Solving Historical Cold Cases With Modern Techniques

Cold case true crime appears to be a popular entertainment genre these days. I know at least one retired cop who has been a regular on the series Cold Justice, which features him assisting former Harris County Prosecutor Kelly Siegler in a long list of unsolved crimes from the recent past. Besides that show, I often find the other true crime programs occasionally delving into the cold case realm for a look at other unsolved crimes.

Beyond the entertainment value, however, I’ve found an educational angle to the exercise of reviewing a mystery from the perspective of time. As witnesses age and their relationships shift, they often become more willing to share details than they had in the emotional moment of the crime. Viewers also have a chance to examine the actions of the suspects or relatives during the months or years following a crime. You get a more satisfying picture and a better understanding of the procedural strategies involved in solving a crime.

Still, I wondered recently why former Houston Homicide Detective Johnny Bonds was able to find a crucial witness 30 years after he’d been missed at the scene of a kidnapping by the small town cops who initially caught the case.

But how about those really, really cold cases—the dry ice variety. I thought about that recently when I spotted the CBS 48 Hours program revisiting one of the country’s ultimate cold cases in the 1892 Lizzie Borden murders in Fall River, Massachusetts, complete with a mock trial to determine if her 1893 acquittal had been correct.

That show reminded me of an interesting feature I wrote in 1993 for The National Law Journal about the burgeoning trend toward using modern forensics and legal strategy to unravel historical mysteries. Here’s the story published June 21, 1993, under the headline:

Historical figures get their day.

Legal ‘ghostbusters’ say serious issues are at stake

Earlier this year in Richmond, Va., convicted Lincoln assassination co-conspirator Dr. Samuel Mudd successfully appealed the 127-year-old verdict that sent him to prison for life.

Two years ago in San Antonio, accused Alamo deserter Moses Rose won a claim for return of his veterans’ benefits—more than a century after they were denied.

And today there’s an investigation under way to determine if legendary Louisiana Purchase explorer Meriwether Lewis actually committed suicide in 1809 as reported.

Has the nation’s legal community suddenly become lost in a time warp? Perhaps so. For it seems Messrs. Mudd, Rose and Lewis are merely the vanguard of a parade of dead people finally getting their day in court. While these modern verdicts in old cases technically cannot override judgments from earlier days, they still give descendants ammunition that can be used to persuade legislatures or government officials to provide some sort of latter-day relief.

New technology and courtroom techniques have given legal history buffs their first real chance to ride in a time machine. And the race is on to find the most captivating old cases and review them in a modern light.

While some have questioned the purpose of exhuming the century-old corpses, others insist there is much to be learned about the law and society from these excursions back in time. Still others tout the entertainment value of historical re-creations as a way to raise funds to pay the tab on more serious educational activities.

Whatever the purpose, the trend undoubtedly will gather steam because no one seems irritated enough to stand in the way.

“It's not controversial yet because everyone has better things to do than to make a cause out of this,” says Melvin B. Lewis, a professor at John Marshall Law School in Chicago. A specialist in expert witnesses and forensic sciences and a sidelines observer, he adds: “Is it a waste of time? It all depends on how it is done and its objective. If it is entertainment, it can be counterproductive.”

Trials and Evidence

Everyone from the American Bar Association to Texas Public Radio in San Antonio to the Smithsonian Institution has answered the call to solve some lingering legal mysteries.

“Every time I go in and prove the value of science in historic cases, I prove it has value in the contemporary,” says James E. Starrs, in explaining his motivation for becoming one of the nation's most visible legal ghostbusters from the forensic sciences camp.

For 17 years, Professor Starrs, a professor of forensic sciences law at the National Law Center at George Washington University in Washington. DC, has published a quarterly newsletter, Scientific Sleuthing Review, which now boasts about 1,000 subscribers.

His critics usually accuse him of using science to promote himself, but Professor Starrs says he believes the publicity from his adventures assists his primary cause of boosting an interest in forensic science among law enforcement and legal authorities He considers himself a spokesman for the dead, an emissary from the present come to solve the mysteries of the past.

“They say, ‘Let the dead rest in peace.’ But how do we know they are in peace?” the professor asks. “I provide a voice for the dead. The dead deserve the truth. I give them an opportunity to respond. It’s the lawyer in me. I’m giving them their day in court.”

‘Caliban of Colorado’

In the summer of 1989,  Professor Starrs led a team of forensic scientists into the San Juan Mountains of Colorado, where they recovered the remains of five supposed victims of Alfred Packer, a prospector convicted twice in the 1880s of murdering and eating them during a snowstorm in 1874.

Professor Starrs verified the record of Mr. Packer’s guilt, which had come under attack over the years by skeptics protesting Mr. Packer’s innocence. That exhumation, like the others, cost money. The professor says he’s made no profit from his projects and notes that he took out a second mortgage on his home to finance one mission He paid the tab for the cannibal victims dig by selling T-shirts decorated with skulls and skeletons.

The Colorado expedition serves as a textbook example of the prescribed method for historic inquiries. The team functioned like detectives investigating a homicide that had happened only days—not 125 years—before. They employed subsurface radar to find the graves and recover the skeletons; then the bones were cleaned, preserved and pieced together for scientific evaluation by the Human Identification Laboratory at the University of Arizona in Tucson. They reviewed records of the trials of Mr. Packer, studied his confession and testimony, and then compared the wound marks evident on the victims’ bones with his version of the events.

The researchers reported evidence of “substantial defleshing” in the bones of all five victims—“so thoroughgoiug, so conscientious and so exact as to be unmistakable proof of cannibalism.”

Armed with a modern autopsy report, Professor Starr asserts that prosecutors of the 19th century easily would have destroyed Mr. Packer's contention that he only nibbled on two of the corpses to quell hunger pangs temporarily.

