The Matlock Blog

A Day of Firsts

On Friday afternoon, in a small, crowded conference room of the Omni Hotel in downtown Fort Worth, the twenty-five year struggle to clear the name of Tim Cole officially ended.  And his true legacy began.

Texas Governor Rick Perry officially pardoned Tim Cole for his 1986 conviction as the "Tech Rapist."  Twenty-five years ago, a man terrorized women on the Texas Tech campus in Lubbock.  Tim Cole was arrested, tried, and convicted.  Unfortunately, he died in prison from complications from asthma and heart problems.  He was 39.

However, during the last several years, DNA evidence proved Cole innocent of the crimes for which he was convicted.  Through tireless work by the Innocence Project and others, Cole was recommended for a pardon.  Governor Perry agreed.  It culminated today.

Under the hot lights of the television cameras, the governor proudly proclaimed Tim Cole pardoned, and then sought to provide the deepest sympathies of the people of the State of Texas to his mother.  Various local legislators spoke about this or that.  Some claiming there would be significant changes to the criminal justice system after this.  Some simply claiming they working on bills to make this an easier process.

Whether new legislation comes to pass or not, perhaps the lasting memory of the Tim Cole saga will be the firsts involved in the case.

Tim Cole, convicted of a crime he did not commit, and who died in prison, is the first person in the history of Texas to receive a posthumous pardon.  He is also the first person posthumously be exonerated by DNA evidence.

There is a saying that it is better ten guilty men go free than for one innocent man be wrongfully convicted.  I wonder if that is on Tim Cole's headstone?

What's in a name?

March 2nd proved to be an interesting day in local judicial politics.  Among other things, it marked the first election contest for the newly-created 432nd District Court.  It also marked the end for the recently-appointed judge, Ruben Gonzalez.

As you'll recall from here, the legislature created a new court for Tarrant County, and Ruben Gonzalez, a local defense attorney and former prosecutor with the D.A.'s office, was appointed to the bench by Governor Perry.  When the primary season arose, Judge Gonzalez quickly faced an opponent in the Republican Primary.  Longtime defense attorney and family law attorney Tom Zachry entered the race against Judge Gonzalez playing the experience card.  

Personally, I thought Judge Gonzalez would eek out a close win in the primary.  He was, after all, the incumbent appointed by a very popular governor.  Based on the campaigns of both men, it didn't seem to be close.  Gonzalez had not only been very active in local politics for years, but seemed to outspend Zachry on the campaign trail by at least 10-to-1.  At least that's my informal guess.  (I saw Gonzalez signs and material everywhere; I saw one Zachry sign go up and come down the same day.)

Yet despite the campaigning, Judge Gonzalez lost.  Big.  As in by 20 points.  

Now whether it was a result of voters choosing experience over incumbency, Gonzalez' repeated gaffes during his brief term (75 years for a case without a dead body?  Really?), or something else, the result was a brief term as judge for Gonzalez and a newly-elected Tom Zachry taking over the 432nd District  Court.

But it's really the "something else" that is potentially intriguing.  In a recent article in the Star-Telegram, the issue of race playing a big role in the recent Republican primary for Railroad Commissioner was discussed.  Essentially, the idea was that the incumbent that was supported by the governor lost because of his Hispanic last name.  His conclusion is based on the perception that he was not only highly-qualified, but also the incumbent, as well as endorsed by the governor himself.  Not only that, but all of the so-called political experts saw nothing but an easy win for him.  

In the article, he basically claims that voters would vote for a caucasian-named candidate at the expense of the potentially more-qualified Hispanic-named candidate.  I think it's an oversimplification, but an interesting point.  Especially in light of the race for the 432nd bench.

From an experience perspective, it's really hard to argue that either Judge Gonzalez or Judge-elect Zachry don't each possess enough experience to be a felony court judge.  Or, I suppose, don't possess enough.  Yet they each handled criminal cases for over a decade.  They seemed to be thought of as competent by their peers.  So what explains the twenty point loss by Judge Gonzalez?  Is it really his last name?

The morning after the election, I literally received at least a dozen phone calls and emails wondering how much race had to do with that election.  I have a hard time believing that was a major contributor to the results, but in the face of everything else (more, perhaps better campaigning by Gonzalez, incumbency, recency of appointment by the governor), you have to wonder.

