Most common complaints about attorneys

Believe it or not, the State Bar of Texas does care what clients think about attorneys in Texas!

Here are some of the most common complaints from a 2000-03 survey:
1. Communication - such as Poor communication with client
2. Attorney neglect - such as clients feeling that their case is being neglected
3. Law Office management - such as not returning phone calls

Family (divorce) law has the most complaints (694 complaints) . The second most complained about area is criminal law (256), followed by personal injury law (244).

The Dallas/Ft. Worth area had 642 complaints where Houston had 363 complaints. Austin had 296 complaints and San Antonio had 208 complaints. Since Houston is so much larger than Austin or San Antonio, the Houston lawyers must be doing something right!

I'm moving my office - ugh!

After being at 8980 Kirby Drive, Houston, TX 77054 almost 8 years, I'm moving. I can't believe how the paperwork has grown!

For the next few months my mailing address will be: P O Box 433, Bellaire, TX 77402.

If you need to reach me, I recommend email at fran@familylaw4u.com or calling me at 713.847.6000.

Please be patient during the month of December since I might be busy trying to get adjusted to the change!

Happy Holidays!

Fran Brochstein

Crime News: Raymondville is One Happening Place To Be - Dick Cheney, Alberto Gonzales, and Pol Brennan of the IRA

Raymondville - who knew this small Texas town would be making such a name for itself these days? You'd think the berg had its own publicist ....

What's up?

Well, first -- that's the place for the ongoing Juan Angel Guerra story (see the post below for more on Operation Goliath). On Monday, there's gonna be a hearing down there on whether or not Judge Banales should be recused from the local criminal case, where felony indictments were filed against Vice President Dick Cheney and former U.S. Attorney Alberto Gonzales and others.

Hearing to Recuse Judge Banales in the Dick Cheney Felony Case

Seems the Texas Supreme Court has instructed San Antonio Judge Michael Peden to mosy on down to the Rio Grande Valley and preside over Monday's hearing. Should be a media frenzy, and great news for the little town's local economy. Try the carnitas, guys.

Notorious IRA Escapee Pol Brennan Awaits Extradiction Ruling in Willacy County Jail

And, it justs better ... there's also international happening down there in Raymondville as a hearing was going on for a good part of November, about whether or not to extradite Pol Brennan, a former member of the Irish Republican Army (IRA), who was convicted for his IRA activities and sentenced to jail in Belfast, Ireland.

Brennan was sentenced to 16 years imprisonment for possession of explosives, and he was part of the infamous escape from the maximum security Maze prison back in 1983 (along with around 30 other blokes).

Seems that after Brennan's escape, he lived on the run here in the US for many years (25, to be exact). He made San Francisco his home, built a career as a master carpenter, got married, even bought a gun under an assumed name.

But the jig was up back in January, when old Pol was pulled over in South Texas as he and his wife were driving to visit his mother-in-law down in South Padre Island. He didn't have good papers, and he ended up busted and sitting in the Willacy County Jail -- where he's still sitting today, awaiting the ruling on whether or not he's going to be booted back to Ireland.

And, you think the Dick Cheney case is big ... well, over the waters the Pol Brennan case is making all the papers. There are organizations raising money for his defense fund, papers in all parts of Europe are covering his story, and he's even got a web site (where he complains about the jailhouse food, among other things).

Raymondville.

Who would have thunk it?

Sources:

Brownsville Herald
http://www.brownsvilleherald.com/news/willacy_92126___article.html/county_dec.html

Associated Press
http://ap.google.com/article/ALeqM5jQCZ1qkFyZWoqP9ZvQpAbztkt_-wD94C93HO0

Irish Abroad
http://www.irishabroad.com/news/irish-voice/news/Articles/pol-brennan-deportation191108.aspx

Belfast Telegraph
http://www.belfasttelegraph.co.uk/news/local-national/exprisoner-tells-of-maze-escape-14063963.html

Contracts and Attorneys' Fees in Texas

In a breach of contract, the breaching party may be ordered by the court to pay reasonable and necessary attorneys' fees if it meets the requirements of Texas Civil Practice and Remedies (CPRC) Section 38.001. It should be noted that a party that does not have the ability to pay may also not have the ability to pay attorneys' fees, so it may be advised to not consider it an "absolute" that you, as the victorious party to a breach of contract case, will automatically be able to get the attorneys' fees back, even if it is authorized by the court. It should be noted that in other cases, unless authorized by statute, prevailing litigants are not entitled to attorneys' fees unless authorized by statute, so it is important to discuss these issues with your attorney when the decision is made to begin litigation proceedings if you are unsure.

DA Watch: Juan Angel Guerra, Take 2 - Cheney Indictment, Texas Supreme Court Joins the Party

Well, Juan Angel Guerra certainly isn't going quietly into that good night ....

In my last post, we all felt bad for ol' Juan Angel, because it sure seemed ... well, ... ahem ... suspicious that he was indicted on three felony charges, only to have them all dismissed as being totally without merit AFTER he'd lost the March primary - forcing him out of a DA position he'd held for 3 prior terms.

Juan Angel Guerra said it was fishy at the time the indictments were zapped. But what could he do? He was out of the ballgame, public office was now a part of his past like it or not.

Surprise, Surprise -- Juan Angel Guerra's Using His Last Few Weeks as Willacy County DA to Take On Some Big Kahunas - Like Vice President Dick Chaney and former U.S. Attorney General Alberto Gonzales

Juan Angel's name had barely faded from the front page of the Brownsville Herald on the election - indictment scandal, when there he was again.

Juan Angel Guerra is now in the national media spotlight for having the guts (and you have to give him that, regardless) of taking on the Vice President of the United States, the former top Trial Lawyer for the country, and some other Pretty Big Players.

Yep, that D.A., from that little-known little county in south Texas, is getting lots of word count in papers like USA Today because he's gone from a local political skimish to a big, big national battle.

Why? Guerra believes these guys are responsible for abuses suffered by prisoners at private run-for-profit detention centers in his part of Texas -- where one prisoner has died from injuries he sustained. And he wants them held accountable.

Juan Angel Guerra is mad. And He's Getting Madder and Madder.

