TRAVIS COUNTY

Eight lawyers call for new trial for baby sitter

Defense attorneys say colleague ineffective, leading to guilty verdict in toddler's death.

By Steven Kreytak
AMERICAN-STATESMAN STAFF
Friday, November 11, 2005
An Austin defense lawyer came under siege in court Thursday by colleagues who questioned his work representing a woman convicted in September of murdering a child.

His co-counsel in the case questioned his courtroom decisions. An appeals lawyer called him "a hack" who "should have spent more time learning the rules of evidence." In all, eight lawyers either testified or wrote in affidavits that Rosa Estela Olvera Jimenez should get a new trial because defense lawyer Leonard Martinez had been ineffective.

It was an unusual public lashing of one of their own by local defense lawyers. Russell Hunt Jr., secretary of the Austin Criminal Defense Lawyer's Association, compared it to a group of doctors accusing a fellow physician of malpractice. But Hunt defended Martinez's skill as a lawyer, calling him a "true believer who cares very much about his clients."

A Travis County jury convicted Jimenez, 22, of killing Bryan Gutierrez by stuffing a wad of paper towels down his throat. And that verdict will stand, barring an appeal, after state District Judge Jon Wisser denied her new lawyers' motion for a new trial Thursday evening. Wisser appointed Martinez to the case.

Martinez, who wasn't at the hearing, said Thursday afternoon that he made some mistakes.

"I worked as hard as I possibly could on Ms. Jimenez's case," he said. "I still believe in her innocence. My only fault is I was maybe so passionate that I missed some things and let some things go through."

During the trial, Martinez argued that Bryan, who was 21 months old at the time, swallowed the lemon-sized wad of paper towels on his own while Jimenez, who was baby-sitting him at her North Austin apartment, prepared him lunch. Prosecutors said he was too small and too young to have swallowed the large wad on his own.

Thursday morning, attorneys Kristin Etter and Keith Hampton accused Martinez of providing ineffective assistance of counsel because he failed to object during the trial when prosecutors tried to introduce police affidavits as evidence.

The affidavits, which summarized evidence collected by detectives, should have been excluded because they included hearsay and denied Jimenez the right to cross-examine witnesses, the lawyers argued.

Martinez's co-counsel, Jon Evans, testified at the hearing that during the trial he questioned why Martinez didn't object to the affidavits, which were introduced as evidence. Evans, who was appointed to assist Martinez said he also disagreed with other trial strategies but was shut out of the decision-making by Martinez, who was the lead attorney for Jimenez.

Austin appellate lawyer Terrence Kirk testified during the hearing that he doesn't think Martinez should be representing anyone.

"It's a tragedy because if hacks like this are allowed to continue to represent defendants, eventually an innocent person is going to be convicted because the state knows how to run over hacks," Kirk testified.

Finally, Hampton submitted to Wisser affidavits written by six local defense lawyers not involved in the case. Each lawyer wrote that Martinez's failure to object to the affidavits was an obvious misstep that should result in a new trial, Hampton said.

Prosecutors dismissed the contention that Martinez's errors warranted a new trial, noting that most of the evidence in the police affidavits was introduced during the trial through witnesses. Jimenez's lawyers said that the opinion of at least one doctor who didn't testify was included in an affidavit.

State District Judge Bob Perkins said Martinez is one of only 13 Austin lawyers eligible to be appointed to death penalty cases.

He also is on the list of defense lawyers who receive appointments in other serious felony cases. Perkins said he and the other state district judges carefully select those lawyers based on their skill and experience.

Martinez is first-chair lawyer defending the only person facing the death penalty in Travis County, Milton Dwayne Gobert. The 33-year-old is accused of fatally stabbing 30-year-old Mel Cotton in 2003 in North Austin.

I do not know about that, John. Any time 8 lawyers agree on something that is a very significant event. But, should not Martinez have been required to be there to face his accusers and to explain his tactics? Apparently his mistakes were not material, or the gang of eight wasted a lot time developing a record that will likely not meet the requirements of Thompson. Strickland is certainly attaining as much significance as Miranda and Wong Sun in the history of criminal procedure.

