Texas Defender

No man is an island ...

2012-01-27T16:06:00.001-06:00

I spent a great day in Edinburg and Hidalgo County yesterday and today. Met some smart, fun people, including the Public Defender, Jaime Gonzalez. Typical TCDLA seminar. And then at lunch today, I saw her. An older woman eating alone in a huge hotel restaurant filled with people. She had a cane. And her hair was perfectly coiffed in tight curls. I watched her and wondered what brought her there to eat by herself. Why in a roomful of people in a city of hundreds of thousands she was alone? And in her, I saw grace and dignity. I felt incredibly human when she allowed me to carry her soup to her table. And then she said, "thank you, sweeties.". And I didn't even know what to say. Still don't.

Dissonance

2012-01-25T08:56:00.001-06:00

Bruce is touring!

Last night I watched his video Working on a Dream: The Sessions. He had a statement in there that stopped me on my little workout bike: "Looking for a little dissonance at the end." Maybe conflict isn't always a bad thing. Maybe the conflict creates its own beauty. And maybe the dissonance in American politics is, in fact, very American. I should probably enjoy the conversation more.

Lawyers and jurors

2012-01-24T22:13:00.001-06:00

Today it rained. In Houston. Unusual.

I took the tunnel to the garage and came upon an interesting sight: several people leaving the hallway from the civil courthouse late in the afternoon without county badges. Obviously they had been called to jury duty. From the conversation, apparently they were not chosen. Following them was a man questioning them about voir dire. He asked thm if they understood from the questions during voir dire that their decision would determine whether the plaintiff got any money. They told him, they had gotten that message.

And as I walked ever slower, eavesdropping even more ... I realized they understood everything. They got it. And that was interesting. And surprising. And maybe scarier than I ever imagined jury selection could be. I was also surprised at their eagerness to engage in what they knew with a complete stranger. What money civil firms must have to tail discharged venire members to the parking garage to quiz them. I never thought of that. Might be useful.

Politics

2012-01-23T06:26:00.000-06:00

I have been very quiet over the politics of the Republican presidential nominations. Very quiet. In fact, I am going to stay quiet. I don't seem to need to say a word because their absurdity is on full display all day every day. I have never grimaced more than hearing Newt talk of morality or Mit flip-flop and pander daily. A friend on Facebook said that if Newt is the answer, then maybe we need a question. Yes, I agree.

And Santorum's view on gay people is not just wrong, it is disturbing. To not love our fellow man because of their choice in who to love is not just un-Christian -- it is plain un-American.

So, I continue to support President Obama in every way. His passion and grace and brilliance have already saved this country. I can't wait to vote for him again.

Does winning matter?

2012-01-22T18:33:00.001-06:00

It sure does. But what defines a winner? I watched my beloved New England Patriots not lose the AFC Championship today. It was close. There was a question right up to the end if the Patriots could pull it out. As an appellate lawyer specializing in criminal defense, the wins are rare. There's no Tom Brady to save the day. We get used to losing. Losing big. And losing in things that matter a lot more than football. So I lose some cases I should win. I lose cases I probably should lose. But I am not trying to win any championship. I'm trying to be the best fighter I can be. It takes a lot to not lose your resolve and courage. But every day I feel stronger. So, go Pats. And I'll just keep on fighting the good fight every day.

2012

2012-01-19T10:11:00.000-06:00

Resolutions. New beginnings. However we view the passing of a year, I do believe in starting again. So here I go. 2011 was an amazing year for me. I started something new. I am now an assistant public defender with the Harris County Public Defender's Office. [while having more time to finish my pending cases from solo practice].

I have a new inspiration in my professional life. The Chief Public Defender is Alex Bunin. He has a passion for defending the indigent and his vision and leadership have marked a new chapter in my career. If it is possible to have three bookends to my career ... Judge Baird, Mac Secrest, and now Alex fill those spots. I have been more fortunate than many, in my opinion.

And my lovely family. I always wanted a large family and in marrying Ted, he brought four incredibly unique souls into my life. Their experiences and passions and pursuit of their dreams has been a joy to watch the past couple of years. I am watching Michael learn from those four, as well.

I have a resolve this year to help the poor. Read more. Forgive always. Dream big. And commemorate the small joys of daily existence that make up the life I am leading.

And as a joyful aside - Bruce Springsteen has a new album out. And on his website is a new live version of Because the Night ... these words resonated with me today (as I am home sick) ..

What I got I have earned

What I'm not I have learned.

True enough. And let there be no doubt where I stand.

Late to the game ...

2011-10-02T19:24:00.002-05:00

Friends,

I am very late to the discussion on so many topics ... but I'll try and catch up. Troy Davis. Everyone is upset that we may have executed an innocent man. I am too - except I'm upset with any execution. My views are in the minority -- but the death penalty company we keep - China, Iran, Saudi Arabia ought to tell us there is a problem. Are Americans just so much worse than criminals in other civilized nations? That hatred we show those who have committed crimes is so un-noble.

Taking away the last meal for death row inmates? I have heard it is a waste and not the message "we" want to send. The message I want to send is that we have grace and humanity and kindness. I have sat outside the execution chamber and the solemnity of those we ask to participate is palpable. We pay people minimum wage to strap someone down and wait for them to die. That's a lot to ask. I bet if you asked them if there ought to be a last meal, they would agree.

Bruce Springsteen is singing at a fundraising concert and the good tickets are $2500 each. I can't rationalize that, even for charity.

The Red Sox are out ... and they fire Terry Francona? I can believe it but I hate it.

Will I be better at blogging? I want to be. Time will tell.

Happy Birthday America!

2011-07-02T21:13:00.003-05:00

Happy Fourth of July Weekend.

The Harris County Criminal Lawyer's Association read the Declaration of Independence in front of the courthouse yesterday. What a wonderful tribute to our founding fathers.

I am so thankful to belong to an organization like HCCLA with such passionate defenders.

Everyone be safe this weekend ...

Legal blogging resumes, soon.

Bruce and the Law

2011-06-29T18:15:00.003-05:00

http://www.brucespringsteen.net/news/index.html

The eulogy Bruce Springsteen gave for Clarence Clemons is linked above. I can't read it without weeping. One section has resonated with me:

"I think perhaps "C" protected me from a world where it wasn't always so easy to be an insecure, weird and skinny white boy either. But, standing together we were badass, on any given night, on our turf, some of the baddest asses on the planet. We were united, we were strong, we were righteous, we were unmovable, we were funny, we were corny as hell and as serious as death itself."

That's the story of being a criminal defense attorney. It's not easy walking into a court room and the entire force of the State stands against your client. It's not easy standing alone. But together, we are powerful. Standing together, we fight the good fight. United. Strong. Righteous. Unmovable. Dark Goofy Humor. And as serious as death ... because we fight for life.

I sometimes worry that I "stretch" the meaning of Bruce's songs in my life ... but I have not done that here.

Tonight, when I fall to my knees, I'm going to thank God for Clarence. And Bruce. And the wondrous job I have with my criminal defense brothers and sisters.

What do we say to the God of Death?

2011-06-19T19:55:00.002-05:00

Not today.

I have become a little obsessed with the television show, Game of Thrones. That quote is one of the most memorable of the season. And it has resonated with me. Today is Father's Day and I really miss my father. My Uncle Reno passed away this year, as well. And then Clarence Clemons died yesterday. I still cannot comprehend an existence where the Big Man doesn't live.

But, I am alive. I can remember my loved ones. I can listen to Jungleland by Bruce and the E Street Band over and over again. And I can live a life to be proud of. I can cry for what I have lost. But I can joyfully remember the past.

To John Carl Maselli. And Reno Maselli. And Clarence Clemons ... thank you for sharing your lives with me. I will remember how very precious life is today. How very fragile it is. And how I will find joy while I still have breath in my body.

Love, Jani

Themes ...

2011-06-18T16:14:00.005-05:00

I cannot even come up with a manageable excuse for not blogging .. other than some times life takes over and the things you want to do are not the things you are actually doing.

I have been rethinking the blog, as well. My theme has always been (at least in my own head) the law, single motherhood, and Bruce Springsteen. Now, I am married and am not a single Mom. I still love Bruce. I still love the law. But I need a new focus.

And, I don't know what the new focus will be. But it will always revolve around motherhood, Bruce, and the fundamental unfairness I see.

Tomorrow is Father's Day. I am so so sad without my Dad. I want to be able to buy him a gift to thank him for being such a great Dad. So, I did. I sponsored a child through World Vision this week. He is from Brazil and was born on December 6, 2000. That is the day my son Michael was born. I think if my Dad was alive, he would like this gift. He would like it very much.

Greetings ...

2011-04-08T08:27:00.004-05:00

Yes - it has been a very long time. But spring is in the air and all all things begin anew. I could lament all the difficulties we are struggling with ... government shut down, Libya, Tunisia, Egypt, women's rights ... but today I focus on the lovely.

- I am in Waco speaking at a TCDLA CLE. I have never stayed here and it is a lovely city.

- My son is with me - he is having a great time watching the history channel while I work before my speech. Lovely.

- The law. I have been reading so many interesting cases of late. I do not typically agree with the judges - but the nuances and complexities of the law are continually challenging and provocative. I love thinking law all day.

- Friends. Despite living apart and not talking like we used to ... they are always my go to people in good and bad. I have been blessed with the loveliest of friends.

- Family. I lost my Uncle Reno a couple weeks ago. As much as I will miss him, I will always remember his lovely nature and countenance and accordion playing.

I am heading to Austin this afternoon. Home. Lovely.

Melancholia

2011-02-21T13:01:00.003-06:00

I have recently been been accused of suffering from melancholia. (According to one West Texas reader and my teeny tiny almost 80 years old mother!) Perhaps. Melancholia does not have to be sad or gloomy, it can also be defined as pensive reflection or contemplation. I revel in reflection, perhaps to my detriment. I contemplate my cases and my life endlessly daily. Obsessively.

But I also love my profession. I love my family. I love the life I have built and am continuing to build. And the profundity of the young, British, banjo-playing alternative group Mumford & Sons gave me solace today for my alleged melancholic ways:

In these bodies we will live, in these bodies we will die

Where you invest your love, you invest your life.

(Awake My Soul by Mumford & Sons)

http://www.youtube.com/watch?v=lp4fNmJ5Sqc&feature=related

I am satisfied with my investments, personally and professionally. They have been thoughtfully made. And the returns have been immeasurable.

Choosing Joy

2011-02-18T09:24:00.003-06:00

Today, my very good friend Seth told me that we are all in transition. Hmmm. I am reading a memoir by one of my all time favorite authors, Isabel Allende, and I remembered reading this several years ago:

"Each of us chooses the tone for telling his or her own story. I would like to choose the durable clarity of a platinum print, but nothing in my destiny possesses the luminosity. I live among diffuse shadings, veiled mysteries, uncertainties; the tone of telling my life is closer to that of a portrait in sepia." — Isabel Allende (Portrait in Sepia)

As I transition in life, with all my many diffuse shadings, I seek a story of joy. My uncertainties and embracing the gray are things to be joyful about. I choose joy.

What to do ...

2011-02-10T07:39:00.002-06:00

Today I read an article where a 14 year old girl was raped by her relative and then flogged to death in Bangladesh for her "crime."

http://www.aolnews.com/2011/02/03/bangladeshi-girl-dies-after-public-flogging/

And while suffering from insomnia last night, I read an article about a "high-brow" club in London where woman can only enter if accompanied by a man.

http://www.nytimes.com/2011/02/10/nyregion/10century-club.html?_r=1&hp

War crimes include rape. Our Government wants to redefine rape as "forcible" assault for Medicaid purposes. In some countries of the world, rape is so shameful that you are murdered because of it. And in one of the finest clubs in the world (according to the article), women must be escorted.

While I would never equate the two, I question the place of women in this world. We are mothers and daughters and sisters and wives -- and in a world community, our sisters are suffering. Our sisters suffer from discrimination. And what am I doing about it? I admit I have not figured that out. Sorry. Sorry for so many things.

I love this country

2011-02-02T14:56:00.003-06:00

I really do. I need to remember to thank God every night for the gift of being born here. I love our freedoms and right to dissent. As much as I worry and complain about our schools and justice system, I know (or hope I do) how lucky I am.

