To frame the question in a way that is not leading, argumentative, suggestive, speculative, or testamentary, calls for a conclusion, opinion, and/or unproven expertise…


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Stand-By Counsel

Victor Pool and Melissa Bias (center) their daughter, and “stand-by counsel” in an impromptu lunch break corridor conference


“Representing yourself in court is kind of like performing your own open heart surgery.” – former 249th District Judge John McLean

Waco – Judge Brad Cates of McLennan County Court at Law No. 2 is a patient man with courtly manners and a fabulous grasp of the law. A half-hour before lunch during the second day of the trial of Melissa Pool, he dismisses the 4-man, 2-woman, all-white jury for lunch, saying, “I know it’s only 11:20, but we will reconvene at about 12:45…”

They look grateful, as they fairly flee from utter tension of the tiny courtroom on the second floor of the old rococo building that is a replicated model of a 19th century Mississippi state capital building, designed by the same architects.

It’s been a rough morning.

The public is getting its first look at a surveillance tape of the events that led to the entire family being placed under arrest at a Bellmead Wal-Mart Super Center when their minor daughter and a cousin were apprehended and accused of shoplifting one frosty evening last winter.

When loss prevention specialists took them to a mirrored room off the entryway to the store to await police, they sat with their phones in hand and called the Pools, who were there within minutes.

They sat waiting calmly for the arrival of the next event, be it parents or police bent on taking control.

Two Bellmead police officers, Hathaway and Sellers, arrived before the Pools.  When their daughter refused to put away her phone, the two cops physically lifted her from her chair and placed her face-down on an elongated, angled desk at which she was seated, then placed her in handcuffs after Sellers removed a bulky-knit scarf wound around her neck – for her safety. Sellers is seen putting the girl in a headlock, then wrestling her to the floor before they lifted her and laid her onto the table, where they applied the bracelets. Then they placed her back in her chair, where she was sitting when her mother and father arrived.

In the video, the entire mood and body language of the persons so depicted changes when the officers are seen coming through the door. Hathaway, who is white, pointed an accusatory finger in the face of the Pools’ daughter. From there, the conflict over the phone escalated as both officers attempted to take it from her hand.

Matters are seen to escalate violently with the arrival of the Pools.

The two policemen sought to eject them from the room for purposes of officer safety, according to their testimony.  Both testified that they asked for the child to put away her phone for the same reason – officer safety.

Sellers testified that, as he stated in his affidavit of warrantless arrest, he had been informed that there was a safety issue before he entered the room.

Melissa Bias, who has no legal training, is in the midst of attempting to elicit testimony from him regarding his written statement and previous testimony. She is defending herself for the offense of interfering with a public official, resisting arrest, and similar complaints.

Hathaway had previously testified that the girl was playing a video game on her phone.

Ms. Pool points to the frozen video screen, which depicts her daughter sitting with her torso and head resting on the surface of the desk, looking down at a cell phone in her hands, and asks Sellers, “Do you see a hostile situation?”

The prosecutor immediately rises and objects to the form of the question as “speculative,” a total no no in the rules of court procedure and evidence. When she rephrases, he objects to the form of the inquiry requiring a speculative response, and a further attempt to rephrase the question is sustained as objectionable for its testamentary phrasing.

After a lengthy colloquy, the question is phrased correctly, and Sellers says, “It didn’t look hostile to me.”

The jurors, all of them middle-aged, dressed neatly in working costume and intently following the dialogue and the events depicted on the screen, are clearly becoming irritated by the constant confusion. They are unable to hide their facial expressions, though their affect also often betrays utter boredom caused by the continual arguments over procedure.

The conflict resumes when the tape is started again, as the Pools enter the room, trying to shove their way to their daughter, who is depicted on the video soundlessly calling for their help. There is no audio track.

Hathaway is seen pointing a TASER gun in Ms. Bias’ face, then shooting it at her husband as Sellers holds the child in his ample bear hug. He is a squat, muscular man with a powerful frame carrying in excess of 200 pounds.

He testified, “I see you grasping her and trying to take her away.”

As depicted in the surveillance video, the entire family winds up in handcuffs, arrested for their conduct.

Officers had originally intended to issue citations for petty theft to the two defendants, who would be summoned to municipal court or allowed to post bond and forfeit the sum in an automatic plea of guilty.

Through the halting dialogue of improperly framed questions and sustained objections, it finally emerges that the concern for officer safety is based on this, when Sellers is finally allowed to answer.

“Usually, we ask that they not (have their phones in hand) to keep them from calling anyone who could come down and make it worse.”

A half-hour later, after a Mr. Lowe from Wal-Mart loss prevention sat on the witness stand during the video tape’s fitful start and stop play on the screen, Ms. Pool recalled Sellers to the stand. When she tried to ask him questions about an affidavit, she asked the judge for instructions on how to properly admit the document to evidence.

Judge Cates began to explain how it had to be marked, inspected by opposing counsel – then caught himself, and dismissed the jurors for their lunch break with all due courtesy.

The man’s entire demeanor projected an attitude of calm rectitude.

He said, in part, “If you insist on representing yourself, you are responsible for properly introducing evidence.” He reviewed the facts, emphasizing that “all this has been going on for awhile.” He also said that, though he realizes it’s difficult to learn proper courtroom procedure in a few months’ time, he had appointed a competent attorney as “stand-by counsel” to answer any questions.

“I cannot advise you on the law.”

He later concluded, “I don’t think it’s a good idea to represent yourself.”

 Ms. Bias’ husband Victor Pool, father of her daughter, who is similarly charged in the same court,  is directly related to Elijah Pool through his grandfather, a cousin. Elijah Pool is known by his spiritual name as the head of the Black Muslim movement, The Honorable Elijah Muhammed, Messenger of Allah.

The couple have attempted to correct their citizenship through means of emancipation through a Florida court order. Mr. Pool claims a heritage as an aboriginal descendant of Moorish forbears who arrived on American shores as free men.

As the scribbler left the courthouse, the stand-by counsel was conferring with the family in an impromptu corridor meeting.

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