“Out of the Wreck I Rise”

The way I met Larry* is part of the story itself.

I had just passed the bar and started a practice with my best friend since high school and all-around awesome guy, Nick. As an aside, you wish you had a friend like Nick. He’s always got a harmonica with him and sometimes he just busts it out and plays a bluesy chord. He also knows the best Chinese buffets in Houston and the surrounding areas. The decision to start our practice was easy- I browbeat Nick over a series of increasingly tasteless cocktails and finally he submitted. Figuring out what to do next was pretty hard. Neither of us really knew anyone in criminal defense, and the world of practice is wide and wild for two mewling young lawyers set on fighting injustice and looking cool doing it.

I contacted one of the only professors in law school I liked and trusted, Ray Moses. Let me pause here to say something about Ray Moses: Ray Moses is the kind of law school professor you remember for the rest of your life, whether you loved him or hated him. I loved him. He would roll into class, whistling softly through his teeth, with a utility cart containing a huge bucket marked “OFFICIAL US MAIL “ and a mason jar full of water, and then he would blow my tiny mind.

I contrasted him favorably with Gerald Treece, another professor at that school who frequently made his administrative assistant come to class with him just to carry his soda and call attendance for him, and then held forth on irrelevant personal bests for the better part of a class period while I sat, furiously calculating how many dollars an hour I was paying this laughable toad to extoll his own virtue through his ill-fitting dentures.

I took every class Moses offered and still frequently utilize both his vast website and the invaluable materials he provided us during those classes- including hundreds of template motions that saved my skin when I was practicing in a tiny place very far from home with few resources several years later. Also, if any of my dear readers ever come across one of the rare copies of Moses’ out-of-print criminal law handbook, “Guns and Moses,” please contact me post haste. But I digress.

Nick and I went to see Moses. “I haven’t practiced in a long time,” he said, looking out over the patio where we sat on top of the school. “But I was a prosecutor with a man who is now a judge, Michael McSpadden. He is a good guy. You might want to reach out to him and one of the attorneys who works in his court a lot, Chuck Hinton.”

I had not much idea what to do with this information. I felt too strange just showing up in court and introducing myself, everything still seemed too mysterious for that.  I sat down and, with my lovely penmanship, perfected by hours of tedious practice while pretending to listen to Gerald Treece, I wrote the judge a letter. I told him that I had been Moses’ student, and that my law partner and I were at something of a loss. We would love to come and observe in his court one day, and would love to make his acquaintance. I wrote on girly, floral paper and hoped the note would look enough like personal correspondence that it might get to the judge himself.

Two days later, Judge McSpadden called my cell phone. “Anyone Ray Moses sends my way is alright with me,” he said, and invited Nick and I to meet with him and Chuck Hinton in chambers the next week.

If you’ve never appeared before Judge Michael McSpadden, you are missing out. I like and admire him very much, and feel like he tries his best to mete out true justice, though he and I might disagree about what that means sometimes. His courtroom is one of the more formal ones, and he expects attorneys practicing before him to show an old-fashioned respect for the institution and the serious nature of proceedings. Personally, he is warm and kind, and anyone in his courtroom will notice his affection for Native American artifacts and paintings.

Judge McSpadden welcomed us into his chambers and, after we chatted amicably for a few minutes, he called in Chuck Hinton and asked Chuck to let us sit with him on an upcoming trial. Chuck walks and talks fast, and Nick and I liked him instantly. He told us he had an upcoming  Aggravated Sex Assault of a Child trial, and we were welcome to participate in as much of it as we’d like.

And that, dear readers, is how I got to meet Larry, the defendant in Chuck’s trial. Chuck asked us to meet with him at the courthouse on his next setting. “This case has been pending for over six years,” Chuck confided. “Sometimes that’s the best you can do for your clients. He’s out on bond and living with his family and putting this off was the best thing for him. But now we’re really going to have to go to trial.”

The allegations were horrible. As we paged through discovery prior to meeting with Larry, I started to draw conclusions despite my bleeding-heart sympathies. Larry’s three stepchildren accused him of brutal, violent rapes. Their mother, a struggling alcoholic, had divorced Larry in the years since. We ran through pages of words. “Rectal tear.” “Behavioral difficulty.” “Post-Traumatic Stress Disorder.”

