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UT Team Students and faculty at the University of Texas School of Law played key roles in Tennard v. Dretke, a death-penalty case argued before the U.S. Supreme Court on March 22. Jordan Steiker, a UT law school professor, and Rob Owen, an adjunct professor and director of the school’s Capital Punishment Clinic, joined Houston criminal-defense attorney Richard Burr in challenging the fairness of Robert Tennard’s 1986 trial. Six law students — Kimberly Carter, Leslie Thorne, Heather Fraley, Haverly Rauen, Amanda Tyler and Mitria Wilson — conducted legal research for the case, which raises questions about whether the special issues submitted to Texas juries prior to 1991 allowed jurors to consider fully a defendant’s mitigating evidence. In a brief filed with the Supreme Court, Tennard’s legal team argued that the punishment-phase jury instruction prevented the jury from giving meaningful consideration to Tennard’s IQ of 67. Owen, who argued the case before the Supreme Court, contends that under the future-dangerousness instruction, a jury could find that having an IQ of 67 would make an individual more dangerous. Ed Marshall, deputy chief of the post-conviction litigation division at the Texas Office of the Attorney General, argued the case for the state but declines comment. The state argued in its brief that the jury had a vehicle to consider Tennard’s low IQ when determining whether to give him a life sentence or the death penalty. Rauen, a third-year law student from Knoxville, Tenn., says the students who volunteered to work on Tennard’s case had two weeks to do the research. “I put school work aside for a few days,” Rauen says. Going to Court Terry McEachern, who prosecuted individuals arrested in the controversial 1999 Tulia drug bust, elected on March 10 to have a district court hear allegations of misconduct against him, says Mark Pinckard, spokesman for the State Bar of Texas Office of Chief Disciplinary Counsel. Pinckard says the State Bar initiated a complaint against McEachern, district attorney for Hale and Swisher counties, as a result of the Tulia matter. Last month, the State Bar District 13 Grievance Committee found just cause to believe that McEachern committed misconduct, Pinckard says. McEachern did not return two telephone calls seeking comment by presstime on March 25. But in its March 24 issue, the Amarillo Globe-News quoted McEachern saying that he still believes in the prosecutions. “I still feel the same way I did back then. Of course, looking back, I would have done some things differently. But it’s easy playing Monday morning quarterback,” McEachern said. In the March 9 Republican primary, McEachern lost his bid for re-election. Pinckard says the State Bar will file a disciplinary petition in McEachern’s case with the Texas Supreme Court, and the high court will appoint a visiting judge to hear the case in a district court in the Panhandle. If the judge finds McEachern committed misconduct, he faces a public reprimand, suspension or disbarment, Pinckard says. McEachern prosecuted the Tulia defendants based on the uncorroborated testimony of Tom Coleman, an undercover officer with the Panhandle Regional Narcotics Task Force. Coleman is scheduled to go on trial in May on perjury charges stemming from his testimony at a March 2003 habeas corpus hearing before visiting Judge Ron Chapman in Tulia. In August 2003, Gov. Rick Perry granted pardons to 35 of those prosecuted, and Amarillo officials announced earlier this month that the city would pay $5 million to settle a civil suit that the Tulia defendants filed against cities and counties that sponsored the task force. [ See "City Settles," Texas Lawyer , March 15, 2004, page 3.] Seeking a Thaw U.S. District Judge Sim Lake isn’t giving Jeffrey Skilling access to more than $55 million in frozen assets, despite the former Enron Corp. chief executive officer’s claim he needs money to pay ongoing living expenses, insurance and taxes. Skilling, named in February in a federal indictment that charges him with conspiracy, wire fraud, securities fraud and insider-trading at Enron, alleges in a motion asking Lake to dissolve a restraining order freezing his assets that the freeze that applies to his house, his savings and his company’s operating account is “overreaching, unlawful and drastically punitive.” He alleges the breadth of the freeze denies him access to money needed to support his family, and even bars his access to some of the $3 million in interest his investments yield yearly. In a 21-page memorandum and order signed on March 18, Lake wrote he has authority to order pre-conviction restraint of Skilling’s assets under 28 U.S.C. �2461(c), which allows for criminal forfeiture upon conviction using the procedures in �413 of the Controlled Substances Act. According to the order, Lake concluded Skilling’s assets are potentially subject to forfeiture because they are “directly traceable” to the charged offenses. Lawyers for Skilling are considering an appeal of Lake’s order, says Ronald Woods, a solo practitioner in Houston who is on Skilling’s legal team along with lawyers from O’Melveny & Myers in Los Angeles and Washington, D.C. Skilling didn’t cite the cost of a legal defense when asking Lake for money. Before his assets were frozen, Skilling paid a $23 million retainer to his lawyers, according to the government’s supplemental memorandum of law in support of the restraining order. [See U.S. v. Causey and Skilling] Slimmest of Margins It was one of the slimmest margins of victory for any race in the March 9 Texas primaries. And after a recount on March 19, the margin in the Democratic race for district attorney for the 8th Judicial District was even slimmer in fact, the slimmest possible. Martin Braddy, an assistant district attorney for the office in Sulphur Springs, had originally defeated Heath Hyde, a Dallas County assistant district attorney, by five votes. After the recount, it was determined that Braddy had actually won the race by only one vote Braddy received 2,377 votes to Hyde’s 2,376. No Republican filed to run for the office. “It’s amazing,” Braddy says. Braddy says he has heard plenty of stories from voters, including from one man who was on his way out of town on election day but turned around just so he could go to the polls. Any one of them could have made the difference, Braddy says. “When you have an election like this, it’s one for the ages. You can point to this election and say, “That’s why you vote,’ ” Braddy says. As for Hyde, a native of Sulphur Springs, he’s resigned to the fact that he won’t soon return to his hometown to be DA. “ It was a weird deal,” Hyde says. “It just wasn’t meant to be.”

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