South Texas College of Law, Annotations (Houston, Tex.), Vol. 6, No. 7, March, 1978 Page: 3 of 13
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Pag* 2 — Annotation - March 1978
Racehorse Haynes
a serious criminal case. He does
so with a prayer on his lips,
hoping that the person whom he
hires will exert the maximum
effort and that that maximum
effort will result in a resolution of
his problem.
Q: Recently you made the news
by accepting a charity case of a
young girl who had killed her
mother.
A: It was alleged that she killed
her mother.
Q: What are the factors that
made you decide to take a case for
free?
A: In this particular case the
psychological factor, the timing of
it was appropriate from my point
of view. It was at a time when my
own daughter was in the hospital.
I'm standing around in the
surgical intensive care unit
watching the doctors, the nurses
and the technicians perform and
I'm frustrated by my own inability
to do anything about that. My
own frustration and heartbreak of
seeing my little girl in that
condition and here we have this
little girl who is at least as
seriously debilitated having been
convicted by a jury of the offense
of murder and given 99 years. She
called upon me to help and I think
I can help. So psychologically the
timing was right for me to accept
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the responsibility of that case.
The other aspect is that most of
the lawyers who are active at the
trial bar do a certain amount of
pro bono work.
Q: What is your percentage?
A: I try to give about ten
percent of my time. It is sort of
like tithing and in my professional
life I feel like I've tithed in terms
of representing the indigent
person in criminal trials.
Q: When would you refuse a
client when money was of no
object?
A: The only reason I would
refuse a client is if the factual
assertions are such that I could
not be objective toward the client.
If because of the facts I could not
be objective, then I would refuse.
The only case I could think of
where I declined to accept
responsibility was a case of child
abuse. That was at a time in my
like when I had children and I just
didn't feel that I could be
objective enough to render the
sort of assistance that the citizen
needed so I presented it to
another lawyer.
Q: Are there any other crimes
that for personal reasons you
would rather not defend?
A: Not that I can think of. I have
not been approached by citizens
who have been accused of the
offense of treason. I don't know
how I would react to that. I don't
think I would have any reserva-
tions. I can't think of any offense
where the offense itself would be
so noxious or repugnant that I
would decline to be of service.
Somebody has to do it. Some
lawyer has to come in and put
forth the maximum effort. The
public generally does not think
about that. For instance, take this
guy Gary Gilmore who was
executed recently for various
repugnant offenses. When he
endeavored to commit suicide,
and almost successfully did so,
doctors worked around the clock
feverishly to try to save his life.
Nobody condemned the doctors
for trying to save the life of this
person, but people condemned
the lawyers who tried to save his
life in the practice of their skills.
People need to think about that.
So the offense itself should not be
a deterrent. The only thing that
should deter a lawyer from
accepting responsibility in a
criminal matter is if he feels in his
own mind that there is something
about it that would prohibit him
719 Franklin
or her from being totally objective
about it and therefore unable to
make a maximum effort.
Q: Do you use a polygraph when
talking to clients?
A: Occasionally, we do. I don't
have all that much confidence in
the polygraph, but from time to
time it is another tool to use in
sorting out information.
Q: Are you always positive of
your client's veracity?
A: I don't think anybody is
always positive of anybody's
veracity.
Q: When you go into court, just
how much do you know concern-
ing the facts and the law about
the case?
A: I like to think I know all of the
facts that can be known, but
pretty clearly for any lawyer who
tries cases, he finds that some-
times the trial is a discovery
vehicle. He could not know all the
facts that attended the incident
and made the basis of the
accusation. With reference to the
law, you try to anticipate what
issues of law will be involved and
try to work those out in advance.
But I have never seen a trial
where a lawyer could anticipate
with 100 percent certainty exactly
what legal questions would come
up. This is what sends lawyers
from both sides scurrying to the
law library to answer questions
that neither side anticipated.
0: What percentage of the law
do you actually research yourself?
A: We have law clerks who do
the initial research and they
submit their propositions to the
lawyers. We filter that down a
little more and ultimately the
lawyer who has responsibility for
the trial of the case has to do the
final shepherdizing and capsuling
of it so it is presentable to the
court.
Q: Most people are familiar
with your reputation as a winning
trial attorney. What is your
reputation on the appellate level?
A: My reputation is not estab-
lished on the appellate level at all
because I have not appealed that
many cases. You don't appeal
unless you have to.
Q: What are the major consid-
erations in presenting a case on
appeal as opposed to the trial
level?
A: The major considerations on
an appeal is one, being able to
concentrate the effort in an area
where a review in court is most
likely to give it consideration and
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second, being able to verbalize
those positions to the court in a
fashion that for them makes it
interesting and calls the court's
attention to the issues that you
seek resolution on. In my judg-
ment, it is a separate art and
some lawyers are a lot better on
appeal than others.
Q: You mentioned before, in
public, that as a young attorney
you tripped over a spittoon when
approaching the bench. The jury
laughed and did not convict a
seemingly guilty client, and at
that time you learned that a
laughing jury does not convict. Do
you have any present observa-
tions?
