Texas Lawyer Blog

Victims invited to comment on plea deal

James M. Davis, the former chief executive officer for Stanford Financial Group and Stanford International Bank Ltd., pleaded not guilty on July 13 to federal criminal charges related to an alleged $7 billion conspiracy to defraud, but that plea was a formality, his attorney says. Davis’ lawyer, David Finn (pictured), a partner in Milner & Finn in Dallas, says his client, who is out on a bond, has already signed a plea agreement and will plead guilty to three charges against him after the government has time to contact potential victims of the alleged conspiracy under the Justice for All Act Using Reasonable Alternative Measures. On July 14, the U.S. Department of Justice launched a Web site inviting people to comment on Davis’ plea deal by July 31. The Web site also includes a link to Davis’ plea agreement, which he signed on April 21. In the plea agreement, Davis admits that the U.S. government could prove at trial that his participation in the “conspiracy and scheme and artifice” resulted in a loss of more than $400 million, and his offense involved more than 250 victims. He also promised in the agreement to assist the United States in its investigation. At a hearing in federal court in Houston on July 13, U.S. Magistrate Judge Calvin Botley set Davis’ bond at $500,000. In an information unsealed on June 19, Davis, who has been cooperating with federal authorities in the Stanford investigation, is charged with one count of conspiracy to commit mail, wire and securities fraud; one count of mail fraud; and one count of conspiracy to obstruct and SEC investigation. “We have actively cooperated for months. We went to the DOJ and SEC and FBI over three months ago,” Finn says. “He wanted to do the right thing. The very first time I met with Mr. Davis in my office, it was clear he wanted to tell the truth.” Also on June 19, several other individuals, including R. Allen Stanford, chairman of Houston-based Stanford Financial Group, pleaded not guilty to criminal charges. The plea deal does not include a sentencing recommendation from prosecutors, but Davis faces up to 30 years in prison on the three counts. Gregg Costa, an assistant U.S. attorney in the Southern District of Texas who is the lead prosecutor on the case, declines comment. U.S. District Judge David Hittner of Houston scheduled a hearing on Aug. 6 for Davis to change his plea. 
-- Brenda Sapino Jeffrey

Senator testifies on jamming cell phones in prisons

State Sen. John Whitmire (pictured), D-Houston, appeared at a U.S. Senate committee hearing today in support of S. 251. It's a bill authored by U.S. Sen. Kay Bailey Hutchison, R-Texas, that would permit states to petition to operate wireless jamming devices to prevent prison inmates from using smuggled cell phones.  Whitmire, of counsel at Locke Lord Bissell & Liddell, has some personal knowledge about the topic. In October 2008, Texas death-row inmate Richard Tabler, using a contraband cell phone, called Whitmire. “When I asked him how he got his phone, he said $2,100 paid to a guard,” Whitmire told the committee. His testimony can be seen on YouTube (it starts about 30 seconds into the clip). A corrections officer who puts his life on the line daily takes home $1,900 in starting pay, Whitmire testified. 
-- Mary Alice Robbins

Lawyer: Former Congressman wants polygraph evidence introduced

Tomorrow, 208th District Court Judge Denise Collins is expected to make a ruling on an unusual request in an aggravated assault case pending against a prominent Texas attorney, Houston solo Craig Washington. Washington, a former member of Congress and a well-known criminal defense attorney, was charged last year after he allegedly shot at a motorist in his law office parking lot after he asked the motorist to leave, according to Washington’s defense attorney Kent Schaffer (pictured). Schaffer says a polygraph test proves his client was truthful when he said he fired at the motorist in self defense after the motorist attempted to back over Washington. Schaffer wants that test admitted into evidence -- a request Collins is set to rule on Thursday. “Traditionally, polygraphs have been disallowed into evidence,” says Schaffer, a partner in Houston’s Bires & Schaffer. “But what we’re finding is that Harris County courts are using polygraphs more and more for everyday decisions,’’ he says. “Judge Collins, who is trying this case, was the first judge in the county to use the polygraph test in supervising probation, and now it’s generally accepted. Our thought is if courts are relying on polygraphs on whether someone should be incarcerated, then juries should be able to use them to determine whether or not someone is being truthful in their testimony.’’ Lynne Parsons, a Harris County assistant district attorney who is prosecuting Washington, declines comment. Washington did not immediately return a call seeking comment.
-- John Council