Apparently, this isn't Juan Angel Guerra's first rodeo. He has made a career out of going up against public corruption and he's been particularly zealous about investigating the privately run federal detention centers in his area.

Guerra already won a fight in 2005, when he got three guilty pleas to bribery charges from some corrupt county commissioners -- based upon contracts to build and run the prisons.

Guerra Called His Investigation "Operation Goliath" and He was Code-named "David"

After that, Guerra continued investigating but he kept things close to his vest. He called his investigation "Operation Goliath" (he was "David") and everything was handled on a need-to-know basis. Lots of evidence was kept locked up at his house, because he didn't trust the courthouse enough to keep it there.

Juan Angel Guerra obviously believes that there have been serious wrongs done at these for-profit prisons, that prisoners have suffered, and he's staked his professional reputation as well as his personal life on righting that wrong.

This guy knew before he filed a single piece of paper that his enemies were going to laugh at him, that some were going to question his sanity and others would impune his motives.

Doesn't look like Juan Angel Guerra cares much about that.

What Guerra Is Charging -- Prisoner Abuse, Prisoner Death, Cover Up

Guerra's investigation has culminated in the following indictments being issued by the grand jury (to read the full indictments, click HERE). Half of them involve charges against those who tried to stop Guerra's investigation, and the other half deal directly with alleged prisoner abuse at run-for-a-profit prisons in Willacy County:

2008-CR-0126-A
State Senator Eddie Lucio, Jr.
Acceptance of Honararium (illegally taking money related to prison consulting fees)

2008-CR-0127-A
GEO Group, Inc., Et al.
Murder and Manslaughter (murder of a prisoner at the detention center)

2008-CR-0128-A
Richard B. Cheney and Alberto Gonzales
Engaging in Organized Criminal Activity

2008-CR-0129-A (incomplete)
Migdalia Lopez
Abuse of Official Capacity
Official Oppression

2008-CR-0130-A
Janet Leal
Abuse of Official Capacity
Official Oppression

2008-CR-0131-A
Mervyn Mosbacker, Jr.
Abuse of Official Capacity
Official Oppression

2008-CR-0132-A
Gustavo Garza
Abuse of Official Capacity
Official Oppression

2008-CR-0133-A
Gilbert Lozano
Abuse of Official Capacity
Official Oppression

The Willacy Courthouse Drama of Last Week -- Judge Banales Tosses It to Austin

Last week, the big guns rode into town (in this case, Raymondville), and tried to toss their weight around and get the indictments dismissed. They're just silly, they said.

Juan Angel stood strong. He pitched a fit on Wednesday that they were trying to argue a motion at a time when their requests should not properly be heard. Guerra won.

The big guns came back on Friday. Again, they argued that the indictments should be dismissed. They're just silly, they said.

Juan Angel got really mad then. He started yelling and pounding his fist (go read the media accounts, this isn't exaggeration here) and looking to things like procedure, again. The required notice for such a hearing had not been met.

Judge Banales -- the same judge that tossed Guerra's indictment aside earlier this month -- sent the whole kit-and-kaboodle up to the Texas Supreme Court.

Fight Goes to the Texas Supreme Court

So, today, the fight has moved to Austin. Juan Angel Guerra's already on the battlefront, he's filed an affidavit with the high court - and you can read it if you want to do so.

Here's Juan Angel Guerra's affidavit to the Supreme Court:
http://www.valleycentral.com/files/GuerraSupremeCourt.pdf

Sure, there are some who will argue his affidavit has some procedural problems of its own -- but he may have a good point about that hearing notice requirement stuff. Heck, the calendar alone should help prove that point.

Is Juan Angel Guerra Crazy?

You know lots of people are going to call this guy crazy. Nuts. Lost it. Wacko.

Some are going to think he's crazy because he's not spending his time finalizing his lucrative private-sector gig for when he leaves office in less than six weeks.

Some are going to call him nuts because he is a small town DA in the backwaters of Texas, and he's trying to take on Dick Cheney for crimminey's sake. That's nuts!

Some are going to be all academic (like Dean Treece) and argue that Guerra's got no constitutional footing here: he's a state guy going after federal folk, and ones with immunity to boot. Zany.

And, some -- hopefully some -- will stop long enough to ponder what Guerra's arguing about.

Juan Angel Guerra is arguing about prisoners being hurt and sometimes killed in prisons that are being run by private companies for a profit.

Prisoners are being hurt and dying -- and maybe the craziest thing of all is that a Prosecutor, a District Attorney -- is risking all he's got to try and stop this.

It's a nice change to the DA Watch stories on this blog, by a long shot. Usually, they're lying about witnesses or hiding evidence or being so ready to convict that innocent men are spending their lives behind bars while guilty men go free.

If Willacy County District Attorney Juan Angel Guerra's crazy, then maybe it's the kinda crazy we need.

Sources:

USA Today
http://www.usatoday.com/news/washington/2008-11-21-cheney-indictment_N.htm

Brownsville Herald
http://www.brownsvilleherald.com/news/high_92030___article.html/officials_profile.html

KGBT-TV 4 (Rio Grande Valley)
http://www.valleycentral.com/news/news_story.aspx?id=225769

Real Property Division in Divorce in Texas

One of the more difficult assets to divide during a divorce is that of real property, such as the marital homestead. The reasons for the difficulties include: (1) the fact that both of the parties reside in the home, (2) it can accumulate a substantial amount of equity, and (3) there is usually secured debt upon the residence (mortgage, home improvement loans, or home equity financing). As a result, most personal property, stocks, bonds, and financial accounts are easier to split up. There are potentially many ways to deal with real estate.

However, in the situation where the divorcing spouses jointly own a single, marital residence, descriptions of the two most common ways to deal with the house:

(1) Sell The Home: The home can be listed for sale with a real estate broker and sold. The net proceeds of the sale (if any) would then be divided between the spouses as any other asset of the marriage. This is certainly the simplest way to go. It promotes certainty, it is easy to figure the equity, and it removes a significant liability and the entanglements that come with joint ownership and the joint liability. However, it will displace the family, including the children from the home. As a result, it will likely be the most disruptive. The other downside with selling the home is that there are usually significant closing costs with the sale and disposition of real estate. These expenses will be duplicated three times if each of the spouses are going to then buy their own home after the divorce.

