Does Prosecutor Linda Speak “Fact” or Rhetoric?

August 14, 2010

As many of you have already heard, the Gracias have perfected their appeal to County Court.  If you’ve been reading my blog entries on this case, you know I have shown complete distain for Prosecutor Linda Geffin from the Harris County Attorney’s Office.  I am completely disgusted with her and her office’s behavior on these animal seizure cases, more so in this one where they are actively attempting to influence the public through their website and Facebook page.  As I circle back to overview this case for you, I think I should start with why I am so very disgusted with Prosecutor Linda’s conduct.

Have you ever noticed how the media so very carefully says a person “allegedly” did this or that?  That is to preserve the presumption of innocence.  In civil trials, the media says each side “claims” blah, blah, blah.  Again, these are allegations on each side.  One of the fundamental things that distinguish us from dictatorships is this presumption that all are entitled to a fair and impartial trial in both criminal and civil cases and civil seizure cases are actually quasi-criminal in nature.  These cases are prosecuted as civil by the same attorneys who prosecute criminal cases for the government.  To me, that is all the more reason those prosecuting attorneys should be careful of their words and representations.  They have a duty and obligation to preserve the rights of the accused to a fair and impartial trial before an impartial fact finder.  They are, in fact, charged with a duty to find the truth rather than jump to conclusions.  Despite that duty, there is an entirely separate finder of fact in the American system.

The real finder of fact is the judge/jury.  Each side of a case presents what they BELIEVE to be facts and that finder decides what are REALLY the facts of a case.  In the Gracia case, Prosecutor Linda has reached out to the public with her assertion that her allegations are indeed conclusive facts.  Those alleged facts are nothing of the kind.  (And never, ever forget that when this civil seizure case is over the Defendants may face criminal charges so what is done in this case does indeed influence a future straight up criminal case.)

We even honor finders of fact and the concept of their independence by denying higher courts the option of ignoring their findings in the Seventh Amendment to the United States Constitution.  Prosecutor Linda seems to have such a disregard for this very concept of independent fact finding that she wishes to influence the public and potentially the fact finders that may be on the bench or in the jury box that she presents her opinion of the case as “fact” on the Harris County Attorney’s Office website.

  • The facts about the rescue of 1,077 animals”  Not facts and even the number of animals is questionable since this is not what was originally released which was “1,079”.  This is at the top of the page in big bold print.
  • “deplorable conditions”  Descriptive but not even a fact, mere opinion.
  • Here are the facts”  Another attempt to reinforce that mere allegations are “fact”.  More enlarged bold type to get your attention.
  • “On August 2, 2010 Judge Armando Rodriguez ruled...”  Quite true and utterly irrelevant.  The JP’s ruling essentially evaporated at the moment the appeal was perfected.  Yet, the Prosecution still has this website up and this statement up as though it had meaning and while the case is now pending before another court.
  • “The animals included dogs, hamsters, rabbits and birds.  Over 1,000 of the animals were birds.”  Allegation.
  • “The judge’s order...”  Attempt to bootstrap “facts” above by again referencing an order that no longer has any meaning.
  • “The Gracias, although given the opportunity to do so produced no evidence to contradict the facts.  The Gracias invoked their Fifth Amendment right to refuse to give testimony that might incriminate them.”  Outrageous attempt to make an issue of invoking one’s Fifth Amendment rights.
  • “Two years earlier, the  Houston Society for the Prevention of Cruelty to Animals had visited the location and advised the owners of, among others things, the importance of keeping a constant supply of fresh, clean water available for all of the animals, all of the time.”  Is that a fact?  HSPCA actually testified that they didn’t look up the file from the alleged previous visit so were working from memory and how many cases do they “investigate” each year? 15,000?  Remember details of each one 2 years later?  Really?  More bootstrapping attempt.
  • “When the HSPCA arrived at the location recently, the house appeared to be abandoned as there was no furniture in the house and the electricity had been turned off.”  Straight up allegation but at least it’s written as just that.
  • “Of the nine dogs seized, seven of them were heartworm positive and all were infested with fleas.  One of the dogs had such an advanced condition of heartworms that it had difficulty breathing and was wheezing.”  More allegations and kinda written as such but conclusions inferred that are most certainly subject to the fact finder’s eye.  It’s actually an emotional plea and an overstated one.
  • “Hundreds of birds were in filthy cages, with bird feces encrusted on the sides and bottoms.”  Back to pretending that allegations are “facts”.
  • “Hundreds of the birds lacked adequate food and water and in many case, the birds’ water dishes were empty or had a coating of water and algae on the bottom.”  Straight up opinion presented as “fact”.
  • “Linda Geffin, Chief of the Special Prosecutions Section, accurately described the conditions as ‘horrific.’ ”  Now there’s a truckload of crap.  Whether or not Prosecutor Linda’s description is accurate or not is DEFINITELY up to the fact finder and that’s the very basis of ANY case.  This is actually the most outrageous statement of “fact” on the entire page.
  • “Harris County Attorney Vince Ryan supports the rights of legitimate businesses to sell animals, so long as the animals are treated humanely and in accordance with the law.  The office of the Harris County Attorney is committed to the protection of animals from abuse and neglect.”  Gee, and I thought the LAW told them to protect animals from “cruelty”.
  • 10+ pictures on the page and not even a general statement that those were taken at the Gracia property.  Were they and what do they actually represent?  Hm????  Yeah, those are DEFINITELY issues for the finder of fact and NOT Prosecutor Linda or her office.

