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September 2011 Why our Legal System
is RespectedBy Clinton F. Cross (Mostly) Page 7
“Objection? Over-ruled!!” See story by Stephanie Page 5 Townsend Allala
SENIOR LAWYER INTERVIEW ќћȱѡѢёёюџё By Clinton F. Cross Page 7 S 2011 W. Reed Leverton, P.C. $WWRUQH\DW/DZ0HGLDWRU$UELWUDWRU Alternative Dispute Resolution Services
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THE PRESIDENT’S PAGE
State Bar of Texas Lawyers Serve All Award of Merit 1996 – 1997 – 1998 – 1999 2000 – 2001 – 2006-2010 Star of Achievement 2000 - 2008 - 2010 ne day after the Boston Massacre, a 34-year- State Bar of Texas old John Adams agreed to represent the British Best Overall Newsletter – 2003, 2007, 2010 captain and eight soldiers accused of murdering Publication Achievement Award 2003 – 2005 – 2006 – 2007 – 2008 - 2010 the American colonists who had converged on the NABE – LexisNexis Community Custom House in Boston. At trial, Adams argued that the & Educational Outreach Award 2007 - 2010 deaths of the colonists were brought about not by the soldiers, Bruce Koehler, President O but by the actions of the mob itself. He argued that the British -XGJH0DULD6DODV0HQGR]D President-Elect soldiers were acting in self-defense and that whatever the passions or wishes of the Randolph Grambling, Vice President jurors, “they cannot alter the state of facts and evidence.” All but two of the soldiers /DXUD(QULTXH]Treasurer -XGJH$OHMDQGUR*RQ]DOH], Secretary were acquitted. Adams certainly knew there would be repercussions, and indeed, Chantel Crews, Immediate Past President Adams lost a significant portion of his practice because of his representation. Why did Adams agree to represent the British? According to David McCullough in his %RDUG0HPEHUV Teresa Beltran book John Adams, Adams accepted the representation because “no man in a free Judge Linda Chew country should be denied their right to counsel and a fair trial.” As you can see, Mark Dore Lawyers have a proud tradition of serving those for whom the public has nothing Judge Eduardo Gamboa Myer Lipson but derision and disdain. 'is tradition reaches back before the founding of our Denise Butterworth country, and continues today, as reflected in the order adopting the Texas Lawyers Kenneth Krohn Creed, which notes that “as members of a learned art, we pursue a common calling Raymond Martinez Alberto Mesta in the spirit of public service.” Jennifer Vandenbosch Yvonne Acosta It is this tradition of John Adams to which lawyers should aspire. We are fortunate George Andritsos Duane Baker to live in a community in which our fellow lawyers regularly seek to serve the public Judge Kathleen Cardone in a variety of ways. 'is includes the representation of indigent residents and those Donald L. Williams for whom the public has little sympathy. EX-OFFICIOS SBOT Director, District 17 'is year, the El Paso Bar Association will be honoring and celebrating these EPYLA, MABA, EPWBA, ABOTA, FBA, EPPA, El Paso Bar Foundation lawyers and judges who seek to serve the community and the profession. 'e Bar Executive Director will also continue our service to those in need of legal services through the Access Nancy Gallego to Justice Fair (October 29, 2011) and the El Paso Lawyers for Patriots Event Editorial Staff (November 17, 2011). 'is year, the Bar will also seek to serve our members and Clinton Cross, Editor the legal community in general. We are working on a complete overhaul of the Stephanie Townsend Allala Judge Oscar Gabaldon Bar’s website to make it a valuable tool for local attorneys. Additionally, we will Donna Snyder be providing numerous CLE seminars throughout the year, including 'e Annual “The El Paso Bar Journal is a bi-monthly publication of Civil Trial Seminar, which will take place in Las Vegas on February 17-18, 2012. the El Paso Bar Association. Articles, notices, suggestions We will also be holding a special Law Day event, as well as many other events and and/or comments should be sent to the attention of Nancy presentations throughout the year. Gallego. All submissions must be received by the Bar RI¿FHRQRUEHIRUHWKHWKGD\RIWKHPRQWKSUHFHGLQJ SXEOLFDWLRQ&DOHQGDUOLVWLQJVFODVVL¿HGDGVGLVSOD\ I invite each of you to join us in our celebration of lawyers and their role in the ads, and feature articles should not be considered an endorsement of any service, product, program, seminar judicial system. In particular, please join us for our monthly luncheons on the second RUHYHQW3OHDVHFRQWDFWWKH%DURI¿FHIRUDGUDWHV$U- Tuesday of every month at the El Paso Club. ticles published in the Bar Journal do not necessarily UHÀHFWWKHRSLQLRQVRIWKH(O3DVR%DU$VVRFLDWLRQ LWV2I¿FHUVRUWKH%RDUGRI'LUHFWRUV7KH(O3DVR B A. K Bar Association does not endorse candidates for SROLWLFDORI¿FH$QDUWLFOHLQWKH%DU-RXUQDOLVQRW Cover Picture: Bo Pelini, head coach of Nebraska, protesting a call by and should never be construed to be, an endorsement Gene Semko at the Nebraska—Texas A. & M. game last year. RIDSHUVRQIRUSROLWLFDORI¿FH´
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E L PA S O BAR A SSOCIATION September Bar Luncheon Tuesday, September 13, 2011
El Paso Club z 201 E. Main, 18th Floor, Chase Bank - $20 per person, 12:00 Noon
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F C T G:
A LifeBY S TEPonHANIE TOWN SENDthe ALLALA Line n a beautiful August morning, family thought was fascinating and gave me an insight investigated for betting on NBA games law attorney Gene Semko walks into how much goes on behind the scenes.” LQFOXGLQJVRPHWKDWKHSHUVRQDOO\RI¿FLDWHG Obriskly into the courtroom--preparing When he started refereeing Division One He was subsequently indicted and pleaded to spar in a divorce hearing. In his designer college football in the Western Athletic guilty and sentenced to prison. suit and tie, he’s handsome, trim and just GQ Conference in 1996, his education began with a An investigation was launched by the enough to turn a few heads. One might never three-day clinic. “As long as I performed up to NBA in an attempt to determine how Tim guess when he’s not in court, he uses a loud, expectations, I would be rehired the following Donaghy was able to do what he did over a blaring whistle to get attention. year.” That practice continued, including when four year period of time without detection. The For 16 years, Gene has split his time between he was hired by the Big XII investigation provided the following insights, KLVODZRI¿FHKLVIDPLO\DQGKLVIDYRULWH for the 2004 season. according to Semko: hobby- refereeing Division One College That all ended “First, since Tim Donaghy was given his full Football. He currently referees as a side judge in 2008 because NBA basketball schedule, which spans eighty in the CFO West- the assigning agent for the i n 2 0 0 7 , Ti m games over a six month period of time. He was Big XII Conference (shrunk to only 10 teams D o n a g h y , a able to space out the games he personally bet on this year), the Mountain West Conference and veteran NBA RUWULHGWRLQÀXHQFHQHYHUWU\LQJWRLQÀXHQFH the Southland Conference. He has worked RI¿FLDO ZDV too many games each year. This made it harder numerous bowl games, most recently the 2011 to detect since there was no real pattern to Fed Ex Orange Bowl. Included on his resume be discovered between the games, the teams is the 2008 National Championship Game and the players. The result of this portion between Ohio State and LSU, the 2007 of the investigation was a recommendation Sugar Bowl, the 1998 Cotton Bowl and that all assignments be submitted piecemeal three Big XII Championship Games. WKURXJKRXWWKHVHDVRQVRWKDWDQRI¿FLDO¶VIXOO Gene spent the summer preparing schedule would not be provided to him for the IRUWKHXSFRPLQJVHDVRQ+LV¿UVW entire year. game assignment for the year is ³,QWKLVPDQQHULIDQRI¿FLDOZDVJRLQJWR Thursday night, September 1, do something that required collaboration with between UNLV and Wisconsin, others, it would be harder to disguise as there in Madison. He’s having to was a shorter period to plan such treachery. As deal with a new schedule this a result, commencing with the 2008 schedule, year- rather than knowing the NFL, NBA and most Division One college his schedule for the entire conferences--including the Big XII--undertook season, he must wait and WKHV\VWHPRIDVVLJQLQJRI¿FLDOVRQO\IRXU be informed intermittently weeks at a time, which allowed them to make throughout the season. decent travel arrangements while limiting the “NBA basketball time available to plan illegal activities. RI¿FLDO7LP'RQDJK\ “Second, each official now is subject is responsible,” he to a FBI background investigation prior to said. “Now, after receiving any assignments. I get contacted he works his game every year now in order to be eligible to work on the weekend of in the Big XII and it is a random process September 3, on the of undergoing a full investigation or just following Monday I VXEPLWWLQJWKHSDSHUZRUNWKDWVDWLV¿HVWKHLU get my assignment for requirements. So far, I’ve only had to submit WKH¿IWKZHHNRIWKHVHDVRQ7KLVSURFHGXUHLV the paperwork. repeated weekly for the entire year. “Third, the major legal betting “When I inquired what Tim Donaghy had to establishments in Las Vegas who establish do with any of this, he shared a story which I the point spreads for football games were
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enlisted to voluntarily provide information being bet on a game that is abnormal for that to the FBI whenever anomalies surfaced in type of game, they immediately notify the FBI betting handles. For instance, Las Vegas and inform them that there is ‘way too much Sports Books know that for a Texas/OU action being placed on X game. This is not football game, there is going to be a lot more the norm for this type of game.’ money bet on that game than the amounts “After getting this type of call, the FBI that will be bet that same weekend for New will take note of the teams involved, all of Mexico State at UTEP. Las Vegas Sports the individual players who played in the game Books can easily detect abnormal increased DQGDOORIWKHRI¿FLDOVDVVLJQHGWRZRUNWKDW betting on certain games based upon the type game which is now in question. Maybe it was of game and whether it is of national interest just an anomaly or maybe something is afoul, or only local interest. As a result, if the Las but this information will at least be stored for Vegas Sports Book senses too much money future reference. ёѣюћѐђȱѕђђѡǰȱȱŗśřŘ BY CHARLES GAUNCE Legal Reference Librarian The University of Texas at El Paso
