On Friday afternoon, in a small, crowded conference room of the Omni Hotel in downtown Fort Worth, the twenty-five year struggle to clear the name of Tim Cole officially ended.  And his true legacy began.

Texas Governor Rick Perry officially pardoned Tim Cole for his 1986 conviction as the "Tech Rapist."  Twenty-five years ago, a man terrorized women on the Texas Tech campus in Lubbock.  Tim Cole was arrested, tried, and convicted.  Unfortunately, he died in prison from complications from asthma and heart problems.  He was 39.

However, during the last several years, DNA evidence proved Cole innocent of the crimes for which he was convicted.  Through tireless work by the Innocence Project and others, Cole was recommended for a pardon.  Governor Perry agreed.  It culminated today.

Under the hot lights of the television cameras, the governor proudly proclaimed Tim Cole pardoned, and then sought to provide the deepest sympathies of the people of the State of Texas to his mother.  Various local legislators spoke about this or that.  Some claiming there would be significant changes to the criminal justice system after this.  Some simply claiming they working on bills to make this an easier process.

Whether new legislation comes to pass or not, perhaps the lasting memory of the Tim Cole saga will be the firsts involved in the case.

Tim Cole, convicted of a crime he did not commit, and who died in prison, is the first person in the history of Texas to receive a posthumous pardon.  He is also the first person posthumously be exonerated by DNA evidence.

There is a saying that it is better ten guilty men go free than for one innocent man be wrongfully convicted.  I wonder if that is on Tim Cole's headstone?

March 2nd proved to be an interesting day in local judicial politics.  Among other things, it marked the first election contest for the newly-created 432nd District Court.  It also marked the end for the recently-appointed judge, Ruben Gonzalez.

As you'll recall from here, the legislature created a new court for Tarrant County, and Ruben Gonzalez, a local defense attorney and former prosecutor with the D.A.'s office, was appointed to the bench by Governor Perry.  When the primary season arose, Judge Gonzalez quickly faced an opponent in the Republican Primary.  Longtime defense attorney and family law attorney Tom Zachry entered the race against Judge Gonzalez playing the experience card.  

Personally, I thought Judge Gonzalez would eek out a close win in the primary.  He was, after all, the incumbent appointed by a very popular governor.  Based on the campaigns of both men, it didn't seem to be close.  Gonzalez had not only been very active in local politics for years, but seemed to outspend Zachry on the campaign trail by at least 10-to-1.  At least that's my informal guess.  (I saw Gonzalez signs and material everywhere; I saw one Zachry sign go up and come down the same day.)

Yet despite the campaigning, Judge Gonzalez lost.  Big.  As in by 20 points.  

Now whether it was a result of voters choosing experience over incumbency, Gonzalez' repeated gaffes during his brief term (75 years for a case without a dead body?  Really?), or something else, the result was a brief term as judge for Gonzalez and a newly-elected Tom Zachry taking over the 432nd District  Court.

But it's really the "something else" that is potentially intriguing.  In a recent article in the Star-Telegram, the issue of race playing a big role in the recent Republican primary for Railroad Commissioner was discussed.  Essentially, the idea was that the incumbent that was supported by the governor lost because of his Hispanic last name.  His conclusion is based on the perception that he was not only highly-qualified, but also the incumbent, as well as endorsed by the governor himself.  Not only that, but all of the so-called political experts saw nothing but an easy win for him.  

In the article, he basically claims that voters would vote for a caucasian-named candidate at the expense of the potentially more-qualified Hispanic-named candidate.  I think it's an oversimplification, but an interesting point.  Especially in light of the race for the 432nd bench.

From an experience perspective, it's really hard to argue that either Judge Gonzalez or Judge-elect Zachry don't each possess enough experience to be a felony court judge.  Or, I suppose, don't possess enough.  Yet they each handled criminal cases for over a decade.  They seemed to be thought of as competent by their peers.  So what explains the twenty point loss by Judge Gonzalez?  Is it really his last name?

The morning after the election, I literally received at least a dozen phone calls and emails wondering how much race had to do with that election.  I have a hard time believing that was a major contributor to the results, but in the face of everything else (more, perhaps better campaigning by Gonzalez, incumbency, recency of appointment by the governor), you have to wonder.

Perhaps my hesitation has to do with the fact that there is already one Hispanic misdemeanor judge and two African-American felony court judges.  But the cynic in me says there is nothing about their names on the ballot (Nekhom, Salvant, or Sturns) that would cause a voter a moment of pause.

So the question comes down to did Tarrant County Republicans really unseat a sitting district court judge just because his last name is Gonzalez?  I have a hard time believing it.  While I would like to chalk it up to the issues Judge Gonzalez had during his brief term (should a sitting judge really have a campaign picture of him standing in front of law enforcement officials?  So much for fair and impartial I guess), I still can't get over the fact that Zachry seemed to do very little on the campaign trail.  

