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Whether the sudden death of a Texas criminal defense attorney was untimely is a matter of opinion. For the defendant who was convicted of murder on the day his lawyer died of a heart attack, it couldn’t have come at a more propitious moment. It caused a judge to declare a mistrial, said Nueces County Assistant District Attorney David Reddell. “The defendant is the only one happy about his death,” Reddell said. Mickey Kolpack, a Corpus Christi, Texas, solo practitioner , died of a heart attack on Sept. 10, less than two hours after his appointed client, George Doyle, was convicted of murder and a day before the sentencing phase of his trial was to begin. Texas allows a defendant the option of choosing a judge or a jury to pass sentence. Doyle, who faced five to 99 years in prison, had chosen to roll the dice with the jury. State v. Doyle, No. 02-CR-2497-C (Nueces Co., Texas, Dist. Ct.). Kolpack’s sudden death put visiting Judge Robert Pate on the hot seat: He had to decide whether to allow Doyle’s newly appointed lawyer, James Lawrence, also a Corpus Christi solo practitioner, to proceed with the sentencing phase or to grant a new trial. Pate thinks the situation is a case of first impression nationally. “I doubt both sides would have missed the precedents if there were any,” said Pate, referring to counsel’s briefs. An extreme point In its opposition to Doyle’s motion for a mistrial, the prosecution took a novel approach. In addition to reminding the court that it had the power to appoint new counsel throughout the process for good cause, it argued that granting a “mistrial motion under these circumstances would be giving notice to every defendant in the state that if they are not satisfied with the result of the guilt-innocence phase of their trial, all they need to do is to arrange for the demise of their counsel.” Reddell explained that he was “trying to be extreme to get my point across. But if they [the jury] come back guilty in a capital case a defendant would have nothing to lose.” Edward Mallett of Houston’s Mandel and Wright and past president of the National Association of Criminal Defense Lawyers said, “John Ashcroft couldn’t have said it any better.” He called the judge’s decision “wise and judicious.” Lawrence had argued, and the judge agreed, that Doyle needed the benefit of his trial lawyer, someone with intimate knowledge of the case, for the sentencing phase, Lawrence said. “At the penalty phase, the first thing the prosecution does is reintroduce everything they put in at the guilt phase,” Lawrence said. “I would have had to object to it all, not knowing what it was.” Reddell described the case as an “ongoing nightmare. We had no body [corpse].” The defendant had fired several of his former attorneys. “I’m not sure if Mickey was the fifth or sixth. Doyle is a very difficult guy to deal with. Mickey was very special-he could work with anyone.” Doyle and the victim were both homeless at the time of the December 1995 murder. Doyle confessed to having committed the murder in December 2001 after he’d been arrested for “DUI and stolen vehicle in Colorado,” Reddell said. But he pleaded not guilty when charged. Pate, who will likely remain on the case, has ordered a transcript of the three-day trial. Once it is prepared, he’ll set a new trial date, he said. But Reddell said his office would explore the possibility of appealing the judge’s ruling. “We don’t think that a murderer should get the benefit of Mickey’s untimely death,” Reddell said. Last week, he offered Doyle a deal, according to Lawrence. The deal: Plead guilty and accept 15 years in prison or the state would appeal and refile, charging Doyle as a habitual offender. Doyle turned it down. Post’s e-mail address is [email protected].

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