as South Carolina when it was successfully R. v. William Rogers invoked in State v. Bosse, 42 S.C.L. (3 Rich.) Trinity Term, 1532 276 (1855). The second piece of the puzzle is what it One William Rogers, priest, who means to “ma[ke] his purgation.” Essentially, had committed various felonies and this means that the offender swears in court had his clergy and [was] committed to that he did not do the act. In many respects, the ordinary, and made his purgation, this swearing was a ritual that, if properly robbed a man in the highway, and SHUIRUPHGZDVVXI¿FLHQWWRHVWDEOLVKWKDWWKH was taken and indicted for it; but it act charged was not proper and the defendant was not expressed that he had done would go free. While it seems simple, it was the felony in the highway. And for somewhat more complicated by the fact that this reason if he had been a layman the defendant had to swear on his oath and he should have had his clergy by the using a specific set of words denying the statute of 23 Hen. 8. But, though he charge, and had to have an additional number was a priest and had his clergy, yet he of other persons (usually 11) also swear, on should make his purgation, because he their oaths andXVLQJVSHFL¿FZRUGVWKDWWKH was not indicted that he had done the defendant had not done the act charged. If any felony according to the statute. So the mistake was made in the recitation of the oaths said Rogers, being incorrigible, made and statements (loosely referred to today as his purgation. Whereas if he had been evidence) then the defendant was adjudged indicted that he had robbed in the to be guilty. highway he should have had his clergy Thus, William Rogers, who had several but [would have] remained without times previously invoked his status as a cleric making purgation.” to avoid trial in the King’s court, and had successfully avoided punishment by having One of the fun aspects of reading the old friends give a full and proper accounting on cases is that each one presents a puzzle of law their oaths, committed highway robbery. Since and procedure that must be solved to fully the indictment failed to allege the act occurred XQGHUVWDQGZKDWLVJRLQJRQ7KH¿UVWSLHFH on the highway, the statute granting him the necessary to understanding what is up with privilege of not being tried in the King’s court William Rogers is what it means to “ha[ve] his did not apply and he was required to swear he clergy.” Back in the days of yore, a cleric had did not do the act, and have his friends also a privilege to not be tried in the King’s court. swear to this in the King’s court. Apparently While England abolished the privilege in 1827, the priest was successful in swearing the oath it survived longer in the American states, such in an otherwise unfriendly forum.
S 2011 7 Why Our Legal System Is Respected Most Of 'e Time BY CLINTON F. CROSS
A. Introduction The judge’s perceived authority is closely associated with the height of his or her bench. The higher the bench the more authority the judge appears Our legal system, as it has evolved in the United States, is imperfect. Every school child to have. Elected judges have more power than associate judges, and at recites the pledge of allegiance day after day, least here in El Paso they sit on benches that are higher than the benches which concludes with a promise of “justice for of associate judges. Also as a general rule (perhaps depending on when DOO´RQO\WR¿QGRXWWKDWMXVWLFHLVVRPHWLPHV out of reach. For instance, the well intentioned the courthouse was built), benches in federal courthouses are higher than “discovery reforms” adopted by many states after benches in state courthouses. World War II had the unintended consequence of increasing costs and attorney’s fees. The cost of litigation has denied many people access to justice, angered the consuming public, and has PRVWUHFHQWO\UHVXOWHGLQVLJQL¿FDQWVWDWXWRU\ changes that affect the ability to litigate. There is an ongoing political debate about how far appellate courts should go in reconciling demands for change with established rules. When appellate courts appear to “make law” rather than “interpret” the law for any reason, such as “civil rights” or “law and order,” their opinions are sometimes met with disrespect. “John Marshall has pronounced its decision;” President Andrew Jackson once said, “let him enforce it.” After Brown v. Board, “Impeach Earl Warren” was a popular political slogan in many parts of the country. Roe v. Wade remains controversial. Another problem is the presence of drug laws that are ignored by many, including “respectable” citizens. Widespread disobedience of the law undermines respect for the rule of law. Finally, there are now television commentators like Nancy Grace and her clones who, for the purpose of entertaining millions of viewers, Courtrooms resemble churches preside in the name of “court tv” over popular legal “reality shows.” These commentators system has great strengths, and its preservation Of course, lawyers do brag about winning assume both the role of judge and jury and “try” is essential to maintenance of the rule of law cases they shouldn’t have won (otherwise, why defendants in the court of public opinion without and civilization as we know it in the United brag?). Because the system usually works, any respect for the presumption of innocence, States. lawyers who defeat the system by getting unjust rules of evidence, or the burden of proof required The well-known teacher Irving Younger results become famous and make lots of money. in criminal cases. When the “bad person” seems claimed the system is in fact usually successful %\GH¿QLWLRQWKHLUZRUNLVWKHH[FHSWLRQ to win, respect for due process of law and our at fairly and accurately resolving disputed time honored rules designed to protect the issues because it permits cross-examination. 7KH,QÀXHQFHRI5HOLJLRQ innocent are put in jeopardy. “Cross-examination is the signal feature of the common law trial,” he said. “It distinguishes a The notion that the “good guy” should B. Why the system is Respected trial in our system from a trial under any other prevail for doing the right thing and the “bad system. It is the greatest engine ever invented guy” should lose for doing the wrong thing In spite of these and other problems, the for the discovery of truth.” UHÀHFWVRXUUHOLJLRXVSDVW7KHOHJDOV\VWHP
S 2011 8 tries to get people to do the right thing, and respect for authority. Within structured limits, bracelets, or send them to jail (“go to your discourages people from doing the wrong lawyers are permitted to act like teenagers, to room”), or in some other fashion restrict their thing. Although we humans have often failed test limits, to question authority. freedom of movement. in our effort to “do good,” we cannot afford to We remember our childhood and how our The judge’s perceived authority is closely quit trying. Most people continue to respect parents controlled our desire to explore. Most associated with the height of his or her bench. the effort. of us could not wander around the house at will, The higher the bench the more authority the For hundreds of years formal European or go outside, without regard to our parent’s judge appears to have. Elected judges have law was a subset of religion. The residue of wishes. When we explored life inappropriately more power than associate judges, and at least WKLVKLVWRU\LVUHÀHFWHGLQPDQ\ZD\V LQRXU our parents restricted our use of the phone, the here in El Paso they sit on benches that are substantive law, in our legal procedure, in our television, the car, or even our movements, higher than the benches of associate judges. courthouse architecture. Latin was the language giving us “time out” or sending us to our Also as a general rule (perhaps depending on of the Roman Catholic Church, the universal room. when the courthouse was built), benches in moral and religious language of Christian The more we grew up, the less our parents federal courthouses are higher than benches in (XURSHDQFLYLOL]DWLRQ5HÀHFWLQJWKLVUHDOLW\ seemed to know. Our parents made mistakes. state courthouses. English courts recorded their legal opinions in We began to wonder whether or not they always If one wants to appeal, one must appeal to Latin. The continued use of Latin phrases in told the truth. We realized that Santa Claus was a higher court. This court usually has a higher our legal vocabulary (such as, mens rea, bone not really the jolly old man who we had been bench than the lower court, even when the ¿GHFRUSXVGHOHFWLGHQRYRDEDEQLWLRUHV led to believe he was. appeal is de novo. In traditional appeals, where ipsa loquitur, per curiam, pro se, mandamus, When we became teenagers we felt we the court is reviewing possible trial court error, in rem, pro tanto, inter vivos, ipso facto, in needed to cut the “psychological umbilical the appellate court is usually located on a higher locus parentis, in camera, ex parte, primae cord” and become more independent. At ÀRRURIWKHFRXUWKRXVHWKDQWKHORZHUFRXUW facie, quid pro quo, habeus corpus, forum some point we may have begun to question our “A man’s education,” Justice Oliver non conveniens, res gestae, mandamus, res parent’s values. It is probably true that, as was Wendell Holmes once said, “begins with his judicata, and stare decisis) is a testimonial to written in a recent ballad, “every