So, if the state gets 9 prosecutors to say the representation was effective, that makes it good? Lawyers opinions about effective assistance should have no weight. Such self-serving sworn statements don't assist the court in deciding the issue. They are the equivalent of closing arguments -- all sound and fury. And, frankly, referring to a lawyer who has been designated by judges as sufficiently experienced to handle a capital murder case as a "hack" suggests that there is something personal going on. Not very impressive.

We got notice of the ineffective assistance of counsel claim for the first time on the day of the hearing. We objected to the untimely amendment of the motion for new trial, and the judge agreed, but let the defense put on their evidence "to perfect a bill," in the interest of judicial economy, etc. It was a legally meaningless show, orchestrated by a group of TCDLA "elites" and wannabes. Martinez was not called by the State because we didn't have notice that we would be defending an IAC claim. He wasn't called by the defense because they apparently decided it would be easier to criticize him if he wasn't there. And yes, John, the hearing was extremely personal. Ugly, in fact.

If you are correct (and I believe you are) that the court can determine whether the performance of the attorney fell below an objective standard of reasonableness without any expert testimony, then one has to wonder all the more why these attorneys went out of their way to launch a personal attack on a fellow member of the bar.

But, maybe none of them were familiar with the admonition given in Gleason, 145 S.W.3d at 360: "There is no justification for personal attacks in the courts of this state. * * * Litigants should not assail the intelligence, ethics, morals, upbringing, or integrity of others involved in the case unless such matters are legitimately at issue and within the bounds of fair argument. Even then, litigants should avoid the use of inappropriate language and inflammatory rhetoric. Restraint, tolerance, and self-control tend to foster civility. Name-calling, stridency, and rudeness have the opposite effect. Incivility does not advance a litigant's legal position, but only tends to eclipse or obscure whatever legal points he intended to make. Incivility is not only ineffective but also ill-advised. At a minimum, courts and those appearing before them expect and deserve civility and courtesy from all participants in the legal process."

Why do I get a perverse sense of enjoyment watching defense lawyers eat their own?

Didn't Judge Cochran caution against hearings on IAC claims without giving the defense attorney an opportunity to defend himself? Anyone knowing the result previously obtained would do something differently. It is a little disconcerting to see so many attorneys tear into one of their own. The only IAC claim I lost was where four defense attorneys (several board certified) tore into an out of town attorney (who did a dreadful job). Brings to mind the old quip "no honor among (fill in the blank").

ATTORNEY QUESTIONS JUDGE'S TIES TO LAW ENFORCEMENT

A Tyler attorney testified Friday that he believed Jack Skeen Jr. - former Smith County district attorney and current state judge - has too close a relationship with law enforcement to be fair and impartial in his sentencings when officers are victims.

Thad Davidson was questioned for about four hours on his opinions about the 241st District Judge after he wrote a sworn affidavit about a case in which the judge sentenced Shane Ray Dykes to 2 concurrent life sentences for stabbing police officers with a methamphetamine-filled needle.

Attorneys held an appeal hearing in Skeen's court for Dykes, whose appellant attorney, Don Killingsworth, is claiming Dykes had ineffective assistance of counsel - Rhett Darby - because Darby allowed his client to plead guilty in Skeen's court to assaulting the officers without an agreed sentencing, leaving it solely up to Skeen what punishment to assess.

During the hearing, Skeen sat silently listening to the testimony, occasionally ruling on attorney's objections.

After the hearing, Skeen said that as presiding judge over the case, he is prohibited from commenting on any testimony that he'll use to make findings of fact and conclusions of law.

Davidson has been a criminal defense attorney in Tyler for about four years and was a Smith County assistant district attorney handling misdemeanor cases under Skeen for about a year.

Smith County District Attorney Matt Bingham questioned Davidson about his July 2004 affidavit.

Davidson said he could not remember ever before prosecuting or defending a case involving aggravated assault on a public servant and he was not present for Dykes' proceedings. He said he based his opinions on his experience as a Tyler attorney, facts of the case Dykes told Killingsworth, who relayed the information to Davidson, conversations with other defense attorneys and prosecutors about Skeen's practices, and newspaper articles.

