Corruption in the Court of Appeals?

There has been a really interesting story the last two days in the local paper discussing allegations of potential corruption at the Austin Court of Appeals.

First, some background.  As most know, Travis County District Attorney Ronnie Earle had indicted Tom Delay and others for violations of the Texas Election Code.  The defendants challenged the constitutionality of the statute, and that claim has been on appeal for almost two years.  Last month, the Court of Appeals finally handed down a decision finding that the statute was constitutional.  However, the court went on and included additional opinions that may make it difficult or impossible for Earle to pursue charges.  (I could only find a Lexis cite for the case so I can’t do a link to the opinion.)

The statute is a confusing twist, but generally, corporations are not allowed to make political contributions in Texas except under specific circumstances.  It was not really disputed that the corporate contributions were improper.  Instead, the question was whether the individuals involved were subject to criminal liability.  As the opinion notes:

A person commits the offense of money laundering if he “conducts, supervises, or facilitates a transaction involving the proceeds of criminal activity.” “Proceeds” are defined to mean “funds” acquired or derived directly or indirectly from, produced through, or realized through an act.  The statute defined “funds” to include:

(A) coin or paper money of the United States or any other country that is designated as legal tender and that circulates and is customarily used and accepted as a medium of exchange in the country of issue;

(B) United States silver certificates, United States Treasury notes, Federal Reserve System notes; and

(C) official foreign bank notes that are customarily used and accepted as a medium of exchange in a foreign country and foreign bank drafts.

The Court interpreted the the categories of items listed in the “include” section as being exhaustive and concluded that checks were not “funds”.  And since the individuals were accused of passing corporate checks, then they didn’t violate the statute.  (The statute has since been amended to add checks.)

While the interpretation is interesting, to say the least, the most interesting thing to me is the uproar.

Delay is obviously a Republican.  Earle is a Democrat.  And the three judges that wrote the opinion are all Republicans.  And perhaps most at issue, the judge that wrote the opinion was affliated with Texans for Lawsuit Reform, a group that includes almost all of the same players involved in this case, before his appointment to the bench by Governor Perry.

In a filing earlier this week, in a motion for an en banc hearing, Earle complained of corruption in the Court.  He wrote:

The dark shadow of corruption of our system of justice looms over this case.  Every lawyer has a duty to raise questions of corruption that go to the heart of our judicial system, and it is in the discharge of that duty that the State pursues this effort.

Those types of allegations are almost never heard in filings before the Court.  And yesterday, they were ratcheted up a notch when Earle asked  the judge that authored the opinion to recuse himself. In that filing, Earle pointed to an article where the authoring judge discussed a civil lawsuit against almost identical parties making almost identical allegations.  In the article, the judge denigrated the civil case as “politically motivated” and suggesting that it was filed merely to “harass political opponents.”

This type of discourse is fascinating in a car wreck type of manner, and I’ll try to follow it here in the blog.

I also found one other item interesting.  On the recusal, the defendants argued that the prosecution waited too long to ask for a recusal.  The prosecution responded that they knew about the judge’s affiliation with TLR, but didn’t know about the article until recently.  One of the newspaper articles asked the question of whether the judge had an obligation to raise the issue of potential bias.  The article cited Lily Hardwick, a co-author of “Handbook of Texas Lawyers and Judicial Ethics,” was of the opinion that the judge didn’t have an obligation to disclose any affiliation if he felt he could have been impartial.  That strikes me as wrong.  As attorneys, we have a duty of candor to the court, but they don’t have a similar duty back to us?  While I’m sure a judge thinks he can be impartial, it would be nice if those potential biases could be examined in more depth and a neutral third party could decide whether recusal was proper.

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5 Non-Law Blogs and 5 Legal Bloggers

This weekend, I was tagged by the Torts Prof professors to participate in the latest legal blog meme by naming 5 non-law blogs I find interesting and tagging 5 other legal bloggers to do the same.  Because Austin is the #1 blogging city in the country, I thought I’d make my lists with a little local flair.

Five Blogs I Read Regularly and Find Interesting:

Barking Carnival — a blog dedicated to University of Texas and college sports

Zen La La — This is the blog of my friend Sara Hickman.  Sara is a musician, activist and mom.  She’s one of the most generous people I know (and you can get a taste of that from reading her blog), and the world would be a little better place if we aspired to do what she does.  And in a town filled with musicians, Grammy Awards, and stars, Sara is my only friend that has appeared on The Tonight Show with Johnny Carson (in my mind, still the “REAL” Tonight Show, with no offense to Leno).

Burnt Orange Report — A blog that covers Texas politics from the liberal perspective.

Some Assembly Required — Thom Singer is an Austin writer and speaker, among other things.  Though he’s in Austin, I’ve never met him.  I stumbled across his blog on a random Google search about Leadership Austin, a local group that we apparently both participate in.  I’ve continued to read the blog because I find his posts interesting and thought provoking.

Presentation Zen —  Obviously not a local blog, but I think Garr Reynolds is a genius and every trial lawyer in the country should read his book and blog.

Five Other Bloggers to Tag:

Keeping it in Austin, I tag Todd Smith, a local appellate lawyer, and Jamie Spencer, one of the original and most prolific Austin attorney bloggers.

In the personal injury arena, I would love to hear the thoughts of Bill Marler or John Day.

And finally, like Anne Reed and Eric Turkewitz, I’ll tag Scott Greenfield in hopes that he’ll finally contribute.

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My Thoughts On Ike

Forgive me as I go a bit off topic.

As trial lawyers, we’re taught that it’s important to tell your story to the jury. Stories are powerful.

