The "Meaning" of America

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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

 Friends- Mr. Earl Musick is a trusted  friend, an outstanding Criminal Defense Lawyer, and a recent  Past President of the Harris County Criminal Lawyers Association. He has been a Criminal Defense Lawyer for 10 years. Earl is   partners with his daughter Joanne Musick.  Joanne is also an outstanding criminal defense lawyer and a recent Past President of the Harris County Criminal Lawyers Association. Before Earl   became a   criminal defense lawyer, Earl  Musick served as a Houston Police Officer for 31 years. Earl was a legendary police officer. As a police Officer, Earl personally arrested a corrupt Harris County  District Court Judge. Earl Musick also served as a Harris County Assistant District Attorney for 4 ½ years. Earl Musick is in the unique position of having served in all three areas of the criminal justice system.  Earl’s word is good as gold.  As the saying goes, “If he tells you tomorrow is Christmas, you can hang your stocking”. With Earl’s Permission I am posting his comments about the proposed Reciprocal Discovery Bill as a Guest Blog. Thank you Earl & Joanne Musick for all   that you do for the cause of  Liberty. We are all in your debt.   Robb Fickman

Earl Musick says:

I am adamantly opposed to any bill that requires the defense to give their witness list to the STATE.  The STATE is extremely powerful.  As a prosecutor in Harris County, I never lost a motion and I won every hearing where I disagreed with the defense motions filed.  Why?  Not because I was a good lawyer, but because I represented the STATE.

Most of the law enforcement agencies have written orders, requiring police officers to contact the prosecutor first before talking with a criminal defense lawyer.  Most officers refuse to even talk with criminal defense lawyers.  The vast majority of jurors believe police officers credibility above other witnesses.  There are several articles written on why officers lie to the courts and when we  review cases we see their lies every day.  Police officers even misrepresent the truth on minor matters that have no bearing on the case.  The bottom line, discovering their names are of no use to the defense bar.

As for most of the other witnesses for the State, they mostly do not want to talk with defense lawyers and the STATE instructs them they do not have to talk with the defense if they do not want to.  We are often able to convince civilian witnesses to talk with us about the case and when they do, we usually learn that the police officer making the report has misrepresented the truth.  The problem we now face is whether we can share that information with the STATE in order to have the charges dismissed.  Last year, I shared such information with the STATE only to have them amend the information three different times, trying to fix the officer’s lies.  When it became obvious his  lies could not be fixed, they dismissed the charge.

 I do not want the STATE contacting my witnesses before trial.  The STATE can be very intimidating and my past experiences with many prosecutors strongly suggest not giving them a list of witnesses I plan on calling.  Almost daily, a defense subpoenaed witness will not appear in court.  When called they usually say, I talked with the prosecutor and they said I did not need to come.  All of these things happen way too often in HarrisCounty and more and more innocent citizens are convicted of crimes they did not commit.  The Supreme Court has sent a strong message that they are serious about Brady.  Brady and the cases that follow give the defense the necessary discovery.  Brady has more teeth than any law the legislature might pass.

I have read the bill and also the North Carolina Statute and I am still adamantly opposed.

 Earl D. Musick, Attorney at Law
Musick & Musick, LLP
397 N. Sam Houston Pkwy E., Suite 325
Houston, Texas 77060
voice    832-448-1148
fax       832-448-1147
www.MusickLawOffice.com

Friends-  I dont remember the year. Maybe it was 2005.  Anyway, the Legislature was considering a  bill regarding reciprocal discovery. The Bill called for the following exchange:

 -Da’s would provide copies of police reports (offense reports) to the Defense.

- The Defense would identify all Defense Witnesses prior to trial and the Defense would identify the Defense Theory prior to trial. ( Kinda like Patton be required to tell Rommel his battle plans).

 Back then the Defense  Bar had some animated discussions about reciprocal  discovery. Things got a little heated.  I referred to the State reciprocal discovery bill as ” A Piece of Shit”. I called it that because that was the nicest thing I could  think to call it. Fortunately, back then the so called reciprocal discovery bill failed to get off the ground and it went away for a while…

Well it’s Back.  Now we are presented with the “New and Improved” Reciprocal  Discovery Bill, aka  House Bill  1426.   This Bill is worse than what was  submitted  8 years ago. Every Texan who cares about Liberty needs to be concerned about this evil piece of work.