Prosecutors “are backed by the power of the state” and what they say is given inordinate weight and they have extraordinary access to the media.  Whether or not a prosecutor should even be handling a civil case is questionable to me but it certainly reinforces that these civil seizure cases are not really civil and that “quasi-criminal” is an inadequate term.  These civil seizures have gone from quasi-criminal to criminal in the guise of civil where prosecutors pick and choose between civil and criminal rules at their whim in most cases.  The issue about applicable laws and rules is important so let’s talk abut rules, rules, rules.

The rules of criminal courts are set forth partly in the Texas Code of Criminal Procedure.  The rules for civil cases and appeals are set forth partly in the Texas Rules of Civil Procedure (TRCP) and the Texas Rules of Appellate Procedure (TRAP).  How appropriate it is to call those rules TRAP but that’s for another day.  Today is for TRCP issues.

The first and most important thing to understand about rules of court is that the legislature can pass laws much more quickly than the Texas Supreme Court seems able to adapt the rules to those laws.  Such is the case with the civil seizure of animals cases where the legislature has chosen to set very short deadlines that appear to abrogate many fundamental rights incorporated in other laws and the existing rules.  The rules have not yet been amended or challenged on appeal to deal with this and, in fact, the legislature has even largely cut off the appeal process.  But back to the rules for now.

TRCP Part V contains the Rules of Practice in Justice Courts.  These rules are at Rule 523 et seq. and the first rule is that the District Court rules generally govern in Justice Court as well.  However, there are some specialized situations that require specific treatment and those are covered within these rules.

Pleadings in JP court are generally oral rather than written.  TRCP 525.  We’ll come back to that issue about where the Gracia case should have been filed but it should also be noted that, when a case is transferred to another JP court, that the rules mandate it is to the next nearest JP court – another indication that the rules/laws intend for the JP cases to be heard in a specific place and not as these civil animal seizures are being done by the County Attorney filing them all in just 2 of the County’s precincts, before just 2 judges of the 16 currently on the JP benches.  TRCP 529.

Civil cases are generally started with the filing a Petition.  In fact, that’s normally a requirement.  TRCP 22.  Then a citation is requested.  The Citation is attached to a copy of the Petition and served on the Defendant.  In JP court, a Petition need not be filed but the Defendant still needs to be given adequate notice as evidenced by TRCP 534 et seq.  Animal seizure cases are apparently started by these County Attorneys by obtaining a search and seizure warrant and without filing a Petition at all nor even requesting a Citation.  I have serious doubts that the Warrant even comes close to giving the information and notice required to be in a Citation as specified by TRCP 534.

TRCP 535 mandates that a person be served “at least ten days before appearance day” but the Texas Health and Safety Code (TH&SC) mandates that the hearing on an animal seizure case be held within 10 days while not mandating any allowance for the Defendant to prepare.

“No default judgment shall be granted in any cause until the citation with proof of service as provided by this rule, or as ordered by the court in the event citation is executed under Rule 536, shall have been on file with the clerk of the court three (3) days, exclusive of the day of filing and the day of judgment.”  TRCP 536a.  Do you think it would be reasonable to say that judgment shouldn’t be entered/hearing shouldn’t be had for at least 3 days in these cases?

“No judgment, other than judgment by confession, shall be rendered by the justice of the peace against any party who has not entered an appearance or accepted service, unless such party has been duly cited.”  TRCP 562.

