More Trouble for Lawyer in Forgery Case

A Waco attorney charged with practicing law while her attorney's license was suspended and with forging a signature on a court document is under scrutiny for possible document tampering in another case, the Waco Tribune-Herald reports:

The most recent case, from three years ago, probably would have gone undetected had [defendant Deloris] Carroll, 38, not violated the terms of her felony probation for the fraudulent use of identifying information. Files from the district attorney’s office show that an initial plea recommendation from former prosecutor Charissa Sloan was scratched through and changed from serving 12 months in a state jail to 18 months in a state jail but probated for five years.

The original sentence called for no probation.

On a related note, a McLennan County blogger discusses the circumstances of Polk's attempt to turn herself in:

Even though there is supposed to be a jail magistrate setting bonds, Polk was held in jail for 10 hours. Normally, a person who has a bondsman waiting to make their bond waits less than two hours to be processed. The sheriff abused his authority to make an impression on Polk.

Prado's (Indirect) Response

Earlier, I mentioned a four-year-old movement to put Fifth Circuit Judge Ed Prado on the Supreme Court.

Today at the San Antonio Bar Association's Law Day luncheon, one of the speakers was Judge Prado, who took the podium to talk about San Antonio lawyer Gus Garcia, one of the litigators in Hernandez v. Texas, a key civil rights case.

As he stepped up to the microphone, the judge pulled out his cell phone. "Hello Mr. President. Yes, Mr. President. It would be an honor." The audience laughed as he ended the "phone call."

Judge Prado then told us that he had a better chance of singing with The Supremes than becoming one of the Supremes.

Prado for Supreme Court Justice?

With lawyers and policy wonks everywhere buzzing about the impending retirement of Supreme Court Justice David Souter, the big question is, who will replace him on the nation's highest court?

Right now, the leading candidates include Second Circuit Court of Appeals Judge Sonia Sotomayor and Michigan Governor Jennifer Granholm--but there are plenty of other names floating around.

However, there's also one local whose name has been discussed before: Fifth Circuit Judge Ed Prado.

Law Professor Orin Kerr notes over at the Volokh Conspiracy that four years ago a liberal group tried to get President Bush to nominate Judge Prado to the Supreme Court:

With the news that Justice Souter is retiring, and with thoughts turning to his possible successor, I'm reminded of the "independent grassroots campaign" -- headed by a group of liberal activists -- that received some attention in 2005 to urge the President to nominate Fifth Circuit Judge Ed Prado for the Supreme Court.

I admit I was dubious about the effort back in 2005. But I've been thinking about it a lot in last 4 years -- or at least in the last 4 minutes, since learning that Souter is going to retire -- and I think it's high time to take that campaign seriously.

Unfortunately, the old movement and Prof. Kerr's post both seem more like wishful thinking and trying to score political points than an actual desire to see Judge Prado move to Washington. Still, it would be nice if he ends up in the running.

The Hour Arrives

The February 2009 Bar Exam results are up. Congratulations to all those who passed.

From the February 2009 stats page, here's how St. Mary's grads did:

• First-timers: 28 of 32 passed (87.50%)--St. Mary's came in fourth in the state (behind Baylor, UH, and Tech).
• Repeat takers: 15 of 27 passed (55.56%)--St. Mary's ranked fifth in the state (behind Texas, Baylor, Tech, and Wesleyan).

Overall, 1118 people took the February Bar, and 732 of them passed--a 65.47% pass rate.

Congrats, new lawyers, and good luck finding work.

The Hour Approaches ...

Candidates who sat for the February Texas Bar exam are bound to be getting a little antsy right now. Although the Texas Board of Law Examiners says it will release the results on Friday, they usually post the names of those who passed the Bar sometime in the afternoon of the day before the scheduled release. That means that all day long, bar takers will be glued to their computers, hitting the web browser's REFRESH button as they stare at the entry page of the BLE website, watching the hit counter increase as they wait for the pass list to show up.

That's what I and my classmates did last November, all morning that Thursday before the results were posted that afternoon. Everyone was updating their Facebook status as the seconds slowed to a crawl.

I was still working in my old law clerk position in the legal department of a local nonprofit corporation. Unfortunately for me, I had a CLE to attend that afternoon--the local chapter of the Association of Corporate Counsel's Ethics Follies--and I expressed my frustration over being out of the loop on Facebook. My friend Ralph Perez sent me a text message, promising to notify me once the results came out. I also asked one of the lawyers with us for the event if I could borrow her iPhone later on (no Internet on the cell phone I had) so I could check the results when they came out.

