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Headshot: Susan Criss                   Susan Criss

By Ian White

Former Galveston district court judge Susan Criss fought back after being dealt a double blow by appeals justices this week when verdicts in two of her cases came under fire.
In one decision, a 14th-court-of-appeals panel ruled that her “actions and remarks during the selection of the jury prevented a fair and impartial trial” and ordered a new trial.
But she fought back after the three judges blasted her for preventing jury impartiality during a child-pornography case that ended with a 15-year custodial sentence for the defendant but began with the judge arresting a potential juror.
In the other ruling, the first court of appeals recalled an April mandate in which it had affirmed a verdict by Criss’ 212th district court because the case involved has gone to the US supreme court.

Former judge defends pre-trial jury arrest

AS JUDGE in Galveston’s 212th district court in August 2013, Susan Criss raised eyebrows by arresting a potential juror during the selection process for a case involving child pornography.
Now the state’s 14th court of appeals has ruled that the case must be reheard because the arrest and remarks Criss made during jury selection prevented the defendant’s right to a fair and impartial trial.
But Criss claims the appeal judges were not given the facts of the arrest and that her decision to incarcerate the juror was within the law.
She told The Post that, rather than having the man arrested because he had refused to look at child pornography if appointed to the jury, she locked him up because he was attempting to leave the courtroom without permission.
The case ended with the conviction of Alisha Marie Drake, then 24, for sexual performance by a child younger than 14.
Drake, of Aurora, was convicted after pleading not guilty to the second-degree felony, which involved making a cell-phone video recording of a man sexually assaulting his 14-month-old granddaughter.
The appeal court’s ruling noted that, during the potential jurors’ voir dire examination, Criss argued with the 48th member of the panel, who claimed that, for religious reasons, he could not view child pornography and would close his eyes if presented with such images.
At this point, the appeal ruling states, Criss gave a lengthy address to the panel in which she said, “if you believe in God, God wants you to protect the children” and, if a “kid had to go through that, then adults can watch a film”.
She also said: “If it grosses you out, then you can take it out on the person in punishment because it can’t possibly gross you out more than it grossed out that child. So that’s what my God tells me.”
She then told juror 48: “If you get on this jury and I order you to look at something, you will get yourself locked up. So you want to find out what my God will tell me to do? Let’s test it, buddy. Let’s test it.”
Juror 48 said: “I believe that Jehovah God is a supreme judge and it is not in my place to judge anyone else.”
Criss replied: “All right. I understand that. We have Jehovah’s Witnesses all the time. But you know what? If you get picked on this jury, you get picked on this jury, and Jehovah can visit you in the jail.”
According to the ruling, as the judge told him to have a seat, juror 48 responded: “OK then – I guess they have to visit me.”
The appeals judges wrote that Criss shot back: “All right. Arrest him. Take him into custody. Take him into custody right now. I’m not playing. See you later.”
The appeal judges noted that neither the prosecuting or defense counsel objected to the arrest or Criss’ remarks but ruled that objection was not necessary for the appeal because the judge’s actions constituted “fundamental error”.
Criss said on Friday: “The juror was not arrested for his religious beliefs or not wanting to look at child porn. He stood, with his arms across his chest, and was walking out of the door, making it clear he was not going to stay. That’s why counsel did not object.
“I was giving my normal explanation to the jury but, on this occasion, I didn’t do as well as I normally do, granted. However, you don’t get the option of leaving voir dire.”
The appeal-court ruling states that, later, Criss interrupted another potential juror to say: “If we could let people go, we would let people go, but we are not. And I’m not playing, and I don’t care if anybody likes it or not. That’s what we have to do and we are going to do that to pick this jury.”
Attorney Lori Laird appealed on Drake’s behalf, claiming Criss had committed a fundamental error by arresting juror 48 in front of the jury panel and by commenting on “the punishment that should be imposed”.
                                                                   Chilling effect
Laird also asserted that Criss’ actions and remarks during voir dire had deprived her client of a fair and impartial jury during trial.
The appeals panel agreed, writing: “The term ‘voir dire’ literally means ‘to speak the truth’… Punishing a juror for speaking truthfully and expressing his bias has a chilling effect on the jury’s ability to respond affirmatively to questions asked during voir dire.”
The judges added: “Even if juror 48’s tone was disrespectful, it is a judge’s role to maintain decorum without resorting to personal argument. This record reflects that the trial judge engaged juror 48 personally, thereby at least continuing, if not escalating, the angry tone of the exchange.
“It certainly cannot be said that juror 48 actually wanted to be arrested. Instead, juror 48 affirmatively responded to … the trial judge’s questions regarding the jurors’ views on child pornography.”
Later in their 14-page opinion, they wrote: “Along with holding the juror in contempt, the trial judge’s comments about Drake’s case and punishment undoubtedly influenced the jury’s opinion about the case before it even began.”
Noting that “the record reflects that the jury was intimidated by the encounter between the trial judge and juror 48”, the judges concluded: “The trial judge’s decision to arrest a juror for speaking truthfully about his bias and … to comment on Drake’s case leave us with no other option but to reverse the conviction. The trial judge’s actions failed to protect the trial process and deprived Drake of a fair and impartial trial.
Choice
“We hold that the trial judge committed fundamental error. Accordingly, we reverse the conviction and remand the case for a new trial.”
Criss said she had not heard whether the county’s district attorney, Jack Roady, will contest the appeals court’s decision.
“It’s not my choice,” she told The Post. “Technically, the district attorney’s office lost the appeal, so I guess it’s up to Jack.”
Asked for his reaction, Roady said: “The appeal judges made their decision based on the trial court record and the court of criminal appeals would look at the same facts if we appealed to it so we are not going to appeal the decision upwards. If we must try the case again, that’s what we will do.”
The DA also said the man accused of sexually assaulting his infant daughter has yet to be tried.

