Thursday, February 7, 2008

Falkenberg's Article Today

Okay, so compared to some other articles that Lisa Falkenberg has written, the one in today's Chronicle isn't so bad, and actually has newsworthiness to it.

She apparently met with 10 former and current African-American prosecutors at Vivian King's home to discuss what it was/is like to work at the District Attorney's office. In addition, Lisa also interviewed Joe Owmby for a counter-point to what was said at Vivian's house.

Out of the ten prosecutors at Vivian's house who spoke, only two, Carvana Hicks and Te'iva Bell had the courage to list their names in the article, which in my opinion gives them a lot more credibility than those who don't.

For those of you who don't know Carvana Hicks, she has a sterling reputation within the D.A.'s Office on both sides of the Bar. She is also someone that is truly working to make this community better. The fact that she is raising a red-flag means that the messsage clearly needs to be listened to.

And the fact that Chuck Rosenthal sends out an office wide apology for the "ear kissing e-mails" when they are revealed, yet remains conspicuously silent after the "watermellon e-mail" is offensive.

And in my humble opinion, there's no excuse for that.

Te'iva Bell is a former prosecutor, whom (to my understanding) had a difficult time in the felony bureau with the outcome of some of her cases, and left the Office as a Felony Three (if my information is correct. I can't 100% attest to this). She stated that a Chief told he that she was letting too many minorities on a jury is a little surprising, but it's worth noting that the written evaluation that Te'iva produced stated she needed to be aware of the "make up" of her juries. Falkenberg doesn't specify what the exact phrase of that sentence was, so there's no way to know the complete context.

I will say this, though. All attorneys who litigate have to be aware of the "make up" of their juries. That doesn't mean racial make up. That doesn't mean gender make up. That doesn't mean religious make up.

It just means make up. Folks, the media seems to think that walking into voir dire and saying "I'll take the first 12 jurors" is a fine way to select a jury. Nice idea, but its just not right. If that idea worked, there would be no such industry for The Jury Consultant. In higher powered civil trials and also in capital murder trials, great amount of attention is paid to the "make up" of the juries to an almost ridiculous degree:

"# 3 would be a leader. They've clearly got a dominant personality. That's your foreman."
"# 17 already hates #14. You put them both on the jury and you'll never get a verdict."
"#27 is clearly a follower. He's going to do whatever the rest of them want to do."

These are all part of the analysis of the "make up" of the jury.

Now, one last thing before I go. Two of the former-prosecutors who have chosen to remain anonymous (which is their right, and I'm certainly not the one to be identifying them) are only telling half the side of the story. I will address them as Anon 1 and Anon 2.

Anon 1, who was the prosecutor that was angry with the initial breaking of the "Candadian e-mail" story, was a very talented trial attorney with the D.A.'s Office. He rose and rose quickly to the level of Felony Two within the Office, before leaving for a higher paying job. During his time with the Office, he had two run-ins with the law that were serious. Very serious. Under interpretation, it could even by regarded as felonious. However, in spite of this, the Office kept him there.

He may claim hostile work environment, but the fact is that the Office bent over backwards to keep this talented young litigator in it's employment. Some would say long past the point when it was rational to do so.

Anon 2, on the other hand, may or may not have been a good litigator. We don't know, because he steadfastly refused to go to trial. He was given opportunity after opportunity to go to trial, and would find a reason not to. It is alluded to in Falkenberg's article that the term "trial dodging" was thrown out as a silly excuse for him not being promoted.

Trial dodging in the D.A.'s Office is not a silly excuse. It's actually bordering on derilicition of duty.

Anon 2 became angry when he wasn't promoted to Felony Two (the level where a prosecutor starts trying murders and aggravated sexual assaults of children), and was in fact, skipped over. What he neglects to mention when he is talking to the media is that he only had 3 or 4 other felony trials under his belt when it came to promotion time.

No supervisor in their right mind is going to try and send a prosecutor in to try murders when they only have four felony trials as experience. It would be horribly irresponsible to the victim's family, not to mention the entire community.

Anon 2 became so angry that he wasn't promoted despite his low trial numbers, that he ultimately walked off the job and never returned.

NOTE: I'm sure there are going to be a lot of posts on this story. I ask whoever posts not to name Anon 1 or Anon 2, although I'm sure you know who they are. They want to be anonymous, and they will remain so as far as my blog is concerned. Any comments that name them will not be published.


Ron in Houston said...

Part of human nature is to note differences and to infer from our experiences. I'm going to infer one thing about some white guy named Bubba who has a tattoo and works in a body shop and I'll make a different assumption for some white guy named Clive who is a college professor.

If I strike Bubba am I being racist? Absolutely not.

To a large extend racism is in the eye of the beholder.

PeopleSuck said...

And another thing re: "jury make up..." Ms. Bell's evaluation actually says that, "She needs to be more aware of her jury make-up. Clearly her jury and her witnesses were not on the same page. This could have been corrected by her if she had more thoroughly wood-shedded her witnesses."

