Texas Lawyer Blog

Florida declines to prosecute former Dallas Cowboy Michael Irvin

It probably won’t hurt Michael Irvin’s suit against a woman he alleges falsely accused him of rape that Florida officials have dropped a criminal investigation into the alleged incident. On Feb. 24, the state attorney for the 17th Judicial Circuit of Florida issued a memorandum stating that the office would not pursue a criminal charge against the former Dallas Cowboys wide receiver and NFL Hall of Fame member because of a lack of evidence to support the woman’s allegations and inconsistent statements from various witnesses. “Given these issues, it is manifest that there is insufficient credible evidence to support the filing of criminal charges, and thus this case will be declined for prosecution,” Assistant State Attorney Dennis Siegel wrote in the memo. Today, Irvin held a press conference at his lawyer’s office to express his relief, says Jason Friedman, an associate with Dallas’ Friedman & Feiger. “He wanted to clear the air and make sure everybody knew it was hard on his family. It’s taken a toll on him and his family,” Friedman says of the allegations. “But it’s a great relief off his shoulders to be vindicated. He’s spent a lot of time working on himself and his family.” In her original complaint in Doe v. Irvin, filed Feb. 4 in the 17th Judicial Circuit in Broward County, Fla., the woman alleges among other things that on or about July 4, 2007, Irvin "lured her" to his room at the Seminole Hard Rock Hotel and Casino in Fort Lauderdale, Fla., and proceeded to "sexually assault and rape" her. On Feb. 5, Irvin filed a countersuit against her in the 192nd District Court in Dallas County, seeking more than $100 million in damages for alleged tortious interference with current and prospective business relations, conspiracy, defamation and slander, defamation per se, civil extortion and duress. “The countersuit is still on,” Friedman says. David Lister, the woman’s attorney and a member in Westin, Fla.’s Martin, Lister & Alvarez, was not immediately available for comment. He previously told Texas Lawyer that his client tried to resolve the matter amicably before filing suit. He also said that when the woman came to his firm, the firm required her to take a polygraph test and three experts who studied the results are convinced the woman is telling the truth.
-- John Council

5th Circuit will hear arguments in unusual act-of-violence case

Can a person who doesn’t lay a hand on a victim be convicted of an “act of violence”? This week, the 5th U.S. Circuit Court of Appeals set an argument date for a Texas appeal that involves that very question. During the week of April 26, the 5th Circuit will hear United States of America v. Tyrone Mapletoft Williams, a case in which a jury sentenced trucker Tryone Williams to life in prison on numerous charges, including conspiracy and alien-smuggling, according to both sides' briefs to the 5th Circuit. In 2004, Williams abandoned numerous illegal aliens who were locked inside his sweltering trailer, and 19 of them died. The jury found that some of Williams’ charges were an “act of violence” under the Federal Death Penalty Act — findings Williams disputes, according to his attorney, Seth Kretzer, a Houston solo. “This is probably the first-ever death penalty prosecution that did not actually involve an act of violence,” Kretzer says. “Our guy just drove a truck. It’s pretty-cutting edge that the death penalty would apply to that.” But the prosecution’s brief disputes that. The first sentence of their brief states: “This criminal appeal arises from a capital case in which Williams’s intentional acts led to the horrific deaths of 19 of the 74 people he illegally transported in his trailer.” According to Renata Gowie, an assistant U.S. Attorney in the Southern District of Texas: “That kind of sums up our position, yeah.”

-- John Council

Obama nominates John Stevens as U.S. Attorney for the Eastern District of Texas

It’s been more than a year since President Barack Obama was sworn in as the commander in chief. On Feb. 24, he finally got around to making his first political appointment in Texas. The lucky winner is John Stevens, judge of the Criminal District Court in Jefferson County, who is Obama's nominee for U.S. Attorney for the Eastern District of Texas. The slow going in Obama’s Texas appointments has long been blamed on a partisan struggle between Texas Republican senators — who refuse to give up their roles of suggesting candidates to the White House even though their party doesn’t hold the executive office — and the Texas Democratic congressional delegation, who say they should have Obama’s ear when it comes to helping find people to fill U.S. attorney and U.S. district judge vacancies. Nevertheless, Stevens was an easy choice for Obama because both the Republican senators and the Democratic delegation suggested him. So it was easy for U.S. Rep. Lloyd Doggett, D-Texas, who chairs the Texas Democratic delegation, to strike a conciliatory tone after Stevens nomination was announced by the White House. “With a distinguished record of service to East Texas, Judge Stevens will be one of the most qualified people to ever be appointed US Attorney. I appreciate the support of our United States Senators for his confirmation and expect that he will be swiftly confirmed,” Doggett writes in a prepared statement. Stevens could not be reached for comment.
-- John Council

