TLC '05 Alum and Faculty Member Deb Ellis frees an innocent man from death row

For years, when she’d walk into her downtown St. Paul office, criminal defense lawyer Deborah Ellis would see a photo of Louisiana death row inmate Glenn Ford perched at eye level on the reception desk.  It was “a reminder to fight the good fight,” she said.

On Tuesday night, Ellis watched on television as Ford, 64, walked out of Louisiana State Prison in Angola. He was one of the longest-serving death row inmates in U.S. history to be exonerated and released. “I’ve been crying ever since,” Ellis said.

The rare and dramatic moment came hours after a judge granted the state’s request to vacate Ford’s murder conviction. And it came after three decades of exhausting, discouraging work and failed legal appeals by Ellis and other attorneys, including several from Minnesota. In 1984, Ford, who is black, was convicted of first-degree murder by an all-white jury in the November 1983 killing of Isadore Rozeman in his jewelry store-home in Shreveport, La.

For more of the story, go to

http://www.startribune.com/local/stpaul/249995501.html

4-0 for NOT GUILTY verdicts since graduating from the Trial Lawyers College in July '13

TLC Grad Bob Vogel (July '13) writes the following.  Congratulations to you Bob, and to your client.  He was very fortunate to have you as his counsel.

I had a rape trial over the last two days. My client was falsely accused of raping a mentally retarded, autistic man for whom he was the caregiver. The State began its investigation after receiving a well intentioned, but inaccurate 911 call. A police officer was called, and the officer reported that he observed nothing out of the ordinary. However, a police detective decided that something had happened. He just had a feeling that my client was lying. After two interviews with the police in which he explained that nothing had happen and the caller was mistaken, the detective engaged the "Reid Technique"(an insidious interrogation technique responsible for thousands of false confessions) and used a polygraph to confront my client and intimidate him. They claimed they had proof they did not have and bullied him into signing a false statement. The statement was not a direct confession, but close enough that they could then leverage it into an indictment. They had no other proof - none, not a stitch, except what they had manufactured. They then set about gathering any other coincidental information that would support their position.

I used the TLC Voir Dire approach and really had a great time of interaction with the jury. We discussed under what circumstances someone might make a false confession. Which really was helpful later on when it came up during cross. We talked about many other things which then became touchstones during the trial and closing. We had a great jury, which I attribute to the TLC Voir Dire approach. From there, I told my client's story in each of the phases of the trial, through all of the witnesses.

I had an amazing experience during the closing. I had prepared all the areas I wanted to talk about, but as my turn was approaching, I found that I had some unexplained emotions churning up inside me. I took some moments to identify what I was feeling. I finally realized that the thing about the case that most affected me was the terror I felt at the monstrous crime the state was trying to commit. They had use all of their power and resources to create a case against an innocent person based on little or no evidence. Doing that, they put my client at risk for 15 years of his life and the permanent ruin of his reputation. They'd done lousy police work and relied on coercing a false confession from my client to make their case. To me, this was terrifying. It clearly demonstrated that any of us are vulnerable to the machinations of the State if they decide to prosecute us.

The Detective did not go into the interrogation seeking the truth. He went into the interrogation seeking a confession. What he got was false, he knew it, and went ahead and pushed forward anyway. Fortunately, 12 heroic citizens decided not to let them get away with it. They came back with a not guilty verdict in less than an hour.

By the way, this makes me 4 and 0 on jury trials applying the Spence/TLC method. I've got a first degree murder trial coming up in a month, so keep me in your thoughts and prayers.

All the best,

Bob Vogel (July '13)
rlvogel@robertvogellaw.com

$10.7 million verdict won by Randal Kelly (July '10) and Mike O'Connell (July '11) in worker safety case

TLC Trial Fires matter:  Major oil field worker safety case won by Colorado Trial Lawyers Randal Kelly (July ’10) and Mike O’Connell (July ’11)

     A $10.7 million verdict was delivered by a Greeley, CO jury in a very complicated oil field worker safety case which had previously been dismissed in a lower court, and was revitalized by TLC July ’10 Grad Randal Kelly, with the assistance of Mike O’Connell (July ’11).  Before trial, Randy was offered $225,000 for his client to settle. 

