The Forensic Science Commission likely won’t be looking at the controversial Cameron Todd Willingham case any longer, if it abides by a decision released today by Texas Attorney General Greg Abbott. The commission has spent two years looking at the disputed science used to convict Willingham for a 1991 arson that killed three children. Willingham was sentenced to death, and he was executed in 2004. “Although the Forensic Science Commission may conduct investigations of incidents that occurred before September 1, 2005, the law that created the Commission prohibits the FSC from considering evidence that was tested or offered into evidence prior to that date,” Abbott wrote. “The Forensic Science Commission's investigative authority is limited to those laboratories, facilities, or entities that were accredited by the Department of Public Safety at the time the forensic analyses took place.” Dr. Nizam Peerwani, the chairman of the commission, says, "I think the AG is pretty precise that anything before Sept. 1, 2005 is outside of our area of responsibility." He says, "It has a far reaching impact going forward. We’re still looking at it and what’s going to happen." The commission plans to consult with its legal counsel and will discuss the opinion at its September meeting, he says. John Bradley, the Williamson County District Attorney who served as chairman of the commission until recently, is pleased with the opinion. “Hallelujah, the rule of law wins,” Bradley says. “I was glad to see that the attorney general agreed with the legal opinion that I had presented to the forensic science commission originally.” Lisa Graybill, legal director of the ACLU of Texas who filed a brief with the AG’s office on the issue, arguing that the commission should be expansive in its review authority, is disappointed. She says that, while the AG’s opinion is nonbinding, the commission likely will follow it. “The politics around the Forensic Science Commission have been troubling, and this further illustrates that,” Graybill says.
-- John Council
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July 2011
July 29, 2011
Bill Slusser reflects on moving with his partners from their small IP firm to Fulbright & Jaworski
Before he joined Fulbright & Jaworski on July 18, Bill Slusser (pictured, left) says his small intellectual property firm was at a turning point because of a wealth of work. Slusser Wilson & Partridge either had to staff up to handle the caseload or move its practice to another firm with more IP lawyers, he says. Slusser, who left Baker Botts in 1999 to form a small firm, says he and his partners talked to a handful of firms this year before deciding to join Fulbright in Houston. Slusser, Mike Wilson (pictured, center) and Jayme Partridge (pictured, right) joined Fulbright as partners, and Brett McKean came on as an associate. “Fulbright convinced us there was an opportunity here that was a great opportunity, and we think there is,” he says. In a written statement, Steven Pfeiffer, the chair of Fulbright’s executive committee, wrote that the Slusser Wilson lawyers are a “strategic addition” to the firm’s IP practice. “Our lawyers have worked with, and tried cases against Bill, Mike and Jayme and are very impressed with their capabilities,” Pfeiffer wrote. Slusser says even though he spent many years at Baker Botts and therefore knows what it’s like to practice at a large firm, he says there’s still some things to get used to again at the 850-lawyer Fulbright, such as mastering a phone system, figuring out all of the administrative paperwork and procedures, and adjusting to smaller offices. “We went from a fairly spacious set of offices, much like living in a nice home, and moved into a hotel room. We will acclimate,” Slusser says in describing the transition. “We know a lot of the people and like them a lot. It’s the little things that are different,” he says. Slusser says they picked Fulbright because of the quality of the firm and its litigation docket and because his former firm’s client list meshed well with Fulbright’s. Slusser declined to identify clients, but says Slusser Wilson and Fulbright had mutual clients. Here's a list of Slusser Wilson’s significant verdicts.
-- Brenda Sapino Jeffreys
Baylor University School of Law holds commencement tomorrow
Hoopla multiplied four times: That’s the tradition at Baylor University School of Law in Waco. Students are on a quarterly semester system, so the law school hosts four commencement ceremonies in each 12-month period. And tomorrow, 43 graduates will celebrate commencement. “We very much value our graduation ceremonies,” says Dean Brad Toben. He notes that one of his favorite traditions is inviting family and friends of graduates to make as much noise as they possibly can as graduates’ names are called to receive their degrees. “It’s very, very vigorous,” Toben says. “We have a respectful ceremony, and we create a memory and make it fun.” At the July 30 commencement, Ed Kinkeade, a U.S. district judge for the Northern District of Texas, will be the keynote speaker; David Ryan Harper, the highest-ranking student in the class, will address the graduates. University president Ken Starr and Toben also will participate in the program. Toben says that the school’s May and July ceremonies usually have 45 to 65 students, while the November and February ceremonies are slightly smaller with about 20 to 30 graduates. Toben says the school has had a quarterly semester calendar for decades. “We think it has some advantages,” he says. The primary advantage is that each semester is just 10.5 weeks long, which moves quickly and requires students to prepare for final exams more often than law students in more typical 14-week semester sessions. “We think it maintains a type of dynamic tension in the learning environment,” he says.
