Texas Lawyer Blog

Kent seeks to introduce polygraph evidence

U.S. District Judge Samuel Kent (pictured), who faces trial in January on criminal charges, wants the federal judge presiding over his case to admit polygraph evidence. On Oct. 30, Kent, a judge in the Southern District of Texas, filed a motion asking U.S. District Judge Roger Vinson of the Northern District of Florida to allow a polygraph examiner to present limited testimony during trial. Kent alleges in the motion that he “passed” two polygraph examinations during which he denied allegations of sexual misconduct. Kent pleaded not guilty in September to two counts of abusive sexual contact and one count of attempted aggravated sexual abuse, which stem from a complaint filed by Cathy McBroom, Kent’s former case manager in Galveston. Kent alleges the results of his polygraph examinations “failed to reveal physiological responses indicative of deception with regard to the relevant questions.” He alleges in the motion he will not seek to offer testimony of the personal opinion of the polygraph examiner but instead wants the evidence admitted to “supplement the jury’s observation and interpretation of his outward demeanor, with physiological evidence enabling the jury to observe and interpret his inward demeanor.” Kent alleges in a memorandum supporting his motion that he answered “no” to these questions:

• On August 29, 2003 did you touch Cathy McBroom’s genitals?
• On August 29, 2003 did you touch Cathy McBroom’s genitals against her will?
• On March 23, 2007 did you force Cathy McBroom’s head toward your groin?  
• On March 23, 2007 did you force Cathy McBroom’s head toward your groin against her will?
• On March 23, 2007 did you touch Cathy McBroom’s genitals?
• On March 23, 2007 did you touch Cathy McBroom’s genitals against her will?

Kent alleges in the memorandum that polygraph evidence is admissible under Federal Rules of Evidence 104, 702, 403 and the 1993 U.S. Supreme Court opinion in Daubert V. Merrill Dow Pharmaceutical. He alleges the polygraph evidence is admissible, because it constitutes scientific, technical or specialized knowledge that will assist the jury; it is scientifically valid; and it will not have an “unusually prejudicial effect” on the jury, nor will it “confuse, mislead, or invade the province of the jury.” Because of a gag order Vinson imposed in the case in September, we didn't seek comment from the lawyers with the U.S. Department of Justice’s Public Integrity Section who are prosecuting Kent. But Kent notes in his memorandum that “the government has not expressed any interest in participating” in the polygraphs. Vinson initially set Kent’s trial for early November, but he delayed it until Jan. 26 due to Hurricane Ike.
-- Brenda Sapino Jeffrey

Courtroom couture: guilty on multiple counts of fashion violations

The first time Neiman Marcus fashion director Ken Downing got called for jury service, he was on his way out the door for New York Fashion Week. The next time, he was in Europe. But the third time was the charm for the luxury retailer’s chief trend guru, and Downing has spent the last five days empaneled on a fraud case down at Dallas’ George L. Allen Sr. courts building. He can’t comment on the case, but he did answer a few interrogatories about something even more important than law: Courtroom couture. The verdict? Guilty on multiple counts of fashion violations. “There are a few female lawyers in this courtroom who are great-looking women, great hair and make-up, but they don’t understand the power of a tailor or an alterations department,” Downing says. “It doesn’t matter what you pay for clothes, you just have to make sure they fit.” Among jurors -- well, not surprisingly Downing’s observed a very definite trend to favor comfort. Downing’s been dressing a bit more casually, too, but of course it’s a bit more on the fabulous side than your average venireperson. Over the past week, he’s sported cashmere hoodies under leather jackets, skinny jeans and a few narrow ties. “Whether I am front row at a jury or front row at a fashion show, I represent Neiman Marcus, so I have to put my best foot forward,” he says, adding with a laugh, “I am sure they think I am quite a sight.”
-- Jenny B. Davis

Fright fest at Kane Russell Coleman & Logan

  On Oct. 30, clients on their way to meet attorneys at Thanksgiving Tower in downtown Dallas were in for a shock when they stepped off the elevator on the 37th floor, and it had nothing to do with the legal documents they were about to sign. Kane Russell Coleman & Logan does Halloween and does it big. Director Art Lambert says staffers, on their own time, pulled the haunted law offices together, with help from attorneys. Each section of the office concocts its own theme, he says. On Thursday, family members arrived at 4:30 p.m., then there was a firm dinner with costume contests and awards for best-themed area.