Randy took over this case in September 2010 after it had been badly handled by his client’s previous attorney. In September 2011, Randy got the Colorado Supreme Court to grant a C.A.R. 21 Petition to reinstate the critical claim against the critical defendant, Schneider Energy, which had been dismissed by the trial court. Upon winning that determination, and going back to the trial court before a different judge (the first judge had since retired), the surviving widow and family of Reyes Garcia was finally given an opportunity to tell their story to a jury. 

     Reyes Garcia was a gas-well worker on what is called in the industry “a work-over crew”. After wells have been drilled and “frac-ed”, this crew was responsible to clean out the remaining debris and contaminated water from the wells so that they could then be put into production.  These crews use three primary pieces of equipment to do this:  a rig truck with a 40' tower and a drill over the well head, a huge pump to circulate the water, and a gigantic water tank called a “flat tank”.  During the process, gas can be released at the flat tank if a gas pocket is hit or if the debris coming out is real gassy.  The primary safety mechanism for the men is the spacing of the equipment since the pump and the rig are combustion sources. Distance and time equals safety on this type of worksite.

     Four different entities were on the site with layers of immunity, indemnity, master-service agreements, workers comp immunity, employee-employer obfuscation, sub-contracting and statutory employment issues. Two “non-parties” alleged to be at fault- Noble Energy (the well "operator"), and Leed Energy (the employer of Reyes Garcia which was responsible for providing men and equipment) - were immune from suit, but their negligence was nevertheless in issue.  Schneider Energy was the entity hired to supervise well operations and they hired William Smith to run the operations at the site - including safety.  Smith and Schneider Energy both claimed that Smith was an independent contractor.  Smith’s lawyer claimed that Smith was an employee of Noble, which would have also made Smith immune from suit, and Schneider Energy off the hook.

     While a gross simplification of the issues, the gist is that The American Petroleum Institute (“API”) recommends spacing of 100' in between each piece of equipment.  On this particular site, the equipment was spaced less than 75' apart, reducing the amount of time available for the workers to shut down the well and avoid an explosion if something did go wrong.   In July 2007, something went terribly wrong on this site when the crew detected gas coming from the flat tank and began shut down procedures.  Reyes was at the pump.  He was enveloped in flames in a flash fire, burned over 80% of his body, and fought to survive at the Western States Burn Unit. Reyes died on September 8, 2007 without ever speaking with his family again. 

     In the face of these facts, the defense paraded a number of witnesses who had never heard of the API spacing standard, and the ones who had heard of it said it wasn't important and/or not relevant for these operations.  The defense also argued that any fault should be attributed to Leed Energy, (Reyes Garcia’s employer), because Leed had delivered and set up the equipment at the site. The defense claimed that Reyes Garcia was at fault because he voluntarily moved into the danger zone. They also claimed that Smith was immune from suit as he was “technically” a Noble employee. It was a knife fight. Randy and Mike fought the defense for 2 hours the night before closing on an “inherently dangerous activity” jury instruction, which they ended up convincing the Judge to give, and which raised the standard of care for the jury to consider. 

     Randy handled all the liability witnesses, the experts and Lorena Garcia (Reyes' wife and a beautiful human being), as well as voir dire, open and close.  Mike came in a month before trial and handled the story that the family had to tell as well as the burn surgeon.   Louise Lipman and Josh Karton came to Denver a couple weeks before the trial to help with the family.  Louise had originally helped Randy and the family prepare for the first trial, in 2011, which was stayed when the Colorado Supreme Court took the case away from the first judge. It took almost five years to get this case to a jury.