-- Jeanne Graham
Texas Supreme Court abates its consideration of Severance v. Patterson pending 5th Circuit determination on mootness
The Texas Supreme Court today pressed the pause button in its reconsideration of a case pitting private property rights against the state's enforcement of the public's right to free beach access, pending the outcome of a mootness question by the 5th U.S. Circuit Court of Appeals. “The determination whether the federal lawsuit is moot must be made by the Fifth Circuit. We abate our consideration on rehearing of the certified questions pending this mootness determination,” the high court writes in a July 29 per curiam decision in Carol Severance v. Jerry Patterson, et al. According to Carol Severance’s Supplemental Brief on the Merits (Mootness) filed July 11, Severance sold her two beachfront properties that were the subject of the suit. Lawyers in the Texas Office of the Attorney General argued in a Supplemental Brief on the Merits filed July 5 that the high court should “vacate the opinion on which rehearing was granted and return the certified question unanswered” to the 5th Circuit. Severance argued in her July 11 brief that an ongoing controversy exists, which stops the suit from being moot, and the suit falls under exceptions to the mootness doctrine. Severance argues against the high court vacating its previous opinion. The Texas Supreme Court took up Severance when the 5th Circuit asked for input on three certified questions. In its November 2010 opinion, a 6-2 Texas Supreme Court held the state does not recognize a public easement that automatically moves inland after storms . But the high court heard oral arguments againin April after granting the state’s motion for rehearing. OAG spokesperson Tom Kelley declines comment. Severance’s lawyer, David Breemer, principal attorney for the California-based Pacific Legal Foundation, didn’t immediately return a telephone call or e-mail seeking comment.
-- Angela Morris
Winstead lawyer Talmage Boston to interview documentary filmmaker Ken Burns about Burns’ film “Prohibition” at Dallas Bar Association event
It doesn’t matter if you’re already well-versed in either the United States’ national pastime or its Constitution; chances are, when documentary filmmaker Ken Burns dives into those subjects, you’ll learn something from his work. That’s likely to happen for anyone who shows up at a Dallas Bar Association event at the Belo Mansion on Aug. 17 at 6 p.m. Burns will be there to discuss his new film “Prohibition,” an in-depth look at the 18th Amendment to the U.S. Constitution and how banning alcohol affected U.S. civility and democracy. Talmage Boston will interview Burns about the film. Boston is a shareholder in Winstead in Dallas, baseball nut and published author who first met Burns two years ago, when Burns came to Dallas to promote his film about the National Parks. Boston even took Burns to a Texas Rangers game, where the filmmaker threw out the first pitch. Boston says he has no doubt that people — even lawyers — will come away informed after attending the event. Boston says he thinks the discussion will be of interest to those in Dallas and elsewhere who are “in the business of law, protection of laws, and passing laws — good and bad. This story of prohibition has broad-ranging levels of engagement for people today.” Laws have consequences, even when people ignore them, he says. “Among other things, when laws are passed that don’t get enforced, what’s the consequence of that? Think about immigration, think about drugs. This is an example. Is there something to be learned here?”
--- John Council
Morning docket
Amanda Culberson, former supervisor of the Houston Police Department crime lab, testified in a driving-while-intoxicated case that she resigned her job “because she could not trust the accuracy of breath alcohol tests from the department's testing vans” when the equipment overheated during hot months, reports the Houston Chronicle. The story says during the testimony, “the courtroom was filled with defense lawyers who specialize in DWI cases” including one who told the newspaper his firm has at least 20 cases that could be affected. According to the article, “HPD officials said there were no problems with the integrity of test results because the machines will not function if they are too hot.” According to the article, the Harris County District Attorney plans an investigation.
