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Prayer for Relief � Kelly Shackelford While still a high school student in Nashville, Tenn., Kelly Shackelford began trying to decide what he wanted to do with his life. Shackelford says he realized he was gifted in analytical thinking and speaking and decided he should become a pastor or a lawyer. “I knew what my gifts were,” Shackelford says. “I wanted to use them to help other people.” Although Shackelford says he initially considered going to a seminary, he finally decided that the best way he could help others was to become a lawyer with a different kind of practice. He represents individuals, groups and churches battling the government in cases involving freedom of religion. Shackelford says religious freedom involves issues central to a person’s life. If a person cannot discuss, without government interference, issues that go to the very core of life — such as the meaning of life and the existence of God — that person has no freedom of speech, he says. “I can’t think of anything in law that is more rewarding than to battle for the most important freedom we have,” Shackelford says. This year, Shackelford has been on the winning side in three cases that resulted in major victories in the area of religious liberties. Texas Solicitor General Ted Cruz, who says he has worked with and against Shackelford on a number of cases, describes him as a “tremendously talented lawyer” who could be earning a big salary in a private law firm. “But Kelly has a profound commitment to religious liberty,” Cruz says. “He has dedicated his life and career to fighting in a court of law to protect the religious liberty of all Americans.” Shackelford, a 1988 Baylor Law School graduate, says several firms offered him jobs after he spent a year as a law clerk for U.S. District Judge Sidney Fitzwater in Dallas. “But I didn’t want to do the regular thing,” he says. “I wanted to be involved in ministry.” So, Shackelford became executive director of the Texas Rutherford Foundation, a nonprofit organization supported by a group of Texas attorneys to provide pro bono representation in religious liberty cases. His duties included recruiting attorneys to represent people and speaking to groups and in the media about people’s religious liberty rights. “The average person isn’t O.J.; he can’t afford a dream team,” Shackelford says. “If he doesn’t have a place to go to get help, we all lose our freedoms.” In 1992, Shackelford accepted a position as Midwest and Southwest regional coordinator for the Rutherford Institute, a national conservative organization involved in faith issues. Noting that his service area covered about one-third of the country, Shackelford says he was in charge of recruiting volunteer attorneys to work pro bono on cases taken by the institute. But when the Rutherford Institute began closing its regional offices and moving the staff to Washington, D.C., Shackelford decided to leave the institute. “I just didn’t want to do that,” Shackelford says. “I love Texas.” In 1997, Shackelford founded Liberty Legal Institute, a nonprofit organization headquartered in Plano. With a network of approximately 120 volunteer attorneys, Liberty Legal provides pro bono representation to individuals, groups and churches at odds with government officials over religious freedoms and First Amendment rights. “My goal was to have one case by the end of the year,” says Shackelford, who serves as Liberty Legal’s chief counsel. “Before we even got our phone number in the book, we had 25 cases,” he says. After a decade of operating, Liberty Legal now has four attorneys on staff and an annual budget of about $2 million, funded by contributors, Shackelford says. Liberty Legal’s volunteer attorneys also contribute millions of dollars’ worth of their time to help people who cannot afford their services fight for religious freedom, he says. James C. Ho, of counsel at Gibson, Dunn & Crutcher in Dallas and one of Liberty Legal’s volunteer lawyers, says Shackelford has a particular viewpoint that can generate strong emotions. What makes Shackelford an effective lawyer, Ho says, is his ability to present complex legal arguments and his political sense of where the public stands on issues. “He understands all sides of how to engage in personal advocacy,” Ho says. “Sometimes it calls for crisp legal analysis; sometimes it requires emotions in terms of telling a story.” Ho, who formerly served as chief counsel for the U.S. Senate Judiciary Subcommittee on the Constitution, recalls Shackelford’s July 8, 2004, appearance before the subcommittee to discuss hostility toward religious freedom. With Shackelford was Barney Clark, who told the subcommittee about a group of older residents’ legal fight to continue singing gospel songs and saying prayers at a city-funded senior center in Balch Springs, Ho says. Represented by Liberty Legal, the group of senior citizens worked out an agreement with the city of Balch Springs to give them their rights back, Clark testified. “As a war veteran and proud senior who fought for our freedoms, I took part in this, because I wanted to stand for my rights,” Clark told the subcommittee, according to a transcript of the hearing. Shackelford has won two victories this year at the Texas Supreme Court and helped write an amici curiae brief to the U.S. Supreme Court that persuaded the nation’s highest court to preserve public school students’ freedom of speech. On June 29, a unanimous Texas Supreme Court ruled in favor of a pastor represented by Liberty Legal and Shackelford in Westbrook v. Penley. As noted in the Supreme Court’s decision, a woman sued her pastor, the elders of her church and the church for defamation, negligence, breach of fiduciary duty and intentional infliction of emotional distress after the pastor, who was also a licensed professional marriage counselor, divulged to the congregation that the woman had told him that she had had an affair. A letter co-authored by the pastor directed the congregation to shun the woman. The 67th District Court had dismissed Peggy Lee Penley’s claims, based on motions filed by the defendants challenging the trial court’s jurisdiction over the case on First Amendment grounds. As noted in the Supreme Court’s opinion in Penley, the pastor’s motion contended that the suit involved an “ecclesiastical dispute” concerning a church