I am working on a case where a man illegally entered the United States after being deported. He came, worked, paid all his taxes, but was breaking the law. When he gave his allocution to the federal court before he was sentenced to prison, he apologized to the United States of America. He begged the forgiveness of the people of the United States of America. He explained he broke the law for his children. To give them a better life.

Many many years ago I asked my grandfather why he had left Italy and come to the United States when he was so young and so alone. He told me he did it for me. So I would have a better life.

I don't know that my life is "better," but it is rich and full of opportunity. I need to be ever-grateful for the sacrifices of my immigrant grandparents. Thank you Nonno. Thank you America. And God Bless all those who want to be here, but cannot.

Protests and Priorities

2011-02-01T09:30:00.002-06:00

I have been watching the world events unfolding in Tunisia and Yemen and Egypt with great fascination. I must admit my own ignorance as to the struggles their citizens are enduring. As I read more and more, I am gaining a great admiration for these countrymen and countrywomen to stand up for what they believe is right.

And selfishly, I am watching the debates in Texas on the budget cuts. Texas already ranks 44th nationally in public school funding; we cannot go much lower. I believe in public schools and have always attended public schools. I am despondent over the projected slashing of school budgets. I lie in bed and wonder what can I do.

Maybe that is the same question an Egyptian woman asked herself last week before rising and protesting?

(An interesting consideration - the highest paid state government employee is Mack Brown. Perhaps that has something to do with our priorities?)

My own birthday present

2011-01-20T12:05:00.002-06:00

My birthday is not until next month. But in trying to live the promise I told myself last year, I was taking a break and looking at the World Vision website. For anyone unfamiliar with this organization, I implore you to look at their website. Read the book The Hole in Our Gospel by Richard E. Stearns, the President of World Vision. http://www.theholeinourgospel.com/

I already sponsor a woman from Rwanda. But for my birthday, I decided to sponsor a child. I was matched with a girl from the Congo - and when I looked at her birth date -- we had the same one. Merdie is 6 and does not go school. She lives in a an area affected by AIDS/HIV. And her large family needs some help.

So for my birthday present to myself, I get to sponsor her. It is a very small amount but I hope it makes a world of difference for her. A Happy Birthday to both of us, hopefully. And may 2011 provide me with even more opportunities and insight to help all those in need.

And in honor of Sargent Shriver passing, I share the prayer of St. Francis.

Lord, make me an instrument of your peace.
Where there is hatred, let me sow love.
Where there is injury, pardon.
Where there is doubt, faith.
Where there is despair, hope.
Where there is darkness, light.
Where there is sadness, joy.
O Divine Master,
grant that I may not so much seek to be consoled, as to console;
to be understood, as to understand;
to be loved, as to love.
For it is in giving that we receive.
It is in pardoning that we are pardoned,
and it is in dying that we are born to Eternal Life.
Amen.

Reflection

2010-12-28T18:04:00.002-06:00

Christmas. Family. Celebrations.

So much of life is a surprise. The unexpected hits us like a train on a random Tuesday afternoon and we are forever changed. But in the end, we must endure the pain to appreciate the joy. Endure the sorrow to appreciate the love.

As this year winds down, I am reflecting on all that has happened -and entreating myself to go forth with ever more faith in those I love. Faith in God that goodness and justice will prevail. And a concerted effort to live a life of value and kindness and goodness.

I am not perfect -- but in 2011, I will strive to live like Christ. I will strive to remember those that are forgotten. I will strive to always see the good in my fellow man. And I will strive to remember what incredible grace every fellow human being possesses.

Meeting a legend

2010-11-19T12:36:00.002-06:00

My friend Tobi said it best after we were graced to hear Justice Stevens speak in Houston this week: "I have hope for America." Me too.

And some perspective ...

2010-11-08T10:39:00.002-06:00

http://www.nytimes.com/2010/11/06/world/africa/06congo.html?nl=todaysheadlines&emc=tha21

More than 600 women and girls were recently raped along the Congo-Angola border during a mass expulsion of illegal immigrants, according to the United Nations.

I'm going to stop whining now. Really, I am. I am just going to be silent. And pray.

Silence

2010-11-08T10:35:00.002-06:00

I have been quiet with the recent news of Anthony Graves' capital murder dismissal. From afar, I have watched that case. I know a few of the people who struggled valiantly to free him. It's a bit overwhelming, especially when Governor Perry says this shows the system works. That's just ignorant. And the fact that Ex parte Graves from the Court of Criminal Appeals stands for the even more incredibly ignorant proposition that a death row inmate is not entitled to effective assistance of counsel on habeas - despite our legislature passing a law that says "competent counsel SHALL be appointed." So I am joyful for Anthony and his legion of supporters. But I am discouraged with the state of the law.

Truths

2010-10-20T13:43:00.002-05:00

I was brought up a certain way. Here are some truths I was taught by John and Norma Maselli.

Never make a promise you cannot keep.

Say what you mean and mean what you say.
Your word is your bond.
Pay your bills first.
Be consistent.
Never lie.

And no matter how hard or difficult the above list is - never deviate. Nothing startling. But sometimes I need to remind myself where I come from. And who I am.

Emotional

2010-10-13T08:39:00.002-05:00

"Finishing a marathon is emotional," said Katherine, a veteran of 50+ marathons speaking at the Marathon Expo in Chicago two days before the race. I did not know what she meant. Now I do. And the emotion is not gone -- despite a few days passing. It is like a rolling tide that can cause me to tear up, even as I write this. But I want to share my feelings while they are still fresh.

I said I would do it and I did it. Doctors told me not to run. The pain was excruciating. But I always follow through on what I say I am going to do. And I did. It took me 7 hours and 12 seconds -- hardly anything to be proud of time wise - but I finished. And I got a medal. I will forever treasure this medal.

Thank you to the countless other runners who encouraged me when I faltered. A stranger who touched me on the back during a particularly painful stretch and whispered, "You're awesome. Keep going." The couple who told me on mile 22 that even if I did not finish in the"official" time, I would still get a medal. That inspired me to post my second fastest split time. The sisters who joked and laughed with me at mile 19 - their shirts both said on the back, "Race Official. Do not pass." The runner whose sign said "I used to weigh 312 pounds." I was inspired by all.

Thank you to the spectators of 1.5 million people who lined the entire course. And how even at 7 hours, many were still there cheering on someone like me. Their smiles and encouragement and cookies and water were just what I needed. A woman offered me Tylenol when she saw the pain evidenced in my face. Little children high-fived me. I have never been an athlete - never part of a team. Now I know what it feels like to have people cheer you on ... it's amazingly powerful.

And I believe God was with me .. at mile 13, I was weeping with pain in my foot. I sat down on a bridge and could barely breathe. So I laid down on the sidewalk. The sun was so hot - but I felt entirely transported. My "official" time for that 5K segment was over 80 minutes - I have no idea how long I was lying there. But I made the decision then - it is either quit or finish. Those were my only options. And so I decided to not be a quitter. I prayed during the final half. I thought of my father as I wore a locket with a picture of him and my son which I touched repeatedly for strength. And the pain was still there, but I ignored it.

And finally, my husband. We trained for this together. He continually believed I could do this. He supported me through every single run. My biggest fear was keeping him from finishing. At mile 10, after countless requests, I convinced him to run ahead. I wanted him to have his best marathon without me holding him back. He did not want to go, but I convinced him he should. As I watched him run off, wearing the "Born to Run" t-shirt I bought him when we first were dating, I gained strength. I knew then, I had to finish to get back to him. I knew I had to get to the end to be with him. And as a metaphor for life, I knew that as much as we are husband and wife, life (like running) is ultimately a solo journey with love (if you are lucky) and friendship and humor and pain and angst.

As I crossed the finish line and got my medal, my only thought was to get to the runner reunite area so he would know I finished. It was four very long blocks, and when I got there, he was waiting. He had tracked me and knew I would finish. We both had medals. We both hurt. But we finished what we started. We supported each other. We are marathoners.

And finally - a hearty thanks to my supporters - Scrappy Holmes, David Moore, and Mark Snodgrass. I am matching your contributions and sending our money to support Women of the Congo. Because no matter how hard this 26.2 miles was, their struggle is still ongoing.

The Court of Criminal Appeals

2010-10-06T12:43:00.003-05:00

Stare decisis: Lat. "to stand by that which is decided. The principal that the precedent decisions are to be followed by the courts. To abide or adhere to decided cases."

It is a general maxim that when a point has been settled by decision, it forms a precedent which is not afterwards to be departed from. Apparently the Court of Criminal Appeals is not a fan of established precedent. The Court continually disappoints with this rejection of a maxim we learned the first day of law school.

The Court has overruled itself from just a few short years ago and determined there will no longer be a factual sufficiency review. This review reversed a case only if it was so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Such a wrong and unjust verdict includes instances in which the jury's finding is "manifestly unjust, 'shocks the conscience,' or 'clearly demonstrates bias.' "Jones v. State, 944 S.W.2d 642 (Tex. Crim. App. 1996)). A westlaw search would show thiese types of cases were infrequent and rarely was there a reversal.

Cases are now pending using this analysis. Lawyers and clients have relied upon precedent from the CCA in order to prepare an appellate brief. Now those briefs are worthless. Relying upon established precedent from the CCA is a tenuous position as an appellate lawyer in Texas, apparently. I am so thankful the majority of my practice is in federal court. I will never say the feds are perfect, but I don't ever recall seeing anything like this. Anything.

So what now? Tell my clients that four members of the Court of Criminal Appeals changed their minds. And so the brief I worked so hard on is useless. And what I told my clients about factual sufficiency is no longer true -- that if the Court saw an injustice it would be righted. I'll tell my client the wrong won't be righted.

http://www.cca.courts.state.tx.us/OPINIONS/HTMLOPINIONINFO.ASP?OPINIONID=20190

The little train that could

2010-09-28T11:54:00.004-05:00

I think I can. I think I can ... I used to read that story to my son Michael and I hope he will someday understand what perseverance and commitment mean from that child's tale.

I have my own "I think I can" moment going on right now.

I think I can run and finish the Chicago Marathon. I think I can.

There's no big mountain I have to overcome -- unless you consider the following:

2008 ACL reconstruction and meniscus repair. Rehab for almost a year.

February 2010 - Decide to run a marathon to get back into shape.

July 2010 - Injure knee.

August 2010 - Continue to ignore injury, stop training, and give up.

August 26, 2010 - Recommit to myself and see a doctor.

September 2, 2010 - I need knee surgery for a torn meniscus and am told to not run. I tell the orthopedist I am running and will have the surgery later.

September 19, 2010 - Run my fastest 10 miles straight - knee OK, foot HURTS.

September 26, 2010 - Half marathon ... first 4 miles OK - Last 9+ the most horrible pain I have ever experienced in my foot.

September 27, 2010 - No stress fracture. But an inflamed plantar fascias that has almost immobilized me.

Message to doctor yesterday - Get me running. I must run. I am now on major doses of anti-inflammatory drugs, Voltaren Gel four times a day to reduce swelling, lidocaine patches to numb the pain, and 13 days to heal.

I am running. I think I can get a finisher's medal. But even if I do not finish in the allotted time - I will finish if I am crawling. That I know I can do.

Henry Ford said, "Whether you think that you can or you think you can't, you are usually right."

Don't Ask, Don't Tell

2010-09-23T09:50:00.002-05:00

Former Vermont Governor Madeleine Kunin wrote today, "The Senate vote against the repeal of "don't ask, don't tell," was more than a repudiation of equal rights for our gay and lesbian citizens; it was downright unpatriotic."

http://www.huffingtonpost.com/madeleine-m-kunin/dont-ask-dont-tell_b_736268.html

Growing up a mere three miles for Vermont, I remember when she was the Governor. And I am glad she is still around to tell it straight. It is absolutely unpatriotic and unconstitutional to deny people the right to serve in our military if they choose to live a life openly about who they love. This is not hard. Not rocket science. And frankly, I cannot believe we are still having this discussion.

(And you know - I am still mad at Bill Clinton for this policy. Along with being mad with him still about cheating on his wife. And I will forever be mad at him for AEDPA - which in my opinion is not just unconstitutional, but just downright unfair).

Ranting aside - in 2010, THIS is what Congress is fighting about? THIS is what is important to our Government when we have almost double digit unemployment and a recession?

I'm mad today. Just mad.