Article 32 hearing for Major Nidal Malik Hasan regarding Fort Hood shootings delayed until June 1

Major Nidal Malik Hasan won’t face an Article 32 hearing under the Uniform Code of Military Justice until June 1. That’s according to Belton solo John Galligan; he represents Hasan, the Army psychiatrist who allegedly went on a shooting spree at Fort Hood on Nov. 5, 2009. Initially, Hasan's Article 32 hearing, a procedural event somewhat comparable to a grand jury hearing in a civilian court, had been scheduled for March 1. But Galligan and Margaret Brewster, a spokeswoman for Fort Hood military commanders, confirm that Hasan's defense lawyers requested the delay and the commanders supervising the investigation of Hasan agreed. Galligan also persuaded the commanders, he and Brewster confirm, to delay the work of a board to determine Hasan’s sanity until after the Article 32 hearing. Galligan represents Hasan with appointed military defense counsel Major Christopher E. Martin. On the day of the shooting, Hasan was injured, and he remains paralyzed from the waist down. Galligan writes in an e-mail that the defense argued that the sanity board hearing and the Article 32 hearing were “being held prematurely — Major Hasan remains hospitalized until at least the end of the month; he is not in any physical condition to endure the rigors of an Article 32 hearing.” Galligan also writes that he continues to object to prosecutors’ proposed composition of the sanity board, which, as currently planned, would include Department of Defense mental health professionals. Brewster confirms that many issues related to the composition of the sanity board and discovery requests associated with the Article 32 hearing are still the subject of discussion among Hasan’s defense counsel, the prosecutors and the commanders.

-- Miriam Rozen

Spokeswoman: Lawyer for Michael Jackson's doctor still receiving documents from LA County DA's office

Ed Chernoff, who represents deceased pop star Michael Jackson’s personal doctor Conrad Murray, doesn’t yet know all the evidence the Los Angeles County District Attorney has against his client. On Feb. 8, Murray was charged with involuntary manslaughter in connection with Jackson’s death. “We are still slowly receiving discovery documents from the LA DA’s office. This is confusing to us as they have had 8 months to accumulate and classify their evidence. We hope when we receive all the discovery we will have a clearer picture as to their case against Dr. Murray,” writes Chernoff spokeswoman Miranda Sevcik in an e-mail. Chernoff is a partner in Stradley, Chernoff & Alford. Sandi Gibbons, a public information officer for the Los Angeles County District Attorney, says about the defense team's characterization, "It's ridiculous and untrue and they know." Getting all the evidence to the defense, Gibbons says, "takes time. It has be date-stamped." She says the process is proceeding.
-- Miriam Rozen

Charles Dean Hood gets some habeas relief from CCA

The state and federal habeas petitions filed by death row inmate Charles Dean Hood have created quite a hubbub. That’s because of allegations Hood made in a habeas petition that then-Collin County District Attorney Tom O’Connell, who actively participated in Hood’s capital murder trial, and former 296th District Judge Sue Holland, who presided over Hood’s trial, were involved in a long-term intimate relationship. Those allegations did not win Hood state habeas relief before the Texas Court of Criminal Appeals so Hood has filed a petition for a writ of certiorari with the U.S. Supreme Court. But today Hood prevailed in a subsequent habeas petition also filed with the CCA, in which he argued that the jury that heard his case was not fully informed about the extent of his mental retardation when it considered his punishment. In a split decision, the court held in Ex Parte Charles Dean Hood that Hood should receive a new punishment trial. The majority came to that conclusion after examining the Penry line of decisions from the U.S. Supreme Court -- a series of opinions that requires jurors to be informed about the mental retardation of a defendant as a mitigating factor in determining his punishment. “We conclude that five United States Supreme Court decisions, all of which were issued after applicant filed his pro se writ on May 24, 2004, announced 'new law' directly applicable to applicant's claim . . .” wrote CCA Judge Cathy Cochran. “Therefore, his second subsequent writ application, filed in 2005, should be reinstated because it was not procedurally barred. We agree with the habeas judge's 2005 factual findings and legal conclusions and accept his recommendation that applicant is, under current and binding constitutional precedent, entitled to a new trial on punishment.” According to a press release from the Collin County District Attorney's Office, which prosecuted Hood, “Hood was convicted of the 1990 capital murder of Ronald Williamson and Traci Wallace. Today’s CCA ruling does not raise any issue as to Hood’s guilt of this heinous crime, and the courts have previously described the evidence of his guilt as 'conclusive.' . . . Our office will continue to evaluate today’s opinion. We will also begin evaluating the case to determine what punishment to seek in a new punishment trial. As we currently understand the case, however, it is likely we will again seek the death penalty." Andrea Keilen, executive director of the Texas Defender Service who represents Hood, did not immediately return a call for comment.