Is that racist? How?

Ron in Houston said...


It's not. Racism is a perception. It is very much as I said in the eye of the beholder.

The anonymous DA tied that to other things they perceived and came up with the conclusion of racism.

Is it real? I have no earthly idea. At the risk of being a little metaphysical, when can we really trust our perceptions?

We tend to color our own little worlds.

A Harris County Lawyer said...

I'd also like to add that I have never IN MY LIFE heard that NFL stood for anything other than the National Football League. I think this is something created by Anon #2, actually.

If someone were to do an open records request on EVERYONE at the D.A.'s Office for the word NFL, they would probably find that . . . . a lot of ADAs like Fantasy Football.

They Call me The Hunter said...

AHCL said: "Out of the ten prosecutors at Vivian's house who spoke, only two, Carvana Hicks and Te'iva Bell had the courage to list their names in the article, which in my opinion gives them a lot more credibility than those who don't."

Pot calling kettle. No pun intended.

How can you blame the current and former prosecutors for wanting to keep their names out of this? You're keeping your identity quiet, and other than for selfish reasons (as the black prosecutors you malign) you have no reason to do so.

Stick with the issues.

Let's explore another issue. It has been said that if Kelly is not elected, there will probably or maybe a mass exodus from the DA's office. Well, that may be true, but the exodus may not be voluntary on their parts.

There are plenty of former ada's as well as prosecutors in other counties that would be happy to work under an honest DA in Harris County. Experienced lawyers who know how to try a criminal case, yes, even a capital case.

I know there are many defense attorneys who would love to be prosecutors again. Very experienced attorneys. And their defense skills would make them a formitable prosecutor. Likewise, despite all of the grousing about low Harris County salaries, there are lots of prosecutors all over the state who would gladly move to Houston to pursue their craft, not only for the increased pay they would receive but for the chance to make a significant change in the HCDA's office.

Dallas County has long had a policy of lateral hiring for their trial and specialized bureaus. Former DA Bill Hill recruited all over the state, as has the current DA, whom Chuckie wasn't fond of.

But Harris County always had that dead hand control of not hiring experienced prosecutors, except for either appellate or Writ division attorneys. Of course, experienced prosecutors or former ada's who left (and thought better of being an advocate for the defense) could not return unless they were willing to start at the bottom again and work their way up.

Hopefully, Judge Lykos will consider the option of laterals to restaff the "mass exodus" that is threatened if she wins.

I laughed out loud, very loudly, when I read a Chron post yesterday comparing the Seigler family to the Kennedy and Clinton families, in terms of their zest for public service. Really now? I know Dr. Seigler's husband was the famous (infamous?) late Dr. Howard Seigler (RIP), beloved by legions of patients but well known as a highly eccentric person. Although the late Dr. Seigler was very very politically active in both parties for many years, I am unaware of a history of public service in either Kelly or her husband's families. Can you clue me in?

This is a good blog but the pro-Kelly nature of this blog really borders on being a paid political announcement for Seigler. Open your eyes and look at the big picture.

A Harris County Lawyer said...

Hello Hunter,
I don't think I'm maligning the anonymous prosecutors. I'm just pointing out that there is another side of the story that two of them are saying. I was also doing the equivalent of "bolstering" Te'iva and Carvana and commending them for being brave enough to state their names.
I fully acknowledge (which you can see if you've been reading this blog throughout it's month-old life span) that I'm not anyone to be calling out another for anonymity. That's why I said I wouldn't ever publish Anon 1 or 2's name.
Your point is well taken, though.
Comaring Kelly's family to the Kennedy's may be a little strong. It's a long way from Hyanisport (sp?), MA to Blessing, TX. However, Kelly's father is/was a Justice of the Peace there. And of course, you can add in Kelly's 22 years of public service with that. Not real sure what Sam's dad has to do with anything there.
I suppose that your possible scenarios with how Lykos could be theoretically possible, but when you have members of the Defense Bar just as adamantly against her as the Prosecutors, I'm thinking that the line to sign up to work for her will be really damn short.
When both the State and the Defense are this united on the same issue, that's gotta tell you something about Lykos.

jigmeister said...

Dear Hunter,

Having spoken to many in the office, the overwhelming feeling is that if Lykos is elected everyone with 5 years experience and above would leave. That probably would not happen with Lietner. Few experienced defense attorney's would work for her either.

Now you might well say that all seasoned prosecutors should go anyway. But give Lykos a year and the only ones sticking around would be the only who like being miserable in their working environment.

I can tell your from personal experience that Lykos' decisions would be made on emotion without rational thought. Though, you would certainly know what she was thinking.

voiceofreason? said...

Jig, you are so right. It'd be a mass exodus. All that would be left would be a kangaroo court.

She can't win. Our jobs are hard enough. Lykos is a slime ball and would be a nightmare (even if I didn't get fired, I wouldn't stay).