Women for Women

2010-09-19T18:48:00.003-05:00

As I blogged about several months ago (maybe a year!) I spoke about the woman I was sponsoring in Rwanda. She sent me two letters and I have supported her and thought about her often. I got a letter saying she had "graduated" form the program I was supporting and I was now being given another woman to sponsor. I was surprised and taken aback. I am glad Soline is doing so well. And my new friend is Charlotte, also from Rwanda. She has suffered greatly through the war and has six children. I am excited to help her and get to know her.

On a less exciting note, my marathon training has been slightly derailed by one Ipod Nike Fit that apparently was not measuring the distance properly. I just discovered this on Saturday when I ran with my husband who also had his Ipod Fit on. The distances were different. So we tracked the route in the car. I realized I am going to have to run faster to finish the marathon in time. I am semi-depressed but will NOT let that change my goal. I will finish. I will run for Women of the Congo. And I will get a finisher's medal. I am running 10 tomorrow morning. So I guess I better leave work this Sunday night at 7:00 pm.

Contemplation

2010-09-12T11:06:00.005-05:00

The Chicago Marathon is four weeks from today. Yesterday my husband and I ran 20 miles. He runs much faster than I do ... so we pass each other periodically as we run. I measure my time and distance with my Ipod Nike attachment. And I listen to a shuffle of all the songs on my Ipod. I started out yesterday with Tim McGraw's "If you're reading this." It is the story of a soldier who dies and is beautiful and sad.

As I was finishing up mile 15, Bruce Springsteen's Johnny 99 came on. I will admit, I have never really "listened" to the song, although I love the Boss. Yesterday I listened. And then listened to it again. And again. It is the story of a man going to prison because of an unjust system. It broke my heart because I have seen this story played out repeatedly during my practice. The line that really got me was:

His mama stood up and shouted "Judge don't take my boy this way"

www.brucespringsteen.net/songs/Johnny99.html

I'm here at work today -- trying to stop the injustice. And stop their mama's crying, if I can.

The Heart of Darkness

2010-09-10T08:55:00.002-05:00

For you Joseph Conrad fans ... sorry. This is actually a reference to Williamson County. I am now officially, The Law Offices of Jani Maselli. Besides my downtown Houston office, I have opened an office in Georgetown Texas and love it here. My new office mates are great and cool. But I have heard how difficult it is to be a defense lawyer here ... so while I office here - I think I'll keep being a Houston lawyer. A leopard can't change her spots.

On another note, yesterday at the HCCLA meeting, there was discussion that one of the judges actually has a sign in her office stating that no investigation will be approved until a case is set for trial. Wow .. how do you know if you need a trial, if there is no investigation? Is this really providing a proper defense, to set every case for trial so that an investigation can be done? I find it shocking how cavalierly the Sixth Amendment is discarded.

There were also numerous tales of woe that indigent defense funds are being severely cut back. Hmmm .. let's see if the judges or assistant district attorneys get a pay cut ... doubtful for sure.

Defending the Constitution is never easy - but I hope to bring some good and light in both my offices!

Rants and Raves

2010-09-09T07:12:00.003-05:00

My son is in a new school. I got a paper asking me if I would allow him to view the address to school children given by President Obama. Really? Shouldn't I have to affirmatively "opt out" rather than "opt in?" It made me angry. I would LOVE to know if President George Bush's speech to millions of schoolchildren required a permission slip in 1991.

http://bushlibrary.tamu.edu/research/public_papers.php?id=3450&year=1991&month=10

This type of politics regarding our children is outlandish and only perpetuates a disdain for our President.

And now a rave -- Marathon update. Knee surgery is looming. However, I have been given the OK to run IF I am not in pain. So, I continue to train and the countdown to Chicago begins ... Four weeks and three days ... This Saturday will be the longest run I have ever done in my life ... 20 miles. I'll let you know how it goes!

And as I may have mentioned, I am running for Women of the Congo. In July there was a large scale rape of women ranging in age from 13-80. It has only recently been reported. http://news.asiaone.com/News/Latest%2BNews/Story/A1Story20100908-236213.html

But there is hope.

http://drc.vday.org/city-of-joy

We can all do our part. I got another supporter for my marathon run -- Mark Snodgrass of Lubbock has contributed to Women of the Congo. He is a kick-butt lawyer with a HUGE heart. Thanks Mark.

New beginnings ...

2010-09-07T19:57:00.002-05:00

I have been speaking at several continuing legal education seminars the past few weeks. Federal writs. Preservation of error in voir dire. And tomorrow state appeals and preservation of error at trial. Ostensibly I am "teaching" at these seminars. But what always happens is that I learn far more than I can ever impart. As I travel across this great state, I get the opportunity to meet some awesome attorneys who truly fight the good fight every day. Lawyers with great heart and imagination and intelligence to represent their clients daily.

I think the most important thing I have "learned" (or re-learned or re-focused upon) is that creativity must be an integral part of a lawyer's job. We must constantly push the boundaries when the courts try to deny us the right to represent our clients. We must make objections never made before. We cannot let pass the daily indignities thrust upon us.

I am fighting. Fighting hard. And I know my colleagues are doing the same. I wish us all well!

Changes

2010-09-06T10:12:00.002-05:00

Blogging resumes. Life is good. Law is always present. And I apologize for my absence. It shouldn't happen again.

Recently I lost a case at the Court of Criminal Appeals. A writ. The law is you get one writ. This one, the State never answered. The trial court probably never ever saw. And the Court of Criminal Appeals took this one man's ONLY chance for collateral review and denied it in 21 days. This is justice. This is your one chance for a full and fair hearing. This is what judicial review has become. I am thoroughly disappointed in the Court. But re-energized in seeking relief in federal court and explicitly explaining to the federal courts exactly what type of "review" state inmates are getting.

Justice Souter

2010-06-04T09:32:00.003-05:00

I admire Justice Souter. I was sad to see him leave the Court. His genius is missed. So, I was very glad to read the text of his commencement speech at Harvard this year.

http://news.harvard.edu/gazette/story/2010/05/text-of-justice-david-souters-speech/

Here is a really good portion:

The reasons that constitutional judging is not a mere combination of fair reading and simple facts extend way beyond the recognition that constitutions have to have a lot of general language in order to be useful over long stretches of time. Another reason is that the Constitution contains values that may well exist in tension with each other, not in harmony. Yet another reason is that the facts that determine whether a constitutional provision applies may be very different from facts like a person’s age or the amount of the grocery bill; constitutional facts may require judges to understand the meaning that the facts may bear before the judges can figure out what to make of them. And this can be tricky.

Judge Souter understood that the Constitution is not just a "text" to be strictly interpreted. It is too broad and times change. His example of Plessy and Brown properly demonstrate why the Constitution needs to be interpreted by good judges and considered a living document.

I have missed you Justice Souter. Good to see you are doing well.

Miranda?

2010-06-02T05:30:00.002-05:00

The Supreme Court's recent opinion that actually "being" silent is not the same as affirmatively saying you want to be silent would be laughable were it not so sad. (Berghuis v. Thompkins, No, 08-1470). Are the rights that our soldiers die for so devoid of value that a stroke of the pen can deny us the right to "remain silent." After hours of questioning, the defendant finally uttered a statement -- would four hours of silence be enough for the police to understand he wanted to remain silent? Now, the accused (not convicted - not a criminal - merely someone the police think might have committed an offense) must explicitly state he wants to "remain silent."

Call me a cynic - there will be decades of litigation over what is an "explicit" expression that a suspect wants to remain silent. If "can I wait for my lawyer?" is not a request for a lawyer under Texas law, would "can I remain silent?" not be sufficient to let the police know there has been an invocation of the right to remain silent?

I am disappointed with this decision. I am not surprised, at all.

Bad lawyers

2010-05-31T07:21:00.003-05:00

I have always believed the best of my brethren. I have a high standard I set for myself, and believed everyone had the same standards. But I have been sorely disappointed with a few other lawyers the last month or so.

Liars and cheaters. Some may be surprised that I have just come to that realization after almost 16 years practicing. But I have seen it in action and it was about as despicable a thing as I have ever seen.

But rather than focus on the very few bad people -- I am going to focus on the numerous great and brilliant lawyers who inspire me daily - my office mates.

Mac Secrest. George Murphy. Todd Bennett. Nicole Deborde. Jane Scott Vara.

Whenever I need to be reminded that lawyers are good people, I go to work. Lawyers who defend with respect and compassion for all. Lawyers who understand the fight continues every day, work beside me every day.

So I will forget the mistreatment I have seen. I will forget that sometimes lawyers care more about scoring points for themselves than defending their client's interests. I will forget that rudeness prevails far too often.

And I will remember the gentle brilliance and kindness I encounter every day.

Injustice

2010-04-26T14:22:00.002-05:00

I saw a lot of that today at the courthouse. I saw legal arguments ignored. I saw the law of the land mis-cited, misquoted, and misapplied. And I saw enough to know that at the end of the day, I am proud of what I do. Very proud. But I only speak for myself.

Wow ...

2010-04-21T13:55:00.003-05:00

As my faithful readers know (all three or four of you) I am not the best of bloggers. I try - but I fail frequently. But I always try to be fair. I always try to be understanding. And, my blog is really my life through the prism of law, single mothering, and Bruce Springsteen.

I just noticed today that a reader posted a comment about my views on the death penalty with the final remark that my views would be different if it were my son who was murdered. First, I was stunned that someone would even comment, honestly. I understand my views might not be everyone's view, but I have always tried to respectfully present mine. I guess what I found troubling was that someone would actually write to me to envision violence against my child. To me, that crossed the line.

But I will say that if something were to happen to my loved one, I pray that I would have the grace of God to not wish death upon the killer. I was brought up (and I know not everyone is Christian either) that Christ taught us to forgive. I don't know that if I prayed or wanted someone to die, that I would be practicing forgiveness or living as Christ would want me to live. Now, I cannot fully say what I would do, because I have not been there. But I truly hope and pray I would stay true to the values I was taught.

I guess as a blogger I have opened myself up to these comments. But I also know that I will always remain true to who I am. True to what I was taught. And true to the principles of forgiveness.

Justice Stevens

2010-04-19T14:41:00.002-05:00

And I do realize I am late to the game here ... but I have actually had a couple really cool oral arguments and some briefs keeping me busy and away from the leisure of blogging.

First - I read that Justice Stevens was the last Justice appointed on merit alone and not politics. Thank you to the late President Ford.

Second - I hope hope hope that whoever replaces him is qualified and won't get beat up too badly in the confirmation process. It's become more of a game than a vetting of ideas.

As for my own cases - In the last couple weeks, I have been fortunate to argue before the United States Court of Appeals for the Fifth Circuit on a carjacking case. And I also argued before the Tyler Court of Appeals on a DWI appeal. Both were satisfying, but this was my first argument in Tyler.

And was I impressed with the Court. The judges were insightful, interested, and actually respectful. It was a great, fair, intellectual oral argument and I am hopeful the right decision is made!

Minor Rants and Rves

2010-03-31T02:27:00.002-05:00

I apologize for the lack of blogging ... along with constitution defending, life is very very good and so something had to give.

Harris County is spending millions of dollars for a soccer stadium combined with cutting the pay rate for lawyers who represent the indigent. Their priorities are strikingly shameful.

The U.S. Supreme Court might be losing Justice Stevens. The thought truly makes me sad. What a great legacy and great intellect to lose. Over Spring Break, my son and I visited Arlington National Cemetery and saw the graves of Thurgood Marshall, William Brennan, and Harry Blackmun. When I was in law school these men were the visionaries. With the loss of Justice Stevens, I am not sure who to be inspired by anymore.

There was an execution in Texas tonight. I represented him years and years ago on direct appeal. I continue to believe the death penalty is wrong in every instance and that God loves the sinner as much as the saint. I am also hearkened back to John Donne's poem - that no man is an island and the death of every person diminishes me.

In the years since I began my practice, I know I have become more "professional" about being detached from my clients. But I still feel for their plight. I still feel that somewhere they could have been saved. And I know that God can forgive any sin.

I have upcoming oral arguments in New Orleans and Tyler, Texas. I hope for justice.

And I will try to resume semi-regular blogging!

And as an update on my Chicago marathon run for Women of the Congo ... the 28 week training program began this week as I injured my foot! But we did 5 miles on Saturday and 4 miles this past Sunday. This week I have to fit in a 2 and a 4 and an 8 miles run ... I just keep the thought of those suffering souls in my head as I pound every step and gasp for every breath!

