September-October 2008

What was your proudest moment in a prosecutor’s office?

David Newell, Assistant District Attorney in Harris County

My proudest moment actually occurred at my desk, which is often the case for appellate attorneys. One of the first cases I had the pleasure of working on as the second person of a two-man appellate division was a response to a death penalty writ of habeas corpus. The defendant had killed his drug-dealing friend. The murder took place in a house with several crack users; the defendant then ushered the witnesses into the main room and executed each one. He killed one witness and shot another point-blank in the face. Then the gun jammed and the defendant fled the scene. Miraculously, the witness who had been shot in the face, a 15-year-old girl whose addiction and rough upbringing had led her into prostitution, survived and later identified the defendant.

On the writ, the defendant came up with numerous complex, conditional, and ultimately meritless claims. My chief and I waded through them all, gathering a Bible’s worth of supporting documentation  to add to our response. Our proposed findings of fact and conclusions of law spanned several pages and allowed the trial court to deny relief on every possible ground. Granted, this type of output is par for the course in such cases, but it was my first exposure to it. I got a one-page, unpublished response from the Court of Criminal Appeals upholding the trial court’s denial of relief. I could not have been more ecstatic. Even though it didn’t take place in front of a courtroom full of people, it was still my proudest moment. To this day, I still apply the lessons I learned from that case to every case that has followed.

I could go on and on about how proud I was of my chief and the prosecutors who tried the case, but that’s an entirely different question.

Jay Johannes, Assistant County and District Attorney in Colorado County

Many things come to mind, but one moment that stands out is receiving an email from a prosecutor I admire requesting permission to use an information-sharing agreement I had created for school districts and juvenile probation departments. She needed it for a CLE program she was presenting at TDCAA’s Annual conference. It felt good to have another prosecutor recognize my work.

Jeff Strange, Assistant District Attorney in Fort Bend County

My proudest moment as a prosecutor was designed never to see the inside of a courtroom. I assisted Sugar Land police with what was then a two-year-old murder investigation of Bart Whitaker, who was suspected of orchestrating the murder of his mother and brother and the near-fatal shooting of his father in December 2003. I became involved in the investigation in January 2005 to assist Detective Marshall Slot who wanted to get a wiretap order for the cell phones of Whitaker’s co-conspirators, the suspected shooter and getaway driver.

No Texas court had previously granted a wiretap application on a murder case, let alone a two-year-old murder case. With the assistance of Harris County Assistant District Attorney Ted Wilson and Captain Doug Kunkle of the Texas Department of Public Safety, Detective Slot and I prepared a 75-page affidavit justifying the wiretap. Judge Don Strickland signed the order and through good police work and some dumb luck, the suspected getaway driver, Steven Champagne, confessed to police three weeks later.

Bart Whitaker was sentenced to death and the shooter, Chris Brashear, pled guilty to a life sentence. Champagne received 15 years in prison in exchange for his cooperation. Evidence from the wiretap was never used in trial, as it was designed to induce the co-conspirator’s cooperation in prosecuting Bart Whitaker. But this prosecution was successful because of the hard work of the entire Sugar Land Police Department and our First Assistant, Fred Felcman. I will go to my grave proudest of my work on this case.

Ann Diamond, Assistant Criminal District Attorney in Tarrant County

About 20 years ago my job included mental health commitment hearings, a duty currently handled by two other attorneys in our office.

The probate courts back then appointed different attorneys each week to represent the proposed patients in the following week’s commitment hearings. Often these were newly licensed attorneys. Each week after the new attorney was appointed, I would pick up the phone and share whatever information about the case and the process the attorney requested. The first time I worked with each attorney I made “the offer”:  If the attorney ever felt a patient was not mentally ill but was held for reasons unrelated to mental health, we would work together to get her out. The offer was not about marginal or arguable cases where outpatient mental health services might be determined sufficient on court day; it was about any case where someone was railroaded.

Only twice did attorneys take me up on the offer. The first of those cases involved a teenage girl. The patient’s attorney, a newly licensed lawyer, called me after an initial client visit and asked that I go see his client in person with him.