Reciprocal discovery is basically the notion of  two equally situated parties in a law suit trading information. It makes sense where people are suing each other for money. It does not make sense in criminal law. In criminal law there are not two equally situated parties. Nope. In criminal law there is the Almighty State versus Joe Citizen.  There is no equality in power.  Notwithstanding the fact the State has every possible edge, every two years some genius in Austin will try to give the State just a little more help. The State does not need the help. The citizens need the help. The citizens need to be protected from the overreaching all powerful state.  HB. 1426 is just one more example of some  politicos  try to out-bootlick each other in the race to garner support of the  law and order fanatics. Neither these politicos or their fanatic pals have any regard for Liberty or the rights of the Good Citizens of Texas. 

HB 1426  is a bad bill and Reciprocal Discovery in the Texas “criminal” justice system  needs to be killed once and for all.  

Under HB  1426, What does the Defense Get? Nothing. We get what we are already entitled to under law. We get exculpatory evidence under this Bill.  Thanks for nothing.  Since  the Supreme Court decided Brady v. Maryland  in 1963, prosecutors are required by law to give us exculpatory evidence. Sure, there are prosecutors like Anderson  in Willaimson County  and Sebesta in Burleson County who ignored their duty under Brady, but its still the law.  This bill gives accused citizens what they are already legally entitled to .  They might as well say, ” hey were going to give yall chins”. Thanks, but We already got chins. We got noses too and we can smell BS and this bill is BS.

But wait, there is more. Under HB 1426 the defense gets any deals that the State cuts with any snitches.  Again, thanks for nothing. Since the Supreme Court decided Giglio v. United States in 1972, the state has been required to give us evidence of any deals they cut with their snitches or rats.  

Under HB 1426  the defense  would get copies of Offense Reports.  In May, I will have practiced law for  30 years.  For all  30 years, Harris County and other major metropolitan counties have had open files. Folks That means  that, we have always gotten to read the Offense Reports. In the last 4 years we have been recieving written copies. So again, thanks for nothing HB 1426. 

It is duly noted that in some small Texas counties there are DA’s who like to play, “Trial by Ambush”. They refuse to show offense reports to defense counsel because these DAs  have no concept of due process.  The State Bar of Texas  needs to have a serious sit down with these “Ambushers of Justice” about their sworn duty to do justice. Hiding information, Hiding Offense Reports is not doing justice. Further,  the patently offensive conduct of these few DA’s, should not be any impetus for a reciprocal discovery bill.  To pass a bill that forces these DAs to do what they should already do, at the expense of the accused, is exactly the worst thing to do.  It amounts to rewarding the bad behavior of a few by punishing the many.  This is not a sound basis for any law, yet it is the basis for this abomination called HB 1426.

Under HB 1426, What Does the already all powerful State Get?  Everything. They get everything.  As Quint said, they get ” The head, the tail, the whole damn thing.” This bill reads like Ken Anderson’s wish list  on how to screw defendants.  Did the “always even-handed thing known as Nancy Grace have a hand in this?  Or were some Nazi zombie lawyers enlisted to help  draft this unholy work?

Under HB 1426, the State gets the names of EVERY  witness the Defense intends to call prior to trial , in EVERY  single trial.  Now that may not sound problematic, but it creates an awful scenario and would give rise to endless pre-trial  State abuse of Defense Witnesses.

Having to identify Defense witnesses prior to any trial would  have a dangerous impact on the ability to Defend the good citizens of Texas. Anyone who has ever tried any case of significance knows that the last thing you want is DA investigators out bullying your witnesses prior to trial. If the Defense has to identify our witnesses prior to trial, Cops and/or DA investigators will be out in force attempting to bully these witnesses into either not coming to court or telling a story the prosecution likes.  This is not my imagination. This is quite real. I will give you an example,

 Several years ago,  Stan Schneider and I defended a Pasadena School Bus driver who had accidently hit a  child. The child died as a result of the accident. The case was in the news quite a  bit. The always lovely  prosecutor Warren Diepram, charged our client with Murder. Stan & I went to trial. The Offense report  had a list of all the high school  students who were on the bus. The students were all potential fact witnesses. I  went to each of their houses and in the presence of their parent or grandparent, I interviewed each student with my investigator. I made repeated trips to their houses, always with parents or grandparents present,  and I asked more questions, answered their questions and built up trust.  Not all of these students wanted to talk to the DAs office. One student witness, I think had a family member who had a bad encounter with some thuggish cops. This student witness made it clear he didnt want to talk to the DA.  This high  student was  interviewed by me with his grandmother’s permission and  with her  present. Afterwards,  he was one of many witnesses we issued a  subpoenae to appear in court.