The Texas Court of Criminal Appeals stayed the execution of Larry Swearingen, who “was convicted of the 1998 rape and murder of 19-year-old Melissa Trotter,” reports The Texas Tribune. Swearingen’s lawyers have argued he couldn’t have committed the crimes, because he was jailed on traffic warrants just after the woman disappeared. Forensic experts who examined the victim said her body “showed only enough decomposition to have been in the woods for a few days to, and at most, two weeks. That means her murder would have happened after Swearingen was jailed,” the story says. But prosecutors in Montgomery County are confident in Swearingen’s conviction. The story notes, "Among the key pieces of evidence in the prosecution’s case was a pair of pantyhose. One leg of the lingerie was found around Trotter’s neck. Police said the other was found in Swearingen’s home."
Consolidating a redistricting suit that was filed in Austin with three other suits already filed in San Antonio may hurt the chances of re-election for U.S. Rep. Lloyd Doggett of Austin, reports the Austin American-Statesman. The story explains, “A quick resolution of the case would give Doggett a better chance of redrawing his district lines before the primary election,” but consolidating the suits may slow the resolution.
“Warren Jeffs' sexual assault trial got off to a frenzied start, largely because the polygamist sect leader insisted on representing himself, then sat mute and seemingly oblivious to everything going on in court,” says an Associated Press story in the San Antonio Express-News. The story says U.S. District Judge Barbara Walther urged Jeffs not to proceed without a lawyer, but denied Jeffs’ request to delay the trial.
“John Grisham's The Confession, a novel that chronicles the gut-wrenching politics of a last-ditch death penalty appeal in Texas, has been named the winner of the inaugural Harper Lee Prize for Legal Fiction,” reports the ABA Journal. The price will be awarded annually for a fictional book “that best exemplifies the role of lawyers in society.”
-- Angela Morris
July 28, 2011
Gruber Hurst Johansen Hail Shank lawyer Mark A. Shank sues Dallas Central Appraisal District, seeking home's reappraisal
Mark A. Shank, a partner in Dallas’ Gruber Hurst Johansen Hail Shank, and his wife, Lu Ann Shank, filed a petition in the 14th District Court in Dallas on July 18 against the Dallas Central Appraisal District (DCAD). In their petition in Mark A. Shank and Lu Ann Shank v. Dallas Central Appraisal District, the Shanks allege DCAD assigned a value of $1.19 million to their house for taxing purposes, which is too high, and that it used an unfair, antiquated and erroneous method to make the calculation. With their petition, the Shanks seek, among other things, attorneys' fees and an injunction from the court ordering DCAD to reappraise. Mark Shank represents the couple. According to DCAD online records, the Shanks own a 4,687 square foot home in Dallas, which has an additional structure for servant quarters. Shank did not return a telephone call seeking comment. Cheryl Jordan, a DCAD spokeswoman, declines comment.
-- Miriam Rozen
From University of Texas law prof to Northwestern law dean: talking with Daniel B. Rodriguez
A University of Texas School of Law professor is going to be the new dean of Northwestern University School of Law in Chicago. Daniel B. Rodriguez (pictured), the Minerva House Drysdale Regents Chair in Law at UT Law in Austin and former dean at the University of San Diego School of Law, will take the reins at Northwestern on Jan. 1, 2012, according to an announcement Wednesday by Northwestern University. “It’s obviously a school of colossal reputation and great prestige,” says Rodriguez, who has been on the UT law school faculty since the fall of 2007. “It’s a law school and a university that has, on one hand, a rich tradition but, on the other hand, a reputation for real creativity and innovation in its program. In that respect it is somewhat unique.” For example, Rodriguez says that Northwestern law school has pioneered a J.D. program that is two years in length rather than three, to lessen student debt at graduation. Rodriguez says he does not have a scheduled class to teach this fall at UT law school but will be “working closely with students and supervising student work.” Rodriguez says he is excited about the prospect of again serving as a law school dean. “Truly, the dean is the only position in a school setting that allows you to step up on the hill and look at the entirety of what is going on,” he says. At Northwestern, Rodriguez also will be Harold Washington Professor. UT law school Dean Lawrence Sager describes Rodriguez as a wonderful colleague who will be missed in Austin. “He’s been a source of interesting and important intellectual discourse, especially in the area where modern political science and modern legal studies intersect,” says Sager. “He’s been an important part of our efforts to appoint and recruit distinguished colleagues, and he’s been a fine teacher and scholar. His role at the law school has been exemplary.”
-- Jeanne Graham
