Editor’s note: The first four installments of “Scents and Sensibility-When Evidence Doesn’t Pass the Smell Test” appeared in the Southeast Texas Record on Dec. 2, 2009; Dec. 17, 2009; July 28, 2010; and Aug. 4, 2010.

The first four parts of this series chronicled how for years, Texas courts unquestioningly accepted junk science in the form of controversial “dog-scent lineups” that purported to tie accused individuals to a whole host of heinous crimes.

Former Fort Bend County Sheriff’s Deputy Keith Pikett was at the forefront of this, gaining fame statewide for the “feats” of his bloodhounds. Pikett’s fall was as dramatic as his rise, however.

It was revealed that Pikett had lied about his education and made unsupportable claims about his dogs’ abilities; and after animal behavior experts and criminal defense attorneys exposed the absurdity of his claims, juries and judges began rejecting Pikett as a credible expert.

Although Pikett retired earlier this year, he still faces multiple civil lawsuits in federal court from wrongfully accused criminal defendants. More importantly, left adrift in the wake of Pikett’s junk science were those who had been convicted on the strength of his since-discredited claims.

One such individual was Richard Winfrey Sr., convicted of the brutal 2004 murder of Murray Burr. Earlier installments of this series described how – despite an absence of any physical evidence – Winfrey Sr. was convicted (as was his daughter Megan) on the basis of a canine scent lineup conducted by Pikett nearly three years after the crime.

Winfrey’s son, Richard Winfrey Jr. was similarly charged, but at his trial Dallas defense attorney Shirley Baccus-Lobel and Billy Ravkind mounted a brilliant defense that exposed Pikett’s faulty claims and resulted in a “not guilty” jury verdict returned within minutes.

Baccus-Lobel soon turned her attentions to the daunting task of handling Winfrey Sr.’s appeal. His conviction had already been upheld by one appellate court, and his fate was up to the traditionally prosecution-friendly Court of Criminal Appeals, Texas’ highest criminal court.

Less than two months after “Legally Speaking” focused on Winfrey’s case, the Court of Criminal Appeals not only reversed the lower appellate court and threw out Richard Winfrey Sr.’s murder conviction, it provided the rare remedy of rendering an acquittal outright (typically, if it overturns a lower court’s ruling, the Court of Criminal Appeals will send the case back for a new trial).

The judges on the Court of Criminal Appeals, noting that “the science underlying canine scent lineups has been questioned,” held that dog scent lineup evidence, when used alone or as the primary evidence against a suspect, is legally insufficient to support a conviction.

Standing alone, the court said such evidence is “insufficient to establish a person’s guilt beyond a reasonable doubt.”

The court’s opinion, delivered by Judge Barbara Hervey, was unanimous, an 8-0 ruling that the prosecution had failed to present any credible evidence linking Winfrey Sr. to the murder.

Could the court, which was clearly aware of the controversy surrounding the use of such unreliable, unscientific evidence, have gone further and decided that dog scent lineups shouldn’t be allowed at all?

I believe the judges would have welcomed the opportunity to address this.

Unfortunately, that issue was not timely raised on appeal by Winfrey’s previous lawyer (not Ms. Baccus-Lobel), and so could not be considered by the Court of Criminal Appeals – a fact that four of its judges noted in a concurring opinion. Because it wasn’t preserved for appeal, the bigger issue transcending the Winfrey case of the shaky “science” and methodology underlying so-called “scent-discrimination evidence” could not be addressed once and for all.

But time moves on. One innocent man, Richard Winfrey Sr., is free. An appellate attorney for his daughter Megan Winfrey, Scott Pawgan, has asked the 9th Court of Appeals for permission to file a supplemental brief challenging the dog-scent lineup used to convict her.

Thanks to dedicated defense attorneys and the work of the Texas Innocence Project, others are joining the ranks of the exonerated. In late October, Anthony Graves was released from jail after spending nearly 18 years behind bars for the murders of Bobbie Davis, her daughter, and Davis’ four grandchildren in 1992.

Another defendant, Robert Earl Carter, had named Graves as his accomplice, although shortly before being executed in 2000, Carter gave a sworn statement admitting that he had lied.

In a case that was recently chronicled in Texas Monthly, the 45-year-old Graves spent most of his adult life on Texas’ death row. Over the years, more and more doubts began to emerge about Graves’ conviction.

His appellate attorney, the Innocence Project at the University of Houston, and even students in a journalism class at the University of St. Thomas lobbied to re-open the case.

One of the prosecution witnesses cited in Graves’ case was one Deputy Keith Pikett. In 2006, the 5th Circuit Court of Appeals overturned Graves’ conviction and ordered a new trial.

Among other flaws noted in the prosecution’s case, the Court of Appeals ruled that prosecutors had withheld two key exculpatory statements and obtained false statements from two other witnesses. After investigating the case all over again, special prosecutor Kelly Siegler decided to dismiss the charges.

Siegler said, “This is not a case where the evidence went south with time or witnesses passed away or we just couldn’t make the case any more. He is an innocent man.”

This “Legally Speaking” series opened many eyes to the problem of junk science in Texas courts, and how unreliable, unscientific “evidence” offered by a slick charlatan can rob innocent men of their freedom.

Earlier this year, the series was honored with the Houston Press Club’s Lone Star Award for outstanding commentary or criticism in a newspaper. A few weeks ago, it received the Dallas Bar Association’s Philbin Award for Excellence in Legal Reporting, and it has been nominated for the Suburban Newspaper Association’s award for best newspaper series and best investigative journalism.

I’ve even been invited to speak about the controversy surrounding dog-scent lineups at an annual forensic sciences conference in Fort Worth – the only non-scientist to be invited.

Bringing a story like this to light is important and not just because the issue of junk science in Texas courts is a vital one. Many of the accused individuals came from small towns, and were accused of crimes that generated little, if any, initial attention from “big city” newspapers.

Local newspapers serve their communities, too, and are just as capable of shining a light on irregularities in the legal system that can impact the people in these communities.

We shouldn’t let justice go to the dogs.

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In previous columns, I’ve written about some of the more creative and even outrageous defenses that lawyers and their embattled clients have employed over the years: the murderer who claimed “caffeine intoxication,” the speeding driver who claimed he lost control of the car while dunking cookies in milk, and the tax dodger who claimed “fear of filing syndrome.”

But if there’s one thing we can always count on, it’s that there will never be a shortage of bizarre defense theories and justifications offered by criminal defendants and civil litigants.

Sometimes, the best defense is also the “breast defense.” In 2008, Japanese pinup model Serena Kozakura was charged with breaking into the home of a former boyfriend in order to confront him about cheating on her.

Even though she was convicted at trial, an appellate court set aside the conviction, thanks to a demonstration showing that the buxom model could not possibly fit through the hole in the kicked-in door due to her 44-inch bust. After the ruling, Ms. Kozakura said “I used to hate my body so much, but it was my breasts that won in court.”

Many people love that “new car smell,” but at least one person managed to use it as a legal defense. On July 3, Morgan Stanley financial adviser Martin Erzinger ran over Dr. Steven Milo as the anesthesiologist was riding his bicycle near Eagle, Colo.

Erzinger kept on going until he reached a Pizza Hut, where he stopped and called Mercedes-Benz roadside assistance to report damage to his car. He was initially charged with two misdemeanors and a felony charge of leaving the scene of an accident.

An accident reconstructionist expert hired by the defense says that fumes emitted from the upholstery of Erzinger’s month-old sedan could have contributed to the accident. Erzinger purportedly suffers from sleep apnea, and the combination of that condition along with these “harmful and noxious gases” allegedly caused the financial adviser to doze off behind the wheel before striking Dr. Milo.