“Alfred Packer was as guilty as sin, and his sins were all mortal ones,” the team concluded in its report. “It remained for this scientific investigation to prove with overwhelming conviction that Alfred Packer was not only the Colorado man-eater, not merely America's most celebrated anthropophagist, but also the ‘Caliban of Colorado,’ who butchered his five fellow prospectors.”

Code of Ethics

Professor Starrs is ever alert for new old mysteries to solve—he hopes soon to have a chance to locate and study the remains of Meriwether Lewis to determine if the famed explorer was actually the victim of a homicide or an accident, instead of a self-inflicted gunshot wound in 1809. But the resulting publicity has caused him to develop his own code of ethics. “I’m going to give a talk soon about exhumations I'll never conduct,” he says. “I turn down 50 for every one I would do.”

Before determining whether an exhumation has scientific value, Professor Starrs first asks three questions:

·       Are there significant scientific issues to be resolved? He says science must be able to make a positive contribution to warrant an exhumation.

·       Is there a new scientific development, technology or understanding that could be used now that was not available or not applied to the original evidence?

·       Is it likely that the remains will be in analyzable condition?

Among the top names on his hit parade of exhumations is John Wilkes Booth, who is rumored actually to have survived a shootout with federal troops after the assassination of President Abraham Lincoln. Did a body switch occur? Professor Starrs says he believes that only an exhumation of the body buried in Baltimore will answer the nagging question.

“In each and every case it behooves the investigator to look at whether there is an historical question that is relevant,” says another member of the scientific sector, William R. Maples, curator and professor of anthropology at the Florida Museum of Natural History in Gainesville.

Professor Maples has examined the deaths of President Zachary Taylor and Spanish conquistador Francisco Pizzaro, and is working with Russian authorities on an investigation into the death of the Romanov family; he hopes to determine if the mysterious daughter Anastasia is indeed among the dead. Unlike Professor Starrs, Professor Maples says he's found a lot of grant money available for projects.

“To a certain extent there is a race under way to find ripe cases,” says Professor Maples.

Mock Trials

As the scientific sector of the historic re-creation subculture continues to time-travel with technological gadgetry, the second school of legal re-creationists—the mock trial gang—appears content to employ rhetoric and modern litigation strategies to review existing records.

Mock trial proponents seek unanswered or untried controversies and use the legal process to reach a conclusion about facts already in the record. Witnesses familiar with the issues help present them through interrogation by the attorneys. Critics argue that historic mock trials risk emphasizing too much show business at the expense of the truth. But the proponents say they work hard to ensure that entertainment value won‘t discolor the results.

San Antonio sole practitioner Pat Maloney helped represent an obscure dead man seeking return of his veterans’ benefits two years ago. His client was Louis “Moses” Rose, long vilified in Texas lore as the only man to desert the Alamo as the Mexican army approached in 1835.

Mr. Maloney was assigned the case by Texas Public Radio in 1991, when the station launched the first of three annual historical trials by reviewing the decision of the state in 1848 to deny Mr. Rose his request for a land grant as a survivor of the Alamo.

Attacking the case like any contemporary matter, Mr. Maloney researched the Alamo saga and quickly focused on the need to establish as fact an unproven legend—whether Alamo commander William B. Travis drew a line in the sand and invited the volunteers to stay or leave.

Like any other Texas lawyer, Mr. Maloney knew he wouldn’t have a hard sell in convincing a San Antonio jury that Col. Travis actually had drawn the fabled line. It’s an incident embraced on faith by most native Texans. Ironically, history reflects that his client, Mr. Rose, was one of the early disciples who spread the tale about the line, even drawing a picture of the event for others to see.

Mr. Maloney bolstered his client’s credibility with testimony about his background, including citations for bravery during battles under Napoleon in Spain, Italy and Russia. And he got a corroborating witness from the history books when he learned that Alamo survivor Susanna Dickinson also had confirmed the legend of the line.

Much as the jurors would have liked to have branded Mr. Rose a coward, several had to agree with Mr. Maloney that the line in the sand transformed his client’s decision into a voluntary one, and the result was a deadlocked panel. The judge jumped in, ruled in favor of Mr. Rose and symbolically awarded him Mr. Maloney's law offices as compensation.

His Name Was Mudd

Another example of the mock trial movement occurred Feb. 12, when the University of Richmond’s T.C. Williams School of Law conducted an appeal of Dr. Mudd's 1865 conviction as a co-conspirator in the Lincoln assassination. Notorious as the physician who set the assassin's broken leg, Dr. Mudd was tried by a military court and sentenced to life in prison. He served four years before winning a pardon.

As a professor of military law, Richmond’s John Paul Jones focused on the Mudd case as a way to show his students how slow the courts were then to adopt constitutional principles now taken for granted.

Dr. Mudd's appeal quickly attracted three prominent jurists to preside and pitted defense attorney F. Lee Bailey on Dr. Mudd’s behalf against John Jay Douglas, dean of the National College of District Attorneys in Houston.

Student briefs demonstrated that Dr. Mudd had been denied certain procedural rights and noted that civilian courts nearby easily could have assumed jurisdiction instead of the military tribunal.

Mr. Bailey relied on them and employed his own oratorical skills to assert that the military commission had been established “to satisfy the monumental embarrassment of lax security that allowed the president of the United States to be assassinated by an amateur.”

At the hearing’s conclusion, the panel decided that the military commission of 1865 actually had no right to try Dr. Mudd.

“It accomplished my goal of getting people thinking about the history of military law,” says Professor Jones. “We looked at the many procedural errors and learned that Dr. Mudd complained about things that other people could complain about up through World War II.”

Despite the widespread interest in his exercise, Professor Jones says he's reluctant to take the logical next step in the case of Dr. Mudd. Now that the military has been excluded from the case, the school wants to stage a real trial to determine if evidence exists to tie Dr. Mudd to the Lincoln conspiracy

It may be some time before Dr. Mudd again rests in peace, but he undoubtedly will be joined by other historical ghosts, willingly or not, as they roam the hallways of the nation’s courthouses in a belated search for justice.