When it seems no one cares ...

2010-03-11T10:49:00.004-06:00

Senator Patrick Kennedy provided an impassioned speech about the press covering the personal peccadilloes of a congressperson rather than the war in Afghanistan.

http://www.youtube.com/watch?v=9Q-VGZiEbrs

I admire Patrick Kennedy for doing his job.

Defending those convicted of crimes takes a special passion for doing what is right. Most days I have it. Some days are harder than others.

But I am going to continue doing my job. And think of better ways every day.

And I do care. The people I know care. So, I hope the war ends. I hope justice prevails. And I pray for peace for everyone.

What's right is right ...

2010-03-01T19:52:00.003-06:00

The Supreme Court heard argument today on whether "equitable tolling" should apply if an attorney actively misrepresents to his client that he is going to timely file a federal writ of habeas corpus. As the law currently stands, the inmate is out of luck if the deadline is missed because of his lawyer's fault - absent exceptional circumstances.

I'm sorry. This should be a no-brainer. Through no fault of the inmate, the deadline is missed. Equity is fairness. What's right is right.

The Supreme Court also heard argument in the Skilling case. The voir dire in that case was excessively short in a case of that magnitude. And what are the "honest services" Mr. Skilling allegedly deprived Enron of? Again. What's right is right. Prove he had a culpable mental state in committing an offense that is not vague or downright unconstitutional. Then we will have a verdict worthy of confidence.

p.s.

2010-02-21T12:10:00.002-06:00

I got another donation to my marathon run for Women of the Congo. I have already raised money -- and I trained hard at my seminar. Thanks to David and Scrappy!

News

2010-02-21T12:04:00.003-06:00

Let's see - it's not Tiger Woods. I am sorry - the prurient interests of the press sicken me. The man has a family - would it be so hard to respect him.

I have some excellent ideas for news to fill the spots currently filled by Tiger:

Did any soldiers die today? What were their names. I saw a quick news story with some caskets being removed from the back of a plane with an American flag draped over them ... I'd like to know about those people.

Did any children go without food today? I'd like to hear why they are not eating and what I can do to help.

How many more Americans lost their jobs today? How are they coping not just economically, but emotionally and spiritually? I read where one woman has started going to church more frequently since sh has no health insurance - she prays to God to keep her healthy. I know there are more like her. Tell me about them.

Are there any children or adults in the world who still cannot read? How do they manage?

I know there is always a little bit of news when an exonerated inmate is freed - tell me the story of the guilty man serving his time who has turned his life around behind bars. Tell me that prison changed their lives for the better.

I did not major in journalism and I don't pretend to understand the geopolitical forces in this world -- but there are stories to tell far more important that whether a golfer cheated on his wife.

Why I love lawyers

2010-02-18T09:21:00.003-06:00

Yes .. I know - it is popular to hate lawyers. Jokes about the profession are legion. But I truly feel I am privileged to be licensed to defend the Constitution. I am privileged to know some of the most fearless mightiest warriors this country has ever produced.

And I have been graced with the kindness of too many to even recount. Recently, I have been sick. And overworked. And having to attend a seminar which I had already paid for. But, yesterday, I told just one lawyer about my goal to run a marathon and raise money for women of the Congo - and he took cash out of his pocket and gave it to me. Just gave it to charity.

I know he is a warrior. And I know he's got heart, too. What an honor to know him.

I think raising money for my cause won't be that hard considering the group I will be asking.

The Budget and Lawyers

2010-02-11T08:03:00.005-06:00

Although I do not handle many court-appointed cases in the state courts, I have heard that the court appointed lawyers are getting their pay cut significantly. I also heard a rumor that the proposed Harris County Public Defender's office is probably not going to happen this year (not sure if that is true or not).

I understand budget cuts. I understand we all have to make sacrifices. But is the Constitution really where the sacrifice needs to come from? Does liberty have a price tag? From what I hear (again speculation), the assistant district attorneys are not getting a pay cut. I am glad - they deserve more money for all the work they do. The district and county judges are not getting a pay cut. So, in the wake of a budget shortfall, the lone person who stands between the unfettered power of the Government and liberty is getting his pay cut.

I marvel at the audacity of this County Government to implement such cuts in the wake of their incredible incompetence at defending the Constitution. There is only ONE reason why Harris County has not had the same number of exonerations as Dallas County - because here they destroyed all the old evidence. Makes it easy to deny relief to the innocent when there is nothing to test.

And at this age in my life - this stage of my career - I know the reason is because defending the accused or convicted is not popular. Defending atrocities isn't what people want to spend their tax money on -- until it's their boy accused. Until they know the pain of seeing a loved one thrown into a cell for life.

I reject their cuts. I reject their disdain for what I do. I pray my fellow defender brothers and sisters can continue to fight for their clients in light of these cuts. And in the end, society is judged by how we treat those others would despise. Right now, Harris County has failed.

Lives can be turned around ...

2010-02-09T08:08:00.002-06:00

I read in the New York Times today about a young man who was convicted of bank robbery and got thirteen years in the federal penitentiary. At sentencing, the judge was skeptical over his ability to change his ways and said they would see in thirteen years whether he would. While in prison, he studied the law. He drafted two cert. petitions to the U.S. Supreme Court that were granted! Former Solicitor General Seth Waxman argued one and won it 9-0. How amazingly cool. And as heartwarming as the story is with his success, the fact that he really did change his life inspires me. He found something he was passionate about and made good. I hope all my clients get this chance one day.

http://www.nytimes.com/2010/02/09/us/09bar.html?em

Another inspiratiopn

2010-02-07T17:44:00.003-06:00

I have posted that I was planning on running a 10K. That race filled up. SO, now I am running a marathon. I have never run further than a 5K. The race is 10-10-10 and I am running for a charity that helps women of the Congo. http://www.runforcongowomen.org/

This is an offshoot of Women for Women International where I already sponsor Soline from Rwanda. I hope to get enough sponsors and interested friends to help these women as well.

A friend said to me today at the gym as I was training that I should be helping Americans. I did not know what to say, except that all humans are my community. And right now, these women need my help.

The other really great part about this race is that my friends are doing it with me. They continue to inspire and warm my heart with their friendship. How lucky I am.

Inspiration

2010-01-23T08:52:00.004-06:00

Judge Nancy Atlas envisioned and realized a plan for civil law firms to work pro bono and assist capital habeas lawyers on the state level. This is an amazing feat. Her vision is a gift. On Thursday afternoon, there was a meeting and reception at the federal courthouse in the ceremonial courtroom to introduce the program to civil lawyers. Countless luminaries lauded the program including Chief Judge Edith Jones of the Fifth Circuit, Judge Wallace Jefferson of the Texas Supreme Court, Judge Cathy Cochran of the Texas Court of Criminal Appeals, Judge Ricardo Hinojosoa, chief judge of the Southern District of Texas, and Judge Belinda Hill, a Harris County District Court Judge ... all of them were eloquent. Several lawyers spoke as well, including Pat McCann, a local Houston lawyer who represents people on death row.

In my humble opinion, he stole the show. His grace and passion and years in the trenches surely inspired the civil lawyers to join our cause. And he re-inspired me. What we do matters. It has meaning.

Sometimes I forget that even in losing, we win. Thanks, Pat.

Yes, I know ...

2010-01-16T20:40:00.003-06:00

It has been a long time since I blogged. The law tends to be light in news over the holidays. However, it seems courts LOVE to release appellate opinions right around Christmas to clear their dockets. I lost two appeals at the Fifth Circuit on December 23, 2009. They couldn't wait until the new year? What a terrible chore to write those letters before Christmas.

On a personal note, I am re-focusing on my health. I used to be overweight. In 2004, I decided to change my life. And I did. The last two years have been difficult with injuries and work taking priority. While my job will always be integral to who I am and what I do -- I need to be at my healthiest to fight the good fight every day.

I may or may not give a training update infrequently here - I am planning on doing a 10K mud run at Camp Pendleton in June. While I realize there is no chance in Hades my five member "Pain Train," team will win - I just don't want to make my team last!

So while I re-commit to working out and eating right and defending the Constitution - I am also recommitting to blogging and commenting on the law and life and Bruce!

Judges

2009-12-19T08:54:00.002-06:00

Judge Jackson was convicted of official oppression yesterday. I did not want to believe it -- but at least 12 of his "peers" decided he was guilty of each element of the offense.

And Judge Kent -- I had literally forgotten all about him ... and then there is an article in this month's Texas Monthly about his crimes. Dear God, is it worse than I ever thought. The entire article is not available online yet -- but it is the issue with a lovely article about Texas Dance Halls featured on the front.

I had not even picked up the article and a friend mentioned it to me. What he did to the woman of Galveston is appalling. I tried to imagine what I would have done in their situations -- I don't know if I would have been as strong as they were. They tried so hard to stay away from him and keep the jobs they really needed. In the end, they righted a wrong and saved countless women from a predator. And I do not use that word lightly.

I have such a respect for the judiciary. I know it is not realistic - but I think judges are like Solomon. Fair and wise. And we all know that is not true in call cases. I need to remember they are people just like we are.

But I will go back to my comments about Judge Baird -- which I truly could not finish a few weeks ago without crying. In my opinion, he was always fair and wise. He tried his best to follow the law and his moral compass. Knowing he is retiring is devastating to me ... but I know he wants to spend more time with his family.

I remember when we worked on our dissenting opinion in the Karla Faye Tucker case. The writ in that case was one of the best I have ever or will ever read. David Botsford and Mac Secrest had empirical evidence that the Texas Parole Board was unfair and denied Due Process. Judge Baird agreed that, at the very minimum, the Parole Board was required to give a modicum of Due Process (which the Supreme Court also held months after Tucker's execution). Judge Baird agonized over every word and phrase. At the time, I was the staff attorney and Anne More Burnham, was his briefing attorney. The three of us sat for the entire day word and line editing. Judge Baird cared so much about doing and saying the right thing.

I also remember our dissent in the Tennard case. We all worked on it and even though we lost, it had meaning. Years (and I mean years) later, the Supreme Court reversed Mr. Tennard's conviction and quoted Judge Baird's dissenting opinion. I wept when I read that -- all those years later, his sound reason and understanding of the law was vindicated.

Judge Baird inspired me to be better. Always better.

In the end, judges are like people -- good and bad and good people making bad choices, perhaps. I am ever grateful I worked for the best.

End of year musings

2009-12-17T08:12:00.002-06:00

I am trying not to be too philosophical as 2009 winds down. Frankly, I have been so busy, I had not even noticed Christmas is next week!

I think justice is off to a good start with Justice Sotomayor's appointment. From what I have read, she is engaged and active at oral argument. And there is no doubt about her qualifications. I am excited to see what the Supreme Court does. Although their recent decision in Beard v. Kindler was a disappointment -- a hypertechnical decision whether the adequate-state-ground doctrine precludes federal habeas corpus review if the state procedural rule is discretionary. Of course, the defendant in this case was highly unappealing - bad facts make bad law would be the result in this case.

And more locally, Judge Jackson is on trial for official oppression. The allegations are he propositioned a defendant with the offer of a better lawyer if she were in a relationship with him. I do not want to believe he committed a crime. I want to believe it was a chance reckless act. I have not heard all the facts -- but I hope the jury makes the right decision.

And on a personal note ... I was listening to the great philosopher Stevie Nicks this morning -- ending quote of the day: "Can I handle the seasons of my life?"

Texas

2009-12-13T10:28:00.002-06:00

I spoke in Longview Texas on Friday -- what a great crowd. But what I also enjoyed was the drive through the piney woods of East Texas. I have lived in Texas over 20 years and it seems that through CLE speaking opportunities, I get to discover more and more beautiful places in this great state.

Longview is awesome. Although, I think in a showdown, Comstock might win out.

There's something about the harsh landscape of West Texas. You have to work to love it. Like so many things in life.

Quote of the day ...

2009-12-08T09:02:00.002-06:00

"I don't look at happiness as being a great goal. A sense of peace, definitely, but it's like the seasons. I think we're meant to have a spring, summer, autumn and winter. I'm not looking for a perpetual summer because that would be a flat line." Joely Richardson.

I know I am not in summer ... maybe the Autumn of my life. ... And where are you, faithful readers?

Why I am the lawyer I am ..

