1 HABERN, O'NEIL & BUCKLEY Attorneys at Law (Not a Partnership) William T. Habern David P. O'Neil Sean R. Buckley Huntsville Area Office: Toll Free: (888) Houston Area Office: P.O. Box Scotland Riverside, Texas Houston, Texas (936) (713) 865_5670 Facsimile: (936) 594_9100 Facsimile: (713) 865_5655 Houston Direct: (713)942_2376 E_Mail: Chuck Hurt, B.S., CCRS Legal Assistant Charlotte Cleveland Secretary September 11, 2000 RE: Offer to be employed to represent an inmate in a parole or prison related problem We would like to thank you for contacting our office regarding the possibility of retaining our services. For the last twenty five years this office has primarily limited our practice to cases related to state or federal sentencings, writs of habeas corpus, certain types of prison problems, and parole related issues. We hope the following information will explain our office policies and how we proceed in these types of matters. Our understanding is that you are contacting us about the possibility of representation in a parole issue. Because less than twenty percent (20%) of those inmates who are considered for parole are granted parole, we feel the fairest way to approach parole representation is to divide the fees we charge into two stages. The first stage we call the evaluation stage. THE EVALUATION STAGE Because approximately 80% of all inmates currently considered for parole are denied release, we suggest the best approach is to first evaluate each case to determine what we believe the chances of success might be before accepting a fee to actually undertake representation in a parole case. The fee for evaluation is $3, As is the practice in criminal law, the evaluation fee must be paid up front, in full, before services will be undertaken. WHAT DOES THE EVALUATION FEE COVER?
2 Upon receipt of the evaluation fee, we would like to have an interview (either by phone or in person) with those family members or friends who are undertaking the financing of the case. The purpose of this interview is to afford those involved the opportunity to get to know each other, and to insure all involved understand what is to be done and what to expect. If those paying the evaluation fee can travel to the Huntsville area, or to the Houston area, for a face_to_face interview, one will be scheduled. If that is not possible, then we will make arrangements to conduct the interview by phone. We consider this meeting with family or friends to be very important. The second step covered by the evaluation fee is for us to schedule a face_to_face interview with the potential client. This will take place at the location where the inmate is detained and will be conducted by a person from our staff trained to conduct such interviews. During this interview we will gather all the information we can in order that we understand the personal and criminal history from the inmate's point of view. During this interview we will investigate the possibility of evidence that might help us in our effort to determine a path which might lead to the board giving a favorable vote to any parole effort. We will also have the client execute a series of documents which will allow us to gather as much of the records related to the case as possible. This will include court records, prison records, the records retained by the defense lawyers, and medical or psychological records when available. The third step of the evaluation begins after all of the above has been completed, including collecting as much documentation of the prospective client's records as possible. We next evaluate all the information learned from meeting with the family, the inmate interview, and from those records we have been able to put our hands on. Once our evaluation is complete, we shall prepare a detailed written evaluation and forward it to both the inmate and those involved in efforts to obtain the parole. The purpose of this evaluation is to set out in writing our conclusions as to the likelihood of success or failure of the parole representation. In the event those involved wish to have us go forward in representing the prospective client in an effort to obtain a parole date, the information, good or bad, will assist in making that decision. If we believe now is not the time to proceed in a parole effort, we shall state the reasons why we have come to that conclusion, and will indicate what we feel must transpire before there is a real likelihood of success in a parole matter. If we believe there is a chance that parole can be achieved, the evaluation will: 1. identify those problems we feel are potential issues which must be overcome if we are to get a favorable vote; 2. how we propose to approach such issues; 3. the role each person involved will fill; and, 4. what the anticipated cost of such representation will be. The evaluation will also include a section which summarizes how the Texas
