and as always her concern was for those around her and not herself. Becky was one of the most remarkable people I have ever met.
 
Becky was a true fighter. She  fought cancer as hard as any soul could  fight it. She has also raised money to fight  cancer.  For four years,  Ellen Alexander and I  joined with Becky to help her raise money to fight ovarian cancer.  Defense Lawyers, Judges, Assistant United States Attorneys, Probation Officers, Clerks, Case Managers, Friends, Family,  and complete strangers  all contributed in Becky’s Honor.  This year, as Becky in Becky’s honr,  I am asking all to give again.
 
 Please Honor Becky  by contributing to the fight against cancer.  If you were a friend of Becky’s, I would ask you again to make a donation in her name  using the link below. If you hate cancer, or would just like to ” do the right thing” please donate. No donation is too small,  Or too large.
 
In  the end, our  time on earth is short and while here we must do our best for each other. We are not responsible for that which  we inherit, but we are responsible  for that which we pass on. This is an opportunity to pass  on a better world to our children and our grandchildren. As Becky  always did her best for us, let us do our best for Becky.
 
Please forward this  blog link  to anyone you think might hate cancer and might want to join us in this fight.
 
Thank you and God Bless  my friend  Becky Pope and her Family.
 
Robb Fickman, Houston
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How The Reciprocal Discovery Bill Betrays Mr. Morton and Mr. Graves

My Fellow Texans, 

The Legislature is considering a  a Bill  that needs  every Texan’s  attention.  It is called the Reciprocal Discovery Bill.  I  have blogged on it already.  Tonight I want to explain how this bill amounts to the further abuse of a man this state has already abused.  The man I am talking about is   Mr. Michael Morton.

Mr. Morton was convicted in Williamson County of murdering his wife.  His conviction was overturned, only  after his lawyer, John Raley,  fought and proved his innocence.  Raley fought for 7 years to get  Morton out of prison, and he did it  pro bono. Mr. John Raley, represents the very best in our legal community.  Those who schemed to put Mr. Morton behind  bars for 25 long years, represent the very worst in our legal community.

Mr. Morton spent 25 years in prison  for a crime he did not commit. DNA evidence cleared him and identified the actual perpetrator.  Morton’s prosecutor withheld critical evidence from the Defense. The Defense was never told that Morton’s child said, Morton was away when a “monster” committed  the murder. Nor was the defense told that neighbors saw a stranger casing the house or that his wife’s credit card was used in San Antonio days after her  death. Nor was the defense told about a  blue bandana  found near the scene that would ultimately lead to the arrest of the real murderer of Mr.  Morton’s wife.

Mr. Morton has been proven to be an innocent man.  Yet he spent 25 years in prison for a crime he did not commit. As Texans we must be outraged.  Our family members and our fellow Texans have paid in blood so that we may all be free. My own great uncle, Sgt Alan Schein, gave his life at the Battle of the Bulge,  so that we might all be free.  As Texans , we have fought too hard to now silently let anyone rob us or our neighbor of our God-given liberty.

It’s past time for us to draw another  line in the sand.  Prosecutors in Texas have enormous power.  For the criminal justice system to work,  we need honorable prosecutors who follow the law.  The horror that befell Mr. Morton, did not come as the result of the action’s of an honorable  prosecutor. The horror that befell Mr. Morton, came at the hands of a rogue prosecutor who hid critical exculpatory evidence. 

This is not the only time in recent years Texas has seen an innocent man released from  prison, after being convicted  at the hands of a  rogue prosecutor.  In Burleson County, Anthony Graves capital murder conviction was thrown out after he spent 18 years in prison. The 5th Circuit Court of Appeals found that Graves’ prosecutor obtained  the conviction in part by eliciting false stateements from two witnesses and by withholding statements that might have helped Graves.  The current Burleson County District Attorney investigated and concluded Graves was an “innocent man”. A special prosecutor concluded that there was no evidence linking Graves to the crime. Graves, spent 18 years in prison for a crime he did not commit.

 As a society, we are aware that sometimes police officers go bad. We have all seen news reports about police officers who have broken the law.  They are human and like the rest of humanity, some police  officers will break the law. This is no indictment of police officers in general. It is simply a fact that there are those in uniform   who will violate the law.

As a society we often look upon prosecutors as heros, standing up for victims. That is  the typical depiction of prosecutors on television and in the mass media. As  a society, we generally look upon prosecutors in a favorable light. Given our societal predisposition toward prosecutors, it is hard  for us to “accept”  that some prosecutors engage in criminal conduct.  But, if we are to be honest with ourselves, we must admit that, like police officers, there are some prosecutors who violate the law to obtain convictions.  This is not an indictment of prosecutors in general. It is a fact that there are prosecutors who violate the very laws they are sworn to uphold to obtain a  conviction. Sometimes rogue prosecutors willfully violate the law,  hid evidence, and manufacture evidence, to obtain a conviction. Sometimes these prosecutors act more like criminals than prosecutors.  They bring disgrace on those honorable men and women who serve as  prosecutors across our state.

