San Antonio Lawyer, March/April 2021

Official Publication of the San Antonio Bar Association

March–April 2021

IN MEMORIAM

2020

William Steele Sessions

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IN MEMORIAM 2020

6

Gordon Dion Bailey Damon Ball Richard T. Brady Lucien Campbell Charles Alan Ferguson Timothy Tynan “Ty” Griesenbeck, Jr. Peter York Henry Warner Lamoine Holland Caitlin Burns Howell LeRoy Morgan Jahn Bryan Louis Kost Edgar Lawrence Leissner John Robinson “Jack” Locke, Jr. Bruce McKay Miller Richard Brennan Moore Sarah Soret Nickodam Hon. Ray Jesse Olivarri, Jr. Marion A. “Al” Olson, Jr. Debra Lynn Parker Jack Minyard Partain, Jr. John McPherson Pinckney, III William Steele Sessions Bruce Kirk Spindler Cecil L. “Don” Strong James Mott Summers Arthur C. Troilo, Jr. Robert W. Wachsmuth

contents ON THE COVER 6 In Memoriam 2020

FEATURES 12 Wills of Famous People

By Harry L. Munsinger, J.D., Ph.D.

23 Charles Manson Fifty Years Later Part II: The Investigation

By Mark J. Phillips and Aryn Z. Phillips

DEPARTMENTS

BAR BUSINESS

5 Feedback

18 Reflections on MABA-SA and 2020

27 Fourth Court Update

By Chief Justice Rebeca C. Martinez

28 Federal Court Update

By Ted Santos

21 The San Antonio Bar Foundation Welcomes the Elected Fellows Class of 2021

By SABA Staff

By Soledad Valenciano, Melanie Fry, and Charles Carter

March–April 2021

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San Antonio Lawyer 3

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2020

Gordon Dion Bailey died in July at the age of 81. The California native joined the Air Force following graduation from Los Angeles Valley Junior College. Bailey was based in Thailand during the Vietnam War and later served in the war operations division of the Strategic Air Command. He completed his undergraduate studies while in the military and went to law school following his 1980 retirement from the military. Upon graduation from St. Mary’s University School of Law in 1983, Bailey began his twenty-year career as a criminal defense attorney.

Damon Ball died in October at the age of 89. Born and raised in Mississippi, Ball was a graduate of the University of Southern Mississippi. Upon graduation, he worked with an insurance adjusting firm and, in 1958, he moved to San Antonio to work for USAA as a claims examiner. He earned his law

degree in night law school at St. Mary’s University and joined the law firm of Groce & Hebdon (later Groce, Locke & Hebdon) in 1963. Ball and nine partners from that firm formed Ball & Weed, P.C. in 1991. Ball was an exceptional trial attorney. He was a longtime supporter of, and pro bono legal counsel for, Medina Children’s Home.

Richard T. Brady died in November at the age of 90.

Brady grew up on his family’s ranch in Carrizo Springs. He earned his undergraduate degree from Texas Agricultural and Mechanical College and began his career in the energy industry as a landman with Lone Star Producing Company. He attended night law school at St. Mary’s University and, upon graduation, joined Cox, Smith, Smith, Hale & Guenther Incorporated, later Cox Smith Matthews. He retired from practice in 2010.

Brady was a past Chair of the Oil, Gas and Energy Resources Section of the Texas Bar, and he was a member of its Council from 1977 through 1986.

Lucien Campbell died in June at the age of 77. Campbell was born in Paris, Texas. He grew up in Dallas and San Antonio and graduated from Alamo Heights High School. He received his law degree from the University of Texas in 1967. He was an assistant criminal District Attorney in Bexar County for several years prior to being selected in 1975 as the first Federal Public Defender for the Western District of Texas. He held that position for thirty-two years until his retirement in 2007.

Charles Alan Ferguson died in October. Ferguson was born in Fulton, Missouri. He doublemajored in English and French and earned his law degree from Southern Methodist University.

Following graduation in 1965, Ferguson joined the San Antonio law firm of McGown, McClanahan and Hamner. Several years later, he became Assistant General

DAMON BALL Damon Ball was a true Southern gentleman and a gracious host, who possessed a quick wit and a sense of humor. Damon was also a formidable force. He was prevented from serving his country due to limitations with his eyesight, but he strongly supported our military men and women. Damon was a man of great conviction and integrity. Adversaries rarely felt indifferent to, or about, Damon, but no one could deny that he was honest, well-prepared, thorough, and fiercely loyal to his team, his clients, his family, his church, and his profession. Many predicted that Damon would never really “retire” and that he would always hang around and practice law in some capacity. To the contrary, Damon did retire, and he attacked retirement with the same energy with which he

6 San Antonio Lawyer | sabar.org

practiced law. One was able to see a different side of Damon in those years. He spent his time with those who meant the most to him—his children, grandchildren, friends and, most important, the one person who harnessed his energy—Sally B. Damon and Sally travelled extensively in retirement and created many treasured memories in their sixtyone years together. Damon taught many the value of hard work, integrity, and loyalty. He will be greatly missed.

J.K. Leonard, Naman Howell Smith & Lee, PLLC

LUCIEN B. CAMPBELL Lucien Benton Campbell was a nationally respected criminal defense attorney. A former prosecutor, Lucien was named the first Federal Public Defender for the Western District of Texas in 1975. When asked why he left the law enforcement side of the bar, Lucien proudly answered that he was still in law enforcement—he worked to enforce the most important law, the United States Constitution. Lucien led his office for thirty-two years, teaching his assistants by his own fine example. He was meticulously prepared for every case, known for his integrity, and admired for his broad knowledge of the law. Beloved and respected by his assistants and support staff, Lucien was affectionately known as “Jefe,” the chief of his office clan. Devoted to the defense of the indigent and to providing the best representation possible, Lucien guided the expansion of his office from three attorneys in San Antonio, to forty-six attorneys working in four cities. Under Lucien’s leadership, the Defender’s office argued and won three cases before the United States Supreme Court, an enviable feat in any lawyer’s book.

But Lucien was not just a lawyer.

He was a true Renaissance man. He had a private pilot’s license in his early days as Defender. He spoke fluent Spanish and French. He was well-traveled and well-read; had an encyclopedic knowledge of wine and fine food; appreciated opera, jazz, classical music, and a good single-malt scotch; and loved a good bridge game.

Carolyn Fuentes

TIMOTHY TYNAN “TY” GRIESENBECK JR. Ty practiced law for over forty years, combining San Antonio and his service in the JAG Corps, before being taken by the disease he had raised so much money to defeat—leukemia. Ty was a trial lawyer, with dozens of civil trials to his credit and many in the criminal courts of the Army. He served as President of the San Antonio Chapter of the American Board of Trial Advocates and then as Delegate to the national organization. He also was a Director of the Texas Association of Defense Counsel.

An immaculate dresser with a wonderful sense of humor, he appeared for any hearing, deposition or meeting with a smile and kind words; though he could and did get serious if it fit the situation.

When faced with a lack of civility, Ty

Counsel at GPM Life Insurance Company.

Ferguson worked at GPM Life for more than fifty years, ultimately becoming Senior Vice President and Senior Corporate Counsel.

Timothy Tynan “Ty” Griesenbeck, Jr. died in March at the age of 68. After his graduation from Antonian High School, Griesenbeck attended Texas A&M University, where he was a member of the Corps of Cadets and the Ross Volunteers. He received his law degree from St. Mary’s University and was Assistant Editor of the Law Review. Following service in the Army Judge Advocate General’s Corps, Griesenbeck joined the only law firm for which he would work—now named Plunkett, Griesenbeck and Mimari, Inc. Peter York Henry died in July at the age of 69. Henry received his undergraduate degree from Ohio University and his law degree from St. Mary’s University. Henry was a sole practitioner, concentrating on personal injury and family law.

would not respond in kind, but remained a true professional and a gentleman. He was a man with many friends and few enemies.

He devoted countless hours to the postconviction habeas work for a capital murder defendant and a jailed civil defendant in federal court. He served as Chair of the Board at the Witte Museum during a major fundraising campaign and served with his fellow Cavaliers in their efforts.

Some choose to take their entire family to Disney World. Ty chose to take each grandchild separately, likely thinking it would be a better experience for them to have the one on one. It was part of being the consummate family man.

Lewin Plunkett

Warner Lamoine Holland died in December at the age of 87. Holland, a sixth generation Texan, was born in San Antonio. He played varsity football at Edison High School and attended Rice University on a football scholarship. In his senior year, he signed to play professional football with the Detroit Lions, but the Army drafted him and sent him to Germany instead. He was a 1963 graduate of St. Mary’s University School of Law. Holland practiced for fifty years and served two terms in the Texas Legislature from 1967-71.

Caitlin Burns Howell died in November at the age of 36. A San Antonio native, she attended St. Mary’s Hall and Keystone School and graduated from Trinity University with honors in 2005. She received her law degree from American University Washington College of Law. Howell practiced law in San Antonio with her husband, Adam Sabrin.

March–April 2021

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San Antonio Lawyer 7

LeROY MORGAN JAHN LeRoy Morgan Jahn was an Assistant United States Attorney for the Western District of Texas from 197881, creating and leading the new criminal appellate section. Jahn was detailed to investigation, prosecution, and appeals related to the murder of United States District Judge John H. Wood and the attempted murder of Assistant United States Attorney James Kerr. She was chief of the appellate section of the Western District of Texas from 1986-92; was special assistant to the director of the FBI in Washington, D.C., from 1992-93; was detailed to the investigation, prosecution, and appeals related to the death of four law enforcement agents at the Branch Davidian Compound in Waco; was part of the Whitewater investigation; and worked in the United States Attorney’s Office in San Antonio from 1998 to 2010 with her husband, Assistant United States Attorney W. Ray Jahn. She was recognized by Federally Employed Women for being the first female Assistant United States Attorney in the Western District of Texas. Jahn headed an internship program at St. Mary’s University that allowed seniors to work directly on appeals and trials in the United States Attorney’s Office, leading to clerkships for many. She coached the first moot court team from St. Mary’s to win the State Bar of Texas Moot Court Competition.

Jahn was known for her cooking skills and willingness to organize and direct social engagements for work and for her friends outside of the office.

W. Ray Jahn

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LeRoy Morgan Jahn died in March at the age of 76. Jahn was born in an American oil camp in Venezuela. She attended American School in the camp and, in the 9th grade, was sent to boarding school at Incarnate Word in San Antonio.

Jahn received both her undergraduate and law degrees from the University of Texas. She began her legal career with the Department of Labor in Washington, specializing in Equal Pay for Women actions. She married Ray Jahn in 1969 and returned to San Antonio in 1972.

She helped establish the Western District appellate section for the United States Attorney’s office and was an Assistant U.S. Attorney for thirty-four years. Jahn was an accomplished trial attorney and tried many cases with her husband, Ray Jahn.

Bryan Louis Kost died in April at the age of 62. Born in San Antonio, Kost graduated from Alamo Heights High School. He earned his undergraduate degree from the University of Texas and his law degree from St. Mary’s University. Kost practiced in the area of federal procurement, claims litigation, and contract administration.