Dallas lawyers' screaming match on national TV

If there’s one thing A&E does better than any television network, it’s reality shows. And of those shows, “The First 48” -- which follows various homicide detectives, documentary style, as they try to solve a murder within two days -- is king. The show usually ends just as the cops have apprehended the suspected bad guy. But last night the network premiered a show called “After the First 48,” which documents what happens after the cuffs get slapped on the wrists: the prosecution. The show featured a Texas capital murder case. The highlight of this episode was a spectacular shouting match between Dallas County Assistant District Attorney Marc Moffitt and Edwin V. King, a Dallas criminal defense attorney. After Tracy Holmes, judge of the 363rd District Court, asked Moffitt why one of his crucial witnesses was absent from the courtroom, he told her: “Well, that’s because some lawyer told them they didn’t have to come.” King, thinking Moffitt was insinuating that Moffitt meant King, got in Moffitt’s face and screamed, “That’s a [BLEEP] lie!” To which Moffitt yelled: “I didn’t say it was you!” In an interview with the A&E crew after the trial, King, ever the gentleman, apologized for his outburst. “I was probably out of line,” King says. “I shouldn’t have acted the way I did. It was inappropriate for me to respond the way I did, and I apologized to the judge. But hey, that’s just life in the trial.” And that brand of drama is what’s going to keep A&E camera crews coming back to Dallas.
-- John Council

The Askew stamp of approval

Look for a Texan to play a role in the Senate Judiciary Committee confirmation hearings on Sonia Sotomayor. On Thursday, Kim Askew (pictured), a partner in the Dallas office of K&L Gates, is expected to testify about Sotomayor’s qualifications to serve on the U.S. Supreme Court. Askew is chairwoman of the American Bar Association’s Standing Committee on the Federal Judiciary, which reviews the qualifications of federal judicial nominees. The committee recently reviewed Sotomayor and gave her a “well qualified” rating. This ranking doesn’t always happen. In 2006, the committee gave Michael Wallace, a partner in Phelps Dunbar in Jackson, Miss., a “not qualified” rating after then-President George W. Bush nominated him to the 5th U.S. Circuit Court of Appeals. In the portion of the report prepared by Askew, she wrote that Wallace “did not understand or care about issues central to the lives of the poor, minorities, the marginalized, the have-nots, and those who do not share his view of the world.” Or in other words, everything that Sotomayor seems to care about.
-- John Council

Study to determine law school need

State legislators from the Rio Grande Valley did not achieve their goal of establishing a public law school in that region this session, but what they did get is a study. An amendment the House added to S.B. 936 – the bill that authorizes the establishment of the University of North Texas System College of Law in Dallas – also requires the Texas Higher Education Coordinating Board to study the need and feasibility of establishing a public law school in areas that do not have a law school, including the Texas-Mexico border region.  S.B. 936 requires the board to deliver results of the study to the chairmen of each legislative committee with jurisdiction over higher education by Nov. 1, 2010.  Can anyone doubt that a law school for the Valley region will be an issue before the Legislature in 2011?
-- Mary Alice Robbins

Bill slipped through with little notice

Although largely ignored by the news media, an important bill affecting juvenile justice will take effect Sept. 1.  S.B. 839, authored by state Sen. Juan Hinojosa, D-McAllen, and sponsored in the House by state Rep. Jim McReynolds, D-Lufkin, eliminates life without the possibility of parole for juveniles tried as adults in capital cases. Under S.B. 839, an offender convicted of a capital murder committed while the offender was a juvenile must serve 40 years before he or she becomes eligible for parole.  It’s an important change in the law and should not go unnoticed.
-- Mary Alice Robbins