What has  become of the men who prosecuted  Morton and Graves?  What is their punishment for fabricating and hiding evidence?   Have they been sent to jail ,  disbarred or  even hounded from our midst.  No.  Their lives go on unfettered. 

The Morton case  has  demonstrated that  Texas law provides  no real  protection against rogue prosecutors. A rare Court of Inquiry was held  regarding Morton’s prosecutor. While it was informative,  the Court of Inquiry can do nothing to really punish Morton’s prosecutor or protect us from another Morton Travesty.   Mr. Robert Kepple, the Executive Director of  The Texas County and District Attorney’s Association referred to the Morton Court of Inquiry  as a ” Court of Injury”. Presumably, he was  referring to Mr.  Morton’s prosecutor and the fact it might hurt his reputation.  But beyond that, the Court of Inquiry cannot prosecute that rogue prosecutor who  sent Morton to prison for 25 years for a crime he did not commit.

The Court of Inquiry drew a lot of attention about the Morton Tragedy.  And it gave rise to a lot  of ” high talk” about how we needed to “do something” to prevent another such horror from befalling one of our fellow Texans.  It is my observation that people who talk about ” doing something”, more often do nothing. 

 I believe we owe it to Mr Morton and Mr Graves to do our best to prevent any other rogue prosecutor from robbing one of our fellow Texans of decades of Liberty. A failure to directly address the root problem of the Morton Tragedy, would  be a  failure on the part of every Texan. But we Texans elect politicians to go  to Austin to pass our laws. We Texans are not stupid. We know to keep our eye on Austin. We know our  lawmakers are human, like the rest of us, and very capable of making  giant mistakes.

Such is the case with the  Legislature’s  current proposed remedy to the Morton Travesty.  The Legislature with its current proposed  reciprocal  discovery bill, is  failing to directly address the root problem of the Morton Travesty.

The legislature’s proposed solution is: A reciprocal discovery bill.  Among other things the bill would require  Accused Citizens in Texas to tell   prosecutors before trial their defense!  The bill  would also require every Accused Citizen in Texas to tell the prosecutor the names and addresses of all defense witnesses.  This is the legislature’s  proposed solution,  to protect us from  any more Morton  Travesties of Justice.

You don’t have to be a Rocket Scientist or a Brain surgeon  to see that something is very, very wrong here.  I am guesssing  I dont need to spell it out. Most of my fellow Texans have a pretty good nose for BS.  And that is  what we have here, BS.

Mr. Morton was  robbed of  his liberty by a rogue prosecutor.  Unless the Legislature directly addresses the  issue of rogue prosecutors,  Morton will not be the last of us to fall  victim to a rogue prosecutor. The Culprit in the travesty  that befell  Morton (and  Graves) was a  rogue  prosecutor. No one else. That it is an undisputed fact.

My fellow Texans, we  deserve to have our Legislature protect us from the rare, but extremely dangerous rogue prosecutor.  As such,  I ask: Why in God’s name, should the extreme misconduct of rogue  prosecutors ever lead  to any legislation requiring the Defense to do anything?  That makes no sense, none whatsoever.

The truth is quite simple. The reciprocal discovery bill has been on the shelves for a number of years. The proponents of the reciprocal  discovery bill have dusted it off and they are trying to use the Morton travesty to pass a bill that has nothing to do with the Morton tragedy. They are  cynically using Mr.  Morton’s victimization by a rogue prosecutor, to pass  a bill that has nothing to do with stopping rogue prosecutors. That, My fellow Texans is  precisely what  is happening here. It is disgraceful.  To use Morton’s  extraordinary sacrifice, as a basis  to pass a law that diminishes the  Accused Citizens’  ability to defend themselves, is a betrayal of Mr. Morton and all that Texas stands for. 

The recipricol discovery bill needs to die. It’s very utterance in connection with the travesty that befell  Mr. Morton, is wrong.  It’s…. Untexan.

Senator Ellis has sponsored the reciprocal  discovery bill in the Senate. To be clear, Senator Ellis and his staff are most honorable and have repeatedly shown their concern for protection of our liberty. But even a smart Senator, such as Senator Ellis, with full good intention  can be mislead by others, who have  their own agendas.