In 2017 Kost joined the Dykema law firm as a senior attorney. He was a past President of the William S. Sessions Inn of Court and a recipient of the Inn’s Goldstein Award of Excellence.

Edgar Lawrence Leissner died in October at the age of 96, a few months after the death of his wife. The San Antonio native received undergraduate degrees in chemistry and chemical engineering from Texas A&I (Kingsville). His high school sweetheart and then wife, Harriett Belle Upshaw, worked as a secretary at the college to help pay for his education. Leissner worked as a petroleum engineer before obtaining his law degree from the University of Denver in 1968.

He worked in the legal department of Valero Energy Corporation.

John Robinson “Jack” Locke, Jr. died in September at the age of 96. Locke graduated from Texas Military Institute in 1942 and attended Woodberry Forest Preparatory School (Virginia) before attending the University the Texas. In 1943, Locke volunteered for service in the Army Air Force

and was trained in basic aeronautics, in preparation for transfer to the Pacific Theatre.

The war ended before Locke was assigned. He returned to Austin and earned both his undergraduate and law degrees at the University of Texas. In 1950, Locke joined his father’s firm, Kelso, Locke & King (ultimately, Groce, Locke & Hebdon). Locke served on the Board of Directors of Cullen Frost, in addition to being legal counsel to Frost Bank. Locke was active in many community service and social organizations, including the Texas Cavaliers and the Conopus Club.

Bruce McKay Miller died in November 2019 at the age of 88. Miller was born in Brady, Texas. He attended Texas A&M College on an academic scholarship and graduated in 1952 with a degree in Agricultural Economics. He was commissioned as a Second Lieutenant in the Army upon graduation and served for twenty years, retiring in 1972. Miller received his law degree from St. Mary’s University in 1973 and entered private practice. He was Board Certified in Personal Injury Law and practiced in both El Paso and San Antonio. In 1978, Miller was ordained as an Elder in the Presbyterian Church and was active in the Walk to Emmaus community in South Texas.

Richard Brennan Moore died in July at the age of 86. Moore was born in Watertown, South Dakota. He was a graduate of Alamo Heights High School.

He graduated from Vanderbilt University (1956) and received his law degree from the University of Texas (1960). He entered private practice with the San Antonio firm that became Gresham, Davis, Gregory, Worthy and Moore. Moore was Board Certified in both Commercial Real Estate and Farm and Ranch Real Estate Law. He served as president of the United Way of San Antonio and Bexar County and on the boards of several other community service organizations. He was a member of the German Club, the Order of the Alamo, and the Texas Cavaliers.

HONORABLE RAY J. OLIVARRI Ray was an extraordinary human being—an incredible husband, father, grandfather, friend, and coach.

Though perhaps not the best fisherman, he always enjoyed posing for photographs with fish caught by others. Ray had an infectious sense of humor and could make anyone laugh. He would joke until the day he passed. Ray never let on how serious his condition was because he never wanted anyone to worry. He once told me he was going to the grocery store when, in fact, he was going to the hospital. He would gaze at the birds on a power line and contemplate why each one decided to face a certain way. When my own wife passed away with cancer a few years ago, he showed more concern about my loss than even about his own health. Those of us who were fortunate enough to know Ray are much better for having had him as a friend, colleague, and mentor. Ray devoted most of his adult life to serving the San Antonio area community, and he loved every minute of it. His legacy is one of positivity, responsibility, and fellowship. He will be missed sorely.

Judge Ron Rangel

Sarah Soret Nickodam died in September at the age of 31.

Nickodam graduated from Austin College (2011) and received her law degree from St. Mary’s University (2015). She clerked for the Honorable Craig Gargotta, United States Bankruptcy Judge, for two years. Recently, she had joined the San Antonio law firm of Brown and Ortiz and had embarked on a new path in the law.

Her tragic death occurred one day following the birth, to Sarah and Chad Nickodam, of their son Eric Wesley Nickodam.

Hon. Ray Jesse Olivarri, Jr. died in January, at the age of 64, following a long illness.

Olivarri, a San Antonio native, attended Burbank High School. He graduated from Southwest Texas State University and the Thurgood Marshall School of Law at Texas Southern University. His was a life of public service: Zoning Commissioner, Adult Probation Officer, and jurist. He served as Judge of Bexar County Court at Law No. 6, the 399th Judicial District Court, and the 144th Judicial District Court.

Marion A. “Al” Olson, Jr. died in June at the age of 73. Olson was born in San Antonio and was Student Body President in his senior year at Alamo Heights High School. He earned a degree in Business Administration from the University of Texas.

Following military service, he enrolled at St. Mary’s University School of Law, from which he graduated at the top of his class. Olson entered private practice and was soon appointed Trustee to oversee the administration of Chapter 13 bankruptcy cases and plans in San Antonio—a position which he held for thirtythree years. Olson received national recognition for his dedication and success in creating a Chapter 13 program. He was equally dedicated to the community. He served as King Antonio LXIII and helped create what is now known as the Texas Cavaliers Charitable Foundation.

Olson was also President of the Metropolitan YMCA and President of the German Club, and for many years, he coordinated the production of the Fiesta Coronation.

Debra Lynn Parker died in September at the age of 66.

Parker was born in Lawton, Oklahoma, and raised in Tyler, Texas. She received her undergraduate degree from the University of Texas. In her first career, Parker was a teacher for the hearing impaired at the Texas School for the Deaf. She earned her law degree at St. Mary’s University, from which she graduated in 1995. In her second career as a sole practitioner, Parker focused on criminal, juvenile, and family law matters.

Jack Minyard Partain, Jr. died in June of this year at the age of 71. Partain was born in San Antonio and graduated from Alamo Heights High School. He was a graduate of the University of Texas and received his law degree from St. Mary’s University. Partain specialized in commercial bankruptcy law. He practiced for more than thirty years, most of which were as a partner at Fulbright & Jaworski LLP (which later merged into Norton Rose Fulbright).

JACK MINYARD PARTAIN, JR. In the summer of 1965, sixteen-yearold golfer Jack Partain shot a sixtythree at Oak Hills Country Club, setting the course record, and beating his previous best of sixty-five when he was fifteen. He went on to marry his high school sweetheart and together they raised two daughters.

I could talk about Jack’s lawyering skills, which were substantial, but I think that Jack, humble as he was, would have wanted me to change the subject quickly. It was the same thing when his health issues came up; he would divert the conversation to “well, how’s the family?” or something like that. Jack was not one to bask in praise or wallow in sympathy. He was nicknamed “Gentleman Jack” for good reason; that was his reputation. What I will say is this: Jack Partain, simply by his example of professionalism, civility, honesty, decency, compassion, kindness, and love of family, made all those around him better. We need more people like that.

Steve A. Peirce

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San Antonio Lawyer 9

HONORABLE WILLIAM S. SESSIONS William S. “Bill” Sessions lived a life dedicated to service to his country and to others, with a deep respect for the United States Constitution and the rule of law. Meeting each day with energy and optimism, he had a kind word for all he met. He possessed a quick wit, a self-deprecating sense of humor, and courage in the face of adversity. Overcoming polio paralysis as a teenager, his enlistment in the Air Force during the Korean War led to his flying B-25s as a radar intercept instructor, and to a deep love of Texas skies and mountains. His willingness to tackle even the smallest of jobs and his knack for problem-solving were trademarks, along with his love of a good hand of cards and a tune to whistle.

He perennially referred to himself as a “clod,” yet he surrounded himself with art, music (especially jazz), theater, and poetry simply for “the beauty.” It was beauty that sent him trekking in the Western mountains, and finally led him to Mount Everest, twice. Judge Sessions: dedicated to family and education, mentor to many, admirer of lawyers and the bar, and of those who dare to do their very best with a belief in personal responsibility and respect for all. A great father, citizen, lawyer, judge, and human being.

Mark Sessions

John McPherson Pinckney, III died in December at the age of 80. He attended the University of Texas and was a member of the 1962 Longhorns Baseball Team that finished third in the College World Series. He was a Marine Corps infantry officer from 1963-67. Following military service, Pinckney received his law degree from 10 San Antonio Lawyer | sabar.org

American University Washington College of Law. Prior to private practice, Pinckney served as Assistant United States Attorney from 1973-77 and was first Assistant United States Attorney for the Western District from 197577. Pinckney was Board Certified in both Criminal and Civil Trial Law and tried more than 150 jury cases to a verdict.

William Steele Sessions died in June at the age of 90.

Sessions was born in Fort Smith, Arkansas. He enrolled in the University of Kansas in 1948. However, with the

Korean conflict escalating, he enlisted in the Air Force and remained on active duty at Connelly Air Force Base in Waco until 1955.

He completed his undergraduate studies and attended law school at Baylor University.

Upon graduation from law school in 1958, he entered private practice in Waco. He became active in the community, the local and State Bar, and Republican politics. In 1969, he was appointed Chief of the Government Operations Section, Criminal Division of the Department of Justice and went to Washington. In 1971, he was appointed United States Attorney for the Western District of Texas. In 1974, President Ford appointed

BRUCE K. SPINDLER Bruce Spindler was a consummate litigator. He loved trying cases and he was really good at it. It was an incredible boon to learn from him as a young lawyer and to benefit from the exquisite training he had received from Luke Soules, a legend in our community. I’m not sure if that training included a master class in profanity, but Bruce’s blue language was inseparable from his personality. As he grew more excited about an issue, a piece of evidence, an obscure but helpful case, the frequency and creativity of his swearing would crescendo. While the employment lawyers among us may cringe at this depiction, Bruce’s facility with four letter words will always be one of my favorite things about him.

In the later part of his career, Bruce found pleasure and success in conducting alternative dispute resolution. Perhaps this seems like an odd fit for someone who so enjoyed the knock-down, drag-out fights of the courtroom. However, his ability to quickly grasp issues and his emotional intelligence to understand the “why” behind each party’s fight made him an effective deal broker and allowed him to continue exercising his considerable legal skills.

Although Bruce’s legal career had to be modified for health reasons, he could

never give up his love of the outdoors.

He devoted much time, money, and additional cuss words to clearing cedar, planting trees, and eradicating hogs at his beloved ranch, Puerco Escondido. He generously welcomed friends to share in the peculiar pleasure of civilizing the Texas Hill Country and spent many pleasant hours on group texts from different deer blinds and around the fire pit after a day well-spent.

While he loved trying cases, Bruce loved nothing more than his family—his wife, Laura Greenberg, and their daughters, Dava Greenberg-Spindler and Grace Greenberg-Spindler. After clerking at the 5th Court of Appeals in Dallas, Bruce took time away from his burgeoning legal career to be the primary parent while Laura launched her own successful legal career—time that he remembered fondly even many years later. Bruce was incredibly proud of Laura’s tireless work as a Federal Public Defender and equally proud when both their daughters also decided to pursue the law.

Bruce Spindler was one-of-a-kind, and his loss will be keenly felt by those who had the pleasure of knowing him.