 We picked the jury and  there was a  break.  The next day I got a call from the grandmother of the student witness. The grandmother advised that immediatly after she went to work, ( like someone was waiting for her to leave),  her grandson the high school student witness heard a loud knock on the door. He was maybe 17.  It was very early , around 630 or 7 AM. The student witness answered the door and he was greeted by Assistant District Attorney Warren Diepram & one or two armed DA investigators. They wanted to come in and have a  friendly little chat. The kid was scared. Who can blame him?  He let them in and then talked to Diepram and his goon(s). He did not want to talk to them. But he was intimidated so he talked.

 After I learned of this incident, I brought it to the attention of Judge Carter. Diepram responded that they had gone out to the witnesses house to serve him with a subpoena and did not mean to intimidate him. I pointed out, that if Diepram was concerned about a subpoena, all he had to do was look in the  Court File  where the Defense Subpoena  Return for that witness and others was on file. The apparent intent of the visit was not to issue a subpoena, but rather for the  goon(s) to intimidate this student  witness who was  favorable to the defense. I calmed the witness and grandmother and ultimately the student  testified.

 Stan and I won that case, notwithstanding the State’s best efforts to bully the hell  out of at least one student witness. In that case, the State knew who the witnesses were because their names were in the Offense Report.  Forcing the Defense to identify favorable witnesses prior to trial, subjects those witnesses to all kinds of potential intimidation by police, DA investigators,  unscrupulous  prosecutors as well as family and friends of any alleged complainant.  Witnesses are always reluctant to come to court.  They are all afraid of the State and the police doing something to them for standing up for the accused. We cannot afford to give the State any more power to bully and  intimidate the few witnesses that have the courage to come and testify for the accused citizen.  Under HB 1426, if the Defense doesnt identify all  potential defense witnesses before trial, the prosecutor can ask  the judge to exclude them. So, if this stinking bill passes, the Citizen Accused will either have to tell the State he is calling Grandma and subject her  to police hounding or the Citizen Accused can keep Grandma’s name off the list and instead risk having her  excluded as a Defense Witness.  Under this horror of a Bill, the Citizen Accused is check-mated either way. 

Under HB 1426, the Defense would also have to turn over to the Prosecution any physical evidence or  documents the Defense intends to offer at trial. The Bill also would require the Defense to identify the theory of defense.  In other words if the Accused told his lawyer that he acted in self defense, the Defense would have to tell the prosecutor, ” My guys says he acted in self-defense” prior to to trial.  Why stop there?  If we are going to give the prosecutor everything, why not require that Defense Counsel  to have the prosecutor present every time Defense Counsel interviews the citizen accused- You Know to keep things balanced or reciprocal. 

Please Fight this Bill. Unless you want the ” criminal” justice system to get more criminal and less just, you need to fight it. There are 150 State Reps in Texas, 31 State Senators and one  Governor who cannot remember 3 things.  Please pick up the phone and call your your State Rep, or State Senator.  If you dont want to call them then email them. Tell them that your a Good Citizen and you didnt send them  to Austin to turn Texas into a  police state. You sent them to Austin to protect our rights, not rob us of them.

 Robb Fickman, Houston
 

Friends-

I have been listening with fascination as the gun debate has grown in our country.  On the one hand we have  4.5 million law-abiding members of the NRA. On the other hand, we have the anti-gun forces who want to limit the number of guns in our country. Since the last school shooting the NRA has proposed the “Model School Shield Program”.  The              ” Model School Shield Program” calls for Congress to put armed guards in all of our 98,817 public schools.  Estimates are that we could put an armed guard in all 98,817 schools  for as little as $4-6 billion dollars a year. 

Wayne LaPierre, of the NRA,  was so right when he testified before Congress on January 31, 2013.  In testimony that was equal parts poetic and brilliant he said,  ” There is nothing more precious than our children.”  I really had never heard it put so beautifully.  Then he proposed the “Model School Shield Program”and having armed guards at every school.

I agree with Wayne LaPierre. In the wake of yet another school shooting and massacre the solution is obviously  MORE GUNS.  I cannot imagine how anyone would not be able to see that MORE GUNS is the solution. I guess some people are just stupid and some people just dont like guns. We are not giving up our guns, Never. As my hero, Ben Hur said, ” OUT OF MY COLD DEAD HAND”. No siree Bob. We are not giving up our guns.  MORE GUNS IN AMERICA, IS THE ONLY SOLUTION.