Although prosecutors initially cut a deal in which the felony charge was dropped, after public criticism the charge was refiled.

And if your car is too old to blame, there’s always your toothpaste. Former Massachusetts State Sen. Anthony Gallucio pleaded guilty to charges of leaving the scene of an accident in 2009. He was sentenced to 6 months of home confinement, and ordered to abstain from alcohol.

Three days after sentencing, Gallucio tested positive for alcohol. Gallucio claimed that was due to his toothpaste, which allegedly contains sorbitol, a sugar alcohol and artificial sweetener. But a judge didn’t believe “the toothpaste defense,” and found the former politician in violation of his terms of probation, and ordered him to serve a year in jail.

A court of appeals upheld the revocation of probation, and Gallucio served about six months before being paroled. Maybe now he’ll switch to Crest . . .

Meanwhile, being drunk was only the start of the driving problems for 41-year-old Mark Alan Watson of Oklahoma in December 2010.

His “defense” to charges of driving while intoxicated and leaving the scene of an accident? Mr. Watson is actually blind.

Of course, he didn’t help his case by showing up to his court date drunk, and by falling flat on his face in the middle of the courtroom. He was promptly arrested again on public intoxication charges, thus giving new meaning to the term “blind drunk.”

A man charged with drunk driving by Duke University police in October offered a more creative defense. Attorneys for Thomas Holloway filed an eight-page trial brief arguing that the campus police don’t have the legal authority to make such an arrest, saying that Duke is a religious institution and that the university police department violates the separation of church and state.

Attorneys William J. Thomas II and James H. Monroe contended that two-thirds of Duke’s Board of Trustees are elected by the United Methodist Church, and further pointed to the presence of Duke’s Divinity School and Duke Chapel to reinforce their argument, along with quotes from Duke’s bylaws which identify one of the school’s aims as asserting “a faith in the eternal union of knowledge and religion set forth in the teaching and character of Jesus Christ, the Son of God.”

The lawyers also pointed out similar cases involving schools that were found to be “religious institutions,” like Campbell University.

Duke University representatives vehemently disagree, pointing out that, among other things, Duke doesn’t even require students to take a religion course.

Finally, one of the most unusual defenses also turns out to be one of the most offensive. Forty-eight-year-old David Weaving of Waterbury, Conn., struck and killed 14-year-old Matthew Kenney on April 27, 2007.

Weaving, who had a record of five drunk driving arrests, was passing another car at about 83 mph in a 45 mph zone when he hit the teenaged bicyclist. In December 2008, a jury convicted Weaving of manslaughter, and he was sentenced to a 10-year prison term. In 2009, the boy’s grieving parents, Stephen and Joanne Kenney, sued Weaving in Waterbury Superior Court for negligence.

Weaving, representing himself, has responded with a unique defense: blame the parents.

According to his counterclaim, the Kenneys were responsible for their son’s death because they “allowed their son to ride his bicycle without a helmet and to play out in the middle of Rt. 69.”

Weaving, incredibly, claims to have suffered “great mental and emotional pain and suffering” as well as the loss of his “capacity to carry on in life’s activities;” he’s seeking more than $15,000 in damages.

Joanne Kenney calls the counterclaim “unbelievable,” and says “I just think it’s crazy that they have the ability to do this behind bars.”

Connecticut State Victim Advocate Michelle Cruz says, “Blaming the victim is just offensive. It takes obviously a very unique individual to go after the family of a deceased child.”

Unique is one word for it. I have a few others, most of which can’t be printed.

The mother of a minor girl has filed a petition to take the deposition of the girl’s father to further investigate a potential sexual assault claim.

Jane Doe, acting as next friend of Mary Doe, filed the petition on Jan. 25 in Jefferson County District Court.

According to the petition, Jane Doe brought her daughter to an area hospital suspecting she had been sexually abused. A sexual assault nurse confirmed her suspicions.

The petition does not give dates, names or locations.

Jane Doe seeks the father’s testimony, since he has partial custody and “knowledge of the matters relevant to the identity of those who had opportunity to abuse Mary Doe while during periods when (the father) had custody,” the petition states.

Jane Doe is represented by Beaumont attorney Clay Dugas.

The case has been assigned to Judge Milton Shuffield, 136th District Court.

Case No. D189-249

Guzman

AUSTIN – Dallas County District Judge Gena Slaughter improperly confined a defendant in a civil suit for lying at a deposition, the Supreme Court of Texas ruled on May 27.

By writ of mandamus, the Justices voided an order that cost Coy Reece four days in custody and would have cost him at least 10 more.

“During discovery it is inevitable that inconsistencies will arise, but the function of our legal system is to ascertain the truth from within these inconsistencies,” Justice Eva Guzman wrote.

“We are loath to contemplate a system where litigants and their attorneys scour transcripts, searching for any misstatement for the sole purpose of accusing the opponent of contempt and ultimately securing the opponent’s confinement,” she wrote.

She asked if a court, believing a person testified falsely, could punish the person for contempt with the purpose of compelling the person to testify in a manner the court considers truthful.

She wrote that Slaughter could have imposed sanctions ranging from payment of the other side’s expenses to default judgment.

Guzman wrote that Slaughter could have referred a perjury allegation to the district attorney for criminal prosecution.

Chief Justice Wallace Jefferson joined the opinion, as did Justices Nathan Hecht, Dale Wainwright, David Medina, Paul Green and Debra Lehrmann.

According to dissenting Justices Don Willett and Phil Johnson, the majority granted relief that only the Court of Criminal Appeals may grant.

“It is undisputed that we cannot hear this case as a habeas petition,” Willett wrote. “Why, then, should we be permitted to hear it under another name?”

He wrote, “No amount of head tilting and eye squinting can manufacture jurisdiction where there is none.”

Complaining that bifurcation of civil and criminal appeals left Texas with “a non supreme Supreme Court,” he exhorted legislators to act.

“The fastest growing state in the nation requires a modernized top to bottom judicial structure fit for the 21st century and worthy of our great state,” he wrote.

Case background

In the civil suit before Slaughter, SB International claimed Reece and others diverted business by secretly convincing customers to place orders with SB’s suppliers.

At a deposition in 2008, Reece denied knowing about another defendant’s transaction in violation of a contract.

He later admitted he lied.

SB moved for sanctions, requesting costs and fees totaling almost $60,000.

At a hearing, Reece testified he lied under oath at the deposition.

Slaughter found him guilty beyond reasonable doubt of lying “repeatedly, deliberately, and intentionally.”

She found he lied to impede, embarrass or obstruct the court in discharge of its duties.

Slaughter sentenced him to 60 days confinement, suspending all but two weeks.

Reece filed a habeas corpus petition at the Fifth District appeals court in Dallas and obtained emergency relief.

On further review, Fifth District judges decided they lacked jurisdiction.

Reece sought habeas relief at the Court of Criminal Appeals, where judges denied it because he wasn’t in custody.

The sheriff took him into custody, and he filed another habeas petition.

The Court of Criminal Appeals denied it, finding the underlying case was civil in nature rather than criminal.

The court declared it possessed jurisdiction to act on Reece’s petition, but declined to act so he could pursue remedies at the Supreme Court.

Reece moved for reconsideration and petitioned the Supreme Court.

The Justices ordered Slaughter to release him on bond.

He had lost four days of freedom, and the rest of his sentence hung in the balance.

The Justices heard arguments last October, and reached decision seven months later.

“While we agree that Reece’s perjury undoubtedly may have caused SB difficulty in the discovery process, we cannot say, on this record, that it obstructed the court in the performance of its duties,” Guzman wrote.

She wrote that his reprehensible behavior caused his opponent delays and costs.