Natalie Wilson

Sessions to the Western District bench, El Paso Division. Upon the untimely death of the Hon. John H. Wood, Sessions returned to San Antonio. Sessions remained on the bench until 1987, when President Reagan appointed him to be the Director of the FBI. He left government service in 1993, ultimately returned to private practice, and retired in 2017.

Bruce Kirk Spindler died in October at the age of 61.

Spindler was born in Akron, Ohio, but, in his youth, he lived in Mexico City, Pottstown (Pennsylvania), and Austin, among other places.

He attended the University of Texas and received his law degree from Texas Tech University in 1988. Following a clerkship with Justice Craig Enoch (5th Court of Appeals), he moved to San Antonio and joined the Soules & Wallace law firm, which later merged into Langley & Banack, Inc. Cecil L. “Don” Strong died in August. Strong was born in Dublin, Texas. He attended East Texas State University (now known as Texas A&M University—Commerce), where he lettered in track.

Strong enrolled in the ROTC program and served in the Air Force for several years after graduation. He entered the insurance industry following military service. While working for Travelers Insurance, Strong attended St. Mary’s University School of Law and received his degree in 1971. He worked as a claims attorney until 1992, when he joined the Austin law firm of Flahive, Ogden and Latson.

James Mott Summers died in February at the age of 68.

Summers was born in Houston.

He graduated from Southern Methodist University (1973) and received his law degree from the University of Texas (1976). He practiced his entire legal career as a real estate and oil and gas attorney at Norton Rose Fulbright. Summers was perennially recognized as one of the best attorneys in his field, and he was named an Outstanding Lawyer in 2010 by the San Antonio Business Journal.

ARTHUR C. TROILO, JR. Arthur C. Troilo, Jr.—a beloved brother, husband, father, grandfather, great-grandfather, valedictorian, soldier, esteemed counselor, mentor, citizen-leader, and steward of good government in San Antonio and Bexar County, died October 8, 2020. Troilo received his law degree from the University of Texas School of Law and was a member of the Texas Bar for over sixty-four years. He served as First Assistant City Attorney for the City of San Antonio from 1960-62. Then, he was a founder of the law firm Sawtelle, Goode, Troilo & Leighton, which later became the firm of Davidson & Troilo, which is now known as Davidson, Troilo, Ream & Garza.

Troilo served as outside general counsel for the Port Authority of San Antonio and was active in civic programs and politics. He was a pillar and guiding light for his law firm, clients, and public officials, and he could always be relied on to bring sage counsel to any situation.

His measured words of advice were worth the listen. Mr. Troilo was a gentleman of noble character, a leader who led by example, and an icon of the San Antonio legal community. He was preceded in death by the love of his life and wife of sixty-seven years Nancy Sullivan Troilo and his son Peter Troilo. He is survived by his sister, Carmen Troilo Wasson; his children, attorney Arthur Troilo III, Valerie Troilo Perrenot, and Paul Troilo; his six grandchildren; and his two greatgrandchildren.

Arthur C. Troilo, Jr. died in October at the age of 89. The San Antonio native was both president and valedictorian of the 1948 graduating class of Central Catholic High School.

He held a double major in English and Spanish from St. Mary’s University (1952). He was commissioned as a Second Lieutenant in the Army and served in Germany from 1953-54. Troilo received his law degree from the University of Texas in 1957 and joined the San Antonio City Attorney’s Office. In 1962 he joined the law firm of Sawtelle, Hardy, Davis & Goode, and was one of the founders of Sawtelle, Goode, Troilo & Leighton. He served as managing partner and senior board chairman of Davidson, Troilo, Ream & Garza, and was Senior Counsel with the firm at the time of his death. Troilo’s devotion to good government and public service in San Antonio and its environs was unparalleled.

Robert W. Wachsmuth died in December at the age of 78.

Wachsmuth was born in Crowell, Texas. He attended the University of Texas— receiving his undergraduate degree in 1965 and his law degree in 1966. He was a Captain in the Marine Corps and served as a JAG officer during the Vietnam War. Wachsmuth was a fierce and accomplished litigator. He was a longtime active member of St. Thomas Episcopal Church and supported many civic and environmental causes, including Wounded Warriors, the Sigma Nu Foundation, and the Texas Coastal Conservation Society.

Arthur Troilo III

March–April 2021

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San Antonio Lawyer 11

Wills of

Famous People

By Harry L. Munsinger, J.D., Ph.D.

Y

ou can learn a lot about a person by reading his or her last will and testament. Many famous people left a written will, and some of those wills shaped the course of history. Often, those who ruled great empires used their wills as a final act of governance. All American Presidents left written wills, except Abraham Lincoln—who was busy managing the Civil War and was assassinated six days after it ended.

Alexander the Great.1 Alexander died in June 323 B.C.E. No copies of his original will have survived, but David Grant, a London-based expert, believes the last chapter of an ancient manuscript known as the Alexander Romance contains details of Alexander’s last will. Grant alleges that Alexander’s true last will named his sons Alexander IV and Heracles as his successors, but Alexander’s generals suppressed the original will and issued a fake one stating that the ruler of Alexander’s lands would be “the strongest of them.” Unfortunately, this strategy produced a bloody civil war and broke up Alexander’s empire into several smaller hostile camps. We will never know what would have happened if his last will had been followed and the civil wars had not occurred.

Julius Caesar.2 As with Alexander the Great, a copy of Julius Caesar’s will has not survived, but we can infer the basic terms of his will from records of Marc Antony reading it to the people of Rome. Caesar left his gardens to the city of Rome for a park and left “a large amount of money” (seventy-five drachmas, worth about $5,500 today) to every inhabitant of Rome. In his will, Caesar adopted Octavian as heir to his title and residual estate. Ironically, Decimus Brutus—one of Caesar’s murderers— was named as an alternate adopted son in Caesar’s will if Octavian did not survive Caesar. By adopting Octavian, Caesar named him successor to the imperial throne of Rome and left Octavian money to claim it. Octavian, however, had to defend his claim to be the first Emperor of Rome by winning a civil war against Marc Antony and Cleopatra.

Henry VIII.3 King Henry also used his will to ensure the succession to his throne. He signed his last will on December 30, 1546, transferring royal authority to his son Prince Edward at Henry’s death. Henry repented and resolved never to return to his old ways, bequeathed his soul to God, and directed that his body be laid in the choir of the college in Windsor, 12 San Antonio Lawyer | sabar.org

midway between the stalls and the high alter with the bones of his third wife, Queen Jane (Edward’s mother). Henry asked that his executors cause a service for the dead to be celebrated at a suitable place and convey his body to be buried according to his instructions. He gave land to St. George’s College so that priests would say mass at the aforementioned altar.

More specifically, Henry VIII’s will stated that the English Crown should go to Prince Edward and the heirs of his body. In default, to Henry’s children by his present wife Queen Catherine (Parr), or any future wife. In default, to his daughter Mary (by Henry’s first wife, Catherine of Aragon) and the heirs of her body, upon condition that she should not marry without the written and sealed consent of a majority of the surviving members of the Privy Council. In default, to his daughter Elizabeth (by Henry’s second wife, Anne Boleyn) upon the same condition. Henry directed the Privy Council and his executors to take all actions by a majority of them, rather than individually. Finally, he directed that all his legal debts should be paid, although he knew of none.

Henry gave his son Prince Edward the crowns of England and Ireland, the title of France, and all his plate, household property, artillery, ordinance, ships, money, and jewels. He charged his son to be ruled by the Privy Council until he was eighteen. Henry gave Mary and Elizabeth 10,000 pounds each and instructed his executors to give them more at their discretion. Henry directed that Mary and Elizabeth should each receive 3,000 pounds annually for living expenses, and he made a number of small bequeaths to his councilors and servants.

Napoleon Bonaparte.4 Several centuries later, Napoleon Bonaparte drafted a will that also emphasized the political legacy of the testator.

Napoleon wrote his last will and testament on April 15, 1821, in his own hand. He added five codicils to his will, and he also attached several lists to the will. Napoleon stated that he died in the Apostolical Roman religion and decreed that his ashes should be scattered on the banks of the Seine. He asked his wife to watch over his son and asked his son to follow the motto “Everything for the French People.” He alleged that he was being assassinated by the English oligarchy.

Napoleon gave his tangible personal property to his son Napoleon Francois Joseph Charles Bonaparte and gave two million francs to

Count Montholon, one of his generals and a devoted supporter, as each of the three pages of his will in his own hand. Shakespeare left most reward for Montholon’s loyalty. In addition, Napoleon directed that any of his property to his two daughters, Susanne Hall and Judith Quiney. funds remaining in a specific Paris bank account be distributed among He also gifted money to his sister Joan Hart and her three sons, and plate the French soldiers wounded at the battle of Waterloo and among the to his granddaughter Elizabeth Hall. Shakespeare bequeathed a large officers and soldiers of the battalion on the Isle of Elba. He stipulated silver bowl to his daughter Judith, a sword to Thomas Combe, and his that if these individuals had already died, then the gifts should go to second-best bed to his wife Anne Hathaway. Historians have noted the their widows and orphans. gift of his second-best bed to Anne and speculate that the bequest might Napoleon estimated his residual estate would be worth about two indicate an estrangement between them. Anne is mentioned nowhere hundred million francs at his death. He gave half these funds to the else in his will, so their marital relationship may have been difficult. surviving officers and soldiers of the French army who fought for the Shakespeare’s three signatures are different—perhaps because he glory of France from 1792 to 1815. This money was to be distributed in was ill when he signed the will and was in an awkward position to a manner proportional to the officers’ and soldiers’ service in the army execute a document from bed. His will was attested by Francis Collins, during that interval. Napoleon donated the other half of his residual Shakespeare’s attorney, and four friends. Shakespeare named his daughter estate to the various districts of France.

Susanne Hall and her husband John Hall as executors of his estate. His Queen Victoria.5 In contrast to male heads of state, Queen Victoria died with the succession assured, and her will is distinctive for its focus on providing for her large family rather than The Association of Attorney-Mediators on political considerations. Wills that did San Antonio Chapter not directly affect international politics are nonetheless interesting for the glimpses they Experienced, having conducted more than 25,000 mediations since 1989 with provide into the life of the testator. more than 850 years’ experience practicing law Queen Victoria drafted her last will and Committed to the mediation process and devoted to the ethical practice of law testament at Balmoral, her private residence in Scotland. The original document is preserved Covered by the A-A-M group arbitrators and mediators professional liability in Windsor Castle, England. Victoria left insurance policy written instructions to her staff concerning Areas of Practice personal objects she wanted included in her Appellate - Bankruptcy - Business/Commercial - Civil Rights - Condemnation coffin. For instance, she asked to be buried Construction - Consumer - Education - Employment & Labor - Entertainment - Family with a cast of her husband’s hand, one of Farm & Ranch - Health Care - Insurance - Intellectual Property - International - Medical his cloaks, and one of his handkerchiefs.