3 parole system works. Upon forwarding the written evaluation to the prospective client and those assisting him, we will have completed the initial stage of our representation. We will be most willing to discuss with anyone authorized to receive the evaluation the contents of that report once it has been reviewed by those to whom it has been sent. It is important to understand that no criminal lawyer worth his salt should undertake to guarantee the outcome of any criminal matter. After all, how can one tell the outcome of a project until that end has been reached? Therefore, we do not make any guarantees as to the outcome of any effort we undertake. We DO NOT take every case that we evaluate. In those cases where we believe that our assistance would have no value to the family or the inmate, we will decline to be employed further. We do promise that we will use our best professional ability in representation of a client. WHAT FEES MIGHT BE EXPECTED IF A FAVORABLE EVALUATION ISSUES? If our evaluation indicates we believe we can be of assistance in the parole process, our usual legal fees may run from an additional $7, to $10,000.00, plus expenses, depending upon the amount of time which will need to be expended in a particular case. Depending upon the facts and circumstances of a particular case, we may also suggest the need to employ a psychologist, psychiatrist, and/or a chemical dependency counselor; or in some cases, a polygraph operator. For example, a client who maintains that the facts claimed as true by the State may have no other witnesses to support his/her version of the facts. A polygraph can support the truthfulness of the inmate's story. Polygraphs are admissible in parole related matters and can be a great benefit to show that the client is telling the truth. The fees for such additional services depend upon choices to be made at the time the need for such professionals are under consideration. The need for psychologists, while not often required, are a great asset in cases involving a prior history of violence and can be most helpful. The professionals we suggest to be hired in a certain case will set their own fees. Those fees are over and above any fees quoted in this document. OTHER CONSIDERATIONS There are additional issues we wish to call to the readers attention prior to being hired to evaluate a parole case. There are certain crimes which the current parole board has determined are crimes for which parole is almost impossible. These are known as Senate Bill 45 cases (S.B. 45). S.B. 45 cases include persons convicted and sentenced to a life sentence for capital murder, one convicted of indecency with a child by touching, or one convicted for aggravated sexual assault (rape). If the prospective client is serving time for any of these three crimes, the likelihood of being granted parole is less than 1%. In fact, since 1996 we know of only two S.B. 45 cases where parole has been granted. If one is convicted of a felony D.W.I., or an offense where the victim was injured as the result of one being under the influence of alcohol while driving a car, then the likelihood of a favorable parole is extremely unlikely. In the event one of these crimes occurred on or after September 1, 1996 the board may not only deny the offender parole,
4 but may also deny release to mandatory supervision (also known as early release). We do not make the above comments to try to discourage prospective clients from hiring us, but rather in order to make every attempt to be totally honest with those who are seeking our assistance. We do not know of one single client who wants to be misled about the chances of success in any legal matter. What we are suggesting in the above comments is that if you are convicted of a crime listed as an S.B. 45 offense or a crime related to driving while intoxicated or under the influence of drugs, then the likelihood of success in parole is minimal at best. There is another area of problems we wish to mention to prospective clients. Often we will be contacted by families seeking our assistance in a parole evaluation where there is also an ongoing series of prison discipline problems, or seeking to have us assist in getting the inmate transferred to another prison unit. Recently the U.S. Supreme Court issued the opinion entitled Sandlin v. Conners which severely limits the due process rights of the inmate, as well as the remedies available if a lawyer is employed to try to overcome a discipline issue. This office does not generally get involved in the representation of inmates who have suffered a discipline problem. The reason for this is that we have discovered over the years about the only real remedy which works in a disciplinary case is to take the matter into federal court. The cost of litigation of such issues is excessive for most inmates or their families. Therefore, we wish to make clear at this time that there is little we can do either when it comes to dealing with inmate discipline problems or efforts to have an inmate transferred. If you would like to discuss what the cost of litigating such problems might be, please call us and we will discuss the particular situation the inmate is facing. FINAL COMMENTS After reviewing this letter, which we consider our offer to be employed, in the event you have questions, we urge you to call us. I, or a member of our staff, will be pleased to discuss your case with you. In the event you decide to have us undertake an evaluation of a case, then upon receipt of the appropriate evaluation fee based on the location of the inmate, we would like to schedule a face_to_face or telephone conference with you as soon as possible. Parole considerations start six months prior to one's parole eligibility date. That means that we need at least six to nine months advanced involvement in order to insure we have sufficient time to get the case prepared for presentation to a parole panel. Since the prison system has now swelled to include about 150,000 inmates and since the Board of Pardons and Paroles continues to only have the same eighteen members as when this State had a much smaller number of inmates, we are beginning to see considerable revision in the way the Board approaches their workload. In the Karla Faye Tucker capital murder case, the Court of Criminal Appeals recognized a study done by this office that shows that the Board member only has approximately 4_5 minutes in which to review a case for parole. As a result, appearances by lawyers and families before Board members voting a parole case are being limited.
