It is not the best of times to be a criminal-defense lawyer in Harris County courtrooms. Judgeships are held by more or less conservative Republicans, many of them former prosecutors who are sensitive to the views and political pressure generated by victims' rights advocacy groups.
For the heavily Democratic defense lawyer corps, sometimes the elements of the system seem to be working hand in hand to convict clients at the expense of their constitutional rights.
At least that's the way Danny Easterling, president of the Harris County Criminal Lawyers Association, sees it.
"The victims' rights groups have their lobbying efforts directed toward the Republican judiciary, which is more sympathetic to their views," says Easterling. "We do have a concern that the level playing field that is supposed to exist is tilted because of the political pressure of the groups."
Defense attorney E. Gail Huff puts it more pungently. "The way things are going, why the hell don't they just give the victims' families baseball bats and let them beat the guys to death?"
The belief that the judicial deck is increasingly stacked may partially explain the complaints that flowed into the defense lawyers' association last month, after the county's announcement of a mandatory recertification training session on August 27. Some criminal lawyers didn't cotton to the idea that in order to be eligible for court appointments to represent indigent defendants, they would have to sit through a program that included a speech from Diane Clements. She's the president of Justice for All, a group which lobbies for legislation strengthening victims' rights. Clements's 13-year-old son, Zachary Ryan Clements, was shot to death by a neighbor's child in 1991, and she has been an outspoken victims' advocate ever since.
Clements was included in the program at the behest of two judges, County Criminal Court Judge Jean Spradling Hughes, who is the administrative judge for misdemeanor courts, and criminal District Judge Debbie Mantooth Stricklin.
Stricklin is the wife of District Attorney Johnny Holmes's first assistant Don Stricklin, and she is a former prosecutor once dubbed by admiring conservatives as "The Iron Maiden." Stricklin says she thought the defense lawyers would benefit from Justice for All's perspective on victims' rights. Other speakers at the session included criminal lawyer Kent Schaffer, and Marshall Shelsy, staff counsel for the county criminal courts.
Reacting to complaints from his members, HCCLA president Easterling says he got assurances from Clements that her presentation would stick to discussing current laws and would treat defense lawyers with respect. Likewise, Easterling sent a letter to his membership asking them to be respectful and listen to her message.
"I didn't want there to be a controversy; I wanted the program to go smoothly, and I thought it was going to," says the attorney.
Easterling says Clements broke her promise by talking about how influential her group was in passing laws and by offering her own views about needed reforms.
The session's decorum quickly dissolved into a tumult. Some attorneys registered their disapproval silently with their feet by walking out of the session at the downtown jury assembly room.
"She made the mistake of putting too much personal opinion into her speech," says Easterling. "When she started talking about those subjects and drifting off of the law and getting into personal stuff, that's what I think upset a lot of the participants there."
Near the end of her 20-minute talk, Clements told the lawyers that Justice for All had one unfinished bit of legislative business. After noting that the role of the victim at trial is "never enough," Clements seemed to deliberately antagonize the defense attorneys:
"One bill we want passed that we haven't found a sponsor for yet -- and y'all probably will try and make sure that we don't -- is that victims will be allowed to sit at the prosecution table."
At that, boos, hisses and moans erupted from the audience. Several more lawyers walked out.
"Okay, I know, that's pretty much how the legislators received it too," Clements continued. "But I can tell you it's done in the state of Georgia."
That provoked a fresh round of catcalls from lawyers seemingly unimpressed with the invocation of the Deep South as a judicial role model. Undeterred, Clements plowed ahead: "Yeah, it has been an effective tool if you talk with prosecutors." That drew more hoots. Apparently reacting to the crowd's disdain for D.A.'s, the Justice for All president concluded by saying, "Certainly prosecutors are the victims, but who knows where victims' rights will move to in the next millennium?"
"That's not what we came to hear," says Easterling. "That's not about the law; it was about proposed legislation for victims' rights, and really had no place on the program. The purpose of the program was not to have the organization's personal agenda given to us.I'm disappointed that she provoked that reaction, and she should have known she was going to."
Robert Fickman, an attorney in the crowd, stood and shouted, "Question, question," as Clements was ushered away.
Fickman later explains that he wanted to ask Clements whether she would support "a fund established for those victims of police brutality or those people that were incarcerated for lengthy periods of time and then later found to be innocent."
Fickman also wanted to know how, until a jury reached a verdict, one could determine who the victim was in a particular case.
"Those questions were never answered," says Fickman. "But if they're going to stick her in front of me, I'm going to ask her those questions."
As for the idea of putting victims at the prosecutor's table, Fickman opines that it might backfire on the law-and-order crowd. "A lot of the so-called victims are not such charming individuals, and to have the D.A. have to sit next to that person for the whole trial might serve 'em right."
Clements laughs when asked about the incident. She claims not to have heard any boos or hisses, only "a general 'oh no! What?' " at the idea of putting the victim front and center during trial. She also denies breaking any promise to Easterling, saying she had assured him only that she would not attack defense attorneys or admonish them for their chosen profession. Clements recalls that when the attorney initially called her, he warned her that radicals and rowdies in the HCCLA were threatening to walk out during her speech.
The activist says she expected a tough audience and was not upset by the response. "These are the guys who represent the guys who do these bad things," says Clements. "But these are also the guys who also go home at five and have families and wives, sisters and brothers. They are people more often than they are defense attorneys."
Attorney Huff says Clements was clearly spoiling for a confrontation.
"She was up there waving a red flag, spitting in their faces. She went over the line in bragging how they had obtained rights for victims."
At the same time, attorney Huff believes her colleagues should have been taking notes on why Justice for All is so successful, rather than shouting down its representative.
"I just really think the defense bar should have behaved like adults, and treated a guest with a little more respect," says Huff. "They needed to learn the face of the enemy. You need to see what it is that is working against you, and if they have any sense, the lesson they would have learned is that those people march hand in hand. Those people work together."
According to Huff, "If the defense bar expects to have any influence, they need to march hand in hand and work together." She then pauses to consider the notion that defense lawyers, a notoriously individualistic bunch, could ever muster that kind of discipline.
"Ain't never gonna happen," chuckles the lawyer. "Not in your lifetime or mine."
Whether they absorb Huff's "don't get mad, get even" lecture, defense attorneys likely will be a captive audience for Justice for All in the future. Judge Stricklin says the group should have a continuing involvement in the recertification program -- and the judge decides who is on the program. Clements is more than willing to invade the defense den again.
"Absolutely," says the activist. "I think it's important for people who are in that profession to understand a victim's perspective."
In that case, the defense bar might consider forming its own lobbying group: Victims of Justice for All.
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