Friday, September 20, 2013

Lawyer Sleeps Through Trial | Casey's Last Word



This week, courtesy of Express-News reporter Zeke MacCormack, we learned of another lawyer who slept through his client’s trial.

Attorney Martin Zimmerman was so out of it during the trial that he referred to his client, Daniel Textor Jr., as Jonathan Dextor.

The lawyer didn’t call any witness and cross-examined only two of six prosecution witnesses.

He also didn’t challenge tests showing that Textor was driving with a 0.28 blood alcohol level, more than three times the legal limit.

The result: The jury sentenced Textor to 28 years for driving while intoxicated with a child in the car.

The jury also sentenced Textor to a remarkable 60 years for spitting on the arresting officer.

But on appeal, Textor got no relief based on the fact that his lawyer had slept through significant portions of the trial.

Some of you may remember the case of Calvin Burdine, a Houston man who was given the death penalty for murder after his attorney had slept through substantial parts of his trial.

The Texas Court of Criminal Appeals, our highest court on criminal matters, let the conviction stand.

It ruled that Burdine’s appellate lawyers did not prove that the outcome would have been different if Burdine’s lawyer had been awake.

The 5th U.S. Circuit Court of Appeals, however, ordered a new trial.

It ruled that ''Unconscious counsel equates to no counsel at all.”

Burdine was granted a new trial, but accepted a plea bargain that amounted to a life sentence.

In the more recent case Textor was granted a new trial not because attorney Zimmerman slept, but because Zimmerman had not told prosecutors that Textor had agreed to accept a plea bargain they offered.

That would seem to suggest a malpractice lawsuit against Zimmerman.

But a 1995 ruling by the Texas Supreme Court comes into play – a ruling that has not been overturned.

In that case Carol Peeler, a North Texas woman, was indicted for a white-collar crime.

She accepted a plea bargain for a fine of $100,000 and five years on probation.

Three days later she learned from a journalist that prosecutors had offered her attorney a deal in which they would drop the charges if she would be a cooperating witness against others.

She sued her attorney, Darrell C. Jordan, and his high-powered law firm, Hughes & Luce.

She had paid Jordan, a past president of the State Bar of Texas, $250,000.

But the Supreme Court of Texas ruled 4-3 that as a convicted criminal Peeler bore full responsibility for her problems and could not collect from her lawyer or his firm.

The majority was unpersuaded by the fact that if her lawyer had told her of the offer, she may well not have been convicted of a crime.

This case was pointed out to me many years ago by Michael Bernard.

He was then a criminal defense attorney, before he became first assistant district attorney under Susan Reed and now city attorney.

"The day they issued that ruling was the day I dropped my malpractice insurance," Bernard told me. "I've never been sued by anybody who I got acquitted."

Mark Bennett, a prominent Houston criminal defense attorney, put it another way: “Essentially, we (criminal defense lawyers) are insured by the Supreme Court of Texas,” he said.

So attorney Zimmerman doesn’t have to worry about being sued.

And, he doesn’t appear worried or even embarrassed.

In a court hearing this week he rated his performance in Textor’s trial as an 8 or 9 on a scale of 10.


And he’s planning to run for judge in Guadalupe County.

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