2009-12-02T08:12:00.002-06:00

Friends, I got an email today that Judge Baird was retiring at the end of his term. I am stunned. I was his staff attorney at the Texas Court of Criminal Appeals from 1997 to 1998. Those two years were difficult and demanding and intellectually challenging on every level. But I had the good hand of Judge Baird to guide me and teach me about doing the right thing.

When I was assigned my first opinion to write (my first day of work!), I vividly remember standing in his office, holding the shuck, and asking him how it was supposed to come out. He looked at me quizzically and said, "The law will determine the outcome." And the law did. He challenged the law when it was wrong and honored precedent like no other jurist.

I am trying to write this and reflect upon my years with him and I keep tearing up. Maybe more later ... but the people of Texas are losing not just an intellectual giant, but a kind, decent, caring public servant who never forgot who he worked for.

Thanksgiving

2009-11-25T19:44:00.003-06:00

I am on vacation -- and while I have been checking emails, I have no cell phone. Reason One - cost. But the real reason is that I am with my son and my mother. The two people I worry about the most and for whom I am most thankful, are with me.

I am very thankful for the job that I have. I am thankful for the people who entrust their loved ones fate with me. I know this time of year must be so hard on all my families. Those who cannot be together during the holidays suffer.

I look forward to my return to "normal" life -- work, working out, and eating right. Vacations can be too much fun packed into one week. But I am thankful we could all be together.

Meaning

2009-11-17T17:25:00.004-06:00

Today I was moved. I am not sure if it was because of the extreme number of hours I am working or some sort of universal karmic grace ... but I made a connection with a human being today and might never be the same. I was driving from work, my head full of law and to-do's and places I needed to be and a homeless man stopped in front of me. I smiled because that is my automatic response and he turned his head ever so slightly and smiled at me. A real smile with a crinkle in his endless blue eyes. For at least several seconds, we connected and were engaged. The light turned and I drove off, inexplicably sad. That man saw me. That man graced me with a smile. That man with nothing chose to give me what he had -- kindness, grace, and a soulful look. As crazy as this sounds, that song ran through my head ... What if God was one of us ..." I have been touched today.

The impossible

2009-11-15T06:30:00.003-06:00

I have heard - but never had anyone actually tell me - that it must be great to be a defense lawyer because you work half a day and you are done. If it were only true. I am working now - after working all day yesterday and there is really no end in sight. My good friend Mac was at the office yesterday and the only view I had of what looked like a lovely Saturday was out the window of my office.

I am NOT complaining. I am NOT sorry I worked. I do what I do because I love it. It's not easy and it's time consuming -- but it is the greatest joy to know you are working to right a wrong.

I am grateful my mother is here to help me with my son and the laundry and the dog and in general, run the house.

And I'll end with a quote that is going to inspire me in my work today!

"There is no use in trying," said Alice; "one can't believe impossible things."

"I dare say you haven't had much practice," said the Queen. "When I was your age, I always did it for half an hour a day. Why, sometimes I've believed as many as six impossible things before breakfast." -- Lewis Carroll

Back to believing in the possible and working and defending! Happy Sunday, friends.

To Dallas

2009-11-13T03:46:00.002-06:00

Today, I am heading to Dallas to speak about how to write a brief in a capital case. I have spoken at many seminars and felt confident writing the paper. And then, realizing the gravity of the assignment, I started second guessing myself. I think that is inherent in appellate lawyers. We deconstruct every element of a trial to try and find reversible error. We do the same in our own lives, as well.

To assuage my fears, I started calling people. I called Judge Cochran of the Texas Court of Criminal Appeals. I called the Court's attorney, Sian Schilab, who worked in the death penalty section almost two decades before her well-deserved promotion. I called Jan Morrow - a prolific and incredibly thoughtful appellate attorney. They were all gracious with their time and incredibly helpful in ideas and also confirmed that I was OK. Their help thoroughly solidified my paper and their insights will be invaluable in sharing today.

It will be a good day - I should be home by 3:30 to get in some work for my clients who really need my help too!

Legal blogging semi-resumes

2009-11-11T04:26:00.003-06:00

The Supreme Court heard argument about whether it was cruel and unusual punishment to incarcerate juvenile offenders for life ... to me, that is a no-brainer. But apparently, there was spirited debate. We don't consider juveniles sufficiently able to make a decision about drinking or smoking or even driving. We don't let juveniles enter into a contract with the Armed Services. We don't let them vote. They need permission to marry; heck, they can't even have consensual sex legally. The rationale for all of that legislation is juveniles lack the sufficient mental capacity to understand complexities meant for adults.

Crime - the knee jerk reaction is that a juvenile has done a crime and should pay. But if we apply the same standard we use for juveniles to limit all their activities, it equally applies in the instant case. They do not fully comprehend the consequences of their actions. Scientific and psychological studies have confirmed that.

So why the debate?

The Law

2009-11-10T04:50:00.003-06:00

I enjoy the practice of law. When compared to the practice of life, it is so much easier. The law has rules and books and guidelines and forms that shape our work ... life, is a lot harder. Sure, there are self-help books and churches and friends .. but it is a solo journey for the most part and lots of time there is no precedent or stare decisis for the twists and turns and falls we encounter.

Today, I am only focusing on the law. It makes sense. Tomorrow - maybe life. I don't know, yet.

Wide Open Spaces

2009-10-29T05:43:00.002-05:00

I won't even begin with I'm busy ... that is a given. I am in Comstock, Texas this morning. I traveled 11+ hours yesterday by car, plane, and car to get here to speak at a CLE this morning. Comstock is north of Del Rio and what I would term West Texas. I LOVE West Texas. The landscape is beautiful. But most of all, the people are incredibly friendly. The warmth contrasts so absolutely with the starkness of the surroundings that I am completely drawn in.

I was bemoaning my fate yesterday morning that it was so far and I did not have time and I would be in the car for hours ... and once I landed in San Antonio, I got my Ford Focus and started driving. As I headed further and further West, listening to E Street radio on the satellite radio (I MUST get one!), I felt calmer and calmer. By the time I hit Del Rio, I had a peace about me I haven't had in weeks. And when I got to the Comstock Motel (there IS a blinking light in town!), I knew I was exactly where I was supposed to be.

There was a party last night for the speakers and attendees at the home of a local lawyer, Martin Underwood. He and his wife Jane could not have been more gracious. Everyone there was laid back and kind and funny and totally West Texas. I realized THIS was a big part of the reason I do what I do. I love my clients and love defending the Constitution -- but a group of criminal defense attorneys from West Texas are about the most fun people to be around. I laughed. I was engaged. They had me thinking. And this morning, I cannot wait to see them all again. What an absolute blessing it is to me to be out here speaking. Thanks to the Criminal Defense Lawyer's Project and Mark Snodgrass for letting me come here. And thanks to God for creating perfection in the people and landscape of West Texas.

Cruel and Unusual Punishment

2009-10-17T20:42:00.002-05:00

I asked a good friend of mine once if he ever felt like he was juggling 40 balls in the air at once. His reply (with the expletive deleted) was, "Every &^*%$ day of my life." I am still juggling and working and trying to be the best defender I can be.

I read in the New York Times this week that a woman who was in jail for a non-violent offense was chained to a hospital bed while she gave birth causing her severe and permanent injuries. A panel of the Sixth Circuit held she could not sue for cruel and unusual punishment. The court en banc reversed that decision by a 6-5 vote. How callous have we become. If there is an argument that a criminal deserves inhumane treatment, then we are no better than the criminal. To treat another human so barbarically during the miracle of birth defies human decency. And to bring a life into this world with a mother chained to a bed is beyond explanation.

Each human being is extraordinarily special in this universe. If you believe in God, he loves all his children equally. The saint and the sinner.

Respect

2009-10-15T21:00:00.004-05:00

To my faithful readers (I know of three!) I apologize for my lack of blogging. As those who know me, my work load has pushed me to the brink of exhaustion. I can see a small light ahead -- but in the words of a dear friend, I just hope it is not an oncoming train.

I had two oral arguments in the last two weeks. They were both interesting for different reasons. Typically at the local Court of Appeals, the judges ask few questions and I wonder why they even granted the argument. This time, they were asking great questions with such an in depth knowledge of the record, it gave me hope for a victory. They also issued an order requesting the record be supplemented, based upon one of my arguments. The prosecutor had argued the document was not in the clerk's file. Wrong. It was and now the record for the COA is supplemented and maybe a victory for justice soon.

My other oral argument was for the Fifth Circuit in a complex, multi-defendant, three week long white collar fraud trial. I did not request oral argument for several reasons, the main one being with so many co-defendants, I would get limited time to even make my case. Well, the Court of Appeals ordered me to go and argue. I did. I had five minutes to succinctly present a 68 page brief. I did. The judges were aggressive and then one of them rolled their eyes at me. I was really hurt. I did not ask to come. I was ordered. I left my family and spent a lot of money to travel hundreds of miles for five minutes. I was prepared. I was respectful. I won't be reimbursed for years. And at the very least, I think eye rolling is inappropriate in any legal arena. I have consoled myself with the fact that maybe I imagined it. It's possible.

I am still catching up on tons of work. Defending people as I can. It's a great job, if I can not let things like a little eye rolling upset me!

Not what I asked for ...

2009-10-06T05:11:00.002-05:00

Maybe what I needed. I am still in the midst of working almost around the clock -- but I got my sponsorship package from Women for Women International. I have been blogging for months about helping the women of Afghanistan and this organization offers everything I wanted.

I got my sponsored sister. She is not from Afghanistan. She is from Rwanda. At first, I was taken aback - I had specifically requested a woman from Afghanistan.

But maybe Solina is who I need. And from reading about her, I know she needs me. She is 31 and cannot read or write. She had five children, one son died. Of the remaining four school-age children, only two are in school. She has no electricity. No running water.

I need to help her. I need to make a difference for her. And she is already making a difference in my life. My son was moved to tears over her story. That is the reaction we all should have.

www.womenforwomen.org

Early Mornings

2009-10-01T05:55:00.004-05:00

I have been coming to work between 2 and 4 am for the past couple weeks ... Work requires it. But driving through downtown Houston at those hours presents a far different picture than daylight provides. I see more in the dark than I ever have during the day. Homeless people stretched out all around the courthouse sleeping. Men in rags walking, really shuffling, slowly through intersections oblivious of me and my car. Men in uniforms walking to a nondescript building where Wells Fargo trucks are parked in the back. A building of money on the edge of downtown .. across the street from the Star of Hope shelter.

And this morning, I was "late." At 4:45 a.m., I was winding through downtown trying to get from green light to green light when I went by the federal building on San Jacinto and Capital (I think). There were two buses unloading the most clean cut teen-agers I have ever seen. They were neatly dressed, lined up with backpacks, and then I saw several soldiers. It was busloads of new recruits. And I lost it. Just started weeping for these young people off to fight and defend the Constitution. In the dark of night, I witnessed a call to service. I shall use that for inspiration today.

Roman Polanski

2009-09-29T05:23:00.002-05:00

I read he was arrested on a warrant decades old. His victim, who was 13 at the time he assaulted her, has forgiven him and moved on. Allegedly, the judge reneged on the plea agreement so many years ago. So he has been a fugitive. I'm unsympathetic. Because of his prestige and fame, he has flouted the law. My guys serve their time. My guys don't get the chances he had. Polanski has stated that the system is corrupt. Well, so is he. So are his actions. Face the court - accept your punishment - fight within the law and act like a man. The poorest, lowliest, crack dealer has more honor than this guy.

And yes, I know he has had many tragedies in his life. So have a lot of my guys. Again, I am unswayed.

(I know this seems decidedly un-liberal this morning --- but really, I represent so many people who "man up" even in the face of what can be overwhelming unfairness in our system. They deserve more respect and public outrage than his ridiculoous antics.)

Urgent Matters

2009-09-25T08:00:00.002-05:00

Short post .. still finalizing some major cases -- sometimes the law is not only a jealous mistress but elusive when I am looking for "good" law. As focused as I am on my case, I was reminded yesterday how individually focused each one of my clients are. Sobering realization -- that I "know" but relearned yesterday. Three calls from a former client's pastor. Last one marked urgent.

Although I am not taking calls right now as I finish this brief, I returned the "urgent" call. The Pastor told me his client wanted to be moved to a different federal prison to be closer to his family. In the legal world, that is not urgent. But in his life and the life of his family, it is urgent.