The defense attorney said he left the district attorney's office in 2001 because he was unhappy there and he didn't agree with Skeen's philosophies. He said he felt there was too close a relationship with the DA's office and law enforcement and it was inappropriate for prosecutors to consult officers about what they think a defendant's sentence should be.

He said he felt it was a "standing rule" when Skeen was district attorney that all assistant prosecutors were to consult with the lead police officer in the cases on what should happen with the defendants.

He said he was not aware that the practice was illegal or unethical, as long as the district attorney made the final decision, but he felt it was wrong if assistant district attorneys feel that they're obligated to follow police recommendations.

Davidson said the practice is still in place under Bingham, which he discovered after talking to assistant prosecutors.

Bingham said his policy, when disposing of a case, is to contact law enforcement officers who investigate the case to inform them of the decision the state is considering making. He said it is important to talk to officers, who might have additional information about the defendant, which could influence the decision always made by prosecutors.

Bingham said his policy is the same as Skeen's was when he was DA.

"We never get their (officers') permission before we do something - that's ridiculous," he said.

Bingham said his office also contacts the victims, keeping them up-to-date on what is happening in the case and to ensure that they feel justice is done.

After nearly 2 hours of questioning, Davidson asked to consult his attorney before continuing with his testimony because he said he felt further questioning might incriminate him. After a brief discussion with Bobby Mimms, he got back on the witness stand.

Killingsworth requested that Skeen recuse himself from the case because he might become a witness regarding the allegations against him. But Skeen said the motion to recuse was not timely filed since the affidavit was written more than a year ago. He said his decision on Dykes' appeal regarded whether Darby was ineffective assistance of counsel.

Davidson said he believed Skeen's relationship with law enforcement is wrong but he was not aware of any violations of law or professional code of conduct. He said he felt Skeen could not be impartial on cases where police are victims.

He said he was told Darby "advised" Dykes to plead guilty.

Davidson said an attorney allowing their client to plead guilty to assaulting an officer in front of Skeen is like "throwing your client to the wolves," adding that there would be no possible benefit for the client "because he's going to get hammered."

"Mr. Darby led his own client down the garden path to his own execution, so to speak," Davidson said.

When asked by Bingham, Davidson said he was unaware of facts in assault on a public servant cases mentioned by the prosecutor in which the defendants received lighter sentences.

Davidson said a defense attorney is required to conduct an independent investigation or he can't effectively represent his client. The attorney also must lay down all of his client's options and advise him of the possibilities, but ultimately let the client decide what to do.

After Davidson's testimony, Skeen requested that the attorneys file their proposed findings of fact and conclusions of law with the court within 10 days. Then he will make his decision on Dykes' appeal for a new trial.

In June 2004, Dykes pleaded guilty to 2 counts of aggravated assault on a peace officer with a deadly weapon.

The state initially requested the sentences be stacked but agreed with Darby that they would be served at the same time if Dykes waived all rights to appeal.

Tyler police officers Steve Black and Dale Feuquay were stabbed with a syringe Dec. 7, 2003, during a struggle with Dykes.

Doctors testified they could have been infected with diseases, such as hepatitis or HIV and they were given medicine that made them sick. The officers were told to refrain from intimate relations with their wives and to be careful with their children.

Dykes testified he stabbed the officers because he was trying to escape and to avoid responsibility for his actions. He said he never thought about what the officers or their families went through until they testified and he apologized to them.

"I deserve to go to prison," he said. "I deserve life in the pen."

But Dykes asked the judge for "mercy" - to sentence him to deferred adjudication probation. He said he has been addicted to drugs for nearly half of his life, using cocaine, meth, marijuana, ecstasy and Xanax.

Dykes was given deferred adjudication in 1991 for bringing a gun to school. In 1999, he was given probation for possessing cocaine.

It was revoked in 2001 after he failed drug tests and to comply with other terms of release.