disciplinary matter over which the trial court had no jurisdiction. But in a 2004 decision, Fort Worth’s 2nd Court of Appeals held that Penley had a viable claim involving C.L. “Buddy” Westbrook’s alleged breach of duty in his counseling role that did not implicate the propriety of the church’s disciplinary action. On Sept. 26, 2006, Shackelford joined Liberty Legal litigation director Hiram Sasser in arguing Penley before the Supreme Court. Sasser presented the main argument, and Shackelford gave the rebuttal. Shackelford says he realized the danger that the case posed for church autonomy. If the state Supreme Court had ruled for Penley, “it would have opened up lawsuits against every church and pastor in the state,” he says. His concern about Penley was so great that Shackelford says he put out the word to churches across the state to have people pray for the Supreme Court justices. Shackelford says he also offered his own prayer before the arguments. “My prayer was that I would do better than I’d ever done and make sure to do everything in my power to protect the church and religious freedom,” he says. In Penley, Supreme Court Justice Harriet O’Neill wrote for the unanimous court that the secular confidentiality interest that the woman’s professional-negligence claim raised against the pastor failed “to override the strong constitutional presumption that favors preserving the church’s interest in managing its affairs.” Shackelford and Liberty Legal won another victory at the state Supreme Court on Aug. 31. With Justice Don Willett not participating, the court held that Texas Education Code �61.304′s restrictions on religious institutions calling themselves seminaries and on the types of degrees those institutions may award graduates intrudes upon religious freedoms protected by the U.S. and Texas Constitutions. Chief Justice Wallace Jefferson, joined by Justice Paul Green, wrote in a concurring and dissenting opinion that the statute at issue in H.E.B. Ministries, et al. v. Texas Higher Education Coordinating Board “permissibly regulates commercial speech” and that it presents no Establishment Clause or Free Exercise Clause violations. Justice Dale Wainwright wrote a separate concurring and dissenting opinion in which Justice Phil Johnson joined. As noted in the majority opinion in H.E.B. Ministries, written by Justice Nathan Hecht, the state had fined Tyndale Theological Seminary and Bible Institute in Fort Worth $173,000 for calling itself a seminary and issuing degrees without coordinating board approval. In that case, Liberty Legal represented the Tyndale seminary, which is sponsored by H.E.B. Ministries, as well as the Hispanic Bible Institute and the Southern Bible Institute. “It was a well-briefed, well-argued case,” says Amy Warr, a former assistant solicitor general who represented the state in H.E.B. Ministries. Warr, now of counsel at Alexander Dubose Jones & Townsend in Austin, calls Shackelford a formidable adversary. “He is someone who is very objective and pragmatic and practical,” Warr says. “He knows where he wants to go.” Shackelford’s third victory in 2007 involved a 5-4 decision in Morse v. Frederick, in which the nation’s highest court held on June 25 that a principal may, without violating the First Amendment, restrict student speech at a school event if the speech can be viewed as promoting illegal drug use. According to the Supreme Court’s majority opinion, the principal had suspended a student who displayed a banner that read “Bong Hits 4 Jesus” across the street from a high school in Juneau, Alaska, during the Winter Olympics torch relay. Shackelford says the majority opinion in Frederick follows the suggestion that he and Doug Laycock, a professor and religious liberties scholar at the University of Michigan School of Law and formerly a professor at the University of Texas School of Law, offered in their amicus curiae brief to the court on behalf of Liberty Legal. In the brief, Shackelford and Laycock urged the Supreme Court to carve out an explicit exception to students’ free speech rights that the high court articulated in 1969′s Tinker v. Des Moines Independent Community School District. According to the brief, that exception should apply if student speech advocates for the use of illegal drugs. Shackelford says the school district, represented by former U.S. Solicitor General Kenneth W. Starr, now dean of the Pepperdine University School of Law and of counsel with Kirkland & Ellis in Los Angeles, was seeking the power to ban all student speech that the district did not feel furthered the school’s educational missions. The Supreme Court majority’s decision was narrow enough to preserve students’ rights to free speech, including religious speech, from such censorship, he says. Laycock says he and Shackelford do not always agree on cases, because Shackelford “tends to think the religious side should always win.” But Laycock says Shackelford is a major player in the field of religious liberty. “The system needs people like Kelly,” Laycock says. “He’s fearless. He takes difficult cases. Sometimes he wins; sometimes he loses.” Shackelford says Liberty Legal represents as many people as the organization can, based on the amount of donations it receives from thousands of contributors. He estimates that Liberty Legal is able to resolve up to 80 percent of the cases for which it receives calls for help without having to file suits. In most instances, Liberty Legal’s staff is able to resolve issues by calling the government officials involved and “bringing them up to speed on what the law is,” he says. Sasser, Liberty Legal’s legal director, says Shackelford is good at seeing the big picture in a case and seems to know how a court is going to view things. “He keeps us from making any mistakes and keeps emphasizing things that are winnable,” Sasser says. At the same time, Shackelford is open to criticism and hearing other points of view, Sasser says. “He gives you room to be who you are and to do things your way.” – Mary Alice Robbins