Update

Since 1993, Professor Starrs has continued to scratch that itch for closure on old cases, as explained in his law school profile. He published a book about the Meriwether Lewis case, and his current Amazon.com author biography summarizes his work:

“James E. Starrs is the author of A Voice for the Dead and a longstanding contributor to The Scientific Sleuthing Review. He is an emeritus professor of law and a professor of forensic sciences at George Washington University as well as a distinguished fellow of the American Academy of Forensic Sciences. He has been involved in many historical investigations, including the exhumation of Jesse James' remains and the Alfred Packer cannibalism case. He lives in Springfield, Virginia.”

The Lewis mystery generated a 2009 article in Smithsonian Magazine.

Meanwhile, Professor Maples died about four years after I wrote this story. His Wikipedia profile offers a brief review of his work and mentions his 1994 book, Dead Men Do Tell Tales. 

For more information on Moses Rose, Wikipedia offers a lengthy article and the Handbook of Texas Online features its own rendition. Rose’s mock trial attorney, Pat Maloney, died in 2005.   

Of course, if any readers have updates to offer, all comments are welcome.

Percy Foreman Hands Off To Mike DeGeurin

 Among the most cherished benefits of my career in journalism has been the opportunity to meet some fascinating people. Here’s an article I wrote in July 1989 about several iconic Houston legal legends. It was published in that month’s editions of Houston Metropolitan Magazine.

When Mike DeGeurin inherited Percy Foreman's criminal law practice, he knew his toughest battle would be against his mentor's mythic reputation.

When the late Percy Foreman first arrived in Houston more than 60 years ago, he conducted a private poll of the city's big name law firms. He wanted to talk to the top lawyers here and learn about the practice of law. But every time he asked for the name on the door, the young Foreman drew the same curious response. He discovered many of the city's biggest name partners had actually died years before. Always one to learn from any experience, Foreman quickly determined that prominent attorneys develop their own brand of immortality. Their bodies lie in the grave, but their names stay on the shingle to provide a boost for younger partners who follow.

Foreman's immediate application of that lesson in 1927 has become an often repeated chapter of Harris County Courthouse lore. He laid claim to some of the most famous names in legal history, creating business cards with a long list of deceased partners to boost his credibility: “Moses, Justinian, Blackstone, Webster & Foreman.”

 In 1927, Foreman understood the magic of a deceased partner's name before his own. Today, a year after his death, Foreman still shares space on two business cards carried by 43-year-old Mike DeGeurin. One is a sample of the 1927 collector's item. Its primary value is as an object of cocktail conversation. On the second card, however, Foreman boasts a more ominous role, at least where DeGeurin is concerned. That one reads, “Foreman, DeGeurin & Nugent.” While the first is good for a laugh, the second carries with it a burden.

No one in 1927 expected the young Foreman to someday match reputations with the legal giants he symbolically placed on his first card. But a jury of his peers shortly before his death last August offered a verdict that he had come pretty close. The Harris County Criminal Lawyers Association presented him with a plaque that declared him simply “The World's Greatest Criminal Lawyer”—this from a profession in which ego is second nature. No one could challenge the claim.

Now, just as contemporaries in 1927 had no idea how Foreman might someday stack up against the legendary names beside his, observers of the Houston legal scene are wondering about the young protégé who inherited the practice of the acknowledged master. There's no disputing the differences in style between Foreman and DeGeurin. And the times have undoubtedly changed. True, DeGeurin has already handled some high-profile cases, and he answered one long-running media question in a technical sense. When his staff moved his belongings into Foreman's old office and he began working at Foreman's desk, he became the clear heir to Foreman's practice. But there's more to legendary status than the name of the living partner beside that of the deceased on a business card. Like it or not, folks will be watching DeGeurin closely in the years ahead to see exactly how he measures up.

“I can't fill Percy's shoes,” he snarls quickly when the subject is raised. “No one can do that. There's no way to pretend to be him. But I do have all the benefit of his 60 years of practice.”

To DeGeurin and many other Houston attorneys, such comparisons seem unfair. But the questions remain: Who is this youngster sitting in Foreman's office? Is he tough enough to maintain the tradition that's made Houston a landmark for flamboyant criminal defense efforts?

“I never saw Foreman in practice,” says State District Judge Michael McSpadden, who once offered to “duke it out” with DeGeurin when McSpadden was a prosecutor. Now that McSpadden's a judge, they've healed their differences and he offers a broader view. “The Foreman image is definitely not Mike. But flamboyancy doesn't count any more. Juries are too sophisticated. When people someday look back on Mike's career, he may certainly have the same reputation Foreman enjoyed when he died.”

From appearances, DeGeurin would stand little chance of carrying on in court the way Foreman did in his heyday. At 6-foot-4-inches and 250 pounds, Foreman intimidated with his mere presence. His voice thundered and sarcasm pounded home his points.

“This case was tried by Henry Wade and the Dallas District Attorney's office,”

Foreman once boomed in arguing a criminal appeal to a panel of judges. “In addition to that, I've found three more points of error.” The judges laughed and he quickly had them enthralled. Heads shorter at 5-foot-9 and without the booming voice of the bear, DeGeurin can't use the same kind of intimidation. But he has managed to get his own points across.

“I liked Mr. Foreman’s strength. When he walked into court, everyone trembled,” says Dr. Chris Malone. Her family hired Foreman to defend her brother on attempted murder charges a few years ago. He administered the case and dispatched DeGeurin to try it. “With Mike, they don't tremble, but they certainly looked up. My questions about him were gone quickly. Our problem became his problem.”

Former partner Lewis Dickson recalls how DeGeurin employs cunning and finesse where Foreman would have terrorized with bluster: “Mike decided to introduce some meaningless pictures into evidence once. He purposely stumbled around and fouled up his introductory questions so the prosecutor would object. It left the jury asking, ‘What's the state trying to hide?’ DeGeurin is clever, but he's not consumed by showing it.”