A: Well, I have not abandoned
that initial concept that a laugh-
ing jury does not convict. A good-
natured jury has good feelings
about the court, about the citizen
on trial and good feelings about
themselves. This is manifested by
their good natured repertoire with
the court. It is a jury even though
it may convict, it is going to
temper justice with mercy. It's a
good jury and it's not as likely to
convict as a jury of U-boat com-
manders.
Q: Joe Jamail, a good friend of
yours, is a leading plaintiff's
attorney in the personal injury
field. He maintains that it's
imperative to make the jury feel
the pain that the plaintiff suf-
fered. What exactly is important
to relate to the jury when defend-
ing a client?
A: In criminal cases it's almost
the same thing. You are not going
to try to make the jury feel the
pain of the citizen who is on trial.
You are trying to get the jury to
feel the agony that the citizen on
trial is experiencing as a human
being. You are trying to get that
jury to see the citizen as a human
being, to forgive those human
shortcomings that all of us have,
that perhaps, if you don't consid-
er in the right light, might appear
to be indicative of guilt. There are
two aspects to the trial in Texas
— one is the aspect of guilt or
innocence, the other being pun-
ishment. Sometimes in treating
the innocent, it is more difficult
than otherwise. Sometimes they
have a more difficult time getting
a resolution in their favor. They
eventually get it by and large, but
it's more difficult. But the other
aspect of a criminal trial 4s the
wide range of punishment.
There's a lot of difference be-
tween incarceration or probation
— a brief period as opposed to the
supreme punishment. So what
Joe and the other competent
personal injury lawyers present to
the jury to share with the citizen
is the personal loss and pain.
What the lawyer who tries to
defend the citizen accused of a
crime does is to get the jury to see
the citizen as a human being.
More often than not the accused
are ethnic minorities. More often
than not they have been eco-
nomically deprived. More often
than not they don't have the same
physiological configurations as
other people, which makes them
look different. Ugly people get
convicted more frequently than
people who don't look ugly, so it's
the obligation of the lawyer who
represents the citizen accused of
crime to let the jury see the man
or woman on trial as a human
being.
Q: What are some characteris-
tics that you look for when
selecting a jury relative to the
defendant and his crime?
A: I look for a jury with an
ability to identify with the citizen
on trial. I look for intelligent
jurors. I look for jurors who think
well of themselves. I look for
jurors who do not have occupa-
tions or jobs or professions that
would cause them to grow cold or
callous. For example, it has been
long said that bankers don't make
good jurors in criminal cases and
there is a reason for that. When a,
man comes in and says my wife
has cancer, my house burned
down, my son was wounded in
Vietnam and can't work, and I
need to borrow $2,500, he makes
the most plaintive case in the
world for borrowing money and
the banker has to say no. The
ability to say no to human need
would cause you not to want to
have that person on the jury
because that person may say no to
that citizen on trial when he cries
out for mercy.
Q: A reoccurring surprise has
been evident in many of your
cases. For example, you were
actually prepared to put a nail
through a novacained section of
your hand to prove that a
crucifixion punishment by a
motorcycle gang perpetrated
upon a girl is not all that terrible.
During the Cullen Davis trial,
very hear the end, you introduced
a witness who testified he would
have robbed the Davis mansion
on the night of the murder if not
for seeing a man wielding a
shotgun who was definitely not
Cullen Davis. Just two weeks ago
you accused the prosecution of
corroborating testimony with a
police officer. You won each of
these times. Do you feel that a
confused jury will not convict?
A: I don't think that you can
confuse the jury. The jury is the
most awesome computer that
man can put together. First of all,
they have absolute unbridled
power as a jury to forgive, and if
they want to, to overlook evidence
or magnify it. I don't think you
can confuse the jury. A thinking
jury who reads the law and
understands what it means to
have proof beyond a reasonable
doubt will return the verdict that
is right for the right reasons, and
that's what's important. The
recent case where you indicate
that we accused the prosecutor,
well that's not our, accusation.
The police officers who took the
stand testified and they came
forth voluntarily. They testified
that the prosecutor was endeavor-
ing to get them to offend the rule.
So that was not any of our doing.
It was something that occurred in
the course of the trial, and when it
occurs it is the lawyer's obligation
to bring it out to the court and the
jury without regard to the fact
that it pinches the toes of the
adversary. You have an obligation
to your client to develop every-
thing in the course of the trial for
the jury. In the Davis case, for
example, the witness who testi-
fied that he was going up to the
mansion presented this same
obligation. I gave serious thought
before I put that witness on and
finally resolved it. I told the jury
that I wasn't telling them to give
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Ziegler, Dave N. & Johnson, Peter. South Texas College of Law, Annotations (Houston, Tex.), Vol. 6, No. 7, March, 1978, newspaper, March 1978; Houston, Texas. (https://texashistory.unt.edu/ark:/67531/metapth144378/m1/3/: accessed June 12, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting South Texas College of Law.