generation grandfather’s.” Both trial court judges and this history. questions the one before.” appellate justices research, read, and study Reflecting the past, courthouses today We may be tall today, but we were short when the opinions of their intellectual and spiritual continue to resemble churches, at least we were children. We retain our childhood ancestors who, when in the past faced with courtrooms do. The judge’s bench is similar memories, and our memories are refreshed similar problems, wrote opinions about how to to the preacher’s pulpit. The benches behind by courtroom protocol. The courtroom, like resolve those problems. Indeed, our judges, our the “bar” resemble pews in a church. The well a home, is a special place. It has boundaries. judicial parents, are required to research and of the courtroom is a special if not a sacred Only parties, witnesses, jurors, court staff and think about how their judicial parents solved space, so perhaps for that reason not available lawyers who have passed the bar exam are similar problems, and they are required to for sanctuary. The judge wears a priestly robe, permitted to pass into the well of the courtroom honor their ancestors’ opinions unless there are a symbol of moral authority. and participate in courtroom business. All other compelling reasons to disrespect them. When deciding cases the judge consults intruders are in effect trespassers. texts, similar to religious texts, to determine Within the courtroom, the judge sits on a C. The Past, the Present and whether or not one party or another has done bench, like a parent higher than everyone else WKH)XWXUH0HHWLQWKH&RXUWURRP the right thing or perhaps whether or not a in the room. The judge controls all the space in defendant should go to prison (i.e., Hell). The his or her courtroom, as our parents controlled Courtroom culture reflects of the larger American court structure is similar to that of the our space in our childhood homes. “May I be community that it represents, in effect a Catholic Church, with Supreme Court justices, excused, your honor,” means “Can I go outside microcosm of the family dynamic that it who are, like the Pope, at the top of a hierarchy and play now, judge?” recreates. If the height of the judge’s bench RISDUHQWDO¿JXUHVDQGZKRDUHQHYHUZURQJ The judges treat parties to litigation like reflects society’s attitude about authority, unless they decide they once were, probably a children, not allowing them to speak unless then the height of the bench in courthouses long time ago. spoken to, and then not allowing them to should change in time as cultural values Courtrooms are like churches; appellate answer any question but the question asked. change. Assuming this hypothesis is correct, courts are like monasteries. Justices of our Attorneys are required to stand when they judge’s benches being constructed in today’s appellate courts retreat into cloistered libraries, question the judge’s rulings. Judges claim courthouses should be more often lower today study ancient as well as modern texts, and lawyers rise out of respect for the court. But than they were a few decades ago. After all, in write opinions designed to govern a world as when they “stand up” to the court they are today’s family culture co-operative parenthood it should be. almost as tall as the judge, and they sometimes has replaced one man rule. In most homes, not act like teen-agers. just homes parented by single parent mothers, 2. The Parent-Child Relationship In the criminal system, judges try to control “time out, let’s talk” has replaced “spare the misbehavior in the ways that are similar to rod, spoil the child.” Courtroom etiquette recreates the parent- the methods they use to modify their own Although committed to traditional values, child relationship, with the judge acting as a children’s behavior. When adults misbehave our legal system permits critics to constructively parent and the parties experientially reliving or explore life inappropriately the judge may “question authority.” We honor, for example, their childhood. Courtroom etiquette promotes “ground” them by making them wear ankle the civil rights movement that in many
S 2011 9 ways dramatically changed our American do with the merits of the case before the court important moral, ethical or procedural rules, culture. In 2004 the American Bar Association are also discouraged. our secular priests (judges) can counsel them celebrated Law Day by focusing on the U.S. In 1992 Richard Neely, former Chief in their vestries (chambers). In serious cases Supreme Court decision in Brown v. Board of Justice of the West Virginia Supreme Court, of misconduct, the judges, or other members Education. In Texas, courthouses are named commented, “The church cannot compel its of our secular priesthood, may resort to more after cultural heroes like Heman Sweatt and adherents to obey; it can only elicit obedience. effective remedies designed to address the Albert Armendariz, Sr. Similarly, the judiciary cannot really compel problem. obedience to its orders, as the current drug and How can we best confront some of the other D. Conclusion crime epidemic amply demonstrates, and must, problems facing the justice system? How do like the church, rest in the last analysis on the we provide better justice for more people at We should show respect for the judicial awe and esteem in which it is held. But it must an affordable price? How should we most process itself and for the judicial institutions DOZD\VEHUHPHPEHUHGWKDWMXGJHVDUH¿UVW responsibly respond to widespread usage of that implement the “rule of law.” A lawyer last, and always lawyers, so the prestige of the drugs in our society, in blatant disregard of can question a judge’s rulings, but he or she judiciary can never be greater than the prestige existing law? How should we respond to should not in a proceeding before the court of the legal profession as a whole. If judges are commentators like Nancy Grace, who try question the judge’s competence or integrity. priests, lawyers are the deacons, acolytes, and GHIHQGDQWVLQWKHPHGLDZLWKRXWWKHEHQH¿WRI The biblical commandment that one should vestry of the temple of the law.” the protections afforded by the law? “honor one’s mother and father” applies to all If judges are the priests of our secular For lawyers who care about the profession, judges in our home-land. Perhaps that is why priesthood they should appear to respect the these problems and others pose serious lawyers constantly repeat the phrase, your deacons and acolytes (lawyers) who appear in challenges in the years ahead. Hopefully, honor: “Your Honor, may I approach…Your their churches (courtrooms). When the lesser working either individually or in bar associations Honor, may I be excused.” Personal attacks on members of the secular priesthood (again, or community groups, we can make some opposing counsel that have little or nothing to lawyers) misbehave, or when they violate progress.
'e Jencks Case BY CLINTON F. CROSS First published in the October, 2004 Bar Bulletin Republished with additions and edits
encks, an El Paso McCarthy era case, is an During the Bayard strike, Paul Jarrico, a WUDYHOHGWR(O3DVRDQGVLJQHGVXFKDQDI¿GDYLW LPSRUWDQWSDUWRIRXUOHJDOKLVWRU\%ULHÀ\ politically unemployable screenwriter, met 6KRUWO\EHIRUH¿OPLQJRISalt of the Earth was the facts that give rise to the litigation were Clinton Jencks, one of the union leaders. Jarrico completed, the FBI arrested Jencks for false Jas follows: decided to make a movie about the strike. swearing. In 1951 the Bayard, New Mexico local of the Herb Biberman, one of the “Hollywood Ten,” The government prosecuted Jencks in Judge International Union of Mine, Mill and Smelter agreed to produce the movie. The movie was R.E. Thomason’s court. Holvey Williams (who Workers (“Mine-Mill”) struck a local mining ¿OPHGLQ6LOYHU&LW\1HZ0H[LFR'XULQJWKH later served as a justice on the El Paso Court of company, demanding better working conditions. ¿OPLQJWKHSUHVVEHJDQWRSXEOLFL]HWKHIDFWWKDW Civil Appeals) prosecuted the case on behalf of The strike was eventually successful, but only “communists” were making a movie near Los the government. Williams relied on the testimony because of the participation of the striker’s $ODPRVDERXWWKH³0LQH0LOO´VWULNH7KH¿OP of informants, and particularly the testimony of wives. was called Salt of the Earth. one Harvey Matusow. Jenck’s attorneys requested Prior to the strike, the House Un-American To prevent completion of the movie (which production of Matusow’s witness statements prior Activities Committee began investigating was considered “subversive”), the government to cross-examining them, but the government Communists in Hollywood. Some witnesses, attempted to deport Rosaria Revueltas. Revueltas refuse to comply. The court refused to require later known as “The Hollywood Ten,” refused to was a famous Mexican movie actress who was the U.S. government to produce the statements. answer the question, “Are you now, or have you SOD\LQJDNH\UROHLQWKH¿OP,QWKHLPPLJUDWLRQ The defendant objected to the court’s ruling, ever been, a member of the Communist Party?” proceedings, Jo Calamia represented Rosaria claiming it impaired the defendant’s right to These witnesses were convicted of contempt of Revueltas. She was ultimately deported, but the effectively cross-examine the witness. Jencks congress, and sent to prison. After they were ¿OPZDVFRPSOHWHG was convicted. FRQYLFWHGWKH\FRXOGQRW¿QGZRUN WKH\ZHUH The Taft-Hartley Act, enacted before the strike Matusow then recanted. Judge Thomason “politically unemployable.” In the search for began, required labor leaders to sign a “non- responded by holding Matusow in contempt of Communists, many other producers, actors and &RPPXQLVW´DI¿GDYLWRUORVHWKHEDUJDLQLQJ court (for lying in court when he recanted) and writers also lost their jobs. EHQH¿WVSURYLGHGE\WKHVWDWXWH&OLQWRQ-HQFNV sentenced him to three years in jail.