I remember when I worked on his case, I pulled an all-nighter. I did not take calls. Although I was interrupted yesterday unnecessarily, in my mind, for him it was an urgent matter. Alas, I have no sway with the Bureau of Prisons over where my clients are placed.

Back to work ... work. work ...

Some people don't get it ...

2009-09-22T07:16:00.003-05:00

In the Houston Chronicle today there was an article about a man who is going to be executed tonight. The article includes a statement that his lawyers are seeking a stay of execution. In the "comments" section was this:

geewhizfolksI2 wrote:
The attorneys that fight for these scum bags are disgusting. How can you live with yourself?

A whole host of emotions rose within me -- and then I realized that I live with myself quite well. And if you don't like the system of Government that our forefathers contemplated, try another country. We won't miss you.

Judge Buchmeyer passed away

2009-09-22T06:18:00.002-05:00

http://www.dallasnews.com/sharedcontent/dws/dn/latestnews/stories/092209dnmetbuchmeyerob.3f40c60.html

I never appeared before him, but read his article in the the bar journal every month. Lawyers would send him funny stories about court and he would publish them. I sent in a few when I worked at TDCJ and it was published in 18 months later when I was working at the Court of Criminal Appeals. I actually found it and I had received a letter from an inmate wanting to know about the "deposition" of his habeas corpus appeal. He further wrote, "I was told there was a certain type of floor mat that had to be used in the court of criminal appeals." In all honesty, Buchmeyer was the only thing I read in the Bar Journal. he will be missed.

I have been working on some big cases -- and trying hard to represent these men with all my might. The cases are hard. Really hard. So until I see the light at t the end of the tunnel, I fear my blogging will suffer.

I also wanted to note that in the New York Times, there was an article that women are more unhappy now than they were decades ago before careers that gave it all to us. One comment that resonated with me was: “They’re doing more and feeling less.” I am not feeling less. I feel everything -- good and bad. My friend Dave once told me I am either burning hot or freezing cold - no in between. True. And right now I am burning hot to represent my clients and the Constitution and fight the good fight.

http://www.nytimes.com/2009/09/20/opinion/20dowd.html?em

9/11 and beyond ...

2009-09-11T10:16:00.005-05:00

I remember almost everything about that day. The shock has lessened over the years ... but the realization of our vulnerability never has.

One of the tragedies beyond the obvious ones of 9/11 is the diminution of our personal rights. The Government can now wiretap without judicial review, torture "enemies," and have secret trials and prisons the American people will probably never know about.

I never agreed with President Bush's tactics. But when he spoke on 9/11, I was relieved to hear our Commander in Chief. I respected him as our president, especially in a time of crisis. Since President Obama has been elected, it seems reasoned discourse is unacceptable. Instead we have congressmen holding grade school signs at the Presidential Address and one had the temerity to call our President a liar. Great examples for our children.

And I am still appalled over the uproar regarding President Obama's speech to school children. I watched it with my son after school and I literally wept. Of course, his school did not show it. But his message of personal responsibility certainly trumps the latest Republican messages of name calling and foot stomping. In my humble opinion.

Prisons and Food

2009-09-05T09:01:00.002-05:00

I spent yesterday at Death Row. Each of my five visits was meaningful and educational and encouraging to my defense. Then I came home and started eating and eating and eating. This morning I realized that despite a "good" visit, the despair is overwhelming. The weight on my shoulders is staggering. Hostess cupcakes worked a little last night. I start again today with fresh hope for me and my clients.

Say It Ain't So

2009-09-03T06:44:00.004-05:00

Justice Stevens might be retiring. The New York Times reported that he only hired one law clerk for this coming term - not the usual four. I am at a loss for words at the thought of a Court without him.

Many years ago, I had to file a motion for stay of execution in one of my capital cases. It was because the assistant D.A. insisted on setting an execution date before the cert. petition to the U.S. Supreme Court could be decided. That infuriated me - and even more so when she said, "It wasn't personal." Well, it is - because thirty days later would have not inconvenienced anyone. This date (which the judge happily agreed to) forced me to file a stay. I filed it a week before the date, hoping this would spur the Court to move quickly. It did not.

Every day I waited. The morning of the execution, my client called me and asked, "Am I going to die today?" I still get sick at the thought of the exchange when I told him I did not know.

About three hours before his execution, I got a fax telling me the stay was denied and the cert. petition was denied, as well. Then another sheet came though the fax. It said Justices Stevens and Ginsburg would have granted the stay. I remember tearing up and thinking two justices fought for my guy. Two justices fought to the bitter end to grant him a stay. While I lost, I was heard. In defense work, sometime the small victory is what we have to live with.

So, I hope Justice Stevens does not leave - but at his age, he has done more than any American could ever ask of a person. If he retires, I hope he enjoys himself. I will miss him.

Musings and Ramblings ...

2009-08-30T10:24:00.002-05:00

In the New York Times this morning:

A study reported in The American Journal of Medicine this month found that 62 percent of American bankruptcies are linked to medical bills. These medical bankruptcies had increased nearly 50 percent in just six years. Astonishingly, 78 percent of these people actually had health insurance, but the gaps and inadequacies left them unprotected when they were hit by devastating bills.

http://www.nytimes.com/2009/08/30/opinion/30kristof.html?ref=opinion

To anyone who says we don't need a system. those numbers are staggering. I got a notice that my health insurance is going up 22% this year ... and they dropped my chiropractor ... and I still had thousands of dollars in bills this summer form the dreaded dog bite.

The New York Times magazine also had a devastating article about the hospital in New Orleans that euthanized patients during Katrina -- what shocked me the most was the attitude that this goes on every day, but under a "different" name ...

I read a portion of the article to my son ... we are going to New Orleans and I told him we could drive by the hospital - I don't know what I expect to see .. but that type of human tragedy is almost unthinkable ...

As for "legal" news -- Judge Fine was written about in the paper because he had the temerity to question a complainant in a rape case about her allegations when he was sentencing the defendant. Crime is horrible. Justice isn't easy. He is trying to do his best and reporters who rarely know the entire factual situation or deliberately ignore it are hardly the ones to "judge" justice. That is another reason I canceled my subscription to the Houston Chronicle. I only heard about this from other people.

I watched Ted Kennedy's funeral yesterday and balled like a baby. This morning I tried to contemplate what had me so emotional ... and it was like when my Dad passed away .. a person who had always been a part of my life was gone. I was once a completed puzzle, now several pieces are gone and I am less than the whole, I think. Ted Kennedy was MY senator. He was Massachusetts. I loved it when people accuse me of being a Kennedy loving liberal Yankee from Massachusetts. Yup. That's right.

I started teaching at the law school again, as well. My class is HUGE ... I actually like it. I am so used to a more intimate setting - having almost 30 opinions floating around is invigorating. Of course, when grading comes, I might not like it. But for now - 30 bright minds on high alert .... all good!

For My Son

2009-08-27T07:04:00.003-05:00

As I have written on this blog in the past, the plight of women in Afghanistan has troubled me and made me question my own place in this universe.

Last night, I started reading my Sunday New York Times (!) and the magazine section was about women in the world. The headline was "Why Women's Rights Are the Cause of Our Time." In it, are horrifying facts about the treatment of women in this world. There was even a follow up article about the young Afghani girls who were burned with acid on their way to school. Many readers sent money, but the parents were too frightened of retaliation to have their daughter's injuries treated.

But there were nuggets of hope and finally, a place I could go to do my part. This morning, I sponsored a woman in Afghanistan - to help her rebuild her life after war.

http://www.womenforwomen.org/index.php

There is also a way to sponsor a child --you can go to www.planusa.org.

Or make a loan for a small business for as little as $25 on www.kiva.org.

The cost for me is $27 per month. A tiny investment in making this a better world for my son. And a tiny way to give back because for some reason, I have been blessed with much - and in the words of the Kennedy's - much is expected.

I will update you all on the women I am sponsoring - in four weeks, I will receive her information.

Ted Kennedy

2009-08-26T07:24:00.005-05:00

I can't believe I have been crying all morning over Senator Kennedy. When I look back at my life, he has always been a presence. Growing up in Massachusetts, he was always my senator. I remember seeing him walk in our Fall Foliage Festival (!) Parade every year and one year, I even ran out and shook his hand and got his autograph. For me, Massachusetts is Ted Kennedy.

I won't apologize for my adoration of him or concede he made mistakes ... He has stood for those less fortunate, for those without, for those society would ignore. He could have lived a private life with his wealth, but until the day he died, he chose to work tirelessly for those less fortunate.

These words have been repeated this morning numerous times, but the words he spoke at his brother Bobby's funeral, also reflect on the life of my senator.

My brother need not be idealized, or enlarged in death beyond what he was in life; to be remembered simply as a good and decent man, who saw wrong and tried to right it, saw suffering and tried to heal it, saw war and tried to stop it.
Those of us who loved him and who take him to his rest today, pray that what he was to us and what he wished for others will some day come to pass for all the world.
As he said many times, in many parts of this nation, to those he touched and who sought to touch him:
"Some men see things as they are and say why.
I dream things that never were and say why not."

http://www.americanrhetoric.com/speeches/ekennedytributetorfk.html

New Beginnigs ...

2009-08-24T07:16:00.002-05:00

Michael starts 3rd grade today ... I am very excited for him and the prospect of a "normal" schedule.

I have been following, as best I can, the Judge Keller hearing. Since I was not there, I cannot really comment on what I think the findings should be. But I did think this was the beginning of a new day at the Court of Criminal Appeals where death penalty cases would be recognized as more profound than the denial of a petition for discretionary review. But, according to numerous press reports I have read, when asked if she would do anything different, Judge Keller said, "no." That breaks my heart. As much as she is there to defend her actions -- a qualified answer would be on that day no, but in the future, procedures are already changed and we are constantly striving to be even more accommodating ... that answer was not forthcoming. As much as I am a defense lawyer, I would have advised my client to recognize it is that rigidity that brought her before the tribunal.

DO I think anything will happen to her? No. Should something happen to her? I don't know. I wasn't there that day or at the hearing. Do I want something to happen to her? No. What do I want to happen? Perhaps a real evaluation of the procedures the Court employs in capital cases. Death has become banal to the Court and that is the scariest notion of all. Condemned inmates are not humans - they are "shucks" (merely the file that holds the papers of the case).

I was hoping for a new beginning for the Court. I guess the only one I will see is when my "baby" starts third grade.

Loneliness

2009-08-08T06:09:00.002-05:00

I have written before how sad it is for parents whose children are incarcerated. How said it must be for parents whose children have died. My loneliness is nothing, nada, inconsequential in the face of that despair.

My son is at Camp Longhorn. For two weeks he cannot call home. For two weeks, I assume he is having the time of his life. And for two weeks, I have no connection to him at all. This is the longest I have ever not spoken to him.

But I am using my time wisely. I am working on some briefs and writs and trying to make a difference for my clients and their families.

I am working, so I won't remember how alone I am.

Prison as entertainment

2009-08-07T06:05:00.002-05:00

I just read where Jennifer Aniston is going to star in and produce a movie called Goree Girls based on an article from Texas Monthly.

http://www.texasmonthly.com/2003-05-01/feature-2.php

The story describes women inmates singing in the 1940's and they were housed at the Goree Unit in Huntsville. Anyone who has ever driven on I-45, Goree is the first old unit you see on the right, heading north. That was also the first prison I ever visited. It was no longer the women's unit, but housed older, non-violent offenders back then. I remember walking in, terrified. The smell was of disinfectant and all the inmates wore white. And I met my favorite client of all, Joe David, who I have written about before. Since that day so many years ago, I have been to scores of prisons and they all pretty much smell like Goree.

I hope the movie is realistic and shows the inmates as people who are human, fallible, good sometimes, bad a few times, and worthy of redemption. A good movie can educate society about the people I gladly represent. I hope Goree Girls shows the humanity I see every time I visit a prison.

Oral Argument

2009-08-03T06:38:00.004-05:00

Today is the day ... unlike trial attorneys who spend days in court, trying to persuade twelve citizen jurors, I make my argument to a panel of three judges. While I am passionate, it is not anything like a closing argument. It is more of a discussion with a lot of time spent about standard of review and abuses of discretion. It is very civil and should be very enjoyable for both sides.

I love arguing at the Fifth Circuit -- it has a history and the courtrooms are huge. The judges are impressive and the Government attorneys are always prepared. On my panel today is Judge Jacques Wiener, Jr. He was born in 1934.Just think of the history and changes in this country he has seen. I am truly honored to have a man of his stature consider my case. The other two judges are younger, but well respected and I am eager for a good argument.

