Saturday, October 18, 2008

Full Text of Vasilas Opinions - Oct 2008 Memorandum Opinion by Judge Sandoval and March 2006 Opinion of Texas Court of Criminal Appeals

For those interested in reading the details in the Vasilas case, including the memorandum opinion just released by Judge Sandoval this month (finding Jim Vasilas "not guilty"), here they are (click on each link):

October 6, 2008, Memorandum Opinion of Judge Charles Sandoval, Cause No. 380-82535-03 in the 380th Judicial District Court of Collin County, styled State of Texas v. James Vasilas; and

March 22, 2006 Opinion (unanimous) of the Texas Court of Criminal Appeals, Cause No. PD-0351-05 and styled State of Texas, Appellant, v. James Vasilas, Appellee on petition for discretionary review from the Fifth Court of Appeals of Collin County

In case you'd like to read the underlying section of the Texas Penal Code, check it out here:

Texas Penal Code 37.10(a)(5)
Texas Penal Code 37.01 (Definitions)

Note the text of the following Penal Code definitions:

(1) "Court record" means a decree, judgment, order, subpoena, warrant, minutes, or other document issued by a court of:
(A) this state;
(B) another state;
(C) the United States;
(D) a foreign country recognized by an act of congress or a treaty or other international convention to which the United States is a party;
(F) any other jurisdiction, territory, or protectorate entitled to full faith and credit in this state under the United States Constitution.

(2) "Governmental record" means:
(A) anything belonging to, received by, or kept by government for information, including a court record;
(B) anything required by law to be kept by others for information of government; ....

Wednesday, October 15, 2008

District Judge Charles Sandoval's Memo Opinion in the Vasilas Case: Jim Vasilas Not Guilty, But the Story's Not Over

Along with almost every other attorney in the State of Texas, I've been following James Vasilas' case as its traveled the appellate highways (e.g., my May 1, 2006 post). Now, Judge Charles Sandoval has issued a memorandum opinion from his bench on the 380th Judicial District Court of Collin County that should be a welcomed relief not only to Brother Vasilas, but to some degree to lawyers everywhere.

For those of you who aren't well aquainted with this case, here's a brief wrap-up:

James Vasilas is a Dallas attorney who was criminally charged with violating Texas Penal Code section 37.10(a)(5), tampering with a governmental record, which is a third degree felony carrying the possibility of 2 years in jail.

All this came about after James Vasilas represented a man charged with, and acquited of, delivery of marijuana while being convicted of a lesser charge (possession). Attorney Vasilas filed a petition for expunction of his client's criminal record. The petition stated that the delivery charged had been dropped.

Based upon that statement, the District Attorney pursued James Vasilas on the felony charge. (For civil lawyers, dropped and acquited are two different arguments to be made for expunction and technically, the petition held factual error.)

An attorney was charged with a felony because a pleading he filed in civil court allegedly contained a factual error. Imagine the ramifications and the misuse this invites.

At the get-go, the judge quashed the indictment. The DA appealled and the games began.

In Vasilas v State, 187 SW3d 486 (Tex.Crim.App.2006), the court found a petition to be a "government record" under the Texas Penal Code. Whoa.

Then, the Dallas Court of Appeals (on remand) held that Tex.R.Civ.P. 13 (the civil procedural rule against frivolous pleadings that includes the possibility of sanctions) did not override the Penal Code provision, and they set James Vasilas' case for trial.

Vasilas fought back, taking the Dallas appellate opinion up to the Texas Court of Criminal Appeals, arguing the Dallas court was wrong. Amicus curaie briefing was filed by such noteables as the TTLA and the TADC. This time, the Texas Court of Criminal Appeals found the doctrine of in pari materia does not apply, Rule 13 is a court rule adopted by the Texas Supreme Court and therefore not a statute to be construed with any section of the Penal Code.

Then comes Judge Sandoval ....

On October 6, 2008, Judge Charles Sandoval signed his memorandum opinion in the case that started it all (when he granted Vasilas' motion to quash the indictment). Judge Sandoval writes in pertinent part:

"....At any rate, it seems to me that fairness requires that the same standard for pleading should apply to civil and criminal attorneys.

"The State's attorney has governmental immunity, but the rationale for the immunity is similar to the rationale which protects the civil lawyer. These general principles with regard to pleadings have been in existence, I would assume, since before the founding of the nation. I would also assume this rationale applies to legislators' statements made in legislative chambers.

"I find that Mr. Vasilas' pleading could easily have been a mistake of law, or a mistake of fact or the result of carelessness. Accordingly, I find him not guilty. If this sort of case arises in the future, perhaps the defendant may wish to assert that he is protected by the First Amendment, the Fifth Amendment (due process), theSixth Amendment (right to counsel) and the Fourteenth Amendment (equal protection). Who knows what could happen if cert is granted?"

The Bottom Line

It's still possible for attorneys filing pleadings in civil cases to face criminal charges here in Texas. But James Vasilas has been found not guilty, and that makes this a happy day.

Congratulations, Jim.

Monday, October 13, 2008

DA Watch: Dallas County Prosecutors Routinely Convicted Innocent Men, Using Eyewitness Testimony Known to Be Faulty

Let's all stop for a minute and appreciate the efforts of the Dallas Morning News -- who released a report yesterday that summarized their 8 month investigation into 19 Dallas County convictions that were later overturned as being clearly WRONG because of DNA evidence.

These reporters asked the question -- why didn't the investigation or the prosecution reveal that an innocent man was being accused?

Journalists at the Dallas Morning News looked at the complete files of these 19 cases, all overturned because DNA has revealed that an innocent man was convicted of the crime. And these were serious crimes -- rape, murder.

What they found isn't pretty.

According to their own published report, in all but ONE of these wrongful convictions, the prosecutors chose to build their case on eyewitness testimony.

This, despite the longstanding and common knowledge among prosecutors and defense attorneys alike - as well as academics and researchers - that eyewitness accounts are simply unreliable.

You just can't trust eyewitness accounts of what happened. They're rarely accurate. Everyone knows this.

Which makes what they found all the more shocking ....

From the Dallas Morning News, in part:

1. Thirteen of the 19 wrongly convicted men were black. Eight of the 13 were misidentified by victims of another race. Police investigators and prosecutors in the cases were all white, as were many of the juries of the 1980s.

2. Police officers used suggestive lineup procedures, sometimes pressured victims to pick their suspect and then cleared the case once an identification was made.

3. Prosecutors frequently went to trial with single-witness identifications and flimsy corroboration. Some tried to preserve shaky identifications by withholding evidence that pointed to other potential suspects.

4. Judges, governed by case law that has not kept pace with developments in DNA testing or research on eyewitness testimony, routinely approved even tainted pretrial identifications as long as an eyewitness expressed certainty in court.

Here's the thing:

You just don't take a man's life, or his freedom, on a case that is dependent upon eyewitness testimony for a conviction. And, yet, the Dallas County Prosecutors thought this was a fine thing to do -- and did it for years, apparently.

(They're not alone. According to the Dallas County Morning News investigation, misidentifications have been cited as a key factor in an estimated 75 percent of the 220 wrongful convictions exposed by DNA testing nationwide since 1989. Looks like prosecutors across the country would rather get another win on their resumes than avoid trying a case that doesn't have much evidence except for eyewitness testimony.)

Thank you, Dallas Morning News. Specifically, thank you DMN reporters Steve McGonigle and Jennifer Emily. Thank you.


Dallas Morning News

Dallas Morning News

Houston Chronicle

New York Times