-- John Council

Lisa Blue signs on to represent defendant Dallas County in wrongful-termination suit

Add one more twist to Cayce Coskey v. Dallas County, a nearly 4-year-old case in which a former court reporter has sued Dallas County: Representing the county at the March 2 trial will be well-known Dallas plaintiffs attorney Lisa Blue. Blue says she volunteered to represent the county pro bono after discussing the suit with Dallas County First Assistant District Attorney Terri Moore. The Dallas County District Attorney’s Office typically represents the county in civil litigation. Moore declines to comment except to say she spoke with Blue and accepted her offer to participate in the case. “I’ve been a plaintiffs lawyer forever and it’s just something very personal to me. Whenever a law firm or a county or somebody that I know and care about gets hit with a frivolous lawsuit, those are the kinds of cases I enjoy doing for free. And I’ve done this before,” says Blue. She says she will be sworn in as an assistant district attorney this week for the purposes of trying Coskey. Blue says she represents Dallas County District Attorney Craig Watkins in a separate ongoing dispute between himself and the Dallas County Commissioners Court over the representation of the county in civil matters. But Sean McCaffity, a partner in Dallas’ Rochelle McCullough who represents Coskey, wants to make sure Blue is authorized to represent Dallas County. On Feb. 17, he filed a motion with visiting Judge Vicki Isaacks of Denton, who presides over Coskey, asking that Blue show she has proper authority to represent the county. McCaffity doesn’t want the dispute between Watkins and the commissioners court over representation of the county in civil litigation to threaten a jury verdict for Coskey. “The reason we filed it [the motion] is we don’t want to win at trial and then have the commissioners court second-guess us by saying, ‘Hey, we never approved’ Blue.' " McCaffity also disputes Blue’s characterization of Coskey’s suit as frivolous. “Frivolous cases don’t get to a jury,” he says. Blue says she does have proper authority to represent the county. Coskey alleges in her July 25, 2006, petition that Sally Montgomery, judge of Dallas County Court-at-Law No. 3, wrongfully terminated her employment as a court reporter in violation of the Texas Whistleblower Act, §554.001 of the Texas Government Code, after Coskey had a dispute with the judge. Montgomery is not a defendant in the suit but is a subpoenaed witness. As alleged by Coskey, the dispute in the case concerns whether Montgomery accurately had disclosed to the lawyers representing the parties in Bostic, et al. v. Georgia-Pacific Corp., et al. contact the judge's bailiff allegedly had with jurors in that asbestos wrongful-death suit. Coskey alleges she was fired after she reported the bailiff's alleged contact with jurors to defense lawyers in Bostic. The county denies the allegations. In a July 2006 interview, Montgomery denied that she terminated Coskey's employment, saying, "I didn't fire her. It wasn't working out."

-- John Council

New magistrate judge chosen for Northern District of Texas

The U.S. district judges in the Northern District of Texas have selected federal prosecutor Renee Harris Toliver as a U.S. magistrate judge, according to Karen Mitchell, U.S. district clerk for the Northern District. Toliver will replace U.S. Magistrate Judge William F. Sanderson in Dallas, who is retiring March 31. Before taking her position, Toliver will need to pass an extensive background investigation, which could take up to 12 weeks, Mitchell says. Toliver was born and raised in Fort Worth. The University of Texas School of Law graduate will be the first African-American magistrate judge for the Northern District, Mitchell says, and the second African-American on the Northern District federal bench. U.S. District Judge Sam Lindsay was the first. “I am so excited,” says Toliver, an assistant U.S. attorney in the Fort Worth Division of the U.S. Attorney’s Office. She first applied for the magistrate judge position around Thanksgiving 2009 and then interviewed with a merit-selection panel composed of lawyers and other citizens to become one of five finalists interviewed by the district judges, Toliver says. She expects to be appointed to the bench for an eight-year term and she will be eligible for reappointment, Toliver says.

