Sunday, December 18, 2016

REVERSED AND RENDERED ACQUITTED!! REVERSED AND RENDERED ACQUITTED!!

Two and 1/2 years ago, I represented, along with co-counsel Robert McCabe, Mr. Rex Nisbett for the allegation of the murder of his wife, Vicki Lynn Nisbett.  The trial took place in the 26th District Court in Williamson County, Texas, the same courtroom where Michael Morton was officially exonerated for killing his wife two and 1/2 years earlier after spending 25 years in prison. The murder of Ms. Nisbett was alleged to have been committed 22 years prior.  The jury found Mr. Nisbett guilty and assessed him 42 years.

The case was reversed on December 15th, 2016 and Rex was un-convicted and acquitted by the 3rd Court of Appeals in Austin.  One more step remains, and that depends on the State's willingness to appeal to the highest court, and for that court to decide whether to review the ruling.

Read the entire opinion HERE.

The trial of Rex Nisbett should never have taken place.  The foundation of the State's case was built on uncertainty of the cause of death (if it in fact happen), with an incoherent theory of Rex' involvement, and no solid basis to prosecute a case that sat dormant through the prior administrations of Ken Anderson and John Bradley.  Neither of these prior District Attorneys were known for their timidity for prosecuting murder cases.

I was appointed April 14, 2013 and continued as counsel until after the jury made their decision on June 12, 2014.  Robert  and I were discharged on June 26th, 2014 and Kristen Jernigan was appointed appellate counsel.

Throughout the discovery phase of the trial, there was extensive research of the facts surrounding the disappearance of Ms. Nisbett by our team.  Multiple interviews of witnesses took place both in person and by phone.  The majority of the investigation was conducted by Mark Gillespie.  Interviews of the DNA specialists at the Texas Department of Safety, visual inspection of various carpet samples, and interviews with an individual who actually claimed to have seen Vicki after the alleged date of her disappearance were conducted.  The case file was voluminous, limited by the technology of the time of the investigation.

The claimed evidence generally revolved around some small blood remnants on the carpet of the bedroom, a vague print near the light switch, and some odd behavior by Mr. Nisbett.  However, none of these observations pointed to any cause of death, intent to cause death, or place of death.  In other words, there was no evidence of any criminal act by Rex Nisbett.

Nevertheless, the prosecution went forward fueled from a promise by a new inexperienced District Attorney to prosecute "neglected cases".  The prosecution went forward despite supposedly not having found the prosecution file from the previous administrations and claiming it had been "shredded" by the previous administration (my numerous calls to lawyers of the previous administration were met by firm denials that they ever would have done that).  It went forward despite denials of existence of our requests for grand jury transcripts and other information which happened to turn up in an evidence bin at the Sheriff's office 5 days before trial (for strategic purposes we didn't ask for a continuance).

The trial was an exercise in the lack of knowledge of the Rules of Evidence by the prosecution, an effort to undermine the presumption of innocence of the accused, and an effort to turn his right to silence against him.  It was merely a political prosecution.  The prosecutor would get her due in a different case later.

In the end, the jury was worn out by deliberating overnight and starting their second day deadlocked at 7-5.  Their deliberations went into the evening.  After receiving encouragement by the Court to deliberate more, they found him guilty just before being sent to the hotel another night.  Their reasoning for the verdict never made sense to me.

The Court of Appeals decided that there was no evidence that Rex Nisbett caused the death of Vicki Nisbett or there was the requisite mental state to determine that he intentionally or knowingly caused her death. These were the same arguments I had advanced in trial through my Motion for Directed Verdict.  The conclusion of my motion read:


In other words, the circumstantial evidence, even if it supports an inference that Rex Nisbett did something to Vicki Nisbett and that Vicki Nisbett died as a result of that something, nonetheless wholly fails to prove the mens rea Rex Nisbett possessed when he did that something to Vicki Nisbett was the mens rea for murder, as opposed to some other mens rea, such as the mens rea for manslaughter.  The jury‘s finding in this case that Rex Nisbett, with the requisite mens rea, committed an act clearly dangerous to human life that resulted in Vicki Nisbett‘s death or intentionally or knowingly caused Vicki Nisbett‘s death would be based on speculation and cannot support a finding of guilt beyond a reasonable doubt. [Legal cites ommitted] 

I was relieved to see the Court of Appeals use much of the same case law and reasoning to arrive at their judgment, relying on Stobaugh v. State, Megan Winfrey v. State, and others.

