Ruling on retrial motion in Guedry case expected Monday

March 31, 2011

Law & Courts

BEAUMONT —  Following a charged hearing Thursday, Jefferson County Criminal District Judge John B. Stevens Jr. is expected to rule Monday on whether former Beaumont police officer James Cody Guedry is entitled to a retrial of his official oppression case.

A Jefferson County jury convicted Guedry of the Class A misdemeanor in December, after which Stevens ordered a presentencing investigation. On January 18, Stevens sentenced Guedry to 30 days in state jail, probated for 90 days. [Click to read Stevens’ sentencing memorandum, provided by The Beaumont Enterprise.]

Guedry was specifically convicted of  wrongfully using a Taser twice against Derrick Newman during a late-night traffic stop on Aug. 24, 2007. [For more background on the case and a link to a police video of the incident, click here.]

On Feb. 8, Guedry’s new attorney, Glen Morgan, filed a motion for retrial, arguing that prosecutors did not present a legally or factually sufficient case for Guedry to be convicted, and that his trial lawyer, Mitch Adams of the Combined Law Enforcement Associations of Texas (CLEAT), provided ineffective counsel.

After two delays, Stevens heard evidence on arguments on the motion Thursday — but not until after Jefferson County Assistant District Attorney Rod Conerly asked for a continuance based on the fact that Morgan had late Wednesday afternoon filed a motion asking for permission to filed an amended motion for retrial, as well as the lengthy amended motion itself. [The document is courtesy of KMBT-TV.]

Conerly argued that he did not have sufficient time to prepare to argue against the amended motion, in which Morgan detailed 15 areas in which he believes Adams was ineffective or had a conflict of interest during Guedry’s trial.

Stevens allowed Morgan to present his case, but told Conerly that he would allow him to wait until Monday to present a rebuttal. Monday is the last day Stevens can rule on the motion for retrial before it is automatically denied under state law.

With Guedry — whom Beaumont Police Chief Frank Coffin placed on indefinite suspension on Feb. 14 — seated at the defense table, Morgan proceeded — with the aid of a slideshow presentation — to lay out his argument that Adams, the trial lawyer, had an inherent conflict of interest and was ineffective.

The conflict of interest claim stems from the fact that Adams is representing David Todd Burke, another former Beaumont officer, in his appeal of his conviction of official oppression of Newman in the same incident.

In September, a Bexar County jury found Burke guilty of wrongfully using his police baton to strike Newman 13 times while knowing that he was acting illegally. (Burke’s first trial in April 2010 ended in a hung jury and mistrial.)

State district Judge Layne Walker of Jefferson County sentenced Burke to 90 days in state jail, also probated.  (UPDATE:  On Aug. 24, 2011, the Ninth Court of Appeals upheld Burke’s conviction. Burke appealed that ruling to the Texas Court of  Criminal Appeals, which on June 27, 2012,  granted Burke a new trial. )

Morgan argued that much of the evidence presented at the trial had little or nothing to do with his client, and that Adams failed to either object or ask for a ruling that the jury should disregard such evidence.

“(The case) should have been about what Cody Guedry did or said, nothing more or less,” Morgan told the judge.

Perhaps the most damning evidence was the videotapes from several police cars that depicted the entire series of events before, during and after the time Guedry used his Taser against Newman. Morgan castigated Adams for saying “No objection at this time” when prosecutors moved to have the videos, which he called “highly inflammatory,” admitted into evidence and shown to the jury. Morgan called this the “deciding error” that should allow Guedry a new trial.

“I don’t know how you do that,” Morgan said of Adams’ failure to object to the videotapes.

Morgan also said Adams showed his inexperience or lack of preparation when, during jury selection, he “wasted” a peremptory challenge by moving to strike a black female juror without having a sufficient, “race-neutral” reason not to. (Guedry is white, and Newman is black). Prosecutors Ed Shettle and Pat Knauth argued, under a U.S. Supreme Court case, that the strike was unconstitutional, and Stevens agreed.