A Glitch in the System � Sharon Keller The Texas Court of Criminal Appeals and Presiding Judge Sharon Keller have been at the center of a firestorm since the state executed Michael Wayne Richard for the brutal murder of Marguerite Lucille Dixon. If you agree with Keller’s critics, she made the final decision that resulted in Richard’s execution on Sept. 25: When Richard’s lawyers called to request that the CCA clerk’s office remain open past 5 p.m. so they could file a last-minute appeal, they say Keller’s response was “no.” But if you agree with Keller’s argument in a motion to dismiss a federal suit that Richard’s widow filed against her, the convicted murderer and his attorneys could have filed his pleadings with any judge on the CCA. What is certain is that, in the wake of the tremendous outcry over the Richard case, the CCA has made some changes that lawyers say should help. Lawyers facing a time crunch for filing urgent pleadings in death penalty and other cases now can transmit their documents to the CCA through the e-mail filing system the court put in place in November. Even with the new system, however, lawyers still must file paper copies of the pleadings with the CCA by the following day. “Taking a step toward electronic filing is a step in the right direction,” says Austin criminal-defense attorney David Botsford, who represents death-row inmates. San Antonio solo Jay Brandon, a CCA Rules Advisory Panel member who tested the e-filing system for the court, says, “It worked fine when I did it.” Also in November, the CCA adopted written procedures that require all communications — including pleadings, telephone calls, faxes and any other means of communication — regarding an inmate’s scheduled execution to go to the judge assigned to handle the case. However, Keller says a criminal-defense attorney still would have a right to file pleadings with any CCA judge, as allowed under Texas Rule of Appellate Procedure 9.2(a). The TRAP rule supersedes any procedure that the court adopts, she says. “There really is a silver lining to every cloud, and this was a terrible cloud,” CCA Judge Cathy Cochran says, referring to the Richard case. A chaotic legal scenario unfolded on Sept. 25. That morning, the U.S. Supreme Court had granted a petition for writ of certiorari in Baze v. Rees, a case in which two death-row inmates challenged the trio of chemicals that Kentucky uses in lethal injections as cruel and unusual punishment. Texas uses the same combination of chemicals in executions. University of Houston Law Center professor and Texas Defender Service litigation director David Dow, one of Richard’s attorneys, drafted writs of prohibition and habeas corpus addressing the lethal injection issue raised in Baze. However, Dow says computer problems prevented him and Richard’s other attorneys at TDS from getting the documents to the CCA clerk’s office before closing time. [See "Out of Time," Texas Lawyer, Nov. 19, 2007, page 1.] Keller declines comment about what happened Sept. 25 in Richard’s case. But she told the Austin American-Statesman in an Oct. 3 article:
I got a phone call shortly before 5 and was told that the defendant had asked us to stay open. I asked why, and no reason was given. And I know that is not what other people have said, but that’s the truth. They did not tell us they had computer failure. And given the late request, and with no reason given, I just said, “We close at 5.” I didn’t really think of it as a decision as much as a statement.

The U.S. Supreme Court denied Richard’s motion for stay at about 7:30 p.m. Sept. 25, and the state executed him at 8:20 p.m. Richard is the last man in the nation executed following the Supreme Court’s decision to consider Baze. Since Richard’s execution, a cloud has hung over the court and Keller, who has been named in multiple complaints filed with the State Commission on Judicial Conduct and is a defendant in Richard v. Keller, et al., a wrongful-death and survivor suit that Richard’s widow filed in the U.S. District Court for the Western District in Austin. On Dec. 13, Keller filed a motion to dismiss the widow’s suit, contending, among other things, in her motion that Richard, through his attorneys, did not try to file the pleadings seeking to stop his execution directly with a CCA judge as allowed under TRAP 9.2(a). Rule 9.2(a)(2) provides that “a document is filed in an appellate court by delivering to a justice or judge of that court who is willing to accept it.” But Brandon questions how many defense attorneys know they can file pleadings directly with a judge. “It’s a rule that I was not familiar with, and I don’t know of anybody ever using it,” he says. CCA Judges Paul Womack and Cheryl Johnson say they remained at the CCA after 5 p.m. on Sept. 25. Johnson was the judge assigned to handle Richard’s case. Womack says he was aware that the U.S. Supreme Court had agreed to consider the lethal-injection issue and was preparing himself to look at the issue in case Richard filed an appeal. But Womack says he does not recall being told on Sept. 25 that the CCA clerk’s office had closed at 5 p.m., before Richard’s lawyers could file pleadings. Criticism of Keller’s role in the Richard case continues. “What Sharon Keller did is another dark mark on the court nationwide,” says James C. Harrington, director of the Texas Civil Rights Project. Harrington filed a complaint against Keller with the judicial conduct commission on behalf of himself and 19 other Texas attorneys. “This is the first time that anybody knows about that the court didn’t accept a late filing,” Harrington says. The episode has raised a question for the whole country about what goes on in Texas, he says. The National Association of Criminal Defense Lawyers is among the groups that filed complaints against Keller at the judicial conduct commission. Jack King, the NACDL’s public affairs director, said in an earlier interview that the complaint against Keller is the first the association has ever filed against a judge. CCA Judge Charles Holcomb says the court created the e-mail filing system because of concern about Richard’s case. “I was concerned, definitely, for the reputation of the court and about the fact that the appellant [Richard] did not get due process rights, an opportunity to be heard,” Holcomb says. “We don’t want it to be office hours that prevent the court from looking at something that should be looked at,” Cochran says. Keller says the CCA did not implement an e-mail filing system previously, because “we didn’t have any reason to think it would be helpful.” As Holcomb points out, “There was a glitch in our system that we didn’t realize existed.” Johnson says, “The Richard case was the perfect storm.” The