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Friday, November 14, 1997

Court threatens action for tone of lawyers' motion

By PEGGY FIKAC / Associated Press Writer

AUSTIN (AP) -- Well, it did get the judges' attention.

A written motion that took swipes at Texas Supreme Court justices -- calling them "nine nutty professors" -- has prompted the court to threaten action against three lawyers.

The three are handling a case in which the Supreme Court stripped a multimillion-dollar jury award from parents who said their daughter was born disfigured because of the anti-morning sickness drug Bendectin.

The Supreme Court ruled in July that there was no scientifically reliable evidence to support the verdict for Kelly Havner, formerly of Corpus Christi, who was born without fingers on her right hand.

The Havners' lawyers then filed a motion for rehearing that began, "Outlined against a hazy July sky, the four horsemen rode again last Wednesday, July 9, 1997. You know them: Pestilence, Death, Famine, and this Texas Supreme Court."

The motion described the court as "fervent to follow the law laid out for it by those who would kill and injure for profit." It called the justices "nine nutty professors."

It also referred to a news report from several years ago that asked whether justice was for sale in Texas because of campaign contributions to judges. In the Havner case, Justice James A. Baker removed himself from deliberations after a lawyer who argued for the pharmaceutical company involved in the case solicited campaign funds for him.

"Most likely the order already has been given, and the proclamation is sharp and clear: Justice is no longer for sale in Texas, the money has been escrowed, the deed has been signed, the deal has been done," said the motion.

The Supreme Court -- with Baker not participating -- Thursday denied the request for a rehearing and said, "The tenor of that motion requires that we address the conduct of respondents' counsel."

"This is not the first time in this case that the Havners' counsel have engaged in less than exemplary conduct," the court said. It said two briefs filed with a lower appeals court by Havner lawyer Robert Hilliard of Corpus Christi were described as insulting by that court, which suggested they violated professional conduct rules.

The Supreme Court said rules call for lawyers to show respect for the legal system and those in it, including judges, and that lawyers shouldn't make false statements concerning the qualifications or integrity of a judge.

The high court gave lawyers Hilliard, Barry Nace of Washington and Rebecca Hamilton of Rockwall until 5 p.m. Nov. 24 to say why the judges shouldn't refer each of them to appropriate disciplinary authorities, prohibit Nace from practicing in Texas and impose fines.

"Maybe they have no background in the use of literary devices to make a point," said Hilliard, who said he does respect the judicial process.

Noting that he is in the middle of a trial, Hilliard said he would ask the court to delay the deadline for response until early January and to hold a hearing.

"I want to get it out in the open. I want to talk with them about what's happened to the Texas justice system. ... politics has finally drowned justice," Hilliard said.

Ms. Hamilton said, "I'm not afraid to be a martyr for the First Amendment. ... I'm a Republican. I support every member of the (predominantly Republican) Supreme Court. But I'm also a zealous advocate. I think that it's outrageous to suggest an attorney be penalized for being a zealous advocate."