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Earlier this month, a cadre of pro bono criminal defense lawyers — including teams from D.C.’s Wilmer, Cutler & Pickering and Hogan & Hartson — walked away from the Swisher County Courthouse confident that they had extracted a bit of justice for a group of 38 defendants from the small Texas panhandle town of Tulia. Their efforts could lead to the exoneration of some or all of the group of mostly black defendants, whom the lawyers believe were wrongly convicted as part of a sweeping drug bust four years ago in which 12 percent of the town’s black residents were arrested. Central to the three-year-old litigation is the claim that a lone undercover officer who arrested the defendants in July 1999 was not credible. Defense lawyers alleged that the defendants’ convictions were based on that officer’s uncorroborated evidence, and that the officer hid a troubled employment background from defense counsel and used racial slurs. On April 1, after a week of testimony in habeas hearings, the defense team scored a key victory: The prosecution and the defense agreed to stipulate that the undercover officer was not credible. “It was a great day for D.C. pro bono work,” says Mitch Zamoff, a Hogan partner who worked on the case. “We took Texas by storm.” Adds Jeff Blackburn, local counsel for the defendants: “What a day for us. We’re very, very happy that instead of running this thing out, the state finally woke up and decided they could no longer handle these cases.” As part of the agreement, Swisher County agreed to pay $250,000 total to the group of 38 defendants; in turn, the defendants agreed not to sue the county. During the April 1 hearing, visiting Judge Ron Chapman said he would recommend new trials for all the defendants. The next stop on the defendants’ procedural path to freedom is the Texas Court of Criminal Appeals, but the fight is far from over. The defense team will have to present a legal issue that has deeply divided the court of appeals. On March 17, prosecutors faced off against the vast pro bono defense team. As the habeas hearing dragged on, the decision to enter into a stipulation regarding the undercover officer’s testimony seemed to make more and more sense. In fact, prosecutors admit that they felt their case slipping away when Officer Thomas Coleman took the stand on March 21. Coleman’s testimony about his history, including an arrest for theft and official misconduct, didn’t seem credible, says Rod Hobson, a special prosecutor who was brought onto the case by Swisher County District Attorney Terry McEachern after it became clear the small DA’s office needed help in the case. In testimony, it was shown that the charges against Coleman in Cochran County, where he had allegedly filled his personal vehicle with county gas, were dropped after he made restitution, Hobson says. It didn’t help, Hobson says, that Coleman also testified that he sometimes used the “n” word. “It was an avalanche for us,” says Hobson, who prosecuted the case along with Dallas solo John Nation. “After the cop testimony, we had to get out of the way.” Coleman could not be reached. Hobson says that prosecutors will not retry the case if the court of appeals grants the defendants relief. “It came down to this: If they get a new trial, who’s going to retry them? Nobody,” Hobson says. “We decided to end it there.” After the story of the Tulia arrests began making national news three years ago, lawyers for the New York-based NAACP Legal Defense and Educational Fund (LDF) got involved in September 2001 and started enlisting pro bono lawyers for the defendants’ appeals. Blackburn, who had previously represented two of defendants, served as local counsel in the habeas hearings for the LDF, which also convinced the Wilmer and Hogan lawyers to come aboard. Hogan partner Mitchell Zamoff, along with associates E. Desmond Hogan, Adam Levin, Jennifer Klar, Tara Hammons, and Lori Searcy, participated in the case. While the two firms originally had separate clients, the cases were combined earlier this year. Zamoff says the Hogan team had a “very close working relationship” with the Wilmer lawyers, which included partner Joseph “Ted” Killory, counsel William White and Joseph Profaizer, and associates Mark Oh, J. Winston King Jr., and Anitra Cassas. “Historically, we get involved where there is strong racial bias in criminal law cases,” says Vanita Gupta, an LDF staff attorney. The LDF represents 36 Tulia defendants. “We were shocked that something like this could happen in 1999.” “Before you knew it, we had a crusade on our hands,” says Blackburn, who estimates he donated $72,000 in legal services. A dozen lawyers worked around the clock since February preparing for the Tulia hearings, spending more than $1 million in donated time and expenses. “I’ve been litigating for 24 years, and it’s the most satisfying experience of my career,” says Killory, a commercial litigator. “It’s unfortunate you have to make this kind of commitment. But in the interest of justice, that was the commitment that was necessary to bring justice.” Zamoff, a former federal prosecutor in Philadelphia, got the task of questioning Coleman. “It was in many ways shocking,” Zamoff says. “I certainly believed going into that exam that he had problems with prior statements.” Despite their success in the habeas hearings, the Tulia defendants — 13 of whom are still incarcerated — are far from free. Following the mass arrests, 27 of the defendants pleaded guilty to drug charges, and that may prove to be an insurmountable hurdle when the case comes before the court of appeals. The court has struggled over whether to grant habeas relief to those who voluntarily plead guilty. The issue of whether the defendants who pleaded guilty should be granted relief has been a hot topic at the appeals court. A sharply divided court ruled last December, in Ex Parte Tuley, that a defendant’s guilty plea does not preclude him from claiming in a post-conviction writ application that new evidence establishes his innocence. Prosecutors have asked for a rehearing of that 5-4 decision. The Tulia defendants are not ensured a favorable ruling, even though the trial court is recommending relief, says Gary Udashen, a Dallas appellate criminal law expert. “I wouldn’t be entirely sure that the Court of Criminal Appeals would go along with it. They obviously should because you have the prosecution agreeing that the witness is not credible,” Udashen says. “But the Court of Criminal Appeals is generally unpredictable, and they have the final say in it.” Still, defense attorneys believe they have a strong argument. Killory believes defendants pleaded guilty because the first who went to trial received a prison sentence of more than 90 years. “They faced similar prospects if they went to trial,” Killory says. “The taint of the unreliable testimony . . . affected all of these cases.” This article was distributed by the American Lawyer Media News Service. John Council is a senior reporter at Texas Lawyer. Legal Times assistant editor Alicia Upano contributed to this report.

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