fact that the U.S. Supreme Court decided to grant cert in Baze on the morning that Richard was scheduled to be executed set events in motion, Johnson says. “If the Supreme Court had made that decision on Monday [Sept. 24], we wouldn’t be talking,” she says, referring to Texas Lawyer’s questions about what happened in Richard’s case. Cochran says the CCA recognized immediately that what happened on Sept. 25 in Richard’s case should not have occurred and began working to find a solution. She says the e-mail filing system is the result of several unanimous decisions by the court on each step involved in designing the system. Having Brandon “test drive” the system was the last step the CCA took before announcing it would begin accepting e-filings on Nov. 6. “I don’t think anybody ever asked the court to allow electronic filings,” Botsford says. But Botsford, principal in the Law Office of David L. Botsford, adds, “It’s time they get up to speed with technology. . . . They’re still in a paper world.” The CCA is not alone in that paper world. None of the state appellate courts in Texas has an electronic filing and case management system. Carl Reynolds, administrative director of the State Office of Court Administration, says the Texas Legislature provided $2.3 million in the current two-year budget period to begin development of the Texas Appeals Management and E-Filing System, which would allow courts to receive pleadings and manage cases electronically. However, Reynolds says, it probably will be 2010 before TAMES is fully operational. The system will cover the state Supreme Court, the CCA and the 14 intermediate appellate courts. Johnson says the CCA is the first appellate court in Texas to accept the filing of pleadings by e-mail. However, the first filing the CCA received was from a desperate mother asking the court to require her ex-husband to provide medical insurance coverage for their child, Johnson says. The court could not help the woman, who should have sent her filing to the Office of the Attorney General, she says. Harrington says that having the e-mail filing system in place is a good result. “But it didn’t do Richard any good,” Harrington says. Cochran says the CCA had decided last spring to have Johnson begin putting the court’s unwritten policies into writing. The court had assigned Johnson to draft a written rule that spelled out the court’s execution day procedures, Cochran says. The Richard case caused the court to act more swiftly to approve the rule, she says. Whether the CCA’s unwritten policy — which is now in writing — applied in that instance is uncertain. But under the newly released written procedures, Cochran says, “If the question is, may I submit something past 5, then that would clearly go to the judge to whom the case is assigned.” – Mary Alice Robbins

Land of Opportunity? � Out-of-State Firms They aren’t necessarily household names in Texas yet, but becoming one is a goal for a large crop of out-of-state firms that set up shop in the Lone Star State in 2007. Out-of-state firms come and go in Texas every year. But, spurred by work for existing clients, an apparent willingness of lawyers to move from firm to firm and the lure of a hot energy market, a significant number of firms headquartered outside the Lone Star State opened branch offices in Houston, Dallas or elsewhere in the state this year. “It’s to capitalize on the energy boom, or the transactional boom that’s going on here, where other areas of the country seem to be somewhat declining,” says Susan Pye, owner of Pye Legal Group in Houston. “Any firm that may have an energy client that they can kind of capitalize on” has a good opportunity in Texas, she says. Attracting the out-of-state firms to Texas is “big, international cross-border-type business, not litigation,” says Rob Rowland, of Houston-based recruiting firm Associated Counsel of America. Rowland says the influx is making the Texas market more competitive, even if the new offices are sparsely staffed when they open. “It’s making the pie smaller,” he says. However, Steve Mims, executive director of attorney search for Prescott Legal Search, says BigTex firms haven’t been affected much by new, out-of-state challengers in recent years, unless it’s the bet-the-company finance work done on Wall Street or large mergers or acquisitions that demand a national scope, large teams of lawyers and access to money centers. “V&E, Baker Botts, Fulbright have held their own very well and, in fact, kind of gained in national prominence in certain practice areas,” Mims says. “For the average firm out there, I don’t think the national firms will affect [them] and in fact, it may be to their benefit and drive clients that are more conscious about their rates.” Similarly, Pye notes that billing rates at many out-of-state firms are so high that the branch office lawyers have trouble competing with homegrown firms for local Texas business. Some of the biggest firm deals of the year in Texas don’t involve new branch offices but instead are examples of market consolidation. For instance, in October, Houston- and Dallas-based Locke Liddell & Sapp merged with Chicago-based Lord, Bissell & Brook to form Locke Lord Bissell & Liddell, with roughly 700 lawyers in 11 cities. And on Dec. 17, Hughes & Luce of Dallas announced it would combine with New York’s Kirkpatrick & Lockhart Preston Gates Ellis on Jan. 1, 2008, creating a firm of about 1,539 lawyers in 23 cities. For the most part, big firms expand into Texas in a much smaller way. The out-of-state firms, which may have a network of offices around the world, often move into Texas by opening a tiny office in a sole location in the Lone Star State, with a goal of either building a substantial operation over time or simply creating a smaller office with a niche practice or two. The out-of-state firms may hope to build on work for existing clients in Texas or see opportunity to grab work in Texas from other firms. However, Pye notes that doing work for a Texas client isn’t a guarantee of success in the Texas market. The fledgling Texas competitors need to hire Texas lawyers to grow in size, and homegrown Texas firms are competing for the same lateral hires — either successful groups of lawyers, or prominent partners with $1 million or $2 million of business, she says. Those groups and partners can be pretty choosy about where they