We went together to the mental hospital and interviewed the girl. Our visit created great consternation in the hospital staff; never before had the mental health prosecutor and patient’s attorney come to see a patient together. It was immediately clear that this young lady was not in the same ballpark as the hundreds of other commitment cases I had seen. The mentally ill teens roamed the hallways in packs, and it was striking how out of place she was there. The other hospitalized teens could tell she was not like them. The situation scared her, and it seemed dangerous to her attorney and to me.

The girl’s parents were concerned because they found that she had written a will. The admitting doctor (who was unavailable and out of state during our joint attorney visit) had convinced them that this child was likely to kill herself at any minute because of the will. There was no other fact, threat, recent bad events, signs of depression, antisocial behavior, personality disorder—no other indication of any problem, just the will. She was doing well in school, active in extracurricular activities, not a drug user or drinker, and she had good friends, a positive social life, and a decent family situation (if overprotective parents). (For those unfamiliar with mental commitment cases, her complete hospital file with all doctors’ and nurses’ notes was completely open to us as attorneys in the case.)

The girl explained that she had recently seen an episode of a popular TV series that disturbed her because a character on the show died without a will and the surviving relatives fought over the her belongings. The thought that her relatives might fight over her things upset her so much that she wrote a will—the kind of will a teenage girl writes:  “To my friend Suzy, I leave my favorite blue jeans; to my brother Tom, I leave my pet cat….” Well, no one else in the family, the court system, or the hospital team had seen the show, but I had. It was disturbing. Add to it that when I was a teenager, one of my high school homework assignments was to write a will. I have to tell you, the wills my friends and I wrote for our homework looked a lot like this patient’s will. Every last one of us willed our favorite blue jeans to our best friend.

Mental health laws required then as now that when an involuntarily held person no longer fits the commitment criteria, she is to be released. Such patients are not to be kept another several days or weeks until insurance benefits run out. The hospital could not provide a doctor, any doctor, who was willing to swear that on that date the girl still met the commitment criteria. I called the probate judge (at home) and moved for immediate dismissal of the case, joined by the patient’s attorney. The judge knew me well enough by then to know that I was not prone to act rashly. He granted the motion. This was not a quick situation; it took us the better part of the afternoon into the evening. We did not leave the hospital without the girl.

For those who don’t remember what mental hospitals were like in the 1980s, there were problems with some mental hospitals aggressively seeking inpatients in questionable cases. Admitting physicians and staff were sometimes paid a bounty on each admission. It was a lucrative and corrupt industry, and the hospital in this case has long since closed. There were major state legislative hearings around the state, and soon thereafter our mental health laws were substantially rewritten to codify a patient bill of rights and protect against the era’s aggressive marketing, “wallet biopsy” activities, and inappropriate use of forced inpatient hospitalization.

The patient’s lawyer and I became friends. We always refer to this as the Storming of the Bastille case. His version when retelling it is always more dramatic than mine (his features lights and sirens that I swear I don’t recall). Suffice it to say we worked together and did the right thing for an innocent kid. Each Bastille Day we touch base to remember the case that we both consider one of our finest hours in the practice of law.

Scott Brumley, Potter County Attorney

I was having a brutal day in federal court. My every objection was overruled. Every objection the other guy made was sustained. I had to fight tooth and nail to get the most routine evidence admitted. The other guy seemingly just had to think about his exhibits to get them in.

Toward day’s end, however, I had a quiet epiphany: I realized we were going to win. Admittedly, the case was not an especially significant one (other than to the parties). So why was that a proud moment? Because that is when it dawned on me that being a courtroom advocate isn’t about dominating. Some can do that, of course, but I don’t have the wherewithal to dominate. Instead, being in court is about persevering through frustration toward what we see as the correct result while recognizing that the other guy gets his day in court, too. At that moment, I finally considered myself a lawyer.

There is still substantial debate over that last part, though.

Edna Hernandez, Assistant District Attorney in Washington County

One of my proudest moments was during a murder trial when I was fighting a motion to suppress the defendant’s various statements. I had stayed up late the night before, trying to find a case on point—a thankless job, usually—and I had a terrible sinus infection. I felt like crap, but I had to be there. And on that day, the victim’s family was sitting in on thw suppression hearing.