TRCP 537 and 538 refer to the Citation as well.  The Citation with or without a Petition attached is a very important item.  It’s what gives notice of the cases and specifies information any Defendant should be given before arriving in court.  It appears that the County Attorneys regularly just don’t obtain those Citations in these animal seizure cases.  If those warrants don't include every bit of information required in a Citation, I seriously question whether or not the most fundamental right of due notice of suit has been given in these cases.

Does that Warrant include this: "You have been sued.  You may employ an attorney. If you or your attorney do not file a written answer with the clerk who issued this citation by 10:00 a.m. on the Monday next following the expiration of ten days after you were served this citation and petition, a default judgment may be taken against you." as is required to be in the Citation?  I doubt it because the hearing must be held before that time specified.  Are they at least given the first 2 sentences or merely ordered to appear before the judge with no idea of what to expect?  I suspect the latter.

Sorry if that was a bit disjointed but my point is that one should certainly be given sufficient notice that one is being sued, the nature of the suit, and (in these cases) the hearing shouldn’t be for at least 3 days.

“In no case shall judgment be rendered against any defendant unless upon service, or acceptance or waiver of process, or upon an appearance by the defendant, as prescribed in these rules, except where otherwise expressly provided by law or these rules.”  TRCP 124.  It appears that the County Attorney depends upon the Defendant’s appearance so this rule can be used to enter judgment where no proper service has ever been given.  When the government does that, does it strike you as fair?  Rules can only go so far but the underlying concept of fairness and due process must always be met, especially where the government is acting against a citizen’s fundamental property rights.

Furthermore, an amazing number of these seizures happen just before the weekend on Thursdays.  Is that an accident?  I don’t think so.  Is it really fair for any individual to have to go up against the government on a mere 3 day’s notice that included Saturday and Sunday when there is little chance of contacting, let alone consulting, attorneys?  Again, that seems an end run by the government around the basics of fairness and due process to me.

The Gracia animals, over 1,000 animals, were seized on Thursday, July 15, 2010.  Their hearing was initially set for the following Tuesday.

In short, we have a non-profit organization (NPO) instigating these cases and assisting with the seizures who will then charge “care fees” far greater than any veterinary clinic would charge and who risks not getting paid if the case is lost and who will be the primary witnesses in the case.  The NPO immediately runs in front of media cameras and issues press releases accusing people of horrendous crimes without the “alleged” part of the equation but insisting that animals are in “deplorable conditions”, “rescued” from “abuse”, etc.

Then a PROSECUTOR starts a “civil” hearing without any Petition or Citation to adequately inform the defendant and does every end run in the rules to rapidly hold a trial in the shortest amount of time possible and no matter the value of the animals or the owner's emotional investment in them and in an attempt to permanently deprive the owner of their interest in the animals.

If an animal owner stands up to them and fights back, the PROSECUTOR then posts the same allegations as “fact” on their website and Facebook page with pictures that lack any kind of description to encourage speculation and conclusions.

On appeal, these cases are tried de novo.  That's a fancy word for a do over.  The County Court case should proceed almost as though the JP case never existed.  (I say "almost" because a few things do carry over and, in these cases, a BIG issue is that appeal bond which is no small matter.)

Even when the appeal is perfected, the prosecutor in the Gracia case has left up their allegations as “facts” on their website while she knows full well that the JP decision was, at best, tentative while the window of appeal was open.  Because it was tentative, at best, during that window, I’d call it grossly inappropriate to post the allegations as fact at all; let alone a tiny, hand selected group of pictures without context.  This case is actively pending before a court and I can’t find any better word for Prosecutor Linda’s behavior than OUTRAGEOUS except maybe unethical.  Yes, in my opinion, Prosecutor Linda is attempting to influence the potential jury pools in both the current civil case and the future criminal case to abrogate the presumption of innocence with the weight of the government on her side.  In my opinion, Prosecutor Linda is attempting to “put the word out” that “taking the Fifth” should be seen as indicative of guilt and that’s something that would absolutely get her slammed if this were a criminal case and it is certainly more of a criminal case than a civil one.  In my opinion, much of what Prosecutor Linda has done in this case is unethical at best and outrageous in the extreme.

While the Supreme Court of Texas regularly has issued opinions about the rights of all to appeal, to have access to the courts; Prosecutor Linda seeks unattainable appeal bonds in extraordinary amounts and the County Attorney’s Office puts up a website to discourage those who would support the Gracias' appeal, from exercising their rights.  Yea, I’d say that’s very outrageous in my little old opinion here on my piddly ass blog.  What could Prosecutor Linda and her office be so afraid of in an appeal to the County Court where the rules might be applied?  Where there might be a judge she doesn’t appear before weekly to get rubber stamped judgments?  Where there might be a jury?  Where someone might think the US Constitution still has some merit?  Is she, is her office so afraid of a real court and due process because they know they haven’t made the grade?  Maybe we’ll get to find out very soon.