Foreman's methods and lifestyle generated enemies by the dozen. In contrast,  DeGeurin's enemies are harder to find, despite his presence in controversial cases. Some opponents have accused him of leaking information to reporters and others have described him as a mercenary who will do anything to win a case. His defenders dispatch the complaints as “sour grapes” born from the frustrations of being outsmarted by him.

It's outside the city that DeGeurin generates the strongest feelings. While battling Montgomery County in the sensational Clarence Lee Brandley case, DeGeurin had metal shavings poured in his gas tank. Someone also altered the cover of a back issue of Texas Monthly magazine, placing his picture above the headline “The Sleaziest Man in Texas” and posting it on a courthouse office wall. But police and prosecutors in Houston have nothing but compliments for him.

“He's a gentleman,” says Edd Blackwood, a local bondsman who has been around

the courthouse for 20 years in a number of capacities. “Mike can shift gears like

a fine sports car and you don't even notice it. He can be a good old boy one minute

and the next he can point his finger at you and say, ‘This is the way it's going to be.’ He's not too soft. He can take charge.”

He also has other important factors in his favor that can sometimes be taken for granted. He has been handling Foreman's trial work for some time, and no one begrudges him the opportunity to occupy Foreman's office.

“Everybody believes they've earned the link,” says Blackwood of DeGeurin and his older brother, Dick DeGuerin, who worked in Foreman's office, too. “Percy worked their butts off. They were down at the courthouse by 6 or 7 every morning and investigating cases every day of the week.”

Too often forgotten is the fact that DeGeurin was handpicked by Foreman to succeed him. Foreman once called him the only lawyer he would hire, and that  reference alone says plenty. But there's one other factor that overshadows all the

gushing accolades from DeGeurin's pals. He spent 11 years in Foreman's presence,

watching his every move and absorbing his wisdom like an intellectual sponge. DeGeurin summarized the significance matter-of-factly when he began a speech recently at a seminar for defense attorneys: “There are a few things I learned

from Percy Foreman,” he began, immediately capturing everyone's attention.

But anyone watching the situation a decade ago might be surprised at what's taken place today. Back then, DeGeurin was new to the headlines. He was Dick's kid brother. He joined Foreman's practice in 1977, well after Dick had staked his own claim to the title of heir-apparent. Differences in their styles and outlook seemed as distinctive as the difference in their last names. Dick changed the spelling of his to reflect the original French from la guerre, or war. Mike decided to retain the spelling of recent generations.

“Now the police are able to use that against our clients,” DeGeurin quips. “They'll videotape DWI suspects using the phone to call one of us. If the suspect calls my brother and asks for me, they'll say, ‘See, he was so drunk he couldn't even call his lawyer.’”

Dick admits Mike is a “nicer guy,” and the older brother has been one to thrive more in the spotlight. The weekly newspaper Texas Lawyer recently published a  series of articles identifying its selections for the “new Racehorses”—those attorneys most likely to succeed Richard “Racehorse” Haynes and Foreman at the top of the state's defense bar. Dick DeGuerin joined Mike Ramsey as Houston's candidates, with Mike DeGeurin relegated to a mention in the article about his brother.

By the late 1970s Dick had established himself as a flashy, effective and hard-hitting defender who played as seriously as he worked. Mike hit town with a background as a family man, proud of high school elections naming him most popular and class president.

A native of Austin and the son of an attorney, DeGeurin graduated from the

University of Texas and then attended law school at Texas Tech in Lubbock because of the higher salaries there for teachers. Married to his high school sweetheart, he needed her teaching income to complete his education. A fierce loyalty to her and their three children plays as important a role in his life as the law.

“I’m amazed with his schedule that he's been able to coach little league,” says  Blackwood, recalling how DeGeurin recruited him one year to handle an inner city youth baseball team. “He honestly does spend time with his kids.”

He actually came to Houston in 1973, spending two years as a clerk for Justice Wendell Odom on the state Court of Criminal Appeals and later for U.S. District Judge John Singleton. Unlike his brother, DeGeurin rejected the notion of learning  about trial work as an assistant district attorney and instead became one of the first to join the newly established public defender's office of the federal courts in 1975. He's still remembered there as a compassionate defender, who took clients' problems to heart.

DeGeurin found celebrity status thrust upon him immediately after joining Foreman. One of the firm's biggest cases of all time stemmed from the death of Dr.

John Hill. Litigation from that notorious event—immortalized in the best seller Blood and Money—engaged the firm on two fronts. While Dick earned headlines

and praise in the criminal courts for his spirited but unsuccessful defense of a woman accused of setting up the murder, Mike handled the civil defense of a wrongful death action filed by Hill's survivors against the late oil millionaire Ash Robinson. Convincing a jury that the survivors had no cause for action, the younger DeGeurin quickly made local reporters aware there would be two ways to spell DeGeurin and that they'd better learn how to get both of them right.

Differences in the brothers are also revealed in their relationships with Foreman. Both revered the man like a father, but Dick's confrontations with the master over strategy have become the stuff of courthouse legend. While Foreman would bark at Dick—who always barked back—he'd handle Mike differently, making him feel guilty when something had gone wrong. DeGeurin recalls how Foreman would use the competitive nature of the siblings to tease them forward: “He’d say, ‘Dick, yes, but you, Mike? Not you!’ when I'd done something dumb.”

Dick departed in 1982 with Lewis Dickson to launch a separate firm. Mike remained with Foreman, to be joined later by Paul Nugent.

“He’d always been known as my little brother, and I think he was glad to get away from that and become his own person," recalls Dick. Even though he accuses Mike of misspelling their family name and being shorter, the older brother remains fiercely loyal and says he hopes they can practice together again someday. He says, “If Mike has enemies, they’d better not talk to me about it.”