     Mike O’Connell writes:  “In the end, we ended up with an all male jury and a less than enthusiastic female alternate who was allowed to deliberate.   I can't begin to tell you how complex this case was.  There is probably not another attorney in Colorado who could have handled these issues besides Randy.  Ironically, his April 4, 2013 Durango verdict played into this because of the claim that Smith was a "statutory employee" (sic) of Noble - which would have gutted the case, and nobody knows this issue better than Mr. Kelly.  Randy was the very definition of what the TLC embodies.  I am, and will always be, deeply moved by how he handled this case and the trial.”

     The trial was held in Greeley, Colorado (Weld County) and was tried before Judge Todd Taylor.  The jury found Smith was indeed an employee of Schneider Energy.  They found this activity to be inherently dangerous.  And they found no comparative - 100% Smith (and of course, all imputed to Schneider on the respondent claim).  The verdict was $2,000,000 non-economic damages; $4.5 million on economic damages (medicals and lost future earnings); and with interest compounded over 5 years, the total verdict for Mr. Garcia’s surviving widow and family is $10,700,000.   [Accounting for some cap issues, the final judgment with interest will total $8.5 million.] 

     Note from TLC:  While some cases have huge verdicts, many do not.  But the consistent factor is that trial lawyers across this country fight for justice; they represent the common man who must go against typically huge corporate or government entities, with odds that are most often overwhelming.  Our congratulations to TLC grads Randal Kelly, Mike O’Connell and every other trial lawyer in this country who commits his or her life daily to obtaining justice.  Way to go!   

Trial Lawyers Ron Estefan ('05) and Gene Shioda ('05) get justice for their client in an employment dispute

Ellen’s Story: by Ron Estefan ('05) and Gene Shioda ('08)

            It is December, 2005.  Ellen lives in Florida and works as a sales representative for a bridal designer store there.  A friend calls Ellen to let her know about a General Manager opening at a bridal gown manufacturer in a Houston suburb.  She would have to move there.  Ellen’s dream job.  But Ellen is conflicted.  She is a single mother in Florida with a daughter in her junior year in high school.  Ellen talks with her daughter about it and her daughter says “Mom, this is what you’ve always wanted.  Dad lives just a few miles away.  I’ll stay with him.”  Ellen flies to Houston to meet with the owners of the company.  They offer her the job.  She will be the General Manager and her supervisors will be the owners of the company.

            Ellen starts working for the company in January, 2006.  The first six months go great.  Then, things start to change.  The owners start making subtle sexual comments to her.  “Maybe this will stop” she thinks to herself.  “Besides, to whom can I complain?”  But it doesn’t stop.  It gradually escalates – in ways the owners can say to Ellen “You’re being too sensitive” and “Don’t you know we were just kidding around?”

            The owners’ sexual comments, practical jokes, and actions continue to escalate for 3 more years.  Ellen deals with these by deflecting them so as not to anger her bosses and get fired.  She makes a joke in response whenever she can or tries to laugh them off.  Finally, she can’t take it anymore.  She quits.  It’s the only way she can make it stop.  She would have let it go at that.

            Two and a half months after she is forced to quit, the owners sue Ellen claiming she committed slander per se against them, breached her fiduciary duties, disparaged their business and was negligent.  That is the last straw.  Ellen hires Gene Shioda, TLC ’08.  Gene calls me and asks if I want to co-counsel Ellen’s case AND file counterclaims against the owners for what they did to Ellen.  We file an Answer and counterclaims for sexual harassment, retaliation, intentional infliction of emotional distress and assault.  For the next 4 ½ years we litigate, surviving two case-dispositive motions.

            We get to trial in January, 2014.  The company and its owners parade witness after witness into the courtroom.  These people all tell the jury horrible things about Ellen.  Except none of it is true.  But how does Ellen prove that when the other side has a dozen witnesses and she has just herself?

            The jury charge is 67 questions.  It takes the judge nearly 2 hours to read the charge to our jury.  Our jury deliberates all day.  At 6:30 Friday evening our jury comes back into the courtroom, announces they have reached a verdict and the presiding juror gives the bailiff the charge.  The judge reads the charge and the answers.  Every one of the owners’ claims is answered “No.”  Ellen’s claims for sexual harassment and intentional infliction of emotional distress are answered “Yes.”  The jury awards Ellen money.  Vindication and justice, at last!