The fact is that every law-abiding citizen and suburbanite needs to  be as heavily armed as possible.  The almost Academy Award winning Documentary  “Red Dawn” or the extraordinary remake reveal  true life threats. As these documentaries reveal, if the Cubans dont invade, then the North Koreans are sure too. If  for some bizarre reason neither invades, then we are guaranteed the Federal  Government with black hawk  helicopters in cahoots with the UN will surely invade. If you dont believe me, then ask Timothy McVeigh. If you dont believe Timothy McVeigh, well…

Either way, it is all the same difference. The Obvious solution is MORE GUNS. My only concern is that, as a result of political pressure from “the liberals”, Wayne LaPierre and the NRA have not gone far enough in their proposal. So I am making my own proposal: ” Robb Fickman’s All-American  Shield Program”. My Program will protect All-Americans!!!

Here is  how the “Robb Fickman All-American Shield Program” will work:

1.  Schools- It is one thing to have an armed guard at the school, but what if he is in the bathroom or out eating a candy bar?   Under the “Robb Fickman All-American Shield Program”, I propose every teacher, administrator, custodian, lunch lady and bus driver  carry a gun.  These guns should be strapped to their body at all times.  I am not Pro-Choice, except for when it comes to guns. So, under my plan, every teacher, administrator, custodian, lunch lady and bus driver will get to choose their own gun. For instance, the assistant principal may be more at ease carrying a shotgun and wearing a bandolier, while the kindergarten teacher may feel more comfortable with a pretty little 22. calibre.  Let each adult in the school carry the weapon of their own choice and encourage them to carry the weapons in the open. Discourage concealment. That way crazy people will be less likely to attack and also the kids will just get more comfortable being around guns.  Also,  I see no reason for the guns to be holstered.  To be at the ready, it makes more sense to have the gun in your hand. So if a teacher can write on the blackboard with one hand and hold their loaded  45. caliber Smith & Wesson in their other hand, all the better. ( This might also cut down on kids misbehaving, back talk, tardies etc)

Kids- I said it is important for our kids to get used to being around guns at an early age.  The NRA  has target video games for kids that are fantastic!!!  The NRA’s ” Practice Range” which was rated for ages 4 and up allows for kids to get comfortable with an AR-15.   I think this is terrific and I am proud of the NRA for making this kind of game available to every child in America by making it free on IPhone and IPads. Great Job WAYNE!!!!   It is important that our kids get used to firing and get to be good shots. Under the ” Robb Fickman All-American Shield Program”, I propose that every child, in every school in America carry a gun. Kids as early as 4 years old can get NRA expert instruction on shooting.  All they have to do is watch the NRA ” Practice Range” video and they will be shooting great in minutes. Why do we need to arm every child in American?  Well, I will tell you why. What happens if a teacher goes to the bathroom and a lunatic shows up?  Well under my plan, that  lunatic will be looking down 30 barrels and eating lead. It we arm every child, each school will become like a military base with tons of guns and ammos. And we all know crazies hardly ever shoot up at military bases. So there it is. Every Pre-K  through Senior in High Shool will carry a gun of their choice. I do think that since we are talking  children and this is America and not Red China,  we must show some respect to parents. So I propose that parents help their kids choose the piece that is right for their child. Little kids might want to carry  a deringer.  But high school boys can easily carry semi or fully automatic guns. ( I forgot to mention, under my plan,  all good Americans will be allowed to carry fully automatic weapons.)  As an added bonus, because  they are under-age, there will be no need to run background checks on any school kids. So as soon as Congress makes the ” Robb Fickman All-American Shield Proposal” the law of the land, kids can immediately bring as many guns as they can carry to school.  This will  absolutely make schools much safer. Again, MORE GUNS is the Key. ARM every child and I guarantee schools will be a trillion times safer.  Some people have asked me at what age we should arm children? Well, I guess that depends on how you define life. Under my proposal all children, from the moment they are children should carry guns.