The case also presented some irony. Typically the State is organized to prove each element beyond a reasonable doubt.  The case is organized through witnesses and documentary evidence to prove each and every element down to the intent, time, and location.  The Defense on the other hand, often tries to distract away from the law, pulling at heart strings, exuding sympathy, and/or even fostering disdain for the law, but always concentrates on holding the state to their burden. However, in this case, it turned out to be our mission as the defense team to stay focused on the law and the State's burden of proving each and every element of the offense.  In the end, the jury was swayed more by Rex' odd behavior than any evidence pointing to his guilt. The State could never decide what theory to push, whether it be choking, head injury, or some other theory because they simply did not have evidence of any of those that resulted in Ms. Nisbett's death.  And even in the State's explanation of the case to this day, could they ever proffer anything but innuendo and guess work, all refuted by the Court's opinion.

This case has dogged me for 2 and 1/2 years.  And while it is over for me now, There is one more step for Rex.  He is crossing his fingers that the Court of Criminal Appeals will not find flaws in the reasoning of the Court of Appeals.  After that, this case will no doubt open up wounds for a family and healing for another. The only closure for all, will be to find out what really happened to Vicki Lynn Nisbett.

See news reports HERE and HERE.

Wednesday, April 13, 2016

TRIAL DOGS 2015: ACCOLADES AND RECOGNITION (BELATED EDITION)

AFTER LONG DELIBERATIONS AND CONTENTIOUS DEBATE, THE COMMITTEE FINALLY VOTED THE TRAVIS COUNTY AWARDS:

BEST QUOTE:
"I was laying in the field and the grackle said to me: What are you doing here?"
        --Defendant testifying in a murder trial

HUMANITARIAN AWARD:
Elsie Craven
Successful Asylum and Immigration Representation

TRIAL DOGS (Travis):
Jackie Wood
Armando Pena
Raymond Espersen
Tom Flanagan/Steve Lee
Skip Davis
Mary Ann Espiritu Conejo/Joseph Aragon
Russ Hunt
Charlie Baird
Ariel Payan
Bill Browning

LA ANTORCHA DE JUSTICIA AWARD
(Defense Lawyer who prosecutors fear the most)
Raymond Espersen

WORKHORSES OF THE YEAR
(Allows their employer to take those exotic vacations)
Robert Smith-Law Offices of David Chambers
Jesus Salinas-Law Office of Lusk & Evans
Mike Burke-Peek & Toland

BEST DRESSED MEN
Ricardo Maldonado
Novert Morales
Sidney Williams
Jeremy Sylestine
Ben Blackburn
Brad Urrutia
Todd Dudley
Lucio Del Toro
Josh Reno
Craig Moore
Geoffrey Puryear

BEST SHOES
Julie Arocha
Jessica Bernstein
Jana Ortega
Claire Carter
Sheila Merino
Kathy Erickson
Eloisa Garcia
Monica Flores
Yvonne Patton
Rory Perez
Adam Reposa

BEST INNOVATIONS IN THE PRACTICE OF LAW
AMP web site (second year in a row)

BEST BEARDS
none (they are out of style)

SHERLOCK HOLMES INVESTIGATOR AWARD
Mark Gillespie

SPECIAL AWARDS
Charles Popper-Del Valle Visitation Award (repeat winner)

BEST SIDE BUSINESS
Fire & Ice Pizza Bar (Round Rock)-Adam Reposa

BEST COURTHOUSE COFFEE
(tied)
299th District Court
147th District Court
Magistrate Court
427th District Court

NOTE:  THE COMMITTEE IS A SECRET CABAL WHO MEETS IN SECRET IN AN UNDISCLOSED LOCATION WITH ENTRY ONLY BY SECRET HANDSHAKE.