Oil & Gas - Personal Injury - Professional Liability - Real Estate - Securities - Taxation Additionally, she directed that several of her Title Insurance - Wills, Trusts & Estates own lockets and bracelets, wedding rings, and For more information, contact the local San Antonio Chapter. a photograph of her private servant be placed www.attorney-mediators.org/SanAntonioChapter in the coffin. Finally, she asked her servants Gary Javore - gary@jcjclaw.com to include a sprig of Balmoral heather in her Recommended by Judges and Attorneys coffin and ordered that a layer of charcoal be placed under her body.

Wade Shelton John Boyce Andrew Koch Queen Victoria left £140,000 each to her 210.349.0515 210.736.2224 210.598.0714 wshelton@shelton-valadez.com jkbiii@boyceadr.com andrew@aklandm.com children Prince Albert, Princess Christian (born Princess Helena), Princess Louise, and Princess Leslie Byrd J.K. Leonard Thomas Smith 210.229.3460 210.227.7565 Beatrice. These bequests would be worth 210.731.6358 leslie.byrd@bracewell.com smith@tjsmithlaw.com jkleonard@namanhowell.com around $24 million each today. The Duchess Allan DuBois John Specia of Albany (married to Victoria’s youngest son) Daniel Kustoff 210.227.3106 210.734.7092 210.614.9444 and several of Victoria’s many grandchildren akd@akduboislaw.com jspecia@pg-law.com dkustoff@salegal.com were also given substantial bequests. Queen Aric J. Garza Phylis Speedlin James Patterson Victoria’s oldest son and successor to the throne 210.225.2961 210.554.5594 210.828.2058 of England, King Edward VII, inherited the aric@sabusinessattorney.com pspeedlin@dykema.com jamie@braychappell.com bulk of her considerable fortune, including Charles Hanor Lisa Tatum Diego Pena Balmoral and Osborne, her residence on the 210.829.2002 210.249.2981 817.575.9854 chanor@hanor.com Isle of Wight. The Boston Globe estimated that ltatum@tatum-law.com diego@thepenalawgroup.com her total estate was $100 million when she Danielle Hargrove William Towns Don Philbin 210.313.8811 died.

210.819.7453 210.212.7100 dlh@hargroveadr.com bill.towns@townsadr.com William Shakespeare.6 Shakespeare’s last will don.philbin@adrtoolbox.com Gary Javore James Upton and testament, drafted on March 25, 1616, Edward Pina 210.733.6235 361.884.0616 contains important information about his life, 210.614.6400 gjavore@sbcglobal.net jupton@umhlaw.com epina@arielhouse.com family, professional associates, and property that is available nowhere else. The will was Richard Reed 210.451.6920 probably drafted by a clerk in his attorney’s rreed@coatsrose.com office, for it lacks Shakespeare’s flair. He signed March–April 2021

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San Antonio Lawyer 13

will was probated on June 22, 1616. The inventory of his goods has been lost, probably in the Great Fire of London in 1666. Shakespeare’s estate consisted of cash, four houses, personal property, and land worth under £1,000 in total. Shakespeare’s wife, Anne, would have received one third of his estate automatically, so there was no need for him to mention the second-best bed in his will. Shakespeare’s original will is stored at the National Archives in Kew, England.

George Washington.7 George Washington’s will illustrates the enduring influence that English common law had on American wills, even after the colonies won their independence. Washington drafted two versions of his will and, while on his death bed, he decided which one he wanted to be effective. He asked his wife Martha to burn one will and safeguard the other, which is currently preserved at Mount Vernon, in Virginia. Washington owned vast sections of wilderness land in the West; improved lots in Washington, D.C., and Alexandria, Virginia; and large tracts of semi-improved land in Ohio, Maryland, Pennsylvania, and New York. Washington directed that all his debts be paid by his executor. The primary goal of his will was to care for his wife Martha, and he directed his executor to make certain that she was supported from the estate for the rest of her life. At Martha’s death, Washington’s remaining estate was to be divided among a group of named beneficiaries.

Washington forgave debts owed by his brother Samuel’s estate, loans advanced to his brother’s sons, and debts owed by Martha’s brother.

Washington also directed that the enslaved people he owned should be freed after Martha’s death. He provided financial support for those enslaved people upon their emancipation, and he stipulated that young, enslaved people be educated and trained in a useful occupation upon their manumission. Washington prohibited the sale or transportation

from Virginia of the enslaved people he owned, and he ordered his executors to care for them. Washington wanted to free the enslaved people owned by Martha, but he could not do so because they were owned by her in dower. In fact, those enslaved people had to be returned to the family of Martha’s first husband upon her death.8 Washington immediately freed the enslaved man William Lee and gave him $30 annually so long as William Lee lived. In contrast, upon her death, Martha Washington did not free the only enslaved person she owned in her own right but, rather, transferred ownership of the enslaved man called Elisha to her son.9 Washington gifted $4,000 to support a school for orphans and to establish a “University” in Washington, D.C., although the university never operated. He also gave shares in the James River Company to Liberty Hall Academy, which later became Washington College.

Following the Civil War, Robert E. Lee served as president of Washington College from 1865 until his death in 1870. Later, the school became Washington and Lee University in Lexington, Virginia. Washington gave all his military and government papers to Bushrod Washington for safekeeping and also bequeathed him Mount Vernon and a substantial parcel of land around it. Washington gifted a gold-headed cane given to him by Ben Franklin to his brother Charles Washington. Washington gave lands East of Little Hunting Creek to George Fayette Washington and Charles Washington and a large tract of land to Martha’s children from her first marriage. Washington directed that the remainder of his estate be sold, divided equally, and given to a list of specifically named beneficiaries. Washington signed and sealed his will on July 9, 1799.

Thomas Jefferson.10 Like Washington’s will, Thomas Jefferson’s will prioritized the distribution of property and care for his descendants.

Dated March 16, 1826, the will was a two-page holographic will, to which Jefferson added a codicil the next day. Jefferson gave his grandson all the lands at Poplar Forest bounded by various creeks and public roads and subjected all his other property to the payment of any debts remaining at his death.

Because his son-in-law was insolvent, Jefferson left the remainder of his estate to his grandson Thomas J. Randolph, to be held in trust for the sole benefit of Jefferson’s daughter, Martha Randolph and her heirs. Jefferson appointed Thomas J. Randolph his primary executor and named Nicholas P. Trist and Alexander Garrett as successor executors and trustees.

In a codicil to his will, Jefferson asked that his daughter, Martha Randolph, take care of his sister, Ann S. Marks, for the remainder of Marks’ life. Jefferson gave his friend James Madison a gold-mounted walking staff of animal horn, and he gave his extensive library to the University of Virginia, which he founded. Jefferson gave a silver watch to his grandson Thomas J. Randolph, explaining that it was better than his gold one, and he gave a gold watch to each of his grandchildren, freed an enslaved man named Burwell, and gave Burwell the sum of $300. Jefferson also dictated that the enslaved men John Hemings and Joe Fosset should be freed one year after his death and specified that his estate should build a “comfortable” log cabin for each man.

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In his initial filing with the Illinois state court, Justice Davis estimated Lincoln’s estate to be worth $65,000 and stated that it was to be divided among Mary Todd Lincoln and the Lincoln’s two surviving sons in equal shares. Mary could have requested an additional cash allowance as a widow, but she declined. Congress voted the tax-free equivalent of one year’s salary for a United States President ($25,000) to Mary. Lincoln’s estate was settled in November 1867, listing a total value of $110,296.80 (worth approximately $1.6 million in 2019 dollars).

Justice Davis took no compensation for his services as administrator of the Lincoln estate.

Franklin Delano Roosevelt.14 In the 20th century, the focus of wills continued to be on the personal rather than on the political. Franklin Roosevelt executed his will on November 12, 1941, approximately three weeks before the Japanese navy attacked Pearl Harbor. In his will, Roosevelt directed that all his debts, funeral expenses, and taxes be paid out of his estate as soon as practicable. He also asked that a simple stone be placed over his grave and the grave of his wife in the garden of his property in Hyde Park, New York. Roosevelt gave the land he owned in the State of Georgia to the Georgia Warm Springs Foundation, along with all buildings and improvements on the land and all personal property in the buildings.

Roosevelt gave one hundred dollars to each of his servants, and he gave his wife Ann Eleanor Roosevelt all his tangible personal property, except for the personal property in Georgia. Roosevelt gave his home in Hyde Park, New York, to the United States Government, along with most of the personal property in the house. Roosevelt placed the remainder of his estate in trust, and named his son, James Roosevelt, and his friend, Basil T. Hackett, as trustees. Roosevelt stipulated that his trustees shall pay one-half the net income from the residuary trust to his wife in quarterly installments for her natural life. The other half of the net income from his estate was to be paid to his private secretary, Marguerite A. Le Hand, in such amounts and at such times as his trustees determined, in their sole discretion, not to exceed $1,000 annually.

After the death of his wife, Roosevelt stipulated that one-half of the principal remaining in the trust be distributed to his surviving children and the issue of his deceased children per stirpes and not per capita. The remaining one-half of the trust principal was to be divided into as many equal shares as there were living children and surviving issue of deceased children.

Ernest Miller Hemingway.15 In contrast to Roosevelt’s direction that his children and grandchildren inherit directly from his estate, author Ernest Hemingway intentionally omitted his children from his will. He drafted a handwritten will on September 17, 1955, at Finca Vigia, San Francisco De Paula, Cuba. He revoked all prior wills and devised his entire estate to his wife Mary and named her executrix of his estate

Robert E. Lee.11 Robert E. Lee’s holographic will bears striking similarities to Jefferson’s. On August 31, 1846, Lee drafted a holographic will directing that all his debts be punctually paid. He gave the balance of his estate to his wife Mary Custis Lee,12 for her support and the care and education of their children for the term of her natural life. At the time the will was written, Lee had an estate valued at $38,750. Following his wife’s death, Lee specified that his estate be divided among his children “in such portion to each as their situations and necessities in life may require and as may be designated by her” (his wife). Lee specifically noted in his will that his daughter Ann Carter may be in more need than the other children and should be considered appropriately because one of her eyes was injured in an accident. He appointed his wife as executrix and his son George Washington Custis Lee as executor of his estate. Lee added a codicil to his will freeing an enslaved woman named Nancy and her children at the White House, New Kent, as soon as it could be done to their advantage. However, Nancy and her children did not have to wait for Lee’s death to be emancipated. Lee later claimed that he freed all his enslaved people before the Civil War, but at the latest, they would have been emancipated during the Civil War, and their freedom guaranteed by the passage of the Thirteenth Amendment to the United States Constitution.

Lee’s will was produced in court on November 7, 1870, and proved by the oaths of Governor J. Letcher and Colonel William Allen. His wife did not want to qualify as executrix so the task was assumed by Lee’s son George Washington Custis Lee. Lee’s estate was estimated to be less than $50,000, a duty stamp of $1.00 was paid on the executor’s bond, and $50 in state tax assessed.

Abraham Lincoln.13 In contrast to Lee, Abraham Lincoln died intestate, and because he left no will, his estate was distributed according to the Workplace Harassment Investigations intestate laws of Illinois. Generally, intestate property passes to the decedent’s spouse and descendants or closest living relatives. As is well known, Lincoln died from a gunshot wound to the head on April 15, 1865.