(2) Conveyance to the Other Spouse: The second most common option regarding the marital homestead is a conveyance from one spouse to the other. Usually when children are involved the "primary" parent is the one that stays in the house. For example, in one of the the most common scenarios, the Wife stays in the home with the children and the Husband moves to an apartment. In this example, the Husband would sign a Deed (what is generally referred to as a Special Warranty Deed) and the Wife would then own the home outright. Most people understand that one spouse then owns the home, but many people do not understand what happens with the secured debt on the home.

WHAT ABOUT THE SECURED DEBT? Occasionally, the Judge will Order that the spouse who received the home refinance it (or the parties will agree to this), but oftentimes (due to high-interest rates, lack of credit, lack of income to justify the mortgage ratios, or, as we have now, the possibility of a lack of available lenders and funding) the acquiring spouse will not be able (or it will not be economically feasible) to refinance the home. What many people don't realize in this situation is that just because the home is conveyed from one spouse to the other, does not mean that the conveying spouse is no longer liable for the debt. The spouses and the Court cannot modify the contractual rights of the Mortgage Lender. Additionally, unless there is substantial equity in the home, and, in part, due to the fact that during a divorce the lender will be concerned regarding repayment, it is very rare that the lender would be willing to release the conveying party.

In this situation, the family law lawyer can assist by preparing the documents necessary to equalize the rights of the parties. In essense, the acquiring spouse will "asssume" the mortgage indebtedness. The conveying spouse will then receive a Deed of Trust to Secure Assumption (DOTTSA) - signed by the acquiring spouse. The Deed of Trust to Secure Assumption will allow the conveying spouse to foreclose his or her own lien, reacquire the property, and then either refinance, cure, or pay-off the note(s) owned by the Lenders (and potentially any other liens that have been placed upon the property).

A "Second lien" is what is held by the conveying spouse. This type of lien is generally "inferior" to that of the "superior" Purchase Money Security Interest that will be held by the Mortgage Lender. Because of the fact that the lien held by the conveying spouse is inferior, it is important for this spouse to notify the Mortgage Lender of this lien (preferably in writing) so that in the event of a foreclosure, the lender will notify the inferior lien holder of the impending foreclosure. This will allow the spouse holding the inferior lien to cure any defaults and then foreclose him or herself. The foreclosure will be "subject to" the lien held by the Mortgage Lender. In other words, the primary note will still have to be refinanced, paid-off, or sold with the new buyer then "assuming" the Note and making the payments. Because of the relative speed at which a Mortgage Lender can foreclose (potentially 45 days with a residence, and even less on non-residential property), it is important to keep up with the status of the loan.

WHAT ABOUT THE EQUITY? Because the spouses can build up a substantial amount of equity through: (1) payments on the mortgage, (2) an appreciation in value of the home, and/or (3) home improvements (sometime referred to as "sweat equity," many times the spouses are confronted with the difficult task of attempting to fairly dividing the marital assets when the marital residence has substantial value. This is generally accomplished inat least three ways.

(1) Refinance the Home and Pay Cash. The first way, as discussed above, is to do a refinance of the home and take the "cash out" option. If this can be done it is the easiest way, but, as addressed above, sometimes the acquiring spouse will not be able to make use of this option.

(2) Offsetting Assets. The next way to do this is with offsetting assets. For example, if there is a retirement account or another assets with substantial value the other spouse can receive this asset, rather than equity out of the home.

(3) Owelty Note. An "Owelty" Note -- think of it as "I Owe" -- is one of the ways to accomplish the equalization. In this option, the conveying spouse would, in essence, become a secured lending for his / her spouse. The Note can carry with it any number of terms as with any other Note, such as interest only payments, a balloon, equal month payments, or other financial options. You will want to discuss these potential options with your attorney to come up with a plan that works for everyone. Again, this type of Note would be a second lien and have the peculiar problems associated with this type of Note. This option also requires more involvement by the family law lawyer, but it is a relatively easy way to equalize the equity.

Real Property Division in Divorce

One of the more difficult assets to divide during a divorce is that of real property, such as the marital homestead. The reasons for the difficulties include: (1) the fact that both of the parties reside in the home, (2) it can accumulate a substantial amount of equity, and (3) there is usually secured debt upon the residence (mortgage, home improvement loans, or home equity financing). As a result, most personal property, stocks, bonds, and financial accounts are easier to split up. There are potentially many ways to deal with real estate. However, in the situation where the divorcing spouses jointly own a single, marital residence, descriptions of the two most common ways to deal with the house:

(1) Sell The Home: The home can be listed for sale with a real estate broker and sold. The net proceeds of the sale (if any) would then be divided between the spouses as any other asset of the marriage. This is certainly the simplest way to go. It promotes certainty, it is easy to figure the equity, and it removes a significant liability and the entanglements that come with joint ownership and the joint liability. However, it will displace the family, including the children from the home. As a result, it will likely be the most disruptive. The other downside with selling the home is that there are usually significant closing costs with the sale and disposition of real estate. These expenses will be duplicated three times if each of the spouses are going to then buy their own home after the divorce.

(2) Conveyance to the Other Spouse: The second most common option regarding the marital homestead is a conveyance from one spouse to the other. Usually when children are involved the "primary" parent is the one that stays in the house. For example, in one of the the most common scenarios, the Wife stays in the home with the children and the Husband moves to an apartment. In this example, the Husband would sign a Deed (what is generally referred to as a Special Warranty Deed) and the Wife would then own the home outright. Most people understand that one spouse then owns the home, but many people do not understand what happens with the secured debt on the home.

WHAT ABOUT THE SECURED DEBT? Occasionally, the Judge will Order that the spouse who received the home refinance it (or the parties will agree to this), but oftentimes (due to high-interest rates, lack of credit, lack of income to justify the mortgage ratios, or, as we have now, the possibility of a lack of available lenders and funding) the acquiring spouse will not be able (or it will not be economically feasible) to refinance the home. What many people don't realize in this situation is that just because the home is conveyed from one spouse to the other, does not mean that the conveying spouse is no longer liable for the debt. The spouses and the Court cannot modify the contractual rights of the Mortgage Lender. Additionally, unless there is substantial equity in the home, and, in part, due to the fact that during a divorce the lender will be concerned regarding repayment, it is very rare that the lender would be willing to release the conveying party.

