Thursday, February 7, 2008

The Chronicle Editorial Board

Well Folks, we are down to twenty-six days until the March 4th primary election, and things are starting to get a little bit strained for all those involved. Not to mention, there have been some surprises coming in the wake of the Chronicle's editorial board meeting with the candidates yesterday.

The most surprising thing was what the Chronicle printed today about Jim Leitner's responses to some of the questions.

Now, I realize that probably 99% of the people reading this blog are either prosecutors or criminal defense attorneys, but I want to address this to anyone who isn't.

Jim Leitner stated that if elected, he would forbid his prosecutors from using peremptory strikes for three months. In a felony trial, both sides gets 10 peremptory strikes that they can use to strike jurors for almost any reason (except for those outlined by the Batson decision). During the jury selection process, as attorneys talk to the jury panel, and learn things about them, it becomes extremely clear that although a potential juror hasn't said anything to disqualify themselves from being on the jury, they are still very much leaning one way or another in the case. To remedy that, the peremptory strikes are available to both sides.

Leitner's statement that he would forbid the use of any of these ten peremptory strikes by the State is ludicrous. He's basically stating that "in the interest of fostering better P.R. with the community, we are going to tie our hands behind the backs of our prosecutors". Nice in theory, but the idea is absolutely insane.

Answer me this, dear readers: if someone was on trial for murdering your child, your mother, your brother, etc., would you like to see a social experiment run on the trial over whether or not the State of Texas can still win after not exercising any strikes? My answer (and I'm really not trying to be an alarmist here) is probably not. Not being able to exercise peremptory strikes means the odds of a person who is a ticking time bomb being on the jury is magnified exponentially. Does it mean all "not guilties"? Not necessarily. But I guarantee that hung juries will go through the roof.

Hung juries mean re-trials. Lots and lots of re-trials. Putting victims of crime through multiple trials isn't fair to them. And on an economic note, it's not real fair to the tax payers, either.

Jim, this idea is beyond horrible. It's idiotic.

The news that Jim could come up with such an idiotic idea was surprising. What's not so surprising is what Lykos said.

Jumping on the "All D.A.'s are racist" bandwagon was a no-brainer for Lykos. Unfortunately, in yet another moment of inadvertently proving that LYKOS HAS ABSOLUTELY NO BUSINESS BEING the District Attorney, she inculpated herself.

Lykos said that when she was a Judge (back in the 80s), that she saw ADAs being racist all the time and making racist peremptory strikes all the time.

Hmmmmmm. Very interesting.

Of course, she didn't really think that out did she? Because obviously, as a JUDGE over a court, it would be HER DUTY to stop such a travesty.

Now, I'm willing to bet the deed to my home that if we were to go back and look at the court records (or news stories or any other form of documentation) from her time back on the bench that we probably wouldn't be able to find ONE SINGLE INCIDENT where she either:
1) called a prosecutor on the carpet for a racially based strike;
2) called the elected D.A. to complain about the "racist" A.D.A.;
3) filed a grievance on a "racist" ADA practicing in her court;
4) banned that ADA form practicing in her court;
5) granted a mistrial after seeing it happen;
6) held a prosecutor in contempt for racist behavior; or
7) gave an interview to a local media outlet over her "concern" over these racist practices.

Those are seven options that she could have exercised to fight the racism she now alleges to have witnessed all the time.

I'm sure there are more options that I'm not thinking of at the moment.

And I'm guessing that she didn't do a damn one of them.

This leads me to the conclusion that Judge Lykos :

a) didn't know if something racist was going on in her court back then;
b) didn't care if something racist was going on in her court back then;
c) is just now making stuff up from the olden days to benefit her campaign;
d) is just generally full of it.


hcresident said...

I vote for full of it!

A Harris County Lawyer said...

Me too.

Ron in Houston said...

I'm calling 100% BS on Leitner.

No one wants the rogue juror. You can have 11 ready to render a verdict and 1 rogue juror can mess up all the hard work you've done.

His statement is 100% political hyperbole. Preemptories are the only way to get rid of the rogue. (Assuming you can spot them!)

Mark Bennett said...

It's a trick question! a, b, c, and d are correct.

pro.victims said...

Mark, I have to say, I laughed out loud. That tickled me.

PJ said...

I too was amazed by Lykos's statement, confessing error in what must be hundreds of old cases. Actually, according to her website, it could be as many as 20,000 cases. But I'm going with (b). Leitner even admitted he was trained with Dallas County-type manuals in the 70s to strike racial minorities, so it's not a stretch by any means to believe that DAs working in the 80's were routinely engaging in the practice.

ron in houston wrote: "No one wants the rogue juror. You can have 11 ready to render a verdict and 1 rogue juror can mess up all the hard work you've done."