Shortly after Lincoln’s death, his son Robert sent a telegram to Supreme Court Justice David Davis, asking that he handle Lincoln’s estate as court-appointed administrator.

The family wrote a letter to the Judge of the Sangamon County Court in Illinois, asking him to appoint Justice Davis administrator of Lincoln’s estate, which was done.

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San Antonio Lawyer 15

to serve without bond. Hemingway stated that he had intentionally omitted gifts to his children because he was confident Mary would care for them according to instructions already given her. Three people witnessed Hemingway’s will. He died on July 2, 1962, of a self-inflicted gunshot. At the time of his death, his estate was valued at $1.4 million, most of which was from sales of his writings, and consisted primarily of stocks and bonds.

John Fitzgerald Kennedy.16 John Kennedy executed his will on June 18, 1954, in Washington, D.C. He revoked all prior wills and directed his executors to pay all just debts and funeral expenses. He gave $25,000 to his wife Jacqueline B. Kennedy, together with all his personal effects owned at the time of his death. Kennedy directed his executors to divide his remaining estate into two equal parts, giving one share to his wife if she survived him and one share to his children. Mrs. Kennedy’s share was to be held in trust for her benefit, and the trustees were directed to pay her stipends semi-annually, in the trustee’s discretion. If Mrs. Kennedy did not survive her husband, her share would be distributed to their children according to the terms of the will. Conversely, if no children survived at the time of President’s Kennedy’s death, the trust for Mrs. Kennedy’s benefit would receive the children’s share of the estate.

The children’s share of Kennedy’s estate was likewise placed in trust.

Kennedy directed that the income from the children’s share of his estate was to be paid as determined by his trustees, for so long as his children lived. At the death of any child, the balance of his or her trust assets were to be paid to any living issue of the deceased child in equal shares per stirpes. If there was no issue, the deceased child’s share would be paid into a trust for the benefit of the remaining surviving children.

Finally, if neither his wife nor any children survived him, Kennedy stipulated that his estate should be distributed as if he had died intestate.

Kennedy appointed his wife Jacqueline B. Kennedy and his brothers Robert F. Kennedy and Edward M. Kennedy as executors and trustees of his estate and trust.

Winston Churchill.17 The will of former British Prime Minister Winston Churchill demonstrated care for both his personal and political legacies.

Churchill executed his will on October 20, 1961, and later added two codicils. Churchill appointed his wife Clementine, his daughter Mary Soames, and John Rupert Colville as executors and trustees of his estate—to be paid £500, respectively, if they agreed to administer his estate and trust. Churchill asked to be buried in the Churchyard of Bladon in the County of Oxford, England. Churchill gave his wife all recordings of his speeches, all his articles and unfinished manuscripts, and all his other literary works with full benefit of copyrights.

Churchill also gave his state papers to his wife, but if she died before him, then to the trustees of a 1946 deed of settlement joint stock company (an English legal entity similar to a private company or trust).

He gave all his many public awards to his heirs and asked that they make reproductions of them to be displayed at Chartwell, his family home.

Churchill noted in his will that Chartwell had been accepted by the English National Trust and asked his wife to make a list of his personal items that were suitable to be retained in the house as a fitting museum.

Churchill gave his wife permission to sell any of the several paintings by him, which he had given her over the years.

Churchill gave his son-in-law Arthur John Soames brood mares and fillies “as he may select not exceeding three in number or seven thousand pounds total.” Churchill also gave his son-in-law the option to purchase all the horses, a farm, and a freehold cottage he owned at the time of his death, at the price set by the estate duty agency. If his son-in-law did not exercise the option, Churchill directed that these assets be sold by his executors and added to his estate.

Churchill asked that his executors pay all his debts and directed that the remainder of his estate be split into three equal parts, with one share going to his wife and the other two shares to any of his children living at the time of his death in equal portions. If his wife died before him, he directed that her share be given to his living children or their descendants in equal shares.

Churchill gave his trustees wide discretion in the investing of his funds after his death and exonerated his trustees for any potential loss of funds for any reason except intentional fraud. Churchill’s written will was entered into probate court February 9, 1965.

Conclusion. Across centuries and borders, the wills of these famous people show the 210-271-2999 variety of ways in which individuals can deal www.WhatsOnThePhone.com with their property upon death. The laws The Proof is in the Data pertaining to the wills discussed all followed the same general framework that has persisted 8209 Roughrider Dr., Suite 100A, Windcrest, TX 78239 in European and American societies for Licensed Texas Private Investigator (A15633) centuries.18 Each testator was able to create an

16 San Antonio Lawyer | sabar.org

estate plan that reflected his or her particular station in life and personal priorities.

Harry Munsinger recently concluded a long practice that focused on Collaborative Divorces, Estate Planning, and Probate matters. Harry holds a Ph.D. in psychology from the University of Oregon and a J.D. from Duke University School of Law, where he was a member of the Duke Law Journal.

ENDNOTES Harry Pettit, Alexander the Great’s last will and testament may have been found ‘hiding in plain sight’ 2,000 years after his death, Daily Mail Online (January 31, 3017), https:/www.dailymail.com.uk/sciencetech/article-4175468/Alexander-Great-s-2-000-years-dath. html (last visited Feb. 8, 2021).

2 Gaius Julius Caesar: Inheritance, Livius.org, https:// www.livius.org/articles/ person/caesar/ caesar-09/ (last visited Jan. 25, 2021).

3 Rebecca Larson, Revision of Last Will and Testament: Henry VIII, TudorsDynasty.com, www.tudorsdynasty. com/revision-will-henry-viii-1546/ (last visited Jan. 25, 2021).

4 Mary Sue Donsky, Napoleon Part Three – The Last Will and Seven Codicils, The Dearly Departed (September 9, 2012), https://marysuedonsky.wordpress.com/ tag/last-will-and-tetstament-of-napoleon/ (last visited Feb. 9, 2021).

5 Elizabeth Jane Timms, The Last Will of Queen Victoria, Royal Central (June 28, 2019), https://royalcentral. co.uk/interests/history/the-last-will-of-queen-victoria-125717/ (last visited Feb. 8, 2021).

6 Nat’l Archives (UK), William Shakespeare’s last will and testament: original copy including three signatures, Shakespeare Documented, https://shakespearedocumented.folger.edu/resource/document/williamshakespeares-last-will-and-testament-originalcopy-including-three (last visited Feb. 8, 2021).

7 George Washington’s Last Will & Testament, 9 July 1799, https://founders.archives.gov/documents/ Washintgon/06-04-02-0404-0001 (last visited Feb. 8, 2021).

8 Mount Vernon Ladies’ Association, “Martha Washington as a slaveowner,” https://www.mountvernon.org/ george-washington/slavery/martha-washington-asa-slaveowner/ (last visited Feb. 8, 2021).

9 Id. 10 Thomas Jefferson: Will and Codicil, 16-17 Mar. 1826, 16 March 1826, 11 https://founders.archives.gov/documents/Jefferson/98-01-02-5963 (last visited Feb. 8, 2021).

Last Will and Testament of Robert E. Lee, 1846, https://store.ushistory.org/products/last-will-andtestament-of-robert-e-lee-1846 (last visited Feb. 8, 2021).

12 Mary Custis Lee was the only surviving child of Martha Washington’s grandson. See Allen C. Guelzo, Robert E. Lee and Slavery (Gettysburg College Dec. 19, 2017) https://cupola.gettysburg.edu/cgi/viewcontent.cgi?article=1105&context=cwfac (last visited 1

Feb. 8, 2021).

13 Danielle Mayoras and Andy Mayoras, Are You Better Prepared Than Abraham Lincoln Was? Forbes (Dec. 4, 2012, 09:01 am EST), https://www. forbes.com/sites/trialandheirs/2012/12/04/ are-you-better-prepared-than-abraham-lincolnwas/?sh=18fc411b1cca (last visited Feb. 8, 2021).

14 Last Will and Testament, http://docs.fdrlibrary. marist.edu/PSF/box23/t903aj02.html (last visited Feb. 8, 2021).

15 Robert Tomasson, Hemingway Estate $1.4 Million; Widow is His Lone Beneficiary, The New York Times (Feb. 22, 1964), https://archive.nytimes.com/www.

nytimes.com/books/99/07/04/specials/hemingwayestate.html (last visited Feb. 8, 2021).

16 Last Will and Testament of John F. Kennedy, http:// www.rongolini.com/jfk.htm (last visited Feb. 8, 2021).

17 Last Will and Testament, https://assets.publishing.service.gov.uk/government/uploads/system/ uploads/ attachment_data/file/399827/winston-churchillwill.pdf (last visited Feb. 8, 2021).

18 See Harry Munsinger, History of Inheritance, Part I: History of Wills, San Antonio Lawyer 9 (May/June 2020).

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bar business

Reflections on MABA-SA and 2020

By Ted Santos, Immediate Past President

Editor’s Note: The Mexican-American Bar Association of San Antonio (MABA-SA) proudly celebrated its 40th anniversary in 2018. MABA-SA produced a short video reflecting on its mission and history, which is available online. The article below is adapted from remarks made by Ted Santos, MABA-SA’s Immediate Past President, at the group’s 2020 Pachanga, which was held virtually in December 2020, due to the COVID-19 pandemic.

I

n the Rio Grande Valley, where I was born in McAllen, Texas, crossing into Mexico was more common than traveling North. With that being said, as a young child, I moved from the Rio Grande Valley to rural Southern Illinois with my mom and siblings. Why is this detail important?

Because I saw and was reminded at a young age that I didn’t fit into the traditional categories of the community. I would hear, “You’re not black, but you’re not white. So, what are you?”

The only “Mexicans” this area may have seen were the fieldworkers who came to town once or twice a year before heading back to their grueling work.

Growing up in the Midwest, like so many kids of color, I didn’t have the benefit of a support group of like-minded children or adults with the same background or skin color as me. That is why the Mexican American Bar Association (MABA) is so meaningful, purposeful, and inspiring to me. While MABA was created to support and recognize Mexican Americans in the legal profession, it has become a diverse, influential, and productive organization, not only for Mexican Americans, but also for the legal profession at large and the entire San Antonio community.

Many years ago, when I first experienced MABA, I was not an attorney. I had not

18 San Antonio Lawyer | sabar.org

A MABA-SA meeting in the 1980s. Attendees included MABA-SA co-founders Pete Torres, Jr. and Ernest Acevedo, Jr., Adam Poncio, Fourth Court of Appeals Justice Alfonso “Al” Chapa, who later became Chief Justice of the Fourth Court of Appeals; and Judge Karen Crouch, who later became Judge of County Court at Law No. 10.

even applied to law school. What I saw were attorneys coming together after work—new attorneys, veteran attorneys—supporting each other, arguing with each other, and debating issues to improve the legal process.

All of this energetic engagement would be combined with working on projects for the community—mentoring at-risk kids, raising money for scholarships, and delivering Christmas baskets to needy families. These attorneys were not making a lot of money.

Some struggled to pay their student loans, but they would come together to support MABA, each other, and their community. MABA is why I went to law school.