work, Pye notes. Rowland agrees. “These firms coming in want somebody to have $2 million in business . . . and that’s a tall order, and they have trouble finding it,” he says. Interestingly, the lure of Texas isn’t simply attracting national firms from the East and West coasts intent on building broad networks of offices around the country or the world. In 2007, firms based in Tulsa, Okla., and Detroit, for instance, moved into the Texas market. Given the short length of time the new branch offices have been in business in Texas, they have not yet grown to the size of some of the old, established, out-of-state firms in Texas, such as Cleveland-based Jones Day, Mayer Brown of Chicago, King & Spalding of Atlanta or New York’s Weil, Gotshal & Manges. It’s too soon to find out if the firms will be successful in Texas. But with at least five out-of-state firms establishing a beachhead here in 2007, presumably BigTex firms are taking notice and may be trying harder to retain their lawyers and clients. Pye says many of the older out-of-state firms have grown slowly in Texas, because the homegrown Texas firms still have connections and contacts to Texas-based companies. Growth can be slow, even for big firms hiring a big name to lead their new Texas offices. Chicago-based Sonnenschein Nath & Rosenthal opened a Dallas branch in early 2007, with Matt Orwig, former U.S. attorney for the Eastern District of Texas, joining in June as the managing partner of that office. Sonnenschein had been eyeing Texas for years to do high-end corporate litigation related to intellectual property, the Employment Retirement Income Security Act, health care and government enforcement actions. Matt Yarbrough, a former partner in the Dallas office of Fish & Richardson, opened the Sonnenschein office in February, but he left the firm in the summer, and since then founded Fort Worth’s Yarbrough Law Group. The Dallas Sonnenschein office currently has three lawyers, including Robert Hanson, an intellectual property lawyer who joined from Fulbright & Jaworski, and David Cowart, an ERISA lawyer who was a former shareholder in Jenkens & Gilchrist. Orwig expects rapid growth during the first quarter of 2008. He says he has been working hard on recruiting since the summer and that work will pay off after the year-end bonus season. He expects the Sonnenschein office in Dallas to end 2008 with 20 to 25 lawyers. “We are talking to groups and individuals, and we have some really exciting prospects, says Orwig. Orwig isn’t sure what prompted so many out-of-state firms to move into Texas in 2007, but he says Sonnenschein had been looking at Texas for a decade. “For us, it was just a geography that we thought was important to the firm. We have a lot of existing clients with business in Texas, so it was client-driven, and we think there’s a tremendous amount of upside in the area.” Orwig also says that there has been a lot of lawyer “churning” in the Dallas market during the year, providing opportunity for firms like his to make lateral hires. He says some lawyers are looking to leave their Texas-based or regional firms, because they have a practice that would benefit from a large network of offices and higher billing rates. Out-of-state firms had some opportunity to pick and choose among a large contingent of lawyers looking for new firm homes when Dallas-based Jenkens, once the fifth-largest firm in the state, closed its doors on March 31. But most of those lawyers took new jobs at existing Texas firms or branch offices. On April 1, 93 lawyers moved to Texas offices of Virginia firm Hunton & Williams. Many of the other Jenkens lawyers still at the firm in the early months of 2007 already had moved on to a variety of large Texas firms. One prominent exception was San Francisco corporate-immigration firm Berry, Appleman & Leiden, which opened offices in Dallas and Houston with former Jenkens lawyers. Sonnenschein isn’t the only out-of-state firm to launch a Texas operation with a high-profile lawyer to lead it. In September, Detroit firm Dykema opened a Dallas office, staffed by a group of seven former Godwin Pappas Ronquillo lawyers, including Darrell Jordan, who had just lost a bid to become mayor of Dallas in May. According to Dykema’s chairman and chief executive officer, Rex Schlaybaugh Jr., Dykema sees opportunity in Texas because of the state’s growing economy, because many of the firm’s clients need representation in Texas, and because the practices of the Godwin Pappas lawyers mesh with strategic practice areas at Dykema, including intellectual property litigation and financial-industry class-action litigation. Also in September, Atlanta-based Alston & Bird acquired the five-lawyer Dallas litigation boutique Crews, Shepherd & McCarty to help launch a Dallas office to initially do commercial litigation, intellectual property litigation, and corporate transactions and compliance work in Texas. Alston & Bird’s managing partner said the move to Dallas was a “natural and logical step” for the firm, because it has Texas corporate clients and a docket of litigation in Texas courts. And Oklahoma firm Conner & Winters moved into Dallas in 2007 by hiring Kevin H. Good, a former Strasburger & Price lawyer who had been on his own for five years, to open the North Texas branch. The firm previously had a one-lawyer office in Houston, but plans call for the firm to rebuild its Houston operation as well as staff up in Dallas. The firm’s marketing director says Dallas is a natural fit for the firm, which also has primary branch offices in Oklahoma City and Fayetteville, Ark. Some firms already in Texas expanded their reach in Texas during 2007. For instance, in January, five lawyers from litigation boutique Edwards, Burns & Krider, including Brady Edwards and Sandra Thourot Krider, joined Morgan, Lewis & Bockius to launch the firm’s Houston office. Morgan, Lewis moved into the Texas market in 2004 with an office in Dallas, which also got a big boost in December, with the addition of six labor and employment law partners from Baker & McKenzie in Dallas. Another example of an out-of-state firm that expanded within Texas in 2007 is San Francisco-based Sedgwick, Detert, Moran & Arnold, which opened a Houston office with the arrival of four lawyers — three from Houston’s Westmoreland Hall and one from Germer Gertz. When the office opened in September, Texas Sedgwick managing partner Neil Rambin of Dallas said the firm decided to open an office in Houston, because the city is one of the nation’s litigation centers. The firm also has an office in Austin. One out-of-state firm decided in 2007 to exit Texas. In December, Jenner & Block, based in Chicago, announced it will close its four-lawyer Dallas outpost in early 2008. The firm’s managing partner, Chicago-based Gregory Gallopoulos, said at the time there had been little growth of the Dallas office since it opened in 2000, and it made sense to have two government contracts lawyers, partner William Stoughton and counsel Kathy Weinberg, to transfer to the firm’s Washington, D.C., office to join others in the practice group. Through a firm spokesman, Gallopoulos declines comment. – Brenda Sapino Jeffreys
