Indigent Defense in Dallas

Texas Criminal Defense Lawyers Project

INDIGENT DEFENSE COURSE DIRECTORS: Lynn Richardson & Rick Wardroup February 11, 2022 • Dallas, TX

Texas Criminal Defense Lawyers Association

Indigent Defense - Dallas Table of Contents

-Speaker

Topic February 3, 2022

Kenya Woodruff Clayton Cox Brad Lollar and Brook Busbee Shea Place Vicki Rice and Lynn Richardson Christopher Young Rick Wardroup

HIPAA in the Defense of Citizens Accused Involuntary Commitments Preparing and Trial of a Capital Murder Case Legislative Update Client Centered Representation and Community Engagement for Defense Counsel Wrongful Convictions Maintaining Personal Mental Health in Trying Times

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

INDIGENT DEFENSE SEMINAR INFORMATION Date Location Course Directors Total CLE Hours

Friday, February 11, 2022 Aloft Dallas Downtown | 1033 Young Street Dallas, TX 75202 Lynn Richardson and Rick Wardroup 7.0

Ethics: 1.0

Friday, February 11, 2022 Time

CLE

Topic

Daily CLE Hours: 7.0 Ethics: 1.0 Speaker

8:00 am

Registration and Continental Breakfast

8:30 am

Opening Remarks

Lynn Richardson

8:45 am

1.0

HIPAA in the Defense of Citizens Accused

Kenya Woodruff

9:45 am

1.0

Involuntary Commitments

Clayton Cox

Break

10:45 am 11:00 am

1.0

12:00 pm 12:15 pm

Preparing and Trial of a Capital Murder Case

Brad Lollar and Brook Busbee

Lunch Line 1.0

1:15 pm

Lunch Presentation: Legislative Update

Shea Place

Break

1:30 pm

1.0

Client Centered Representation and Community Engagement for Defense Counsel

Vicki Rice and Lynn Richardson

2:30 pm

1.0

Wrongful Convictions

Christopher Young

3:30 pm

1.0

Maintaining Personal Mental Health in Trying Times

Rick Wardroup

4:30 pm

Adjourn

TCDLA • 6808 Hill Meadow Drive • Austin, Texas 78736 • 512.478.2514 p • 512.469.9107 f • www.tcdla.com P021017V

Texas Criminal Defense Lawyers Association

Indigent Seminar February 11, 2022 1033 Young Street Dallas, TX 75202

Topic: HIPPA in the Defense of Citizens Accused Speaker:

Kenya Woodruff

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

Indigent Seminar

February 11, 2022 Aloft Dallas Downtown 1033 Young Street Dallas, TX 75202

Topic: Identifying the Youthful Offender and the AIM (Achieve, Inspire and Motivate) Diversion Court Speaker:

Clayton Cox

133 N Riverfront Blvd Suite C-1 LB 2 Dallas, TX 75212 (972) 313-5691 Phone clayton.cox@dallascounty.org

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

Indigent Seminar

February 11, 2022 Aloft Dallas Downtown 1033 Young Street Dallas, TX 75202

Topic: Preparing and Trial of a Capital Murder Case Speaker:

Brook Busbee

133 N Riverfront Blvd LB2 Dallas, TX 75207 (214) 653-5301 Phone (214) 653-3539 Fax brook.busbee@dallascounty.org www.brookbusbee.com

Brad Lollar

133 N Riverfront Blvd LB2 Dallas, TX 75207-4339 (214) 653-5674 Phone (214) 384-8178 Fax Bklollar@sbcglobal.net

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Knowing and Managing Your Client- A Checklist Preface: I practiced for more years than I care to admit before I realized how valuable this is.

You can’t do this with all of your clients- but if a case is serious, headed to jury trial or open plea this is a valuable method which can give you those “hooks” that make your client sympathetic to the finder of fact, and help you gain control over your client. Sometimes using this method can give you an alternative sentencing option, or suggest the need for an expert to be appointed for assistance.

First Meetings: Set aside an hour or more.

Your client is intimidated by you. This can be manifested by shyness, aggression, evasion or other unhelpful attitudes. You can overcome even the most ill-tempered client-eventually.

Do not sit across a desk. Use relaxed body posture. Offer a beverage.

Round table is preferable- relaxed atmosphere NOT THE WORKROOM. Do not allow mom, wife best friend, etc.

Emphasize how confidentiality works -give examples.

Most clients want to talk- let them. You’ll never progress otherwise.

Don’t show impatience or boredom.

Second and Subsequent meetings with Client: This takes time and often many meetings, park your impatience and use this time to hone your listening/perception skills.