In this situation, the family law lawyer can assist by preparing the documents necessary to equalize the rights of the parties. In essense, the acquiring spouse will "asssume" the mortgage indebtedness. The conveying spouse will then receive a Deed of Trust to Secure Assumption (DOTTSA) - signed by the acquiring spouse. The Deed of Trust to Secure Assumption will allow the conveying spouse to foreclose his or her own lien, reacquire the property, and then either refinance, cure, or pay-off the note(s) owned by the Lenders (and potentially any other liens that have been placed upon the property).

A "Second lien" is what is held by the conveying spouse. This type of lien is generally "inferior" to that of the "superior" Purchase Money Security Interest that will be held by the Mortgage Lender. Because of the fact that the lien held by the conveying spouse is inferior, it is important for this spouse to notify the Mortgage Lender of this lien (preferably in writing) so that in the event of a foreclosure, the lender will notify the inferior lien holder of the impending foreclosure. This will allow the spouse holding the inferior lien to cure any defaults and then foreclose him or herself. The foreclosure will be "subject to" the lien held by the Mortgage Lender. In other words, the primary note will still have to be refinanced, paid-off, or sold with the new buyer then "assuming" the Note and making the payments. Because of the relative speed at which a Mortgage Lender can foreclose (potentially 45 days with a residence, and even less on non-residential property), it is important to keep up with the status of the loan.

WHAT ABOUT THE EQUITY? Because the spouses can build up a substantial amount of equity through: (1) payments on the mortgage, (2) an appreciation in value of the home, and/or (3) home improvements (sometime referred to as "sweat equity," many times the spouses are confronted with the difficult task of attempting to fairly dividing the marital assets when the marital residence has substantial value. This is generally accomplished inat least three ways.

(1) Refinance the Home and Pay Cash. The first way, as discussed above, is to do a refinance of the home and take the "cash out" option. If this can be done it is the easiest way, but, as addressed above, sometimes the acquiring spouse will not be able to make use of this option.

(2) Offsetting Assets. The next way to do this is with offsetting assets. For example, if there is a retirement account or another assets with substantial value the other spouse can receive this asset, rather than equity out of the home.

(3) Owelty Note. An "Owelty" Note -- think of it as "I Owe" -- is one of the ways to accomplish the equalization. In this option, the conveying spouse would, in essence, become a secured lending for his / her spouse. The Note can carry with it any number of terms as with any other Note, such as interest only payments, a balloon, equal month payments, or other financial options. You will want to discuss these potential options with your attorney to come up with a plan that works for everyone. Again, this type of Note would be a second lien and have the peculiar problems associated with this type of Note. This option also requires more involvement by the family law lawyer, but it is a relatively easy way to equalize the equity.

DA Watch: In Dallas, You Can't Fall in Love While Out on Bail

Clay Chabot -- doesn't that name sound like something from a daytime soap opera, or a Harlequin romance novel?

Wasn't Clay Chabot one of Erica Kane's husbands on All My Children back in the 1980s?

Um, no.

Clay Chabot is a real man though his story is reading somewhat like a melodrama. It seems that the Dallas County District Attorney's office is seeking to revoke Clay's bond and send him back to jail because they argue he's violated the terms of his release. The revocation hearing was yesterday.

What did Clay Chabot do that was so very bad?

He fell in love with one of his live-in chaparones while living under house arrest in his Cedar Hill home. Who's the lucky lady? She's his sister-in-law's daughter. And, of course, Clay has a MySpace page where the happy couple published photos of their wedding ceremony.

Oh fine, so there's a question of no marriage license even though she's going by "Mrs. Chabot" these days. And, yes, she's 37 and he's 49.

But it's love - the stuff that dreams are made of.

Love as the Basis for Bond Revocation

Meanwhile, the prosecution is ticked off about this marriage. They are moving for bond revocation because, they argue, a sexual relationship may violate the terms of his release.

First Assistant District Attorney Terri Moore actually argued at the hearing yesterday that she "didn't believe that the court intended for Mr. Chabot to be permitted a live-in girlfriend, wife, or spouse while out on bond." (Quoting the Dallas Morning News, who reported events from Tuesday's revocation hearing.) According to Moore, "[w]e give him an inch, and he takes a mile."

Chabot Already Victim of False Testimony That Resulted in Murder Conviction

Now, here's where the story goes from silly to serious. Clay Chabot was out on bond because the Texas Court of Criminal Appeals is hearing his motion for a new trial -- because it's been discovered that Chabot was convicted of murder based upon the lies of his brother-in-law. Seems DNA testing has revealed that the brother-in-law actually raped the murder victim.

The District Attorney is claiming that they are going to retry Chabot when his motion is granted, because they still think he's guilty of the crime. Now they're arguing that Chabot and his lying brother-in-law are both guilty of the murder.

Chabot Did Stop at a CellPhone Store on the Way to the Doctor

Perhaps the only real argument they've got here is that Clay did stop at a cellphone store on the way to the V.A. for medical treatment (he's allow to leave his house for doctor visits). However, it wasn't off the beaten path: it was a store on the route from Cedar Hill to the V.A. Hospital -- and please: he wasn't stopping off to gamble, buy booze, or get porno -- he stopped with his sister-in-law at a phone store.

For this, Chabot should go back behind bars after he was wrongfully convicted of murder? Maybe the DA knew this wouldn't be a big enough argument - so she added on this horrible event: Chabot married the woman he loves.

The audacity of it all.

Love Shouldn't Be Penalized

In prisons everyday, there are couples who wed without even the hope of building a life together. It's the story of legend how many penpal relationships have evolved in marriages behind bars. Heck, About.Com has an how-to article online, "How to Marry a Prisoner."

Surely if Texas Cadet Murderer Diane Zamora and Night Stalker Richard Ramirez can marry while in prison for life, then Clay Chabot can get hitched while on house arrest while his wrongful conviction is being ironed out.

Perhaps Clay's sister sums it up best: "He may have fallen in love, but he didn't do anything wrong."