Life Lessons � University of Texas School of Law Capital Punishment Clinic Most law students get nothing more than a guided tour when they visit the U.S. Supreme Court. But the 12 students in the University of Texas School of Law Capital Punishment Clinic got much more on their field trips to Washington, D.C.: They helped win relief for four Texas death-row inmates during the high court’s 2006-2007 term. It was an extraordinary string of successes for the clinic that has worked tirelessly for the past 20 years to help practicing lawyers research and brief what are often complex and difficult death penalty habeas corpus cases. “I think it’s unprecedented to have students working on so many cases before the Supreme Court,” says professor Jordan Steiker, co-director of the clinic he helped found in 1987. The Supreme Court only heard 78 cases last year, and the clinic’s cases were four of them. Three of the cases the students worked on were Brewer v. Quarterman, Abdul-Kabir v. Quarterman and Smith v. Texas. All three involved the same punishment issue: Jurors allegedly did not receive proper instructions regarding mitigating evidence during the sentencing phases of death penalty trials regarding the defendants’ intellectual impairments, learning disabilities or troubled family history. By 5-4 votes, the high court reversed the defendants’ death sentences. A fourth case, Panetti v. Texas, resulted in a 5-4 decision blocking the execution of Scott Panetti. Panetti, a diagnosed schizophrenic, represented himself during his 1995 capital murder trial, wore cowboy clothes in front of the jury and tried to call President John F. Kennedy and Jesus Christ as witnesses. After his conviction, Panetti believed he was being put to death to prevent him from preaching the gospel, according to his lawyers. The high court found Panetti understood he was going to be executed, but didn’t understand why. So the court ruled that the 5th U.S. Circuit Court of Appeals’ incompetency standard was too strict and that Panetti didn’t meet the competency standard to be executed as required by the Eighth Amendment. Patrick Higginbotham, a senior judge on the 5th U.S. Circuit Court of Appeals, has long been impressed with the clinic and its quality work. But there’s something more important about the program than its string of wins, he says: training young people to become quality advocates in capital punishment cases. “I think if one wins or doesn’t win at the Supreme Court depends on being on the right issue at the right time,” Higginbotham says. “But the real issue and the problem we face are the quality of the players: the prosecutors, the judges and the defense counsel [in capital punishment cases]. There are mistakes that are made.” The clinic launched in 1987 in collaboration with what was then known as the Texas Resource Center, a nonprofit organization that represents death-row inmates. (The center became the Texas Defender Service in 1995.) Many of the death-row inmates the UT law students assist are Texas Defender Service clients, but they also help lawyers in private practice. Over the past 20 years, about 300 law students have participated in the clinic. Students work at least 10 hours a week under the supervision of attorneys handling death-row cases, says Laura Castro, director of media relations for the law school. Steiker says the clinic is a one-semester course offered every semester. Some students take the clinic in one semester and an “advanced” clinic the next semester, often working on cases that they’ve already encountered. The clinic is a four-credit course, and students in the clinic must also take a substantive course on the constitutional regulation of capital punishment. Students perform tasks that are essential to defending a death penalty case, including visiting clients on death row, interviewing witnesses, conducting field investigations, drafting legal pleadings, and helping attorneys prepare for trials, evidentiary hearings and appellate arguments, Castro says. “This is an area of post-graduate training that is vital, and not many people can offer it,” Higginbotham says. “UT’s got an excellent program.” One of the clinic students, third-year law student John Belanger, plans to continue representing death-row inmates when he leaves UT. But instead of becoming a hardscrabble criminal-defense attorney, Belanger plans to continue working on pro bono cases when he joins the New York office of Skadden, Arps, Slate, Meagher & Flom in September as an associate doing corporate and transactional work. Belanger says he made it clear when he was a summer associate at the firm that he wanted to continue working on death-row habeas corpus appeals. Belanger worked on Panetti’s appeal and performed legal research on the issue of a defendant’s competency to be executed. And, like all students who work in the clinic, Belanger visited death row and met the client whose case he worked on. “Part of my own personal belief is that all people are worthy of respect, and their life is precious,” Belanger says. “And certainly getting to meet Mr. Panetti reinforces that.” “It’s very difficult for me to think about speaking with someone and meeting them and then thinking, �Now you are going to die.’ ” Belanger says. “ Not all students go into the clinic with that sort of mentality.” On April 18, Belanger looked on as Greg Wiercioch, a senior staff attorney with the Texas Defender Service, argued that the justices should spare Panetti’s life. “It was great to see a case getting argued that we worked on,” Belanger says. “The professors were real good about letting us do real hands-on work.” Belanger’s enthusiasm for pro bono death penalty work will be well received at Skadden, says Carol Sprague, the firm’s director of associate relations and attorney recruiting. “We believe in community involvement,” Sprague says. “Our summer associates are encouraged to take pro bono cases from the first day.” The clinic’s participation in four victories at the Supreme Court was a great experience for the students. But appellate accolades are not the clinic’s mission, says Maurie Levin, an adjunct professor who co-teaches the clinic. “It’s not the heart of what we do,” Levin says. “It is about training lawyers. And we hope every now and then, one of them will decide to continue in capital work.” – John Council