“But we fail to see how Reece’s misstatements during his deposition rose to the level of actually obstructing the court in the performance of its duties,” she wrote.

She limited the holding to situations where the underlying dispute is civil and the Court of Criminal Appeals declines to exercise jurisdiction.

Willett fumed that the entire system should be scrapped and rebuilt top to bottom.

“Statute and precedent strongly suggest we cannot hear this case, but even if we can, practical considerations advise we should not,” he wrote.

He wrote that the clerk’s office sends a stock letter every day, “to lost litigants, steering them to our sister court and noting that the Supreme Court does not have jurisdiction over criminal cases and does not review the decisions of the Court of Criminal Appeals.”

He wrote, “If we dismiss, Reece will return to our sister court, where a motion for reconsideration remains pending – presumably awaiting our action.”

“This renders untrue the court’s statement that Reece has no other procedure to challenge his confinement in our state courts and no adequate remedy by appeal.”

He wrote, “I understand the court’s commendable desire to correct an erroneous trial court ruling, but where our labyrinthine judicial structure curbs our ability to hear certain cases, we must obey that limitation.”

Robert Gilbreath, Craig McDougal, John Ellis and Samuel Butler represented Reece.

Edward Dennis, Jeremy Fielding, Joseph Nathan and Richard Smith represented SB.

HOUSTON – A 33-year-old Texas man has been sentenced to federal prison for assaulting a federal prosecutor during a court appearance in the Southern District of Texas, according to Eastern District of Texas U.S. Attorney John M. Bales.

Jose Garcia Jr., of Mercedes, was found guilty by a jury on Jan. 10 of assaulting a federal employee and was sentenced to eight years in federal prison July 20 by U.S. District Judge Melinda Harmon.

According to information presented in court, on May 22, 2009, Garcia was scheduled to appear in federal court in the Southern District of Texas in McAllen pursuant to a supervised release violation.

While being escorted into the courtroom, Garcia physically assaulted a U.S. deputy marshal with a razor blade causing serious bodily injury.

Garcia pleaded guilty to the attempted murder of the deputy marshal on Dec. 18, 2009, in federal court in Houston. On March 5, 2010, Garcia appeared in federal court in Houston to be sentenced for the attempted murder of the deputy marshal.

A few minutes into the hearing, Garcia became agitated with the court’s ruling to deny withdrawal of his guilty plea and charged the assistant U.S. attorney prosecuting the case, causing the prosecutor to fall backwards against the railing of the jury box and breaking the prosecutor’s fingers in the process.

Later that day, Garcia was sentenced to 240 months in federal prison for the attempted murder of the deputy marshal. He was indicted on July 21, 2010, and charged with assaulting the federal prosecutor.

Garcia’s sentence of eight years for the assault of the federal prosecutor will be served consecutively to the 20 year sentence he is already serving for the attempted murder of the deputy marshal.

The case was investigated by the FBI and prosecuted by Assistant U.S. Attorney Robert L. Hobbs of the Eastern District of Texas on appointment of the attorney general.

On Sept. 8, Chad Allen Uptergrove will turn 36 years old. But unlike most of us, he will not celebrate that birthday surrounded by family and friends.

Instead, he will observe it in Amarillo at the William P. Clements Unit of the Texas Department of Criminal Justice, in a cell that is roughly 8 feet deep and 5 feet wide.

For nearly 20 years, since he was just 16 years old, Uptergrove has been incarcerated in the Texas state prison system for a crime that many feel he didn’t commit.

Uptergrove’s case, and those of dozens of other juveniles who were tried and convicted as adults, illustrates the human flotsam left behind by the changing judicial and legislative tides of how Texas, and indeed the nation, punishes its youngest offenders.

Even more pointedly, his experience exposes the flaws in a criminal system that is meant to assure a level playing field for all, but which all too often places retribution over rehabilitation and which sacrifices justice on the altar of high conviction rates and stiff sentencing.

By all accounts, in early 1992 the 16-year-old Uptergrove was a good kid who had fallen in with the wrong crowd in sleepy Bonham, Texas. His father, Ricky Uptergrove, had been largely absent from his life since Chad was 5. His mother, Pamela Sweet Richardson, was a hardworking county employee who would eventually be elected Chief Assessor Collector for Fannin County.

Terri Caffee, one of Chad’s high school teachers, remembers him as quiet, respectful, and “a typical teenage boy” who was a decent student, doing “what was asked of him” while not always working up to his potential.

Lois Horton, a loan officer and manager of the local credit union, recalls the good kid who “always had a big smile” and was considerate. Both individuals, along with some 70 other members of the small Fannin County community, would later write letters to the Texas Board of Pardons and Paroles asking that Chad’s life sentence be commuted.

Perhaps it was being a quiet kid who did what was asked of him that first brought Chad Uptergrove under the influence of Terrence “Terry” Dewayne Abbott and Abbott’s circle of friends. Terry was bad news—a 19-year-old who already had two felonies under his belt.

And on that fateful night of Feb. 18, 1992, Terry Abbott and two other youths entered Jimmy Brannon’s music store intending to rob it. According to the trial transcript, neither Abbott nor either of his companions were armed, but when Brannon produced a gun, Abbott seized the weapon and shot Brannon dead.

In a written statement later given to police (and read into evidence at his trial), Chad Uptergrove denied being present when the murder of Jimmy Brannon occurred, and said that he only learned of the shooting sometime later.

When he did, though, Uptergrove contacted the then-sheriff of Fannin County, Talmage Moore, and identified Terry Abbott as the shooter and told Moore where the murder weapon could be found.

Moore would later state that “without [Uptergrove's] assistance, I feel strongly that the case would not have been solved.”

But doing what many would consider to be the right thing proved to be Chad’s undoing: he found himself facing capital murder charges side by side with Terry Abbott. Abbott, no stranger to the system, quickly cut a deal that threw his 16-year-old friend under the bus, identifying Chad as being present during the crime and serving as the state’s main witness against Uptergrove as the government leveled capital murder charges against both teenagers.

Initially, it seemed inconceivable that a 16-year-old kid with no previous felony record, and who had voluntarily led police to both the shooter and the murder weapon could face charges as serious as the 19-year-old killer. Timing, however, was not on Chad Uptergrove’s side.

Dan Meehan, the District Attorney for Fannin County from 1981 to 1993, considered placing Chad in the Capital Offender Program for juveniles; this nationally-recognized program through the Texas Youth Commission has been wildly successful, boasting a 95 percent success rate of keeping its juveniles from being re-arrested for violent offenses within three years of their release.

Unfortunately, Chad was ineligible because he had already turned 17 before he could be placed there.

Meehan also anticipated that a plea bargain arrangement could be worked out; he had visited extensively with members of the victim’s family, and they were on board with a suggested 15 year sentence for Uptergrove, a term Meehan later characterized as “appropriate for [Uptergrove's] part in this crime.”

But in 1993, Meehan’s days as Fannin County District Attorney were numbered; he would leave office on Jan. 1, 1994. The case was prosecuted by the man who would succeed Meehan, James Moss.

While Moss’ perspective on the case is sadly lost (he died in a 2002 farm accident), many Fannin County residents feel to this day that the political pressures at election time explain why no plea was offered.

No candidate for the district attorney’s office wants to appear soft on crime to voters, and the result was no deal for Chad Uptergrove.

As Bryan Wix of Bonham later put it, “Many of us locally felt that political reasons . . . affected the case unfavorably. Chad should have remained in the juvenile system.”

Chad Uptergrove went on trial in June 1993. Now 17, he was represented by John Skotnik, a lawyer who had been licensed for less than eight years and who was trying his first capital murder case.

Although it was standard for a capital murder defendant to have the benefit of two lawyers, Skotnik’s request for additional counsel at county expense was denied by the trial court judge.