Most of us in Texas have spent the last few days watching the news. I mean, I had lunch at a sports bar Friday, and most of the TVs were tuned into the Weather Channel. The local and national news stations have done an okay job of explaining the aftermath of Hurricane Ike, but I have been extremely impressed by the coverage of the Houston Chronicle. The Chronicle has embraced the internet and new media to really provide the stories behind Hurricane Ike — not only stories from its own reporters, but stories, blog posts, videos and photos submitted from readers. Those are the real stories from Ike. I urge everyone to take a few minutes and read or watch some of those stories, particularly those from Galveston, which was probably hit hardest by the storm.

And then consider the stories we haven’t heard. Consider those in Haiti or Cuba or some of the other Caribbean countries that don’t have the opportunity to tell their stories. Because we concentrate on the stories of the US, we don’t get the same coverage or same stories from these countries. And then consider where these stories began. Compared to the lifestyles of most here in the US, these people started in a hole, and I have a hard time imagining how they find the hope and optimism to keep on going, especially after being hit by not one, but four large storms in a row. But somehow they do, and because their stories don’t get out to us, they often do it without the amount of aid or help that our Texas gulf coast residents can expect.

How are we doing? I’ve received some emails from attorneys out there just checking in. Austin is only 2 ½ hours from Houston, but with Hurricane Ike, it was a world apart. While Galveston and Houston were being decimated Saturday, Austin experienced blue skies and 90+ degree temperatures. The positive thing about that is that Austin has been able to take in refugees fleeing the coast. And they keep coming. I understand that busloads of coastal residents will be arriving in Austin and San Antonio today and the rest of the week while their home areas try to recover.

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Texas Football, DWI, and Lessons Learned

It’s no secret that I’m a University of Texas sports fan.  My dad played baseball at UT, I have undergrad and law degrees from UT, my mom went to UT, and my younger brother went to UT.  I have two kids, each of whom knew the Eyes of Texas and Texas Fight by the time they were two.  Even my first dog was a beagle that had a lot of burnt orange.

So it was with great sadness that I read Sunday morning that a UT football player was arrested Sunday morning on charges of DWI.  By all accounts, the player is a good guy — he’s on the honor roll and regularly visits kids at the Dell Children’s Hospital.  But he made a mistake.

Yesterday, Austin American Statesman columnist Kirk Bohls had a great article reminding us to let that player’s arrest be a lesson to all of us.  He wrote:

Lamarr Houston became a statistic early Sunday.

And we’re not talking about his three tackles, two of them for losses in Texas’ season-opening football game.

The Texas defensive tackle was arrested and charged with drunken driving just hours after he played well in the Longhorns’ 52-10 win over Florida Atlantic.

There were more than 7,800 such arrests in Travis County alone in 2007. That’s up from 6,422 the preceding year.

So Houston’s got company. Too much of it.

And misery loves this company more than any other. In 2007, an estimated 12,998 Americans died in alcohol-related collisions, according to the National Highway Traffic Safety Administration.

There but for the grace of God and cab fare go you and I.

I don’t always (or rarely) agree with Kirk Bohls, but I do hope that everyone takes a few minutes to read the article and let this incident be a reminder to be careful out there.

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Texas’s New One Free Murder Rule

I have often been quick to criticize the current Texas Supreme Court regarding its decisions in the tort arena, but last week, they may have outdone themselves. Last week they handed down a decision in Trammel Crow v. Gutierrez that has emasculated inadequate security premises liability cases – cases where the injured person says that land owner knew about dangers from criminals but failed to protect customers or visitors to the land.

In Texas, a person or entity that controls a premises has a duty to use ordinary care to protect invitees (in most cases, customers) from criminal acts of third parties if the person or entity knows or has reason to know of an unreasonable and foreseeable risk of harm to the customer. These cases are all fought on two questions: Did the defendant control the premises and was there a foreseeable risk of harm to the customer?

In the Gutierrez case, Mrs. Gutierrez filed suit against Trammel Crow after her husband was shot and killed by an assailant dressed in black during a botched robbery in the parking lot of a San Antonio mall.

In the case, Trammel Crow admitted that they controlled the premises. The only question before the court was whether it was foreseeable that this murder might have occurred.

At the trial, the plaintiff presented evidence that in the two years before the murder, the mall had seen 227 reported crimes, 24 personal crimes, and 10 violent crimes involving aggregated robbery.

In addition, the security guard (and off-duty police officer) on duty the night of the murder testified that he saw two men dressed in black standing by a pay phone and made eye contact with them.

Hearing this, the jury found that it was foreseeable that the crime would be committed and awarded the widow and four children $6.5 million.

The Supreme Court reversed and found that the crime was not foreseeable. They went through each prior crime and parsed out examples of why those crimes were different than the one in the case. For example, some of the ridiculous distinctions were that in one crime, the assailants accosted the victim first, took his valuables, and then attacked him, whereas in this case, the victim was first attacked and then robbed. They noted that some of the robberies had indeed involved guns, but in none of those cases were the guns actually fired.

This type of parceling and categorizing of crimes basically creates a “one free murder rule” and maybe more than that. There is nothing to stop the court in future cases from categorizing murders and saying shooting deaths don’t necessarily mean that stabbing deaths are foreseeable. As long as the Supreme Court continues to substitute its judgement for that of our juries, justice will never be done.

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Schuelke Law maintains offices in Austin, Texas. However, our attorneys and lawyers represent clients throughout the state of Texas, including Dallas, Houston, San Antonio, Forth Worth, El Paso, New Braunfels, San Marcos, Kyle, Buda, Round Rock, Georgetown, Lockhart, Bastrop, Elgin, Manor, Brenham, Cedar Park, Burnet, Marble Falls, Temple and Killeen. By Brooks Schuelke

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