No trees were harmed in the handling of this appeal

Mark your calendars: The end of old-fashioned paper appeals in Texas just might be in sight. Carl Reynolds, administrative director of the State Office of Court Administration, says that by March of next year, the Texas Appeals Management and E-Filing System (TAMES) should be up and running. This is a bit different than the e-filing system many courts now use. Not only can lawyers file petitions for review and briefs via computer, the system also will move the entire appellate process to computers. That includes records and transcripts transferred from trial courts to appellate courts, the draft opinions appellate judges circulate between chambers and, of course, the final decisions of appellate courts. There will be no need to read an appellate decision on a piece of paper, unless a lawyer wants to for old time’s sake. “You could handle it completely digitally if you chose to,’’ Reynolds says of appeals in the future.
-- John Council

Opening students' eyes to the possibilities in law

This summer, 46 Houston high school students are getting a taste of what it’s like to work in the legal profession, thanks to the efforts of the Houston Bar Association (HBA) and the Communities in Schools Houston Inc. program. “The idea of it is to allow the students to intern for eight weeks at a law firm or corporate legal department over a summer and to be exposed to a professional environment generally and to the legal profession in particular,” says Barrett H. Reasoner (pictured), president of the HBA and a partner in Gibbs & Bruns. The students are paid for their work, minimum wage or slightly higher, depending on the employer; the tasks involve anything from filing to working in a firm’s library to handling deliveries, he says. “It varies from firm to firm, what the kids get to do,” he says. “Some get to observe a trial. I think it’s a great opportunity for the kids.” Additionally, this year, with grant money received from the Houston-Galveston Area Council, some students are participating in legal internship programs at the Harris County District Attorney’s Office and District Clerk’s Office, Lone Star Legal Aid and the HBA’s Houston Volunteer Lawyers Program, he says. “You feel like you’re able to have an impact on the lives of some really good kids,” he says. “If we can open some doors and let them see some opportunities, I think that it’s worthwhile.”
-- Jeanne Graham

This Week in Texas Lawyer

Got some 'splainin' to do: Senior reporter John Council looks at a trio of decisions that cut back trial court judges' prerogatives on motions for new trial. Texas Supreme Court Justice Phil Johnson (pictured) penned the decisions for the majority in the 5-4 cases.

Contingency controversy: What's a Pennsylvania court doing eying a Houston firm's fee contract? Senior reporter Mary Alice Robbins looks into the tale of pharmaceutical litigation, state power and political contributions.

Approach the bench: Senior reporter John Council talks with a judge who practiced civil and criminal law before donning the robe. Judge Mike Miller (pictured)  of the 11th District Court talks about NASA and an unusual case of acting out in the courtroom.

Inadmissible: San Antonio lawyer-cum- steamboat captain. Alberto Gonzales moves from the halls of power to the halls of academe.

VerdictSearch: Find out who won and who lost in this week's report.

Newsmakers: Keep up with colleagues' new jobs, honors and elections.

Children and counsel: A mom whose baby tested positive for drugs after birth has a team of attorneys, led by Chad Baruch (pictured), to help her convince the U.S. Supreme Court that a Texas law governing appointed counsel and termination of parental rights violates due process. Senior reporter Mary Alice Robbins looks at a case involving what one lawyer calls a "civil version of the death penalty."

Top 10 driving songs of East Texas: Here's a playlist for your next trip to the Eastern District from a lawyer with 5,000+ songs on his iPod.

I Like Being a Lawyer: David L. Pratt II on why life is good as a Lone Star lawyer.

Special report on maritime and aviation law

Rules, taxes and deals: Change is in the air for general business and charter aviation.

Maintenance and cure: The high court goes back to the future.