                                                                                   

July 2013 grad Tom Davenport tells how the TLC methods helped him win justice for his client!

Dear TLC and F Warriors,

 

I started a civil service appeal hearing in October of this year, but I finished it this morning at 1:30 a.m. My client was terminated from her job for several reasons, some seemingly valid and others were trivial.  There were a lot of facts, issues and components to the case.  Because of my recent time at the ranch, in order to prepare, I spent a significant period of time reenacting the scenes with client. This process allowed my client to explain to me the facts and events, and it allowed her to recall facts.  It allowed me to prepare better, and to accurately identify all the danger points of her case.

 

For the first time since I graduated this summer, I developed my trial questions using the TLC methods.  When I finished with the first adverse witness, I could sense the anger of the 5-person civil service panel. I used an extensive amount of the compassionate cross, even when another witness was evasive and mean. It was hard resisting the urge to clobber this witness, but I trusted the panel would become just as frustrated with her as I did.  I felt like I had permission to cut this witness’ throat, but I was doing well and did not think a change in strategy would be beneficial.

 

I followed the methods on the direct examination and it allowed me to bring in a lot of emotions and heartfelt materials. My client was not a client, but a living, breathing human. The setting of the scene brought the board into the scene of the case.

 

My closing stayed true to the TLC methodology, despite my co-counsel insisting on a bullet point format.  It felt right and appropriate to bring in the “bird in the hand” story (thank you Mr. Spence).  I was told that the summary gave many “goose bumps.”

 

I was the panel’s guide.  The panel deliberated and reinstated my client to her job, awarded all the back pay and back benefits that she lost pursuant to the “termination without just cause.”  It was a home run on a difficult and complicated case.

 

I’ve practiced for about 12-13 years and, at times, the use of the TLC methods did not feel natural.  But, through this case and the summer College TLC, I’ve learned that I need new, more effective habits.  I felt compelled to state this publicly because I suspect that some of the new graduates like myself, or even people considering attending TLC, may have difficulty understanding how to employ these methods and still may be  unable to trust the methods.  As with anything new, it was different.  However, it was very effective, efficient and the results are conclusive in this case.

 

Thinking back to what I may have done before the TLC experience and knowledge, I am fairly sure that I would have not been as effective in representing my client.  I now trust the TLC methodology.  On another note, I must say that in addition to the TLC methods, it was nice to have the F Warriors behind me on this case. Everyone was very supportive.  My TLC classmates Corey Scott and Bob Vogel took late night calls and we worked through various issues.  TLC Warriors Colby Vokey, Scott Webre and David Smith provided great advice and support when I was confused and needed help.

 

In conclusion, I believe in the TLC and its methods. I value it and the relationships that were forged at the Ranch and off the Ranch.  It would have been easy and comfortable for me to do what I have always done, but it would have been an injustice to my client.  Please consider my experience when you are tempted not to apply the TLC methods.

 

Thank you TLC, its staff and instructors.   

Thomas D. Davenport, Jr.

TLC 1998 Grad and Board Member Jim Nugent gets a "Not Guilty"! 