But that's our system. The jurors vote their individual conscience, and if one juror has a reasonable doubt, that is sufficient for a mistrial and is the way it is supposed to work.

I'm sure even many, if not the overwhelming majority of, criminal defense attorneys would disagree with me, but I'm not a fan of peremptory challenges at all. If a juror can't be struck for cause, then he or she should sit. Otherwise, it's just gamesmanship, and there's no reason one side should gain an advantage in a criminal proceeding just because one lawyer is better than another at determining which jurors would be most sympathetic to the other side. (And if it turns out that in most cases the lawyering in this regard is equal, then it's just a complete waste of time, because once both sides run out of peremptories, the rest sit.)

Anonymous said...

I assume that Jim has already tried the "no peremtory" experiment in his defense work...NOT. Why not since the defense only needs one juror while the State needs them all????

A Harris County Lawyer said...

Hmmm. PJ has his own blogger ID, which would post in the color blue for his name. That would lead me to conclude that our usual PJ isn't the one who posted that above.

I'm starting to notice a pattern here. Does anybody else notice that all of the pseudonym stealing posts seem to be defending Jim Leitner.

Kind of sounds like the work of BubbaJoe6Pack to me.

Mark Bennett said...

A westlaw search for "Lykos and Batson" turned up one case, Cruz v. State, 762 S.W.2d 624 (CA14 1988), holding:

The trial court gave an opportunity for the appellant to make a timely Batson objection. The trial judge asked both parties before the venire panel was dismissed whether either side had any objection. The appellant responded in the negative. The appellant's objection after the venire panel was dismissed is untimely. Therefore “the wheels of the Batson test” do not go into motion. The trial court did not err in refusing to require the prosecutor to explain the reasons for the use of her peremptory challenges due to the appellant's untimely Batson objection.

jigmeister said...

Having been assigned to Lykos' court for far too long as a young prosecutor, I can tell you that never happened. She was equally abusive to everyone (just ask Gordon Dies), but never on racial grounds. Unfortunately, having never been a trial lawyer, she never knew the rules anyway.

anonymous c said...

This whole fad of pulling out "the race card" whenever convenient is truly corrosive on a lot of levels. I mean, it's completely impossible to defend yourself once you’re accused of being a racist. How on earth can anyone prove that they're not? You can say it all day long, but no one can look in your heart/head for themselves. Therefore, unless there is very obvious evidence (not just words, but a REAL body of definitive evidence), it's a b.s. charge.

And I thoroughly believe that the accusers know this and revel in it. It's very embarrassing to see political candidates falling in line like lemmings and then the public reacting in typical, uninformed, reactionary fashion.

I liked what Charles Barkley said recently. Here's a cut-n-paste of the article...

Former basketball star Charles Barkley says he definitely plans to run for governor of Alabama some day, but he wants no help from Al Sharpton or Jesse Jackson.
The New York Post reports Barkley says in an upcoming Playboy magazine interview: "I don't believe in them. They always play the race card, and you can't always play the race card. Sometimes the race card is needed, but not in every situation. We have to hold blacks more accountable for their actions."

I couldn’t agree with him more!

I'm continually surprised that more African-Americans around the country aren't totally offended by the implications, too. I know that I would be! Don't they see that they're being used for political gain? Somebody, with patently obvious political motivations, points and shouts "Racist!" and people just jump up, grab a sign and willingly start marching away.

I just don't get it. It’s very discouraging.

voiceofreason? said...

Right on, "anonymous c". I bet a lot of people feel that same way and just don't have the "cojones" to say it out loud. They don't want that finger pointing at them so they stick their heads in the sand. It is getting ridiculous.

And "props" for the "Different Starting Point showdown". You took the words right out of my mouth. I was laughing my ass off. Uh oh! Can I say ass here?

Great blog! Keep it up, mr. "blog author"! = )

anonymous c said...

Hehe. You apparently CAN say "ass" here, Voice of Reason! Donkeys and all, I suppose. Thanks for the props.

I very much agree with you about the sticking their heads in the sand thing. That's the one of two options that people seem to choose: either jump on board the bandwagon in an anxious bid to prove, by evidence of their participation in the protestations, just how NOT a racist they are, or quietly look the other way and whisper, "There, but for the grace of God (and a slip of the tongue) go I."

It’s disheartening.