Cleared for takeoff: Jurisdiction and pre-emption are just some of the issues taking flight in aviation law.

This Week in In-House Texas

Developing community: Senior reporter Brenda Sapino Jeffreys talks with Karen West (pictured), a third-career GC who balances civic involvement with her responsibilities at the office.

Disbelief in the executive suite: A new survey finds GCs skeptical that firms are really rethinking client service and billing.

New deals: Find out who is working on an approximately $3.3 billion merger.

Work Matters: Michael P. Maslanka reviews must-read beach books for GCs.

Reversed and remanded: unlimited mandamus?

Joe Cox, a former state district judge, sits down with senior reporter John Council to talk about the limits -- if any -- that remain on mandamus after a series of Texas Supreme Court opinions and what the future could hold for former U.S. Attorney General and future Red Raider Alberto Gonzales.

Goodbye, full-time federal judge in Galveston

Galveston likely no longer will have a full-time federal judge; the U.S. district judges of the Southern District of Texas voted on Monday to move the bench once occupied by Samuel Kent to McAllen. The Judicial Council of the 5th U.S. Circuit Court of Appeals must approve that bench relocation for it to be final. The reason for the move is simple, says Hayden Head, chief judge of the Southern District of Texas: The McAllen Division has a huge caseload, and the Galveston division does not. “It’s the caseload, caseload, caseload,’’ Head says, although he couldn’t recall how large the McAllen docket is -- it’s not far off of the Laredo Division, which is on pace to hit about 2,500 cases split between the two federal judges stationed there, he says. McAllen currently has two U.S. district judges, Randy Crane and Ricardo Hinojosa. Since Kent left the Galveston Division, “that docket has just basically withered,’’ Head says. Kent is currently serving a 33-month sentence in federal prison for obstruction of justice. More than 15 U.S. district judges in the Southern District voted unanimously to move the bench, Head says. While the Galveston U.S. Courthouse and clerk’s office will remain, the docket will no longer be split among U.S. district judges in Houston, Head says. U.S. District Judge Kenneth Hoyt of Houston has agreed to take over the Galveston docket. “Judge Kenneth Hoyt, on his offer, will take the entire docket without any [reduction] to his own. So he stepped up to the plate,’’ Head says. Jeff Kilgore, president of the Galveston Bar Association, is disappointed by the news. He says there were about 500 cases pending in the Galveston Division’s docket. “I’m not happy about it,” Kilgore, a Galveston solo, says of the move. “And Galveston has taken so many hits; it’s just another we’ll get over.”     
-- John Council

Another hairy constitutional issue

How does a haircut (or lack of one) become a constitutional conflict? When it involves a kid with long hair and a school district, of course. That's what's in front of the 5th U.S. Circuit Court of Appeals right now, as the Needville Independent School District has appealed a trial court ruling that a boy be allowed to wear his hair in two long braids, in observance of his American Indian religious heritage. The school district believes the boy’s hair violates the district’s grooming code and insists in a July 6 reply brief in A.A., et al. v. Needville Independent School District that the code doesn’t violate the boy’s religious freedom. They aren’t forcing him to cut his hair -- he can tuck it in his collar, as long as it doesn’t touch his collar, according to the brief. Lots of other groups have filed amicus briefs supporting the American Civil Liberties Union, which represents the boy, to let him do whatever he wants with his braided locks. I’m going to go on record and say that public school grooming codes that regulate how a kid can wear his or her hair should go back to where they belong: 1952. But in 1983, I wish someone would have intervened when I was sporting a mullet with some ridiculous wings in high school (pictured, below). On a religious note, nothing short of divine intervention could have persuaded me back then that my hairstyle was anything but cool.