But in the end, the good Republican voters of Tarrant County had the opportunity to elect its first Hispanic felony court district judge.  They didn't.  Was it a conscious decision, or something else?  Good question.  We, as local Republicans, may have lost an opportunity.

But what the hell do I know?

That's the Webster's definition.  Some might say that definition stopped at the door of the 213th District Court of Tarrant County while Judge Bob Gill was presiding, specifically with regard to probation revocation cases.  

In May, I told you about a habeas hearing that was held in Judge John McBryde's court in U.S. District Court regarding a mentally ill woman who claimed ineffective assistance of counsel because her court appointed-attorney didn't mention her mental issues during a probation revocation hearing, and I'm using this term rather loosely, in Judge Gill's court.  Judge McBryde found ineffective assistance and overturned the woman's fifteen-year sentence.  

It didn't seem to make the news.  Until now.  The Star-Telegram has finally gotten on board with a story.  Maybe they should read this blog a little more often.

As the story details, Judge Gill had a practice in which he essentially would negotiate the plea deals for all probation revocations in his court.  It was common knowledge.  The prosecutors never really came into the picture, unless they had to present evidence at a contested hearing.  The Judge made the plea offers.  If they were rejected, there was hearing.  In front of him.  The judge whose offer was just rejected.

According to Judge Gill, this was done because he supposedly knew the cases and the probation system better than the prosecutors.  "[I]t was cutting out a step that was unnecessary."  

Really?  Hey, maybe next time we could dispense with that pesky trial, too.  I mean it is time-consuming.  Who needs it?  And while we're at it, maybe we could get rid of 4, 5 and 6, right?  Those silly rights do tend to get in the way of running an efficient docket I guess.

When I first came to Fort Worth, I had a revocation case in the 213th.  I was a little taken aback by the way the revocation cases were handled.  I remember being told that was just how things were done.  Thankfully, the case was resoled in a manner that my client liked, so it wasn't a big deal.  Truthfully, I only had one other revocation case in there before Gill resigned.  It was eventually dismissed though.  So I've never had a client whose constitutional rights were possibly trampled.  

Everyone knew about this "procedure."  Everyone.  Especially the prosecutors.  I remember talking to one prosecutor who had just recently been assigned to that court and he told me he liked that court because he didn't have to worry about revocations.  

So the idea that anyone in the criminal courthouse in Tarrant County didn't know about it is somewhat laughable.  But that's exactly what recently-appointed, current District Attorney Joe Shannon said according to the Star-Telegram story.  Alan Levy, chief of the criminal division at least acknowledged its existence, but made a point to say that it wasn't something the office condoned.

But Shannon, who is currently running for District Attorney against Kirk Claunch, actually claimed he knew nothing about the procedure in Gill's court.  Is it possible that there are other things Shannon doesn't know about?  Is that a really good quality to have in the sitting and possible future District Attorney?  

Gill resigned the bench a couple of years ago and took a position with the District Attorney's office ostensibly to better position himself within the Republican Party to be the heir apparent to longtime D.A. Tim Curry.  But Curry died in April of last year and Governor Perry appointed Curry's lifelong friend Shannon as the D.A.  It was rumored that Shannon agreed to accept the position with the understanding that he would not run for the office in 2010.  But somewhere along the line that changed, and it left Gill on the outside looking in.

As much as I would love to chastise the D.A.'s office or the judge for this, I suppose ultimately there has to be blame on the defense attorneys.  Obviously every case is different, and I have no idea what kind of resolutions were made in others' cases, but if we, as defense attorneys didn't like the way things were being handled, it was really on us to seek change instead of just going along with it because that was how things were always done.  So shame on us.

But at the end of the day, there is a former state district judge whose procedures regarding revocation cases in his court has caused "serious concern."  Legal scholars think this might well give every single defendant a legitimate ground for challenging their sentence.  Imagine the firestorm of litigation that could ensue.  All because Gill wanted to do things his way.

There is a current D.A. who claims he knew nothing about the process.  And he is now the boss of the former judge because the judge is now a deputy chief within the D.A.'s office.

You just can't make this stuff up.

Former Supreme Court justice Potter Stewart once said "Fairness is what justice really is."  So you would think that would apply to a judge.

But what the hell do I know?

Some people hate that Texas elects its judges.  Some like it.  I've always been a fan of a nonpartisan type of election, where only lawyers could vote for judges.  I know.  Somewhere, Alexander Hamilton is smiling at my elitist view.  What can I say?

But, since we have elections the way we do, it provides for great conversation at the courthouse.  Here in Tarrant County, the local bar association has a habit of conducting Judicial Candidate Qualification Polls.   I truthfully have no idea how scientific this year's poll is, but what the hell.  

