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Good Deeds

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Criminal defense lawyer extraordinaire Mark Bennett has done his fair share of good deeds. As he can tell you, no good deed goes unpunished.

A true defender, Mark often comes to the aide and defense of his brethren in and around Harris County. He is head of the HCCLA Strike Force and responds to a “bat signal” whenever distress rears its ugly head.

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assessing the situation

Fairly recently (recent being a relative term when waiting on the State Commission on Judicial Conduct), a local judge was issued a private sanction after improperly detaining a colleague who was simply wanting to communicate with her client. Mark, and many others, rapidly appeared to assist. Mark took the lead, assessed the situation, and worked out an appropriate settlement. The judge withdrew her order of custody and released our colleague.

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researching remedies

In the aftermath, the State Commission on Judicial Conduct completed an investigation and issued a private sanction. During that investigation, the Commission took statements from those who witnessed the incident in whole or in part. (I know because I spoke to executive director, Seana Willing, who asked for my statement. I also spoke to the private investigator working for the judge’s attorney regarding the judicial complaint.) At the conclusion, the Commission determined a private sanction was appropriate.

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everyone willing to help

Fast forward: good deed done, now comes the punishment. Just last week, Mark had a case in said judge’s court. He took on this case last minute (yet another good deed) after the death of a colleague. He had a legitimate reason to request a very short continuance to cover a legal matter that could substantially affect his new client. His request was met with hadn’t he “just asked her for another day yesterday” and he “was losing credibility.” In Mark’s explanation about just taking over the case in an unforeseen tragic circumstance, the judge responded, “well, no good deed goes unpunished.”

And there you have it. Mark performed a series of good deeds only to have his credibility attacked. Retaliation for his assisting colleagues and providing a truthful statement to the Commission. Oh, and did I mention, when he wrote about all this, he learned just a little bit more about the judge and retaliation.


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Mentoring Should Be Mandatory

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In the practice of law, mentoring should be mandatory. This is especially true in criminal defense where life and liberty are on the line in each and every case.

Some lawyers practicing criminal defense simply hung a shingle and opened a practice. Others are former prosecutors. In either instance, mentoring is key.

Prosecutors know how to prosecute. They get on the job training. They step in to try cases immediately. This gives them the practice in front of the court and jury. This gives them confidence in their trial skills. But, it doesn’t teach them to defend. It doesn’t necessarily teach them to preserve error. It doesn’t necessarily teach them to think outside the box. And it certainly doesn’t teach them compassion for situations and circumstances.

I was a prosecutor for over 5 years. I knew how to try a case. I knew how to present arguments. I knew how to talk to a jury. But, that doesn’t mean I knew how to defend people accused of crimes. Sure, I knew the law. Sure, I knew how to research. I even knew how to write trial briefs. But did I know how to defend? Not really.

I was fortunate though. I had many great mentors willing to help me. I was able to call upon those who had been practicing defense for years and seek their input and assistance. Great lawyers like Nicole DeBorde, Stanley Schneider, and many others helped me. I also attended (immediately) my first of many TCDLA defense CLEs.

At the time, I’m not so sure I recognized it as mentoring, but the defense lawyers I immersed myself with certainly were mentoring me. They opened my mind to a different thought process. They taught me nuances I had never considered. And, they taught me to do it all without the use of a “badge” since no one wants to help a defendant.

Last week, the Texas Indigent Defense Commission and National Legal Aid & Defender Association published their report on Indigent Defense Mentoring in Texas (below). Their report highlights the importance of mentoring and the available programs in Texas. I have been fortunate enough to participate in both of the Harris County programs as a mentor. Serving as a second-chair mentor and as a FACT mentor not only helps the younger lawyer but raises the bar for criminal defense – indigent or otherwise. I am also fortunate to assist with TCDLA’s training through speaking and course directing. Training on the “law” is one thing, but training in “defense law” is completely different.

Having been mentored and now mentoring, I can say without a doubt mentoring should be mandatory. And, luckily I was fortunate enough to have had great mentors!

You can download and read the Mentoring report here: tidc-nlada-attorney-mentoring-report

Not only do I believe mentoring should be required, but also there is an argument to be made that it is required under the State Bar Disciplinary Rules. In a recent guest blog on the State Bar Blog, Rehan Alimohammad explains:

Why should we mentor or help other attorneys? The Texas Disciplinary Rules of Professional Conduct states, in the first paragraph of the Preamble, that a lawyer has a special responsibility for justice. In the fifth paragraph of the Preamble, there is more specificity when it states, “… a lawyer should seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession.” Is there a better way to impact the quality of the entire legal profession than mentoring or giving advice to a young attorney? The Preamble does state later that use of the word “should” in the rules means the lawyer has professional discretion. So, there may be no violation of the rules for failure to mentor.


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The Defender Summer 2015

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  Just when I think I run out of steam, another Defender energizes me!