Sticking to His Guns � Johnny Sutton Johnny Sutton, the U.S. attorney for the Western District of Texas, has the right stuff for a rising Republican political star. Strawberry-blond, boyish-faced, the prosecutor and former champion college leftfielder has a 20-year professional track record. He served as an assistant district attorney in Harris County in the late 1980s and early 1990s, as criminal justice policy director for then-Texas Gov. George W. Bush from 1995 to 2000, as associate attorney general in the U.S. Department of Justice in 2000, and since 2001, as U.S. attorney. The president refers to Sutton as “a dear friend of mine from Texas.” But Sutton’s oversight of the prosecution of two former U.S. Border Patrol agents has turned him into a pariah among some fellow Republicans. On March 8, 2006, a federal jury in El Paso convicted Ignacio Ramos and Jose Alonso Compean of charges related to their shooting of an alleged drug smuggler and their failure to report the incident. The jury sentenced Ramos to 11 years in federal prison and Compean to 12 years. Since then, several conservative politicians and pundits who advocate improving security along the U.S.-Mexico border have labeled Ramos and Compean as heroes and Sutton as a villain. Sutton’s critics say his office pursued harsh penalties against the law enforcement officers for crimes that were minor infractions, while the government lawyers granted partial immunity to an alleged drug smuggler who testified against the agents. Sutton says the outcry played no role in his decision this year to go after Osvaldo Alderete-Davila, who a federal grand jury indicted on Oct. 17 on four counts related to alleged drug smuggling that occurred after he testified. Alderete-Davila has pleaded not guilty to the charges. Alderete-Davila’s lawyer, El Paso solo Ruben Perez Hernandez, did not return a telephone call seeking comment before presstime on Dec. 20. This year, Sutton countered the criticism of his prosecution of the ex-agents on television news programs and before the Senate Judiciary Committee. On July 17, U.S. Sens. Dianne Feinstein, D-Calif., and John Cornyn, R-Texas, grilled Sutton on the sentences Ramos and Compean received, as well as on 18 U.S.C. �924, the federal gun law Sutton’s office used to convict the former Border Patrol agents. Feinstein, chairwoman of the committee, invited Sutton to appear, which he did voluntarily. But Sutton’s appearance before the committee did little to dissuade some from politicizing the Ramos and Compean case. Cornyn is among several lawmakers who recently have written to Bush asking him — so far unsuccessfully — to commute the sentences of Ramos and Compean. Cornyn and others also have proposed altering 18 U.S.C. �924 so that law enforcement officers are excluded from the law under some circumstances. The statute requires a 10-year mandatory sentence for a defendant convicted of discharging a firearm during a crime of violence. In publicly defending his office’s prosecution of Ramos and Compean, Sutton so far has failed to quiet his critics. But in a year when congressional investigations revealed that politics may have played a role in the firings of eight U.S. attorneys, Sutton has shown that politics has no place in his prosecutorial decisions. Granted, Sutton, whom a YouTube music video pegs as the “White House water boy,” is an unlikely poster child for prosecutorial independence, given that he is a friend of Bush’s and has close ties to former U.S. Attorney General Alberto Gonzales. From 2005 until September 2007, Sutton served as chairman of the Attorney General’s Advisory Committee (AGAC), a group of 16 U.S. attorneys from the field advising the president and Gonzales. Yet regardless of how one feels about Sutton’s prosecution of Ramos and Compean, he tried to make it clear this year that his Republican bona fides did not influence his decision-making process. “U.S. attorneys can’t think about politics. You have to play it straight, even though you are a political appointee. Once you accept the position, politics is out the window. You follow the facts. You base your cases on the facts and the law,” Sutton says. That’s what his assistants did, Sutton says, during a two-and-a-half week trial that ended on March 8, 2006, when the jury convicted Ramos and Compean of charges related to their Feb. 17, 2005, shooting of Alderete-Davila, who was trying to flee to the Mexican side of the Rio Grande River bed near Fabens, southeast of El Paso. At Ramos and Compean’s trial, both sides agreed that the former agents failed to report the shooting to their supervisors. According to testimony and evidence prosecutors presented, the ex-agents attempted to cover up the shooting by collecting the spent bullet casings from the scene. The defendants told the jury they shot at Alderete-Davila, because they believed he had a weapon. But jurors convicted them of, among other charges, discharging a weapon during a crime of violence, tampering with an official proceeding and deprivation of rights under the color of law. Sutton, despite critics’ contentions to the contrary, says he was involved in many of the details of the case, along with his line prosecutors, including negotiations that ultimately led to the granting of partial immunity to Alderete-Davila, and he was aware of his prosecutors’ decision to charge the ex-agents with �924 violations. Since the convictions, Sutton has been criticized in Congress, online and in the press. In the YouTube music video set to the tune of the “Ballad of Davy Crockett” singers croon, “Johnny, Johnny Satan, henchman of the