Babies in the Womb- I recognize that babies are children  at the moment the  father ejaculates.  So Under the ” Robb Fickman All-American Shield Proposal”,  all babies in the womb will be encouraged to carry guns.  Some people have asked me how I would arm babies in the womb?  It is not so very hard. If mankind could learn to live side by side with dinosaurs, then surely he can figure out how to arm babies in the womb.  With modern technology, little tiny guns can be injected into the womb and placed right into the babies little tiny hand. That is what I want for the  safety of our children.  This way the babies in the womb truly do get comfortable with the gun and they are born with the notion the gun is simply an extension of themselves. Why is it important to have all babies in the womb armed? I will tell you why!!!  What happens if some lunatic walks into the nursery and the assigned guard has gone to have a smoke?  Where will we be at then?  We will be in big trouble that is for sure. Those babies need a fighting chance and my plan gives them that and more!  If  Congress implements my plan and allows all babies in the womb to be armed, then at birth theses Babies will be ready for a firefight.  So, under my plan if the lunatic walks into the nursery while the guard is out, the lunatic will walk into a field of fire. Babies that are armed and know how to shoot will make every nursery in America safer. 

These are just the first parts of my “Robb Fickman All-American” Shield Program”. Very soon I will roll out my plans to arm all dead people in the event they come back as good zombies.  We dont want a scenario where good zombies are left at the mercy of bad zombies. That is why we will have to arm all dead people who are good.  I will also soon roll out my  plan to arm every single pet in America. 

Keep up the Good work Wayne LaPierre.  Please let me know if you have a book of poetry I can buy. Thank you.

Robb Fickman, American

Friends-   How we treat juveniles in this system is as disgraceful as anything I have ever seen. 

 It is one thing to provide ineffective assistance of counsel to adults. It is an entirely different and more odious thing to provide ineffective assistance of counsel to Children. I will  defer to the reader to opine whether any children in Harris County were likely to have recieved ineffective assistance of counsel in 2012 based on the Auditors Statistics. I thank my colleague, lawyer and civil rights advocate Randall Kallinen, for obtaining and sharing the Auditor’s Statistics with me. The link to the statistics is below.

The National Advisory Commission on Criminal Justice Standards and Goals recommends no more than 200 juvenile cases a year.   In 2012 the Harris County Auditors Records show that at least 5 lawyers handled over 200 juvenile appointed cases. This does not  include their other appointed cases or their retained cases.  The lawyers and their reported appointed Juvenile cases for 2012 are as follows:

Geraldo G. Acosta         284 Juvenile cases, handled in 291 days;

Jerry Michael Acosta  301 Juvenile cases

Michelle Bush              282 Juvenile cases

Oliver W.  Sprott Jr.   255  Juvenile cases

Mark A. Castillo           229  Juvenile cases

Query:  Mr. Geraldo Acosta, how do you handle 284 juvenile cases  in 291 days?  I think we all know,  but I would be happy to publish your answer.

Robb Fickman, Houston

2012 Juvenile records
https://docs.google.com/file/d/0By1E7SWXMpKnZng1QWs0OTN4ZVE/edit

Full Disclosure:  Windi Akins is one of my 8 office-mates. She was paid $64K for one case.  That was a murder case involving a  girl whose father was sexually abusing her. The child shot her father in the back. Windi worked on the case for 3 years. Motions took 2 weeks. Trial lasted 4 1/2 weeks. Windi won the case.  Windi won  HCCLA s  2012 Lawyer of the Year  Award for her outstanding work on this case.

Friends-

I readily admit that I am an outspoken critic of the criminal justice system.  I think it our duty as participants to do our best to make the system better. To me, that means I should do my best on my cases and I should speak honestly about problems I see in the system.

To be sure, not everything about the system is bad or wrong. In fact, I would say that many parts of our criminal justice system are outstanding.  I would also say that many participants in our system do an outstanding job. My ongoing criticism of the system  should never be interpreted as a complete rejection of the American Criminal Justice System.  I dont reject our system, I just want it to be as fair and impartial as I know it can be.

It has been suggested that I just dont like judges.  That makes me laugh, because I like people, and I like  most judges that I know.  I am critical of our State and County Court judges for some of the policies they impliment and perpetuate.  That does not  mean that I personally dislike these folks. I  like most people, and I dont discriminate against folks just because they wear a robe to work.

I think being a good judge must be very hard. President Abraham Lincoln said if you want to test a man’s charachter, ” Give him power”.  I certainly agree with President Lincoln. Over the years we have all seen  judges who have failed the charachter test. We have all  seen judges who let the power go to their head.  We call it “Robitis” or the ” Dreaded black robe disease”.  We have all seen it and we have all suffered it.

One is imbued  with  enormous power on the bench. To be a great judge,  one truly must be a great person.  I have known  good and great judges in my life.  They have served as an inspiration to me in my practice. They have also served as a measuring stick, when I am in front of a not so great judge. 