Hearing the jury foreperson announce "not guilty" at the conclusion of Larry Johnson’s murder trial yesterday was one of the most humbling and rewarding moments of my 25-year career as a lawyer. Some may wonder what I was doing trying a murder case when for many years the focus of my practice has been serious personal injury. I agreed to co-counsel this criminal case for three reasons. First, my friend Norm Pattis (normpattis.com) invited me to do so. Second, there is no better way to sharpen my trial skills than being in trial. Third, and most importantly, after learning Larry Johnson’s story, I was convinced he was not guilty. The invite. I have known Norm for over 15 years. Although we both live and practice law in New Haven County, our paths first crossed in 1998 over two thousand miles away in Wyoming at the Trial Lawyer's College (triallawyerscollege.com). Upon our return from the college, we teamed up and tried many cases together, both civil and criminal. A number of years ago, Norm decided to focus primarily on criminal cases, initially handling misdemeanor and felony charges and, over the years, focusing primarily on felony cases - the most serious in the criminal area. During those same years, I began to focus on civil cases with my practice growing from smaller car wrecks to significant crashes involving very serious injuries, tractor trailer wrecks and the wrongful death of loved ones. Despite our practices going in different directions, providing us little opportunity to try cases together, Norm and I have remained close friends and frequently discuss our cases, strategies and courtroom tactics. One day last spring, while Norm and I were reminiscing about our trial days of years past, Norm invited me to join him as co-counsel in a murder trial. He said the trial would take place in the New Haven courthouse - a mere hundred steps from my office. As we considered teaming up again we discussed that defending Larry Johnson together could provide a chance for both of us to improve our trial skills through the help of each other. This would be a well thought out, honestly critiqued trial with a keen eye toward providing feedback to one another - assessing what each of us did well, what we did poorly and the perceived consequences of our strategy and courtroom performances. Regardless of whether you agree with Norm’s philosophy, anyone who knows him will agree he is a genius and a talented lawyer. As a result of trying over 100 jury trials to verdict, Norm comprehends the Rules of Evidence like few others and his gift of oral advocacy is matched by none. The downside for me would be my monetary compensation. If I agreed to work on the case, I would do so pro bono. Weighing heavily on me was my belief that Larry was, in fact, not guilty. The fact I wouldn’t be paid did not turn me away, however. I’ve learned sometimes the best compensation comes from the experience, not from monetary payment. Another good friend of mine, Jude Basile (basilelaw.com) defines a jury trial as, "a real human being (lawyer) telling a real story about another real human being (client) to a group of real human beings (jury)." To be sure, the only place you will find all that realness is in an actual trial. The Rules of Evidence and the art of persuasion can be practiced and perfected in every trial, criminal or civil, and the trial skills we know best aren't the ones we have been taught but rather those skills we have learned through actual experience. Thus, I decided the chance to sharpen my trial advocacy skills for use in my future personal injury and wrongful death trials was more than adequate compensation. The teeth on the saw that were sharpened. As with any trial, certain rules and tactics are of greater concern than others. In this murder case, I was able to study and apply the rule of the prior inconsistent statement. Simply put, a witness in trial can be impeached by a prior inconsistent statement. Although the rule may sound rudimentary and understood by most, during Larry’s trial in particular I gained a much deeper appreciation for the rule’s usefulness and application. Although I thought I fully understood and could apply the rule correctly prior to this trial, Larry’s trial required its application under difficult scenarios. On October 12, 2011, Larry, who is black, witnessed a white guy in a McDonald’s parking lot beating up his girlfriend. Larry intervened and got into a fight with the guy. During the fight, Larry was stabbed. Later that same night, a different white guy living in the same blighted neighborhood of New Haven was shot and killed in front of several witnesses. When the police began investigating the murder, they learned of the fight between Larry and a white guy earlier the same night, and the police began to build a case against Larry. They interviewed dozens of acquaintances and friends of Larry, a common issue was drug use. When first asked about Larry’s connection to the murder, these folks told police neither they nor Larry knew the victim, and that Larry had nothing to do with the murder. After being arrested on drugs and firearm charges, subjecting themselves and their parents and other family members to numerous felony charges, and after being coerced by police to give them something on Larry, his friends began telling stories implicating Larry in the murder, telling the cops Larry confessed to them he killed the wrong guy. None of the actual witnesses to the murder identified Larry as the shooter, and in fact, immediately after a shot was fired, someone at the scene yelled, “Shane, why you did that?” In addition, the victim’s girlfriend told police that after the murder a guy (not Larry) approached her in a bar and told her he killed her boyfriend because the two owed him money for drugs. Also, despite a nearby liquor store's video surveillance camera captured the murder on tape and was played during trial, the tape's resolution did not allow for a clear identification of the murderer. Nonetheless, the State still charged Larry with murder, carrying a pistol without a permit and possession of a firearm by a convicted felon. It is with this backdrop that Norm and I set out to tell the jury, through cross examination and the use of prior inconsistent statements, that the witnesses called by the State had changed their stories about Larry in order to help themselves on their own drug and weapons charges under coercive interrogation techniques used by the lead police investigator. Larry’s trial offered another opportunity to sharpen my skills of developing and conveying themes, sowing the seeds during jury selection and cultivating them throughout the trial. During jury selection, we began to sow the seeds of our theme - that alleged witnesses lied about Larry in order to save their own hides, who the burden of proof was meant to protect and the presumption of innocence. I am a firm believer it is counterproductive to sell a story or attempt to persuade a potential juror during jury selection. The best way to alienate a potential juror is to manipulate or cross-examine him. During jury selection in Larry’s trial I was able to practice the art of acceptance rather than exclusion. We chose a true cross section of folks, black, white, younger, older, male and female. By the end of jury selection, and more importantly by the end of the trial, we felt we had formed a tribe that was ready, willing and able to march into the deliberation room and render justice. Our confidence caused us to seriously consider waiving our closing argument. After weeks of jury selection and trial, hearing from many witnesses who had changed their stories, and after roughly two hours of deliberations, the jury indeed returned a verdict for justice: Not Guilty on all charges. Thank you Norm.  And thank you Jim.  (jimnugent