Source:

Dallas Morning News
http://www.dallasnews.com/sharedcontent/dws/news/localnews/crime/stories/111808dnmetchabot.1c592accf.html

DA WATCH: Dallas Prosecutor Hid Evidence in 1996 and Only Now are Defendant's Rights Being Respected

Today is a very big day for Antrone Lynelle Johnson -- because today, Mr. Johnson may regain his freedom after serving 12 years of what would have been a life sentence. Antrone Johnson is just 31 years old.

Today is also a very big day for Dallas County prosecutors because once again they are facing charges of prosecutorial misconduct. And this time, it's not about DNA evidence -- it's about withholding evidence that would have helped Mr. Johnson's case.

The District Attorney Hid Evidence That Would Help Johnson's Defense

That's right: a Dallas County district attorney had evidence that tended to exonerate Antrone Johnson back in 1996, and they didn't turn it over to the defense. That D.A. doesn't work for the Dallas County District Attorney's office anymore, and hasn't responded to media queries. (Fancy that.)

It's Been a Recognized Constitutional Violation Since 1963

When a prosecutor does this -- intentionally or accidentally withholds exculpatory evidence -- it's a violation of the defendant's constitutional rights, according to the U.S. Supreme Court. That defendant's conviction must be overturned.

Sadly, these errors have become such a commonplace event across this country that everyone just refers to the situation as a "Brady violation" (named after U.S. v. Brady, the 1963 case where the high court ruled this was a constitutional violation).

What Did the DA Hide, and What Were Johnson's Accused Crimes: the Backstory

Back in the 1990s, Mr. Johnson faced two cases of sexual assault before he turned 18 years old. Here's what the prosecutor didn't turn over to the defense:

1. In one case, the girl told the prosecutor that Mr. Johnson did not rape her.

2. In the other case, the girl gave conflicting statements about whether she had sex with him.

What about DNA testing?

No DNA testing was done (in either matter). That's right: zip DNA testing in two rape cases.

The Girls' Statements Were Kept From the Defense From 1996 to 2008

All this remained on the QT for what's going on 20 years, until earlier this year when Mr. Johnson and his defense attorneys were informed about these two statements of the girls.

Mr. Johnson's defense counsel promptly filed the proper motions for his convictions to be overturned as Brady violations. He should be free, they argue -- and based upon what the girls said, he should never have spent one night in prison for these crimes.

DA's Office Now Agrees With the Defense that Johnson Should Go Free

Now, the Dallas County District Attorney's office (throught Mike Ware, the head of its Conviction Integrity Unit), has filed a document with the court that states the DA's office agrees that Mr. Johnson's life sentence conviction should be overturned.

Meanwhile, Johnson's Already Finished One Sentence and He's Spent A Decade of His Young Life Behind Bars

Mr. Johnson went from being a high school student to being an incarcerated felon serving a life sentence, until hopefully today. And that's just on the first convction. As for the convition on the second sexual assault charge, Mr. Johnson has already served that five-year sentence.

What Happens to the Attorney Who Hid the Evidence? Is the State Bar Going to Do Anything?

The prosecutor who knew about this evidence that would clear him -- and she knew, it was no accident, her own handwritten notes show this -- has not had her identity revealed by the media or the Dallas County District Attorney's Office, and probably faces little if any consequences for her actions.

That's right - it's not very likely that the State Bar of Texas will seek to disbar her (though many are arguing that she should have her law license taken from her because of this bad act).

This, while the Bar has filed its own grievance against an Austin solo criminal defense attorney for his allegedly offensive conduct in a county court at law DUI proceeding.

Comparing The Bar's Disciplinary Actions: Adam Reposa vs. this case's Mystery Prosecutor -- If You Go Against Reposa, Surely You Go Against This DA

If the State Bar of Texas is going to sua sponte institute disciplinary action against this Austin solo, then surely they should have the chutzpah to file an action against Mr. Johnson's prosecutor, who blatantly let a young man go to jail for life when she knew better.

Even the Bar must see that when Austin solo Adam Reposa allegedly "...began whispering in Williams' ear and made a masturbatory gesture when the prosecutor said something about the continued whisperings .... " (quoting the Texas Lawyer) his purported actions are far less offensive to Texas courts and American justice than those of former Dallas prosecutor Madame X, who intentionally let an innocent teen go to jail for life.

Meanwhile, maybe Mr. Johnson's attorneys can think of a civil action to file ....



Sources:

Dallas Morning News
http://www.dallasnews.com/sharedcontent/dws/news/localnews/stories/DN-evidencewithheld_17met.ART.State.Edition2.4a2ecd3.html

Grits for Breakfast
http://gritsforbreakfast.blogspot.com/2008/11/brady-violation-may-lead-to-next-dallas.html

Law.Com/Texas Lawyer
http://www.law.com/jsp/article.jsp?id=1202426058142&pos=ataglance

DO-IT-YOURSELF KITS

I offer do-it-yourself legal kits for family law matters -- adult name change, modifications, divorce, paternity, etc.  

My price depends on how much work I have to do.  My cheapest kit - the divorce kit with no kids and no property runs $175 if I only meet with you one time.  If you need to come back, I charge $150 per hour to meet with you again.

My kit with kids and no property runs approximately $450.  Again, if you have property to divide that will take more time, then I charge for my time.

If a person wants to meet with me to merely review their current legal documents or discuss something that is bothering them, I charge $150 per hour.  Most people find that meeting face-to-face with an attorney to discuss their legal issues is very helpful and educational.

Please email me if you would like to know more...

fran@familylaw4u.com

Mediation Rates

I believe in the mediation process so much in family law that I charge $500 total for 4 hours.  Usually both parties split the cost so each pay $250.  If we run longer, then I charge $100 per hour after the 4-hour minimum.

If you are disabled, or unable to afford $500, then with proof, I am willing to discount my rates.  

I truly believe in the mediation process.  There are 2 free mediation groups in Harris County - the DRO and the DRC.  I highly recommend them both.  Unfortunately, they are usually booked up.  Therefore, I am willing to offer my services at a discount if you qualify.

I'm back at work

The last few months have been challenging.  My Dad apparently had a stroke and his caregivers thought he was going to pass on.  However, he once again fooled us all and is much better.  