I will give you an example of a great Judge.  It is easy for me to talk about him as, I tried my longest case ever in front of him.  The trial was in 1994 and I was 37 years old.  It was a Federal drug conspiracy case involving 10 co-defendants. The trial lasted nine weeks. My client was charged with 5 federal drug counts. At the end of the trial my client was acquited on all  counts.  I recall in celebration, as he heard the ” Not Guilties”  announced, he poured a cup of water his head. 5 other defendants were acquitted as well.  I learned a lot during that trial.  As much as anything, I learned what it took to be a great judge. I learned this  by watching the Honorable John Rainey.

Judge Rainey is a Federal District Court Judge sitting in Victoria. I rarely get to appear in front of him anymore. But in years past, I  had several trials in front of him.  Judge Rainey was always pleasant.  He was patient with all  of us. He listened to our arguments and  stayed open-minded. He was confident in himself, but never arrogant or demeaning to any of  us.  He kept a good-sense of humor.  He knew the law and if he didnt know it, he took the time to learn it before ruling.  Finally,  he was  fair. He did not involve himself in the case. That is to say, if he had a side, it certainly was never apparent. He let both sides try their case and he never tried to sway the jury.  In my opinion- for all the reasons I just stated, Judge John Rainey is a great judge.  I believe he is a great judge because, he is a great man.  He has humility. I think humilty is key to  greatness.

We have great and good judges in Houston. We also have  ”the other kind”.  I hope more judges, especially new judges in state and county court will try more to emulate Judge Rainey.  I also hope that the great and good judges that we have within the Harris County Criminal Courthouse, will join me in my efforts to reform  the system. 

Robb Fickman, Houston.

Friends - 

 We must reform  the disgraceful  Court appointment system in Houston, Harris County Texas.

The Judges in Harris County  are  human beings which means, notwithstanding the robe, they can  make mistakes.  When  a group of judges, acting in concert,  implement  or perpetuate  an appointment system  that  makes something other than justice, the number one priority,  change is needed. I am here to tell you, change is Needed. Not later, but now.

In Harris County,   the top priority in many courts, ( not all),  seems to be the size of their dockets. The judges are provided with a bar graph that shows how many pending cases  they have as compared to the other judges.  Many of the judges seem to take this bar graph as a rating system on how they are doing as judges. Restated: Over the last 30 years, I have observed that many of our state and county criminal court  judges  seem to rate themselves based on the size of their docket. Of course the size of one’s docket is relevant, but it has limited  bearing on the quality of justice administered in the court.  Neither a large docket, nor a small docket really says much about the fairness of the judge. Does it?  Yet many of the judges seem to have embraced the  shared  agenda of moving cases as fast as possible in order to maintain a small docket.  The judges cannot move the cases on  their own.  They need lawyers who are capable and willing to move cases at the rate that the judges want them moved if the judges are to maintain their desired  docket sizes.   Thus, these  judges,( not all),   seem to find lawyers who will do their biding and   move cases as fast as possible.  

For  as long as I can remember,  Favored lawyers, who are known to move cases, have always received preferential treatment when it comes to receiving state and county court appointments.    By quickly  moving cases, these lawyers  are serving the judge’s interest in their  docket.  By quickly moving cases, these same lawyers are  handling,   what by all accounts would appear to be ridiculous case loads. 

A lawyer’s duty is to zealously represent his client and to Support the United States & Texas Constitution.  Nowhere in our oath as lawyers do we swear to support the “ judicial  docket races”.   Yet that goal seems to be encouraged by many judges.  Lawyers who move cases at light speed are rewarded with mountains of cases; While lawyers who do not move cases fast enough to please some judges, are left  on the sidelines.

The  American Bar Association(A.B.A.) recognizes that there are only so many hours in a day. And no matter, how great a lawyer  is or thinks he is,   there  are only so many cases a lawyer can be expected to handle.   At some point, an extremely large case load,  logically starts to negatively impact and impede a lawyer’s  ability to provide effective assistance of counsel.   The A.B.A.  has suggested standards of maximum caseloads for criminal defense  lawyers.  The A.B.A.  recommended maximum caseloads for a criminal  defense lawyer  handling only felonies is , no more than  150 felonies per year.  