You are building trust and hopefully learning your client’s cues.

Knowing and Managing your Client

Page 1

Let the client direct the flow of conversation- they’ll tire eventually and start asking you questions.

Family Interview(s) If needed- get them in your office conference room together. It is better NOT to have the client present at first. Families don’t like to air mental illness or abuse, so explaining how this information can be critical- and giving examples- can help.

Tell them they may contact you at any time (because they may not want to spill in front of the entire family) if they remember anything that may help.

Get the sister-in-law alone and on your side. I have a day’s worth of sister-in-law tales, but the family dynamic makes her the source for what you are NOT being told.

Why are you wasting all this time? This is where you find things out that you will never learn from a traditional interview. Clients do not know what is important to their case, and only want to tell you what makes them look good. Unfortunatelythis takes an investment of time, but pays off in effectiveness of your defense.

Random Thoughts I started this maybe 15 years into my private practice and began noticing that my cross-examinations improved as I could pick up similar cues often from witnesses.

Clients are annoying and repetitive. Don’t try this if you are rushed or in a bad mood- it requires a tremendous amount of patience- we aren’t trained to listen to our clients, only to instruct them. I don’t find ordering a client around to be a good strategy, but I have found that an hour or two of listening and showing interest in my client’s fears and concerns results more often than not in a client who will take my advice.

Knowing and Managing your Client

Page 2

I am not telling you to be your client’s buddy. That is not the goal and really never works- you want to be the professional who is approachable and cares. Fake it if necessary!

Contact me for any questions or comments.

Brook Busbee brook.busbee@dallascounty.org

Knowing and Managing your Client

Page 3

Why the Jury in the Erbie Bowser Case Didn’t Give Him Death Brad Lollar

In September 2013, Erbie Bowser, a 45- year old man, killed his girlfriend and her teenaged daughter, then shot the girlfriend’s son and daughter’s friend.

Before leaving the residence, the defendant asked the wounded girl “Where did I shoot you?” and “Don’t call the police, or I’ll kill you.”

Erbie then drove his car five miles from Dallas to DeSoto and attacked the home of his estranged wife. He busted in a back door, threw a hand grenade into the house, then killed his wife in a downstairs bedroom and then shot and killed her daughter while she pled for her life and shot two of her grandsons, 10 and 13, who were hiding in an upstairs closet. The police are closing in, as the shootings are all captured on 911 calls, and as they are coming up the stairs, Erbie is telling them “It’s all clear up here.” He is found lying face down, motionless, seemingly catatonic, in a playroom just outside the bedroom where the girl is found dead and her brothers wounded. One of the brothers is paralyzed from the shots.

In total, within one hour’s time, Erbie Bowser shot and killed four women and seriously wounded four children. The second crime scene is captured essentially as it happened by the 911 calls that were being made and the body- cam videos worn by DeSoto police.

Erbie had some previous family violence crimes in his history, but really had no other significant prior criminal offenses. He had played football at TCU, had joined the army and gotten an honorable discharge after 9 years and then had taught special education classes at the Mesquite schools for 10 years.

It was revealed during trial that the defendant was secretly taping the 17year old daughter of his girlfriend (one of the victims) while she was in the shower.

In short, Erbie Bowser committed one of the most heinous murder sprees in Dallas County history.

Yet a Dallas County jury, in May, 2017, heard the case and could not agree on the answers to the special issues in such a way as to result in a death sentence. On May 12, Erbie Bowser was sentenced to Life Without Parole in the 363rd Judicial District Court.

This note is my attempt to explain why the jury did not assess a death penalty in this case. Of course, these are my personal observations.

I.

In our case, Desoto police, after arresting the defendant at the scene of the second crime, took him to their jail, where they have a 24-hour video surveillance system in place, and put him in a “rubber room” where he was videotaped for the next 13 hours.

I am absolutely convinced that if we had not had available the video taken of Erbie showing his physical and mental condition, we would not have gotten the conclusion we did.

Bowser is seen being wheeled into the jail on a gurney from a police car, and placed into the rubber room. He is obviously in severe mental distress, although the cause of his distress is not obvious. The jailers and detectives are heard on the tape describing his condition as “being totally out of it” and “catatonic”. He is such bad condition that homicide detectives from both DeSoto and Dallas make no attempt to question him about the murders.

By another stroke of luck as it turns out, 12 hours after he is placed in the DeSoto jail, they attempt to move him to the county jail, but he ends up being tased twice by the jailers. The condition of having been recently tased makes him unacceptable to the county jail, so DeSoto was required to take him to Parkland Hospital to be checked out before he could be taken to the jail.