Until Foreman's death the practice followed a standard pattern. Foreman supervised everything, but he spent more time interviewing prospective clients to determine if the firm would handle their cases. That left the energetic youngsters to grapple with opponents in the courtrooms. Since Foreman's death, DeGeurin has had to fill both roles, and that keeps him busy well into the night. Despite the firm's well-publicized reputation for stiff fees, many people in trouble still think first of Percy Foreman and contact the firm. With his recent entry into the national spotlight via 60 Minutes, DeGeurin appears poised to continue that tradition. In the past two years, 60 Minutes has broadcast stories on two DeGeurin cases that promise to keep DeGeurin's name before the public in the months to come.

The influential program first spotted him when it launched an expose of the capital  murder conviction of Clarence Lee Brandley, sentenced to die for the 1980 murder of a 16-year-old girl at Conroe High School. True to his bulldog reputation, DeGeurin has battled for a new trial using every weapon available. The case rested with the Court of Criminal Appeals at press time after a well-publicized path through special evidentiary hearings that culminated in 1987 with a judge's recommendation for a new trial. Along the way, Montgomery County and its justice system attracted allegations of racial prejudice and corruption, making

DeGeurin the target for that community's rage.

60 Minutes also stumbled across another DeGeurin case, the defense of Kelly Jo Koch against murder charges lodged in 1985. Last summer a judge slammed police tactics in obtaining her confession and denied prosecutors its use. The videotaped confession had been aired on 60 Minutes in November, 1987, giving another black eye to Texas law enforcement. DeGeurin produced a psychiatrist to testify that Koch had suffered a nervous breakdown in the questioning process.

Weaving anecdotes from Foreman's career with examples from his own experiences, DeGeurin easily surfaces as the closest link the legal community

will have to the legendary trial master. It's a role he both understands and welcomes: “When I’m 70, the fact I say something might have meaning. But Percy used to say something was true, then he’d add, ‘And I didn't learn it from a book. It was 65 years of distilled experiences.’ I can't say that yet; I'm only 43. The way you leap past people your own age is by finding someone who has already been through these experiences and is willing to tell you the truth as he knows it.”

No one will ever replace Percy Foreman; his times are gone for good. Houston is

too big for just one colorful lawyer to claim all the attention and handle all the high-profile cases. But of the handful of young lawyers who can claim the master as their mentor, DeGeurin emerges in an enviable position.

When Ted Poe Was Houston's 'Hanging Judge'

Serving in the US Congress from 2005 until retiring in 2018, Houston’s Ted Poe is best remembered these days as a wise-cracking conservative Republican lawmaker. But he first made his mark at the Harris County Criminal Courthouse in the 1970s, ‘80s and ‘90s first as a hard-nosed prosecutor and then as an innovative Criminal District Judge.

I met Poe as a young prosecutor when I worked as a reporter for The Houston Post covering that courthouse between 1976 and 1979. Despite his hard line toward criminals, he always displayed a great sense of humor, and we often shared many laughs during his prosecutorial career. We even carpooled while performing our respective duties on a high-profile criminal case moved to Huntsville on a change of venue from Houston in 1977—him prosecuting and me reporting the testimony for The Houston Post. That case received national attention, including coverage by TheWashington Post. 

Although our lifestyles and views differed greatly on everything from religion to nightlife, we always got along well in what I always realized to be more of a symbiotic relationship than a true friendship. For me, he was always good copy and for him, I was a portal for media attention. Nevertheless, I’m sure that symbiotic relationship included a large amount of mutual respect. I know it did from my side of the equation.

So, as a freelancer in the 1980s, I turned again to Ted Poe for story material during his judicial career and he did not disappoint. I wrote several articles about his innovative judicial methods, including this one published in the October 1987 edition of Southwest Airlines’ Spirit magazine. He always kept a framed copy of that cover among the artwork decorating his office walls. Of course, there’s also a Wikipedia article on Poe for anyone seeking details about his congressional career.

HIS BRAND OF SENTENCING MAY BE UNORTHODOX, BUT JUDGE

TED IS LEAVING HIS MARK ON THE TEXAS CRIMINAL JUSTICE SYSTEM

Winston Bradley (as we'll call him) was terrified. The young commodities broker had just relocated to Houston in 1983, looking for professional opportunity. He'd found that, all right, but along with it came something else. Admittedly "naive and stupid," he had agreed to help acquaintance deliver cocaine, only to walk straight into an undercover narcotics investigation trap. Fingerprinted, booked and locked in jail for the first time in his life, Bradley then faced an even more horrifying prospect: His case was assigned to the 228th Judicial District, a court notorious in jailhouse circles as the Black Hole of Harris County.

“The other inmates in the jail were scared to death of the judge in that court,” recalls Bradley. “I was briefed fully on Judge Ted Poe. I was terrified.”

At first it appeared his fears had merit. After pleading guilty, he still refused to throw himself on the mercy of a judge who regularly recites his hard-line motto in public: “I just don't think the criminals ought to leave the courthouse laughing.” Instead Bradley chose a rarely used provision in Texas law that allows first offenders to have a jury assess the sentence. Despite the prosecutor's insistence on 10 years in prison, the jurors decided on seven years' probation with a $5,000 fine. Bradley breathed a sigh of relief.

Then Judge Poe took his breath away.

Interpreting Texas laws on probationary control to their most liberal extreme, Poe ordered Bradley to spend the first 30 days of his term in the Harris County Jail as an appetizer for the main course of punishment that would come if he were to violate probation and draw a prison sentence. The judge ordered a urinalysis taken twice a month plus 20 monthly hours of community service projects assigned by the court.

Figuring that his alternatives could be worse, Bradley swallowed his objections, silently cursed his rotten luck and marched off to jail. After his release, he spent his Saturdays working at a retail consignment shop, with the proceeds donated to churches. He joined a crew of fellow probationers from the 228th Judicial District in cleaning the battleship Texas and the San Jacinto Monument, collecting no pay for the time-consuming volunteer duty. He quit drinking and religiously reported for urinalysis. He met with the judge at regular intervals. And slowly a change occurred.