Perhaps my hesitation has to do with the fact that there is already one Hispanic misdemeanor judge and two African-American felony court judges.  But the cynic in me says there is nothing about their names on the ballot (Nekhom, Salvant, or Sturns) that would cause a voter a moment of pause.

So the question comes down to did Tarrant County Republicans really unseat a sitting district court judge just because his last name is Gonzalez?  I have a hard time believing it.  While I would like to chalk it up to the issues Judge Gonzalez had during his brief term (should a sitting judge really have a campaign picture of him standing in front of law enforcement officials?  So much for fair and impartial I guess), I still can't get over the fact that Zachry seemed to do very little on the campaign trail.  

But in the end, the good Republican voters of Tarrant County had the opportunity to elect its first Hispanic felony court district judge.  They didn't.  Was it a conscious decision, or something else?  Good question.  We, as local Republicans, may have lost an opportunity.

But what the hell do I know?

Fairness is what justice really is

Impartial:  adjective - not partial or biased; fair; just; an impartial judge

That's the Webster's definition.  Some might say that definition stopped at the door of the 213th District Court of Tarrant County while Judge Bob Gill was presiding, specifically with regard to probation revocation cases.  

In May, I told you about a habeas hearing that was held in Judge John McBryde's court in U.S. District Court regarding a mentally ill woman who claimed ineffective assistance of counsel because her court appointed-attorney didn't mention her mental issues during a probation revocation hearing, and I'm using this term rather loosely, in Judge Gill's court.  Judge McBryde found ineffective assistance and overturned the woman's fifteen-year sentence.  

It didn't seem to make the news.  Until now.  The Star-Telegram has finally gotten on board with a story.  Maybe they should read this blog a little more often.

As the story details, Judge Gill had a practice in which he essentially would negotiate the plea deals for all probation revocations in his court.  It was common knowledge.  The prosecutors never really came into the picture, unless they had to present evidence at a contested hearing.  The Judge made the plea offers.  If they were rejected, there was hearing.  In front of him.  The judge whose offer was just rejected.

According to Judge Gill, this was done because he supposedly knew the cases and the probation system better than the prosecutors.  "[I]t was cutting out a step that was unnecessary."  

Really?  Hey, maybe next time we could dispense with that pesky trial, too.  I mean it is time-consuming.  Who needs it?  And while we're at it, maybe we could get rid of 4, 5 and 6, right?  Those silly rights do tend to get in the way of running an efficient docket I guess.

When I first came to Fort Worth, I had a revocation case in the 213th.  I was a little taken aback by the way the revocation cases were handled.  I remember being told that was just how things were done.  Thankfully, the case was resoled in a manner that my client liked, so it wasn't a big deal.  Truthfully, I only had one other revocation case in there before Gill resigned.  It was eventually dismissed though.  So I've never had a client whose constitutional rights were possibly trampled.  

Everyone knew about this "procedure."  Everyone.  Especially the prosecutors.  I remember talking to one prosecutor who had just recently been assigned to that court and he told me he liked that court because he didn't have to worry about revocations.  

So the idea that anyone in the criminal courthouse in Tarrant County didn't know about it is somewhat laughable.  But that's exactly what recently-appointed, current District Attorney Joe Shannon said according to the Star-Telegram story.  Alan Levy, chief of the criminal division at least acknowledged its existence, but made a point to say that it wasn't something the office condoned.

But Shannon, who is currently running for District Attorney against Kirk Claunch, actually claimed he knew nothing about the procedure in Gill's court.  Is it possible that there are other things Shannon doesn't know about?  Is that a really good quality to have in the sitting and possible future District Attorney?  

Gill resigned the bench a couple of years ago and took a position with the District Attorney's office ostensibly to better position himself within the Republican Party to be the heir apparent to longtime D.A. Tim Curry.  But Curry died in April of last year and Governor Perry appointed Curry's lifelong friend Shannon as the D.A.  It was rumored that Shannon agreed to accept the position with the understanding that he would not run for the office in 2010.  But somewhere along the line that changed, and it left Gill on the outside looking in.