My Mom is gradually getting better.  She still has 24 hour care.  This week her doctor told her to put away the wheelchair and use her walker.  She has been doing it for the past 2 days!  Hopefully, she will continue to mend.

I'm moving my office by November 30th.  I'm not sure right now where I will be moving.  I'm actively looking for space.  

I'm back  at work.  I'm trying to do my free consultations via email.  Email me at fran@familylaw4u.com.  Based on my upcoming move, I anticipate not checking my email everyday.  

My mediation and do-it-yourself kits are popular right now.

If the economy continues to slow down, I anticipate my kits will grow in popularity.  My kits work -- unlike the kits sold by companies out-of-state.  The State Bar of Texas cannot regulate companies located outside of Texas.  The kits sold from NY, CO, WA, FL and CA usually won't work in Texas.  Why?  Because divorce law is a state issue not a federal matter.

Thanks for your patience during the past few months!

Happy Holidays!

Court Opinions: Melendez-Diaz Oral Arguments and the Need to Confront Forensic Scientists on the Stand

You've seen CSI.

Yes, you have -- whether you've watched Gil Grissom in the original CSI: Crime Scene Investigation, or Horatio Caine in CSI - Miami or Mac Taylor in CSI:NY (which I can never take too seriously, because everytime I see that guy's face, I hear "Lt. Dannnnnn" in Forrest Gump's drawl).

Well, in whatever version of CSI you're talking about, these guys are busy being lab rats one minute, and cops with guns the next. Maybe Miami does it more than Vegas, but it rings true for all three.

Forensic Scientist - Cops

As well it should -- in real life, the forensic science pros in law enforcement think of themselves just as much as police officers as they do science gurus. They just don't have the same cool lighting effects in the labs or the same tight low-cut shirts as their TV counterparts.

Confronting the Forensic Reports Is A Big Defense Problem

Which has been a big problem in the courtroom, because there has been a big brouhaha over whether or not criminal defense attorneys have the right to confront these forensic guys (and gals) over their reports and such -- on the witness stand, in front of the jury.

After all, a criminal defendant has the right to confront his (or her) accusers under the U.S. Constitution. Why can't they confront these science folk on the neutrality and objectivity of their lab findings?

Prosecutors, of course, want to introduce forensic reports as if they are the Holy Grail, never to be questioned by anyone -- after all, science is science right? District attorneys argue that criminal defense attorneys are just trying to manipulate things when they want to bring the forensic scientist into the courtroom: the lab results say what they say, they give routine results, and having some white-coat witness take the stand is just an attorney playing games.

Defense attorneys, meanwhile, believe that not only are these forensic professionals merely human, and therefore subject to making mistakes, but these pros see themselves as law enforcement -- and are far from impartial in their work. They're not independent third parties from some faraway laboratory, wearing monocles and speaking with a slight European accent.

Things May Be Changing: the pending case of Melendez-Diaz v. Massachusetts

The US Supreme Court has just heard oral arguments in the case of Melendez-Diaz v. Massachusetts. Looks like they'll be deciding really soon whether or not forensic experts should be subject to confrontation by the defense.

What does this mean to you and me?

Seems that the High Court is considering the possibility that a forensic expert who has a paycheck signed by the same kahunas that sign the beat cop's paycheck might have a bias or be subject to err on the side of the prosecution. And if that's true, then the defense attorney should be able to cross-examine that forensic expert on the witness stand. That's the right thing to do.

Looks like the Supremes watch a bit of CSI, too, doesn't it?

Sources:

New York Times
http://www.nytimes.com/2008/11/11/washington/11scotus.html?_r=1&oref=slogin

Brief for Petitioner:
http://www.nytimes.com/2008/11/11/washington/11scotus.html?_r=1&oref=slogin

Brief for Respondent:
http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-591_RespondentAmCu35StatesDC.pdf


For more discussion on Melendez-Diaz v. Massachusetts, check out:

Grits for Breakfast
http://gritsforbreakfast.blogspot.com/2008/11/pragmatism-vs-confrontation-frames.html


SCOTUSBlog
http://www.scotusblog.com/wp/argument-preview-melendez-diaz-v-massachusetts/

DA Watch: Judge Dismisses Felony Corruption Charges Against DA Juan Angel Guerra

You gotta wonder.

Once Upon A Time, Juan Angel Guerra Was Just Planning a Re-Election Campaign ...

Almost two years ago, Willacy County District Attorney Juan Angel Guerra was planning his re-election campaign, after serving his region in South Texas for three straight terms. Guerra was gearing up for a run to serve another term in office - he would be voted the top prosecutor of the area for the fourth straight election.

Next, DA Guerra was Indicted on Three Separate Felony Indictments ....

Then, about 18 months ago, Guerra was indicted for allegedly doing some very bad things. In fact, there were three separate indictments:

First, it was alleged that DA Guerra commited theft when he demanded that a bail bonds company fork over $10,000 or he'd put them out of business.

Second, the DA was indicted for allegedly tampering with government records, perjury, or abuse of office because Guerra purportedly lied under oath when he claimed the bail bonds company was over its limit.

Third, Guerra was indicted for allegedly stealing over $200,000 in public funds by using county equipment and personnel for his own personal use.

Then, The Special Prosecutor Is Held to Be Improperly Appointed ....

Gus Garza was the man appointed to be Special Prosecutor of the Guerra case. DA Guerra challenged Garza's appointment, and in May 2008, the 13th Court of Appeals agreed with Guerra -- Gus Garza was improperly appointed to serve in this role. Ron Barroso replaced Garza.

And, State District Judge Manuel Banales Dismisses All Three Indictments.

In October 2008, the new Special Prosecutor Ron Barroso files a motion that the indictments against DA Guerra be dismissed, and Judge Banales grants the motion.

Why? Ron Barroso found NO EVIDENCE to support the three felony corruption charges that had been leveled against DA Juan Angel Guerra.

That's right: NO EVIDENCE.

But This is Only After Guerra's Lost the March Primary and His Re-Election Bid.

So, DA Guerra should be very happy, right? Well, no.

Seems that DA Juan Angel Guerra was beaten in the March 2008 Primary, when all this felony indictment stuff was being thrown around in the media -- and after serving three terms in office, this experienced prosecutor was beaten even before the November election day.