Larry was charged only with the assault on the oldest child, who was five when the alleged assault took place, and was now fourteen and living in a punitive juvenile facility after he had burglarized several homes. The little boy had the same name as one of my cousins, Caleb*, and I imagined him as the same kid: Caleb in the back yard of my grandparents’ house, teaching the other cousins dirty words;  Caleb with a long, dirty “rat-tail” hairstyle and bare feet in the trailer his parents lived in, with holes in the floor and taxidermied raccoons on the walls; Caleb looking stricken and defiant when his young harpy mom, my aunt, bellowed his name across the grocery store too loud and too many times, out of irritation more than concern. And now, in my mind, little Caleb with snot dripping out of his nose, running away from a monster who I knew would catch him and rape him.

We looked through the papers quietly, and put them away before Larry came in. I was struck by how big he was. His neck was huge and red, like a tree-trunk on an itchy tree.  I shook his hand and felt like I couldn’t grasp all the way around his knuckles, like my hand disappeared into his giant paw. Had I just shaken hands with a child molester? Had these fingers pried into the genitalia of small children? How do I process this? How do we smile and pretend like this is a business meeting, same as if we were meeting to discuss a contract to buy wallpaper or a bank loan.

As we started talking to Larry I started to believe him. He told us the story of the years of hell with his crazy ex-wife. The troubled kids. The ex-husband, the father of the kids, who took them every weekend and hated Larry. Larry’s own adult children, who loved him and showed up to all of his court appearances. Larry’s trim and bright new wife, an adult-education specialist with two kids of her own and a clear love for Larry.

I thought about how rare the inclination to sexually assault very small children really is.  Assaults on adolescent children, or post-adolescent teens, are much more common than the infant/small child full-on assaults. Reread the reports. “Rectal tear consistent with constipation.” Don’t kids with alcoholic moms often have behavioral problems? Wait…biological dad had the kids every weekend? And never noticed a mark or a bruise on them after they’d been violently penetrative-ly raped by a huge man days before? Everything is always so complicated, dear friends.

Things did not add up.

Chuck did all the heavy lifting at trial. Nick and I sat next to Larry, talked to his family, tried to answer their questions, but we were really too green to do much other than watch and learn. Larry’s pretty wife sat in the back of the courtroom, and so did his adult children. They watched urgently, fervently, as if their will alone could push the jury into returning a not-guilty verdict. Finally, the jury went out to deliberate.

“Sometimes, when there’s not much to do at times like this, I just go back and read through the Code of Criminal Procedure,” Chuck said. “Lawyers don’t do that enough, really.”

Hours passed. Finally they called us in. I felt sure that the jury would see through it all- even through the crocodile tears of the prosecutors who wept during their closing arguments in a dramatic display of outrage and call to arms. Judge McSpadden asked Larry to please stand. With all of the noise and testimony and argument over, behind us now, it felt like such a huge thing. Out of the wreck I rise.  Nick and I stood on either side of him, and I remember the feeling of that moment with my hand on his broad back. I could feel his legs shaking, his shirt sticking to his clammy skin. There is not much anyone can do for someone in that situation. The verdict was Larry’s alone. But no one should have to hear news of such gravity, whether bad or good, without another person standing with them.

I stood next to him when he was pronounced guilty, and again two days later, as he was sentenced to life in prison. I remember the long, slow breath that he exhaled in those moments, and the ragged, choked sob that came from his pretty wife in the gallery. I held her later that day on the courthouse steps, as she sobbed to me that she was pregnant.

I still believe that Larry is innocent, and so does Nick. Chuck appealed the conviction and Larry was granted a new trial, on grounds too complex to really get into here, but doubtless stemming from Chuck’s constant perusal of the Code of Criminal Procedure over the last many years. The grounds were righteous, and, from what I understand, Larry, still incarcerated, awaits his second chance.

I think of him often. I wonder how old his baby is now, and how his wife is doing.  Nick and I talk about it from time to time, even several years later. I think of him when I start to develop conclusions about my clients based on offense reports and medical records and things that other people have written. I hope that he is doing as well as could be expected. I hope that his pretty wife stood by him through this horrible season of life. And I hope that the next lawyer who stands next to him on that last day of trial walks out of the courtroom with him and into the sunshine. Out of the wreck.

We don’t win all the battles, friends, but you never get two scars in the same place.

 

 

 

*Of course, names have been changed.

So We Fought

 

I was recently in trial on a difficult case.  It was a felony DWI, so the jury knew my client had at least two priors from the get go.  The DA, a long-time prosecutor, mentioned that in Voir Dire at least 15 times.  Truth be told, it was not just my client’s third DWI, it was actually my client’s sixth DWI since 2009.  But, my client (who we can call James) wanted a trial.  So we fought.