As much as I would love to chastise the D.A.'s office or the judge for this, I suppose ultimately there has to be blame on the defense attorneys.  Obviously every case is different, and I have no idea what kind of resolutions were made in others' cases, but if we, as defense attorneys didn't like the way things were being handled, it was really on us to seek change instead of just going along with it because that was how things were always done.  So shame on us.

But at the end of the day, there is a former state district judge whose procedures regarding revocation cases in his court has caused "serious concern."  Legal scholars think this might well give every single defendant a legitimate ground for challenging their sentence.  Imagine the firestorm of litigation that could ensue.  All because Gill wanted to do things his way.

There is a current D.A. who claims he knew nothing about the process.  And he is now the boss of the former judge because the judge is now a deputy chief within the D.A.'s office.

You just can't make this stuff up.

Former Supreme Court justice Potter Stewart once said "Fairness is what justice really is."  So you would think that would apply to a judge.

But what the hell do I know?

Lies, damned lies, and statistics

Some people hate that Texas elects its judges.  Some like it.  I've always been a fan of a nonpartisan type of election, where only lawyers could vote for judges.  I know.  Somewhere, Alexander Hamilton is smiling at my elitist view.  What can I say?

But, since we have elections the way we do, it provides for great conversation at the courthouse.  Here in Tarrant County, the local bar association has a habit of conducting Judicial Candidate Qualification Polls.   I truthfully have no idea how scientific this year's poll is, but what the hell.  

Of course, there are only two contested criminal court races this year, despite the fact that there are technically 17 judicial elections.  Criminal District Court Number 3 and the newly-created 432nd District Court both have two candidates vying for the Republican spot in the general election against the typical Tarrant County Democratic candidate.  No one.

The Judicial Qualification Poll is sent to members of the Tarrant County Bar Association.  The poll was open to 2248 members, and 704 members actually voted.  In case you're wondering.  That's about 31 percent of the eligible members took time out of their very busy day to vote in a poll about the qualifications of judicial candidates.

In Criminal District Court Number 3, current judge Elizabeth Berry has decided not to seek reelection.  The two candidates looking to replace Judge Berry are current prosecutor Robb Catalano and current defense attorney Santiago Salinas.  Catalano's website is here, and Salinas' site is here.

According to the poll, of the 704 attorneys that voted, only 355 cast a vote regarding Catalano and only 302 voted in reference to Salinas.  The type of vote that could be cast fell into one of three categories; Not  Qualified, Qualified, or Well-Qualified.  (I added the missing hyphen, if you're wondering).

Salinas garnered about 16% Not Qualified, 40% Qualified, and 44% Well-Qualified.  In other words, over 80% of the attorneys that voted believe Salinas to be at least qualified to sit as a criminal court judge.  Not bad numbers.

Catalano however received less than 5% Not Qualified votes.  Additionally, he received 37% Qualified votes and 58 % Well-Qualified.  That's 95% of the attorney voters believe Catalano is at least qualified to be the next judge of Criminal District Court Number 3.  

With respect to the newly-created 432nd District Court, the candidates are sitting judge Ruben  Gonzalez and criminal attorney/ family law attorney Tom Zachry.  The website of Judge Gonzalez can be found here, while Mr. Zachry's is here.  (Just as an aside, I like the judge's website the best.  Very nice.  Flashy.  Reminds me of another tremendous law firm website.)

According to the all-important Judicial Candidate Qualification Poll, only 282 eligible voters cast a ballot regarding Judge Gonzalez and 349 voted regarding Mr. Zachry. 

Of those that voted for Judge Gonzalez, about 15% voted him Not Qualified, whereas Mr. Zachry received about 11% of the Not Qualified votes.  Judge Gonzalez received 40% Qualified and 46% Well-Qualified votes.  Mr. Zachry received 40% and 50% of Qualified and Well-Qualified votes respectively.  

So it would seem the attorneys voting in this poll far and away believe Robb Catalano to be the most qualified successor to Judge Berry in CDC3, whereas it would seem to be a dead heat to decide whether the recently-appointed Judge Gonzalez gets to keep his job on the bench, or whether longtime attorney Tom Zachry will ascend to the bench.