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Joe Calamia represented Matusow in the Jenck’s attorney in the defense of this case, as investigatory state. Jencks v. United States, 353 contempt proceeding. Matusow hardly served he also helped any criminal defense lawyer at U.S. 657 (1957). any time because Calamia was able to obtain his any time who would listen to him who could After the Supreme Court opinion was issued, release on bond, pending an appeal. Calamia was profit from his help, and not because, as he Congress passed the Jencks Act, 18 U.S.C., also victorious in having Matusow’s conviction would repeatedly state, he sympathized with section 3500. The Jencks Act is mirrored in Rule overturned. See, Matusow v. United States, 229 Communists. 615, Texas Rules of Evidence. It is now the law in F.2d 355 (5th Cir. 1956). The Supreme Court of the United States every state and federal jurisdiction of the United Although Joe Calamia was not lead counsel in ultimately held that Jencks had a constitutional States of America, as well as most administrative the Jenck’s case itself, Jenck’s attorney worked right to to obtain, for impeachment purposes, proceedings. RXWRI-RH&DODPLD¶VRI¿FHZKHQHYHUKHZDVLQ statements which had been made to government Many years later, in 1973, Joe Calamia served El Paso. It is not disputed that Calamia helped agents by government witnesses during the as President of the El Paso Bar Association.
T L W O T P BY JUSTICE ANN MCCLURE
n July 29, 2011, the court issued its opinion in a cold case which thawed Oyears after a murder. See Tilford v. State, No. 08-09-00154-CR, 2011 WL 3273543 (Tex. App.–El Paso 2011, n.p.h.). On May 26, 1989, the nude body of Rosalina Reyes was found in an elevator at the Brookhollow Apartments. She had been stabbed in the torso and vagina and had been strangled with a ligature. Appellant lived in the same building where Reyes’ body was found. The El Paso Police Department was unsuccessful in solving the murder but they received new evidence in 1994 when a private investigator forwarded a copy of a letter allegedly written E\5H\HV¶NLOOHU7KHDXWKRULGHQWL¿HGKLPVHOI as Keith Larone Jones and the “Pheonix” [sic]. In early March 1995, Detective Joe Zimmerly traveled to Fort Leavenworth where Appellant was serving a nine year sentence for stabbing a woman. During the interview, Appellant killing Reyes and said someone had sent him her sister, Lydia Rodriguez, in an apartment denied committing the crime. When Zimmerly the “Pheonix” letters while he was at Fort on Timberwolf near Magruder Street. On the mentioned the “Pheonix” letters, Appellant Leavenworth. He ultimately told police that his evening of May 25, the two women walked to became extremely upset and terminated the girlfriend, Kandis Shirley, had killed the victim a nightclub where they drank beer and danced. interview. EPPD submitted the letters to the by stabbing her with a knife and choking her They began walking home at approximately FBI’s Behavioral Analysis Unit for handwriting with the cord from her U.S. Army “hoodie”. A midnight. Reyes began lagging behind since analysis along with twenty-three known jury found Appellant guilty of capital murder. she was not used to wearing heels. Rodriguez examples of Appellant’s handwriting. With Among other issues, Appellant challenged walked ahead while telling Reyes to hurry its highest degree of probability, the BAU ERWKWKHVXI¿FLHQF\RIWKHHYLGHQFHWRHVWDEOLVK up. Rodriguez cut through the Brookhollow concluded after an intensive analysis that his identity as the perpetrator of the offense. Apartments because they were well lit but she Appellant was the author of the two “Pheonix” The State may prove the defendant’s identity became disoriented and lost sight of Reyes. letters. Neither the “Pheonix” letters nor the FBI and criminal culpability by either direct or Rodriguez eventually arrived at their apartment handwriting analysis was admitted in evidence circumstantial evidence, coupled with all at around 1:30 a.m. where she waited for Reyes during Appellant’s trial. reasonable inferences from that evidence. The IRUDERXWIRUW\¿YHPLQXWHVEHIRUHJRLQJWREHG On December 4, 2005, a warrant was issued State conceded that its case against Appellant At 5 a.m., a man who lived in the Brookhollow for Appellant’s arrest and Detectives David was entirely circumstantial. Apartments found Reyes’ nude body in an Samaniego and Gonzalo Chavarria of the El HOHYDWRURQWKHWKLUGÀRRURIWKHDSDUWPHQWV Paso Police Department flew to Kentucky. The Evidence The medical examiner determined that Reyes In a written statement, Appellant denied In May 1989, Rosalina Reyes lived with had been stabbed multiple times in the torso
S 2011 11 and vagina while alive but her death was caused barracks. When they returned, Kandis saw the Later that same morning, Appellant asked by ligature strangulation. The knife wound to same woman and threatened to run over her. to speak to Detective Samaniego again. He the left upper chest penetrated the left lung Appellant believed Kandis had driven home continued to state that he did not kill the victim, DQGWKHZRXQGLQKHUOHIWÀDQNODFHUDWHGWKH in his truck, but when he heard “hooping and EXWKHDGPLWWHGIRUWKH¿UVWWLPHWKDWZKHQKH kidney and renal artery. The assailant had also hollering” and car horns outside, he got up to had heard all of the noise downstairs and went stabbed Reyes in the vagina six times. The check on it because he realized that he had not outside of his apartment, he saw the victim ligature wound was consistent with the cord heard his truck leave the parking lot. He dressed RQWKHVHFRQGÀRRURIWKHDSDUWPHQWEXLOGLQJ from a hoodie. and staggered down the stairs. The driver-side She did not answer his questions. Appellant At the time of the murder, Appellant was door of his truck was open. He heard a noise later became concerned about the woman and stationed at Fort Bliss. He lived on the second at the elevator and heard Kandis angrily call went to check on her. He found her dead in ÀRRURIWKHEXLOGLQJZKHUHWKHERG\ZDVIRXQG someone a bitch from inside the elevator. The the elevator. He re-positioned her body so she The police found a blood smear on the threshold elevator door opened and Kandis exited and ran would be more comfortable. of the elevator floor. They also found two toward his truck. She was carrying the Uncle The State presented evidence to refute EORRGVPHDUVRQWKHVHFRQGÀRRURIWKHVDPH Henry knife Appellant kept in his truck. The $SSHOODQW¶VVWDWHPHQWV+DUROG6KLUOH\WHVWL¿HG building. Samples from all three blood smears knife had a four-inch blade. He recalled that that his daughter, Kandis lived with him in May were collected and submitted to the FBI lab for Kandis was wearing a U.S. Army sweatshirt 1989. She had been engaged to Appellant for forensic testing. The blood from the elevator that evening. about four months. Shirley routinely required WKUHVKROGDQGIURPWKHFRQFUHWHÀRRULQJRI Appellant then saw a naked woman lying Kandis to wake him when she arrived home WKHVHFRQGÀRRUPDWFKHGWKHYLFWLP¶V'1$ RQKHUEDFNRQWKHHOHYDWRUÀRRU+HGHVFULEHG after being out in the evening to let him know Appellant’s DNA was not found on the victim her as Hispanic, approximately 5’ 5” tall with she had returned and was safe. He recalled that or at the scene. dark wavy hair. He did not notice any injuries Kandis did not stay out after midnight during Following Appellant’s 2005 arrest in and he did not see any blood. As he looked at that time period. Kentucky, the police interviewed him. Appellant the body, Kandis hit him on the head and he fell Kandis testified that even though she believed the police no longer suspected him in on top of the woman. He rolled off of her, and was pregnant and engaged to Appellant, she the 1989 murder. But Detective Chavarria determined that the woman was not responsive lived with her father in May 1989. After bluffed and said his DNA had been found at and did not have a pulse. Panicked, he ran up the discovering she was pregnant in April, Kandis the crime scene. He did not provide any details stairs toward the apartment. Kandis followed and Appellant began looking at apartments. of the offense nor did he specify whether the him with the knife still in her hand and told him After renting an apartment at Brookhollow, source of the DNA was blood, hair, saliva, to keep his mouth shut or she would harm their she began setting up the apartment and moving or semen. In his written statement, Appellant unborn child. Appellant did not tell the police things into it, but she did not spend the night at explained that his girlfriend Kandis had a Kandis had committed the murder because he the apartment until after they were married. She habit of pulling his body hair and throwing wanted to protect his children. Appellant denied recalled seeing Appellant at the apartment on it everywhere around the apartment building, helping Kandis commit the offense. May 25, 1989, but she left in Appellant’s truck including the elevator. He also chewed tobacco Appellant also claimed Kandis related details at around 6 p.m. after they had an argument and regularly spit everywhere, including the to him about the murder. She had seen the and she returned to her father’s house where apartment elevator. Appellant wrote on the back woman outside of the apartment complex and she was living. She returned to the apartment of his typewritten statement that his hair brush yelled at her. Kandis led her into the elevator complex the following morning because they and “spit bottle” were missing from his truck and attacked the victim from behind. Kandis had errands to run. She noticed yellow police on the day of the murder in El Paso and Kandis stabbed her in the side while holding one tape around the building and saw police cars had used the truck. hand over the victim’s mouth. She knew that and emergency vehicles. She parked the truck After returning to El Paso, the detectives stabbing a person in the kidney was one way and took the stairs to the apartment. Kandis spoke with Appellant again and he gave a to kill a person. Kandis then stabbed the victim could not open the door with her key because OHQJWK\YLGHRUHFRUGHGVWDWHPHQW)RUWKH¿UVW once in the chest with the intention of hitting Appellant had engaged the chain lock from time, he admitted knowledge of the murder but the heart. The stab wound to the chest was the inside. Appellant opened the door and he accused Kandis of the crime. He and Kandis horizontal between the ribs and Kandis moved Kandis noticed that it was extremely dark in had been living at Brookhollow Apartments for the knife back and forth in an effort to cut the the apartment because the curtains were drawn about a week before the murder. Consistent heart. Kandis also claimed to have stabbed the and all of the lights were turned off. Appellant with his written statement, Appellant related victim in the eyes. Kandis next removed the was wearing only his military shorts. Kandis that Kandis had pulled out head, arm, chest, cord from her hoodie and wrapped it around asked Appellant what was going on outside but moustache, and pubic hairs from his body and the woman’s neck. Kandis even stomped on he said he did not know what she was talking WKURZQWKHPRQWKHÀRRURIWKHHOHYDWRU2Q the woman’s neck to make sure she was not about. She noticed that he was jittery and not WKHLU¿UVWGD\DWWKHDSDUWPHQW.DQGLVWROG breathing. Kandis did not put a knife in the acting normal. Appellant that “some bitch” had made her angry victim’s vagina but instead put her hand inside +DUU\6KRUWWHVWL¿HGWKDWKHPHW$SSHOODQW and that she would take care of it. of the victim and “ripped” the vagina to make ZKHQWKH\ERWKOLYHGLQWKHEDUUDFNV7KH¿UVW According to Appellant, one of his army it look like she had been raped. Appellant told time Short ever went to Appellant’s apartment buddies, Harry Short, visited the couple the the police that the woman he saw in the elevator was after the murder. Short recalled that there night before the murder. Around midnight, was the same woman Kandis wanted to run over was police tape across the elevator and he asked Kandis and Appellant drove Short back to the with the truck. The interview concluded. what happened.
