Lott of Trouble

Appellate delays kept the client out of jail -- but not his lawyer

October 29 was shaping up to be a fairly typical day for Lott Brooks III, a veteran criminal defense attorney. He made some appearances in the Harris County courthouse and walked over to the shuttle bus stop to head back to his office.

And then he was arrested.

Brooks spent the next two days in jail with, he says, no possibility of bonding out. His crime? He had offended the 14th Court of Appeals.

A three-judge panel ordered Brooks jailed and fined $500 because he had repeatedly ignored deadlines for filing a brief on behalf of a client. Brooks was grilled by the judges on September 27, but that hearing ended with no ruling. He says he never heard anything back from the court until three deputy constables arrested him and took him to jail. When he eventually got out, he was so pissed that he wanted to send the court his jail-issued toothpaste and shaving kit, until his wife questioned the wisdom of shipping such unsolicited items to public officials in these anthrax-filled days.

"I think it's just the court of appeals waving their heavy hand," he says, noting pointedly that he's black and the judges who jailed him are white. (Harvey Hudson, the most senior justice on the panel, refused to comment.)

Brooks admits that he received 12 past-due notices and got five extensions without filing the brief. Further exacerbating the judges, when he finally submitted it -- almost two years after it was first due -- he filed a so-called Anders brief. In such briefs, appellate attorneys basically admit that clients have no valid claims.

So it's pretty understandable if the 14th Court panel, which included Justices John Anderson and Kem Thompson Frost, was annoyed. But two days in jail? Being locked up for failing to file a brief is rather rare, says Keith Hampton, lead lobbyist and legislative director of the Texas Criminal Defense Lawyers Association.

Hampton says that has happened only twice in ten years in Travis County, and anecdotal evidence indicates similar rates for other counties. "Usually just the threat of jail is enough to get an attorney to file."

Brooks admits to something that many criminal defense lawyers say only in private: In some cases, you win only by losing as slowly as you can. Also, he says, his client was free on bond, making the appeal less of a priority than other pending cases.

Brooks represented Kamonti Carter, a 25-year-old Houstonian who pleaded guilty to aggravated sexual assault of a child and aggravated kidnapping. His trial lawyer got him a "raw deal," Brooks says: 14 years in the penitentiary, where four or five years would be the norm.

(The incident that caused Carter's arrest, Brooks says, occurred between him and a girlfriend, and the couple are still together.)

Brooks says he hoped that the judge might reduce Carter's sentence if he was able to stay out of trouble while the appeal was pending.

"The reasons for the delay in filing were all legitimate, but in the back of my mind I was also thinking that each extension keeps the kid in the free world a little longer. And I told [the judges] that," Brooks says. "I fully believe if I went in and was honest, they'd understand and see the fact that the kid got a raw deal."

Hampton figures Brooks's honesty hurt him. "That is exactly the wrong answer to give a judge," he says. "I guess I'd give him an A for being real dedicated and having loyalty to his client…and an F for everything else."

The court's September 28 contempt order said Brooks deliberately misled the court: "His failure to disclose that the primary reason for seeking multiple extensions and for disregarding this court's notices was so that his client could remain free on bond was tantamount to an affirmative misrepresentation of the facts to this court. Mr. Brooks' conduct and tactics were abusive to the legal system and this court."

Brooks says he never received a copy of the order. "We had the hearing and at the end they said, 'All right, fine, we'll let you know what our decision is in a week or so,' " he says.

David Jones, a lawyer who has long been active in organizing the local criminal bar to lobby on such matters as indigent representation, says Brooks is thought of highly among defense attorneys. "He's very well respected by everyone I know. I don't know anyone who's had anything to say against him." Defense lawyers were shocked to hear of Brooks's arrest, Jones says.

Brooks says the court's action still baffles him. "It would have been meritorious if the kid had committed some kind of big crime while he was out, or if he had absconded," he says. "But that wasn't the case."

He wrote the justices a sarcastic letter of thanks, telling them the experience would no doubt let him better understand what his clients go through. Like the shaving kit and toothpaste, though, his wife talked him out of mailing it.

"She said it was much too harsh, but this whole thing really upset me," he says. "But I still have to appear before those judges and represent my clients." With, it's likely, a sharper eye on the deadline clock.

 
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