Supreme court bid challenges appeal victory

THE SECOND case, filed in Criss’ court in 2012, aagainst then 19-year-old Kaylen Dewayne Simmons.
On September 25, 2013, Simmons pleaded guilty to the second-degree felony and Criss sentenced him to six years’ deferred community supervision.
His attorney, Houston-based Joseph Willey, appealed that the judge had erred when denying a motion to suppress evidence seized by police during the search of a car in which the defendant had been a passenger.
On October 30 last year, the first court of appeals ruled in favor of the judge and last month it issued a mandate that its ruling be observed.
But by then Willie had applied to the supreme court for a writ of certiorari, a legal instrument granting judicial review of a case by a superior court and directing an inferior court to submit for review the record of its proceedings in the contested case.
Accordingly, the appeals court this week ordered the 212th district court, where Patricia Grady now presides, to return its April mandate.
As The Post went to press on Friday, there was no indication of when, or if, the supreme court will take up the appeal.

Zodiac Killer ID sketch croppedDespite an ID sketch of the Zodiac                                                                                                                 killer, he has never been arrested.

 

By Ian White

TWO OF the nation’s most notorious serial-killing sprees could be the work of one man now living in Galveston County, according to a retired detective who has spent several years examining clues to who carried out the murders.
Even if his suspect is not responsible for both homicide series, the detective is convinced that evidence proves the man is the killer of at least some of the victims of this county’s “Killing Fields” murders, which began in 1971.
The detective, whose own identity is known by The Post but whom we cannot name at present, has compiled a massive dossier of documents he believes could prove his suspect was both the “Zodiac” killer of the San Francisco Bay area in 1968 and 1969 and a perpetrator of some of the Killing Fields crimes.
The former policeman’s work on the cases first came to our attention last year but we agreed not to publicize it until he had completed enough lines of inquiry to satisfy himself that a full law-enforcement investigation of his evidence will either lead to charges against the suspect or eliminate him from the cases altogether.
The retired officer now believes his investigation has reached its point of no return and told The Post this week: “I do have a name for the suspect and it will surprise many people. He is not well known publicly but he does have influence in some establishment circles.
“If I’m right about him, several horrible murder cases – maybe dozens –could be cleared up in one go.”
The detective said he has sent a full briefing of his investigations to a cold-case unit in California and other law-enforcement agencies and that at least one is now working to convict or eliminate the suspect from its inquiries.
The detective said he had not set out to link the two murder series and had initially been interested only in solving the county’s Killing Fields murders. But the gradual formation of a chain of apparently linked events, places and people had led him to explore the possibility of a common culprit.
He said he identified his suspect after poring over letters and other documents that purport to be from whoever carried out the Zodiac and Killing Fields murders. The messages were sent to investigators, newspapers and victims’ family members, each apparently intended to taunt its recipient with clues to its sender’s identity.
However, no one has yet been shown conclusively to be responsible for any of the messages and there is no absolute proof that they or the two murder series are the work of one man.
In fact, the Killing Fields murders span a period of more than 30 years, begging the question whether one person could have been responsible for them all.
“I accept that,” the retired detective said, “but my inquiries have produced evidence that suggests my suspect is a person of particular interest in at least two murders here and one linked to the Zodiac series, plus maybe one or two unrelated suspicious deaths.”
The detective believes that, while, individually, the messages prove nothing, together they reveal patterns and coincidences that are so specific that they narrow down both killing-spree searches to just one person.
He also said he is not the only student of the California and Texas killings to believe that the so-called Zodiac and the Killing Field murderer are either one and the same or at least closely connected.
“At least a couple of respected experts on the killings have reached the same conclusion,” he said, but his own investigations have led him one step farther than most. “Not only are there many similarities in the way the messages are written and their codes but they also appear to contain physical clues that point to the man’s name, his line of work and even his address,” he said.
“The signs that the cases are connected are in Galveston County. You just have to know where to look. If my suspect is innocent, that’s fine – but we can’t know that without a thorough official examination of the evidence I have uncovered.”