II.

At Parkland Hospital, Erbie is noted as being in an Altered Mental State by the emergency room personnel. Again the reason is not obvious, although the general thought was that he was under the influence of some illegal drug, probably PCP. Tests are taken which reveal that he has taken no drugs or even alcohol, but is suffering from a low sodium count in his body, resulting in a condition known as Hyponatremic Psychosis. This is a condition that results from the body’s sodium count, which is normally from 36-45, going lower than that. Erbie’s was at a 25 upon entry into Parkland. It is not a condition that can be self-induced, but it may occur as a side effect of taking certain prescription drugs. Erbie is admitted into Parkland so that this condition can be addressed.

The doctors immediately start giving Erbie intravenous fluids that rectify his condition and 48 hours later he is released and taken to the county jail.

In my opinion, the fact that Erbie was taken to Parkland Hospital where the independent doctors there determined he was in a psychotic state not due to illegal use of drugs within 24 hours of the murders is the second reason the jury was unable to sentence him to death.

III.

Erbie’s incarceration in the Dallas County Jail lasted for 3 years and 9 months before his trial.

During that time, the jail medical and psychiatric staff monitored him and prescribed numerous anti-psychotic drugs, as well as drugs for depression and mood-stabilization.

Erbie proved to be the perfect inmate, and even got himself moved from a single-cell to general population, an event unheard of in Dallas for a person charged with such an offense as he was. He only got in a couple of fights in that period of time and both of those times he was not the aggressor, according to jail guards and fellow inmates. His behavior was so good, in fact, that we were able to call to the stand in the punishment phase twelve of his jailers to tell the jury what a good prisoner Erbie was, an event unprecedented in Dallas County. The jailers testified that Erbie was “a peacekeeper” among the inmates.

Thus, exemplary behavior in jail awaiting trial became the third reason why Erbie was not given death. We emphasized with the jurors in voir dire and during trial and final argument that the death penalty was reserved for those who could not be safely imprisoned and who were a constant irritant to the penal system. We urged that Special Issue 1 was the dividing line between death and LWOP, and that death was reserved for those the state could prove beyond a reasonable doubt were probably going to be a future danger to the jailers and persons around him in the penitentiary.

IV.

Fourth, Erbie Bowser had incredible mitigating factors working for him.

Not only did he not have a serious criminal history, he had worked faithfully in beneficial occupations all his life. He had been a football hero in high school, which led to him being the first in his family to go to college. He had earned a bachelors degree and was working on a masters in education. He had entered the military and was very good at being a soldier, only leaving the service when his weight got out of control. Then, of all things, he became a teacher, and not only a teacher, a teacher of emotionally disturbed children, and he was very good at that as well.

Apart from “good mitigation”, Erbie suffered from several medical and mental conditions that were notable: his first and second wife testified that he suffered from PTSD. We presented expert testimony that he probably suffered from Chronic Traumatic Encephalopathy from his football days. And, of course, we had that psychosis arising from hyponatremia.

MRI Brain scans revealed brain trauma and we were able to show to the jury not only brain shearing lesions but an atrophied hippocampus, probably as a result of the CTE. Other sympathy-inducing factors that Erbie’s case presented were:

A) He was the product of rape and never knew his biological father (never was able to discover if any of his deficits were inherited or not); B) He was raised in poverty, although he had a loving family life;

C) His mother basically abandoned him to be raised by his maternal grandmother, which resulted in trust issues with women his whole life.

V.

Another reason Erbie didn’t get the death penalty was because we selected a very good jury for his trial.

In the final analysis, the jury did what you would hope a jury would do: They followed the law. (Or at least, enough of them did to deprive the state of a death sentence.)

We had a unique jury. Three of the fourteen qualified jurors held doctorates (2 medical doctors and 1 attorney). Five of the jurors held masters degrees. Two of the jurors were engineers. One was a jury selection consultant and psychologist.

Two were nurses.

To their credit, three of the jurors believed that the state had not proven beyond a reasonable doubt that the defendant would be a future danger in the penitentiary to those around him, and they stuck to their guns about that, a factor rarely seen in capital juries.

Also, this jury received the message loud and clear that if everyone didn’t agree on an answer, that was OK, and that they shouldn’t try to browbeat or bully the dissenters into changing their positions. Even the jury foreperson, who was against us, observed that the three dissenters were entitled to their opinion and their verdict.

The jury never even reached the mitigation question. The three jurors held out on the future dangerousness issue. The jury persisted in that division despite receiving an Allen charge.