-- Miriam Rozen

Mark Lanier takes stand against Place 3 Texas Supreme Court candidate

Jeff Brown, a justice on Houston's 14th Court of Appeals who is running for a seat on the Texas Supreme Court, isn’t getting plaintiffs lawyer Mark Lanier’s vote in the March 2 Republican primary. And Lanier doesn’t want his friends to vote for Brown either. On Feb. 20, Lanier sent an e-mail asking friends to vote for any of the five other Republican candidates seeking the Place 3 seat on the Supreme Court except Brown. “Today, for the first time in my life, I take the exceptional steps of asking each of you to actually vote against a particular candidate – Jeff Brown,” Lanier wrote in the e-mail. Lanier wrote that Brown has exhibited “activism” as an appeals court judge. “I have witnessed his personal activism and gross injustice when he replaced pro-family jury decisions with his own opinion – contrary to the charge and duties we expect – and deserve – from our conservative, elected judges,” Lanier wrote. Todd Olsen, Brown’s general consultant for his campaign, says, “ We have gained the support of so many pro-reform and respected legal and grassroots Republicans that it’s almost a badge of honor to be attacked -- individually singled out -- by somebody like Mark Lanier.” In a telephone interview today, Lanier, of the Lanier Law Firm in Houston, says he’s outraged by how Brown handled the appeal in a Vioxx suit Lanier tried, Carol Ernst v. Merck & Co. Inc. In that May 2005 suit, a jury in Brazoria County awarded Ernst, Lanier’s client, $234.5 million in damages, and the trial judge entered a judgment totaling $26.1 million. But in May 2008, a three-justice panel of the 14th Court that included Brown reversed the judgment and rendered judgment that Ernst, whose 59-year-old husband died in 2001 after taking Vioxx for about nine months, should take nothing. The panel found the evidence to be legally insufficient on the issue of causation. In June 2009, in a decision written by Chief Justice Adele Hedges, the panel withdrew the May 2009 opinion, and issued a new one that Lanier says is “even worse than the first.” In January, Ernst filed a petition for a writ of mandamus with the Texas Supreme Court. “I’ve had many appeals court judges rule against me and I’ve never complained. . . . What this panel did this time is outrageous. I think it’s totally contrary to the evidence,” Lanier says. Regarding Lanier’s criticism of how the 14th Court panel handled the Ernst appeal, Olsen says other lawyers and judges would disagree. Lanier says he sent the Feb. 20 e-mail to members of his Sunday school class at Champion Forest Baptist Church, lawyers at his firm and friends. Lanier says he’s not endorsing any candidate seeking the Republican nomination in Brown’s race. However, he says, “People need to know that if there is a candidate out there that puts a corporate agenda over a pro-life and a pro-family agenda, then I plan to talk.” In 2007, Gov. Rick Perry appointed Brown to the 14th Court, and he was elected to the seat in 2008.

-- Brenda Sapino Jeffreys

Depositions scheduled in former Texas Tech University football coach Mike Leach's suit

Ted Liggett, who represents former Texas Tech University football coach Mike Leach, says depositions of Texas Tech Chancellor Kent Hance and Leach are scheduled in Lubbock for March 11 and March 12, respectively. Leach filed a third amended petition against Texas Tech and others on Jan. 12 in the 99th District Court in Lubbock County. He brings a number of claims, including breach of contract, wrongful termination, defamation, fraud in the inducement and negligent misrepresentation. Liggett of The Liggett Law Firm in Lubbock declines comment about a court-ordered mediation schedule, citing a gag order. But Liggett does say he plans to depose, among others, Texas Tech president Guy Bailey; Adam James, a Texas Tech football player; and James' father, ESPN’s Craig James, who allegedly complained that his son was forced to play before his concussion had healed — an allegation Leach denied in his petition. Leach, a graduate of Pepperdine University School of Law, is enjoying his unemployment, which began when the school terminated him in December, Liggett says. The Lubbock lawyer notes that Leach might accept another coaching position prior to the settlement of his litigation with Texas Tech. Dicky Grigg of Austin’s Spivey & Griggrepresents Texas Tech, along with the Texas Office of the Attorney General. Grigg previously issued a statement that Leach’s petition “contains numerous falsehoods and gross inaccuracies.” Grigg confirms that depositions of Leach and Hance are scheduled the second week in March and expects other interviews under oath of witnesses to follow. In response to a telephone inquiry, Sally Post, a spokeswoman for Texas Tech, said in an e-mail that school officials would not comment on ongoing litigation.

-- Miriam Rozen