Two brothers who had attracted the attention of police in more than one Texas city walked into a Lubbock law office several years ago and plunked down ten thousand dollars. They were in town for a few days, they explained, and, well, you never could tell what might happen, so would the lawyer consider himself on retainer for the weekend just in case something came up? Sure enough, something did. A local bank was forcibly deprived of its assets, and before long, law enforcement officers were curious about the brothers’ whereabouts at the time of the robbery.
Not all criminal defense lawyers obtain clients under such bizarre circumstances. Most defense lawyers are retained only after a suspect has been jailed or released on bond. Nor does payment come quite so easily; after all, most crimes are committed for money. Criminal lawyers often have to take their fee in property rather than cash (one Austin attorney recently accepted a radio telephone), and it pays to be cautious: receiving stolen property is a felony.
Ah, but what about the innocent, the people who go to Perry Mason for help? In real life, most criminal lawyers agree, at least 75 per cent of the persons charged with crimes are in fact guilty—and some say a more accurate estimate would be closer to 85 or 90 per cent.
The criminal lawyer knows all this. But he doesn’t care. The ethical standard he holds most dear is a fierce belief that the State must prove people guilty beyond a reasonable doubt before it locks them up.
Shed no tears for the State; all the other factors in a criminal trial are on its side. The State has superior resources of manpower and money to pursue a case, and witnesses tend to talk more freely to police and prosecutors than to defense lawyers. If the going gets rough, the State can always offer a bribe (in the form of a lighter sentence) to other defendants in exchange for friendly testimony.
More often than not, the criminal lawyer faces as much trouble from his own client as from the State. Unless the client is a professional criminal—very professional—he can’t bring himself to admit his own culpability, either to himself or to his lawyer, “Inevitably there will be one important fact known by every person in the courtroom except you,” says one well- known attorney. And the criminal lawyer must know everything in order to plan the defense, particularly in deciding whether to put the defendant on the witness stand. Juries may not convict a murderer, but they’ll send a liar up every time.
A good lawyer prepares a case three different ways: on the facts, to win the trial; on the defendant’s character, to get a light sentence or even probation from a jury; and on the law (with a heavy emphasis on narrow procedural points), to win an appeal. In the courtroom he works all three routes simultaneously, laying traps for unwary prosecutors and even for the trial judge, hoping for the mistake that could win an appeal. But winning isn’t everything. On occasion, a top lawyer can intimidate a district attorney into offering a short sentence in exchange for a guilty plea which avoids the uncertainties of a trial. Sometimes it works, but sometimes an ambitious district attorney takes dead aim at one of the big-name lawyers. And sometimes a former client brooding in the penitentiary decides that his lawyer sold him out. Revenge-minded clients are a professional hazard.
The average citizen views the criminal lawyer with stubborn suspicion, as though he were something like an accomplice. Understandably defensive about his role, the lawyer in return seriously questions whether most people know or care about the guarantees of personal liberty in the Constitution of the United States: the right to be protected against unreasonable searches and seizures, the right to refuse to testify against yourself, the right to have a lawyer, and the right to a trial by jury. Defense lawyers suspect that the public regards the Constitution as applicable only to the innocent, that it is merely a “technicality” where the guilty are concerned. And the public expects the lawyer to know one from the other.
The lawyer strenuously objects to being put in this position. It is the jury’s business, not the lawyer’s, to determine guilt or innocence, he argues, and the only certain protection for the innocent is for the lawyer to treat every client alike. That means planning the client’s defense—using all the Constitutional guarantees and procedural devices that the law will allow—not trying to prove his innocence. The essence of that defense is the lawyer’s skill in advocacy, taking the part of his client against the charges brought by the State. Presumed innocent, his client must be proved guilty beyond a reasonable doubt. To disrupt that proof, to plant a seed of doubt, or else to force that proof to be made by methods reversible on appeal, is the defense lawyer’s goal—and duty. Out of such struggle is supposed to come justice. As Churchill once said of democracy, it is the worst possible system, with the exception of all the others which have been tried.
The demands of the system are not mastered easily. Most of the top criminal lawyers are middle-aged men (the few women who practice criminal law concentrate primarily on juvenile and family crimes) in their late forties or older. “Until you’re fifty or so,” one Dallas attorney explains, “you just haven’t heard enough lies.” As a group, the best defense attorneys are cynical, arrogant, and egotistical—qualities no doubt nurtured by years of successful combat against the immense power of the State. They deal with all the corruptions of life—people, society, and power—and only a few win more often than not. These are the men (in addition to Warren Burnett of Odessa, the subject of Gary Cartwright’s article, “Warren Burnett For The Defense”) who are the biggest names in Texas criminal law. The list is a product of discussions with judges, prosecutors, and defense attorneys themselves; there was remarkable unanimity regarding the top choices.