One thing a lot of people don't know is that the Fifth Circuit was literally on the front line in enforcing the mandate of Brown v. Board of Education. To walk the halls of the judges and advocates who fought for such righteousness inspires me greatly. (And I will be wearing my Manolo Blahnik Mary Janes ... great shoes give me confidence!)

Greetings from The Big Easy ...

2009-08-02T15:10:00.003-05:00

I am preparing for my oral argument tomorrow ...I am actually surprised to be here. Under my statement regarding oral argument, I wrote: "Oral argument would not aid in the resolution of this case." While I believe my issues are intellectually honest and perhaps worthy of a reversal, the Fifth Circuit and I increasingly disagree on what is reversible error. (OK - we disagree unless they reverse my case!)

There is also a co-defendant .. So we split the 20 minutes - 10 minutes each. I asked for 7 minutes for my argument and three minutes of rebuttal ... So two days away from home, pay for the dog kennel, pay for the airport, hotel, for 10 minutes. It is a court appointed case - so I can expect to be reimbursed in a year or two. No joke on that. I pay for everything except the plane upfront and the Court reimburses me after they issue an opinion.

But I am ready - I have a nice quote form Shakespeare and will defend my client and the Constitution mightily for my 10 minutes tomorrow. Wish me luck! :-)

Nature and Grace

2009-07-24T04:41:00.003-05:00

Yesterday, as I was walking into the prison, after being kindly and professionally questioned, frisked, examined, and sent through a locked salleyport with razor wiring ... I was trying to focus on the task at hand and butterflies kept flitting around me. There were flowers all along the walkway, in full bloom, planted by the hand of someone's son or brother or husband. Nature is immune to the despair I routinely see during my visits.

The flowers reminded me of a visit I had many many years ago when my first client was to be executed. I drove up to tell him we had lost the last appeal. Understandably, I was weak and distraught and had no idea what to say or how to say it. As I walked along the walkway of the Polunsky Unit (which looks exactly like the unit I visited yesterday), there were beautiful roses in bloom and I lingered. I leaned down to smell a prominent bud when a soft wind lifted it at that exact moment and it brushed my lips. It stunned me at first, the gentleness of those petals on my lips. At that instant, a calm came over me unlike any I ever felt and a peace and knowledge that somehow it would be all right. I remember looking around to see if anyone had just witnessed this momentary miracle.

Long story short - when I went in to tell my client, he took one look at me and said, "It's OK. I know. How are you?" He made it easy on me. He was worried about me.

Nature and grace are two of the greatest blessings of this earth.

Dallas Dealings ...

2009-07-22T08:45:00.002-05:00

I have been here on business - and have had several great opportunities. Yesterday, I spoke at the Advanced Criminal Law Seminar on federal writs. The first speaker in my break out section was Solicitor General of Texas James Ho. A total rock star of attorneys. His resume alone is impressive (clerking at THE U.S. Supreme Court!), but his speech on brief writing was just inspiring. Brief writing is an art and he totally spoke to that. I am excited to use some of his tips. Also on the panel with me were Michael Stauffacher of the Texas Court of Criminal Appeals writ section, Brian Wice, Houston attorney, and Chip Wilkinson, an assistant district attorney in Tarrant County. I truly was honored to be included in the group and learned A LOT!

Today I am at the Dallas County Courthouse for some work. So far, everyone has been about as gracious as they come. I always get a bit nervous coming to a new courthouse, but I am ensconced in their lovely law library waiting for court and my meeting with an assistant D.A., and all is well.

And finally, last night I had dinner with my friend Suzan -- she and I were law clerks in 1993! We have kept in touch and to see her success makes me almost burst. She is a partner in a law firm., a successful business person on her own -- but more importantly, the most incredibly giving and kind mother and daughter you will ever know. We are both single parents. And both our sons are named Michael. And she inspires me to do the very best for me and my boy that I can do.

All in all - this trip has been a great success. I think I like Dallas! (I love the Gold's Gym on Arapaho - all new and bright and Body Pump at 6 am started my day off just right!)

Busy - Busy - Busy

2009-07-21T07:57:00.004-05:00

No excuses though -- I am doing what needs to be done. There are several things I have wanted to comment on, but work has kept me occupied! I spent yesterday driving to Abilene to visit two clients and today I am speaking on federal writs at the State Bar of Texas Advanced Criminal Law Course in Dallas.

I thought of a couple more Norma-isms ..."Better to be alone, than wish you were alone." "I hate a liar, and once you've lied to me, I'll never believe a thing you say." Norma doesn't even white lie. Believe me - that is true!

Sunday was the fourth anniversary of my father's death. I was totally calm, reflective, thought I was handling it well. Then I was listening to Bruce Springsteen Live in NYC and he did this huge band intro on Tenth Avenue Freeze Out and each member did a mini solo .. and when he introduced Danny Federici who died last year, his haunting music completely undid me and I sobbed and sobbed ... Amazing how one little thing can set you off.

President Obama's health care bill .. everyone is against it and his poll numbers are dropping. To all the naysayers - what is YOUR solution? What do YOU think would work. Here is an example - the hospital bill for my dog bite was over $15,000. My insurance company had a contracted price with the hospital for about $4,000. So, if I was uninsured, I would pay $15,000? There needs to be compromise and as President Obama said, facilitation.

The arrest of Professor Gates in Boston for trying to get into his own house .. why should he have had to identify himself in his own home? I don't know what the right answer is - but there is no way that would have happened to a white person. I am pretty much convinced of that.

Look here in Houston, Craig Washington shot at two thugs on his property at night and he gets pretrial diversion probation for two years. Craig Washington is a local hero. Joe Horn shot two men who were fleeing and he got no-billed.

I know the system is not fair. That's why I fight every day. Fight, fight, fight. Today I was train some new warriors! :-)

The confirmation hearings ..

2009-07-13T10:13:00.003-05:00

I logged into MSNBC.com to listen to Judge Sotomayor's confirmation hearings ... Senator Kyl is speaking and speaking and speaking ... all to hear himself speak. Why don't we "hear" form the nominee. I am sure this is the way it was done when all of the judges went through this process - but it literally makes no sense and the whole process needs to be re-thought.

I would comment on how she is doing .. who knows. Senator Kyl won't shut up. Allegedly he looks forward to hearing from her -- he just said that 80% of her cases have been reversed by the Supreme Court -- did he include the percentage of cases they refused to hear. You know he did not and he is actually misrepresenting her record.

Norma-isms

2009-07-10T18:25:00.002-05:00

I write so often about the void in my life because of my father's death ... I rarely write about my mother. Perhaps because she is larger than life. She is the - and I mean - the strongest person I have ever known.

I am at at the airport - a delayed flight - and I just started thinking about some of my mother's "lessons." She is always right and her insight is the path to a good life.

Here are a few Norma-isms!

Say what you mean and mean what you say. (Even if it kills you!)

My word is my bond. (If she says it - you can take that to the bank!)

Consistency. (Her view on the proper way to discipline a child. It works. Especially when I do it).

If you make a dollar, spend 99 cents. Save the penny. (She abides by this rule.)

What you don't have to laugh over, you don't have to cry over. (For people who bemoan not having children).

I can't think of any more right now .. but I am sure they will come to me and I will add to the list. She really is an extraordinary person who taught me never to do anything less than 100 percent.

Collegiality ...

2009-07-09T04:02:00.003-05:00

and adversarial roles ... always a conundrum in the legal field. I hear tale of prosecutors and defense attorneys who fight all day and drink together all night. I believe that is true now, although I am not sure because I do not go to court every day and I certainly do not go out drinking every night.

I will say this - one of the appeals of appellate law (!) is the civility and yes, collegiality. I have gone to lunch after oral argument in New Orleans with the assistant U.S. attorney who argued against me. One of my dear friends works for the postconviction capital litigation section of the A.G.'s office -- and I am friendly with every other person there.

In all my years, I only had an issue with one adversary. This was the colloquy after we spoke about our hearing at 1:00 in a Houston federal court.

Me: I know you are coming in from Austin, would you like to have lunch before the hearing?

Her: I can't eat with you.

Me: Why?

Her: You represent the bad guy.

Me: Well, I don't know about that, but we both have jobs and we are doing our jobs.

Her: I wish I did not have to have this job if it means there are people like you.

We did not have lunch. From what I hear, she represents the bad guy now. I still don't think she would eat with me.

Sympathies

2009-07-07T03:14:00.008-05:00

And admissions or confessions ... I think I need to readjust sometimes. As a criminal defense attorney, I have great sympathy and compassion for my clients. Despite whatever wrong they may have committed or are thought to have committed - they are human beings and as worthy of God's love and my energies as anyone on this planet.

But for the longest time I have had no sympathy for Sarah Palin. I disagree with pretty much everything she stands for. I was as dumbfounded as anyone over her resignation. And then Stanley Fish wrote in the New York Times about taking her resignation speech for what it is -

The accusations had been coming from all sides, from investigators of her ethics, from Alaska Democrats and fellow Republicans, from officials in the McCain campaign, from scathing magazine articles, from what she termed the mockery and humiliation directed at her son Trig, from late-night comedians taking potshots at her daughters.
She dated the beginning of her trials and tribulations from the moment in August, 2008, when “political operatives descended on Alaska digging for dirt.” She complained that “millions of dollars go down the drain in this new political environment.” She signaled repeatedly her weariness with the “superficial political blood–sport” politics has become. She returned to her own sport, basketball, to explain that because she had become a distraction she was going to do what a good point guard always does, pass the ball to someone (her lieutenant governor) in a better position to make the shot. And in the end she earned the declaration that “I have given my reasons plainly and candidly.”
http://fish.blogs.nytimes.com/2009/07/06/in-defense-of-palin-and-sanford/

If I take her at her word, I have to sympathize with her. I may not agree with her politics, but she deserves compassion and sympathy.

And the real reason for this inner questioning ... July 7, 1914 ... the day my Dad was born. He would have loved Sarah Palin - I know, I know. He did tell me when Geraldine Ferraro ran for vice president that a "girl was not ready for the job," but I think he would have appreciated Palin's love of hunting, commitment to her family, and her good looks. Especially her love of hunting.

My Dad. I miss him more every day.

Decisions

2009-07-05T19:29:00.003-05:00

I read an article while traveling recently about how to make a tough decision. A few were insightful, one was profound.

Insightful:

10-10-10 Explore how each choice could unfold over the next 10 minutes, over the next ten months, and finally over the next ten years.

Envision the result you want first, then work backwards. (My mentor and good friend Mac always prepares the jury charge and proposed instructions before any trial prep work begins ... it works exceedingly well for him!)

And the one that moved me the most is from the Jesuits. Stay focused on your mission to praise and serve God and make yourself indifferent to all things including health, wealth, fame, and longevity. You desire and choose only what helps you be the utmost service to God and others.

For me, I have always strived to do the right thing, even when that is the hardest thing to do. Trivial and trite, maybe, but I believe it has served me well.

Happy Belated Fourth of July

2009-07-05T09:31:00.003-05:00

So much has happened in the US Supreme Court and with the world at large ... but I have been focused inward of late and so much of that is peripheral to what I am feeling/doing/thinking about ...

My son is spending July in Massachusetts - I will spend this month focusing on the sons and daughters that I represent. As much as we love our children, the pain from being away from them is so real and physical. I will not be with my son for one month. Many of my clients won't be with their mothers for years and years.

I know how difficult it is for parents to comprehend this separation. Sometimes I might not seem sympathetic - but I am so very hurt by their pain. I had a client once who was executed and I did not visit him before his death. His supporter called and chastised me for my callousness - and I told her it was not because I did not care, it was because I cared so damn much. I could not bear the thought of making a "last" visit to him. Sometimes I forget he is gone ...

I used to spend my vacation every summer in Massachusetts for the Fourth of July -- tradition relating to my childhood and the fact that my father's birthday is July 7th. He would be 95 this year -- but it is now four birthdays without him. It has not gotten easier - only harder as I grow older and realize all that he is missing. All that Michael is missing by not having his Nonno with him.

And with that hole in my heart, I am working to try and repair some holes for my clients and their families. There is no air here on the 24th floor -- but I have my Dad to guide me to do the right things and hopefully make a difference.