Morgan then laid out 32 instances during the trial in which he said Adams had been ineffective, mostly for failing to object to evidence presented or statements made by prosecutors.

Aside from failing to object to the admission of the videotapes, Morgan argued that Adams’  calling Gary Duncan, head of the Southeast Texas Regional Police Academy at the Lamar Institute of Technology, as an expert witness was especially harmful, since Duncan had also testified on behalf of Burke at his two trials.

Adams also made a critical error showing his inexperience by not asking for a directed verdict from the judge — meaning the judge finds that the state failed to make its case — after both the prosecution and defense rested.

Morgan pointed out that after calling Guedry to the stand, he asked him which name he goes by. When Guedry replied “Cody,” Adams said, “I knew that.”

“He wasn’t even sure what his own client’s name is,” Morgan said, adding that while perhaps a “minor” point, it would indicate to the jury that Adams was not well-prepared or organized.

He said Adams also failed to bring up during Newman’s testimony that he had filed a civil lawsuit against Guedry, Burke and three other officers.

Morgan argued that besides being ineffective, Adams’ dual representation of Burke and Guedry showed the “conflict of interest that permeated this trial.”

Following his presentation, Morgan called to the stand Gerald Bourque, an attorney based in The Woodlands who specializes in defending capital murder defendants. In his testimony, Bourque expanded on the points raised by Morgan.

Regarding the testimony of Duncan, Bourque (who admitted having read only portions of the trial transcript and watching little of the video) said that his association with Burke’s case was especially harmful to Guedry before the jury.

“Duncan becomes an anchor around Guedry’s neck,” he said. Even if the video had previously not been admitted, questioning Duncan meant “the video is coming in the front door.”

“It was a huge, huge mistake” by Adams to call Duncan to the stand, Bourque said. Adams should have called another expert witness to testify on behalf of Guedry, he said.

Bourque said there were two strategies Adams should have used: either “throw Burke under the bus” or do whatever he could to distance Guedry from the other officer. But he said Adams’ representation of Burke put the other officer “at the end of the defense table,” showing both Adams’ lack of experience and conflict of interest.

“There is no war from the defense counsel’s table,” he said.

By allowing the prosecution to play all of the videotapes, not just the portions that showed Guedry’s actions, “We were trying Burke a third time,” to Geudry’s detriment, Bourque said.

After Bourque’s testimony, Morgan closed his presentation of evidence. After first saying he might want to call his own expert witness to rebut Bourque, Conerly told Stevens he would withdraw his motion to continue the hearing on Monday.

Following Morgan’s closing argument (in which he largely restated what he’d said before), Conerly told Stevens that his opponent had failed to present anything more than speculation about what he felt Adams’ trial strategy should have been.

Stevens told the attorneys that he wanted to take some time to reflect on the evidence presented and the relevant law. He said he’d make a ruling by Monday, the last day he can before the motion becomes moot.

The much-anticipated hearing had plenty of interested bystanders, including three Jefferson County judges, several attorneys (including Langston Adams, Newman’s civil attorney), members of the Clergy and Police Partnership, and Newman himself.

CORRECTION:  This post originally incorrectly stated the number of days Burke was sentenced to jail (probated).

Find links to full coverage of the Guedry and Burke cases here.

RELATED: Guedry to get new trial, judge says and Beaumont police chief says department will rebound from setbacks

Copyright © 2011 Ken Fountain. All rights reserved.

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About Ken Fountain

I'm a journalist and writer in Houston, Texas. My areas of specialty include law and courts, local government and energy and environmental issues. You can follow me on Twitter at and email me at kenfountain1 (at) gmail (dot) com.

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  1. Federal panel rules against Burke and Guedry in civil case | Fountain's Pen - May 14, 2013

    […] District Judge John B. Stevens Jr.’s ruling that Guedry was entitled to a new trial, based on claims of ineffective counsel. Jefferson County prosecutors have filed a petition for discretionary […]

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