The firm turned the lobby into a gore-a-torium with severed heads, entrails, blood, smashed rats, skeletons and other ghouls (not counting the folks walking around with JDs). The angel of death, aka receptionist Renée Mathieson (on right, posing by a hearse), greeted visitors, her desk, which was nearly obscured by a full-sized coffin (who has one of those?!?) occupied by a KRCLer poised to jump up and scare the bejesus out of folks. Visitors to the offices can only hope to survive summary judgment.

 Moving away from the spooky lobby, the floor of part of the real estate department turns into a Monopoly board – which fits into the haunted theme, given the housing market swoon and financial market death throes. Jail-stripe-wearing real estate associate Danny Simmons must have gotten his get-out-of-jail-free card, because he was exiting unimpeded by the crepe paper bars covering his office doorway.

Other real estate folks in the second photo include secretary Becky Neal, dressed as the electric company; director Karen Cox, the indispensable dice; secretary Jessica Stillwell, police officer; secretary Melissa James, personifying the luxury tax; director Jarrett Reed, a banker whose office door ominously displayed the names of troubled banks; and file clerk Tricia Seeber, decked out as the Water Works.

But not everyone in real estate was on board with the Monopoly theme. Paralegals Teri Wingler and Jeri Walker were Sonny and Cher, respectively, in a music-themed wing of the firm bedecked with keyboard mats that play music when stepped on, a Hannah Montana cutout and musical notes hanging from the ceiling.

 

Litigation, scary under any circumstances, became very dark when transported back in time to the Salem witch trials. Associate Jennifer Lindsey dressed as Bridget Bishop, who was hanged as a witch, while associate Richard Hathaway channeled the grim reaper. Somehow, the F. Supp. volumes didn’t provide much comfort, given that — well, all those victims got a trial. Secretary Laura Najar played Tituba in the dazzling voodoo room. 

Trick or treaters may have been relieved to emerge to the brightly lit land of America’s team, the Dallas Cowboys, peopled by (back row, from left to right) litigation director Bruce Flowers as Jerry Jones; litigation paralegal Jo'anna Snowden as a Tony Romo-distracting Jessica Simpson; corporate director Rick Stark as the referee; real estate and China director Charles Aster as the coach; (front row, from left to right) corporate secretary Maria Aman as Terrell Owens; corporate paralegal Lucy Moreno as the one and only Romo; and real estate and China secretary Pam Coleman as Cowboys tailgater.

 -- Anne K. McMillan and John Council

Services for Fred Baron planned

Services for Fred Baron, founder of  Baron & Budd, will be held at 4 p.m. Monday at Sparkman/Hillcrest Funeral Home, 7405 W. Northwest Highway in Dallas. His family has asked that in lieu of flowers, donations be made to the Texas Democratic Trust or the Lance Armstrong Foundation. To share your thoughts of Fred Baron, please use the comment section below.
-- John Council

Pioneer prevails in infringement suit

A jury in Marshall returned a verdict on Oct. 28 finding products made by Samsung Electronics Ltd., the South Korean electronics company, willfully infringed on two patents for plasma display technology held by Tokyo-based Pioneer Corp. The jury in Pioneer Corp. v. Samsung SDI Co. Ltd., et al. awarded Pioneer more than $59 million for lost profits and royalties, after finding Samsung Electronics willfully infringed on the two Pioneer patents. The trial in U.S. District Judge David Folsom’s court in the Eastern District of Texas lasted eight days. An attorney for Pioneer, Sam Baxter, a partner in McKool Smith in Dallas, did not return a telephone call seeking comment. But in a press release he says, “This was a complicated case and we were fortunate to have jurors that closely examined the facts before reaching their verdict.” Out in California, our sister paper The Recorder reported that Harold McElhinny, a partner in Morrison & Foerster in San Francisco who worked with Baxter on the suit, was celebrating the verdict while on a little road trip through East Texas by dining at a Taco Bell in Nacogdoches, where he ordered four crispy tacos.  Edward Poplawski, a partner in Sidley Austin in Los Angeles who is Samsung’s lead attorney, did not return a call seeking comment. 