TRIALS 2016-QUARTERLY TRIAL REPORT

2016 is shaping up to be one of the busiest trial years ever.  With pending trials in both counties of my practice, I will be busy throughout the year.  So far, a couple potential trials were resolved, but the schedule is still on fire.  Here it is so far:

TRIAL #1
Travis County 147th District Court
Aggravated Sexual Assault of a Child Enhanced
State v. Lonnie Brewster
Length: 2 Days
Penalty Range:  15-99/Life
Result:  Busted panel on Voir Dire/Pled to 5 years TDC non-enhanced

Father accused of Aggravated Sexual Assault of his daughter.  Outcry made to ex-wife
Rank:  None given

TRIAL #2
Travis County 450th District Court
Aggravated Assault with a Deadly Weapon/Felon in Possession of a Firearm Enhanced
State v. Thomas Milton Buchanan
Length: 3 Days
Penalty Range:  5-99/Life
Result:  Convicted 50 years TDC

Son held shotgun to mother's head after throwing her to floor.  Mother had called 911 prior to this and the line was open which recorded entire incident.  Mother fled to bathroom, crawled out window, fled to neighbor's house and called 911 again.  Mom was 72 years old.  SWAT standoff, robot broke door down, and client submitted peacefully.  Defendant had history of mental illness and drug/alcohol abuse.
Rank:  None given

TRIAL #3
Travis County 147th District Court
Murder
State v. Joseph F. Karr
Length: 5 days
Penalty Range: 5-99/Life
Result: Life & $10,000.00 fine

Boyfriend came to visit Austin with Southwest Airlines flight attendant girlfriend.  After arriving on Tuesday and seeing the town, they went with friends out on Friday (Halloween).  After returning home, an encounter happen in the kitchen which resulted in 37 fatal stab wounds to girlfriend. Boyfriend appropriated a vehicle without consent and eventually was apprehended in a neighboring county with the knife.  Defendant had numerous wounds on his body.
Rank:  Well, 37 stab wounds makes it tough.




Sunday, January 24, 2016

YEAR IN REVIEW 2015-TRIALS AND OTHER ASSORTED FUN

CALM BEFORE THE STORM

It's hard to declare whether a trial result is a "victory" or not. Different factors such as the pretrial offer, overall exposure to prison, and facts of the case usually dictate whether the effort in preparation and performance in trial paid off.  What follows are quick summaries of the trials, the result, and where it ranks on the victory meter.  Many thanks to all those who helped.

2015 was not quite as active as 2014, but it started with two trials and then I had a break until December.  2016 may yet set the record.  We'll see.

TRIAL #1
Williamson County 26th District Court
Aggravated Assault with a Deadly Weapon, Serious Bodily Injury, Family Violence
State v Everton Roxroy Bailey
Length:  4 days
Penalty Range:  5-99 Years
Result:  Conviction 37 Years

The Defendant was convicted of pouring boiling water on his wife.  The pretrial offer was 40 years, then 30.  I was the third lawyer on the case.
Rank:  Moderate Victory by the Prosecution

TRIAL #2
Travis County 147th District Court
Murder
State v. George Delacruz
Length: 8 days
Penalty Range: 5-99 Years
Result:  Conviction Life

The Defendant was convicted of killing his wife.  There was no body of the wife ever found.  After 8 days of testimony the jury convicted.  There are several issues on appeal and the finality of the case will take some time.
Rank:  Temporary Victory by the Prosecution

TRIAL #3
Travis County County Court #4
Assault Family Violence Stranglation
State v. Romien Pierce
Length: 3 days
Penalty Range:  2-10 Years
Result:  Plea for Deferred Adjudication just prior to closing argument

The Defendant was accused of strangling his then girlfriend.  After various inconsistencies in the stories, the Defendant testifying, and some jury irregularities, the Defendant decided to accept the state's offer of Deferred.  He had been in jail more than a year.
Rank:  Moderate Victory by Defense

2016 is already shaping up to be the year of the trial (topping 2014 if you can believe that!).  I have 5 jury trials set from the first of February until mid April.  I have been preparing for all of them and I will be ready.  But I will also be ready for that vacation scheduled for this summer.