Bradley has been off probation for some time now. He has married and works hard to support himself. The judge holds no power over Bradley anymore. But Bradley still spends some Saturdays volunteering at the church shop. And he has a new attitude about the man in black who took all the fun out of being on probation.

“I now respect him greatly,” says Bradley of Judge Ted Poe. “He made me see the light. When my judgment was set aside, it was like winning a million dollars. He showed me guidance, and it was a strict probation. It changed my whole life.”

Bradley is hardly typical of the “customers” who do business with the controversial figure who laughs off his image as Houston's “hanging judge.” The criminal justice system produces few satisfied customers anyway, and any review of Poe's probation/prison statistics demonstrates his sympathy for old-fashioned, hellfire-and-brimstone punishment. The majority of defendants assigned to the 228th won't get the same opportunity afforded Bradley.

At the same time, however, there's something new and creative going on in his court. For too long, the public has felt powerless about crime, its only response a choice between extremes: ship the offenders off to prison, where they'll probably get worse before they return; or put them on probation, where they can laugh about beating the system. Ted Poe's justice—dare we dub it Poetic justice?—leaves offenders with little chance for beating the system.

Viewed against the backdrop of prison overcrowding problems in Texas and, for that matter, all over the country, Poe's justice looks like a harbinger of the future. By August, the Texas prison system had been forced on 18 occasions to bar new admissions. While halting delivery of prisoners to its front door, the system has accelerated their departure out the back on at least four occasions this year, with the governor's office awarding extra “good time” to precipitate release of prisoners who would not ordinarily have been paroled. The situation has only added to the frustration of critics who view the system as one big revolving door.

Poe isn't advocating more probation as an alternative to prison. Indeed, his court is renowned as one in which prison sentences overwhelmingly outnumber probation terms. But overcrowded prisons aren't limited to Texas. As more judges adopt creative methods to make probation more effective, Poe emerges as a symbol of a new response to the criminal problem.

“I call it contemporary probation as opposed to straight probation, and it's a national trend that's continually expanding,” says Malcolm MacDonald, president of the American Probation and Parole Officers Association. As administrator for community-based correctional programs for the Texas Adult Probation Commission, MacDonald is particularly aware of the pressures on probation in the Southwest.

“Judges are open to a new look at probation,” he explains. “Part of the motivation is that judges aren’t seeing success with people going through the prison systems, which are overcrowded anyway.”

In that context, Poe represents the vanguard of a new and potentially more effective method for confronting crime. But his pioneering efforts haven’t come without criticism. Not yet 40 years old, Poe seems to enjoy his celebrity as a controversial figure. He recalls feeling complimented when an outraged defense attorney offered his description of Poe as a young prosecutor a few years ago: “He can take 12 rational people on a jury and turn them into a howling lynch mob.”

The judge chuckled at a more recent and earthy assessment offered by a killer sentenced to death in his court: “You tell Judge Poe he has a heart like a thumping gizzard.”

Because of Poe's unmerciful record as a Harris County prosecutor, many observers feared for the system when he won his judicial appointment in 1981 at the age of 33. Here was an assistant district attorney who only half-jokingly referred to his job as “the Lord's work.” Here was a prosecutor nicknamed "Toothbrush Ted" because he had once slid a toothbrush across the defense table to a defendant who slumped in his chair after drawing a long sentence. Poe said he brought the toothbrush that day because he figured the defendant would need one for prison after the trial.

Here was a tea-totaling deacon from the Church of Christ who always credited his religious background with fashioning his philosophy: “I believe there are rights and there are wrongs. The whole world is not a mass of grays as some people would try to lead us to believe.”

But things have been a little different from the bench.

“I don't call it the Lord's work from up here,” he says. And he resisted the temptation to campaign for election by distributing toothbrushes with his name on the handles.

“As a defense attorney, I'm nervous about him. All those conditions just give my clients more opportunity to mess up,” says Fred Dailey, one of the city's top criminal lawyers. “But as a citizen, I've come to appreciate his approach. Probation is too often considered a right by people who should learn criminal conduct is serious business.”

For some, however, the challenge is stiff. The judge recalls an occasion early in his term when he watched a defendant wince while discussing the special conditions demanded in the 228th. Finally, the probation officer addressed the judge: “He says he'd rather go to prison.” Within minutes the man was headed for the Texas Department of Corrections, happy to serve his time behind bars.

“Probation for a defendant is a little white box all tied with yellow ribbons,” Poe explains. “When they open that box in my court, they find a long list of dos and don'ts. I'm no sociologist. But the people I see come through here are selfish. One thing to help change that attitude is to get them doing things for other people.”

Building his probation philosophy on that maxim, Poe has constructed a special formula for dealing with all probationers. It's a formula different from traditional courts, where probationers are merely delivered to their supervisory officers and left to follow basic rules set down by the state. Poe personally involves himself with his probationers to the extent that they actually have two supervisory officers—their probation department professional and his honor himself.

All property crime probations in Poe's court begin with a formal apology from the defendant to the victim. It has to be delivered in writing to Poe, who reviews it for sincerity: “The first step in rehabilitation is admitting you're wrong.”

If the probationer hedges on that admission, the letter must be rewritten. One probationer noted in his letter: “If somebody had taken my car like I did to you, I'd probably have shot them.”

He even required a welfare fraud probationer to publish a classified ad in one of the daily papers apologizing to the citizens of Harris County.

While many judges just sign the probation forms and allow probationers to report by mail, he requires weekly personal visits to the probation department. In addition, each probationer must personally visit him in his office every 60 or 90 days.

“I want to see how they're doing. After all, they're my responsibility,” he says.

And winning early release from probation is not necessarily a routine matter in the 228th. Poe requires a written report from the probationer clearly stating the lifestyle changes that have created a “good citizen.”

But these things are merely the surface of probation in the 228th. Poe really waxes creative in two areas beyond paperwork: community service and special terms.