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four-inches. argument with Appellant and she did not return Circumstantial Links Third, Appellant’s nervous demeanor and until the following morning. A number of circumstances linked Appellant suspicious behavior the morning after the Finally, Appellant had knowledge of details WRWKHPXUGHUDQGVXSSRUWHGWKHMXU\¶V¿QGLQJ murder could have been construed by the jury that only the assailant would know. He knew of guilt. First, Appellant had the opportunity to as a consciousness of guilt. When Kandis that the victim had been stabbed in the chest FRPPLWWKHFULPH+HOLYHGRQWKHVHFRQGÀRRU arrived at the apartment the morning after the and kidney before being strangled. The order of the apartment building where the body was murder, she noticed a considerable commotion LQZKLFKWKHLQMXULHVZHUHLQÀLFWHGZRXOGQRW found and her blood was found on the second with the police and emergency vehicles present have been apparent to an onlooker. While the ÀRRUQHDUWKHHOHYDWRU$SSHOODQWZDVDWWKH outside of the apartment. When she got up stab wound to the chest was visible, the stab apartment when Kandis left with his truck at to the apartment, she found that it was quite ZRXQGLQWKHOHIWÀDQNZDVQRWYLVLEOHDQGDQ around 6:30 that evening. He claimed he saw dark because all of the curtains were drawn onlooker certainly could not know that the knife WKHYLFWLPDOLYHRQWKHVHFRQGÀRRURIWKH and the lights were off. Appellant claimed to lacerated the kidney. Appellant also knew that apartment building sometime after midnight. not have any awareness of the “commotion” WKHDVVDLODQWKDGLQÀLFWHGVWDEZRXQGVWRWKH Second, Appellant had ready access to and downstairs. victim’s vagina. Likewise, Appellant’s assertion knowledge of the type of weapon used to stab Fourth, Appellant’s story changed over that the victim had been strangled with the cord Reyes and the weapon used to strangle her. He time and was refuted or contradicted by other from a hoodie was consistent with the medical admitted to the police that he had collected evidence. For years, Appellant denied any H[DPLQHU¶V¿QGLQJV)LQDOO\$SSHOODQWNQHZ knives since he was a child and at the time of knowledge of the murder or the victim, but that the victim was intoxicated, spoke English, the murder, he carried a knife in his truck for when the police told him in 2005 that his DNA and was barefoot. There is no evidence any of protection. He was in possession of several had been found at the scene, Appellant began WKHSROLFHRI¿FHUVHYHUUHYHDOHGDQ\RIWKHVH knives at the time of his arrest. He also told changing his story. His version of events was details to Appellant during their interviews. the police that Kandis retrieved his Uncle refuted by Harry Short and Kandis. While Finding that the combined force of all of the Henry knife from his truck and stabbed the Appellant claimed that he was with Short and LQFULPLQDWLQJFLUFXPVWDQFHVZDVVXI¿FLHQWWR victim with it. That knife has a four-inch blade Kandis until midnight on the night of the murder, allow a jury to conclude beyond a reasonable and is consistent with the medical examiner’s 6KRUWWHVWL¿HGKHKDGQHYHUEHHQWRWKHDSDUWPHQW doubt that Appellant committed capital murder WHVWLPRQ\WKDWWKHVWDEZRXQGVZHUHLQÀLFWHG XQWLODIWHUWKHPXUGHU.DQGLVWHVWL¿HGVKHKDG DVDOOHJHGLQWKHLQGLFWPHQWWKHFRXUWDI¿UPHG with a knife having a blade length of three-to- gone home around 6:30 or 7 that evening after an the conviction.
This month the El Paso Bar Journal literary SDJHSUHVHQWVDSRHPE\0DULO\Q%+HUHUUD 3DUDOHJDO2I¿FH0DQDJHUZLWK/LSVRQ 'DOODV3&
YOU WERE THERE )LUVWSXEOLVKHGLQ LQ³$9LHZIURP$IDU´E\7KH1DWLRQDO/LEUDU\RI3RHWU\
When it seemed my life was breaking up When the anger threatened to overwhelm me As waves upon a rocky shore, you were there. And I raged within, you were there. When life was a dark tunnel of abuse, When I was battling my own personal demons With no light at the end, you were there. And trying to keep them at bay, you were there. When the weight of the black shroud of despair When the time came to put the pieces Was too much to bear, you were there. Of the puzzle of me back together, you were there. When all the fun was gone, when my sense Whenever I have really needed you, a friend, Of humor deserted me, you were there. You were there. When my soul felt as empty I have been, am now, As two holes in a mask, you were there. And always will be, your friend. I am here.