With the actual murderer, Terry Abbott, placing Chad at the scene, the jury found Uptergrove guilty of capital murder on June 24, 1993. He was sentenced to life in prison—the same punishment given to Abbott.

But before examining the issue of where Chad Uptergrove and so many youths just like him fit within the changing landscape of Texas’ treatment of juveniles in the adult criminal justice system, a troubling question remains: did the jury convict an innocent young man?

Uptergrove’s first appeal, centered around a claim of ineffective assistance of counsel, was quickly disposed of by the Texarkana Court of Appeals in 1994 and his conviction was upheld. Years after the trial and appeal, though, disturbing facts began to emerge.

In early October 2003, Chad’s mother was approached in the Bonham Wal-mart by Sue Speed Van Hooser. After asking how Chad was doing, Van Hooser asked the mother why she had never been called to testify at trial.

The question shook Pamela Sweet Richardson; nowhere had there been any indication of Ms. Van Hooser as a witness—neither the police nor the prosecution had ever breathed a word of her.

Then Ms. Van Hooser began sharing what had happened, details she had provided to the police soon after the murder and which would eventually form the basis of sworn testimony in Chad’s next appeal.

According to Van Hooser, she was contacted by the Bonham Police Department during their investigation, because a rental receipt from the shop next to the crime scene showed she was in the area during the timeframe when the murder occurred.

She dutifully went to the Bonham police, and told an Officer Laverne that she had seen three suspicious-looking men leaving the music store, and that none of them fit Chad Uptergrove’s description.

Officer Laverne even argued with her about the number of suspects, insisting to Van Hooser that only two young men were involved. The woman insisted that police had her name and statement, even if they had never called her to testify.

Under a 1963 U.S. Supreme Court case, Brady v. Maryland, it is a violation of a defendant’s constitutional rights for the prosecution not to turn over such exculpatory evidence. A long line of Texas cases reaffirms this duty on the part of the state, and specifically refers to material witnesses who would be favorable to the defense, like Ms. Van Hooser.

Law enforcement witnesses like Officer Laverne and Detective Mike Bennett (the Bonham Police Department’s detective in charge of the case) said that it was possible they had talked to her and acknowledged that the three men Van Hooser saw were leaving the music shop at the time that Jimmy Brannon had been killed; they further admitted that no one had ever advised the defense of this favorable account.

Bolstered by this revelation, in 2007 Uptergrove’s appellate lawyers asked the highest criminal court in Texas, the Court of Criminal Appeals, for a writ of habeas corpus based on his actual innocence.

The Court of Criminal Appeals didn’t rule right away; instead, it directed the trial court in Fannin County to hear the new evidence and issue findings of fact as to whether—in light of such new testimony—a jury would acquit Uptergrove, and whether the newly-discovered evidence could put the whole case “in such a different light as to undermine confidence in the verdict.”

The hearing took place as ordered, and Sue Speed Van Hooser testified unchallenged, as did Uptergrove’s original lawyer, John Skotnik, who said the prosecution had never disclosed this evidence that could have freed his client. One of the jurors from the original trial, Joann Ridge, even testified that the Van Hooser testimony would have made a difference to her as a member of the jury.

But it was all in vain. The trial judge’s “findings of fact” were essentially that the new evidence was of questionable value, could have been discovered earlier, and wouldn’t have led to a different verdict anyway.

Hesitant to substitute its collective judgment for that of the judge who had (theoretically, at least) considered all of the evidence old and new, the Court of Criminal Appeals declined to grant Chad Uptergrove the relief he sought. Now 32 years old, he had lived exactly half his life in the Texas prison system. For him, its doors would remain shut.

In the next installment, we’ll look at how Chad Uptergrove and others convicted as juveniles and sentenced to life in prison have found themselves caught in a legal limbo as judicial and legislative outlooks on juvenile offenders have changed.

Jefferson County District Judge Layne Walker punished thief John Patrick Rager too severely, Ninth District appellate judges ruled in July.

The justices in Beaumont vacated Walker’s order sentencing Rager to 15 years confinement and requiring him to pay about $240,000 in restitution.

They found that Walker sentenced Rager for felony theft of services in the second degree when he should have sentenced him for third degree felony.

Confusion arose because the caption of Rager’s indictment alleged second degree felony but the body of the indictment alleged third degree felony.

“Where the caption lists a different offense from the one alleged in the body of the indictment, the body controls,” Justice David Gaultney wrote.

Walker must now impose sentence between two years and 10 years.

He must also decide whether to reduce Rager’s restitution.

Rager argued he shouldn’t have to pay more than $100,000, because the indictment charged him with theft between $20,000 and $100,000.

Gaultney wrote that the appellate court didn’t address restitution because Walker will address it at a sentencing hearing.

Gaultney quoted a precedent that, “Restitution is punishment.”

Rager pleaded guilty pursuant to a plea bargain.

Walker placed him on community supervision for 10 years, and ordered restitution.

The state soon moved to revoke community supervision, and Rager admitted he failed to make restitution payments.

Walker allowed him three months, and later allowed six more months.

Rager still didn’t pay, and Walker sentenced him to 15 years.

When Rager appealed, prosecutor Rodney Conerly conceded that the law limited Walker to assessing punishment for a third degree offense.

Gaultney wrote, “A sentence not authorized by law is illegal.”

Justices Charles Kreger and Hollis Horton concurred.

Thomas Burbank represented Rager.

The first installment of this series examined the case of Chad Uptergrove, tried as an adult and convicted of capital murder for a crime committed when he was only 16 — a crime perpetrated by an older friend.

Despite having no prior felonies, leading police to the assailant and the murder weapon, and despite questionable evidence that he was even present for the robbery gone bad, Chad was sentenced to the same prison term as the actual killer — life.

It was a punishment that hit many in the Fannin County community of Bonham with “shock and disbelief,” as local resident Sid Andrew says.

“To see a teenager with no prior felonies sent to prison for life is unrealistic.” Rick Hazelip, owner of a Bonham detail shop, observes. “With Chad, I see a 16-year-old kid sentenced to a life sentence as an adult and for a crime he only stood witness to. Where is justice?”

Many Fannin County residents, including the county sheriff, former district attorney, and even relatives of the murder victim Jimmy Brannon, wrote the Texas Board of Pardons & Paroles seeking to have Chad Uptergrove’s sentence commuted, but to no avail.

In many ways, Texas’ treatment of juveniles convicted of capital crimes has followed the ebb and flow of national debate on the subject. After Texas and most states had preserved the distinction between juvenile and adult offenders for nearly a century, rising crime rates in the 1980s and 1990s and heightened media focus on so-called “juvenile super-predators” led many states to pass laws allowing more children to be tried in adult criminal courts, and providing judges with more sentencing options to respond to serious and violent youth crime.

The boy next door could very well be the monster next door, lawmakers reasoned, and in 1996 Texas legislators lowered the minimum age for certification as an adult to 14 years of age for certain crimes. In 1989, the U.S. Supreme Court held that it was permissible to execute offenders who were at least 16 at the time of their crimes

In 2005, however, the Court did an about face. In Roper v. Simmons, a sharply divided Supreme Court ruled 5–4 that executing those who committed murder as juveniles was a violation of the Eighth Amendment’s ban on cruel and unusual punishment.

Justice Anthony Kennedy, writing for the majority, concluded that “The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. From a moral standpoint, it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed.”

By 2010, in Graham v. Florida, the Supreme Court extended its reasoning to non-homicide offenses, ruling that life without parole sentences for juveniles convicted of crimes such as rape or armed robbery were also unconstitutional.