View and download this issue here

We have an amazingly talented group of writers who regularly assist me by providing research and writing on current criminal justice topics. And we have an amazing designer who brings the pages to life through pictures. 

How this became such a passion for me I will never understand. But, it has! I still enjoy the privilege of serving as editor for this fantastic publication.


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Life, Liberty and the pursuit of Happiness

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Some of the most powerful words in history: The Declaration of Independence.

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed”

That was my portion of the reading. While the current president of Harris County Criminal Lawyers Association traditionally reads the first section of th11722582_10207092930983005_4227318458120008875_o e Declaration, I felt moved to have veteran, Sgt. Virgil Poe, lead our reading this year by starting with the first section. Though I have known his son, Congressman Ted Poe, for most of my life, this was the first time I had the honor and privilege of meeting Sgt. Poe. He began our 6th Annual Reading of the Declaration of Independence with the grace, dignity, and honor of a true American. Throughout the reading, he followed along with his pocket reference and rejoiced with an Amen or other affirmation at each passage. It was truly humbling to hear his love for our country with his words.

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July 2, 2015 was truly a memorable day. Surrounded by fellow members of HCCLA, we gathered on the courthouse steps and watched as a crowd formed to listen. One by one, we took turns reading portions of the Declaration. The crowd stood silent and reveled in these mighty words.

All men are created equal. Self-evident truths: life, liberty, pursuit of happiness. Government derives its power from consent of the governed. Right of the People to abolish or alter government. Objection to tyranny. List of grievances committed by the crown: taxation without consent; cutting off trade; keeping standing armies in times of peace; arbitrary government; judges dependent upon his will; obstructed administration of justice; depriving the benefit of trial by jury. In sum, a declaration of freedom for the people.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

You can read more, by Philip Gommels, in his blog and recount of the event.

Additionally, our humble tradition has been carried across the State of Texas by Robert Fickman. This year accounted for more than 138 readings across the State and around the nation. More from around the State can be seen here: http://www.criminaldefensedeclarationreading.com/


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Throwback from My First Term as HCCLA President

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The following was my first “President’s Message” from May 2009:

Throughout the past several years, I have watched and participated as our Association has grown into the finest and largest local criminal defense bar in the state. I am deeply honored to have been elected president of such an outstanding organization.

As HCCLA has grown, we have garnered strength and respect: strength from our members, respect from our actions. We are a professional organization, serving our members and improving the system within which we work. We must continue this journey toward success, without regard to personal motives, but with an eye toward justice. To be respected, we must first respect others: our members, our opponents, and our judiciary. We should always fight the good fight but be mindful that ours is an intellectual fight.

Naïve as it may be, I thought the fight was at least supposed to be fair. Sadly, I continually find myself surprised at the amount of intellectual dishonesty in the criminal justice system. Is it really better to free a hundred guilty men rather than convict just one innocent man? Read some appellate opinions and you might think it’s harmless to convict just one innocent man. Read the Texas District & County Attorneys Association (TDCAA) weekly case summaries and you might think defendants are presumed guilty. (Note: I have read the constitution, and I always thought it was the other way around…could I be mistaken?)

I’d like to share a few quotes from the TDCAA case summary commentaries, and see if you can help me understand the rules and play fair:

  1. With regard to jail credit: “ This shows one very patient trial judge. The defendant got the benefit of every doubt…[a]nd the failed probationer still wants to complain. Fortunately, the court of appeals applies a very reasonable interpretation of the law to prevent credit for time served in county jail on amendments.”[i] Hmmm…I thought defendants had a right to complain. I thought that was called an appeal. But I guess they should just take what they get. It’s probably harmless anyway.
  2. Regarding an error by the government: “This is just the latest in a series of cases in which the court has held that a defendant is entitled to credit for jail time during a time period in which he definitely was not in jail. Am I the only one who has a problem with this? Okay, so he was incorrectly released. I get that. And maybe he does not have any responsibility to tell the authorities that he was being incorrectly released. Maybe. But does that mean that he gets jail time credit when he was not even incarcerated?[ii] Gee, I thought we held the government responsible for its own mistakes. I guess the defendant should just suck it up and relieve the state of any fault.
  3. And my favorite: “Fortunately, the mistake in this case was made harmless by the horrible facts of the original crime.”[iii] Yes, Virginia, the ends do justify the means.

Well, as I clearly don’t understand, I’ll wait for one of you to explain it to me! Until then, I’ll try a little intellectual honesty. See ya ‘round the courthouse putting up the good fight!

[i] TDCAA Weekly Case Summaries: May 15, 2009, Commentary of Gutierrez v. State, Cite No. 11-07-00322-CR, 11th Court of Appeals.

[ii] TDCAA Weekly Case Summaries: April 3, 2009, Commentary of Ex parte Baker, Cite No. AP-76,031, Texas Court of Criminal Appeals.

[iii] TDCAA Weekly Case Summaries: May 8, 2009, Commentary of Smith v. State, Cite No. AP-75,479, Texas Court of Criminal Appeals.


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