His reputation will forever be tainted, too - because lots of people are just going to remember that he was accused of being a thief and misusing his office, and they'll assume where there is smoke there is fire ... regardless of the fact that he's been cleared of any wrongdoing here.

Did Politics Go So Far As To Indict An Incumbent to Drive Him Out of Office?

Some might wonder if there were some closed-door shenanigans here. And, they would include Juan Angel Guerra - who has been quoted by the media as stating he believes the indictments came down to keep him from being re-elected.

Well, Juan Angel -- it kinda looks that way, doesn't it?



Postscript

By the way, on those three charges: Juan Angel had explained that he was using the $200,000 in county equipment and personnel as part of his job to offer free legal services to those in need; and he had legitimately demanded $10,000 from the bail bonding company to pay lawsuit judgments filed against the company, because it couldn't cover its bonds after the criminal defendants failed to show.

Source:

Associated Press
http://ap.google.com/article/ALeqM5hq7wvItWMIO8lWA-2tQGEOUkHlYQD94ATK200

Texas Amomng Top 20 in Negative Equity

Texas was in the top 20 states for the highest percentage of homeowners who owe more than their homes are worth, according to a new quarterly study by First American CoreLogic.

Of the 2.7 million Texas homes that had mortgages, nearly 17 percent showed negative equity at the end of the third quarter. Nationwide, 7.5 million mortgages, 18 percent of all mortgaged properties, had negative equity. The study covered about 80 percent of all mortgages, according to the mortgage data company.

Personal Property Lease Termination

When personal property is the subject of a Lease Agreement (“Lease”), the Lessor (or owner of the property) should initially look to the default provisions and consider terminating and/or accelerating the Lease payments at the initial stages of attempting a work out with a delinquent Lessee. This is true for two reasons: (1) after putting pressure on the Debtor, he may file a bankruptcy and the owner of the personal property will then be dealing with the “assumption or rejection” provisions of the Bankruptcy Code, and/or (2) when the Lessor attempts to repossess the property, prior to terminating the Lease, the Debtor may seek the intervention of a State Court judge by obtaining a Temporary Restraining Order or other injunctive relief. Either of these two scenarios can be expensive and will delay relief to the Lessor.

The Lessor should carefully consider its initial options and review the Lease documentation prior to the making of threats or the sending of threatening letters to a distressed Debtor that might trigger one of these two options to try to hang on to the property. This is especially true for highly valuable personal property (for example - construction equipment and/or modular buildings, etc) which may be integral to a Lessee’s business. The Creditor’s communications with the Debtor should not simply be viewed as an attempt to get them to pay, but rather a complex game of chess where the Creditor is setting up the next move.

Depending upon the documentation in the Lease, the Lessor may be able to utilize one (or all) of the following options (and perhaps others): (1) demanding payment, (2) giving notice of intention to accelerate the indebtedness, (3) accelerating the indebtedness, (4) demanding the return of the property, (5) demanding the right to inspect the property at a given time and place, and/or (6) terminating the Lease. Consideration should be given as to whether the Debtor is complying with the terms of the Lease or other documentation under the Lease, including requirements to maintain insurance, not damage the property, remain solvent, provide financial statements, or avoid actions which might result in the Lessor deeming itself insecure. The Lease documentation is important for determining what constitutes an “event of default” for these purposes. By doing so, the Lessor may be able to document a default that has occurred before an imminent Bankruptcy filing.

Before the sending of any of these types of notices or upon hearing that a bankruptcy is a possibility, the Lessor will want to consider all of these matters and, only then, communicate with the Debtor anticipating the Debtor’s next move. If the Creditor makes the wrong move, it may be stuck with the Lessee being able to keep the collateral for extended periods after an injunction, Automatic Stay, or potential acceptance under the Bankruptcy Code.

In the Bankruptcy context, the Debtor (or Debtor-in-Possession, or Trustee) has extensive powers, options, and, importantly, additional time to exercise the options. See 11 U.S.C. § 365. If the Lease (or Executory Contract) has not yet expired, been cancelled or terminated, then the Trustee (subject potentially to Court approval and some exceptions) may be able to assume or reject the contract on behalf of the Debtor. The Trustee may even be able to assume and assign the contract. Documenting the prior default becomes especially important in dealing with the Trustee, because when the Debtor is in default, the Trustee may be required to cure, compensate (or provide adequate assurances of such) prior to being able to exercise acceptance or assumption remedies. As a result, and significantly, if the Lessee is able to terminate and cancel the Lease, then the Lease may no longer be considered executory or unexpired, may not be “Property of the Bankruptcy Estate,” and, therefore, the Debtor (and Trustee) will have reduced rights with respect to the leased property. The Creditor may still have to file a Motion to Lift the Automatic Stay under Section 362 of the Bankruptcy Code, but obtaining this relief will likely be much easier with the defaults documents and/or the Lease terminated.

(Post by Erik Cary)

Crime News: Jose Baez Has A Tough Job as Defense Attorney for Casey Anthony

If you read People magazine at all, or watch CNN's Nancy Grace any day of the week, then you're aware of the "tot mom" case: young mother Casey Anthony has been charged with killing her 3-year-old daughter, Caylee Anthony, sometime this summer.

No body has been recovered, and the Anthony family maintains that the little girl is alive and well, having been taken by evildoers.

Heavy Media Coverage Turns to Jose Baez's Relationship with His Client

Media coverage has been heavy in this case; I've already posted about fair trial and due process concerns given the heavy media play (see 09/15/08).

On the web, the Websleuths site has dedicated an entire forum with numerous, active threads specifically dealing with the Caylee Anthony disappearance. The Websleuth forums have heavy traffic 24/7.

During the past week, however, the piercing eye of the press has turned away from Casey, the formal investigation, and the manned searches for Caylee's remains to Casey's defense attorney, Jose Baez. Web chatter has followed close behind.

It seems that Jose Baez hugged his client during two separate jailhouse visits, and jail officials have asked him to refrain.

There were early reports that the Florida Bar Association was investigating Jose's activity for purposes of formal disciplinary action - but the FBA has nixed those reports as untrue.

There have been many unsavory suggestions that Jose and his client have entered into a personal relationship - again, without factual support.