James had a tough case.  He was accused of running a police officer off the road late at night, on video.  He was accused of driving north in south-bound lanes for more than a mile.  He was accused of registering a BAC of over .20.  He was accused of urinating in his pants in the police car after being arrested.  James was accused of fighting with the nurses who drew his blood.  He was accused of unloading a stream of expletives that would make George Carlin or Sam Kennison blush.  He was accused of having whiskey and beer in the car.  Worst of all, this was all on video.   James was offered twelve years and then, after a lot of negotiation, eight years in prison.  We refused the offers.  So we fought.

Thanks to some good lawyering in the past, James was only looking at one enhancement despite this being his fourth felony arrest.  His first felony was reduced to a misdemeanor, the second resulted in probation and the third led to two years in TDCJ.  Here we were, with a tough case, worse facts and a man seemingly out of breaks.  He insisted on a trial.  So we fought.

We picked a jury during a tornado.  I was soaking wet standing in front of the venire.  We got a decent jury, despite them being told over and over about the jurisdictional enhancements.  We started testimony right after that. The first witness was the only officer who did the Standard Field Sobriety Tests.  He was very honest and very likeable.  The deputy told us this was the second time he had ever done SFST’s and that is was likely he made several mistakes.  He was very well received by the jury.

The second deputy was another matter.  He was not certified to do the tests, was cocky and hostile, and had a hard time finding the truth.  He insisted my client was unsteady on his feet.  After watching the video for more than ten minutes without so much as a shuffle, he would not concede his mistake or lie.

There is nothing really exciting about the rest of the trial.  The chemist testified and there were no facts for retrograde extrapolation.  The jury deliberated for about 90 minutes before they reached a guilty verdict.  This was not much of a surprise.  I spoke to several jurors after the verdict and the horrible driving, especially on video, was critical.  They ignored the SFST’s and were split on the blood, but the driving was too much to overcome.

We elected to go to the court for punishment.  We had decent mitigation.  My client started drinking after the man who raised him, who he was named after, passed away suddenly in front of my client.  All his legal trouble, all 6 DWI’s, were after James’ grandfather died.  The DA asked for twenty years and a $10,000 fine.  He challenged the judge to “bridge the gap” between James and the community.  I argued for leniency.  The judge sentenced James to six years in prison.

There is an idea that “winning” is a fluid concept on this side of the table.  Often, we have terrible facts, caught on video even.  We have clients with difficult attitudes and worse criminal histories.  We fight DA’s and judges.  But, beating the offer was satisfactory to my client.  He knew we had bad facts.  He knew he had numerous priors.  He knew what the video looked like and what the police testified to, and he knew that we did what we could with what we had.  He wanted the fight.

So we fought.

“You Have A Call…”

**Editor’s Note: “War Stories” is a new feature where experienced lawyers walk us through some of their most memorable cases. If you have a case you would like to submit to War Stories, please email Allison at tallisonjackson@gmail.com**

“You have a call.  It’s Sister Helen Prejean,” said my assistant.

Without thinking, I replied, “From the movie?”

I was familiar with Sister Helen.  I had read her book, Dead Man Walking.  I saw the movie the day it came out and even got a poster.   I hung it in my cubicle in my first job as an inmate lawyer for the Texas prison system.  As a life long Bruce Springsteen fan, I listened to his song “Dead Man Walking” hundreds of times.  But I never imagined I would be talking to Sister Helen Prejean.

“We need your help,” she told me.  A woman, Cathy Henderson, needed a Texas lawyer to help the civil lawyers from Philadelphia and San Francisco representing Cathy.  “There’s an execution date,” she told me.  I knew of Cathy’s case.  It was legend in Texas for the abuses heaped upon her first lawyer.  It was over a decade old and I was not interested.

I told her, “Sister, I can’t.  I’m a single mother and I work in Houston.  My son is in 1st grade.  The case is in Austin.  I can’t do it.”  She told me it wouldn’t take much of my time because there was an execution date. As the conversation continued, I could not say no to her.  Some residual Catholic guilt made me say yes.

And so began an eight year journey determined from that fateful call.

When I came on in the Spring of 2007, the firm of Morgan Lewis was handling the case.  We had a hearing date for a stay of execution.  I drove to Austin and steeled myself for the next morning.  I had never seen a request for a stay of execution granted.  I can only vaguely remember the argument – except I can still see myself standing and telling the judge, “You can do this.  You have the authority to do this.”  I read him the statute I had handwritten on a yellow tablet.  He granted the stay.  I never expected that.