A caseload of 150 felonies a year,  is  by any standards a heavy caseload. That’s 150 clients to interview and 150 defenses to investigate. While most cases may end in a negotiated plea agreement, even those cases  should  require some work in order to get the best possible deal for the client.  So no matter the outcome, whether it is a plea of guilty, a dismissal, or  a trial,   each case requires a certain amount of time; that is if the lawyer is attempting to provide effective assistance of counsel. No doubt, every case is different. In my three decades, I  am sure I have on rare occasion  had felony cases that only took  a few hours and I have had felony cases that have lasted for years and  taken hundreds upon hundreds  of hours, even before trial.

As the recognized national standard is no more than 150 felony cases per year,   why would any  lawyer  accept    more than 150 felony appointments  in a  year?  I can think of only one reason and its mostly green.  More to the point,  Why would any  courts appoint any lawyer to more than 150 felony cases per year?  If the judiciary, which took an oath to uphold the  Constitution, is appointing lawyers to more than the recommended 150 felonies per year, isn’t  it fair to ask them why they are doing that?  If the intent is to provide effective assistance of counsel, then it makes no sense for the Courts to give a lawyer more than 150 felony appointments a year. 

The Texas Indigent Defense Commission put together a report on juvenile, misdemeanor, and  felony appointments in Harris County. The cases were disposed of in FY 2011, as noted by Harris County Justice Information Management System. (JIMS). 

Statistics are by their very nature suspect.  Mark Twain said, “There are lies, damned lies and statistics.”  I agree with that.   Nevertheless,  we live in a world of statistics.  Some statistics shed light on the world that we occupy. I am all for shedding light on the criminal justice system ,even if those who are in charge of the system prefer that no light be shined. With that in mind, I am again posting the Texas Indigent Defense Commission  FY 2011 statistics for Harris County. You will find that list below.

I urge you to look at the list.  The  numbers are truly shocking.  To simplify it,  I have even done the math and it is indeed very, very ugly. Disgraceful, is frankly too kind a word to describe the Harris County Court Appointment system.  It is far beyond disgraceful.  Consider the following as  just one example of this system’s ” virtues”.  This system that  continually victimizes the poor and minorities among us:

TEN LAWYERS HANDLED OVER 3500 FELONY CASES

  In Harris County Texas, In Fiscal Year 2011, Ten (10) lawyers   handled  a whopping  Three Thousand Five Hundred and Seventy Six (3576) Felony   Cases!!!!!    All of these lawyers ACCEPTED  more than double the ABA  recommended 150 Felony appointments a year.  All of them had OVER 300 Felony cases in one year. The highest was 463 and the lowest, on this list had 306 cases.  The ten lawyers handled an average of  357.6 felony cases each. 

One  might argue that a lawyer can provide effective assistance on 357.6 felonies per year.  That is right… one  might argue that.  One might also argue that the moon was made of green cheese, or the earth had a caramel flavored center, or that the sun rose in the West and set in the East.  Arguing something does not make it so.  I am sure that those  who accepted & handled  more than 300 felony appointments in FY 2011,  by necessity will  argue that they provided effective assistance of counsel, if not outstanding counsel. Those judges that appointed these same lawyers to handle more than 300 felonies in 2011, by necessity will also argue that the lawyers did a bang up job.   

In my  opinion, based on my many years of experience,  no lawyer can provide effective assistance of counsel on over 300 felony cases a year.  The American Bar Association would appear to support my assertion. 

  The system is wrong and it must be changed.  The disgraceful  system may be seen by going to the link below.  

https://docs.google.com/file/d/0By1E7SWXMpKnRUVydEw3Um1zUW8/edit

I  will stay on this issue until  this very wrong system is made right. I believe it will take a change in the law to right this wrong.  I believe the appointment power needs to be put in hands that are more  “ neutral and detached” than those members of the  Harris County Judiciary who have created  and/or perpetuated this nightmare.  It should not be too very hard to find some competent professionals who are more ”neutral and detached” than those who have made this nightmare a reality.    

God Bless Texas. God Bless the Good People of Houston, patient as they are.  

Robb Fickman, Houston.

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 Friends - 

 We must do away  with the ugly appointment system in Harris County. Good people like  State Senator Rodney Ellis and Past HCCLA President Jack Zimmerman, as well  as  others worked hard to pass this Act.

The problem is that, notwithstanding the language of the Act, the problems in the Court appointment system persist.  In fact they may even be worse. What happened is simple: the Harris County Judiciary essentially ignored the intent of the Fair Defense Act and continued to do things their way. The Judges in Harris County control the Court Appointments.  We have 22 District Court Judges and 15 County Court Judges and they each continue to control how appointments are made in their court.  This is how it has been for the last 30 years I have been a lawyer and  it must stop.  The time for it to stop is Now!