I overheard one sister turn to the other and say about me, “Poor thing, she sounds so sick.” The other sister answered, “Yes, but I’m glad she’s here. She’s good.” The victim’s family had been very defensive with us. They didn’t trust us and thought we didn’t care about the case because the victim was a drug dealer. It felt good to hear them recognize that we were working as hard on this case as we would on any other.

Wesley Wittig, Assistant District Attorney in Fort Bend County

You know you’ve arrived when law enforcement recognizes your efforts. In narcotics work, you don’t have victims to tearfully measure your performance and you are repeatedly asked, “Why are you trying a drug case?” That’s great for the ego, but add to it seasoned narcs breaking in a rookie drug prosecutor.

The local task force stopped being leery of me when I finally got a respectful sentence (60 years for a crack cookie—enough to mean the defendant was a dealer). All the officers were present throughout trial to witness my end of their case. They gave me an award of sorts to recognize my efforts, and they all signed it. Mind you, it was not an official plaque from the organization but something from the guys in the trenches. It is a steam train engine mounted on a metal plate with rough-hewn wood framing, and it hangs proudly in my office. The caption reads, “I’m driving this bitch!” and it refers to my conversation with the task force lieutenant about not being anybody’s caboose anymore—that I am now driving the train. (The conversation was much more vulgar, but you get the idea.) He calls me “Engineer” now.

I should note that my success was due to a team effort by law enforcement, my trial partner, Chief Mark Hanna, and the defendant, who testified.

Patricia Dyer, ssistant Criminal District Attorney in Taylor County

As an appellate attorney, the opportunity to have a proud moment touched by a victim’s family is limited, but for one oral argument, the two sons of the victims flew in from Maryland to witness oral argument. I knew they were coming, and they rode with me to Eastland (where I worked as a briefing attorney) for the oral argument.

Their parents—retired for only a short time and on one of their RV trips—had been hit from behind by a semi-truck and killed. The truck driver was on methamphetamine. The issue on appeal was sufficiency of the evidence to show he had lost use of his mental or physical faculties as a result of the methampetamine. It was a very technical argument, primarily based on the fact that there were no human studies to show the exact effect of methaphetamine at different stages in time, but it became a little more passionate after talking with the family. I was glad that we did not have to get into the details of their parents’ death.

After oral argument we went shopping at the gift shops near the court. They were impressed with the local legend of Rip, the Horny Toad, and even bought horny toad earrings for one of their daughters. I called them when the opinion was issued and again when mandate issued. They appreciated the updates.

Appellate work is sometimes thankless. We just work behind the scenes, and the victims—or anybody, really—rarely know how the judicial process progresses after a conviction and what it takes to uphold that conviction. It’s especially difficult when the issues are not as black and white as most people would think. After this particular oral argument, the family really understood and appreciated the work it requires.

Terese Buess, Assistant District Attorney in Harris County

One of the proudest moments of my career in prosecution came with the trial of a 17-year-old high school student who had been sexually assaulted by a fellow student. The victim suffered from cerebral palsy and was confined to a wheelchair. Her rapist rolled her off of the school bus as it arrived in the morning, pushed her into the boys’ restroom, pulled her out of her chair, and brutally sexually assaulted her on the floor.

When I first met the victim, my heart sank. Her speech was severely impacted by her cerebral palsy—she was verbal but incomprehensible. We met weekly for several months while I struggled with the problem of how to present her testimony to a jury. Her outcry to a teacher was very sketchy, and the medical records contained no information about how the sexual assault had occurred or who had committed it. This victim’s testimony was going to be critical to make the case.

Fortunately, I had been transferred to our post-conviction writs division and held onto a couple of trial cases, so I had a little more time to devote to this case than I normally would have. After regular meetings for many months, I could understand my victim’s speech without constantly asking for clarification. We devised a trial strategy: I would ask the question, she would answer, I would repeat verbatim that answer and ask her if that was correct, and she would say yes or no.

She made one of the most compelling witnesses I have ever had the pleasure to work with. I had warned the court reporter about what was going to happen, and we all acted like it was perfectly normal. The jury maxed the defendant with a 20-year sentence. Best of all, my father came to watch that trial and after closing arguments, he hugged me and said, “It’s one thing to know what you do, but to see you do it—I understand why you love it.” ✤