It was, in the end, a marvelous example of what jury deliberation in such a case is supposed to be.

VI.

Lastly, Erbie Bowser had a good legal team defending him. He had good, knowledgeable, experienced trial lawyers representing him. He had good appellate counsel, who was present and contributing throughout the trial and trial preparation process. He had good investigation. He had a good mitigation team. He had the support of a good organization that responded when called upon when necessary to assist. We were able to retain and present good expert testimony on a host of issues.

And, while the trial judge at times seemed to be leading the charge against us, she did let us present our defense, she did let us present our evidence, and she paid the bills without hesitation.

Conclusion.

We had a unique case: An absolutely horrific crime countered by undeniably mitigating evidence.

We had video and audio of an obviously mentally disturbed individual taken by the jail within 90 minutes of the murders.

We had medical diagnoses by disinterested independent doctors at a trusted medical facility that was beneficial to our client.

We had an unusual client: one that did not have a serious history of violent criminal acts, one that had held esteemed positions in honorable occupations throughout his life. We had good character witnesses we were able to call on his behalf. We had undeniable proof, through MRIs and a 17- year demonstrable history with the VA Hospital and jail psychs, that Erbie had long-standing psychiatric illnesses (PTSD, CTE, TBI, depression). We had a client who had been peaceful and even helpful to his jailers, for 3 years, 9 months preceding his trial.

Since we entered a plea of Not Guilty by Reason of Insanity, we were able to force the state to present all of the offenses in the Guilt/Innocence phase of the trial and we were able to front-load our mitigation.

It is for these reasons, in my opinion, that Erbie Bowser received a life sentence in this case.

Bowser Team: Trial lawyers Brad Lollar, Andy Beach, Karen Lambert, Bernard Nwaiwu Appellate specialist lawyer Christi Dean Fact investigator Jimmy Spurger Mitigation Specialist Brendan Ross Consulting Neuropsychologist Dr. Antoinette McGarrahan Neuropsychologist Dr. Jorge Romero Hyponatremia expert Dr. Michael Moritz Drug interaction expert Dr. Ed French MRI specialist testifying witness Dr. Jeffrey Lewine Military consulting attorney Brock Hunter Military testifying expert witness Dr. William Brown Military testifying PTSD expert witness Dr. Ernie Boswell National prison expert Jim Aiken Texas prison expert Frank Aubuchon CTE testifying expert Dr. Tony Strickland Psychiatric testimony ring leader Dr. John Fabian

From: Bradley K Lollar <bklollar@sbcglobal.net> Subject: [External Sender]Significant Supreme Court rulings re: Death Penalt Date: January 31, 2022 at 12:15:48 PM CST To: Brad Lollar <bradley.lollar@dallascounty.org> Significant Supreme Court rulings re: Death Penalty since I began to practice defense law in 1982

Could execute the insane until Ford v. Wainwright (1986).

Mitigation didn’t matter. Texas law didn’t allow for any type of mitigation, until Penry 1 (1989) Could execute the intellectually disabled until Atkins v. Virginia (2002) Nexus requirement - Earhart v. State (1994) - Tennard v. Dretke (2004) Could execute juveniles until Roper v. Simmons (2005) You could get LWOP for juveniles until Miller v. Alabama (2012) There was a “bright line” cutoff point at 70 for I.D. until Hall v. Florida (2014) Texas specific: Briseno - 2004 Moore v. Texas 1 - 2017 - Briseno is dead.

Moore v. Texas 2 - 2019 - Briseno is really, really dead.

You can still execute someone who was suffering from a severe mental illness at the time of the murder, but they do have to be competent to execute them.

Thanks, Brad Lollar Board Certified in Criminal Law

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Why the Jury in the Erbie Bowser Case Didn’t Give Him Death Brad Lollar

In September 2013, Erbie Bowser, a 45- year old man, killed his girlfriend and her teenaged daughter, then shot the girlfriend’s son and daughter’s friend.

Before leaving the residence, the defendant asked the wounded girl “Where did I shoot you?” and “Don’t call the police, or I’ll kill you.”

Erbie then drove his car five miles from Dallas to DeSoto and attacked the home of his estranged wife. He busted in a back door, threw a hand grenade into the house, then killed his wife in a downstairs bedroom and then shot and killed her daughter while she pled for her life and shot two of her grandsons, 10 and 13, who were hiding in an upstairs closet. The police are closing in, as the shootings are all captured on 911 calls, and as they are coming up the stairs, Erbie is telling them “It’s all clear up here.” He is found lying face down, motionless, seemingly catatonic, in a playroom just outside the bedroom where the girl is found dead and her brothers wounded. One of the brothers is paralyzed from the shots.

