Running Over the Defense?

Harris contends that Nuchia is biased in criminal cases.

Lawyers for Clara Harris want to oust a judge from their appeal of her murder conviction, stating that he was heard threatening to fire any staff assistant who ever recommended overturning a guilty verdict.

The attorneys filed a motion arguing that Justice Sam Nuchia, a former Houston police chief, is unfit to rule in Harris's appeal, now pending before the First Court of Appeals. In a case that attracted international attention and a recent made-for-TV movie, the Clear Lake-area dentist was convicted of killing her unfaithful orthodontist husband by running over him repeatedly with her Mercedes.

If Nuchia's comments are shown to be accurate, they could have impacts far beyond that of the Harris case, potentially jeopardizing other criminal case rulings Nuchia has been involved in during recent years. The motion also targets other judges and attorneys who allegedly heard the remarks but did not report them to judicial commission authorities.

The lawyers allege that Nuchia made the statements while he was at a routine court work session with his then-law clerk, Delia Reyna, Chief Justice Sherry Radack and various staff attorneys and aides in the fall of 2002. The motion states:

"Nuchia, after disposing of certain cases, looked at Reyna and stated, 'If any law clerk of mine ever writes a [draft opinion] that recommends reversing the state, I'll fire them.' Justice Radack then told those present, 'He is just kidding.' Justice Nuchia shot back in an angry tone, 'No, I'm not.' "

The attorneys who filed the motion, George "Mac" Secrest and Ken McLean, are veteran lawyers with credibility in the Harris County courts. They list the following alleged witnesses to Nuchia's comments: Radack, fellow justice Terry Jennings, chief staff attorney Janet Williams, staff attorneys Loreta Rea and Russell Hollenbeck, law clerks Daniel Ewert, William Gerhardt and Reyna. Rea later repeated Nuchia's comments to law clerk Jonathan Miles, the motion says.

The nine justices who make up the First Court hardly seem eager to explore the accusations against one or more of their own, however.

Late last week, a one-page, unpublished opinion stated that the recusal motion was denied by a majority vote. Justices who voted to deny it were Radack, Tim Taft, Evelyn Keyes, Elsa Alcala, George C. Hanks Jr., Laura Higley and Jane Bland.

That denial isnt likely to end the dispute. Soon after the vote, Secrest advised the court that he had sent a copy of the motion and ruling via FedEx to Chief Justice Wallace Jefferson of the Texas Supreme Court, apparently to advise that court about the alleged misconduct of the First Court. Secrest and McLean also were reported to have filed an emergency appeal with the Texas Court of Criminal Appeals, to at least ask justices there to order a hearing to enable them to gain evidence on the reports about Nuchias comments.

Some veteran criminal appeals attorneys, while not wanting to comment by name, say unconfirmed reports had been swirling for years about Nuchias comments to his staff. It had grown into an urban legend like alligators in the sewers, one lawyer says. The attorney says the Harris motion marks the first time that the names and specifics of the incident have been revealed.

News of the motion quickly swept through the defense ranks. Some lawyers speculate that attorneys who draw Nuchia in their appellate cases may be honor-bound to file identical motions to preserve the rights of their clients, regardless of what happens in the Harris case.

One attorney did a review of Nuchias rulings over the past two years. While cautioning that it was a quick and informal survey, the lawyer says it showed that Nuchia had participated on three-justice panels that did reverse convictions. However, the check did not turn up any instances of Nuchia authoring opinions that overturned convictions.

Lawyers who were contacted also reacted with amazement that Chief Justice Radack named as an apparent witness to the Nuchia remarks had participated in the vote against recusing Nuchia. Jennings, the other justice identified as a witness, was not among those voting on the issue.

Secrest and McLean had asked for a variety of actions by the First Court, contending that the comments violated judicial canons that include upholding judicial integrity and independence, and avoiding impropriety or the appearance of it. The requests included the following:

Asking the court for the recusal of Nuchia, that he step aside from hearing the appeal. And they wanted other judges who had heard his comments to similarly be removed from the case. The attorneys said judges who heard or learned of his remarks should have informed the state's judicial qualification commission or taken "other appropriate action."

Asking the court to transfer the case to an appeals court based outside Houston, which could rule fairly on the merits of the case.

At a minimum, the court should allow Harris's lawyers to conduct the evidentiary hearing that would force the alleged witnesses to appear and testify under oath.

A footnote to the Harris motion also says that early this year, Radack and Nuchia improperly traded "assigned" cases. "In complete disregard for the court's own rules," Radack gave Nuchia the high-profile appeal of Andrea Yates, the Clear Lake-area mother convicted of drowning her five children. In return, the motion says, Nuchia handed off a civil case to Radack.

That violated established policies because a judge must hear the case assigned to him or her, "except when disqualification is required or recusal is appropriate," the motion says.

Nuchia has hardly been described as a legal scholar since the then-police chief was elected to the court in 1996, and lawyers participating in the Houston Bar Association judicial polls have consistently condemned his abilities. Poll results regularly rank him as among the worst judges in the area -- nearly half of the attorneys have rated him as "poor."

However, his hard-line views keep him poplar among the coveted conservative Republican loyalists. Nuchia's career has included about five years as an assistant in the U.S. Attorney's Office here and 26 years with the Houston Police Department.

Then-mayor Bob Lanier named him police chief in 1992. Relying on strong name identification and the GOP's surging power in area elections, Nuchia easily gained election to the appellate bench four years later. A state district judge, Republican Michael Schneider, had already announced for that judgeship, although then-governor George W. Bush appointed Schneider to another bench on the court to clear the way for Nuchia's candidacy.

Nuchia's most visible accomplishment as a justice may be the 1997 security project that added a pair of deputy constables and a weapons detector to a tiny entryway to the South Texas College of Law elevators that take the public to the courts of appeals in Houston.

The court of appeals, as an interim appellate court, hears both criminal and civil cases. The First Court, along with the 14th Court, covers Harris County and 13 other counties in the region. Cases are assigned to three-justice panels -- the appeal by Clara Harris is scheduled to be heard by Nuchia, Taft and Radack, who is the wife of Harris County Commissioner Steve Radack.

At deadline, oral arguments in the appeal were still scheduled for Wednesday, October 6. The justices and staff members involved in the allegations in the Harris case did not comment. Chief Clerk Margie Thompson explained that judicial rules forbid such discussion relating to pending cases. Likewise, Secrest and McLean did not return phone calls for comment.

The highly charged motion comes in a case that has already been trumpeted by the media around the nation and beyond; it began soon after David Harris was run over in 2002. In addition to books on the case (see "Lindsey's Loss," by Steven Long, April 8), CBS premiered its movie, Suburban Madness, last Sunday night.

Clara Harris, accompanied by her husband's 16-year-old daughter, Lindsey, had confronted him and his mistress as they emerged from the elevators of the Nassau Bay Hilton. Investigators said that after a fight in the lobby, Clara Harris drove her Mercedes into her husband in the parking lot, then repeatedly drove over his body.

Jurors convicted her of murder, and she was sentenced to 20 years in prison.

Secrest and McLean are appealing the conviction, contending that state District Judge Carol Davies erred in several rulings during the lengthy trial. They argue that trial attorney George Parnham should have been allowed to cross-examine the victim's daughter about her conversations with the prosecution and an attorney representing her in a civil suit over the death. The defense believes she may have been coached about her story.

Harris is also appealing a ruling by the judge that prevented jurors from seeing videotapes made by a defense investigator of the path of the woman's car as it struck her husband. The tapes would have bolstered the defense position that she didn't intend to kill her husband, and that she didn't drive over his body several times after the initial impact.

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