So the people who are presumably the most-knowledgable have spoken.  Will it hold true on election day?  I will put the over/ under on a Catalano win at 19 points, and I'll be taking the over.  As for the 432nd, I think we could witness quite a close election.  I predict a Gonzalez victory, but I think it could easily be within 5 points.

But then again, what the hell do I know?

Just 'cause it's fun

I don't know. Sometimes, it's just fun to watch.

Republicans 82 - Democrats 20

"Got a little fight in ya!  I like that."

This is one of my favorite lines from one of my favorite movies (The Dark Knight) by the Joker.  Maybe it's just my sick sense of humor.  What does that have to do with Republicans and Democrats?  Glad you asked.

Of the local seats up for election in 2010, Republicans fielded 82 candidates while the Democrats managed a mere 20.

Monday was the last day to file as a candidate in Texas for the races which have a primary in March.  What that means for Tarrant County, is we found out who was running for judge for virtually all of the criminal courts as well as who was running for what many believed to be one of the most contested races in the county in a long time; Tarrant County District Attorney.  

Well Democrats, it looks like the jokes on you.  Because the party that turned Dallas from Republican red to Democratic blue overnight just four years ago, and who openly claimed to be in a position to take over a number of long-held Republican benches as well as try to seize the District Attorney's office is running no one.  

No, seriously, nobody.  Just look.

(Side note:  I will admit that there appears to be a Democratic challenger for the 233rd District Court, but that's a Family Law Court, and quite frankly, nobody cares.  No one likes Family Court, and there is a special place in hell for family law attorneys anyway.  I don't count them.  They're nobody.  Sorry.)

In Tarrant County, all but three trial courts, whether felony or misdemeanor courts, are on the ballot this year.  In case you're wondering which three are not, it's the 396th District Court, Criminal District Court 2 and the 213th District Court, in which Republican Judges Gallagher, Salvant, and Sturns won reelection two years ago.

So that leaves seventeen criminal trial courts up for reelection this year.  And despite all of the blowhard banter from Democrats in the wake the election of President Obama and the Dallas Blue conversion, the Democrats couldn't find a single person to run.  Seriously?

And you know what?  Apparently Tarrant County Democratic Chairman Steve Maxwell is not disappointed at all.  "It's not disappointing that we fielded so few candidates because the majority of the races are judicial races.  There are very few lawyers who relish the idea of running against an incumbent judge."  Really?  

So you don't run because you might lose?  Way to put up a fight.  Attaboy!

As pathetically anemic as the Democratic offerings for judicial races are, it really isn't much of a surprise.  Whether the Republican judges are good or not (I happen to believe the vast majority of them are, but there are a few that could stand to get a new job), the reality of politics in this county is that the Democrats have no chance.  They have a better chance of ousting Kay Granger than placing a Democrat on the bench.  

But the one race that was supposed to create the most contention was for District Attorney.  If you'll recall, longtime D.A. Tim Curry died last year, and there was a real buzz about who would be the next D.A.  Many suitors called on The Hair the governor to appoint them before he ultimately settled on Assistant District Attorney Joe Shannon.  

That appointment created a bit of a stir.  Many in the party felt former judge Bob Gill would, and should receive the appointment.  He resigned the bench and took a position within the D.A.'s office ostensibly to be the heir apparent.  But things didn't work out that way.  It was also rumored that Shannon would accept the appointment but that he would not seek reelection.  Apparently that's not the case.

Shannon and local attorney Kirk Claunch have filed to run for Tarrant County District Attorney in the Republican primary.  The Democrats have run....oh yeah....nobody!

Many believed former Tarrant County Assistant D.A., defense attorney, and current Dallas County First Assistant District Attorney Terri Moore would run as a Democrat and take the job she campaigned for twice before.  But with the Obama election, it seems Ms. Moore is likely in line for the United States Attorney job for the Northern District of Texas.  Although no decision has been made on that yet.

So that leaves only Shannon and Claunch running for the county's highest law enforcement job.  

It also leaves the Democrats of Tarrant County, all 27 of them, without a candidate for any criminal court or for D.A.

Kind of makes you wonder what they're doing down on Lancaster at Democratic Headquarters, doesn't it?

But what the hell do I know?

Hero

I know that for the most part people think that I simply use this blog to rant and rave about various things.  After all, according to one prosecutor, "All he does is complain about things and talk about himself."  Maybe that's true, and maybe it's not.  I don't think I complain that much.  But this is beside the point.