Of course, there are only two contested criminal court races this year, despite the fact that there are technically 17 judicial elections.  Criminal District Court Number 3 and the newly-created 432nd District Court both have two candidates vying for the Republican spot in the general election against the typical Tarrant County Democratic candidate.  No one.

The Judicial Qualification Poll is sent to members of the Tarrant County Bar Association.  The poll was open to 2248 members, and 704 members actually voted.  In case you're wondering.  That's about 31 percent of the eligible members took time out of their very busy day to vote in a poll about the qualifications of judicial candidates.

In Criminal District Court Number 3, current judge Elizabeth Berry has decided not to seek reelection.  The two candidates looking to replace Judge Berry are current prosecutor Robb Catalano and current defense attorney Santiago Salinas.  Catalano's website is here, and Salinas' site is here.

According to the poll, of the 704 attorneys that voted, only 355 cast a vote regarding Catalano and only 302 voted in reference to Salinas.  The type of vote that could be cast fell into one of three categories; Not  Qualified, Qualified, or Well-Qualified.  (I added the missing hyphen, if you're wondering).

Salinas garnered about 16% Not Qualified, 40% Qualified, and 44% Well-Qualified.  In other words, over 80% of the attorneys that voted believe Salinas to be at least qualified to sit as a criminal court judge.  Not bad numbers.

Catalano however received less than 5% Not Qualified votes.  Additionally, he received 37% Qualified votes and 58 % Well-Qualified.  That's 95% of the attorney voters believe Catalano is at least qualified to be the next judge of Criminal District Court Number 3.  

With respect to the newly-created 432nd District Court, the candidates are sitting judge Ruben  Gonzalez and criminal attorney/ family law attorney Tom Zachry.  The website of Judge Gonzalez can be found here, while Mr. Zachry's is here.  (Just as an aside, I like the judge's website the best.  Very nice.  Flashy.  Reminds me of another tremendous law firm website.)

According to the all-important Judicial Candidate Qualification Poll, only 282 eligible voters cast a ballot regarding Judge Gonzalez and 349 voted regarding Mr. Zachry. 

Of those that voted for Judge Gonzalez, about 15% voted him Not Qualified, whereas Mr. Zachry received about 11% of the Not Qualified votes.  Judge Gonzalez received 40% Qualified and 46% Well-Qualified votes.  Mr. Zachry received 40% and 50% of Qualified and Well-Qualified votes respectively.  

So it would seem the attorneys voting in this poll far and away believe Robb Catalano to be the most qualified successor to Judge Berry in CDC3, whereas it would seem to be a dead heat to decide whether the recently-appointed Judge Gonzalez gets to keep his job on the bench, or whether longtime attorney Tom Zachry will ascend to the bench.

So the people who are presumably the most-knowledgable have spoken.  Will it hold true on election day?  I will put the over/ under on a Catalano win at 19 points, and I'll be taking the over.  As for the 432nd, I think we could witness quite a close election.  I predict a Gonzalez victory, but I think it could easily be within 5 points.

But then again, what the hell do I know?

I know that for the most part people think that I simply use this blog to rant and rave about various things.  After all, according to one prosecutor, "All he does is complain about things and talk about himself."  Maybe that's true, and maybe it's not.  I don't think I complain that much.  But this is beside the point.

While I don't typically read the San Diego newspapers, this was particularly important for me.

When I was  in law school, one of my best friends in the whole world had his brother-in-law in town.  His brother-in-law, a young Marine officer, came to see his young nephew and decompress from being a Marine.  We met.  We hung out.  We had a good time.  We drank, a lot.  We had various run-ins with the locals.  It was a good time.

Over the last several years, he has continued in his Marine career.  Now, he is no longer a Second Lieutenant, but a Major.  No longer simply stationed at San Diego, but now commanding a Force Reconnaissance Company.  

Knowing his sister the way I do, she has absolutely no desire for him to be in Iraq, or Afghanistan or Oklahoma for that matter.  (Of course, in all fairness, who would want to be in Oklahoma?)  But I also know she is immensely proud of him.  As is everyone that knows him.

Yesterday at Camp Pendleton in San Diego, young Daniel Strelkauskas was awarded the Silver Star.  This is one of the most significant awards a Marine can be awarded.  It seems that Major Strelkauskas, during a four-hour firefight in Afghanistan, was injured and yet still managed to drag a wounded comrade out of harm's way and call in an airstrike to save his men.  

He did the things his men expected he would do.  He did the things those that know him knew he would do.  He was, in a word, a hero.

Although knowing him, we all know he would never say that about himself.  

Thanks Danny.  God bless.  Watch out for those heal clicks!