Roy Barrera – San Antonio: Barrera, 47, once served as Secretary of State under Governor John Connally. Had reputation as a tough prosecutor, then switched his talents to defense work. While a prosecutor, dueled Fred Semaan in a well-known murder case; after eleven stays of execution Semaan finally won in the U.S. Supreme Court. As a defense lawyer, Barrera defended Felipe Orta in 1969 after the nineteen-year-old shot and killed a highway patrolman who had stopped him for speeding. The State refused to plea bargain and sought death, but Barrera won the jury’s sympathy when the prosecution became overly zealous. Result: a five-year sentence for murder without malice from a Dallas jury.
Emmett Colvin, Jr. – Dallas: Colvin, 56, is highly popular with his fellow criminal defense lawyers. One of the few gentlemen in a rough-and-tumble profession, he can speak in honeyed tones or bite off his words to give them added authority. Has been a strong advocate for reforming the criminal justice system. Handles many white-collar criminal cases, particularly securities fraud; his most highly publicized recent effort followed the Sharpstown bank scandals, when he helped lobbyist John Osorio win acquittals on two charges. (Osorio was convicted on another charge and is serving a three-year sentence.) Also represented Freddie Brant, who was accused in 1965 of practicing psychiatry without bothering to attend medical school. Colvin found Brant “loveable and a very good psychiatrist.” So, apparently, did the jurors. Hung jury, case dismissed.
Fred Erisman – Longview: Erisman, 66, is a former district attorney and trial judge who left the bench to return to private practice. In several hundred criminal cases has lost only two clients to the penitentiary. Chairman of State Bar committee which revised Texas Code of Criminal Procedure in 1965. An acknowledged authority and scholar, he recently published a much-acclaimed second edition of Manual of Reversible Errors in Texas Criminal Cases. As a prosecutor, once sent a peace officer to prison for murder; many years later, as a defense lawyer won an acquittal when the same man was charged with a second killing. Very selective about criminal cases. Two of his favorites: the Kronberg Castle jewel theft cases in Frankfurt, Germany, after World War II, and the highly complex and technical slant hole drilling cases in East Texas during the Sixties.
Percy Foreman – Houston: Foreman, 72, is still the acknowledged kingpin of Texas criminal defense attorneys. His legendary reputation and imposing physique (6’4”—250 lbs.) make him the center of attention in any courtroom. Has no equal at cross-examination of prosecution witnesses. Tough to beat in court and just as tough when it comes to collecting fees. Won a plea-bargained life sentence for James Earl Ray, accused slayer of Dr. Martin Luther King; Ray has since attempted to overturn the verdict, claiming that Foreman was more interested in his fee than in the welfare of his client. Foreman’s most publicized triumph came in the Florida murder trial of Candace Mossier and Melvin Lane Powers, where he overcame overwhelming circumstantial evidence to win a full acquittal.
Joe Goodwin – Beaumont: Goodwin, 52, persuaded a Belton jury to give convicted murderer Fred Foy Young, Jr., a five-year probated sentence in the brutal murders of an antique dealer and her granddaughter. Young and another man, Dennis Anderson, went to Kountze to purchase antiques; when they left, Mabel McCormick was dead, three-year-old Leslie Bowman was also dead, her head stuffed in a toilet, and the shop had been burned to the ground. Anderson blamed Young; Young blamed Anderson. Goodwin’s argument: Young was a victim of circumstances, trapped in a bizarre situation with a madman murderer. The State believed Anderson—but the jury believed Goodwin. The Belton trial judge later said he would have given Young the death penalty. The State tried twice more, without success, to send Young to prison, once for the child’s murder and once for arson. Anderson is serving a life sentence.
Daniel Grundstrom – Huntsville: Grundstrom, 37, has extensive courtroom experience—but as a defendant, not as a lawyer. Known as a “jailhouse lawyer,” a self- educated convicted felon who serves his sentence in the prison library, immersed in law books, dreaming up intricate arguments to overturn convictions. Jailhouse lawyers, disparagingly called “writ writers” by prison officials, goad licensed attorneys into performing, seek concessions from the prison administration, and write letters and petitions to whoever will listen. Grundstrom helped plan his own successful appeal and went to work for Warren Burnett, who describes him as “an extremely sensitive Fourth Amendment [unreasonable searches and seizures] lawyer.” Grundstrom’s legal talents are also respected by State briefing clerks. His tour with Burnett came to a premature end when he borrowed a car belonging to the lawyer’s secretary, disguised himself with Band-Aids, and drove to Midland to rob a drive-in grocery.