As I sat in the shadowed balcony of the Empire Theater watching the show, I kept glancing at my phone, but it remained dark. Finally, at 2:43:41 p.m., my phone buzzed with a text message ...

It was from Ralph. It was three words: "You passed buddy!!!"

I clenched my fist in triumph and silently mouthed "Yes!" Then I quietly asked the lawyer for her phone--I didn't want to say anything about this to anyone until I confirmed it for myself. So I called up the BLE website, found the results list for the July 2008 exam, and clicked on the H section. Sure enough, my name was on it!

I quietly told my coworkers--my fellow attorneys--that I passed. I then checked the list for my friends' names, as the congratulatory checks flowed in and out of my phone. At the next break, I called my parents and my girlfriend. I have to confess, the rest of the program kind of washed over me as I basked in the relief of not having to endure the bar exam again.

Later that evening, as my friends and I compared notes and realized that there were several friends whom we didn't see on the list, I felt bad for those who didn't pass. Many of those who weren't on the list took the bar for the second time in February. I also know folks taking the bar for the first time. Either way, I hope they all see their names on that list tomorrow afternoon.

Why You Should Pay Your Bar Dues

You might get arrested if you don't.

Waco attorney Tammy T. Polk was arrested Wednesday morning on four charges of “falsely holding oneself out as a lawyer” while her law license reportedly was suspended [for nonpayment of State Bar of Texas dues and the state occupational tax], charges her lawyer called “disgraceful.”

Her attorney wonders why no one else gets arrested for this charge:

“It is disgraceful that they chose to do this knowing full well that there are literally thousands of lawyers who every year fail to timely pay their bar dues,” Soechting said. “My first job this afternoon is to find out how many times they have issued an arrest warrant for them. I am starting to think this looks like more than an impartial investigation.”

This isn't Polk's first time on the other side of the table--in March she was arrested on a charge of "forging the signature of a McLennan County prosecutor on a case dismissal form." In that case, a court worker noticed that the handwriting of the prosecutor's signature appeared different--and the first name was misspelled.

Interestingly, as of today (April 23, 2009), the State Bar website currently shows her as eligible to practice law in Texas. For those of us keeping score, Polk is a graduate of Baylor law school.

Hat tip: This comment thread at Grits for Breakfast.

Justice Dept. Names Interim U.S Attorney

First Assistant U.S. Attorney John E. Murphy will step in temporarily to replace U.S. Attorney Johnny Sutton, who resigned as the top prosecutor in the Western District of Texas. According to the Express-News:

Murphy has spent nearly 34 years in the Western District, 14 of them as the first assistant U.S. attorney. He will hold the job until the Obama administration nominates a U.S. attorney, a process that requires Senate confirmation.

According to Murphy's State Bar of Texas member directory entry, he's a 1972 St. Mary's grad.

Who Will Be the Next U.S. Attorney?

Now that Johnny Sutton, the somewhat controversial U.S. Attorney for the Western District of Texas, has announced his retirement (his last day will be April 19), who will take over his job?

Maybe an attorney from San Antonio--one with a St. Mary's connection. According to news reports, potential replacements include:

• Travis County Attorney (and U.T. grad) David Escamilla
• San Antonio City Attorney (and St. Mary's alumnus) Michael Bernard
• private practice attorney and former federal prosecutor (and former St. Mary's adjunct professor in trial advocacy) Michael McCrum (read about him in his own words here)

I would love to see a San Antonio attorney step into this office, but who knows?

Hat tip: Grits For Breakfast

Judge Keller Responds

Texas Criminal Court of Appeals Presiding Judge Sharon Keller responds to the charges filed against her by the State Commission on Judicial Conduct. Of particular interest, her response contains additional facts she claims were omitted in the commission's Notice of Formal Proceedings, including:

• Details of the executed man's crime from an Texas Attorney General media advisory.
• An assertion that the defendant "was not seeking on September 25, 2007, 'to avoid execution.' ... He merely wanted Texas not to 'include chemicals that are unnecessary to the effectuation of his death.'"
• The fact that the defendant "insisted on a trial but did not testify."
• A claim that the motion to stay the execution based on a new Supreme Court decision "was a simple document" that could have been filed as a four-sentence handwritten paragraph.
• The statement that "Judge Keller did not have a duty to do anything other than what she did, which was to answer a question about whether the clerk's office closes at 5 p.m."

Something else I found interesting: The judge says she is being denied her right to counsel because the Commission on Judicial Conduct won't pay her legal bills and the Texas Ethics Commission won't rule on whether she could get free or reduced-fee legal services from the hotshot lawyer who's defending her--especially when the CJC is paying an outside law firm $1 to prosecute her case.

