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David Medina

Devine versus Medina

So why did onetime District Court Judge and frequent candidate John Devine decide to challenge Supreme Court Justice David Medina in this year’s GOP primary? A couple of his colleagues in Harris County offer a reason that isn’t very flattering.

Devine “couldn’t provide us with a philosophical reason (to oppose Medina). He could not point to one opinion that he had a problem with,” said Scott Link, a former Harris County district judge who had set up the lunch with Devine.

“It was just, ‘I could beat a guy with a Mexican name,’ ” Link said Thursday. “I was offended on several levels.”


Speaking by phone Thursday, Link said he set up the July 2011 lunch at Brennan’s of Houston — and invited fellow lawyer Frank Harmon — to try to talk Devine out of opposing Medina, a candidate whom Link and Harmon supported.

Devine declined suggestions that he target another race, they said.

Devine received 32 percent of the vote in the May 29 Republican primary, forcing a runoff against Medina (39 percent), a member of the state’s highest civil court since 2004.

Harmon, a 40-year lawyer, confirmed Link’s account of the lunch.

“This happened, and it’s awful,” Harmon said. “He said he wanted a job and people with Mexican names tend to lose in Republican primaries, and regrettably there is some evidence to support that.”

Harmon said Devine pointed to two Hispanic candidates defeated in the 2010 GOP primaries: Victor Carillo, a former Texas Railroad Commission chairman, and Leo Vasquez, a former Harris County tax assessor-

I don’t much like having to defend John Devine, who’s a nut and who scored very poorly on the Houston Bar Association poll (which, yes, I know is more popularity contest than anything else), but in a court of law this would be called “hearsay” and would be inadmissible. Devine has since vigorously denied the allegation. You can see his full statement here. Obviously, I wasn’t there for this meeting, and I have no knowledge of who did or didn’t say what. Devine has lost a lot more elections than he’s won and really isn’t that strong a candidate, but Medina has weaknesses as well, including that arson saga and his financial situation. He should be vulnerable, as his 39% performance in May suggests. Whoever wins the runoff will be on the bench next year, as there is no Democrat running (sigh). We’ll see if this story has any effect.

In defense of Todd Willingham

Via a comment on an older post, I came across this withering critique of Todd Willingham’s defense team. There’s an interesting comparison in there that I don’t believe I’d considered before:

Apparently Willingham’s defense was judged to be technically adequate during the appeals process. As I understand it, all that means is that no egregious errors were made. Willingham’s defense may have been error-free but it was still worthless — I’ll do my best to explain why in a bit. First, I want to take a quick look at another case. In an editorial I’ve brought up before, Duke law professor Jim Coleman suggests that there are effectively two justice systems in the US. If so, I think the high-functioning, principled one is epitomized by the arson case against Texas Supreme Court Justice David Medina and his wife, just like the Willingham case epitomizes the low-functioning, hypocritical one. Needless to say, Medina didn’t settle for a defense that was merely adequate. His is to Willingham’s as a tank is to a BB gun. The charges against Medina were a bit of an ironic reversal — as Gov. Rick Perry’s general counsel he had a role in denying Willingham a last-minute stay of execution. Did he give a minute’s thought to the enormous difference between the defense the soon-to-be dead man got and the one he’d insist on for himself? I doubt it.

In June 2007, a fire that started in Medina’s detached garage destroyed his house and caused significant damage to neighboring houses as well (my main source an article the Houston Chronicle ran on Jan. 18, 2008). Inspectors claimed that accelerants were used. I can’t tell how their evidence compares to the evidence against Willingham, but at least there was a plausible motive. Medina seemed to be having financial trouble and foreclosure proceedings had been initiated — a “red flag,” according to investigators. Medina’s wife Francisca was charged with arson and he was charged with fabricating evidence.

The theatrical high point of the Medinas’ little flirtation with the wrong side of the bar was in January 2008, when a grand jury handed down indictments against the couple and the DA’s office dropped them like a hot potato. The foreman and assistant foreman of the grand jury were so mad they went to the press. The assistant’s acid comment was that “I’ve just never seen anything like the vigor with which these two defendants were defended by the Harris County District Attorney’s Office….” The foreman said, “If this was David Medina, comma, truck driver, comma, Baytown, Texas, he would have been indicted three months ago.” I think that’s a safe bet, and it’s hard to believe that the Medinas were really treated just like you and me would be.