The Unmitigated Gall of Hugging Your Client

A hug might have been a big deal during Victorian times, just like showing the female ankle, but in our present culture, nothing could be more innocent than a hug. Friends hug. Grandmas hug. Colleagues hug. You hug your pet, you hug your pillow, you hug your doctor when he gives you good news and you hug your pastor on Sunday after a particularly touching sermon.

Of course, jail officials will point to past precedent of contraband being passed to prisoners during apparently innocent hugs -- sometimes, yes, by attorneys -- and that this is a legitimate reason for their request to Mr. Baez.

Jose's Defending a Client Who Has Already Been Found Guilty or Crazy By Many People

Jose Baez has the job of representing a woman who, before she has reached the age of 25, faces formal charges of murdering her only child - and possible execution for this crime, if convicted - as well as charges of assorted felony thefts that carry enough jail time that she'll be lucky to get out of jail before she is eligible for an AARP card.

Public opinion has pronounced her guilty, she's been labeled a monster by the masses and armchair psychologists have been busy diagnosing Jose's client as a sociopath, a psychopath, or someone suffering from Antisocial Personality Disorder, Histronic Personality Disorder, or Borderline Personality Disorder.

Jose's Defending a Client Who Hasn't Told the Truth and Has No Support System

In addition to the public arena, Jose has the job of defending a client who hasn't told the truth to authorities regarding the circumstances surrounding her daughter's disappearance (that's all in the recorded interviews and transcripts) and who has lost apparently all her friends, who assumedly feel betrayed by her lies to them. It's one of her former close friends, for example, that pressed the felony theft charges.

Jose's client has not had a visit from family or friends since she was returned to jail, based upon the murder indictment. According to media reports, Jose Baez is Casey Anthony's only visitor.

A Criminal Defense Attorney's Relationship with His Client

It's not the job of a criminal defense attorney to judge his client's guilt or innocence: that's the job of the factfinder, be it judge or jury. Doing so -- making the call on whether or not your client did the deed -- can sometimes hamper your work, in fact.

It is the job of a criminal defense attorney to make sure that a client's rights are protected, and that the prosecution truly proves its case beyond a reasonable doubt.

Defending the accused is an honorable and vital role in our criminal defense system. If you or a loved one are accused of committing a crime, you will want your attorney to defend you, not to judge you.

The Relationship Between Attorney and Client

Representing someone who has had their freedom taken away from them is a heady matter. It's a tremendous responsiblity to defend someone sitting in jail, much less someone facing a death sentence.

You need not be your client's friend in order to feel compassion and empathy with their plight -- and if you hug your client, it doesn't mean you are sleeping with her.

Representing Casey Anthony would be a tough job for the most experienced of criminal defense attorneys, much less one with the years of experience that Jose Baez has. This media exposure places him in the most glaring of lights -- every decision he makes is second-guessed (and often ridiculed) by media talking heads. Still, many of Jose's motions to the court have been granted, and he seems to be holding up well under all the pressure.

Make no mistake -- not only is Casey Anthony's life on the line here, so is Jose Baez's professional reputation. And Jose knows it.

The Paradine Case

Of course, it makes a better story the other way around ... and if you're interested in the plot of a criminal defense attorney falling in love with his client, check out Gregory Peck in Alfred Hitchcock's The Paradine Case. (And, yes - of course the client was guilty of poisoning her husband in the movie, would it be a Hitchcock movie otherwise?)

DA Watch: Legislator Promises Action to Fight Against DA's Wrongful Convictions

Well, it's good to know that someone's paying attention to the Dallas Morning News scoop on known wrongful convictions of innocent men and women by the DA here in Dallas besides a blogger or two (see this blog's October 13, 2008 post)....

State Senator Rodney Ellis Has A Plan for Laws to Fix the Eyewitness Identification Problem

State Senator Rodney Ellis (who represents District 13, covering parts of Harris and Fort Bend counties) actually wrote a column in the Dallas Morning News last month, where he promised to:

1. introduce legislation in 2009 to reduce the likelihood of an innocent person being convicted in the future with laws requiring that eyewitness identification procedures be based in science and implemented by trained law enforcement personnel;

2. introduce legislation in 2009 to pass a law that will require videotaping of custodial interrogations, arguing that this will not only stop false confessions but also false claims of police brutality as well as disclosing any deals made with informants for their testimony; and

3. introduce legislation to create an Integrity Commission within the Texas Legislature, if the Texas Criminal Justice Integrity Unit created within the Texas Judiciary (i.e., formed by Justice Barbara Hervey of the Texas Court of Criminal Appeals) doesn't hit the ball out of the park in reform aimed at preventing the conviction of innocent people in this state.

What About Ellis' Proposals?

Rodney Ellis is known for advocating criminal justice reform, and he's been one of the first appointees to Justice Hervey's Integrity Unit. He's not new to the scene here, trying to grab a headline or two: this isn't Ellis's first rodeo.

And, writing a short column for the Dallas paper might not be the proper place for details on how Ellis intends to implement his ideas.

Nevertheless, an argument can be made that we already have trained law enforcement personnel that are supposed to use scientific techniques (proper lineups, not show-ups) and it's just not happening when zealots are anxious for a quick conviction.

Academics have shown that eyewitness testimony has historically resulted in more wrongful convictions than all other causes, combined (See source link, below). Good luck to Senator Ellis on finding the cure.

As for the videotaping of custodial interrogations? You don't have to watch many episodes of Law & Order to figure out that taping the formal interrogation isn't going to stop police brutality and false confessions. It's just going to move the bad stuff down the hall.


Sources:

"Rodney Ellis: Lowering odds that innocents end up in prison," Dallas Morning News, October 21, 2008
http://www.dallasnews.com/sharedcontent/dws/dn/opinion/viewpoints/stories/DN-ellis_22edi.State.Edition1.26faf47.html

Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads, Law & Human Behavior Vol. 22, No. 6 (1998)
http://www.psychology.iastate.edu/faculty/gwells/whitepaperpdf.pdf

For More Information:

DA Watch: Dallas County Prosecutors Routinely Convicted Innocent Men Using Eyewitness Testimony Known to Be Faulty
http://dallaslawyer.blogspot.com/2008/10/da-watch-dallas-county-prosecutors.html