(source: Tyler Morning Telegraph)

The appellate courts, by opening the doors to such claims, should take some responsibility for the escalation of these types of claims. Not one word in the article provides factual support for the claim. The new defense attorney simply opines that he would not have done the same as the old attorney. Well, that is almost always going to be true, since the new attorney sees the results of the old attorney's work. But that doesn't say anything about the quality of the effort.

Sounds like Judge Skeen has shown remarkable patience with the hearing.

Maligned lawyer returns to case

Woman convicted of murder asks for, gets attorney others derided

By Steven Kreytak
AMERICAN-STATESMAN STAFF
Friday, December 16, 2005
Austin defense lawyer Leonard Martinez, whose work defending convicted child killer Rosa Estela Olvera Jimenez was attacked by fellow lawyers in court last month, has been reappointed to work on Jimenez's appeal.

The change came this week at Jimenez's request, said state District Judge Jon Wisser, who presided over the August trial and agreed to replace the lawyer he appointed for Jimenez's appeal with Martinez.

Though it is unusual for defendants to ask for their trial counsel to remain on the case, it is their right, Wisser said.

Jimenez, 22, was convicted of murder and injury to a child for shoving a wad of paper towels down the throat of Bryan Gutierrez, whom she was baby-sitting at her North Austin apartment in 2003. Jimenez, a Mexican citizen, was sentenced to 99 years in prison.

During the trial, Martinez argued that Bryan, who was 21 months old at the time, swallowed the lemon-size wad on his own while Jimenez prepared his lunch. Prosecutors said he was too small and too young to have swallowed the large wad on his own.

In a hearing on a motion for a new trial on Nov. 10, Jimenez's new lawyers � Kristin Etter, who was appointed by Wisser, and Keith Hampton, who agreed to help her � argued that Martinez was ineffective because he failed to object during the trial when prosecutors tried to introduce police affidavits as evidence.

The affidavits, which summarized evidence collected by detectives, should have been excluded because they included hearsay and denied Jimenez the right to cross-examine witnesses, the lawyers argued.

They called to the stand Martinez's co-counsel, who questioned his trial strategy, and appeals lawyer Terrence Kirk, who called Martinez "a hack" from the witness stand.

Six other defense lawyers submitted affidavits claiming Jimenez received ineffective legal assistance.

Though that claim is common in requests for a new trial, the number of lawyers that came forward and the personal nature of Kirk's comments are not.

Martinez is known around the courthouse, even by his detractors, as an energetic defender of his clients. He is board certified in criminal law and has been appointed by judges to handle serious felonies, including capital murder cases.

Martinez said the fact that Jimenez wants him back shows he did a good job.

"She's the one that had seen all the work and all the effort that had taken place," he said.

Kirk's comments and Hampton's involvement in assembling the lawyers to speak out against Martinez so incensed a group of 15 local Hispanic lawyers that they sent Kirk and Hampton letters last week accusing them of racism against Martinez.

"Did either of you so much as consider the character of the man you so viciously attacked?" the letter said. "Our friend and brother lawyer Leonard Martinez volunteered not for one but two tours of duty in Vietnam."

Kirk and Hampton vehemently deny that they are racist and noted that they have represented countless Hispanics in their careers and agreed to help Jimenez for free.

The letter doesn't explain why the group thinks Kirk's comments were racially motivated.

But Joe James Sawyer, a criminal defense lawyer who signed it, said: "We know racism when we see it, and we think and believe that's what this is about in the end."

Sawyer said the letter was forwarded to the Texas State Bar, the Texas and Austin criminal defense lawyers associations and groups that advocate for Hispanics and veterans.

Austin defense lawyer David Gonzalez said he was invited to sign the letter but declined because he doesn't believe that Kirk and Hampton are racist.

Wisser denied Jimenez's initial motion for a new trial.

She can appeal to the Texas 3rd Court of Appeals once the trial transcript is complete, Martinez said.

Martinez said he has not decided whether he will argue that Jimenez received ineffective legal assistance.

I assume at his age, Leonard Martinez has advocated and defended for the rights of hundreds of people.

It's sad that we work in a profession where a lifetime of work and a legacy can be ruined by errors in "one" trial.