Pro Bono Publico

A Vinson & Elkins lawyer wins a big one for a death row inmate

Scott Atlas is slumped in his chair. He looks tired. It's already been a long day, a good part of which he's spent fielding calls of inquiry from the Mexican news media and calls of congratulations from officials of the Mexican government.

Atlas had just taken another call, this one from Ricardo Aldape Guerra, a Mexican national who's spent the last 12 years on death row in the Texas prison system after being convicted of the capital murder of a Houston police officer. It was the first time Atlas has spoken to Aldape Guerra since the inmate, primarily through the pro bono efforts of Atlas and fellow lawyers at Vinson & Elkins, was given a new trial by order of a federal judge.

Ten minutes later Atlas has resumed discussing Aldape Guerra's case with a visitor, recounting the particulars in a measured, matter-of-fact manner. But gradually the topic turns to what Atlas describes as a "not-so-subtle appeal to ethnic prejudice" that he says Harris County prosecutors made during jury selection for Aldape Guerra's 1982 trial. As it does, Atlas begins to rise in his chair, his posture stiffening as his voice grows louder and his words take on the sharpened edge of unfeigned moral indignation.

"I thought it was despicable conduct on the part of the prosecutors," says Atlas, "and I think they ought to be ashamed of themselves for ever having raised that issue."

It was a sentiment shared by U.S. District Judge Ken Hoyt about the entire case the state of Texas assembled against Aldape Guerra. Hoyt concluded his order granting a new trial for the inmate with this scathing and somewhat startling rebuke of the two (now former) assistant district attorneys who prosecuted Aldape Guerra and the Houston police officers who helped put together the evidence against him:

"The police officers' and the prosecutors' actions described in these findings were intentional, done in bad faith and are outrageous. These men and women, sworn to uphold the law, abandoned their charge and became merchants of chaos. It is these flag-festooned police and law-and-order prosecutors who bring cases of this nature giving the public the unwarranted notion that the justice system has failed when a conviction is not obtained or a conviction is reversed. Their misconduct was designed and calculated to obtain a conviction and another 'notch in their guns'...."

It's hard to decide whether such harsh judgment of authority sounds stranger coming from Hoyt, a black Republican named to the federal bench through the efforts of flag-festooned U.S. Senator Phil Gramm, or from Atlas, a consummate establishment figure who works for one of the most powerful institutions in the city of Houston and state of Texas.

Indeed, Atlas and his law firm would seem to be unlikely crusaders on behalf of Aldape Guerra, a Monterey native whose politically charged case has become a cause celebre in Mexico, one that also has been adopted by various leftist advocacy groups in the United States, who view his prosecution and death sentence as an especially harrowing example of injustices they say are routinely perpetrated here against illegal Mexican immigrants.

Soft-spoken and graying at 44, Atlas usually isn't involved in such front-page controversy in his regular line of work, commercial litigation. He is the son of Morris Atlas, a prominent McAllen lawyer and confidant of the family of Lloyd Bentsen, whose financial affairs the elder Atlas has long handled. Scott Atlas -- whose vocal intonation at times is vaguely reminiscent of Treasury Secretary Bentsen's -- himself is a player in state Democratic politics, having helped Ann Richards raise campaign funds and having served as coordinator of Bentsen's 1988 vice presidential and U.S. Senate campaigns in Harris County. His wife, Nancy Friedman Atlas, is also a lawyer and a noted charity fundraiser, and was named by Governor Richards to chair the Texas Higher Education Coordinating Board.

Atlas says he undertook Aldape Guerra's appeal after being approached in June 1992 by representatives of the Mexican government, who were acting on the recommendation of former Texas governor Mark White and others. Atlas was unfamiliar with the case, but after reading the transcripts of Aldape Guerra's trial and unsuccessful appeals to state courts, "I became convinced that this man had been wrongly convicted," he says.

During and since his trial Aldape Guerra has resolutely maintained his innocence in the July 13, 1982, murder of police officer J.D. Harris, who was shot and killed by one of two occupants of a car he had stopped for reckless driving in a working-class, mostly Hispanic southeast Houston neighborhood. Aldape Guerra, now 32, says the shots were fired by Roberto Carrasco Flores, the driver of the car and the owner of the 9 mm pistol used to kill Harris and a passerby. Carrasco died later that evening in a shootout with police; the 9 mm Browning and officer Harris' .357 Colt Python were in his possession. Aldape Guerra was found shortly thereafter hiding under a horse trailer, with a .45-caliber pistol found wrapped in a bandanna nearby.

Atlas argued that the state's witnesses, mostly frightened Hispanic teenagers from the neighborhood who were undereducated and had only a basic understanding of English, were intimidated and coerced by police into fingering Aldape Guerra as the killer, while prosecutors later withheld evidence favorable to Aldape Guerra and shaded the truth to get a conviction. In his order last week, Hoyt characterized police conduct as "scurrilous" and pronounced prosecutors' behavior as "equally rank."

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