Young lawyers lock horns in access dispute at court

DA not a scapegoat for jail woes

Waco – It's the kind of mano a mano young men stage, the full frontal attack of youth, with little finesse, and no back-up position for parry or flanking maneuver. The young lions are poised for a bloody bull and bear baiting, a battle royal at the McLennan County Courthouse.

No one is showing their hand at this stage, but the stage is definitely set for a full-dress confrontation come election time.

And it's all about the recurring costly theme in the political life of McLennan County – the finance of the Jack Harwell Detention Center, an 800-plus bed jail built at taxpayer expense with revenue bonds not approved by voters, then leased to CEC, Inc., a private New Jersey-based corporation, to make money performing a ministerial duty outlined by the Texas Constitution for a constitutional office – County Sheriff.

Newly elected County Sheriff Parnell McNamara is on record saying he is not aware of the reasons the downtown jail cannot be reopened, that he, too, is seeking answers.

“Something's got to change,” said Robert Callahan, II, a youthful attorney once employed by District Attorney John Segrest before Abel Reyna defeated Mr. Segrest in the general election of 2010.(click here for a previous report)

He swept into office and cleaned house, setting new get tough policies on accused criminals that have affected the way the defense bar is used to doing business.

The minimum offer for a plea bargain is fifteen years in exchange for a guilty plea in a serious felony case. There is no open file policy that would allow defense attorneys to sneak a peek at the information prosecutors will present at trial prior to indictment, and a discontinuation of the time-honored practice of giving a polygraph examiner a chance to determine if there is a pattern of deception in the way defendants answer questions.

All this means that defense attorneys are at a decided disadvantage due to a severe lack of information they may present their clients, according to certain member of the defense bar.

Mr. Callahan and two other attorneys told County Commissioners on Tuesday that the new way makes it impossible to represent their clients in an effective manner.

They blamed issues of jail overcrowding and a ballooning budget overrun for “outside care” at $45.50 per day paid to CEC, Inc., that the bean counters predict will lead to a $2.6 million budget overrun this year – as it did last year.

Mr. Reyna called them liars. In public. On the record. Flat-footed.

Robert Callahan, said Abel Reyna, either "doesn't know the system," or, he "doesn't understand it."

A seasoned state judge with a background as a prosecutor and veteran operative in the defense of criminal prosecutions sided with Mr. Reyna. There shouldn't be any problem, he said, while at the same time, requesting anonymity.

He suggested that one way to expedite prosecution is to make pre-trial motions for two items available in any proceeding.

1. A motion for an examining trial before the magistrate who issued the warrant for arrest. The Texas Code of Criminal Procedure allows such a move, setting forth the rules for the Court to determine through deposition or hearing the facts of the matter and make a decision whether to bind the case over for indictment. In other states, it's called a pre-trial hearing.
2. A motion to discover all non-privileged items of evidence the State intends to prove, excluding such work product items as officers' suppositions and supplemental reports, attorneys' records of their impressions, witness statements, polygraph examinations, and the like.

“But that would take work,” said the judge. He laughed.

Reached for comment, Mr. Callahan said, “We're not trying to get the DA's office to sell the farm, but the system has got to change.”

He represented a man who was charged with kidnapping his wife's child by a former marriage when all along, she had true custody of the child and had directed her husband to bring the kid to her home in Mexico. The caregiver falsely accused the man, and it took Mr. Callahan months to straighten the issue out and get the case dismissed.

As to his clients' status, “A lot of times, they're not even charged or indicted.”

“The thing with examining trials is that eventually they are another burden on the system,” said Mr. Callahan. It's all in the way the law is interpreted, he added. “You're entitled to certain information. It's limited, but an open file policy makes it all unnecessary...We have to work something out.”

He pointed to the testimony of a colleague, Josh Tetens, who pointed out that the emperor indeed has no clothes, the naked truth that if the Court would open the Courthouse Annex Jail, a 300-plus bed facility the Sheriff's Department has a permit to operate, the overcrowding and budgetary issue would be solved in one fell swoop.

Meanwhile,the McLennan County Commissioners Court is seeking a cost estimate to overhaul and replace the automatic smoke detection and evacuation system prior to seeking a new operating permit from the Texas Commission on Jail Standards.(click here for a previous report)

According to Shannon Herklotz, the assistant director in charge of such permits, McLennan County has had an operating permit all along. The operation of the jail was discontinued voluntarily in order to carry out $1.2 million in renovations while a roofing company repaired and rebuilt the roof over the Courthouse and its annex building, including the jail.(click here for a previous report)

The work has stretched out for nearly three years. It appears the only end in sight is at the ballot box.

The retired judge added his final analysis. The accused actually take advantage of the delays in justice, he said. "They like to stay in the County Jail instead of going down to TDC because in the jail, they have access to visits by their families - and they don't have to work."