(Note that another high ranking judge got in trouble for not reporting discounted legal services as campaign contributions.)

This puts Judge Keller between a rock and a hard place: "either defend herself pro se or risk a financially ruinous legal bill to defend against these charges which are without merit."

Changes on the Way

I attended the CLE on "Changes that Could Affect Your Practice" on Friday. I saw several former classmates of mine, a number of local county, district and appeals judges, and many local attorneys. It was great to get out and see some familiar faces and meet a few new people. The CLE itself was also worthwhile, addressing a possible revamp of the state's court structure.

The Lone Star State's court system can confuse even lawyers, with constitutional county courts, statutory county courts (county courts at law), justice of the peace courts, and district courts--with all sorts of overlapping jurisdiction. The details are laid out in a lengthy report by the Court Administration Task Force, which suggests several revisions to Texas courts.

Sen. Jeff Wentworth, one of the panelists, discussed Senate Bill 992, which would enact most of the report's recommendations. The 130-page legislation would, among other things, eliminate the patchwork court jurisdiction that gets added to each year by the legislature and create uniform jurisdiction for all courts, allowing local districts to decide whether to create special courts (the Senator noted that because the special district courts were added by the Lege in a piecemeal fashion, the bill has to go back in and change each court specifically--that's what gives the legislation its heft). The bill would also limit district courts to cases involving $10,000 or more, and put a cap of $200,000 on county court cases.

I haven't read the entire bill, but I have skimmed through most of the Court Administration Task Force Report, and it has some good suggestions. I want to blog about this in greater detail soon.

Meanwhile, there are more sweeping changes on the table, such as a change in rules for jurors and for justices of the peace, which I also plan to address at a later date.

New U.S. Attorney Candidates

Over at Grits for Breakfast, Scott Henson solicits rumors on who the Obama administration will pick for the top federal prosecutor slots in Texas.

He points to a Dallas Morning News article mentioning five candidates for the Northern District spot, but here in the Western District, there's just one name being floated: Travis County Attorney David Escamilla. He would replace current U.S. Attorney Johhny Sutton.

No mention of possible picks for the Eastern or Southern districts.

Commission on Judicial Conduct Begins Proceedings on Keller

It looks like the State Commission on Judicial Conduct has issued a notice of formal proceedings against Criminal Court of Appeals Presiding Judge Sharon Keller for disregarding execution day procedures in the Michael Richard case. Keller is already the target of an impeachment effort by a Texas House Democrat.

EDIT: The Notice of Formal Proceedings is available online here and here.

The notice contains five charges, including "willful or persistent conduct that is clearly inconsistent with the proper performance of her duties as Presiding Judge" [Charge I and Charge III]; "that casts public discredit on the judiciary" [Charge II and Charge IV]; and "incompetence in the performance of duties of office" [Charge V].

The charges mention violation of the standards set forth in Article 1, Section 13 of the Texas Constitution; Article 5, Section 1-a(6)A of the Texas Constitution; Canon 2A of the Texas Code of Judicial Conduct; and Canon 3B(8) of the Texas Code of Judicial Conduct.

Via commenter and public document uploader Scott Cobb in this comments thread on Grits for Breakfast.

ADDENDUM: The Austin American-Statesman coverage mentions that Keller's lawyer is Chip Babcock of Dallas. I wonder if he's this Chip Babcock--named one of Texas' "Top-Notch Lawyers" and Oprah's attorney.

Also, the Associated Press coverage quotes Texas Civil Rights Project director Jim Harrington: "I'm impressed that the people on this commission took it serious enough, they decided even if you're the presiding judge of the highest criminal court in the state that you're still subjected to justice."

So how will this get handled? Again, from the AP, noting that it could take 18 months:

Seana Willing, executive director of the judicial conduct commission, said the Texas Supreme Court will appoint a special master — a sitting or retired district or appeals judge — to hear the matter, which will be conducted like a trial. Keller has the right to a lawyer, to confront her accusser, introduce evidence and cross-examine witnesses.

After the proceedings, the commission may adopt, change or reject the special master's findings. The panel could decide to clear Keller of the charges, issue a public censure or recommend she be removed from the bench.

The action to remove Keller would be up to a special tribunal appointed by the Supreme Court. If ordered to leave the bench, Keller could appeal to the Supreme Court.

Impeachment Bill Filed Against CCA Judge

A San Antonio state lawmaker has signed onto a bill creating an impeachment committee to address the actions of Presiding Court of Criminal Appeals Judge Sharon Keller, who drew criticism in 2007 for closing the courthouse at 5 p.m. when attorneys were trying to file a last-minute death penalty appeal.