On the other hand, connections aren’t the only thing that David Medina, Texas Supreme Court Justice, had that David Medina, truck driver, probably wouldn’t have. The real Medina also had the wherewithal to hire top-notch attorneys who in turn hired their own investigators. When Francisca Medina was re-indicted, the defense experts did their thing and the charges were dismissed.

Steve Baldassano, the assistant DA handling the case since January, says his office didn’t have sufficient evidence to prove arson. “We couldn’t eliminate an electrical malfunction,” says Baldassano. Francisca Medina’s attorney, Dick DeGuerin, says that last week he provided the DA’s office with a report prepared by independent fire experts who found that the evidence did not prove arson. “Our experts believe that it could not be called an arson fire,” DeGuerin says. Baldassano says the fire investigators DeGuerin hired are often used by the DA’s office, and “you have to keep an open mind to see if new evidence comes up.”

You have to keep an open mind to see if new evidence comes up. Of course. Who could argue with that, or with what the prosecutor, Vic Wisner, told the New York Times? “We have an ethical duty to seek justice.” And not only that, “it would be unlawful, unethical and irresponsible for me to proceed with a case that I do not think has the ability to get beyond a directed verdict of acquittal, let alone beyond a reasonable doubt.” Amazing how the principles kick in when a state supreme court justice and his high-powered attorneys come knocking at the door. It’s certainly possible that the Medinas burned down their house and their crimes were whitewashed. But as far as I can tell it’s at least as likely that it was another case of overzealous and under-informed fire inspectors. So maybe the special treatment was just that the system worked the way it’s supposed to. Or pretty much that way, except maybe just a little bit more, ummmm… efficiently.

As general counsel to Rick Perry, Medina was involved in the decision to shrug off the last-minute report from Gerald Hurst debunking the forensic evidence against Willingham. Needless to say, it’sdeeply ironic that Medina’s wife was cleared of arson charges because the evidence was challenged by an independent expert hired by the defense, or as Perry would say, one of those “latter-day supposed experts.”

We worry a lot about the differential outcomes caused by inequities in the quality of schools or health care (and we should!), but does anything produce starkly differential outcomes like inequities in legal representation?

Good question. Check it out.

Grand juror disagrees with dismissal of arson charge against Francisca Medina

Given the grand jury issues that surrounded the original indictment of Supreme Court Justice David Medina in the matter of the fire that destroyed his house, this seems only fitting.

A grand juror who sat on one of two panels to indict the wife of Texas Supreme Court Justice David Medina for setting their home on fire said Saturday he was disappointed that charges against her had once again been dismissed.

“There were two independent grand juries, and from the facts determined, there was sufficient probable cause to retain indictments,” said Steve Howell, a retired oil and gas executive. “I would like to have a jury hear the facts. I am perfectly contented once a jury has heard the facts, to abide by a decision of a jury … I trust juries.”

Harris County District Attorney Pat Lykos denied politics had anything to do with her decision Friday to dismiss the charges against Francisca Medina. Instead, she said it was strictly new evidence that earned her approval.

Prosecutor Steve Baldassano said neither of the grand juries that heard the case had the new information.

Expert evidence recently given to Baldassano by the defense team – and agreed upon by at least one official from the Harris County Fire Marshal’s Office – indicates it could have been an electrical fire.

“If you can’t rule out an electrical fire as the cause, then you can’t prove arson,” said Lykos.

Arson cannot be ruled out either, said Baldassano, who emphasized that the defense’s expert witnesses were “highly regarded” in the field and also serve as experts for the state in other cases.

Howell, the grand juror, said the new information indicating the cause of the fire could have been electrical would have had little effect, if any, on his decision to indict because he had access to other evidence and testimony, which he would not discuss.

I presume that nothing precludes the possibility of charges being refiled in the future if the evidence warrants. This has been a truly weird case from the beginning. Murray Newman has more.

DA drops arson charges against Justice Medina’s wife

You may recall the saga of State Supreme Court Justice David Medina, who was indicted on a charge of arson after his house burned down, then had that charge dismissed by Chuck Rosenthal amid much controversy – see here for more links. Along the way, his wife Francisca was indicted as well last year. Now that charge Cameron Willingham, I can’t criticize that kind of caution on the DA’s part. Justice Medina still has other issues to deal with, but this one appears to be closed now.