Friday, October 23, 2015

LEGISLATIVE FOLLY

       It's tough as a criminal defense lawyer who defends the Constitution each and every day to understand how a legislature composed of legislators not versed in criminal law, can effectively come up with laws that affect the safety of every Texan.  Every Texan wishes to live in the security of their own home, free from the intrusion of not only criminals, but of the government as well.

       This legislative session was no different.  The legislature, devoid of people  of criminal law experience, passed yet additional set of laws that do not make us safe nor secure.

       Take for example, Penal Code Section 43.26: Possession or Promotion of Child Pornography.  Under the new revisions, primarily HB 2291, this change will actually lower the punishment range of repeat offenders who have been convicted of two prior offenses from 25-99 years (under the standard enhancements under Art. 12.42(d)), to 5-99 years under the controlling provisions of the new bill.  In other words, the inexperienced ones in the legislature have given us less potential punishment for those persons keeping and peddling child pornography.  What were they thinking.  From the Defense angle, it gives more flexibility.

      

Saturday, January 31, 2015

TRIAL DOGS 2014: ACCOLADES AND RECOGNITION

AFTER LONG DELIBERATIONS AND CONTENTIOUS DEBATE, THE COMMITTEE FINALLY VOTED THE TRAVIS COUNTY AWARDS:

BEST QUOTE OF 2014

"All we ever wanted was Vicki's body, but he [pointing at Defendant] won't tell us where she is! Closing argument by Jana Duty in Williamson County cold case murder, commenting on the Defendant's right to silence.

HUMANITARIAN OF THE YEAR AWARD
Elsie Craven
2 successful Hearings in obtaining political asylum

TRIAL DOGS OF 2014
[For those who went the distance.]
Brad Urrutia*-7 Felony Jury Trials
Jackie Wood-6 Felony Jury Trials
Victoria Winkler-5 First Chair Felony Jury Trials/5 Second Chair Felony Trials
Marc Chavez*-5 First Chair Felony Jury Trials/2 Second Chair Jury Trials

HONORABLE MENTION
Mindy Montford
Russ Hunt

LA ANTORCHA DE JUSTICIA AWARD
[Most Intimidating Defense Lawyer to Prosecutors]
Raymond Espersen

BEST DRESSED MEN
[Those who show style under fire.]
Lucio Del Toro
Novert Morales
Russ Sablatura
Ben Blackburn
Todd Dudley
Jeremy Sylestine
Joe Fredrick
Brad Urrutia

WORK HORSE(S) OF THE YEAR
[For those who enable their bosses to take those exotic vacations.]
Robert Smith (Law Offices of David Chambers)
Mike Burke* (Peek and Toland)
Jesus Salinas (Law Office of Jon Evans)

WORST DRESSED LAWYERS
[Having trouble distinguishing lawyers and clients?]
Anyone who wears baggy shirts, bluejeans, tennis shoes, clogs, or sandals in a court of law.

BEST BEARDS
Chris Baugh
Mike Burke*
Marc Chavez*

BEST SHOES
Jana Ortega
Yvonne Patton
McKinley Melancon
Monica Flores
Diana Buss
Adam Reposa

BEST INNOVATION TO PRACTICE LAW
The AMP website (includes nearly everything you need to be a paperless office).

MOST HYPOCRITICAL DEFENSE LAWYERS
Those defense lawyers that judge other defense lawyers qualifications to be on CAPDS when they themselves couldn't qualify to be on the list(s)(Hey those on the Review Committee, you know who you are).

BEST RESTROOM(S) IN THE CRIMINAL JUSTICE CENTER
Public Restrooms on the second floor.  They are roomy and have a chair to allow continued plea negotiations with prosecutors without interruption if necessary.

SPECIAL AWARDS
Charles Popper-The Del Valle Visitation Award for most frequent visitation of clients.
[Repeat Winner]
Steve Brand-El Abogado Etico Award for principled decisions in the face of adversity.

*Denotes Multiple Winner

The Committee is a highly secretive cabal and the process is classified.

NOTE:  The author's Year In Review is in the post below