Fast forward to 2020, when I had the honor and privilege to serve as President— not just any President—a President with an all-female board. I got some teasing from different people, of course. “Are you crazy?

How’s that going?” I say that it made me a very smart man because this board—all of them—got s*** done.

We did not miss a beat with CLEs. In fact, we expanded topics and our audience, with one of our members, Bexar County District Attorney Joe Gonzales, starting us off in January. In February, attorney and author Humberto Garcia introduced his book, The Mustang Miracle, the true story of the first all-

Hispanic State Championship golf team in the 1950s, which triumphed against all odds. Dr. Ellen Riojas Clark and Rosie Castro spoke on our culture and political progress in March.

Then, COVID hit. MABA was a leader for attorneys and our courts on technology and virtual practices early on in the pandemic. Here again, the team kicked it into high gear with technology and organization. In April, board member Judge Angelica Jimenez and Attorney Lara Brock held a CLE combined with a Fiesta Happy Hour on Zoom and the Courts. Also, in April, former MABA President and current member Javier Herrera led a CLE on best remote office practices during a pandemic.

In early May, Board member and former President, Judge Catherine Torres-Stahl, and member Judge Lori Valenzuela, who was recently appointed to the Fourth Court of Appeals, aired what I believe was the first CLE on remote criminal court procedures.

In June, MABA member Eduardo Juarez conducted a CLE on recent United States Supreme Court cases on equality pertaining to sexual orientation and gender identity.

June was also a busy month for community service and engagement. MABA created a virtual San Antonio Food Bank fundraising drive to support our community during this challenging year. Also in June the Scholarship

Committee, led by Melissa Morales Fletcher, reached out to over 100 high schools, received and reviewed applications, and awarded $30,000 in scholarships to college-bound students.

July normally is a break for MABA, but not in 2020. We called a special meeting, asking the membership for a vote on whether MABA would make an official statement to the State Bar of Texas in response to State Bar of Texas President Larry McDougal’s inappropriate comments on social media and the Bar’s lack of action after the fact. We had a successful meeting and a unanimous vote calling for action. It was a very rare instance of unanimity, and the fact that we all agreed underscored the seriousness of the situation.

Also, in July, we had a virtual remote Happy Hour to kick off our Annual Raffle. We did this anticipating that we were going to have to cancel our flagship fundraiser Golf Tournament.

In August, we resumed our CLE program with a fantastic presentation on the very important topic of lawyer wellness presented

by TLAP’s Erica Grigg. While lawyer wellness is always worthy of attention, the financial, social, and emotional strains of 2020 made it particularly urgent. In September, we had a successful annual meeting with a full slate of awesome nominations for leadership in 2021, and we called yet another special meeting— to vote on making an official statement to the Texas Commission on Judicial Selection. In that statement, MABA supported the right of Texas voters to elect their judges and opposed judicial selection by any exclusive committee.

Again, we got a unanimous vote! With the able assistance of Sonia Rodriguez, Laura Tamez, and Tina Torres, I testified before the Commission on behalf of MABA. Also in September, we had a very successful annual raffle—held remotely—raising $10,000.00 for scholarships. The raffle sold out days in advance of the deadline for the first time that I can remember. Shirley Ehrlich, Jessica Garza, and Angie Lozano ensured that the raffle went off without a hitch.

The October CLE featured Past MABA President Judge Rosie Speedlin Gonzalez and Marta Prada Pelaez, the President of Family Violence Prevention Services, speaking on domestic violence awareness and new programs being implemented on this very serious issue. And, in October, we held our annual Dia de los Muertos celebration virtually, organized by Dianne Garcia. By then, we had become adept at virtual events.

We had our costume contest, dancing, an altar exhibition and competition, and raised

MABA-SA’s 2020 Scholarship Ceremony, held virtually on Zoom.

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bar business

Members of the MABA-SA Board presented the MABA-SA 2019 Scholarship Recipients with scholarship checks.

well over $6,000 more for scholarships.

In November, it was a great honor to host President-Elect, Sylvia Borunda Firth, the first Latina elected President of the State Bar of Texas. She enlightened us on the State Bar’s new initiatives and opened the door to all MABA members to participate in the State Bar. I do not recall a State Bar President or President-Elect ever previously addressing MABA-SA exclusively.

It has been my honor to serve as President of MABA-SA, a bar association that fosters the same tradition of camaraderie and service that inspired me to go to law school. We continue to positively affect students’ lives through our scholarship program, and our scholarship recipients continue to inspire us in our work and community service. Take, for example, the story of Rafael Murrillo.

Rafael graduated at the top of his class from Lanier High School—just a few blocks away from the Bexar County jail and just down the street from the Herrera Law Office. While growing up on the Westside and Southside of San Antonio, Rafael overcame great obstacles, including having to spend time with his many siblings in a women’s shelter. While in high school and making straight A’s, Rafael worked as a dishwasher at a restaurant near the Bexar County Courthouse, which many of us frequented—not knowing of this amazing 20 San Antonio Lawyer | sabar.org

young man. Now, with the help of a number of scholarships, including one from MABA, Rafael is attending a top-tier liberal arts college in New York City. In his application, Rafael told us that he had helped raise his siblings from the time he was ten, while living in a shelter. Even with all of Rafael’s accomplishments, he said his life-changing moment and greatest joy was watching his baby brother learn to walk.

That beautiful statement exemplifies what MABA is all about. In MABA, we not only aspire to reach the highest standards of our profession, but we also nurture each other.

We celebrate life as we work, and we give back

to our community. We may sometimes seem to knock each other down in our profession, but we pick each other right back up. We are people caring for each other, our profession, and helping each other grow.

Ted Santos is the Immediate Past President of San Antonio’s Mexican American Bar Association and the owner of the Law Offices of Ted Santos. He earned his Juris Doctor from St. Mary’s University in 2010.

The San Antonio Bar Foundation Welcomes the Elected Fellows Class of 2021

By SABA Staff

The San Antonio Bar Foundation (“Foundation”) is pleased to announce its 2021 class of thirty newly elected Fellows.

Established in 1984, the Foundation is the philanthropic arm of the San Antonio Bar Association (“SABA”). The Foundation, comprised of Fellows who serve as patrons of the charitable heart of the legal community, hosts civic education programs, helps fill gaps in people’s access to justice, and supports the pipeline of future leaders

in the San Antonio legal family.

Selection as a Foundation Fellow is by nomination only and is restricted to SABA members. A Fellow must demonstrate professional achievement, have an exemplary reputation, and be committed to the legal community. Each year’s class is limited to no more than one-third of 1% of SABA’s members and is subject to confirmation by the Foundation’s Board of Trustees. Today, the Foundation has more than 600 Fellows,

who volunteer and financially support the Foundation’s programs and mission.

Foundation Board Chair, David Evans, shares, “The San Antonio Bar has community service instilled in our culture. We are proud to recognize these new Fellows for their professional achievements and welcome them as patrons of the Foundation.”

For more information about the Fellows Program, the Foundation, or SABA, please visit www.sabar.org.

Lisa Alcantar, Porter, Rogers, Dahlman & Gordon, P.C.

Hannah Hembree Bell, Hembree Bell Law, PLLC

Carol Bertsch, The Law Offices of Carol Bertsch, P.C.

Roger Bresnahan, Farrimond, Castillo & Bresnahan, P.C.

Nathan Cace, The Law Office of Nathan C. Cace, P.C.

Thomas “Trey” Cammack, Thomas J. Henry Law

Lance Curtright, De Mott, McChesney, Curtright, Armendariz

Ashley Senary Dahlberg, Norton Rose Fulbright US LLP

Michael D. DeNuccio, Curney, Farmer, House, Osuna & Jackson, P.C.

Rob Eichelbaum, Law Offices of Rob Eichelbaum

Hayley Ellison, Davis & Santos, P.C.

Hon. Richard B. Farrer, United States Magistrate Judge

Troy A. Glander, A Nava & Glander Law Firm

Isaac J. Huron, Archdiocese of San Antonio

William B. Kingman, Law Offices of William B. Kingman, P.C.

Greta McFarling, Chasnoff | Stribling

Kelly John Moynihan, Lindow Stephens Treat

Esteban A. Nava, A Nava & Glander Law Firm

Shellie Reyes, Clausewitz Law Firm

Michael J. Ritter, Fourth Court of Appeals

George Luis Salinas Jr., Law Offices of George Salinas, PLLC

Maurine “Mo” Shipp, Clark Hill

Scott A. Stolle, A Nava & Glander Law Firm

Marc A. Stroope, Zachry Group

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Erica Valladares, Langley & Banack, Inc.

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Charles Manson Fifty Years Later Part II: The Investigation

By Mark J. Phillips and Aryn Z. Phillips

S Last year marked a half century since the sensational trial of Charles Manson for the Tate/LaBianca murders, and the passage of time has not diminished the place the trial and murders occupy in the American psyche. The following is the second of a three-part series reflecting on the Manson murders, the ensuing investigation, and the historic trial.

everal theories circulated about the Tate murders. Cocaine and marijuana had been found among the victims’ possessions, leading some to believe that the gruesome rampage had been the result of a drug trip gone wrong or a drug deal turned violent. Another promising theory was that William Garretson, the groundskeeper, was behind the killings. He was found that morning in the guest house and claimed to have heard or seen nothing unusual the night before. He was arrested and questioned but was eventually cleared of suspicion.1 The LaBianca detectives, by contrast, were operating under the suspicion that the murders had been the result of an upset robbery.

Two months after the murders, neither team had made much headway. Eventually, on October 15th, the LaBianca team asked the Los Angeles Sheriff’s Office if it was investigating any other murders that might be similar to that of Leo and Rosemary. The LASO officers told their LAPD colleagues about the murder of Gary Hinman, a thirty-four-year-old music teacher whose body had been found in July, in his home in the nearby City of Malibu. Hinman had been stabbed to death, and the words “POLITICAL PIGGY” had been written on the wall in blood. The LASO had arrested a suspect, Robert “Bobby” Beausoleil, shortly after. Beausoleil had been in custody since August 6th, so he could not have been involved in either the Tate or LaBianca murders several days later.

However, the LaBianca investigators discovered that—prior to his arrest—he had been living at Spahn Ranch with Manson.2 Spahn Ranch had coincidentally been raided later in August and several Family members, though not those involved in the Tate/LaBianca murders, were arrested as suspects in an auto theft ring.3 That August raid had convinced Manson to go underground and await Helter Skelter, and he had moved the Family 200 miles March–April 2021

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That August raid had convinced Manson to go underground and await Helter Skelter, and he had moved the Family 200 miles northeast to Barker Ranch, an extremely remote and isolated homestead near Death Valley. Barker Ranch had in turn been raided in early October, and twentyfour Family members, including Manson, were arrested on a wide variety of unrelated charges.

northeast to Barker Ranch, an extremely remote and isolated homestead near Death Valley. Barker Ranch had in turn been raided in early October, and twenty-four Family members, including Manson, were arrested on a wide variety of unrelated charges.