Microsoft Word - 150510 News - Zodiac long.docx

State lawmakers quarrel on tax giveaways

By Ian White

HOMEOWNERS and businesses have become the pawns in a tax-cutting battle between the state’s senate and house of representatives.
In the wake of governor Greg Abbott’s call for a tax-cutting budget during his state-of-the-state address at the beginning of this year’s legislative session, the Republican-Party leaders of both chambers have proposed competing measures they each claim will save money for Texas taxpayers.
Both sides claim the other’s plan would fritter the state’s money in the wrong direction and they also disagree on the method of calculating individual taxpayer savings.
The senate’s president, lieutenant governor Dan Patrick, and finance-committee chairman, senator Jane Nelson, want to make the cuts by lifting the property-tax homestead exemption threshold in a proposal that could quadruple it next year for Galveston County homeowners.

Patrick, DanDan Patrick

But representative Dennis Bonnen, who heads the house’s ways and means committee, favors a deeper discount in the business franchise tax and is also proposing a cut in the state’s sales tax that, if passed, would become the first reduction in that tax’s rate since it was introduced in 1961.
Bonnen, a businessman who represents Brazoria County, says his proposals will save the “average family of four” $172 per year, with “substantial savings as well” for Texas’ employers. Patrick counters that the family saving is worth just $43 “per person per year” while the senate’s gift amounts to “an estimated $442 in two-year savings to Texas homeowners”, including at least $412 in property-tax cuts.
Bonnen introduced his tax-relief package on Wednesday, upping the stakes in the two chambers’ contest to see who can give away the greater share of the state’s $19.4 billion 2015-17 budget.

Bonnen, Dennis-headshotDennis Bonnen

The senate had already introduced a plan worth $4.454 billion in cuts over the two-year budget period, but Bonnen trumped them, at least for the time being, with proposals that would slash $4.87 billion from the total.
Of that, his plan would reduce the state’s revenue for the biennium by $2.31 billion by cutting its sales-tax rate from 6.25 per cent to 5.95 per cent. The senate’s plan has no sales-tax element.
Bonnen’s proposal would also collect $2.56 billion less in the business franchise, or margins, tax by cutting its rate by 25 per cent for all Texas businesses.
That measure is designed to appeal to big businesses, especially capital-intensive industrial concerns, which Bonnen said are likely to feel left out of the small-business-conscious senate alternative.
Under the senate’s proposals, a 15 per cent cut in the franchise tax would be accompanied by exemption from payment altogether for 61,000 of the state’s small and medium businesses.
At present, some 117,000 companies pay the tax, with 11,000 filing via the state’s EZ system. Any EZ filers not included in the 61,000 would see their rate cut by 42 per cent and the overall effect of all the senate franchise-tax proposals would be a $2.3 billion reduction in state revenue.

Nelson, Jane-Senator  nelson.senate.state.tx.usJane Nelson

The senate measures would also reduce the state’s tax take by $2.154 billion by changing the property-tax homestead exemption from $15,000 for school levies to 25 per cent of the median home value, a figure Patrick and Taylor say will increase year by year, saving homeowners even more than their estimated $206 average in the plan’s first year.
If passed, the proposal would have a dramatic effect in Galveston County, where property-sales website Zillow records the current median price of homes listed for sale as $246,000, enough to lift the homestead exemption threshold to $61,500.
However, for any tax cuts to become reality, the two chambers must agree the way forward before the legislative session ends. If they do not, they face being called back to Austin by Abbott for a special session until they do agree. The regular session is due to end on June 1.
• Coming Wednesday: Patrick and Bonnen tell Post readers why their proposals are best for Texas.