Part of the reason for the evolving attitude toward juvenile crime is a growing body of research on brain development in adolescents. Such research has provided scientific confirmation of what parents have known all along: teens don’t make decisions like adults and they are more susceptible to peer pressure.

While teenagers have the intellectual capacity to understand the long-term consequences of their actions, the still-developing areas in their frontal lobes that govern impulse control mean that they won’t be as likely or able as an adult to consider those consequences before acting.

Another reason for the softening stance on juvenile crime may have been the realization by many educators, psychologists, corrections officials, lawmakers, and others that life and life without parole sentences take away the second chance from which many youths would benefit.

One of the most compelling amicus briefs filed with the Supreme Court in Graham v. Florida came from a group of former juvenile offenders who turned their lives around. The group included award-winning actor Charles S. Dutton (who at age 17 stabbed someone to death in a street fight) and former U.S. Senator Alan K. Simpson. As a teenager, Simpson had assaulted a police officer and committed arson on federal property; he candidly characterized his younger self as “a monster.”

Texas’ position on punishing juvenile offenders has changed to an extent over recent years. Prior to 2005, juveniles convicted of capital murder could receive the death penalty or a life sentence with the possibility of parole after 40 years. In 2005, the Texas Legislature changed that law, letting jurors decide between execution or life without parole for capital murder.

Reacting to the Roper v. Simmons decision, in 2005 Texas commuted the sentences of 28 death row inmates who had been juveniles when they committed their crimes. By the 2009 Legislative Session, lawmakers changed their minds again, passing Senate Bill 839 and eliminating sentences of life without parole for juveniles who had been tried as adults and convicted of capital murder.

However, the change in the law left approximately 20 inmates who had been convicted of capital murder as juvenile offenders between 2005 and the 2009 passage of Senate Bill 839 in a state of limbo.

Chris Meadoux, a Hurricane Katrina evacuee who killed two people in 2007 when he was 16, was one of these. Had the crime been committed by a juvenile after Sept. 1, 2009, he would have had a shot at parole after serving 40 years behind bars.

State Sen. Juan Hinojosa of McAllen, author of S.B. 839, says he intended for the law to be retroactive. But in considering Chris Meadoux’s case in November 2010, the Texas Court of Criminal Appeals upheld his sentence of life without any chance at parole.

Writing for a 7–2 court, Judge Charles Holcomb said “Given the enormity of the crimes committed by juvenile capital offenders, the Legislature could reasonably conclude that such offenders are incorrigible and that the only prudent course of action is to separate them from society forever.”

In dissent, Judge Lawrence Meyers argued for ordering new punishment hearings for Meadoux and the 19 other teens sentenced to remain in jail until they died, calling it “ridiculous to say that a juvenile who was not even eligible for the death penalty” should receive a harsher, no-parole sentence.

In the 2011 Legislative Session, Sen. Hinojosa filed S.B. 973, intended to give retroactive effect to the 2009 law, but the measure failed to make it out of committee.

One of the 20 juvenile offenders saw his hopes brighten somewhat when the Galveston Court of Appeals set aside his conviction in 2010. Litrey Demond Turner was facing life without parole for his alleged role in the 2006 murder of a convenience store clerk.

Turner was 15 at the time; his 19-year-old friend Andrew Brown III shot the clerk, but pleaded guilty and received a sentence of 40 years. The appeals court ordered a new trial for Turner on grounds unrelated to his juvenile status, a trial Turner still awaits. The 19 others convicted as juveniles before the change in the law remain in prison.

According to the Campaign for Youth Justice, an estimated 200,000 youth are tried, sentenced or incarcerated as adults each year in the United States. Forty-five states give juvenile court judges the discretion to transfer a case to adult criminal courts; 15 states require juvenile court judges to transfer a case to an adult court in the case of certain offenses and factors such as an offender’s prior record. Fifteen states give prosecutors the latitude to try a juvenile defendant as an adult.

While most states have policies mandating that juveniles certified as adults be housed in juvenile facilities rather than in adult prisons (some until at least age 18, and others until age 21), Texas is not among them. In Texas, juveniles transferred to adult criminal courts await trial in adult county jails, most of which have no option but to house them in isolation for their own safety.

A 2009 investigation by the Houston Press found that the certified juveniles aged 14 to 16 years in the Harris County jail spent 23 hours a day in lock-up for months on end, an isolated state that can result in rampant depression, anxiety and paranoia. According to one national study by the Center on Juvenile and Criminal Justice, youth confined in adult jails and prisons are 36 times more likely to commit suicide then their peers held in juvenile facilities.

Besides the dangers to their mental health, juveniles housed in adult correctional facilities also face greater physical risks. Nationally, they are 50 percent more likely to be subject to physical assault with a weapon by other inmates.

The National Prison Rape Elimination Commission concluded in 2009 that “[m]ore than any other group of incarcerated persons, youth incarcerated with adults are probably at the highest risk for sexual abuse.”

And, it’s not simply the juveniles themselves who suffer, but the community at large. A task force of the Centers for Disease Control reviewed all available scientific research and concluded that transferring youthful offenders to the adult system not only has no deterrent value, but actually increases the offenders’ rate of violence and recidivism. One national study found that transferred juveniles who spent at least a year in an adult prison had a 100 percent greater risk of violent recidivism.

But are those minors who are certified as adults, convicted, and sentenced to adult prisons in Texas really the “worst of the worst,” so different in their criminality from their counterparts in juvenile facilities so as to warrant such greater risks to their physical and mental health?

A March 2011 study by Michele Deitch of the LBJ School of Public Affairs points out some eye-opening statistics. Her report, entitled “Juveniles in the Adult Criminal Justice System in Texas,” dispels many assumptions about the violence and persistent criminal behavior of youthful offenders who are doing “adult time for adult crime.”

Twenty-nine percent of all certified juveniles are, like Chad Uptergrove, first-time offenders. Seventy-two percent don’t have a prior history of violent crime, and 89 percent have never even been committed to the Texas Youth Commission, suggesting that few of them have a serious history of delinquency of any kind.

Forty-four percent of those transferred to an adult criminal court had either no previous involvement with the local juvenile justice system or only one prior referral. In other words, in nearly half of these cases, the justice system rushed to a judgment that nothing else works for these juveniles, when in fact the truth is that nothing was tried.

This “writing off” of youth offenders by banishing them to the adult system happens with disturbing frequency. In 2010 alone, there were 229 certifications to adult criminal courts, as opposed to only 109 juveniles given determinate sentences — a mechanism by which a minor can be committed to the Texas Youth Commission until he or she becomes an adult (thereby enabling him or her to benefit from educational and rehabilitative programs), before being transferred to the adult prison system.

Despite this disparity in sentencing, there was very little difference between the two groups in the offenses committed or the criminal histories. And under Texas law, the option of certifying a youth offender isn’t limited to the worst crimes; many non-violent felonies can qualify a juvenile for transfer to an adult court. Determinate sentencing, on the other hand, is an option reserved for only the 30 most serious offenses.

If the evolution of the law regarding the treatment of juveniles in the adult criminal system has taught us anything, it is that children are different. The fact that they are less able than adults to control their behavior has to be weighed when punishing them, while the fact that they have a better shot at being rehabilitated should be considered when incarcerating them.

The teenager who commits even the most serious crime, homicide, is still changing and developing; there is no way of predicting what kind of adult he or she will become in ten or fifteen years. Those juveniles convicted before the change in the law and sentenced to life without the possibility of parole will not rejoin society in anything but a coffin.

In the case of Chad Uptergrove, a child capable of redemption was sent to be imprisoned alongside adults after his 1993 conviction. One has to wonder what kind of man will return to society after at least 40 years in the penitentiary?

Four years ago, attorney Clifford R. Roth from Kansas thought he could make money off investors in Southeast Texas. Instead, his get-rich-quick scheme will cost him more than $2 million and almost four years of his life.