year. Johnny, Johnny Satan, smugglers have no fear.” Sutton is a prosecutor who “decided to go after the good guys and give the bad guy immunity,” U.S. Rep. Dana Rohrbacher, R-Calif., said on the Fox News program “Hannity & Colmes” on July 17. On the same day, Sutton appeared before the Senate Judiciary Committee to testify about the Ramos and Compean case. Sutton said: “The reason all this mess happened is because agents Compean and Ramos shot an unarmed guy and covered it up. There is no one to blame in this country but them. All kinds of evidence pointed that the guy was unarmed, and they knew that, and they hit him. As far as they know he’s bleeding out on the other side. They knew they had a duty to report it.” For their part, Ramos and Compean have appealed their 2006 felony convictions to the 5th U.S. Circuit Court of Appeals, which heard oral arguments on Dec. 3. In their briefs before the 5th Circuit, Ramos and Compean contend that the prosecutors wrongly applied �924. Compean argues in his brief that prosecutors violated his Fifth Amendment due process rights since “the statutory language [in �924] does not convey a sufficiently definite warning” to law enforcement officers in a tense, split-second situation about whether the law applies to them under those circumstances. Robert T. Baskett, a Dallas criminal-defense solo who represents Compean, says his client and Ramos failed to report the incident, because they didn’t know Alderete-Davila had been hit by a bullet, and they wanted to avoid the bureaucratic hassle of reporting a shooting to their superiors. “It is an absolute beating to have to go through an internal investigation. They are adversarial and demeaning,” says Baskett. He believes that rather than standing up for prosecutorial principles, Sutton is backing his subordinates as a matter of loyalty. David Botsford, a criminal-defense solo in Austin who represents Ramos, believes his client’s arguments were “well-received” by 5th Circuit Judges E. Grady Jolly, Patrick E. Higginbotham and Edward C. Prado in December. Although the defense made numerous arguments, Botsford thinks the judges will look closely at the trial court’s decision to restrict the cross-examination of Alderete-Davila by barring questions about his alleged history of drug trafficking, which he says impaired the defense’s presentation to the jury. Botsford does not believe Sutton paid close attention to the case until his office had gotten so far into it that it couldn’t afford the indignity of backing down — a view Sutton disputes. Alderete-Davila agreed to come back to the United States and testify against Ramos and Compean after prosecutors granted him partial immunity. But according to Alderete-Davila’s indictment, he engaged in drug smuggling after he began cooperating with the government. The indictment states that beginning on or about June 1, 2005, through Nov. 30, 2005, Alderete-Davila and a co-defendant conspired to import and to possess with the intent to distribute more than 100 kilograms of marijuana. Also, on Sept. 24, 2005, and again on Oct. 22 and 23, 2005, Alderete-Davila possessed with the intent to distribute more than 100 kilograms of marijuana. On the day of Alderete-Davila’s Nov. 15 arrest, Sutton’s office issued a press release, in which Sutton said, “Just as Alderete’s alleged illegal conduct did not excuse the crimes committed by Compean and Ramos, likewise, their crimes will not excuse his.” But the testimony of Alderete-Davila, Sutton argues, was not necessarily what persuaded the federal jury to convict the former Border Patrol agents on March 8, 2006. Rather, he believes, the testimony of a fellow agent who worked closely with the pair on the day of the shooting was the most damaging. The third agent testified that Compean asked him to pick up any uncollected shell casings. Even though internal investigations are unpleasant for agents after a shooting, Sutton contends, Ramos and Compean could have avoided their convictions if they had immediately reported the shooting and their belief that Alderete-Davila appeared to have a weapon, as Border Patrol regulations require. Despite Alderete-Davila’s indictment, lawmakers, bloggers and commentators continue to push for a reduction in Ramos’ and Compean’s sentences, and Sutton continues to stand his ground. During the Oct. 17 attorney general confirmation hearings, Cornyn reminded then-nominee Michael Mukasey about the two Border Patrol agents’ case, and Mukasey agreed to review it. Cornyn press spokesman John Drogan says the senator has followed up with a letter to Mukasey, asking him to review Cornyn’s proposed changes to �924. Sutton says he recently met with Mukasey, who took over as AG on Nov. 9. Upon greeting him, Sutton says, Mukasey immediately told him that he was aware of Ramos and Compean’s case. AG press spokeswoman Jaclyn Lesch did not return a telephone call seeking comment. Since he assumed his post in October 2001, Sutton says his office has prosecuted some 30,000 defendants, but none of those cases has created an outcry like Ramos’ and Compean’s has. Sutton says he understands why people react strongly and negatively to the sound-bite version of the case. “We don’t prosecute federal agents lightly. People recognize that these are men and women who are putting their lives on the line for not very much money. It is very rare that they commit crimes,” says Sutton. He also acknowledges that the ex-agents’ sentences, with the mandatory 10 years triggered by �924, may appear harsh to those who believe Ramos and Compean were prosecuted merely for shooting at a fleeing drug dealer. “But they did a lot more than that,” says Sutton. “They shot an unarmed man, and they hid and destroyed the evidence.” Of his critics, Sutton says, “I don’t think anyone enjoys becoming a cause on the Web, having your family threatened on blogs, but that comes with the territory. The question is how to make sure the truth is coming out during the pendency of these cases with the 24-hour news cycle? How do you get accurate information to the public? You need a strong voice and a pretty big microphone. I don’t like to comment on pending cases. But that’s what I had to do.” Notes Sutton, “I’ve got very thick skin. I came out of the courtrooms of Harris County. I’m used to big, bloody fights.” – Miriam Rozen

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