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Size Matters Not in Flashing Case

It is the perennial question: Does size matter? Two clever Houston lawyers argued that it does, at least when facing criminal charges for indecent exposure. Defending a local doctor on charges that he exposed himself to an undercover cop, high-profile criminal defense lawyer Dick DeGuerin and his associate Neal Davis argued that the doctor could not have exposed something that was too small to be seen.

As writer Rick Casey recounts in the Houston Chronicle, the doctor was arrested during an encounter in a Houston park with a plainclothes vice officer. After a jury found the doctor guilty, the doctor hired DeGuerin and Davis to file an appeal. They were the first to raise what Casey calls "the 2.8-inch issue," referring to the findings of a urologist DeGuerin called in as an expert witness. DeGuerin is known for defending such notable clients as former House Majority Leader Tom DeLay, U.S. Sen. Kay Bailey Hutchison and Waco cult leader David Koresh.

The size issue never came up at trial, but DeGuerin argued on appeal that it should have because it was a key piece of exculpatory evidence. The doctor is so embarrassed about this that he avoids undressing in front of anyone except his wife, they said. More to the point, the involvement of the doctor's hand would have made any alleged exposure improbable, the lawyers argued, given that one outsized the other. The Texas Fourteenth Court of Appeals rejected these arguments, Casey writes, adding: "This is a case that could be described as de minimis."

You can read the opinion for yourself at the court's Web site. Among the issues addressed by the appellate court: Whether the original defense attorney had a duty to inquire into the size of his client's attributes.

Posted by Robert J. Ambrogi on August 21, 2008 at 11:49 AM | Permalink | Comments (0)


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