In total, within one hour’s time, Erbie Bowser shot and killed four women and seriously wounded four children. The second crime scene is captured essentially as it happened by the 911 calls that were being made and the body- cam videos worn by DeSoto police.

Erbie had some previous family violence crimes in his history, but really had no other significant prior criminal offenses. He had played football at TCU, had joined the army and gotten an honorable discharge after 9 years and then had taught special education classes at the Mesquite schools for 10 years.

It was revealed during trial that the defendant was secretly taping the 17year old daughter of his girlfriend (one of the victims) while she was in the shower.

In short, Erbie Bowser committed one of the most heinous murder sprees in Dallas County history.

Yet a Dallas County jury, in May, 2017, heard the case and could not agree on the answers to the special issues in such a way as to result in a death sentence. On May 12, Erbie Bowser was sentenced to Life Without Parole in the 363rd Judicial District Court.

This note is my attempt to explain why the jury did not assess a death penalty in this case. Of course, these are my personal observations.

I.

In our case, Desoto police, after arresting the defendant at the scene of the second crime, took him to their jail, where they have a 24-hour video surveillance system in place, and put him in a “rubber room” where he was videotaped for the next 13 hours.

I am absolutely convinced that if we had not had available the video taken of Erbie showing his physical and mental condition, we would not have gotten the conclusion we did.

Bowser is seen being wheeled into the jail on a gurney from a police car, and placed into the rubber room. He is obviously in severe mental distress, although the cause of his distress is not obvious. The jailers and detectives are heard on the tape describing his condition as “being totally out of it” and “catatonic”. He is such bad condition that homicide detectives from both DeSoto and Dallas make no attempt to question him about the murders.

By another stroke of luck as it turns out, 12 hours after he is placed in the DeSoto jail, they attempt to move him to the county jail, but he ends up being tased twice by the jailers. The condition of having been recently tased makes him unacceptable to the county jail, so DeSoto was required to take him to Parkland Hospital to be checked out before he could be taken to the jail.

II.

At Parkland Hospital, Erbie is noted as being in an Altered Mental State by the emergency room personnel. Again the reason is not obvious, although the general thought was that he was under the influence of some illegal drug, probably PCP. Tests are taken which reveal that he has taken no drugs or even alcohol, but is suffering from a low sodium count in his body, resulting in a condition known as Hyponatremic Psychosis. This is a condition that results from the body’s sodium count, which is normally from 36-45, going lower than that. Erbie’s was at a 25 upon entry into Parkland. It is not a condition that can be self-induced, but it may occur as a side effect of taking certain prescription drugs. Erbie is admitted into Parkland so that this condition can be addressed.

The doctors immediately start giving Erbie intravenous fluids that rectify his condition and 48 hours later he is released and taken to the county jail.

In my opinion, the fact that Erbie was taken to Parkland Hospital where the independent doctors there determined he was in a psychotic state not due to illegal use of drugs within 24 hours of the murders is the second reason the jury was unable to sentence him to death.

III.

Erbie’s incarceration in the Dallas County Jail lasted for 3 years and 9 months before his trial.

During that time, the jail medical and psychiatric staff monitored him and prescribed numerous anti-psychotic drugs, as well as drugs for depression and mood-stabilization.

Erbie proved to be the perfect inmate, and even got himself moved from a single-cell to general population, an event unheard of in Dallas for a person charged with such an offense as he was. He only got in a couple of fights in that period of time and both of those times he was not the aggressor, according to jail guards and fellow inmates. His behavior was so good, in fact, that we were able to call to the stand in the punishment phase twelve of his jailers to tell the jury what a good prisoner Erbie was, an event unprecedented in Dallas County. The jailers testified that Erbie was “a peacekeeper” among the inmates.

Thus, exemplary behavior in jail awaiting trial became the third reason why Erbie was not given death. We emphasized with the jurors in voir dire and during trial and final argument that the death penalty was reserved for those who could not be safely imprisoned and who were a constant irritant to the penal system. We urged that Special Issue 1 was the dividing line between death and LWOP, and that death was reserved for those the state could prove beyond a reasonable doubt were probably going to be a future danger to the jailers and persons around him in the penitentiary.

IV.

Fourth, Erbie Bowser had incredible mitigating factors working for him.