-- John Council

No evidence of wedded bliss in this case

In a July 8 decision, Tyler’s 12th Court of Appeals upheld a monetary judgment that a husband recovered against his wife in the wake of a 2004 motor vehicle accident. The 12th Court’s opinion in Colvin v. Colvin presents the following background on the case: James Colvin suffered injuries when a vehicle driven by his wife, Johnnie Colvin, collided with another vehicle in Lufkin.  The driver of the other vehicle filed suit against Johnnie Colvin, and James Colvin intervened in the suit, asserting damages against his wife and the other driver. James Colvin subsequently dismissed his claim against the other driver but not the claims against his wife. In a 2008 trial, the jury returned a verdict in favor of the husband. Johnnie Colvin appealed to the 12th Court, and James Colvin filed a motion seeking sanctions against his wife for filing a frivolous appeal. The 12th Court overruled all issues that Johnnie Colvin asserted on appeal, but the court denied her husband’s motion for sanctions. “Although we have rejected Johnnie’s contentions on appeal, we cannot characterize the appeal as objectively frivolous,” Justice Bill Bass wrote for the appeals court.
-- Mary Alice Robbins

Silver medal

The American Bar Association Tort Trial & Insurance Practice Section is recognizing the academic accomplishments of Charles M. Silver (pictured), a law professor at the University of Texas School of Law in Austin, with its annual Robert B. McKay Law Professor Award. Silver says he will be in Chicago on August 3, during the ABA’s annual meeting, to accept the honor. “I had no idea that I was even being considered for the award,” he says. Silver’s scholarship focuses on the role of insurance in litigation, and he holds UT Law’s Roy W. and Eugenia C. McDonald endowed chair. Silver, the 23rd recipient of the award, is in good company: Previous honorees include former law school deans W. Page Keeton and William Powers Jr. The latter is now president of UT. When reviewing the list of previous award winners, Silvers says he recognizes at least five who were either members of the UT law school faculty when they received the honor or at some point during their careers. So at least eight of the 23 award winners have UT Law ties, he says. “There is some tradition of Texas having people who are really renowned in the area of insurance or tort law or procedure,” he says. “We just keep winning this baby.”
-- Jeanne Graham

Going green in your wardrobe

At Wardrobe Peace we focus on re-energizing existing professional wardrobes to create new, updated looks at minimal cost. Much of this process involves recycling and refurbishing old pieces to feel new. From time to time I receive questions about earth-friendly clothing options.  In the past it has been difficult to find retailers who sell green fashion. Among the few who do, it’s been even more difficult to find a selection broad enough to suit professionals. Recently, however, major brands have made huge strides in offering extensive lines of organic and ecologically sound fashion, and major retailers have made efforts to stock shelves with lesser-known green brands.  This has resulted in better access to green fashion and an evolution toward offering more conventional options. For example, Nordstrom now includes “Eco-Conscious Style” pages for women, men and kids on its Web site. Also, in honor of Earth Day this year, Banana Republic introduced an organic summer collection for women. The line of dresses, shirts and other knits is made from different types of renewable and sustainable materials, such as organic linen, bamboo and soy. When searching for green additions to your closet, an easy place to start is online. One of my favorite sites is www.whiteapricot.com, which is packed with news and tips on the latest brands and trends for eco-fashion and lifestyle, from sweaters and handbags to fragrances and skin care. Another personal favorite is www.fashionandearth.com, a site I have used many times to find career pieces for myself and Wardrobe Peace clients (I have been particularly pleased with the quality and structure of this retailer’s linen and bamboo garments, which are traditionally difficult fabrics to wear at the office). A fantastic new resource just surfaced at www.evo.com: a compilation of earth-friendly fashion from around the Web. The site rates the “greenness” of each item based on EVO’s unique screening system, giving shoppers another meaningful dimension of comparison. Because “green” means different things to different designers and manufacturers, do a bit of research on the sites I mention about the sources of green fabrics and the types of manufacturing processes used to produce the clothing.  Decide which fabrics and processes you agree with, find a price point that suits your budget and buy accordingly.