While I don't typically read the San Diego newspapers, this was particularly important for me.

When I was  in law school, one of my best friends in the whole world had his brother-in-law in town.  His brother-in-law, a young Marine officer, came to see his young nephew and decompress from being a Marine.  We met.  We hung out.  We had a good time.  We drank, a lot.  We had various run-ins with the locals.  It was a good time.

Over the last several years, he has continued in his Marine career.  Now, he is no longer a Second Lieutenant, but a Major.  No longer simply stationed at San Diego, but now commanding a Force Reconnaissance Company.  

Knowing his sister the way I do, she has absolutely no desire for him to be in Iraq, or Afghanistan or Oklahoma for that matter.  (Of course, in all fairness, who would want to be in Oklahoma?)  But I also know she is immensely proud of him.  As is everyone that knows him.

Yesterday at Camp Pendleton in San Diego, young Daniel Strelkauskas was awarded the Silver Star.  This is one of the most significant awards a Marine can be awarded.  It seems that Major Strelkauskas, during a four-hour firefight in Afghanistan, was injured and yet still managed to drag a wounded comrade out of harm's way and call in an airstrike to save his men.  

He did the things his men expected he would do.  He did the things those that know him knew he would do.  He was, in a word, a hero.

Although knowing him, we all know he would never say that about himself.  

Thanks Danny.  God bless.  Watch out for those heal clicks!

Happy Holidays

Who says I don't like the holidays?  Enjoy, and be safe.

And they're off!

Boy, that didn't take long, did it?  Within only a couple of weeks of me writing this, we have news of a primary contest for the Republican candidate for the 432nd District Court.

Local Fort Worth attorney Tom Zachry has now thrown his hat into the ring for the Republican nomination for the 432nd District Court.  While I have no idea if it had anything to do with this recent ridiculous sentence imposed by Judge Gonzalez, it's interesting that there is already an opponent for a bench that hasn't been filled for two months yet.

I will be honest.  I don't know Tom Zachry.  I know who he is, and he seems like a very nice, affable gentleman.  But I don't know him personally, so I can't speak to what he's like.  But I have some help.

Today I received a letter from Mr. Zachry asking to support him for the bench.  To be honest, it's really just a campaign flier.  Mr. Zachry apparently doesn't realize that here at the Matlock Blog, we are fair and balanced, and will happily post information about candidates and their campaigns if they will just let us know.  Yeah, I have a mouse in my pocket.

According to the flier, Mr. Zachry has 43 years of experience in criminal law and is Board Certified in Criminal Law.  Apparently, also from the flier, Judge Gonzalez has but 13 years of experience and is not Board Certified.

At first glance, this seems like an impressive comparison.  I mean, an extra 30 years is a long time.  It's practically my entire lifetime.  But, how much of that is really in criminal law?

You see, when you check out Mr. Zachry's website, it claims that he began his career in 1967 as an Assistant District Attorney.  Interestingly however, while in the D.A.'s office, he developed his own family law practice.  (You could do that?  Really?  WTF?)

He developed this practice to such an extent that he left the D.A.'s office to start his own family law practice.  It doesn't say what percentage of his practice is devoted to criminal law.  But it does say that since 1970 he has represented hundreds of people accused of crimes.  Even assuming that is 999 people, over 39 years that's only about 25 criminal cases per year.  Is that enough experience to be a felony court judge?

Mr. Zachry also points out that he is AV rated by Martindale-Hubbard where as Judge Gonzalez is not rated at all.  Too bad for Mr. Zachary that he didn't notice that it's really Martindale-Hubbell.  But despite that glaring error, it's still impressive.  But I don't know that it's that big of a deal.  I mean Mr. Zachry is not rated at all by avvo.com, whereas Judge Gonzalez was rated something like an 8.0 before being appointed to the bench.  Decisive?  No.  (At least not until you're rated something like a 9.7.)

There were some that believed Judge Gonzalez was appointed because of his connections within the local Republican party, and that he had made it known that he was interested in running for District Attorney to replace the late Tim Curry.  My sources within the party told me they had their eye set on former judge Bob Gill as the heir apparent.  So in exchange, the party impressed upon His Excellency the Hair the governor to appoint Judge Gonzalez.  I don't know.  I like to think it was because I told him to.  In any event, I think the judge has done well so far, 75 years notwithstanding.