They were being held in jail in Inyo County, about five hours outside of Los Angeles, still unconnected to the Tate and LaBianca murders.

But the mystery would soon unravel. During the Barker Ranch raid, Inyo County law enforcement had come across two young girls attempting to flee the Family. One was seventeen-year-old Kitty Lutesinger, Bobby Beausoleil’s girlfriend. Lutesinger remembered hearing that Susan Atkins had also been involved in the Hinman murder.

Atkins, being held in Inyo County, was questioned by the LaBianca team, booked on suspicion of murder, and moved to Sybil Brand Institute, a women’s detention center in Los Angeles.4 There, she was placed in a cell with Ronnie Howard, jailed for forging prescriptions, and Virginia Graham, arrested for violating parole. Atkins was talkative and she told her cellmates all about life with Manson. She also told them about killing Hinman and, eventually, that she had killed Sharon Tate and her guests, and that her friends had killed the LaBiancas.5 Howard would remember her saying that it “felt so good the first time I stabbed [Sharon Tate]” and that “the more you [murder], the better you like it.” Atkins bragged that she and the Family were responsible for eleven murders that police would never solve, and that there would be more to come.6 Taken from Sybil Brand for a court appearance on November 17, a frightened Howard telephoned the LAPD, claiming to know who had committed the Tate murders. That evening, two officers came to Sybil Brand and interviewed her, placed her in protective custody, and brought the news back to headquarters. They were convinced that she was telling the truth; Atkins had mentioned several details that were known only to the police and the murderers.7 The young Lutesinger had also told authorities that Manson had attempted to recruit members of the Straight Satans, a motorcycle gang, as bodyguards. Five days earlier a member of this gang, Al Springer, had 24 San Antonio Lawyer | sabar.org

Barker Ranch in Death Valley, Charles Manson’s last hideout and place where he was arrested.

Photo credit: William Girard Girard / Alamy Stock Photo.

Page 23: Charles Manson, cult leader, on August 6, 1970.

Photo Courtesy: CSU Archives / Everett Collection.

been picked up and questioned on an unrelated matter and detectives took the opportunity to re-interview him about Manson. Springer had never joined the Family, but he did remember Manson bragging about killing five people and writing on a refrigerator in blood.8 Springer also directed the police to Danny DeCarlo, another member of the Straight Satans, who confirmed Springer’s story. DeCarlo remembered that Manson had a favorite gun that had disappeared the weekend of the murders and, knowledgeable about firearms, he was able to draw a picture of the weapon. Pieces of a broken and bloodstained gun handle had been found at the Tate residence, and DeCarlo’s drawing was an exact match to the gun to which these pieces belonged. Finally, he described a certain kind of rope kept at Spahn Ranch, which matched the rope used to tie up Tate and Sebring.9 Slowly but surely, LAPD identified the remaining murderers.

Interviews with other Family members exposed Watson, Krenwinkle, and Kasabian as those present at the Tate residence, and warrants were issued for their arrests. Watson was taken into custody in his hometown of McKinney, Texas; Krenwinkle in Mobile, Alabama, where she had been staying with family; and Kasabian in Concord, New Hampshire.10 Interviews with Atkins confirmed the involvement of these three, plus Manson and Van Houten in the LaBianca murders.11 As the investigation picked up steam, physical evidence against the Family members began building up. A print found on the front door of the Tate house was identified as belonging to Tex Watson, and one found on the inside of the French door in Sharon Tate’s bedroom was matched to Krenwinkel.12 A broken gun found months earlier in the backyard of a home below Benedict Canyon was identified as the gun used at the

Tate residence. It was covered in blood of the same subtype as Sebring, and the broken pieces of gun grip found in the house fit its broken handle. Bullets found at Spahn Ranch were traced to this gun. Rosemary LaBianca’s wallet was found in a service station restroom, where it had been left by Kasabian, just as Atkins had described. A television crew, attempting to reenact the events of the Tate killings, found the bloody clothing that Watson, Kasabian, Krenwinkel, and Atkins had thrown from their car onto the hillside while fleeing the scene.

Having implicated herself, Atkins was charged with the Tate murders, and the case was assigned to Deputy District Attorney Vincent Bugliosi and head of the Trials Division, Aaron Stovitz. Thirty-five-yearold Bugliosi was an experienced prosecutor who had been practicing with the Los Angeles County District Attorney’s Office since 1964. He had tried 104 felony cases and lost only one.13 Stovitz would be taken off the case for inadvertently violating a gag order shortly after the trial began, and he was replaced by District Attorneys Donald Musich and Steven Kay, but Bugliosi remained the chief prosecutor for the duration of the trial and played an active role in the investigative process.14 Richard Caballero, a former district attorney who had gone into private practice, was already representing Atkins in the Hinman case and would represent her in the Tate case as well.15 In light of the evidence, attorney Caballero struck a deal with the District Attorney’s office on behalf of Atkins that, in exchange for testifying against the other Family members, the District Attorney would not seek the death penalty against Atkins. On December 5th, Atkins testified before the grand jury, explaining in detail the events of those two gruesome nights. The jury was shocked not only by her story, but also by her frigid, emotionless, and entirely remorseless telling of it.

When asked to identify a picture of Steven Parent, the eighteen-year-old found in the white Rambler at the Tate house, she confirmed “that is the thing I saw in the car.” Bugliosi asked, “When you say ‘thing,’ you are referring to a human being?” Atkins responded, “Yes, human being.”

Her testimony was so chilling that one of the jurors had to ask to be excused for a few minutes.16 While Manson himself had not personally committed any of the murders, it was clear from the testimony that he was the mastermind behind them, and that he had a powerful hold over the minds and motivations of his followers. After deliberating for only twenty minutes, the grand jury delivered indictments for murder against Watson, Krenwinkel, Atkins, Kasabian, Van Houten, and Manson.

Kasabian and Krenwinkel were returned to Los Angeles to stand trial, and Van Houten and Manson were brought down from Inyo County, where they had been jailed since the Barker Ranch raid. Watson fought extradition from Texas and, ultimately, had to be tried separately at a later date.17 The date for the trial was set, and it was bound to be a challenging one. The prosecution would have to prove not only that Kasabian, Krenwinkel, Atkins, and Van Houten had committed the murders, but also that Manson—indicted under conspiracy laws—had engineered these murders and had used his powerful control over his followers to get them to act for him.18 The five defendants were to be tried together, and their defense team was made up of a rapidly revolving cast of diverse characters. Manson’s case was initially assigned to attorney Paul Fitzgerald of the Public Defenders’ Office but, on December 17, almost immediately after being indicted, Manson requested permission to act as his own attorney, claiming that “there is no person in the world who could represent” him. After an experienced third-party attorney judged him mentally competent, presiding judge William Keene approved Manson’s request.

Manson used his newly acquired position to make outrageous motions and requests. He asked that copies of every document related

to the case be made and delivered to his jail cell. He asked that he be allowed freedom to travel outside of prison. He asked for the names, telephone numbers, and home addresses of every prosecution witness.

Finally, in March, when he asked that the prosecuting attorneys be jailed under conditions similar to his own, Judge Keene revoked his privileges with Manson screaming, “There is no God in this courtroom!”

Manson’s defense was next assigned to attorney Charles Hollopeter, but Manson was displeased with some of the motions Hollopeter made and quickly had him replaced with Ronald Hughes.19 Thirty-five years old, Hughes was often referred to as a “hippie lawyer.” Large and burly, he sported a long, unkempt beard and mismatched suits that he bought for a dollar apiece from the MGM wardrobe department. He was well acquainted with counterculture, enjoyed hiking and the great outdoors; admitted having experimented with drugs; and lived in a friend’s garage.

He had never tried a case before.20 In April, Manson filed an affidavit of prejudice against Judge Keene, and the case was reassigned to Judge Charles Older. A highly decorated former World War II fighter pilot, fifty-two-year-old Older had developed a reputation as a no-nonsense judge since his appointment to the bench three years earlier.21 Only two weeks before the trial’s opening day, Manson asked Judge Older to reassign his case yet again. If he could not act as his own attorney, Manson proclaimed, he wanted to be represented by Irving Kanarek. A stocky man with wavy hair, thick eyebrows and receding hairline, it was rumored that he wore a new suit on the first day of each trial and continued to wear it every day until the trial was over. A notorious obstructionist, Kanarek was widely known for his excessive use of objections and other delaying tactics. Hughes was replaced by Kanarek.22

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Manson’s case was initially assigned to attorney Paul Fitzgerald of the Public Defenders’ Office but, on December 17, almost immediately after being indicted, Manson requested permission to act as his own attorney, claiming that “there is no person in the world who could represent” him.

Visiting Family members constantly ferried messages back and forth between the girls and Manson. In late February, in accordance with his instructions, Atkins abrogated her agreement with the prosecutors and refused to testify at the trial. She fired Caballero and asked that he be replaced by Daye Shinn, an immigration attorney who had visited Manson in prison over forty times, hoping to be put on the defense case.23 Forty-years old and of Korean descent, Shinn was entirely new to criminal proceedings.24 Krenwinkel requested as her attorney Paul Fitzgerald, the attorney initially assigned to Manson. The Public Defender’s Office felt that this assignment constituted a conflict of interest, but Fitzgerald was anxious to be a part of the defense team. He resigned from the office and went into private practice, taking Krenwinkel on as his only client.25 Van Houten went through what was perhaps the longest sequence of attorneys. Her case was first assigned to Donald Barnett, whom she asked to be dismissed after he ordered that she undergo a psychiatric evaluation. Her defense passed to Marvin Part, who made the same mistake, and eventually to Ira Reiner, later to find fame as the Los Angeles County District Attorney who supervised the trials of Richard Ramirez, the police arrest of Rodney King, and the defendants in the McMartin preschool trial. Reiner lasted eight months, until jury selection, when it became clear that he was trying to separate her defense from that of the rest of the Family. Van Houten had him replaced by Ronald Hughes, the former Manson attorney.26 Kasabian was represented by Gary Fleischman, who made it clear from the start that his client was willing to cooperate with the prosecution.

She had been the driver and claimed that she had not actually killed any of the victims, that she had been told to stand guard outside on the first night, and that she had never entered the house on the second night.

She had been new to the Family at the time of the murders, and she felt badly about what had happened. While she openly admitted that she loved Manson, she claimed to have only cooperated in the murderous rampage out of fear for the safety of her daughter who was being cared for back at Spahn Ranch. She was clearly different from the other girls, who struck outsiders as deceitful, naïve, or insane. Kasabian was polite, truthful, more grounded, and seemed genuinely devastated by what had transpired. When Atkins reneged on her promise to testify in court, the prosecution team dropped its end of the bargain, sought the death penalty for Atkins, and turned to Kasabian, promising to petition the court for immunity if she testified at the trial. Despite threats made to Fleischman by Family members that “if Linda testifies, thirty people are going to do something about it,” Kasabian agreed and became the prosecution’s star witness.27 Next, the trial.

Mark J. Phillips is a shareholder at the law offices of Lewitt Hackman in Encino, California. Aryn Z. Phillips is a graduate of the Harvard School of Public Health and holds a Ph. D. in Public Health from UC Berkeley.