Sounding much like a doting father with a pack of errant children to corral, Poe recalls, “I read somewhere in the papers one Christmas that the Houston-Galveston Food Bank was out of food. I thought, ‘I ought to get my probationers working on that.’ So I had some of them help distribute food. And they threw a Christmas party for the kids at Project Head Start. They collected items for Toys for Tots. That was their three projects for that year.”

He can dispatch his “probation team” like that thanks to some vague wording in his probation term pleadings. All probationers are required to perform 20 hours of community service per month. But Poe retains the option of determining just how that will be done. He reviews the probationer's background and finds an assignment to do the most good.

One example is a probationer who owned two beauty shops. Convicted of criminal mischief, the man was assigned to spend Saturdays cutting hair at the Texas centers for the retarded and the blind. Says the judge: “If you drive past there and wonder why all those kids have such great hairdos, well, that's why.”

DWI (driving while intoxicated) probationers are routinely assigned to volunteer for work in hospital emergency rooms: “So they can see first-hand the effects of drunk driving.”

Once he loaned a 20-probationer work crew to the state's parks department, where they helped with restoration of the Battleship Texas while another Poe probation squad cleaned the historic Founder Cemetery.

If Poe's interpretation of community service authority seems creative, then his penchant for “special terms” is often the stroke of genius. He always finds something that tailors the probation to the crime. He first grabbed headlines by exiling a probationer to Michigan. He orders high school dropouts to return to school or obtain a GED as a special term of probation. Teens and adults who commit property crimes at night are placed under a 10:30 p.m. curfew.

Jokes the judge: “Someone said that would be impossible to enforce, but it's actually the easiest of all. You just have the probation officer call the home. If there's no answer, the probationer has violated the terms. By 10:30 p.m. the news is off TV and they ought to be in bed, anyway.”

Always eager to come down hard on drunken driving offenses, Poe even ordered child support as a probationary term in a manslaughter case. The wreck victim's widow testified about her poverty, and a light bulb flashed in the judge's brain. When the jury placed the negligent driver on probation, Poe ordered the defendant to help with child support for the widow.

Criminal justice philosophers might argue that all this is effective only if a judge can demonstrate lower rates of revoking those fancy probation contracts. Poe can't. In fact, he admits he may have higher revocation rates because the terms are often more stringent. But he counters that the extra effort is worth it if just one case produces results.

At the Harris County Courthouse these days, the impact of creative probation—Ted Poe's justice—is becoming quite a trend. Vying with Poe now for new ideas is another young jurist, Michael McSpadden. Having concocted some creative projects of his own, McSpadden was disappointed when he heard Poe had been first to focus on the Battleship Texas as a target for the 228th. So he warned Poe in a memo: “Keep your hands off the Alamo—it's mine.”

Looking up from the note, Poe offered a predictable response: “How does he know I don't already have people there?”

Do Not Hire This Hit Man

During my career covering crime and courts in Houston, Texas, I interviewed or profiled a number of memorable people. This article from October 1993 in The National Law Journal is about one of them, an investigator named Gary Johnson.  For reasons that should be obvious, I’m not providing any updated information on his whereabouts. I like to believe he’s now retired and living peacefully somewhere.

After Johnson gained some notoriety in the late 1990s, he was approached to serve as the inspiration for both a movie and a TV series. Although those projects failed to materialize as far as I know, Johnson did continue to receive media attention  with articles in 2001 in The Washington Post and Texas Monthly magazine and as recently as 2009 in Slate.

Here’s what I wrote about him in 1993.

HOUSTON—One of the nation's busiest hit men can be found operating openly here, regularly offering his services for sale in an office not far from police headquarters. His name is Gary Johnson, and Houston police know him well. Even the district attorney himself knows about Mr. Johnson’s activities. But he has no plans to arrest him.

No, there’s been no payoff. Mr. Johnson enjoys im­munity for arranging his murder contracts because he’s actually working for the “good guys.” As a veteran investigator with the Harris County District At­torney’s office, Mr. Johnson has developed a rare expertise: He specializes in posing as a contract killer, collecting evidence of assassination plots and then nipping them before they get carried out, When Mr. Johnson closes a deal, nobody dies—but some­one usually goes to jail.

“He knows the rules” of entrapment, says Harris County District Attorney John B. Holmes Jr. “He's every bit as competent as a lawyer in deciding those legal issues, so It's fallen on him more often than not to play the part of the hit man.”

Mr. Johnson says he's played the part at least 37 times. But not every job results in a case. Sometimes the customer loses nerve. Other times the reason for buying a hit is eliminated by circumstances. He re­calls that some bizarre negotiations with a Harris County Jail inmate, for example, ended that way.

“He wanted someone to kill two witnesses to the murder he'd committed. An informant gave him my unlisted number here at the DA’s office, end he called me collect from the jail to solicit their deaths,” re­calls Mr. Johnson.

During the taped conversation, the inmate confessed to stabbing his girlfriend 39 times and said he needed to get rid of the witnesses. Before he could close a deal with Mr. Johnson in the weeks ahead, however, the inmate agreed to a plea bargain in the murder case and decided he no longer required additional deaths.

But Mr. Johnson estimates that a third of the inci­dents have resulted in arrests and convictions on charges of solicitation of capital murder or lesser related offenses. Only twice have Mr. Johnson's “cli­ents” opted to fight their indictments through Jury trials with both receiving lengthy prison terms of 80 years and life. No one who has ever hired Mr. John­son has been acquitted. And the cases have ranged from the potentially bloodcurdling to the near-ridiculous.

Ironically, Mr. Johnson’s first exposure to the world of contract killing occurred when he became the target of two botched death plots while working as an undercover narcotics cop in the late 1970s in Port Arthur, Texas. But his unusual career in law enforcement stretches further back than that. Be­tween 1970 and 1976 he worked as a sheriff's deputy in Calcasieu Parish, La., leaving that job after he helped other deputies gather evidence that got their sheriff indicted for theft.