U.S. Attorney John M. Bales of the Eastern District of Texas announced Monday that Roth has been sentenced to federal prison for investment fraud. The 62-year-old attorney from Leawood, Kan., was sentenced to 46 months in prison and ordered to pay $2,270,802 in restitution.

According to information presented in court, in November 2007, Roth traveled to Beaumont and solicited investors to participate in the purchase of bank holding company stock he said would be used to purchase Oklahoma-based Bank of Quapaw, which would then open a branch office in Beaumont.

From November 2007 to April 2008, Roth told potential investors that their stocks would be held in an escrow account until the bank was purchased. If the purchase fell through, Roth claimed, the funds would be returned to investors with accrued interest.

Based on Roth’s representations, around 21 investors from Beaumont, Port Arthur, Houston and other areas in Southeast Texas made numerous wire transfers of funds totaling almost $2.5 million to TriCentury Corp., a holding company in Kansas City, Kan., which was controlled by Roth.

However the acquisition of the Oklahoma bank never occurred. An investigation by FBI offices in Beaumont and Kansas City discovered Roth’s plan was really a Ponzi scheme and that the funds were actually being used for Roth’s personal expenses and to repay investors in a previous scheme.

At least one Beaumont investor filed a lawsuit against Roth and others over the phony bank purchase. As the Southeast Texas Record previously reported, plaintiff Susan Hyman filed suit on Aug. 5, 2009. According to her attorney Jason Cansler, the suit is pending in state court.

Apparently, this is not Roth’s first dubious plan, according to media reports in the Kansas City area.

In the late 1980s, Roth controlled CCDC Financial Corp. in Overland Park, Kan. He took several companies he was running and rolled them into CCDC in 1991. CCDC � and its combined debt of $30 million � then went into bankruptcy.

It was discovered that Roth put CCDC into bankruptcy to avoid paying $1 million from a legal dispute involving real estate deals in Washington, D.C.

According to news reports, Roth was involved in another financial dispute related to The Elms Resort & Spa in Excelsior Springs, Kan. Investors in that case were concerned that Roth and others were diverting Elms-related bonds for other Roth debts.

He also was sued by Amerifax of Overland Park, Kan., in 1992. Amerifax contracted long-distance capacity from Sprint Communications Co. and claimed Roth misappropriated $3.5 million in company proceeds from a public stock offering, according to an article at the time in the Kansas City Star.

The case was dismissed by both parties later that year.

Roth pleaded guilty to the Texas scheme in March, and will report to the federal Bureau of Prisons on Aug. 23.

For the second time in three months, Ninth District appellate judges caught Jefferson County District Judge Layne Walker punishing a criminal too harshly.

On Oct. 12, they ruled that Judge Walker committed two errors when he imposed consecutive sentences of 20 years and 10 years on Brian Thomas Welker.

They ruled that Walker lacked authority to impose the longer sentence and that he should have set the shorter sentence to run concurrently instead of consecutively.

“A sentence not authorized by law is illegal,” Justice David Gaultney wrote.

Gaultney wrote the same words in July, when the Ninth District reversed Walker’s order sentencing John Patrick Rager to 15 years confinement.

Walker sentenced both men after they violated community supervision orders.

Rager had pleaded guilty to felony theft of services.

Welker pleaded guilty to two charges, but Gaultney didn’t specify his crimes.

Gaultney wrote that one of the indictments against Welker alleged a third degree felony, which would carry a sentence between two and 10 years.

He wrote that Walker’s written judgment indicated it was a second degree felony.

“The State concedes that the offense was a third degree felony, and that the trial court was limited to assessing punishment for the third degree offense for which he was indicted and admonished, and to which he pleaded guilty,” Gaultney wrote.

He wrote that on the less serious charge, Walker couldn’t order a consecutive sentence unless he found that the offenses were prosecuted separately.

Gaultney wrote that Walker must hold another sentencing hearing.

“This court requested the original plea records and was informed by the court reporter, who has since retired, that the records were destroyed,” Gaultney wrote.

“Without a record of the plea proceedings, it cannot be determined in this appeal whether the plea proceedings were consolidated into a single criminal action.”

He wrote that the state acknowledged there was sloppy paper work, and that the appropriate remedy was to delete the cumulation order.

Justices Charles Kreger and Hollis Horton concurred.

Beaumont attorney David Barlow represented Welker

Texas Supreme Court

AUSTIN – Texas Supreme Court Justices pulled accountant Lynda Marino out of a trap she stepped into when she tried to defend herself in a civil suit without a lawyer.

In a per curium order issued Oct. 21, justices found Brazos County District Judge Steven Smith improperly granted summary judgment against Marino for answering a request for admissions one day late.

“As we have previously observed, requests for admission should be used as a tool, not a trapdoor,” they wrote.

“Constitutional imperatives favor the determination of cases on their merits rather than on harmless procedural defaults,” they wrote.

After representing herself, Marino prevailed when she retained Marvin Martin of Bryan to represent her.

According to court documents, Marino performed accounting services for Charles King Horticultural Services for several years.

King discharged her and sued her, alleging she took money from one of his accounts.

She denied his allegations and asserted the money was for work she performed.

Marino also argued that King’s corporation should have filed the suit against, rather than King himself.

King sent Marino requests for admission.

“Through these requested admissions, King sought to have Marino admit liability for the various claims she had already denied,” the justices wrote.

She sent a letter to King’s lawyer, Paul Murphy of College Station, asking to extend the deadline for response by a day.

She delivered the response on the extra day, again denying liability.

King moved for summary judgment 10 days later, asking Judge Smith for $33,559 plus $5,000 in legal fees.

“The sole basis for King’s motion was Marino’s failure to timely respond to his admission requests; admissions he asserted were deemed admitted because Marino’s answers were one day late,” the justices wrote.

Marino didn’t file a response to the motion, but filed a motion to dismiss and served King with requests for disclosure, production, admissions and interrogatories.

According to hearing transcripts quoted by the justices in their opinion, Marino said, “When I knew I was running out of time, I did send the attorney a letter.”

King’s attorney Murphy objected and Marino said, “It’s on file.”

Judge Smith said, “When you undertake to represent yourself you have to follow the same rules that we guys who have law degrees do.”

“Just writing a letter to a lawyer saying gee, I haven’t had time to do this, is not sufficient under the rules of civil procedure.”

Marino said she felt like she had “a good defense and it should be heard.”

“I have asked and received some discovery from the plaintiff, although not complete in many places,” she said. “I also have a motion to compel discovery pending before the court at this time so I just respectfully ask, your honor, to not allow the summary judgment and proceed to hear my motion to dismiss.”

Judge Smith said, “Well ma’am, I don’t know what lawyer has been writing that for you.”

“That frankly sounds like the language of a lawyer.”

But Marino said no.

Judge Smith said, “You have not filed any kind of responsive pleading to the motion for summary judgment.”


“You filed a lot of other stuff but not a response to the motion for summary judgment.”

He rendered judgment for King and the appellate court affirmed him, but the Supreme Court took a dim view of the proceedings.

“Requests for admission are intended to simplify trials,” the justices wrote.

“They may be used to elicit statements of opinion or of fact or of the application of law to fact,” they wrote. “King’s requests here, however, asked essentially that Marino admit to the validity of his claims and concede her defenses – matters King knew to be in dispute.

“Requests for admission were never intended for this purpose,” they wrote.

The court found no evidence of flagrant bad faith or callous disregard for rules and nothing to justify a presumption that Marino’s defense lacked merit.

They remanded the case to Judge Smith for proceedings consistent with their opinion.