5 Currently most parole board members are most willing to grant either a face_to_face interview with a lawyer and the family of an inmate seeking a parole date. There are, however, a few board members who will not grant interviews to lawyers or family members. While a face_to_face interview with a board member remains possible in many cases, there is no way we can guarantee whether a case may be limited or not. The decision to grant a face_to_face interview is strictly up to the individual board member, and generally can not be altered by counsel. Again, in the vast majority of our cases we are granted a face_to_face interview where the family is encouraged to participate with our office in the parole presentation. We believe that the most effective presentation of a client's case for parole should include statements from the family and/or persons closely associated with the client and his prospects for a successful parole. To accomplish this end, we are suggesting that the parole representation include the production of a "60 Minutes" type videotaped interview. This tape should be limited in length to no more than 15 minutes. The participants in the tape will include Mr. Habern, immediate family and in some cases professional counselors and/or employers. When submitted with the written presentation, this video production will insure that even if a face_to_face meeting or three_way telephone conversation is not granted by the first voting member of the Board, the full weight of concerned testimony will be available to not only the first voting panel member, but also to any second or third member voting the file. It is anticipated that the production of the videotape will add an additional cost to the presentation. However, the benefits of being able to present the full story to the Board members voting the client's file far outweighs the costs of production. Thank you again for contacting our office, and please call if you have questions. Yours truly, cc: file Bill Habern
6 Professional Resume Of Wm. T. Habern Graduate of the Midwestern State University 1969 Graduate of Texas Tech School of Law 1972 Member, Staff Counsel for Inmates (Public Defender Service at the Texas Prison) 1973_75 Private Practice in Huntsville, Texas 1975_79 Executive Director, Texas Criminal Defense Lawyers Project (Supervised all Continuing Legal Education Projects for the Texas Criminal Defense Lawyers Association) 1979_1980 Co_Counsel with Senator Craig Washington in the successful defense of Eroy Brown, charged with the capital murder of a prison warden and farm major. Defendant found NOT GUILTY 1980_1981 Formed Wm. T. Habern Law Firm 1981 to present. Between 1979 to the year 2000 Mr. Habern published over 15 articles dealing with Parole, Parole Revocation, federal sentencing, and post conviction defense legal issues. Mr. Habern has been a guest speaker at over 100 legal seminars and law schools speaking on topics related to prison and paroles issues between 1980 to In the past he has served as a training consultant to the parole board when training parole hearing
7 officers. Habern served for ten years as a member of the Board of Directors of the Texas Criminal Defense Lawyers Association. He continues to serve on the T.C.D.L.A.'s prison and parole committees, and serves as special liaison on corrections issues to the legislative committee. Mr. Habern was member of the legal team which presented and won Ray v. U.S., 95 L.Ed. 2d 693 (1987) before the U.S. Supreme Court. Mr. Habern has conducted hundreds of parole presentations and revocations in Texas and fourteen other jurisdictions Habern has prosecuted and won several prison civil rights law suits, including the "Ultimate Hunt" case where the prison was using inmates as "dog bait" to train their hunting hounds. Habern has been a guest on a number of national T.V. shows including Oprah Winfey and Maury Povich. Habern has served as an expert witness in a number of state and federal cases where he testified about the abuses that exist in the Texas prison and parole agencies.
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