Hello Strangers!

2009-06-25T10:34:00.002-05:00

I am still typing without the use of all my fingers on the right hand -- but I have stopped wearing the big ugly bandages, so we are making progress.

The U.S. Supreme Court came out with two good cases today. First, the Sixth Amendment requires that any "technical analyst" who prepares a report regarding your case, must actually be confronted by it in court. I like that!

And a case I blogged about a few months ago regarding the young teen-ager who was strip searched after a class mate said she had ibuprofen - the search was WRONG but she might not win because at the time, the law was unsettled. Even if on remand the girl does not prevail, her fight has saved countless children from a similar shame. This opinion was written by Justice Souter. Perhaps his last? (a few more will come out Monday, the last day of the term). What a fine fine way to end his career.

Poor Blogging!

2009-06-18T09:10:00.002-05:00

I apologize ... but the dog bite has really got to me. The IV's and bandages are just hard. I am recovering -- but it is taking a LOT longer than I anticipated.

I will tell a funny story about my son! I took him to sleep away camp - two male friends accompanied me. I was sad to see him go - but he was eager to get there and start having fun. He ran off and the camp director offered to have a counselor give us a tour. I could immediately tell the counselor was unsure of the parental situation -- he kept talking about how "our son" would be safe and looking between all three of us. We did nothing to dispel any crazy thoughts running through his head! (I wanted to tell him my friends Dan and Carlos were the parent partners and I was the egg donor -- but the kid might have stroked out). Then Carlos says something like he does not want to be indelicate ... but has there been any checks on the employees. This sweet innocent kid starts talking about TB tests and then my friend Dan chimes in, and says we were really just asking about pedophiles. OH MY GOD, it was hilarious.

In my defender mode - I got nervous because everyone deserves a second chance -- but I do believe that working at a camp is not the second chance. As a parent, I guess I was relieved. And as an egg donor/casual observer, I will remember this exchange forever.

Legal blogging to resume when I start feeling better.

My son

2009-06-09T07:40:00.002-05:00

My friend Nicole and I often share stories about our children. She commented yesterday that we should be blogging about them. I think she is right - although I like doing the law and Michael.

But today, it is all Michael. He started camp yesterday - camp with swimming and rock wall climbing and a full day of fun. He loves it. And today he asked if he could spend the day with me going to the doctor. He missed me when I was in the hospital. He wants to know whether I will need surgery for my hand. He wants to be with me. I am profoundly moved by his gentleness, kindness, and love for me. What a boy.

Sunday he washed my hair for me. I told someone that I did not know whether that was the high or low point of my day. But he made sure not to get water in my eyes.

I often wish I had saved or written down more of the funny or sweet things he has done. Here is a sample - and I will add more as I remember them (or new ones occur).

When I got out of the hospital, he told me he was scared. I asked him what he was scared of and he told me "That you would be in there a long time and I would not see you."

He told me once he wanted me to get a boyfriend. I asked him why and he said, "Because I would like to have a Dad to come home to everyday and I want you to be happy."

During golf camp last summer, the three tenets were respect for yourself, respect for others and respect for the environment. When the instructor asked for an example of showing respect for yourself, Michael responded, "By not coming down to breakfast naked."

There are so many more I wish I could remember right now. But we are getting ready to go see the infectious disease doctor. I pray he will tell me my hand is better. I would like to get my life back.

Courage to care

2009-06-07T08:15:00.002-05:00

I heard Gerry Spence speak yesterday at the TCDLA seminar. What a treat. While I recognize all his accomplishments and his extreme skill at lawyering and training lawyers -- what I took from his speech was that he cares. Deeply. He told all the lawyers to ask themselves whether they had the courage to care. Each client should be like our own child and the mere thought of hearing a guilty verdict should pain us beyond human capability.

I have always cared. And I often think of my clients like my own child. What I need to work harder at is making the prosecutor and judge have the courage to care for my client. I am going to strive for that.

Hand update ... 8 days out ... am very tired and cranky over the entire situation. I spend the morning doing IV's and wound treatment, afternoon doing two different IV's and then night IV's ... it has cut into my work and sleep and family time and been an inconvenience beyond belief.

I am trying to figure out what the positive is. What lesson am I supposed to learn from this (I hope it is not just that I can type with one hand and one finger!!)

Things to be proud of ...

2009-06-06T07:34:00.002-05:00

I am in San Antonio to be sworn in as an associate board member of the Texas Criminal Defense Lawyer's Association. The board meeting happens this morning at the conclusion of the Rusty Duncan Advanced Criminal Law Seminar. I have been unable to attend the seminar because of the time it takes to infuse my antibiotics. But I came for the meeting and did some other work, and have been contemplative about the organization and the people who make it what it is.

Rusty Duncan ... that's Judge Rusty Duncan. He died while serving as a judge on the Texas Court of Criminal Appeals. He was 45 at the time. I have been fortunate to have worked at the court and talked with people about him and who he was. The one constant theme is a renaissance man. And taken far far too early from this world. The seminar is commonly referred to as Rusty ... but it is Judge Rusty Duncan.

The Hamptons. That's Cynthia and Keith Hampton. She is the assistant executive director and general counsel and he is a rock star of an attorney in Austin. More than all of that, they are two of the most generous, brilliant attorneys associated with TCDLA who always have time to help others.

I would be remiss to not mention all of the TCDLA staff -- truly there is not one you cannot call and ask for help and receive it. Joseph, Melissa, and Denise are the three I harass the most, and they are always gracious and kind.

I am just plain lucky to know these people and to be a member of this organization.

And as an update ... hand is ehh .. who knows. I had blood in my IV yesterday and spent the better part of the day calling nurses, flushing it with heparin and saline, and finally devising a method where instead of letting the tubes hang down, I strung them up and secured them with my bra strap. Certainly Sir Isaac Newton's discovery of gravity is almost comparable to my theory of not letting the blood flow down ... I am keeping my fingers crossed that this works!

I will never be a doctor!

2009-06-03T09:14:00.003-05:00

I am home infusing my own IV's. So not happy about it. Pictures speak a thousand words (a concession from this writer!)

Life's Twists and Turns

2009-06-01T14:26:00.002-05:00

I was just starting to feel on top of my work. I was feeling good. I have a new assistant. I planned for this past weekend to work, work, work ...

I got bit by a dog. It got infected. I have been in the hospital for days now. I wanted to go home. I can't go home. Every time I think I can go home, I cannot. I need such strong antibiotics that they have to be infused through an IV. Tonight a surgeon will insert a PICC line and I am going to figure out how to give myself IV drugs - for at least the next ten days. That's when I see my infectious disease doctor who will determine whether it is working. If it is not working, I will have surgery. I cannot believe how this is turning out. I am speechless right now because the visiting nurse who can train me to do my own IV cannot do it until tomorrow afternoon. So you know what that means ... I can't leave here.

I am working though ... not as efficient as if i was at my office - but it is what it is.

Protecting Rights

2009-05-29T05:22:00.003-05:00

HCCLA has released the following press release:

The Harris County Criminal Lawyers Association, Texas Criminal Defense Lawyers Association, and Fort Bend County Criminal Defense Lawyers Association announce that they are beginning an immediate investigation into whether members of the Harris County District Attorneys Office committed constitutional violations of the Sixth and Fourteenth Amendments, committed the crime of official oppression, violated the special ethical duties applicable to prosecutors, and-or violated the mandatory ethical obligations applicable to all lawyers in making public comments during the course of a pending capital murder trial that appear to be calculated to influence the ongoing proceedings in material and detrimental ways that are unrelated to the issues at the trial, appear to be defamatory with respect to trial counsel, and serve no legitimate or valid purpose, but rather only increase the likelihood that the accused is denied a fair trial. The remarks and their timing were inappropriate, improper, and subject to the sternest possible condemnation.

http://www.chron.com/disp/story.mpl/front/6444364.html

This response is based upon an article in the Houston Chronicle that an attorney in a capital murder case allegedly provided two grainy pictures of a woman's bare breast to her client and he took those into the county jail. I don't believe it and according to what I have heard, neither does the judge. But let's play along and say it was TRUE. In the middle of a death penalty punishment phase, the District Attorney's Office publicizes in the newspaper that the attorney is being investigated.

This is not a crime that will cause the death of anyone. The two prosecutors want the death of this attorney's client. And now she has to defend him AND defend herself at the same time. Not possible.

A few years ago a capital case out of Bexar County was reversed because a capital juror was arrested for carrying a weapon into the courthouse and charged with the misdemeanor offense of carrying a weapon. He told the judge he could be fair. Mistrial denied and client sentenced to death.

MANY years later, the Fifth Circuit said "not so fast," and reversed the death sentence. That client is now serving a life sentence. I know that because I wrote the federal writ and the brief to the Fifth Circuit in that case. My co-counsel, a wonderful man, Michael McCrum, argued it before the Court. He was masterful but my favorite part was when the argument was over and the assistant attorney general, another great and honorable attorney sent in years later to clean up the district attorney's mess, said, "Well, that didn't go the way I thought it would." No, it didn't.

In this new case, I hear the judge allegedly did not grant the mistrial. Easy call for her. But years later - people like me are going to get a sympathetic judge who understands that this attorney was wronged and could not do the job she was appointed to do. I also heard (rumor, perhaps?) that one of the jurors saw the story in the Chronicle and further the judge would not allow the jury to be polled. This is wrong ... but as an appellate and writ lawyer, I am LOVING this. This will be reversed. This is constitutional error. And maybe then the defendant will have his third shot at a fair trial from the Harris County District Attorney's Office.

This is also incredibly unfair to the victim's family, as well. What should have been a clean and fair fight with a verdict "worthy of confidence" is now muddied beyond belief. And honestly, are these pictures compelling evidence of his future dangerousness? Really?

As an aside - this judge was also quoted a few years ago in the paper after she granted a writ of habeas corpus and said something like she had never granted one in her eight years on the bench and this was just a really important case for her. In eight years she never saw a writ worthy of granting relief. Eight years? Now I am speechless.

A BUSY week!

2009-05-27T08:13:00.002-05:00

I apologize for not blogging about the absolutely momentous events that have been occurring. I have been busy representing my clients and working to make sure their rights are not violated.

First - Sonia Sotomayor. WOW! What a story and I hope she is confirmed without a lot of fighting. I AM concerned that she was appointed by Bush I, but she seems intelligent, thoughtful, and has certainly earned her stripes - each and every one of them.

Proposition 8 - I am so stunned by the court's decision. It is wrong. Sometimes the will of the people is wrong. I learned in seventh grade history class the concept of "checks and balances." California -- my beloved most beautiful place on earth California. I do not understand and maybe it is better that I do not. Even Bill O'Reilly, who I disagree with 99.999% of the time thinks gay marriage is acceptable.

The Texas legislature has scuttled most of the bills sponsored by the Innocence Project. Crazy legislation like requiring police departments to have written policies on on eyewitness identification procedures or encouraging the recording of custodial interrogations. The one that really bothers me is the expanding of the right to seek a subsequent writ if there are new scientific developments. I am always disappointed in the Texas legislature, though. They work six months every other year and cannot seem to get it together ever.

Reflections

2009-05-21T09:11:00.004-05:00

Walt Whitman ...

Continuities[From a talk I had lately with a German spiritualist.]

Nothing is ever really lost, or can be lost,
No birth, identity, form — no object of the world.
Nor life, nor force, nor any visible thing;
Appearance must not foil, nor shifted sphere confuse thy brain.
Ample are time and space — ample the fields of Nature.
The body, sluggish, aged, cold — the embers left from earlier fires,
The light in the eye grown dim, shall duly flame again;
The sun now low in the west rises for mornings and for noons continual;
To frozen clods ever the spring's invisible law returns,
With grass and flowers and summer fruits and corn.

I have started reading again. Reading for pleasure. Reading for insight. And reading for wisdom. In a prior life, I studied literature and received my master's degree from the State University of New York at Albany in English. Although I was 21, I think I may have had a better vision of truth and beauty than I do now. But I am getting back there. I bought a book of Walt Whitman poetry at the Grand Canyon. I randomly opened it to this poem which has resonated with me for weeks. The life force of my clients ... these people exist. They may be locked away, but there is no denying they will never be lost. As a society, they are truly a part of us and a reflection of who we are.

I believe in not losing people. And I know while they might be absent from us, they exist and I am proud to work on not losing them.