@snet.net)

A Day in the Life of a Public Defender:  Met TLC Faculty member Eric Davis

Eric Davis graduated from TLC in 2005 and has served on our faculty for the past several years.  He is a Public Defender in Harris County, TX.  He is but one of the Public Defenders who proudly serve on our Faculty and lend their experience and compassion to every class they teach.   Here's a chance to get to know him better: 

Towards the end of last year I represented a “battered spouse” in a murder case here in Houston.  The jury acquitted my client of all charges.  Although I have secured acquittals in other murder cases, this case was the most satisfying. 

Our client rejected the State’s 45 year plea offer and went to trial.  The State asserted that the client's version of events was impossible because the complainant (my client’s husband) was shot in the back of the head once and in the back once.  The State argued that it could not be self-defense. 

They also focused on the client's inconsistent statements (which came about when she was confronted with cell tower records…. the state put on a cell tower expert and introduced a map tracking her movement that showed the client lied about where she went).  During her second statement, the client acknowledge that she left out some key details in her first statement.  State argued that she lied because she was tired of the complainant cheating on her.  She killed him because of his cheating.  The CWs 73 year old father testified that the client called him hours before the shooting and told him that she was going to blow the complainant’s brains out.  The state also focused on the fact that on a previous occasion, the client shot at the CW because of him cheating on her with the same woman she discovered that he was with on the day she shot and killed him.  The state was very confident in their case.  So confident that the Division head in the District Attorney’s Office was one of the lawyers that tried the case.  They boasted to many that my client did not have a chance.   But the jury thought otherwise.

The support staff and a few lawyers from the Public Defender’s Office helped me and the client conduct a psychodrama that helped me feel some of what she felt after years of abuse.  I was then able to tell her story of abuse that went unaddressed by the criminal justice system.  Her husband’s abuse of her was well documented.  Several police officers testified for the defense about how they responded to calls and saw bruises on the client and that she appeared in distress.  They all testified that they filed reports that were never followed up on.  Moreover, every employer she had during her marriage testified that she came to work with visible injuries (black eyes, bruises on her face and extremities).  She was “the real McCoy,“  truly a victim of spousal abuse.  And when she finally stood up for herself and protected herself -- she found herself sitting at the table defending herself.  The system that refused to prosecute him for years of beating her, was swift to prosecute her when she defended herself.  The psychodramas made it so much easier for me to tell her story with conviction because I had, in essence, lived it all. 

Today, because of Eric Davis, and psychodrama, and the methods he learned and teaches at TLC and was able to employ in the courtroom, today, his client is free.