They are the co-authors of Trials of the Century (Prometheus 2016).

26 San Antonio Lawyer | sabar.org

ENDNOTES Vincent Bugliosi with Curt Gentry, Helter Skelter 32-34 (W.W. Norton, 1974). Helter Skelter, written by the lead prosecutor for the Manson trial, is the best-selling true crime book in United States history.

2 Id. at 62.

3 Id. at 90.

4 Id. at 113-17.

5 Id. at 117-27.

6 Id. at 139.

7 Bradley Steffens and Craig Staples, The Trial of Charles Manson: California Cult Murders 35-36 (San Diego: Lucent Books, 2002).

8 Bugliosi, 130-34, 154.

9 Id. at 144-50.

1

Id. at 220.

Id. at 229.

12 Id. at 216.

13 Id. at 166.

14 Id. at 453-54.

15 Id. at 217.

16 Id. at 240-43.

17 Id. at 235-55.

18 Steffens, 40-45.

19 Bugliosi, 258, Steffens, 53-57.

20 Bugliosi, 370-71, 515.

21 Id. at 386.

22 Steffens, 57-59, Bugliosi, 371-72.

23 Bugliosi, 353-55.

24 Id. at 355.

25 Id. at 304-05.

26 Id. at 271, 290-91, 408-10.

27 Id. at 338, 352; Steffens, 45-47.

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Fourth Court Update

Judge Lori Valenzuela Appointed to Fourth Court of Appeals

By Chief Justice Rebeca C. Martinez

I

am delighted to introduce to you the newest associate justice on the Fourth Court of Appeals, Justice Lori I. Valenzuela. On January 11, 2021, Governor Greg Abbott appointed Judge Lori I. Valenzuela to fill the vacancy at Place 7, the seat I formerly occupied from January 2013 until my informal investiture as Chief Justice on January 1, 2021.

Justice Valenzuela has served as the Presiding Judge of the 437th Criminal District Court of Bexar County since 2009.

Prior to taking the bench, she was in private practice, and she previously served as both an assistant district attorney for the Bexar County District Attorney’s Office and a Bexar County Magistrate. She is a founder of the Felony Veteran’s Treatment Court, served as Chair of the Texas Center for the Judiciary Board of Directors, and is a former board member of the Federal Judicial Evaluation Committee.

Appointed by the Supreme Court of Texas, she served as chair of the Court Reporter Advisory Committee and had been a member of the Bexar County Juvenile Board. She also served on the Child Fatality Review Board and the Boy Scouts of America Executive Board.

A member of the San Antonio Bar Association and Fellow of the State Bar of Texas, she is an active member of the St. Mary’s University Alumni Association and Texas Exes. Justice Valenzuela is also an adjunct professor at the University of Texas at San Antonio.

Justice Valenzuela received a Bachelor of Arts in Government from the University of Texas at Austin and a Juris Doctor from St. Mary’s University School of Law. She and her husband Robert Sean McCleskey, a retired Secret Service Agent currently serving as the Chief Investigator at the Bexar County District Attorney’s Office, have three children.

I am proud to continue to serve on the only all-female appellate court in Texas. The

On January 11, 2021, Governor Greg Abbott appointed Judge Lori I. Valenzuela to fill the vacancy at Place 7, the seat I formerly occupied from January 2013 until my informal investiture as Chief Justice on January 1, 2021.

Since 1979, many have chosen TLIE. Including the State Bar.

Justice Lori I. Valenzuela

Fourth Court of Appeals serves the largest appellate district in Texas, encompassing thirty-two counties, and has intermediate appellate jurisdiction over civil and criminal cases.

The public’s confidence in the judiciary is critical. The Fourth Court will benefit from my friend and “sister in law” Justice Lori Valenzuela’s extensive professional and judicial experience. As the daughter of a Vietnam veteran myself, I am further delighted to work alongside a fellow “military brat.” Welcome, Justice “LV.” Chief Justice Rebeca C. Martinez has served on the Fourth Court of Appeals since January 2013. Justice Martinez previously served for United States Magistrate Judge Eduardo E. de Ases for the Western District of Texas and for Justice Federico G. Hinojosa on the Thirteenth Court of Appeals, and practiced trial law for over twenty years.

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Federal Court Update

Western District of Texas Court Summaries

By Soledad Valenciano, Melanie Fry, and Charles Carter

If you are aware of a Western District of Texas order that you believe would be of interest to the local bar and should be summarized in this column, please contact Soledad Valenciano (svalenciano@svtxlaw.com, 210-787-4654) or Melanie Fry (mfry@dykema.com, 210-554-5500) with the style and cause number of the case, and the entry date and docket number of the order.

Class Certification of Collective Actions; Lusardi Approach Ortiz v. Trinidad Drilling, LLC, SA20-CV00503-OLG (Chestney, E., December 2, 2020).

The parties disputed which members of a certified class of oil rig workers are entitled to notice of the instant FLSA collective action as part of the conditional certification process.

The plaintiff objected that the defendants produced arbitration agreements signed by class members but redacted to exclude contact information and signatures. The plaintiff also objected to the assertion that the arbitration agreement applied to the FLSA claims. Following JP Morgan, and declining to follow Kibodeaux, the court held that any class member that signed the arbitration agreement is not entitled to receive notice of the lawsuit, and that the defendants may withhold contact information of these class members from the plaintiff. The agreement applies to all claims and disputes between the parties, prohibits consolidation of one or more person’s claims, and waives “class” and “representative actions”—any failure to use the word “collective” was not persuasive.

Absent an argument about the validity of the signatures or contract formation, simply implying that opposing counsel is engaged in misleading, unethical, or sanctionable conduct is insufficient.

(A prior order in this case was summarized in the January-February issue of San Antonio 28 San Antonio Lawyer | sabar.org

Lawyer™. Since that time, the Fifth Circuit, in Swales v. KLLM Transport Services, LLC, established a new standard for determining whether, and to whom, court-ordered notice of a FLSA collective action should be sent, thereby replacing Lusardi, upon which the prior Ortiz decision was based.)

Compulsory and Permissive Counterclaims in FLSA Actions Hill v. Bedrock Funding, LLC, No. SA:20-CV165-DAE (Ezra, D., December 10, 2020).

In this FLSA case, the court examined whether to strike counterclaims asserted by the plaintiff employer on behalf of herself and others similarly situated, sued for failure to pay overtime wages. In its original answer, and then in an amended answer, the employer asserted six counterclaims generally related to submission of information by electronic means that it alleged were compulsory. The plaintiff moved to strike the counterclaims.

While the court follows the Fifth Circuit’s Tank Insulation analysis applicable to compulsory counterclaims, courts generally are hesitant to permit an employer to file counterclaims in FLSA suits. Courts in the Western District of Texas reason that FLSA counterclaims are permissive rather than compulsory when “different evidence is needed to prove the claims” and “their only nexus . . . is the employment relationship.”

District courts across the Fifth Circuit “routinely dismiss counterclaims that do not directly relate to plaintiffs’ wage claims, such

as by challenging the amount of overtime hours worked or wages due.” Thus, they have found counterclaims regarding fraudulent time sheets to be compulsory. Here, while the defendant’s claims may be meritorious, they were not compulsory as they did not seek the return of pre-paid wages or question the validity of wages claimed to be due, and thus, are permissive under Fed. R. Civ. P. 13(b).

FMLA Retaliation; Constructive Discharge Esquivel v. Corecivic, Inc., No. SA-19-CV00143-JKP (Pulliam, J., December 14, 2020).

The plaintiff alleges her former employer, an ICE-affiliated residential center, violated the FMLA’s prohibition on retaliation by constructively discharging her following approved leave. Throughout her employment, the plaintiff was a “resident supervisor” at the facility. Despite bearing the same title, resident supervisors at the facility could be assigned to a variety of different tasks from cleaning, to medical, to intake. Prior to her approved FMLA leave, the plaintiff primarily worked in the facility’s intake department—which required special training. The court found that the plaintiff should have been returned to intake upon her return to work. Upon the plaintiff’s return to work, her supervisor did not assign the plaintiff to intake but assigned her to a range of other roles. While performing one of those other roles, the plaintiff injured her back and neck.

Even though the plaintiff returned to work with

a lifting limitation, her supervisor continued to assign her to physically demanding departments rather than to the intake department. The court found that a reasonable juror could conclude that the intake assignment was a more prestigious role than the assignments the plaintiff received upon her return from FMLA leave, but reassigning resident supervisors from intake to less prestigious assignments was common. The court also noted many communication failures among the plaintiff, her supervisor, and HR, and that the plaintiff may have felt mocked or embarrassed upon her return, but such evidence did not rise to the level of the severe public humiliation necessary to establish a constructive discharge. Accordingly, the court granted the facility’s motion for summary judgment on the plaintiff’s FMLA retaliation claim.

Diversity Jurisdiction; Insurance Mazhar Footsteps, LLC v. Amguard Ins. Co., No. SA-20-CV-00955-JKP-HJB (Pulliam, J., December 24, 2020).

In this insurance case arising from a hail damage claim, the plaintiff sued its insurer and the insurer’s adjuster in Texas state court.

After the insurer removed the case to federal court on diversity grounds, the plaintiff moved to remand the case because the adjuster is a Texas resident. In its notice of removal, however, the insurer also elected to accept the adjuster’s liability pursuant to § 542A.006 of the Texas Insurance Code. The insurer’s election under § 542A.006 requires that the adjuster be dismissed from the suit. Although courts have incongruously applied § 542.006 when the election is made in state court proceedings or concurrently with removal, the court determined that an insurer’s § 542A.006 election made concurrently with removal means that the plaintiff had no possibility of recovery against the adjuster at the time of removal and, therefore, the adjuster was improperly joined. Accordingly, the court denied the motion to remand.

Personal Injury; Daubert Motions Marchlewicz v. Bros. Xpress, Inc., No. SA19-CV-00996-DAE (Chestney, E., December 10, 2020).

The defendants moved to strike and/or limit certain expert testimony offered by the plaintiff in this personal injury case arising out of an 18-wheeler accident. The court denied

without prejudice the motions to strike the testimony of a non-retained investigating officer and a treating physician because reliability challenges are more appropriately made through cross-examination. The defendants also challenged certain aspects of the plaintiff’s retained “motor fleet supervision” expert. While the parties do not dispute the safety expert’s qualifications regarding federal safety regulations, the court granted the defendants’ motion prohibiting the safety expert from testifying on accident causation because he has no experience or training in accident reconstruction and did not engage in any independent analysis of the accident site or even interview any witnesses.

The court also granted the defendants’ motion to prohibit the safety expert from rendering opinions related to the contractual relationship between the driver of the 18-wheeler and another defendant because such testimony inappropriately reached legal conclusions regarding vicarious liability.

Soledad Valenciano practices commercial and real estate litigation with Spivey Valenciano, PLLC.

Melanie Fry practices commercial litigation and appellate law with Dykema Gossett PLLC.

Charles Carter practices commercial litigation with Dykema Gossett PLLC.

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