Not only did he not have a serious criminal history, he had worked faithfully in beneficial occupations all his life. He had been a football hero in high school, which led to him being the first in his family to go to college. He had earned a bachelors degree and was working on a masters in education. He had entered the military and was very good at being a soldier, only leaving the service when his weight got out of control. Then, of all things, he became a teacher, and not only a teacher, a teacher of emotionally disturbed children, and he was very good at that as well.

Apart from “good mitigation”, Erbie suffered from several medical and mental conditions that were notable: his first and second wife testified that he suffered from PTSD. We presented expert testimony that he probably suffered from Chronic Traumatic Encephalopathy from his football days. And, of course, we had that psychosis arising from hyponatremia.

MRI Brain scans revealed brain trauma and we were able to show to the jury not only brain shearing lesions but an atrophied hippocampus, probably as a result of the CTE. Other sympathy-inducing factors that Erbie’s case presented were:

A) He was the product of rape and never knew his biological father (never was able to discover if any of his deficits were inherited or not); B) He was raised in poverty, although he had a loving family life;

C) His mother basically abandoned him to be raised by his maternal grandmother, which resulted in trust issues with women his whole life.

V.

Another reason Erbie didn’t get the death penalty was because we selected a very good jury for his trial.

In the final analysis, the jury did what you would hope a jury would do: They followed the law. (Or at least, enough of them did to deprive the state of a death sentence.)

We had a unique jury. Three of the fourteen qualified jurors held doctorates (2 medical doctors and 1 attorney). Five of the jurors held masters degrees. Two of the jurors were engineers. One was a jury selection consultant and psychologist.

Two were nurses.

To their credit, three of the jurors believed that the state had not proven beyond a reasonable doubt that the defendant would be a future danger in the penitentiary to those around him, and they stuck to their guns about that, a factor rarely seen in capital juries.

Also, this jury received the message loud and clear that if everyone didn’t agree on an answer, that was OK, and that they shouldn’t try to browbeat or bully the dissenters into changing their positions. Even the jury foreperson, who was against us, observed that the three dissenters were entitled to their opinion and their verdict.

The jury never even reached the mitigation question. The three jurors held out on the future dangerousness issue. The jury persisted in that division despite receiving an Allen charge.

It was, in the end, a marvelous example of what jury deliberation in such a case is supposed to be.

VI.

Lastly, Erbie Bowser had a good legal team defending him. He had good, knowledgeable, experienced trial lawyers representing him. He had good appellate counsel, who was present and contributing throughout the trial and trial preparation process. He had good investigation. He had a good mitigation team. He had the support of a good organization that responded when called upon when necessary to assist. We were able to retain and present good expert testimony on a host of issues.

And, while the trial judge at times seemed to be leading the charge against us, she did let us present our defense, she did let us present our evidence, and she paid the bills without hesitation.

Conclusion.

We had a unique case: An absolutely horrific crime countered by undeniably mitigating evidence.

We had video and audio of an obviously mentally disturbed individual taken by the jail within 90 minutes of the murders.

We had medical diagnoses by disinterested independent doctors at a trusted medical facility that was beneficial to our client.

We had an unusual client: one that did not have a serious history of violent criminal acts, one that had held esteemed positions in honorable occupations throughout his life. We had good character witnesses we were able to call on his behalf. We had undeniable proof, through MRIs and a 17- year demonstrable history with the VA Hospital and jail psychs, that Erbie had long-standing psychiatric illnesses (PTSD, CTE, TBI, depression). We had a client who had been peaceful and even helpful to his jailers, for 3 years, 9 months preceding his trial.

Since we entered a plea of Not Guilty by Reason of Insanity, we were able to force the state to present all of the offenses in the Guilt/Innocence phase of the trial and we were able to front-load our mitigation.

It is for these reasons, in my opinion, that Erbie Bowser received a life sentence in this case.

Texas Criminal Defense Lawyers Association

Indigent Seminar

February 11, 2022 Aloft Dallas Downtown 1033 Young Street Dallas, TX 75202

Topic: Legislative Update Speaker:

Shea Place

4511 Jinx Ave Austin, TX 78745 (512) 477-6424 Phone shea@allenplacelaw.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

Indigent Seminar

February 11, 2022 Aloft Dallas Downtown 1033 Young Street Dallas, TX 75202

Topic: Client Centered Representation and Community Engagement for Defense Counsel Speaker: Vickie Rice 133 N Riverfront Blvd Ste 2 Dallas, TX 75207-4339 (214) 653-3543 Phone (214) 653-3539 Fax vrice@dallascounty.org