Grits for Breakfast drew my attention to Fort Worth Rep. Lon Burnam's bill that would get the ball rolling on impeachment. The Grits post doesn't mention it, but the co-author of the bill is former San Antonio City Council member Rep. Roland Gutierrez, who now represents parts of San Antonio, Converse, and Schertz in the Texas House. According to the state Legislature website, he signed on to the bill today.

The legislation directs the House to "consider the impeachment of Judge Sharon Keller, Presiding Judge of the Texas Court of Criminal Appeals, for gross neglect of duty and conducting her official duties with willful disregard for human life."

No telling if this bill will see the light of day, it still has to get past a lot of hurdles before the House can vote on it, and even if legislators do consider impeachment, no telling if they will actually convict.

"Highway Robbery"

The San Antonio Express-News story about the East Texas city of Tenaha is making waves in Texas and beyond. The article describes how the city's two-officer police force uses the state's asset forfeiture statute to seize property from individuals without convicting them of, or even charging them with, a crime.

Law enforcement authorities in this East Texas town of 1,000 people seized property from at least 140 motorists between 2006 and 2008, and, to date, filed criminal charges against fewer than half, according to a review of court documents by the San Antonio Express-News.

Virtually anything of value was up for grabs: cash, cell phones, personal jewelry, a pair of sneakers, and often, the very car that was being driven through town.

Some affidavits filed by officers relied on the presence of seemingly innocuous property as the only evidence that a crime had occurred.

Tenaha's mayor told Lufkin/Nacodoches TV station KTRE that the city is "just trying to get drugs off the roads." However, he told the E-N that the town used the seized cash and goods to buy a new patrol car and expand the police station.

An editorial in the Longview News-Journal denounced the practice, which seems to target minority drivers.

Something is terribly askew here. In too many towns, not just Tenaha, out-of-town motorists are targeted, indeed profiled, often by race. Someone pulled over who carrying a lot of cash is presumed guilty, even if no drugs or other contraband is found. Once money is seized, the owner has to go to court, pay lawyers and endure an arduous process to have any chance of recovering the money — even if no charges are ever filed. Too many law enforcement agencies view such tactics as efficient ways to fund new toys — such as police cars, fancy weapons and such.

This story attracted national attention from Reason magazine writer Radly Balko, who noted that:

Asset forfeiture outrages have been generating great copy for 20 years. The public gets angry, and maybe a few people spotlighted in the local newspaper investigation get some portion of the property back. But then it's back to business as usual, at least until the next report.

Section 59.02 of the Texas Code of Criminal Procedure makes all property considered contraband "subject to seizure and forfeiture under this chapter." The state's burden to prove that the property is contraband is not the reasonable doubt required for a criminal conviction, but the lower threshhold of a preponderance of evidence needed in civil cases. The burden therefore falls on the owner to prove that the property is not contraband.

The criminal justice blog Grits for Breakfast noted back in January that the Texas Senate's Criminal Justice Committee will consider overhauling this law. The committe's interim report listed seven recommendations to reform asset seizure, including state oversight of how local agencies use the seized property, punishment for agencies that misused forfeited assets, and shifting the burden of proof to the government when an owner goes to court to get the property back.

ADDENDUM: For another lawyer's take on this story, see defense attorney Mark Bennett, who offers up this case as an example to "those who like to pretend that government can be trusted to do the right thing."

Cases Dismissed!

Good news for defendants (and their attorneys) in Atascosa County. The San Antonio Express-News reports that the county attorney is dismissing all cases from before 2008. Citing the backlog left by her predecessor, Atascosa County Attorney Lucinda Vickers said there's no way to catch up:

“It's completely impossible. There were 1,400 cases on the computer from 2000 to 2006,” Vickers said. She said she only recently hired an assistant county attorney and a secretary, and she plans to hire one more of each — positions that were vacant under Franklin.

“I was hoping I was going to be able to salvage those (cases), but I don't have the manpower,” she said.

The previous county attorney, R. Thomas Franklin, came under fire in 2006 for sitting on cases, including not filing a single case during a five-month period. Interestingly enough, back then the Atascosa County Judge allowed the county attorney to set the court docket--a pretty rare occurrence in Texas.

Blogger Sam at Man O' Law says justice is not served with the mass dismissals:

I don't know what the remedy here should be. Let the system work its way out, and have defense attorneys file speedy trial motions or do the wholesale dismissals? What about those who want to continue to press charges?

What about DWI's and family violence matters?

Good point, although the E-N article notes that Vickers told local law enforcement agents and lawyers of the dismissals, and "anyone who wishes to continue with a particular case may do so."