He gave us time to develop, what was then, groundbreaking legal work in Texas.  We got to re-evaluate the science in her case based upon new scientific developments in biomechanics and short-distance fall.

Working with Morgan Lewis was unlike any other capital case I ever worked on.  There was a team.  Their legal acumen was unparalleled.  We had an experienced investigator.  He was relentless.  The firm paid for experts.   Through the next year we had a true equal battle of the experts – physics professors, pediatric forensic pathologists, forensic anthropologists, and more.

In and out of appellate orbit we soared and finally, the win – December 5, 2013.  By now, I had given up solo practice and was working as a public defender in Houston.  I still hung on to my remaining private cases, always waiting to find out what the highest criminal court in Texas would do about Cathy’s case.

My supervisor came into the office on that December day and said, “Congratulations.”  I asked what he was talking about and he told me the Court had decided to grant Cathy a new trial.  I wept. I was so overcome, I couldn’t even get my fingers to work to call the Morgan Lewis lawyers.  I got an email forwarded to the group from Sister Helen:

” I can’t stop thanking God for you and George and Molly and Jani and Joe. Because of you Cathy lives. She’ll get to hold her granddaughter in her arms.  I can’t stop marveling at hearts like yours on fire for justice. Will you please pass this on to the team? When all’s done, I invite you to New Orleans for a rip-roaring, no-hold-barred CELEBRATION in New Orleans.

From one very happy, exuberant nun –

Sr Helen.”

In many ways, my work was done – but it wasn’t.  I stayed in touch with the Morgan Lewis lawyers.  I followed what was happening with the new trial proceedings.  I kept hoping that there would be a good result.  The trial court had appointed Cathy two well respected and experienced Texas trial attorneys and I had hope.  Hope that it would all turn out differently from so many other cases.

And in June 2015, I heard there was a deal.  A deal that both the State and Cathy could live with.  She had almost 23 years of credit for time served and they offered her 25.  I literally was floating thinking about it.

June 25, 2015, I took a vacation day and took my son with me to Austin for the plea to be taken in court.  It was only fitting Michael should come – I had been away from him so many times for so many clients.  I missed more school events than I probably ever went to.  I wanted him to see his mother succeed.

The plea was in the 299th District Court of Travis County.  Former Judge Charlie Baird’s portrait hangs in that court.  A stalwart for justice, I had worked for him almost two decades prior when he served on the Court of Criminal Appeals.  My son, now 14 and 6′ tall, did not even object when I made him stand near the judge’s portrait to take his picture.

 

Cathy came out and inwardly I gasped.  She was old.  She was on crutches.  She looked weak and worn.

A new judge took the plea.  I got to hear the judge sentence her to 25 years.  And I was happy.  Relieved.  Maybe even joyful.

The entire team went to the holdover to talk to Cathy.  My son came along (passing for a very young attorney, I assume).  Cathy came out and she spoke.  She was happy but looked tired.  Not recognizing my son, she asked who he was.  I told her “This is my son.  He’s a pretty good law clerk.”  We told Cathy we would be at the gates of the prison when she was released.  Witnessing this turn of events was a first for me.  I was going to see a client on death row walk away.  I felt validated.  I had won.

Still euphoric, I heard a few days later Cathy was sick from an infection in the jail.  I heard later she was in the hospital.  I heard it wasn’t going well.  As time went by, she was in a coma.

And then the night of August 2, 2015, I got a Facebook message.  “I hate to be the one to tell you.  Cathy Henderson died.  I am so sorry.”

“How could she die?” I asked everyone.  “How could this happen?”  What I meant, in all my hubris and ego, was, “How could this happen to me?”  I was going to see her released.  I was going to finally see someone walk away from death row – not be driven away in a hearse.  I was going to win.”

There was no funeral.  I could not find closure.  So I reached out to Sister Helen.  I wanted her to heal me.

Normally, I would hate to miss a phone call from her.  But she called to console me and I wasn’t there.  I got a voice mail:

“I want to ease your heart…You did make a difference to her … Now, she’s tasting real freedom…Blessings on your sweet head.”

I have listened to that voicemail many times.  I often replay in my head the sequence of events that began so many years ago.  I made lifelong friends with the Cathy Henderson team.  I met my idol.  I did not win.  But I did not lose, either.