In Port Arthur from 1976 until 1981, Mr. Johnson polished his acting talents in the dangerous theater of undercover narcotics, On one occasion, an infor­mant warned Mr. Johnson of a plan to blow up his car. The plot unraveled because the clients could not pay, and the hit man claimed he would have just “ripped them off, anyway.” On another occasion he learned that two brothers and their father had hired someone to execute him at his house. Once again, they made the mistake of contacting an informant,

who alerted Mr. Johnson and allowed him to dodge that attempt by faking his own death.

The incidents taught Mr. Johnson a valuable lesson about the difficulties of carrying out a murder con­tract. He says people with murder on their mind routinely approach petty criminals hoping to find a hit man. But small-time thugs often have more fear of murder than of the police, and they end up on the phone with him.

“Most commit property crimes,” he says. “When you start talking about killing people, they don't want to get involved.”

Holding a master’s degree in psychology, Mr. Johnson moved to Houston In 1981 with plans to pur­sue a doctorate. Looking for work, he parlayed his education and police background, with special skills as a hypnotist, into a spot with the district attorney's office here. He doesn’t recall his first performance masquerading as a contract killer but says the en­cores were numerous in the mid-1980s as Houston developed its reputation for spawning murder-for-­hire prosecutions.

“It's something that just, kind of happened,” says Mr. Holmes, noting that agents pretending to be kill­ers must possess special skills. Mr. Johnson seemed to fit the part.

His background in psychology helps him size up potential clients and present them with the kind of image they expect—an image that will differ from one person to another. He gathers background information from his informants before actually meeting with a prospective customer. He usually tries to dress as that person would be dressed, blue-collar worker or business executive. And he takes cues from their mannerisms to put them at ease.

“The more sinister you appear, the less successful you will be,” he says. “They actually want a friend to do the hit.”

Nevertheless, many cases have involved ruthless individuals. Last year, an offshore oil worker hired Mr. Johnson in Galveston to kill his wife, Besides resulting in a jury trial, that case is also memorable for the twisted plot hatched by the client. The oil worker first had filed a mental health warrant against his wife describing her as suicidal. After her release from a hospital, he asked a topless dancer for help in finding a killer. She instead contacted police, and they told her to refer him to Mr. Johnson.

“He called and was going offshore,” recalls Mr. Johnson. “He needed it done immediately, so I met with him in Galveston. He wanted to collect $10,000 in life insurance, custody of his child, and then he want­ed to make more money by suing doctors. He wanted me to cut her wrists and hold her until she bled to death. Then, he believed, he could sue the doctors that released her from the hospital for misdiagnosing her suicidal tendencies.”

In the other case tried before a jury. Mr. Johnson posed as a contract killer for a woman named Kathy Scott who wanted to murder her husband just a few weeks into the marriage. She told Mr. Johnson she had married him with the intention of killing him for his money and offered Mr. Johnson $1,500 to consum­mate the relationship with a pistol.

“She married him and then confided in an infor­mant who had friends in low places. They called me instead,” recalls Mr. Johnson of the case. “She want­ed it to look like a robbery, like a crackhead had picked him off in his car. We met in a bowling alley. She paid some of the money up front and then told me she'd put the rest in a certain page of a copy of the Yellow Pages in a public phone booth. I said. ‘Okay, you're a widow now,’ and that was the cue for the uniformed officers to make an arrest.”

Both Mr. Johnson and Ms. Scott's prosecutor, Assistant District Attorney Dan Rizzo, point to her as an exam^­ple of the sort of psychotic fury bubbling barely be­neath the surface of people who buy someone else's death. They remain convinced that jurors in the Scott case were prepared to place the attractive, thir­tyish woman on probation until she took the witness stand and allowed her anger to take control. The jury ordered 80 years in prison.

“Jurors told me they got chills across their backs when they watched her under cross-examination,” says Mr. Rizzo.

Working with Mr. Johnson on the Scott case, Mr. Rizzo also developed an appreciation for the investi­gator's evidence-gathering talents. Entrapment rare­ly emerges as a defense because Mr. Johnson only gets involved if someone calls him. But he repeatedly tries to persuade prospective clients to drop their plans for murder, continually asking in tape-record­ed conversations, “Are you for real? I don't want to hear you say you never meant it to go this far.”

Says Mr. Rizzo: “That's usually the defense, that the person wasn't serious. Gary is good at getting their intentions out.”

Besides establishing intent, Mr. Johnson also tries to help with punishment. In Texas, most cases include sentencing by jury, so Mr. Johnson discusses philosophy in his tape-recorded conversations, hop­ing the defendant's comments will reflect an attitude for jurors to analyze for punishment if a trial should occur.

“The scariest to me now are the juveniles,” he says. “I've done five or six of those in the last year. They're after everyone from ex-boyfriends to parents in some cases. They exhibit many more anti-social charac­teristics than the adults. They're much more violent and have a poor appreciation of death.”

His youngest client was a 15-year-old recently sen­tenced to life in prison for trying to buy his mother’s death. Meeting with Mr. Johnson in an elementary school parking lot, the lad offered stereo speakers as a down payment on the $3,000 contract price and pledged to sell the mother’s jewelry to pay the rest. Police made the arrest after Mr. Johnson cued them electronically with the phrase, “Okay, you're an orphan now.”

Despite the gravity of his business, one of Mr. Johnson's teen clients recently had him laughing out loud during tape-recorded negotiations for a hit. This 17-year-old computer nerd with an IQ of 131—and “the social skills of a 12-year-old”—offered Mr. Johnson $5.30 plus a couple of Atari tapes for the murder of a schoolyard rival. At one point in his conversation, Mr. Johnson broke down, chuckling, “You want a $3 killing?” and added, “This is about the cheapest I've ever done.” As he counted the nickels and dimes offered as payment, the youngster ob­served, “If you drive back on the toll road, you won't need to get change.”

Then Mr. Johnson can be heard clearly on the tape, suppressing a laugh and responding: “If I drive back on the toil road, I won't make much from this job.”