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SENIOR LAWYER INTERVIEW ќћȱѡѢёёюџё BY CLINTON F. CROSS
CROSS: Tell me about your family and the trial court, holding that we did not have to your childhood. produce the returns because Judge Mulcahy STUDDARD: I was born in Brownwood, did not attempt in any way to separate the Texas, and grew up there. I started playing relevant and material parts of the returns from tennis in high school and still enjoy the sport the irrelevant and immaterial parts. Maresca v. today. Marks 362 S.W. 2d 299, 301 (Tex., 1962). My mother and father divorced when my I represented a woman by the name of brother and I were very young. Gretchen Smith in an interesting divorce proceeding. Her husband was in the army at CROSS: During this time, did your mother the time. She wanted her husband to share some work outside the home? RIKLVUHWLUHPHQWEHQH¿WVZLWKKHU$W¿UVWKH STUDDARD: My mother and also my agreed, and Judge Cunningham adopted the grandmother ran a boarding house during settlement agreement entered into between the depression and during World War II. The the parties. Shortly thereafter, however, Mr. boarding house was located across the street Smith wrote the Retired Pay Division of the from Howard Payne College. After the war, U.S. Army and directed it to mail his retirement my mother and her second husband opened FKHFNWRKLVSRVWRI¿FHER[LQ(O3DVR+H a cafeteria, which she called Studdard’s declined to send his former wife any of the cafeteria. money. We were unable to collect the retirement 'RQ6WXGGDUG EHQH¿WVIURPWKHIRUPHUKXVEDQGEHFDXVHKH CROSS: Where did you go to school? moved and then disappeared. STUDDARD: My brother and I graduated Hart, Sam Blackham, Bill Deffebach and Jim We then sued the United States government from Brownwood High School. Our mother Speer. Sadly, Cotton, Nichols, Garner and in the U.S. District Court for the Western and step-father encouraged us to continue our Blackham have now all passed away. District of Texas, trying to collect from the education by going to college. ,ZRUNHGIRUWKH(O3DVR¿UPRI3RWDVK JRYHUQPHQWWKHEHQH¿WVZHFRXOGQRWFROOHFW I went to the University of Texas at Austin. Cameron, Potash and Bernat for approximately from the former husband. The U.S. attorney I had to work to make ends meet, delivering WHQ\HDUV,Q ,VWDUWHGP\RZQODZ¿UP pleaded governmental immunity. Judge Guinn, the school newspaper (7KH'DLO\7H[DQ), with John Melby. Our partners over the years who presided over this case, found in Gretchen working in a cafeteria, and then working in an included Jonathan Schwartz, Jr., Brainerd Smith’s favor, and ordered the government to DFFRXQWLQJRI¿FH,JUDGXDWHGLQ ZLWKD Parrish, Harold Crowson, Chris Johnston, pay her. The U.S. Attorney then appealed to Bachelor’s degree in Business. Thor Gade, Steve Nickey, Ernest Cisneros, the Fifth Circuit. $IWHU,JUDGXDWHGZLWKWKH.RUHDQFRQÀLFW Jeff Weikert and others. John Melby died at Prior to argument, one of the judges noted still going on, I was drafted into the army. I an early age in 1985. His daughter, Elizabeth that that the entire United States’ government served in the Third Infantry Regiment at Fort Ruhmann, is an attorney in the El Paso City appeared to be against Gretchen. As I began my Myer, Arlington, Virginia until 1955, when I $WWRUQH\¶VRI¿FH,Q,FORVHGWKHRI¿FH oral argument, I remember feeling that I had a was discharged. With the help of the GI Bill, and retired. mighty hill to climb. As it turned out, I did. The I went to law school and graduated in 1958. I Fifth Circuit held that the District Court had then moved to El Paso. CROSS: Any particularly interesting cases no jurisdiction to hear the case, and that Texas My older brother Ken went to business that you recall? law was therefore of no consequence. United school and graduated from the University of STUDDARD: I recall a case that involved a States of America v. Gretchen Smith, 393 Fed. Texas School of Law in 1957. He joined an dispute between two businessmen. The plaintiff 2d 318, 321 (Fifth Circuit, 1968). Congress DFFRXQWLQJ¿UPLQ+RXVWRQ was suing my client for money. In the course of subsequently changed the law to provide for the that dispute, the plaintiff, who was represented GLYLVLRQRIPLOLWDU\UHWLUHPHQWEHQH¿WV CROSS: Tell me about your legal career E\&KDUOHV-RQHVZLWKWKH6FRWW+XOVH¿UP I represented Wholesome Dairy in another here in El Paso. demanded that my client produce his income particularly interesting case. The company STUDDARD: A number of my law school tax returns. We objected, claiming that that the wanted to make an imitation milk product, classmates came to El Paso after graduation, request was too broad. Judge Mulcahy, at that which at the time was illegal. My client sued including Judge Harry Lee Hudspeth, Fred time judge of the 41st District Court, ordered us WKH6WDWHRI7H[DV7KHFDVHZDV¿OHGLQ(O Morton, Ronald Calhoun, Don Cotton, Taylor to produce the tax returns. This case ended up in Paso, and landed in Judge Cunningham’s court, Nichols, Jim Garner, John Steinberger, Frank the Texas Supreme Court. The Court reversed the 65th District Court. The State removed the
S 2011 14 case to Austin. We had a long, spirited non- Senior Lawyer. I was also a volunteer worker CROSS: How has the practice of law jury trial before Judge Jim Meyers, with many with the United Way, Boy Scouts of America, changed since 1958? expert witnesses testifying for both parties. and the El Paso Christian Home for Girls. STUDDARD: The profession has Judge Meyers ruled in our favor, but the other I am today a Life Fellow of the Texas dramatically changed in a number of ways. We side appealed. The Court of Appeals reversed, Bar Association and the El Paso County Bar have at our disposal many technological tools holding the statute constitutional. So in the end Association. that did not exist when I began to practice law. we lost the case. 0DUWLQY:KROHVRPH'DLU\ The practice is more specialized. In the civil Inc., 437 S.W. 2d 586, 600 (Tex. Civ. App.-- CROSS: Your family? arena at least, there is more pre-trial discovery, Austin 1969, ref’d n.r.e.). I believe, however, STUDDARD: I met my wife Susan when but fewer trials. There is more mediation, that the law prohibiting the selling of imitation we were both students at the University of arbitration, all kinds of “alternative dispute milk was subsequently changed, and that with Texas at Austin. We married in 1957, and today resolution.” proper disclosures our client was thereafter PRUHWKDQ¿IW\\HDUVODWHUZHUHPDLQKDSSLO\ allowed to make and sell it. married. CROSS: What advice would you give a My wife obtained a degree in education, and young lawyer beginning his or her practice CROSS: Any community service work thereafter taught school at Crocket Elementary today? during your legal career? and Putnam Elementary. She was Student STUDDARD: The world is a complex STUDDARD: I was President of the El Activities Director at Coronado High School. place. It needs people who do not see that world Paso Bar Association in the Fall of 1977, We have three children. All three graduated in black and white and who are able to sort serving through the Spring and Summer of from the University of Texas at Austin, and all through the complexities of the law and human 1978. When I was President, we still held our three are married. I have four grandchildren. QDWXUHWKLQNFUHDWLYHO\DQG¿QGVROXWLRQVWR annual banquet which was attended by many their clients’ problems. Approach your cases lawyers from all over the State of Texas. We CROSS: Church? with a fresh, open mind, without preconceived also sponsored a well attended statewide STUDDARD: I am a member of Western biases, with a willingness to learn. And of conference for judges. Hills United Methodist Church. I served on course your highest priority must always be I was recognized in 2001-2002 by the El Paso the administrative board and on the board of your client’s best interest. Young Lawyers Association as the Outstanding trustees.
Old Lazy Lawyers Get Beat By Six-Year Olds BY STEPHANIE TOWNSEND ALLALA
n a crisp Spring Saturday morning more than 50 students gathered in the Ocommunity center of St. Clements Anglican Church. Only a handful of lawyers answered the call of duty. While the attorneys may not offer much in the way of a challenging chess game, the lesson is not lost. “I beat two lawyers. It felt great,” VDLG9LQFHQW S 2011 15 A T G: Rising Above the Federal Supremacy Clause and Such 'ings BY JUDGE OSCAR G. GABALDÓN, JR., CWLS ³,EHOLHYHWKDWWKH¿UVWWHVWRIDJUHDWPDQLV built on this foundation: the ability to appear, The kind of leadership lawyers and judges are his humility. I don’t mean by humility, doubt of speak and act, as the most common man.”A expected to engage in is nothing less than servant his power. But really great men have a curious great lawyer, therefore, prefers simplicity, as leadership. Only then is greatness attainable. An feeling that the greatness is not of them, but does the great judge. unknown author once observed that greatness through them. And they see something divine Great lawyers and great judges center their lies not in trying to be somebody but in trying in every other man and are endlessly, foolishly, actions and prudence on the needs of the people, to help somebody. Thus, servant leadership LQFUHGLEO\PHUFLIXO´ This insight by Victorian that is, on what is most important and worthy of entails humane approaches. Perhaps, Mahatma art critic and social thinker John Ruskin provides attention, action, and consideration based on the Gandhi best articulates this sentiment when he us with the sense that a truly great person is often circumstances as they may exist. For example, if says: “The greatness of humanity in not in being unaware of his or her greatness, particularly an attorney has been provided a court setting for human, but in being humane.” because it is his or her humility that often shelters a “major” legal proceeding in a state or county In the journey towards greatness, many who that person from such grandiose feelings. Such FRXUWDQGODWHUWKDWVDPHDWWRUQH\LVQRWL¿HG