Crime In Your Community: Legal Liability For The Association? (PDF)

By Julie E. Blend, Esq.
Dealey Zimmermonn Clark Malouf & Blend, PC

Reprinted as originally published in the Dallas/Ft Worth Chapter of Community Associations Institute's Community Contact Magazine, 2nd Quarter 2013 edition.

The Great Inverted Pyramid (PDF)

By Sam J. Dealey

Sight Reduction for Navigation (PDF)

By Sam J. Dealey

Using Expert Witnesses in Employment Litigation (PDF)

By Julie E. Blend
University of Texas School of Law’s Review of Litigation
Winter 1998

Reprinted as originally published in The Review of Litigation, Volume 17, Number 1, page 27. All rights reserved. Further duplication without permission is prohibited.

Four Steps for Overhauling the Death Penalty

By Mark J. Zimmermann
Texas Lawyer
May 03, 2010

Proponents and opponents of the death penalty endlessly debate the morality of its continued existence and application. Rather than rehashing the same tired arguments, I propose a new approach to arriving at and reviewing death sentences.

There are three major camps in the death penalty discussion. Some believe state-sanctioned death is always wrong. Others believe justice, vengeance or deterrence legitimize the death penalty. Still others believe the death penalty is justified in theory but find its random application unacceptable.

If Texas is to impose the death penalty, is there a way to decrease its randomness and make it an acceptable means of expressing societal revulsion, obtaining vengeance and deterring similar conduct? Such a proposal must respond to criticisms of capital punishment: uncertainty about whether it is applied justly; delay between judgment and execution, thus eliminating deterrence; and the high cost of sustaining prisoners in the sometimes 20-year lapse between judgment and death. Of these, uncertainty must rate most important.

Any proposal must balance society's need to punish and justice's demands that the state not execute the innocent. Striking this balance and taking into account advanced technology, including DNA evidence, requires a fundamental change. I propose creating a Life Court, which would involve the following changes in the Texas legal system.

First, imposing the death penalty requires abandoning the standard of proof beyond a reasonable doubt. The standard of proof should become beyond all doubt. While this standard may have proven too rigorous in prior centuries, it is not today. Can there be any doubt, for example, that Jack Ruby killed Lee Harvey Oswald? He did so live on television. Add DNA to the mix of available evidence, and prosecutors can meet the heightened standard.

Second, accomplice testimony, informant testimony, a confession or strangers' eyewitness testimony cannot satisfy the beyond-doubt standard of proof. The state should not execute one man on the word of another who has everything to gain by his testimony. Neither should the state become an accomplice to suicide by accepting self-incriminating confessions, however obtained. Eyewitness testimony by strangers is inherently unreliable.

Third, defense counsel for capital cases, when supplied by the state, should come from a special pool of attorneys with experience in death penalty cases. Pool attorneys should be well compensated and must attend special, state-sponsored training to remain in the pool.

Fourth, the state should create a Life Court, to which lawyers automatically will appeal all impositions of the death penalty. The Life Court judges may review the case de novo and may consider any evidence. All appeals to the Life Court will be processed in a timely manner. If one judge in any three-judge panel finds the evidence does not meet the beyond-all-doubt standard of proof, the Life Court will remand the case for consideration of a lesser punishment. Of course, Life Court decisions may be reviewed by the Court of Criminal Appeals and by the U.S. Supreme Court. After the Life Court has operated for some period of time, and if it functions as anticipated, the higher courts are more likely to accept the legitimacy of its work.

Money to create this new bureaucracy will come from the cost-savings from eliminating the expense of housing death-row inmates as appeals drag on. If the death penalty is imposed and the Life Court upholds it, the state expeditiously will carry out the execution.

Justice delayed is justice denied. Society is empowered to punish those who would brutalize citizens. The consequences of criminal behavior would be swift and, most importantly, sure. Citizens could feel secure in the belief that the man responsible for the deed would suffer the repercussions. Scientific advances of the 21st century have been eagerly embraced by law enforcement agencies, yet the criminal justice system in the courts continues to function as if locked in the 19th century. It is time to change. The creation of a Life Court will not encourage more capital prosecutions; it merely will ensure that society's life-and-death decisions are based on facts alone.

Mark J. Zimmermann is a founding shareholder in Dealey, Zimmermann, Clark, Malouf & MacFarlane in Dallas. He graduated from the University of Virginia School of Law and was an assistant U.S. attorney in the Western District of Missouri before beginning his commercial and intellectual property litigation practice in Dallas. He has been an adjunct professor of law at Texas Wesleyan School of Law since 1992



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