Lynn Richardson

2113 Shari Ln Garland, TX 75043-1460 (214) 653-3554 Phone (214) 653-3539 Fax LRichardson@dallascounty.org

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

Indigent Seminar

February 11, 2022 Aloft Dallas Downtown 1033 Young Street Dallas, TX 75202

Topic: Wrongful Convictions Speaker:

Christopher Young 133 N. Riverfront Blvd LB 19 Dallas, TX 75207-4361 (214) 653-3580 Phone cdyoung@dallascounty.org

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

Indigent Seminar

February 11, 2022 Aloft Dallas Downtown 1033 Young Street Dallas, TX 75202

Topic: Maintaining Personal Mental Health in Trying Times Speaker:

Rick Wardroup 915 Texas Ave Lubbock, TX 79401-2725 (806) 763-9900 Phone (806) 762-1699 Fax rwardroup@tcdla.com

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

TCDLEI TCDLEI TCDLEI TCDLEI TCDLEI CDLP CDLP CDLP CDLP CDLP TCDLA TCDLA TCDLA TCDLA TCDLA TCDLEI TCDLEI TCDLEI TCDLEI TCDLEI CDLP CDLP CDLP CDLP CDLP TCDLA TCDLA TCDLA TCDLA TCDLA

OUR HISTORY

Since 1971, Texas Criminal Defense Lawyers Association has provided a statewide forum for criminal defense lawyers. TCDLA is the only voice in the legislature interested in basic fairness in criminal cases.

From its beginning as a small association of 260 members, to today with a full staff, officers, board members and more than 2,500 members, TCDLA has played an important role among criminal defense lawyers, providing assistance, support and continuing education.

TCDLA has developed a number of affiliations over the last few years which provided a presence and eagerness to help criminal defense lawyers across the state of Texas.

TCDLA continues to foster these relationships and develop additional affiliations.

As part of this association you share a voice with 2,500 like mind individuals in more than 150 counties across the state.

The Texas Criminal Defense Lawyers Association strives to protect and ensure by rule of law those individual rights guaranteed by the Texas and Federal Constitutions in criminal cases; to resist the constant efforts which are being made to curtail these rights; to encourage cooperation between lawyers engaged in the furtherance of these objectives through educational programs and other assistance; and through this cooperation, education and assistance, to promote justice and the common good.

The Criminal Defense Lawyers Project strives to improve the competency of defense lawyers through designing and promoting a series of continuing legal education seminars and producing legal publications available at low cost to attorneys throughout the state.

The Texas Criminal Defense Lawyers Educational Institute is committed to ensuring the fair administration of justice in Texas through the continuing legal education of criminal defense lawyers and their staffs.

For more information about the association, or to learn about upcoming CLE seminars and events, please visit www.tcdla.com.

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TEXAS INDIGENT DEFENSE COMMISSION – ATTORNEY CASELOAD REPORTING & WEIGHTED CASELOAD STUDY HB 1318 was the most significant bill related to indigent defense passed by the 83rd Texas Legislature. It includes significant new reporting requirements related to caseloads handled by attorneys providing representation to indigent defendants. Commission staff met with a variety of stakeholders, including court and county officials, criminal defense practitioners, legislative staff, national authorities, and others to find ways to effectively implement HB 1318 in a seamless manner while providing meaningful information to policymakers.

New Attorney Reporting – HB 1318 included the following provision in Article 26.04, Code of Criminal Procedure: An attorney appointed under this article shall: … not later than October 15 of each year and on a form prescribed by the Texas Indigent Defense Commission, submit to the county information, for the preceding fiscal year, that describes the percentage of the attorney's practice time that was dedicated to work based on appointments accepted in the county under this article and Title 3, Family Code.

Beginning October 15, 2014, the bill requires all attorneys handling indigent defense cases to annually report to the county for the preceding fiscal year (October 1st - September 30th) the percentage of the attorney's practice time that was dedicated to appointed 1) criminal cases (trial and appeals) and 2) juvenile work (trial and appeals) in the county. This report should not include work on other types of appointed work such as CPS or guardianship cases, nor should it include practice time devoted to federal criminal appointments. Attorneys must submit this report to each county in which they accept appointments.

With significant input from TCDLA leadership, the Commission adopted this form and reporting instructions. The Commission is working with our partners at Texas A&M’s Public Policy Research Institute (PPRI) to create an electronic attorney reporting portal. This will permit attorneys to report their work in all counties at the same time directly to the Commission, with the report viewable by the counties. The judges in each county may specify through their indigent defense plan the method for attorneys to use for submitting their report (online or paper form).