are truly great will be envied and ridiculed. a person recognizes the realness of his human that a federal court has set a case for a “minor” Such is the folly of many men and women condition, and that no one is superior to anyone federal legal proceeding on the same day and who believe they are great men or great women else, since all are worthy of respect and dignity time as the state or county setting, it is possible by virtue of their positions, their professions, by virtue of their human existence. that a federal court judge may be unwilling their wealth, their perceived self-importance, In the practice of law and in the everyday life to reset, continue, or otherwise accommodate and the like. They envy and covet that which of the judiciary, the matter of greatness often WKHDWWRUQH\¶VVFKHGXOLQJFRQÀLFW7KLVIHGHUDO they are not. They look down upon and despise surfaces. Hence, we hear statements such as judge may even make reference somehow to the men and women that exhibit genuine greatness. “She is a great lawyer!” or “That judge has a federal supremacy clause as a basis to justify his Along these lines, Albert Einstein remarked great temperament.” It is not uncommon to hear or her federal right or entitlement in refusing to “Great spirits have always encountered violent a client exclaim that her lawyer gave a great accommodate the state or county trial setting. opposition from mediocre minds.” Regardless, argument to the Judge, or to hear a lawyer tell The authentically great judge, that is, the judge everyone has the potential to be great; however, another lawyer that the Supreme Court rendered that is more concerned about service and the they must nurture those ingredients that make a great decision in a given case. However, when needs of others rather than on status and other for greatness: simplicity, humility, focus on the it comes to a lawyer or judge actually being mundane concerns, will “rise above” clinging needs of others, perseverance in doing what great in the purest sense of that term, what are to federal supremacy clauses, and such things, is good and right, willingness to place others we talking about? and will do the right thing --- assess the needs ¿UVWDQGDEHOLHILQWKHJUHDWYDOXHRIHYHU\ For starters, perhaps some would agree that of those coming to the courts, evaluate their human being. simplicity is a necessary quality of greatness. relative importance, and then pursue a course C. JoyBell C., a prominent poet, novelist, Ralph Waldo Emerson once observed that RIDFWLRQWKDWSODFHVWKRVHQHHGV¿UVW,QRXU and author spoke of greatness. She gave us a “Nothing is more simple than greatness; example, this may mean the federal judge will thoughtful idea of how our greatness leaves its indeed, to be simple is to be great.” The idea of agree to reset the federal proceeding in favor of mark on others. She said, “Our key to greatness simplicity as an element of greatness is rooted the state or county proceeding. That judge would lies not in our ability to project ourselves to in the fact that a great individual need not be be willing to work his or her schedule around others as if we are putting ourselves onto a ornate in his manner or speech to draw attention the needs of those coming to the court, not the projector and creating an image of ourselves on to his or her views. That individual prefers other way around. That judge would recognize a projector screen. Rather, our key to greatness clarity and brevity to better assure that his or her the immutable truth that courts are there to lies in who we are which we can give to other communications with others is not ambiguous serve, not to be served. Judges are servants of people in a way that when they walk away and pretentious. The focus is on the other, not the people, not kings and queens to be catered from us, they are able to say in their hearts that on the self. That is, the individual desires to to. They are public servants, and should always they have taken away something with them communicate plainly and simply for the sake act accordingly. Both lawyers and judges have a quite extraordinary.” Every lawyer and every of meaningful and mutual understanding with moral duty to pursue justice for all in a helpful, judge has the potential to do precisely this. In another. The poet Shams-ud-din Muhammed courteous, and service-oriented mentality. The so doing, perhaps it can then be said that their +D¿]GHVFULEHVLWWKLVZD\ ³*UHDWQHVVLVDOZD\V law profession is all about people helping people. journey towards greatness is well under way. S 2011 16 Why El Paso Is In Texas, Not New Mexico. A Divided Nation, Political Compromise, And El Paso County BY CLINTON F. CROSS Republished with permission from El Paso, Inc ur nation, divided, stands on the brink of political disaster. On one side of the Oaisle, political leaders refuse to raise taxes. On the other side of the aisle, political leaders refuse to cut spending for social programs. Strong interest groups support each political camp. There are few moderates willing to consider compromise in either camp. While there are obvious distinctions, the current political deadlock has some unpleasant similarities with the political battle that resulted in the Compromise of 1850. Today, “tea party” advocates believe that they are waging a moral crusade to end “economic slavery” by cutting taxation. Others, equally adamant, argue that WKHPRUDOFUXVDGHLVODUJHO\PRWLYDWHGE\VHO¿VK LQWHUHVWVDQGWKDWRXUQDWLRQDOGH¿FLWFULVHV should be addressed by a mixture of tax reform and government spending cuts. The crises of 1850 was caused by the admission of the Republic of Texas into the union as a state in 1845, the Treaty Unless indicated otherwise, the source for all maps in this article is William Campbell of Guadalupe-Hidalgo, and California’s Binkley, The Expansionist Movement in Texas, 1836-1850 subsequent request to be admitted into the union in 1849. With the smoldering issue of slavery power and resources of the State.” in exchange for federal assumption of Texas’s underlying much of the debate, these events When in 1849 California applied for unpaid debts, totaling $10,000,000.00. Clay’s threatened immediate civil war. Surprisingly, admission to the union as a free state, the issue proposal ignited an eight month debate in the trigger was likely to be the border dispute of how to admit not only California but also Congress. Daniel Webster, the North’s most between Texas and New Mexico. the other territories obtained from Mexico, spellbinding orator, threw his support behind The Republic of Texas was admitted into some of which were claimed by the state of Clay’s compromise. “Mr. President,” he began, the union in 1845. However, the new state’s Texas, presented itself to Congress. Texas, a “I wish to speak today not as a Massachusetts boundaries were subject to being disputed. slave state, claimed boundaries that included man, nor as a Northern man, but as an Based on the Treaty of Velasco, which is populations that did not want to be part of the American….” now stored in the El Paso Public Library, the new State and wanted to limit Texas’ boundary 2SSRVLWLRQWRFRPSURPLVHZDV¿HUFH2Q Republic claimed its Southern boundary was claims as much as possible. As a matter of fact, March 4, 1850, twenty seven days before his the Rio Grande. Mexico claimed it was the U.S. troops stationed in Santa Fe and many of death, John C. Calhoun delivered through a Nueces River. The Republic also claimed that its residents claimed that New Mexico extended proxy his last political speech, pointing out that its territory included land in what is now part eastward almost to San Antonio. division of the newly acquired territories from of New Mexico, Colorado, Oklahoma, and In January, 1850 seventy-three year old Mexico threatened the “equilibrium between Wyoming. Henry Clay came out of retirement and the two sections in the government” and that Texas attempted in 1848 to advance its claim presented a proposal to the Senate to resolve failure to address the problem would result in to parts of New Mexico by organizing Santa the Texas-New Mexico border dispute. When disunion. Fe County. New Mexico military and civilian after several months, the matter remained As Congress debated what to do about the leaders then petitioned the federal government unresolved, the Senate appointed a Committee new territories, Texas Governor Peter Bell to organize their area into a federal territory. of Thirteen to resolve all questions involving the commissioned Robert Neighbors to travel to Texas Governor George Wood asked the slavery issue. Among other things, the proposal what is now West Texas and New Mexico for the legislature to give him the power to assert the recommended that Texas relinquish its claims to purpose of organizing four Texas counties. claim of Texas to New Mexico “with the whole lands in New Mexico, Colorado and Oklahoma When Neighbors arrived in San Elizario for S 2011 17 the purpose of organizing El Paso County, he also supported compromise. was met by Charles A. Hoppin, a lawyer and In Congress, Senator Stephen Douglas led former mayor of Mobile, Alabama. Hoppin had the fight for compromise, and split Clay’s written Governor Bell in 1849 asking for a copy proposal into five separate bills. The third of the Texas statutes, and asking the Governor proposal by Senator James A. Pearce of to take steps to organize the region as a part Maryland dealt with the hotly contested issue of of the State of Texas. With Hoppin’s support, the Texas-New Mexico border. Although there 1HLJKERUVKDGOLWWOHGLI¿FXOW\LQRUJDQL]LQJ(O was not enough support to pass Clay’s original Paso as a Texas county. package, with shifting votes and alliances for But when Neighbors went to Santa Fe and each bill, in the end each bill passed. surrounding areas, he found himself and his Logically, El Paso, closely linked historically, proposals for organization of three of the four culturally and economically to the Southwest, counties as Texas counties unwelcome. should have been included in the New Mexico Neighbors issued a report regarding the territory. By the time Congress voted on the results of his efforts was issued in June, 1850. Texas-New Mexico boundaries, however, Texans were outraged. Some advocated the El Paso had already been organized as a use of military force to secure the state’s Texas county. As a result, the drafters of the claims; others urged secession. Bell called Compromise of 1850 had little choice but to a special session of the Texas legislature. include El Paso within the boundaries of the Before the Texas legislative session began, state of Texas. 