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."

"The concept of deceit was planted by the police and nurtured by the prosecutors," the judge said.

Atlas says the work that led to Hoyt's decision was the result of a widespread undertaking that involved, among others, private investigator Rob Kimmons, a former Houston cop whose firm reconstructed the crime for Vinson & Elkins, defense lawyer Stan Schneider, who aided Aldape Guerra's team in a November 1993 hearing before Hoyt, and Tom Gee, a now-deceased former federal jurist (a "staunch conservative, law-and-order judge," as Atlas points out) and a Baker & Botts lawyer who "worked extensively" in reviewing the 300-page brief Atlas filed for Aldape Guerra.

So far, the case has cost Vinson & Elkins "well into six figures" of lawyers' time and "tens of thousands" of dollars in out-of-pocket costs for expenses, Atlas says. At different times more than a dozen of the firm's lawyers have been involved in the effort. (Atlas previously has said that the government of Mexico provided help in lining up character witnesses and in bringing Aldape Guerra's parents to Texas to visit their son.)

Despite the cross-border notoriety and publicity, Atlas places the case in an established tradition of mostly unsung pro bono work -- that is, legal services provided free and for the public good -- performed by Vinson & Elkins. He notes that American Lawyer reported that Vinson & Elkins performed more pro bono work per lawyer than any major firm in Texas last year.

"We're proud of the work that we do," he says. "There's law firms in other parts of the country that do more, but not in this part of the world. People are encouraged to and given the tools to do it, and it's treated just like paying client work. I believe that the policy at any firm should be ... if you decide to take a case, you treat it like it was a paying client case, whether it is or not."

Believe it or not, one source of inspiration for the kind of effort that gave Ricardo Aldape Guerra his first victory in the U.S. legal system was the late John Connally. That stemmed, Atlas says, from an impromptu speech Connally gave at a party honoring him on his return to Vinson & Elkins after his acquittal on charges he had taken a bribe from the milk industry while U.S. Treasury secretary. Connally, saying he probably would have been convicted without the help of noted defense attorney Edward Bennett Williams, urged the firm's lawyers to do good by providing competent counsel for those in need.

Vinson & Elkins doubtlessly will do well by doing good for Aldape Guerra, both in Mexico, where the firm announced last summer that it was opening a branch office, and statewide, where it suffered a public relations black eye last summer after it was hit with a $21 million jury verdict for malpractice in the mishandling of a Houston oilman's estate.

The case of Aldape Guerra, meanwhile, may be far from finished. Hoyt's order gave the trial court 30 days to grant Aldape Guerra a new trial, or he will be released from the Texas Department of Criminal Justice. Harris County District Attorney Johnny Holmes has urged Attorney General Dan Morales' office to appeal Hoyt's order, citing eight factual errors in the judge's recounting of the facts in the case, including his description of Carrasco as left-handed and as blond-haired (no evidence was presented substantiating either characterization, Holmes says). Those errors cast doubt on the validity of Hoyt's decision, the district attorney maintains.

The Aldape Guerra case seems to provoke strong feelings in almost everyone involved, and Hoyt's order brought forth a pained and angry reaction from Holmes, who deemed it "offensive." The district attorney says the prosecutors Hoyt excoriated, Dick Bax and Bob Moen, both of whom are now in private practice, were honest and capable lawyers, and he never saw any evidence of "rank conduct" described by Hoyt during their tenure as assistant district attorneys.

"I regret very much the implications his opinion has for those two guys," Holmes says. "Moen and Bax are honorable people, they truly are, and they're still out there; their reputations are still important to them."

Atlas feels just as strongly about the gross injustice he says authorities visited on Aldape Guerra.

"I believe we're beginning to see the light at the end of tunnel," he says. "This is a good man who has been put through a hell that he does not deserve.

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