Attorneys are not required to use a particular methodology to complete the practice time report. Some may do so by using time records, if they keep such records. Other attorneys may use a case counting methodology. The reporting form will ask the attorney to note what method(s) they used to calculate the percentage figures reported.

The Commission is working with TCDLA to develop a worksheet(s) that attorneys may use to help calculate the practice time percentages. The worksheet will help an attorney allocate their practice time among various case types and counties. Use of the worksheet is strictly voluntary and will not be submitted to the county or Commission.

Penalties for failing to submit a required practice time report by the October 15th due date may be prescribed by the judges handling criminal or juvenile cases in each county. Many judges have already chosen to amend their indigent defense plans to provide for an attorney’s removal from the list of attorneys eligible to receive future court appointments until they complete the report. This is similar to current enforcement of the annual CLE requirements.

Please review your local plan available at: http://tidc.tamu.edu/public.net/Reports/IDPlanNarrative.aspx

New County Reporting of Attorney Caseloads – HB 1318 included the following provision in Section 79.036, Government Code: Not later than November 1 of each year and in the form and manner prescribed by the commission, each county shall prepare and provide to the commission information that describes for the preceding fiscal year the number of appointments under Article 26.04, Code of Criminal Procedure, and Title 3, Family Code, made to each attorney accepting appointments in the county, and information provided to the county by those attorneys under Article 26.04(j)(4), Code of Criminal Procedure.

In addition to the attorney reporting requirements above, starting November 1, 2014 the bill requires each county to submit to the Commission annually the information provided to the county by the attorneys described above, along with information that describes for the preceding fiscal year the number of appointments made to each attorney accepting appointments in the county.

As to the new county reporting of case and fee data by attorney, the Commission decided based on its consultation with stakeholders to build on the existing reporting infrastructure in the annual Indigent Defense Expenditure Report (IDER). The IDER already requires county auditors (or treasurers) to report the aggregate number of cases paid by case type (Juvenile, Capital Murder, Adult Felony, Adult Misdemeanor, Juvenile Appeals, Felony Appeals, and Misdemeanor Appeals) and by court along with the amount paid each year by November 1st (the same date as the new reporting requirement). The new report will require this information to be broken down by attorney. County auditors have indicated that they already collect this information as part of the attorney payment process.

Weighted Caseload Study – HB 1318 included the following provision: Not later than January 1, 2015, the Texas Indigent Defense Commission shall conduct and publish a study for the purpose of determining guidelines for establishing a maximum allowable caseload for a criminal defense attorney that, when the attorney's total caseload, including appointments made under Article 26.04, Code of Criminal Procedure, appointments made under Title 3, Family Code, and other work, is considered, allows the attorney to give each indigent defendant the time and effort necessary to ensure effective representation. The study must be based on relevant policies, performance guidelines, and best practices. In conducting the study … the commission shall consult with criminal defense attorneys, criminal defense attorney associations, the judiciary, and any other organization engaged in the development of criminal indigent defense policy that the commission considers appropriate.

The goal is to provide policymakers with an objective analysis of the time required to represent different types of court-appointed cases. This kind of study has not been done in Texas before, but jurisdictions around the country have undertaken similar research because they have recognized the value of understanding data and its power to help improve their justice systems. The Commission is working with PPRI to conduct the weighted caseload study.

Attorneys have been recruited to document and categorize their time spent on cases for twelve weeks using simple timekeeping software developed by JusticeWorks. At the conclusion of the data collection phase, a panel of experts will review the time data together with survey data and make recommendations regarding the time demands of various types of cases.

While this study will not be the last word on indigent defense needs in Texas, it will be an evidence informed starting point to demonstrate what is necessary to provide appropriate representation in various types of cases.

The information learned through the study may serve as a management tool to guide decision making for public defenders and managed assigned counsel systems. For assigned counsel systems, the study will provide objective information to the courts about the resources different types of cases typically demand. This study will also provide policymakers at the state and local level with objective information upon which to base funding decisions.

To learn more about this research please visit the study website at http://texaswcl.tamu.edu.

WWW.TIDC.TEXAS.GOV

MARCH 2014

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Texas Criminal Defense Lawyers Educational Institute Make a Difference Support an Attorney The Texas Criminal Defense Lawyers Education Institute (TCDLEI) is committed to ensuring the fair administration of justice in Texas through the continuing legal education of criminal defense lawyers and their staff. Your generous tax-deductible contribution to the Texas Criminal Defense Lawyers Educational Institute can be applied in several ways to fund a variety of legal and educational services for our membership.

Deserving members without the wherewithal to attend our seminars can get financial aid to help in their continuing legal education.

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