But now it seems there are those looking to dethrone Judge Gonzalez.  Will there be more Republicans doing this?  Where are the Democrats on this?  J.R. Molina?  Maureen Tolbert?  Random prosecutor?  Mr. Zachry is the first, but something tells me he won't be the last.  

But what the hell do I know?

An open letter to Mike Ilitch, Detroit Tigers owner

No, this has nothing to do with law or elections or anything like that.  This is being written because this blog receives an average of 1400 hits per week, and with any luck, someone somewhere will pick it up and send it to Mr. Ilitch.  

Dear Mr. Ilitch,

I know being the owner of a professional sports team in Detroit in this economy can't be that easy.  (Well actually, I don't know that for sure, but I'm just guessing.)  And before I go any further, I have to commend you for your persistence in trying to field a World Series caliber team despite the economic downturn.  I really do.

But I recently heard through the grapevine from those at the GM meeting in Chicago this week that you're looking to dump salaries.  I can understand the temptation I suppose.  But considering this year's team was one game away from the playoffs, and is only a few years removed from the World Series,  I can only muster up one question.

WTF?  (Pardon my Gaelic)

Seriously.  Now I'm not talking in terms of a lifelong Detroit native who lost his job at the plans and has only the Tigers as an outlet for any hope of existence.  I'm coming from the lifelong Tigers fan who still considers 1984 the greatest year ever.  The kid who played Little League for the Tigers.  The adult whose dream job is already your job; owner of the Detroit Tigers.  

There have been any number of decisions of your's that I haven't agreed with over the years.  First and foremost, the building of Comerica Park.  Awful.  Really, awful.  You should have done what the Yankees did recently by simply building a new version of old Tigers Stadium.  I know I'm not the only one that considers Tigers Stadium to have been one of the greatest cathedrals of baseball. I totally agree with my law school professor, a lifelong Tiger's fan from Michigan, in saying way to screw that up.  

But an even bigger catastrophe would be to dismantle this Tigers team.  Why would you want to move Curtis Granderson, Edwin Jackson, or the heart-and-soul of the team, Brandon Inge?  These are guys that bleed for the Tigers.  Not unlike their fans.  And you want to screw them all.

I will give you that Granderson is undisciplined at the plate at times.  He swings at the first pitch far too often, especially with runners in scoring position and less than two outs.  But my god, man.  Have you not seen his potential?  The kid makes Griffey-like plays in center, and when he's good at the plate, he's wicked good.  And you want to give that up?

And Edwin Jackson?  A kid you traded for last year, who oh by the way, turns out to be one of the best off-season trades, who comes in and turns into a dominant All-Star?  Did you see the way he shut down teams this year?  I bought DirectTv's Extra Innings this year.  I loved Rod Allen constantly heaping praise on Jackson for becoming just an absolute workhorse.  He is.  

Finally, there is Brandon Inge.  Again, I have to simply ask WTF?  Are you even listening to Dombrowski?  Because I can't believe he's telling you to dump Inge.  He is a ballplayer.  He's not the most athletic.  He's not the most skilled.  But he gives everything he has out there.  On two bad knees for most of the season, too.  I suppose you would have dumped Kirk Gibson or Lance Parrish back in the day, too.  

The point I'm making is this team is too close to blow up.  If you really felt this way, why did you let Ordonez's option vest this year?  The answer is you knew this team can win the Series.  It's that simple.  What happened at the end of this year shouldn't be taken as a sign of decline, but rather a learning experience.   This is a good young team.  They have the talent to win the Series.  

If you don't keep this team together, then you will have sacrificed all the good will bestowed upon you by the fine people of Detroit and Tigers' fans around the globe.  You'll just become another greedy sports owner looking to make a buck with a professional team.  The good you've done will forever be forgotten.  That you put millions back into not only a team, but a city that desperately needed it, will be written off.  You'll be a cliche.  

This is a good team.  Listen to your baseball people.  Listen to Leyland and Dombrowski.  This team can win.  And they can win now.

The only question is will you give them a chance?