1HZ0H[LFDQVUDWL¿HGDFRQVWLWXWLRQIRUD proposed state specifying boundaries that What lessons can we learn from the However, many important decisions are included land claimed by Texas. The State of Compromise of 1850? made as the result of compromise. The Texas threatened to send its militia to Santa Fe. First, politicians tend to postpone really constitutional convention of 1787 gave the In response, the federal government reinforced tough decisions until they have no alternative United States of America a constitution. The its military garrison. but to “bite the bullet.” The founding fathers, Compromise of 1850 drew the boundaries of On the 4th of July, Washington politicians for instance, compromised on almost every the State of Texas and the Territory of New remained stubbornly divided; compromise issue they faced. They also postponed ultimate Mexico, and left El Paso in the state of Texas. appeared to be dead. But then on July 9, President resolution of the most difficult issue, the )LQDOO\VRPHWLPHVWKHUHPD\EHDEHQH¿WWR Zachary Taylor died of gastroenteritis. issue of slavery, because at the time they met SRVWSRQLQJUHVROXWLRQRIGLI¿FXOWGHFLVLRQVWRD President Taylor’s successor, President ultimate resolution of that issue was impossible. later date. If the Civil War had begun in 1850, Millard Fillmore, supported compromise. The Likewise, the Compromise of 1850 postponed rather than 1861, the South may have won that speaker of the house, Howell Cobb, ancestor resolution of the issue of slavery to a later war. In the years between 1850 and 1861 the of Zach Lamar Cobb, who practiced law in El date. The recent Congressional vote regarding North’s population and industrial base grew Paso one hundred years ago, and Howell “Chip” UHGXFWLRQRIRXUGH¿FLWDOVRSRVWSRQHVVRPH dramatically, factors that played an important Cobb, who practiced law here a decade ago, critical decisions to a later date. UROHLQWKH1RUWK¶V¿QDOYLFWRU\RYHUWKH6RXWK El Paso Bar Association’s Technology Committee BY DAVID J. FERRELL [email protected] ur new El Paso Bar President, Bruce A. So, where do we start? The committee is the agenda at each committee meeting. Other Koehler, has hit the ground running and composed of Brock Benjamin, the Honorable important views on legal technology must come Ohas made it clear that he wants the El Kathleen Cardone, Mario Franke, Fernando D. from El Paso Bar members. Paso Bar Association to be on the cutting edge Gireud, Audrey Hare and me. Bruce Koehler WHAT WOULD YOU LIKE to be the topic(s) RIOHJDOWHFKQRORJ\2QHRIKLV¿UVWRI¿FLDODFWV and Nancy Gallego have attended our initial of CLE presentations? Will YOU attend and was to create a “Technology Committee”. He has PHHWLQJVDQGRXU¿UVWIRFXVLVWKH(O3DVR%DU support these anticipated CLEs? Send me an email appointed a diverse group of El Paso Attorneys and Association website. You will see a change there at the above email address. one judge to implement a vision that will enable us soon and that by itself will be a good reason to We are ready to go forward and we anticipate all to move forward in technology areas that will retain membership in the El Paso Bar. If you are that the El Paso Bar Association will continue to IDFLOLWDWHODZRI¿FHDQGOLWLJDWLRQPDQDJHPHQW not a member you will want to join. help its members in many areas, including the legal communication, research and presentation in the There are many areas of legal technology technology area where we all need a concerted multifaceted legal arena that is of great importance that will be discussed by the committee and it view of the path we need to take for the Bar, to the El Paso legal community. is anticipated that Technology CLEs will be on ourselves and our clients with 21st century tools. S 2011 18 Michele Locke Name: Describe a day when, as lawyer, judge, Michele Locke or justice, you felt particularly proud or Court: VDWLV¿HG 65th District Court Family Violence Court As a judge – I feel particularly proud when Years on the Bench: I am able to provide protection to victims of 6 months on the bench family violence, to see the relief on a victim’s Years in practice: face when they receive their protective order. 9 years in practice As a lawyer– The moment I was most proud Education: of – I was able to assist a terminally ill patient BBA/Finance UT Austin 1999, JD Texas with delaying the eviction process long Tech 2002 enough that she could die in peace and not on Your view of the role of the court the streets. I just wanted to make sure she had system in our society. some peace and dignity before she died. For Our system of government is there to provide me, that is what being a lawyer is all about everyone, no matter their individual station in What is your favorite way life access to justice. The Court’s duty is to to spend free time? provide this access. With my children. What characteristics and qualities are Tell us about your family. Family – Hus- important to be a judge? band Rick Locke, Assistant District At- Locke with- Jean-Noel (5) is on the left First and foremost – Fairness. Compassion. torney, children Mason (8), Jean-Noel (5), and Mason (8) is on the right Understanding of individual plights. Nicole(16) and Molly (14) Locke SAVE THE DATE!!!!! February 17 & 18, 2012 We are going back to Las Vegas for the 16th Annual Civil Trial Seminar Complete details in the next issue of the journal. CLASSIFIEDS 0RGHUQ:HVWVLGHRI¿FHVSDFH 3HUVRQDO,QMXU\/DZ)LUP+LULQJ TX/ Brilliant Research Attorney- top grad available for solo practitioner NM Licensed Attorney with minimum of from UT Law- seeks contract work. Contact Jim Martinez at 543-9712. 2-3 years experience. Trial work desirable 6KDUSIDVWHI¿FLHQW but not necessary. Excellent salary Very reasonable prices, able to provide ([SHULHQFHG$WWRUQH\GHVLUHVRI¿FH DQGEHQH¿WV)D[UHVXPHDQGVDODU\ quick turn-around. sharingZRUNRYHUÀRZDUUDQJHPHQW requirements to: (915) 307-2875. (VSHFLDOO\SUR¿FLHQWLQ3UREDWH3XEOLF ZLWKVPDOORUPHGLXPVL]HODZ¿UP+DYH %HQH¿WV7UXVWVDQG(VWDWH3ODQQLQJ general practice experience, civil litigation, &HQWUDO2I¿FH6SDFHIRU/HDVH Send requests to info@elpasoelderlaw. family law, bankruptcy, and federal agency 2I¿FH6SDFHDYDLODEOHUHFHSWLRQLVW com law. If interested, contact Attorney JJ runner, conference rooms, parking, etc. at 915/203-0006. No lease or deposit required Call Bob Earp or Larry Schwartz at 542-1533. S 2011 18 19 ѡђѣђћȱǯȱ юњђѠ RESOLVING DISPUTES THROUGH MEDIATION OR ARBITRATION %RDUG&HUWL¿HGLQERWK&LYLO7ULDO/DZDQG Consumer and Commercial Law by the Texas Board of Legal Specialization 521 Texas Ave.El Paso, Texas 79901 (915) 543-3234 (915) 543-3237 – Fax [email protected] BLANCO ORDOÑEZ & WALLACE, P.C. BlancoBL OrdoñezANCO O &R Wallace,DOÑEZ P.C. & isW pleasedALLA toC Eannounce, P.C. that Naomi R. Blanco*RQ]DOH]KDVMRLQHGWKH¿UPDVRIFRXQVHO0V*RQ]DOH]DWWHQGHG2XU Ordoñez & Wallace, P.C. is pleased to announce thatLady Naomi of the R. Lake Gonzalez University has and joined graduated the firm with as honors of counsel. with a Bachelor Ms.Degree Gonzalez in Business attended Administration. Our Lady Thereafter, of the Lake she Universityattended St. Mary’s and graduated with honors with a Bachelor Degree in BusiUniversityness Administration. School of Law and Thereafter, was granted a sheDoctorate attended of Jurisprudence. St. 0DU\¶VMs. Gonzalez 8QLYHUVLW\ has been 6FKRRO admitted RI /DZ to the DQG State ZDV Bars JUDQWHGof Texas and D New DoctorateMexico. In of 2011, Jurisprudence. Ms. Gonzalez became Ms. a Gonzalez Member of hasthe Texas been House of admittedRepresentatives, to the State where Bar shes ofrepresents Texas Houseand New District Mexico. 76. Ms. In Gonzalez 2011, Ms. Gonzalez became a Member of the Texas House of Representatives,practices primarily where in the areasshe represent of generals civilHouse litigation District and 76. labor and Ms.employment Gonzalez litigation practices primarily in the areas of general civil litigation and labor and employment litigation. S 2011 EL PASO BAR ASSOCIATION 35(6257(' 500 E.San Antonio L-112 67$1'$5' El Paso, Texas 79901 863267$*( (915) 532-7052 3$,' (Address Service Requested) (/3$627(;$6 3(50,712 MY DEMONS WERE REAL About the Book Over the course of his long career, Calamia successfully Joseph Albert Calamia began his challenged a host of attacks career as a criminal defense attorney in El against civil liberties, including 3DVR7H[DVLQ +HZDVDFUXVDGHU police undercover tactics and the for justice, considered by many to be akin constitutionality of searches and WR'RQ4XL[RWHWLOWLQJDWZLQGPLOOV%XW seizures in drug, immigration, and he disagreed, “The big difference is that other cases. P\GHPRQVZHUHUHDO´+LVGHPRQVZHUH Published as part of the the institutionalized practices that favored +LVSDQLF&LYLO5LJKWV6HULHVWKLV expediency over the rights of individuals; enlightening book documents the KHVSHQWKLVOLIHWLPH¿JKWLQJWRHQVXUH efforts of a man who devoted his peoples’ rights were not trampled by law life to protecting the Constitution makers and enforcers. and the Bill of Rights. Upcoming book singining events: Saturday, September 10, 2011 Saturday, September 17, 2011 October 22, 2011 1:00 p.m. - 2:30 p.m. 10:00 a.m. - 12:00 p.m 3:30 – 5:30pm El Paso County Historical Society COAS Books, Inc. !e Law School Preparation Institute Burges House 317 North Main Street Homecoming Tailgate Event 603 West Yandell Las Cruces, New Mexico 88001 University of Texas at El Paso – Glory Field –Tent El Paso, Texas 79902 UTEP Miners vs. Colorado State Rams – 6:00 pm S 2011