Texas Supreme Court Case No. 10-0854

Wice

A month after the Texas Ninth District Court of Appeals upheld his conviction, former Beaumont police officer Todd Burke took his case to the Texas Court of Criminal Appeals.

Burke was one of five officers involved with the Aug. 24, 2007, beating of Derrick Newman. Court records show Burke struck Newman 13 times with a baton. He was charged with official oppression and first tried in Jefferson County.

After a mistrial in April 2010, the case was transferred to San Antonio. A jury there found Burke guilty of official oppression and he was sentenced to 90 days probation and a $350 fine.

Burke appealed the conviction on Oct. 12, 2010, arguing that the trial court erred in denying juror challenges during voir dire.

Burke’s attorney, Brian Wice of Houston, filed a petition for review with the Court of Criminal Appeals on Sept. 20, court records show. The petition to review was granted Nov. 16.

Wice told the Southeast Record that the appeal will focus on how the defense was forced to use one of its peremptory strikes to eliminate a potential juror who indicated that he could not be fair or impartial because of a past experience with police.

He said the defense should have been granted an additional strike.

“While Appellant challenged (the potential juror) because his personal experience with police would affect his ability to be fair and impartial, his challenge was denied,” Burke’s petition for review states.

“Appellant objected to the denial of his challenges, exhausted his peremptory strikes to remove, inter alia (potential juror) and requested an additional peremptory strike to remove juror number five, whom he found objectionable. The trial court denied Appellant’s request for an additional peremptory strike.”

Burke is now asking the Court of Criminal Appeals to reverse the Ninth Court’s Aug. 24 decision affirming his conviction and remand the case to the trial court for a new trial.

Burke’s brief will be filed in the next 30 days, Wice said.

Trial Case No. 09-07066
Ninth Court case No. 09-10-00456-C
Criminal Appeals case No. PD-1398-11

Hoeffner

HOUSTON – Former Hartford Insurance claims supervisor Rachel Rossow, who received $2.7 million and a BMW 530ia from proceeds of settlements between Hartford and Houston lawyer Todd Hoeffner, gave up the cash and car rather than go to prison.

Rossow forfeited them to the United States on Nov. 10, and U. S. District Judge David Hittner sentenced her to “time served” on Nov. 15.

Former Hartford claims handler John Prestage forfeited a Volvo XC90, and Hittner sentenced him to “time served.”

The case record doesn’t show how much time they served.

This June, Hittner deferred prosecution of Hoeffner for 12 months.

In 2002, Hoeffner settled silicosis claims with Hartford for about $34 million. Court records show he gave $2.7 million to Rossow and about $600,000 to Prestage, plus cars and trips to New York City and beach resorts.

Grand jurors indicted all three in 2007 on charges of wire fraud, mail fraud, money laundering and conspiracy.

Grand jurors found the three schemed to deprive Hartford of honest services.

Hittner severed Hoeffner from the proceedings against Rossow and Prestage, and brought him to trial in 2009.

Hoeffner claimed the settlements were fair. He argued he didn’t bribe them because he gained nothing in return.

He testified that Rossow and Prestage extorted payments from him by threatening to stall settlement approvals indefinitely.

Jurors deliberated three days and gave up.

Prosecutors prepared to try him again, but he pleaded to the Fifth Circuit appellate court in Richmond that another trial would violate his right against double jeopardy.

Rossow and Prestage pleaded guilty of conspiracy to commit mail and wire fraud last year, but reserved the right to retract the pleas if Hoeffner’s appeal succeeded.

The appeal failed, and the U. S. Supreme Court denied review this May.

Hoeffner curbed the appetite of prosecutors for another trial in June by agreeing to forfeit $2,485,000.

On Oct. 31, Hittner set a sentencing hearing for Rossow and Prestage on Nov. 10. They filed briefs on Nov. 8, under seal.

Hittner held the hearing and entered final judgments of forfeiture, finding all matters in dispute had been resolved.

Five days later he accepted guilty pleas from Rossow and Prestage.

He filed a “statement of reasons” for each, under seal.

Granger

The man accused of fatally shooting one woman and wounding three others outside the Jefferson County Courthouse while he was on trial last month has had his case declared a mistrial.

Bartholomew Granger, 41, was in the midst of a trial on charges of aggravated sexual assault of a child in Criminal District Judge John Stevens’ court on March 14 when he allegedly left the courthouse and retrieved a gun from his truck in the parking lot.

Authorities say he then shot his daughter Samantha Jackson and his ex-wife, and ran over Samantha as he fled. Bystander 78-year-old Minnie Ray Sebolt was killed by gunfire and another person was injured. Granger was also shot in a gunfight with police and briefly held employees hostage at a nearby business before being apprehended.

His daughter sustained serious injuries and remains hospitalized.

On the day of the shooting, Granger was on trial for the aggravated sexual assault charges and his daughter and ex-wife were testifying against him. On April 20 Judge Stevens declared a mistrial in those proceedings.

Granger has been charged with one count of murder, three counts of attempted capital murder, four counts of aggravated kidnapping and one count of aggravated assault. He remains behind bars at the Jefferson County Jail on bonds totaling $4 million.

According to a statement from the family, Samantha Granger, who turned 22 on April 13, is now in stable condition.

“Sam is a fighter and has defied the odds,” the April 14 statement says.

“She is alert and tries her best to communicate but still has a tube in her trachea and can’t talk yet. Sam manages to keep smiling looks forward to participating in her church’s praise team again.”

Granger

The man accused of fatally shooting a woman and wounding three others at the Jefferson County Courthouse in March will undergo psychiatric testing, a judge has ordered.

Bartholomew Granger came before Jefferson County District Judge Bob Wortham in handcuffs and dressed in a red jail jumpsuit for a hearing on April 30.

Granger, 41, is being held in the Jefferson County Jail on $4 million bond after authorities say he left courthouse on March 14 and retrieved a gun from his truck in the parking lot. Granger was on trial in Criminal District Court Judge John Stevens’ courtroom for aggravated sexual assault of a child.

During a court recess, Granger shot his daughter, Samantha Jackson, and her mother, Claudia Jackson, who were witnesses in his sexual assault trial, as they left the courthouse. Granger also ran over Samantha Jackson as he fled the scene.

Two bystanders were shot as well, and one of them, 78-year-old Minnie Sebolt, died just outside the courthouse doors.

Police say Granger, in a gun battle with officers, abandoned his truck and briefly took four employees hostage at a nearby business. He was apprehended there after employees got the gun away from him.

Charges against Granger include one count of murder, three counts of attempted capital murder, four counts of aggravated kidnapping and one count of aggravated assault with a deadly weapon.

His case, originally in Stevens’ court, has been transferred to District Court Judge Bob Wortham because Stevens’ may be asked to testify. The trial that was in progress the day of the shooting was declared a mistrial.

On Friday, Wortham read each of the charges against him as Granger answered “not guilty.” The suspect sat without emotion, and looked down at the floor as each charge was read. At times he paused for several seconds before answering, and appeared disoriented at times.

Before the hearing, Granger asked his attorney Sonny Cribbs about the condition of his daughter Samantha. The lawyer said the young woman is still in the hospital in critical condition, but was improving.

Court records show that Granger has been involved in a legal battle over the sexual assault allegations since 2003. Last year he and one of his brothers filed a lawsuit against law enforcement agencies in Houston and Beaumont, claiming they had harassed the brothers and mishandled the investigations.

Granger has repeatedly denied the sex abuse charges and family members said he had become increasingly frustrated by the proceedings.

On Friday, Judge Wortham granted Cribbs’ request that his client undergo a psychological evaluation by Dr. Edward Gripon.

Wice

Former Beaumont police officer Todd Burke had his oppression conviction overturned by the Texas Court of Criminal Appeals on Wednesday.