In  my opinion, most of our State and County court judges are good people. Personally, I like most of them, and they at least act like they like me.  Individually, most of them try to do the right thing.  But they are human beings which means, notwithstanding the robe they are  capable of making mistakes. When you are a judge and you and your colleagues make a mistake and you all repeat that mistake, over and over, the damage caused by that mistake is magnified. The result is  a very ugly picture, a very ugly criminal  justice system.  A criminal justice system that punishes people for being poor. That is wrong and it must  stop Now.

The Harris County Criminal Appointment system is controlled by the judges. It is their creation and it is a wretched creation.  Favored lawyers who are known to move cases are given an obscene number of court appointments.  Lawyers who work hard on cases, who do their job are given a much smaller number of cases.  The result is a small group of lawyers, handling an exceedingly large number of cases.  Likewise, the result is a large group of lawyers,  who are competent, are not given enough cases.  This is not a matter of opinion. This is a matter of fact. The fact is demonsrated by the link that I am providing. Look AT IT!! It will show you lawyers that are handling 2, 3 and even 4 times the national recommended number of cases.

There are only so many hours in a day. No lawyer can provide adequate assistance to this many clients. So one may safely presume that in Harris County many lawyers are not providing effective assistance, simply as a result of  time constraints.  Restated: By perpetuating this system, the Judges in Harris County, each in thier own way are contributing to institutionalized ineffective assistance of counsel by the lawyers who are clearly handling too many cases. Would you want your family member represented by someone who moved 400 cases, 500 cases, 600 cases, 700 cases, or 800 cases a year?  NO you would not. These numbers, which occur in Harris county all exceed the number of cases recommended by the American Bar Association.  That is not some lefty group. That is the staid American Bar Association. They are conservative by nature, yet our appointment system, as it exists does not even come close to their recommended case levels which are high.

The Fair Defense Act was the Judiciaries chance to do things right. They have failed. They are making no move to change this egregiously wrong system.  If no outsiders intervene this system will go  on and on and on…  My post and those that follow will be my attempt  to movivate  my Fellow lawyers,   Community leaders, Legislators, The Harris County Criminal Lawyers Association,  and other stake holders need to put an end once and for all to this system. The  legislature is in session.  Laws can be passed to change this Now.  We need not allow the disgrace to go on.

An independent Agency needs to be created. That agency needs to be staffed by individuals who are knowledgeable and professional. That agencies mandate should be to make all state and county appointments and to implement the Fair Defense Act. Such agencies exist in other jurisdictions.  In Texas their is such an agency in Lubbock. San Mateo, California has a national model, that we can follow.

I love Texas, and I love Houston and I love my fellow Houstonians. I do not love our State & County Court appointment system. Our Judges are good folks, but it is past  time for them to  get out of the court appoinment business. In federal court, the District Court Judges do not make  appointments. Appointments  are made by clerks at the magistrate level who have no connection to the trial court. 

An independent agency making the appointments is what is needed. The agency would not cost much to run.  Staff could be drawn from existing personnel.  A trusted person, known for their fairness could be put in charge.  Former Judge Caprice Cosper comes to mind. The Public Defender would have no control.  A Board of Trustees could be put in place, comprised of stakeholders and respected appointed counsel, to oversee the agency, to make sure it was operating properly.

And this is very important: I do not advocate reducing the number of private appointments made.   There should not be one less appointment. I advocate a redistribution of the appointments to qualified appointed counsel.  When one lawyer is drawing work for four lawyers that is too much.  The clients suffer.  Those cases need to be given to the good lawyers who are not recieving adequate appointments. If the appointments are fairly spread out amoung our many qualified private counsel, the system will provide better representation to the indigent defendants. And Good court appointed lawyers will be given work, rather than watching other lawyers handling 3 and 4 times the number of cases they should get. 

Indigent defendants  have suffered enough.  Today I am drawing a line in the dirt. The system as we know it must stop.  The judiciary has proven that they need to divested of the power to make state and county appointments. Their creation, as seen in the data is beyond shameful.  The time for tweeking is over. 

Fundamental change must occur. The legislature is in session. I call on ALL who care about our justice system to stand with me, and  my colleagues.   The system is wrong and it must be changed.  The disgraceful  system may be seen by going to the link below.  

https://docs.google.com/file/d/0By1E7SWXMpKnRUVydEw3Um1zUW8/edit

I am  fully committed to this action.

 God Bless Texas.

Robb Fickman, Houston.