Richard Haynes – Houston: Haynes, 47, is the rising star among criminal defense counsel; may be the next Percy Foreman. Recently won an acquittal in a bribery case although the prosecution presented the jury with a tape recording of his client allegedly offering a bribe. His favorite case: State of Texas vs Henry Amerson. The defendant was accused of murder and rape following the discovery of the nude body of Marjorie Wills in a Brazoria County ditch. The State’s case rested solely on a new (in 1964) detection device, neutron activation analysis; Haynes convinced the jury that the device was not foolproof. The result: a hung jury, 10-2 for acquittal. Case dismissed. Ten years later, Haynes still receives calls about neutron activation analysis. Nicknamed “Racehorse.”
Luther Jones – Corpus Christi: Jones, 60, is the criminal lawyer’s criminal lawyer—the man flamboyant attorneys like Percy Foreman hire for the purpose of “preserving the record on appeal.” Keeps a close watch on minor procedural points while the big name lawyers perform theatrics for the jury and hammer away at witnesses. Jones prepares the objections, motions, and exceptions to unfavorable judicial rulings which can win even the most hopeless case if the prosecution slips. Has no equal at knowing the fine points of criminal law. Now in semi-retirement, accepts only a few cases. Has an unlisted phone number, a rarity among criminal lawyers. Jones today does little actual arguing in court, but once was one of the best at oral argument. Like many of the other top lawyers, Jones is a former district attorney. Today he is the best insurance policy a lawyer can have.
Fred Semaan – San Antonio: Semaan, 63, claims to have tried more death penalty cases than any lawyer in the history of the United States. No client has ever received the death penalty; nevertheless, he remains a firm believer in capital punishment as a deterrent—except for his clients. Has successfully represented (without charging a fee) 23 peace officers accused of murder, and has defended more than 30 women charged with killing their husbands without losing one to the penitentiary. Refers proudly to his reputation as the greatest playboy ever to attend UT-Austin (in 1936), where he was booted out of law school. A checkered career includes a stint as a legislative assistant for a- Texas congressman, an FBI training course, and a tour as a deputy sheriff. Has many favorite murder cases, including an acquittal for a client who fired five shots into the driver of an automobile from the back seat—in self-defense, of course.
Charles Tessmer – Dallas: Tessmer, 54, has never lost a client to the electric chair in 26 years as a criminal defense counsel. Represented the first black man ever acquitted of raping a white woman in Dallas County (in 1961). Equally skillful in appellate courts: has won three of four appearances before the U.S. Supreme Court, plus fourteen reversals in last eighteen appeals to the highest state court (the usual rate: one reversal for each ten appeals). Immediate past president of the National Association of Criminal Defense Lawyers, and author of two texts (The Tessnier Trial Book and Criminal Defense Strategy), he is currently writing a book about his biggest cases for the general public. His favorite: the Helen Cundiff murder case, where the State’s star witness placed his client at the scene of the murder, gun in hand. Two alleged accomplices received 25-year sentences, but Tessmer won an acquittal for Ms. Cundiff without calling a witness.
Texas has more than its share of first-rate criminal lawyers. Other top names include: Phil Burleson, 40, Dallas, lawyer for Jack Ruby and Lance Rentzel; Charles Butts, 52, San Antonio, highly respected both as a scholar and as a lawyer; Weldon Holcomb, 49, Tyler, who helped prosecute Billie Sol Estes, and later won a major U.S. Supreme Court case allowing suspects to have an attorney at a line-up; Frank Maloney, 46, Austin, UT law school instructor and defense counsel for Gus Mutscher in the Sharpstown scandal case; Travis Shelton, 53, Lubbock, one of the best-known West Texas criminal lawyers; Ned Wade, Jr., 40, Houston, law partner of State Representative Craig Washington, who won acquittals for five students charged with murder and other offenses during the Texas Southern University riots; Elmo Willard II, 44, Beaumont, who won a rape case on appeal where the State had used truth serum on his client; and Clyde Woody, 53, Houston, who won an important U.S. Supreme Court case for an indigent defendant.