Kasia Benson is a corporate associate with Andrews Kurth in Dallas. She is also the founder of Wardrobe Peace, which provides sensible, “use what you’ve got” wardrobe consulting services to lawyers and other busy prof

Winstead helps elderly keep cool

The recent triple-digit heat wave suffered in most of Texas inspired lawyers and staff at Dallas-based Winstead to help Texas’ elderly, says Kevin Sullivan, a shareholder in the firm’s Dallas office. Susan Dunn, a legal secretary in Winstead’s Austin office, suggested that the firm gather new fans to help seniors survive the stifling summer weather, Sullivan says. “In Texas, the heat is such an obvious part of our day-to-day existence during the summer months, the idea just really caught everybody’s interest,” says Sullivan, chairman of the firm’s real estate structured finance practice group. “Whether you’re outside on the weekend or going to your car every day, you can’t help but notice when it's 102 degrees,” he says. The firm’s offices in Austin, Dallas, Houston, Fort Worth, San Antonio and The Woodlands collected more than 175 fans, which agencies that support elderly residents are distributing this week in each of the cities. “Any of us would hate to think of our own parents or grandparents sitting in this weather without at least a fan, if not air-conditioning,” he says. The firm collected "every possible kind of fan," including floor models, swiveling fans and table-top fans, Sullivan says. “It all started with the idea of one thoughtful person in our organization, and it caught on like wildfire from there.”
-- Jeanne Graham

Show up for jury service, access free Wi-Fi

Harris County District Clerk Loren Jackson announced in a news release today that public wireless Internet is available in the county’s jury assembly room. Beginning today, citizens summoned to jury service can bring laptops, personal digital assistants or other wireless-ready devices to access filtered, wireless Internet while waiting during the jury selection process, according to the release. Harris County’s message to those who want to meet their civic responsibility but still need to stay connected to their family and jobs: Come on down.
-- Mary Alice Robbins

Professor Alberto Gonzales says he’s ready to come back to Texas

Former U.S. Attorney General Alberto Gonzales says his new position as a visiting professor at Texas Tech University came about after he gave a speech recently at a banquet at Texas Tech University School of Law. He says he started talking with Tech chancellor Kent Hance, a former Texas congressman who also is an attorney, and Hance offered him a job. “I’m going to be in the Political Science Department,” Gonzales says of his new position as a visiting professor, which starts on Aug. 1. “It’s a one-year gig and I’m going to come in and teach one course in the fall. It will probably be on national security issues. And I will be helping out the chancellor with other duties,” including recruiting Hispanic students, he says. In 1995, then-Texas Gov. George W. Bush hired Gonzales, a former Vinson & Elkins transactional lawyer and a 1982 Harvard Law School graduate, to be general counsel at the Governor's Office. In 1997, Gov. Bush made Gonzales secretary of state, and a year later Bush appointed him to the Texas Supreme Court. In 2001, Gonzales left Austin to become President George W. Bush's White House counsel in Washington, D.C. Gonzales became attorney general in 2005. Gonzales says he's not sure what the future holds as far as the possibility of working again for a Texas firm.“You know, I don’t know if I’m still in the hunt for a firm job. I’ve been open to the possibility to going back to a big-firm job,” Gonzales says. “But I’m ambivalent about going back as a partner. I’ve done that. And I worry that I would lose my flexibility to do other things. But if the right opportunity came along I’d consider it. But I’m excited about the Tech opportunity." Gonzales, who resigned as AG as of Sept. 17, 2007, says he is not worried about a special prosecutor's investigation into the dismissals of U.S. attorneys in 2006. But that investigation has hampered his job search, he says. “I think it was unrealistic for me to believe that I could pursue the things I want to pursue,” Gonzales says. “It had an effect, no question about it. And others I’ve talked to want to make those things under review come out in a positive way. To answer your question, it is something that I had to do. But I’m grateful there’s been no finding of criminal wrongdoing by me.”

-- John Council