-- Brenda Sapino Jeffreys 

Patriotic pumpkin

Who knew government lawyers (or perhaps their staff) had such an artistic side? Members of the Texas Office of the Attorney General in Dallas carved this bipartisan pumpkin, an apparent homage to Halloween and Election Day. The red, white and boo piece of folk art won an award in a contest at a downtown high-rise, where Texas Lawyer also offices. (Our pumpkin also took home an award, no thanks to this decidedly noncrafty member of the editorial department.)
-- Anne K. McMillan

Statistics, not hype, on damage awards

A report released this week by the U.S. Department of Justice’s Bureau of Justice Statistics (BJS) unveiled a fact that civil litigators already know: Damage awards totaling $1 million or more are the rarest of all beasts in the courthouse. In a report that examined more than 14,000 plaintiff winners who received damage awards in civil trials nationwide during 2005, fewer than 5 percent of them exceeded $1 million. More than 14 percent received $250,000 or more. But the median civil award nationwide was $28,000. (Oh, my neck! I bet a bunch of these are car wreck cases. And according to the report, indeed they are -- 8,884 of them nationwide in ’05, the most common type of case. Animal attack cases a little rarer -- 125 of them nationwide in ‘05.) Median jury awards were way down from 1992 to 2005, from $72,000 in '92 to $43,000 in ’05. What about Texas? Let’s see. The report only has a sample of median awards in some of the nation’s 75 largest counties. By the looks of it, plaintiffs lawyers should probably move to El Paso County and always ask for jury trials. The median jury award there was $202,000, while a median bench trial award was $28,000. (Viva El Paso!) In Dallas the median jury award was $19,000, while the median bench trial award was $43,000. (Hey, most of the judges were Republican back then!) And in Harris County the median jury award was $45,000, while the median bench award was $56,000. (Paging Joe Nixon! Tort reform must be working!) 
-- John Council

The law and end-of-life issues

Douglas G. Deffenbaugh and Lisette C. Lange, father-and-daughter founding partners of San Antonio firm Deffenbaugh & Lange, will make presentations about medical decisions and the law during a two day End-of-Life Conference that begins Friday, Oct. 31 in San Antonio. The topic for the duo’s presentation is the Texas Advance Directives Act of 1999 and how it affects Catholic Texans, Deffenbaugh says. The conference is sponsored by the San Antonio Archdiocese and Archbishop José H. Gomez and will be held at the University of the Incarnate Word. Deffenbaugh says he and his daughter will also present opposing arguments about discontinuing life-sustaining treatments to someone who is cognitively incompetent. He says the duo will present their arguments, in a mock appellate court format, before a panel of volunteer attorneys, at 4:30 p.m. on Saturday. The presentation is entitled, "Are your religious freedoms protected if you are a pro-life American?’" Deffenbaugh says he has requested CLE approval from the State Bar of Texas for the two presentations. “We are trying to understand what does our Catholic faith tell us and what does the law tell us, and are the two compatible or incompatible,” he says.
-- Jeanne Graham

Scary decisis!

Got a great getup planned for Halloween? Send us a picture we can post of you sporting your spookiest look -- or any grouping of Texas lawyers in costume at the office or haunting a local courthouse hallway -- and we'll enter you in a fun drawing to win a CAPtastic prize. To kick off the contest, I'm posting a photo of me. And yes, I am in costume. Guess who . . .
-- Jenny B. Davis

Who's on first?

In a 6-3 decision today, the Court of Criminal Appeals punts to the Texas Supreme Court a question of how much due process an inmate is due before a court can order prison officials to withdraw money from the inmate’s prison trust account to pay court costs.  In In Re: Matt Johnson, the CCA majority dismissed a petition for writ of mandamus that 54th District Judge Matt Johnson of Waco brought against the 10th Court of Appeals in February. Johnson asked the CCA to require Waco’s 10th Court to withdraw its January mandamus order against Johnson. The 10th Court's mandamus order required the district judge to withdraw his order requiring prison officials to tap into an inmate's trust account to recover court costs. Intermediate courts of appeals have disagreed on whether a trial court should issue an order to withdraw an inmate’s funds as part of the criminal proceedings or in separate civil proceedings. CCA Presiding Judge Sharon Keller wrote in a dissenting opinion in Johnson that such an order must come in a criminal proceeding. Judges Lawrence Meyers and Charles Holcomb joined in the dissent. But CCA Judge Tom Price wrote for the majority, “Were we to construe such an order in the instant cause to constitute a ‘criminal law matter,’ we would generate a potential conflict between our bifurcated highest appellate courts in Texas, should the Supreme Court ultimately regard the matter as civil in character, and thus subject to its own appellate jurisdiction.” The Supreme Court can make that decision in Harrell v. State, scheduled for arguments Nov. 13. I wonder what will happen if the Supreme Court decides the matter is criminal.
-- Mary Alice Robbins