Burke was one of five officers involved with the Aug. 24, 2007, beating of Derrick Newman. Court records show Burke struck Newman 13 times with a baton. He was charged with official oppression and first tried in Jefferson County.

After a mistrial in April 2010, the case was transferred to San Antonio. A jury there found Burke guilty of official oppression and he was sentenced to 90 days probation and a $350 fine.

Burke appealed the conviction on Oct. 12, 2010, arguing that the trial court erred in denying juror challenges during voir dire.

Burke’s attorney, Brian Wice of Houston, filed a petition for review with the Court of Criminal Appeals on Sept. 20, court records show. The petition to review was granted Nov. 16.

Wice argued the defense was forced to use one of its peremptory strikes to eliminate a potential juror who indicated that he could not be fair or impartial because of a past experience with police.

He contended the defense should have been granted an additional strike.

On June 27 the Court of Criminal Appeals reversed the Ninth Court of Appeal’s Aug. 24, 2011, remanding the case to the trial court for a new trial.

“Appellant has shown that he was harmed by the trial court’s erroneous denial of appellant’s challenge for cause,” the opinion states. “Appellant is entitled to a new trial.”

Trial Case No. 09-07066
Ninth Court case No. 09-10-00456-C
Criminal Appeals case No. PD-1398-11

DALLAS (Legal Newsline) – A final judgment against Ilya Drapkin was entered July 6 in Texas federal court that permanently enjoins him from violating federal securities laws and orders monetary relief.

Drapkin and his company MGTK Corp. will pay $3,754,004 in disgorgement and prejudgment interest and a civil penalty of $1,554,080.

More …

A petition for pre-suit investigatory depositions seeks testimony from the assistant principal at Port Arthur Memorial High School regarding the alleged sexual assault of a minor. 

Under the pseudonyms Does, the petition was filed Oct. 1 in Jefferson County District court.

The petition alleges Jenny Doe, a minor, was sexually assaulted by former teacher Kip McFarlin on the grounds of the Port Arthur Memorial High School campus and seeks the testimony of Tyrus Doctor, an assistant principal.

According to the Beaumont Enterprise, McFarlin was indicted in July on charges of improper relationship between an educator and student and sexual assault of a child. An Oct. 22 court date has been set.

The petition asserts Doctor is in a special position to address whether McFarlin has been accused of or involved in inappropriate teacher-student conduct in the past.

The testimony of Edward Wyble, the administrator who conducted the background check on McFarlin, is also being sought.

Depending on the testimony the petitioners elicit, a full-blown lawsuit might be initiated.

“Petitioners do not seek the deponents’ depositions for the purposes of harassment; rather petitioners seek to discover the facts necessary to make an informed decision about whether a lawsuit would be in their best interests,” the petition states.

Houston attorney Jack McGehee of McGehee, Chang and Barnes represents the petitioners.

Judge Donald Floyd, 172nd District Court, is assigned to the case.

Case No. E193-245

A Dallas attorney was indicted recently for allegedly stealing money from his clients.

Corea

Thomas Corea faces four first degree felonies after he was indicted Aug. 27 by a Dallas County grand jury. He is accused of stealing settlement funds from clients’ trust accounts, using false information to secure loans and stealing identities to apply for various loans and credit cards.

The indictments are the result of a seven month investigation by the Dallas County District Attorney’s Office.

Corea is charged with theft over $200,000, misappropriation of funds over $200,000 by a fiduciary, securing the execution of a document by deception worth more than $200,000 and fraudulent use and possession of identification information. He allegedly stole the identity of another Dallas attorney and used it to apply for a variety of American Express credit cards.

But Corea’s arrest on Aug. 30 is not the first time the attorney made the news in 2012. In February, Corea sued a Dallas-area CBS affiliate, claiming the station cost him more than a million dollars in potential business opportunities.

Corea had been hosting a live call-in program, “Ask the Lawyer with Tom Corea,” at noon on Tuesdays and Thursdays on station KTVT. He claims the station agreed to a format in which all calls would be answered by a live person and then forwarded to his law office answering service.

According to an article in Hollywood Reporter, Corea “demanded” that set up so that it would not be regarded as any form of legal solicitation.

During the first “Ask the Lawyer” program, more than 1,200 calls came in. Corea then hired a new call center to handle the large volume of calls, but the number of callers substantially dropped off after the first show.

In a suit filed Feb. 29, Corea alleges the station failed to transfer calls for extended periods during the program. He claims an investigation revealed that only 44 percent of the calls actually reached him.

The missed calls cost him at least $1.4 million in potential business opportunities, the suit claims.

He accuses the television station of breach of contract, unjust enrichment, fraud, deceit, tortious interference, conspiracy, deceptive trade practices, breach of special relationship, breach of confidence, unfair competition and negligence.

According to the biographical information provided on the Corea Trial Group website, Corea was born and raised in Southern California. He supported his studies at the University of California-Los Angeles by working as a teamster in a South Central factory. He earned his law degree at the University of California, Hastings College of Law in San Francisco in 1995.

He began a litigation and trial practice in Phoenix, Ariz., where he became involved in federal Indian Law. Corea then moved to Dallas to practice with Bickel & Brewer where he focused on intellectual property and insurance coverage disputes.

Corea Trial Group LLC was founded in Dallas in January 2003.

Connie Sue Broussard and Delta Downs Racetrack Casino Hotel have filed a joint a motion to dismiss a lawsuit centered on a malfunctioning slot machine. 

As previously reported, Broussard filed suit against Delta Downs and casino employee Travis Waters on Feb. 4, 2010, in Jefferson County District Court.

She claimed the casino wrongfully accused her of cheating and tampering with a slot machine.

In June, the Louisiana casino demanded the local resident drop her lawsuit after surveillance video showed her stealing.

Court records show that on June 16, the attorney for the defendants, James Doyle, filed a letter notifying the plaintiff’s counsel that he obtained video surveillance of Broussard stealing money from a malfunctioning machine that she knew was not working properly.

On Sept. 27 the parties filed a joint motion to dismiss, asking the court to dismiss the case with prejudice and that each party bear its own costs, court papers say.

That same day, Judge Donald Floyd, 172nd District Court, granted the motion.

In her suit, Broussard claims she and her husband decided to travel to Delta Downs in Vinton, La., on Feb. 5, 2009.

Arriving between 11 a.m. and noon, Broussard proceeded to play various slot machines for several hours, winning money on some machines and losing on others, according to the complaint filed.

Broussard claims that when she attempted to cash her ticket vouchers several employees approached and detained her, the suit states.

“When she inquired about the detention, an employee of Defendant Delta Downs publicly stated that ‘you know what you did’ and further publicly and falsely accused Plaintiff of ‘milking’ the casino ‘for over $13,000,’” the complaint says.

“Employees of Defendant Delta Downs then publicly seized the casino money vouchers as well as all cash in Plaintiff’s possession.”

Waters then allegedly led her to an isolated room where he and other employees interrogated her for an hour and a half. Broussard said they accused her of tampering with one of the slot machines so it would pay her more often, according to the complaint.

The suit states employees took all of Broussard’s money from her, then took her to jail.

On Nov. 16, 2009, the casino dropped the felony theft charge against Broussard and the money was returned to her on Jan. 15, 2010, according to the complaint.

Broussard claims she experienced humiliation, embarrassment, emotional distress, mental anguish, fright, anger, aggravation, worry, loss of enjoyment of life, deprivation of liberty, invasion of privacy and pain from the incident.

Broussard is represented by Robert Keith Wade of the Law Offices of Robert Keith Wade in Beaumont and by Brian D. Sutton of Sutton and Jacobs in Beaumont.

Case No. E185-861