Slipping Under the Bar Radar
You figure the three lawyers representing the State Bar of Texas felt pretty stupid. A Harris County jury deliberated little more than a half-hour before rejecting their arguments and evidence in the disbarment case against super plaintiff's lawyer John O'Quinn and two associates. Deepening their humiliation, the pro bono State Bar squad learned they'd allowed Frank Reyes -- brother of former city councilman Ben Reyes, who was convicted of federal bribery and conspiracy charges -- to get on the jury that made him their foreman.
After all, if you represent a professional association trying to oust a member after a lengthy probe, you certainly don't want the brother of a man nabbed in an FBI sting operation to set the tone for the panel evaluating your case. As if the name Reyes weren't sufficient to set off alarm bells during jury selection, Frank Reyes, 55, also bears a more than passing resemblance to his younger brother, whose mug has been featured on TV newscasts and newspaper front pages for the last year. In fact, a public relations person who dropped in on the O'Quinn trial immediately commented on the facial similarity between Ben and the man in the juror's box.
Still, the bar legal team -- Broadus Spivey of Austin, Lonnie Morrison of Wichita Falls and Scott Rothenberg of Houston -- has one saving explanation for failing to weed out Reyes from the jury. The president and director of World Commerce Forwarding, an export-import business where Ben worked years ago, Frank is the eldest of the ten siblings in the Reyes clan. It turns out that he also exhibits a certain affinity with his brother's fluid concept of the truth as documented in the sting trial. Asked whether he or family members had been involved in criminal cases, Frank failed to mention either his own past DWI conviction or his brother's legal problems.
Reyes's failure to disclose puts the bar's Commission for Lawyer Discipline in a touchy position. The nine-person group, a mixture of laymen and attorneys, can instruct the lawyers to ask visiting district Judge Bill Rhea to overturn the jury verdict. That would cause a retrial of O'Quinn and associates Carl Shaw and Benton Musselwhite on allegations they used case runners to unethically snag clients in a North Carolina plane crash case. Or the group can swallow the verdict and acknowledge that the bar's evidence proved so weak the first time around that there is no point in walking that dog before another jury.
This was the second time the State Bar had tried to lift O'Quinn's law license, and it was equally unsuccessful. O'Quinn also was found not guilty recently on charges he failed to stop when pursued by a Houston police patrolman. O'Quinn has long claimed that jealous colleagues in the Texas bar are out to get him because of his successes, including making millions off breast implant litigation. Whether the bar mounts a third attempt to get O'Quinn's legal scalp may not be decided for several months.
"Right now decisions are being made as to what, if anything, to do about it," says a bar source. "One, further investigation; two, motion for new trial; three, filing an appeal. Those are calls that the Commission for Lawyer Discipline will have to make."
Final judgment has not been entered in the case, and appeals could be filed as late as February. Neither the attorneys representing the Texas bar nor its executive counsel Steve Young returned Insider inquiries.
A legal source on the bar's side says there is room for debate whether Frank Reyes's misstatements would automatically void the panel's verdict. There is no recent Texas Supreme Court ruling on the issue, there are no hard-and-fast civil procedure rules regarding the consequences of juror misconduct, and judges appear to have a wide latitude in individual cases. On the criminal side, a guilty verdict in the first murder trial of cheerleader mom Wanda Holloway in Harris County was invalidated by a juror's failure to disclose a criminal past.
In his instructions to the jury at the start of the disbarment trial, Judge Rhea emphasized the panelists' duty to be truthful when questioned by attorneys.
"If you do not obey the instructions I am about to give you, it may become necessary for another jury to retry this case with all of the attendant waste of your time here and expense to other litigants and the taxpayers of this county for another trial."
In particular, the instructions warned jurors that "the parties through their attorneys have the right to direct questions to each of you concerning your qualifications, backgrounds, experiences, and attitudes. In questioning you, they are not meddling in your personal affairs but are trying to select fair and impartial jurors who are free from bias or prejudice in this particular case. Do not conceal information or give answers which are not true!"
Reyes checked the "no" box on his juror application form in response to the question "have you ever been an accused, complainant, or witness in a criminal case?" In fact, Reyes had been charged with driving while intoxicated on October 21, 1989. He pleaded guilty the following February 20. Reyes was fined $350 and sentenced to 180 days in jail, probated to two years of supervision. A DWI is a misdemeanor but is also indisputably a criminal matter requiring disclosure by potential jurors.
Reyes also answered "no" to a jury screening questionnaire submitted by the bar attorneys. It asked, "Have you or a family member been accused or convicted of a crime?" Since Ben Reyes was sitting at the same time in federal court on the other side of downtown in his trial on multiple felonies, his brother's answer is hard to excuse as a lapse in memory or misunderstanding of the question. Had Frank answered truthfully, the prosecuting attorneys would have quickly flushed out his relationship to Ben.
Frank Reyes claims he had forgotten about the DWI incident when he filled out his juror form and answered to the best of his knowledge.
"I wouldn't consider that a criminal action to begin with," said Reyes, even though the case was heard in County Criminal Court No. 5. "It was one of those things where I went to a club, came out, and they pulled me over for a ticket.... I had already forgotten it until you mentioned it right now." As for not disclosing his brother's legal problems, Reyes claims it was outside the scope of the lawyers' questions. "Well, when you tell me 'family'," muses Reyes, "I'm thinking of my immediate family, my wife and my daughter."
O'Quinn's exonerated co-defendant Carl Shaw told the Insider he was unaware of any problem with the jury. He contends that even if Reyes is disqualified, it should not have any effect on a unanimous verdict. In civil cases, a verdict only requires agreement by ten jurors.
"There's 12 other jurors [including the alternate], and the prosecution had equal opportunity to look at the jury questionnaires," says Shaw. "Obviously they are unhappy with the result. If it were a 10-2 verdict or the alternate didn't concur with the jury verdict, which I happen to know the alternate did, then you're still 12-0."
Likewise, the trio's attorney, Ernest Cannon, says he's "in the dark" regarding allegations that Reyes lied to get on the jury. He believes any attempt to challenge the verdict is just part of a continuing vendetta against O'Quinn by the State Bar.
"I know what they're going to do. They're going to continue to stew in their sour grapes," snipes Cannon. "They got their butts kicked, and they don't like it, and they're willing to do anything. They're grabbing for straws.... I told John, and I told the jury that the State Bar is going to pursue John O'Quinn, right or wrong, for eternity, and this is just living proof."
Like Shaw, Cannon claims Reyes had nothing to do with the failure of the bar lawyers to make their case against O'Quinn.
"The jury was out less than an hour, and they were unanimous, and now they want to worry about whether one of the jurors has a DWI?" Cannon said. "I mean, get a life, man. Helloooo?"
On the other hand, taking into account the difference in the hung jury in Ben Reyes's first bribery-conspiracy trial and the hanging jury in his second, you couldn't blame the State Bar officials for wishfully thinking that, without the Reyes factor, they might have better luck the second time around against O'Quinn and company.
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