We are told that we had better be quiet and  accept this bill or it  will be worse. We are threatened and menaced with the names of other Senators who will use this opportunity to make things worse. We are told if we do not accept this reciprocal discovery bill,  Senator Huffman will ride in on a broomstick and burn the Constitution. While Senator Huffman and I dont see eye to eye on much, I suspect as a lawyer sworn to Support the Constitution,  she would not take kindly to being  used as the Scarecrow in the Morton Tragedy.  I trust she will not use the Morton case to burn the Constitution.  Any State Senator who tries to use the Morton travesty to further their own interests or to promote some law and order agenda, will be quickly drawn and  quartered by the media. 

HERE THE FAULT LIES SQUARELY ON ROGUE PROSECUTORS.

If the Evil that befell Mr. Morton (and Mr. Graves),  is to give rise to any legislation, that legislation must be directed squarely at the perpetrators of the evil. To protect our fellow Texans from the evil  that befell Morton , the legislation should be directed squarely at rogue prosecutors. Like  it or not, to fix  this problem we must deal with it head on. That is the Texas way. We dont need anyone from  up north to tell  us how to fix what’s wrong in Texas.  Texans are fair by nature. We see the problem and we will fix it.

Senator John Whitmire has  already  gotten us started in the right direction. He  is wise and recognizes  that to fix the problem we must go right at it.  He recognizes that  we Texans need protection from the rare, but very real rogue prosecutor.   That is why Senator  Whitmire  is on the right track, in proposing a bill that would allow for the filing of ethical grievances against rogue prosecutors.  Let’s hope the law is never needed. But as Woodrow F. Call said, ” Better to have it and not need it, then to need it and not have it”

 We  must  not trivialize this Horror  that was inflicted by rogue prosecutors on Morton and Graves.  We owe it to these men to do everything we can to take prudent legal measures to stop future rogue prosecutors before they hurt anyone else. 

Unless we want another innocent man or woman  to be robbed of his life, by a rogue  prosecutor,  we need to pass two simple laws.  

First, we need a simple law,  that requires Prosecutors to furnish the Defense with police reports & witness statements. Period.

 In most counties, prosecutors already furnish  the Defense with copies of the police reports and witness statements.  From the prosecutor’s point of view it makes sense and it helps resolve cases without trial.  When Defense counsel sees the Prosecutions reports and witness statements, he is  informed of the strength of the Prosecution’s case. Where the evidence indicates the accused citizen will  likely be convicted at trial, Defense counsel will  typically advise the accused citizen to enter into a plea bargain.  This is standard operating procedure  throughout most of  Texas.

Additionally, when provided with offense reports and  witness statements, competent counsel can effectively investigate the allegations.  When  Defense Counsel finds evidence that proves the allegation is false,  Defense Counsel often voluntarily shows the evidence he has developed to the DA.  Fair prosecutors dismiss  cases every single day. 

Finally, there is the Constitution. Certainly an accused Citizen is entitled to know the  accusations against him. But the indictment or information which contains the allegation,  is  typically only a single  paragraph stating the accused citizen’s name and the crime accused.  The indictment or criminal information gives no real detail about the allegation.  The citizen accused faces the full power of the State and the Da’s Office. The prosecutors have an almost endless arsenal of weapons to use to prosecute citizens.  As  Earl Musick notes,   The  Citizen Accused is David to the State’s Goliath.  Basic fairness dictates that the citizen accused ought to know who his accusers are and what they are saying. Only by having the Offense Reports and witness statements does  the accused get to know this basic information.

Providing offense reports and witness statements to the Defense helps to resolve cases by plea bargain or dismissal.  Resolving cases  that dont need to go to trial, saves Texas Taxpayers  MONEY.

Offense Reports and witness statements should be provided to every accused citizen.

  In most jurisdictions in Texas,  prosecutors are already doing this. But this matter is far too important to leave to the   discretion of  any single prosecutor. If Morton and  Graves taught us nothing else, they taught us that prosecutors must be legally Required to provide the Defense with offense reports and witness statements. Passing a simple law that requires prosecutors to turn  over offense reports and witness statements to the Defense will  help protect  us from  rogue prosecutors who send innocent men to prison while keeping their lawyers in the dark.  We are talking about liberty. Not a game. The fair administration of justice supports the passage of this simple bill.

We need a second simple law to protect us from rogue prosecutors.  We  need a  law that states ” that it is illegal for any prosecutor to willfully hid or manufacture evidence that leads to the conviction of an INNOCENT man.”

In making these recommendations it is my intention to directly address the cause of the Morton and Graves’ Travesties of Justice.  It is not my intention, in any way, to interfere with the lawful administration of  justice. 

If we cannot Make things right, by directly confronting the cause of  such  inhumanity in Texas, than I say we do not deserve  to  call  ourselves Texans for  one  more day. We are Texans. I am confident, that if we behave as  We Are Texans, We will Do the Right Thing.

My Blog is entitled ” The Meaning Of  America”.  How Texas responds to the Morton tragedy will  most certainly define the meaning of Texas.

Robert  Fickman, Houston Texas

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