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Having seen comments like "due process is only for the innocent" on the Harris County Attorney Facebook page, I'm not feeling too good about juries these days either.

It ticks me off with the rising number of dogs that are on monthly heartworm pills and testing positive for heartworms that this is even said. She really needs to get her facts straight. Also we still do not know if they tested positive for adult heartworm.

Wheezing or difficult breathing can have many different causes. Normally a dog with advanced heartworms will cough. A collapsed trachea can cause difficult breathing and/or coughing. Sometimes the reason for a collapsed trachea is not known, although it can be caused in toy breeds by pulling on a leash hooked to a collar. So if they used a catch pole on the dog they could of caused it. Sometimes this can be caused by kennel cough and vaccinations for kennel cough do not always prevent every type of kennel cough. A reverse sneeze which is also common in many toy breeds can sound like wheezing. Heart problems that have nothing to do with heartworms could be the cause. Allergies can even cause those symptoms.
So without testing, I have a hard time buying the dog is wheezing and has labored breathing due to heartworms. Have you ran tests to rule out all other causes? So it's not a "fact" that the dog is wheezing due to heartworms. In addition unless you make it a law that a dog must take a monthly heartworm pill, it is not abuse, cruelty or neglect. I know holistic vets and regular vets who do not give their dogs monthly heartworm. A lot of pet owners have weighed the risk of giving their dog a pesticide every month and choose to try other methods of preventing heartworm, such as feeding their dogs natural diets, not vaccinating, using natural mosquito repellents, etc.
As to the fifth amendment, I'm not an attorney or a lawyer but I did serve on a jury one time where the defendant did not testify. We were given instructions that included the reading and explaining of the fifth amendment and how we could not even consider them not testifying in our deliberation. Maybe Harris County needs a law lesson.
Also since when is it acceptable for a prosecutor to try and influence a potential jury? Once again I'm not an attorney or a judge and it may be perfectly legal, but imo it is highly unethical.

Kelley, I agree there are too many idiots, but at least with a jury it only takes one sane person. If the Gracias lose this case with or without a jury I will have lost what little faith I have left in the justice system. If they were to lose in a jury trial, I will be convinced that this country has became even dumber than I thought.

Anonymous,

I really, truly hope you are right and I am wrong but I don't look for them to win, I had a vet from the pound testify that there were volunteers treating cats with URI 24/7 while healthy cats were being killed. She was such a bad liar, my attorney could even tell and he doesn't know anything about cats. The animal cruelty detective claimed that ammonia causes mildew on the ceilings of bathrooms, so that is cruelty. In the first place, ammonia does not cause mildew, in the second place, mildew on a bathroom ceiling is not cruelty. I can't even remember all the lies now, and the jury bought them all. Or at least enough to convict. After which they apologized for convicting me. It is insane. Now I have to appeal the whole mess.

if NPO's cannot "investigate" them how come the HSUs has a big new fancy van for just that purpose? Inquiring minds want to know

I visited the county attorney offices website and wondering why Vince Ryan and Prosecutor Linda have this animal seizure case on their website and other cases like drug dealing or frauds were not..it makes me wonder if they're in bed with HSPCA. How do we get these people out of the office? Can't blaim others why they turn criminal!

if this is brought out in public you would be surprised how many elected officials will back pedal they do not like bad publicty somebody needs to pull a permit for a protest bringing these issues to ordinary people would let the elected officials know we have rights and they are not going to ruin our business who knows maybe hundreds if not thousands of us form our coalition and begin protesting these seizures maybe they will stop with protest comes media coverage which would expose the hspca for what they really are CROOKS with a few incompatent constables

So the Texas Rules of Appellate Procedure are a TRAP. What would you call those of Connecticut, Colorado, or California? If my gay friends will excuse me, how about those of Florida? I guess those of Wisconsin and Wyoming sum it up best, though.

Your descriptions of the Gracia case could describe any of many cases in the state, as well as other states. Just change the names and leave all the rest of the details. Only thing I can think to add is, warrants and bail bonds and holding someone in jail till the hearing are supposed to be for criminal cases, not civil. And even then, not all broken laws require holding someone in jail or massive bonds till the hearing. It's all part of their ploy, because they CAN.



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