Tuesday, December 29, 2009

Lykos 2009: A Year in Review

As a kid, I always enjoyed reading Dave Barry's Year-in-Review every December, so in the spirit of Dave, here is a review of our first year with Snookems and the Gang Who Couldn't Shoot Straight . . .

JANUARY

January 1 -- a beaming and freshly polydented Pat Lykos is sworn in as District Attorney while hundreds of Assistant D.A.'s are forced to attend the ceremony at gunpoint. During the ceremony, she criticizes the minister who swears her in for mispronouncing her name. Noting that Lykos is pronounced "Like us", it will be the only time that anyone says anything about "liking" the new administration. After the ceremony, there are numerous reports of Lykos shaking down prosecutors for cigarettes.

January 7 -- in an effort to promote a lack of familiarity with cases, Jim Leitner detaches his lips from Lykos' posterior long enough to announce a new policy against prosecutors holding onto cases that they've worked on if they switch courts. When called upon to explain his actions, Leitner explains that it will make himself and the new administration seem a little less clueless by comparison if they are ever called upon to handle an actual trial case.

January 26 -- in an effort to seem like just just one of the troops, Leitner and Roger Bridgwater decide to sign up for intakes and probable cause shifts. In an effort to ensure that they don't screw anything up, they make sure to only take the prime shifts and never work midnight to eights. To make sure they have enough shifts, they help themselves to the shift of single mother, Sylvia Escobedo, who they kick off the intake list without notice.

FEBRUARY

February 4 -- after a month of having to dodge getting caught smoking in the stairwells next to her office, Lykos issues a memorandum to all prosecutors that the stairwell to the sixth floor was now forbidden for prosecutors to use. She mentions that the constant beeping of the door is disturbing the fragile mind of General Counsel John Barnhill.

February 5 -- in a cross-over episode of The Dukes of Hazzard and Driving Miss Daisy, Lykos' personal driver and D.A. Office investigator crashes her County Ride.

February 7 -- in response to some tardiness, Jim Leitner issues the 0800 memo declaring all prosecutors must be present in their office at 8 a.m. sharp. On that same day, Sylvia Escobedo attempts to turn in her resignation letter at 8:00 a.m., only to find that no personnel is on the 6th floor that morning until after 9 a.m.

February 19 -- in an effort to promote diversity within her staff, Lykos attempts to recruit Tiger Woods as a Bureau Chief within the office so that she can claim multiple races and nationalities are represented within her upper administration.

MARCH

March 2 -- in an effort to kiss up to the Defense Bar in a way that totally works, Lykos FINALLY makes copies of offense reports to defense attorneys.

March 10 -- the first hints that Lykos and the Gang Who Couldn't Shoot Straight were suffering some budgetary issues arise when signs begin popping up on Hannah Chow's water coolers which read: "No Free Refills".

March 26 -- in what will, by far, become the most stupid thing she does all year, Lykos publicly calls popular prosecutors Mark Donnelly and Rifi Newaz "negligent and incompetent" in the Houston Chronicle. Although she never apologizes for the insult, she does try to lamely explain that she was making nicknames for ALL of her prosecutors, much like the Seven Dwarves. She points out that she affectionately refers to Roger Bridgwater as "Dopey" and 1st Assistant Jim Leitner as "Kiss Ass".

March 31 -- in an effort to rebuild her reputation with her prosecutors, Lykos holds a motivational Continuing Legal Education session with paid lecturer Lisa Blue. The message conveyed to the prosecutors is that their job is to make Lykos "look good". On a related note, the television show Extreme Makeover is bombarded with requests to take Lykos in as a special project.

APRIL

April 1 -- Lykos snubs long-time prosecutors Lance Long and Stephen St. Martin when they are honored by the FBI for their work in law enforcement during a ceremony at the office. After work, Lykos is seen protesting a birthday party at Chuck E. Cheese, carrying a sign which reads "Your kid sucks."

April 20 -- departing chief prosecutor George Weissfisch sends out an All Prosecutor e-mail with helpful suggestions for the office. He is sternly warned that attempts at competence will be dealt with harshly, and if he does not cease and desist with his help, he will be doubly fired (also known as "Newmaned").

Aprill 24 -- in an illustration that not only Old Regime employees were bailing out of the U.S.S. Lykos, Beverly Chambers, Lykos' hand-picked administrative assistant resigns after less than four months of service.

MAY

May 7 -- Deputy MISDEMEANOR Division Chief (as opposed to Deputy Chief of the D.A. Office) and honorary Lykos God-Daughter Rachel Palmer coins the new office motto of "Look Good, Think Smart, and Win!", which is a radical departure from how the Lykos Administration had been running up to that point. The Junior League gives them a standing ovation.

May 14 -- in another great moment in Race Relations, Lykos restores the positon of Probable Cause Chief BACK to a paid Chief slot after African-American prosecutor Carvana Cloud resigns from the Office. During the history of the Office, the only time that the position was a non-chief slot was when Carvana occupied it. Carvana's predecessor and successor in the position were both Caucasian.

May 29 -- caught off guard during a press conference which she had called, Lykos is forced to acknowledge the beginning of the now-famous DIVERT program which allows Pre-Trial Diversion for DWIs. In doing so, Lykos creates and subverts the laws regarding intoxication offenses. MADD is madder, and drunks around the county celebrate.

JUNE

June 4 -- Lykos makes her famous "I wish I had a Jack and Coke right now" statement during an interview with Lisa Falkenberg. Roger Bridgwater, who is also present for the interview nearly swallows his tongue and then immediately attempts an exorcism on his boss.

June 9 -- Lykos celebrates along with her buddy, Jeff Cohen of the Houston Chronicle over the passage of the Journalist Shield Law, which protects journalists sources from those dastardly police officers who might actually be trying to solve a case.

June 20 -- in an apparent snit with the Texas District and County Attorney's Association, Lykos boycots this year's Legislative Update with an in-house training session. Rather than focus on substantive changes in the law, the Lykos Show has such topics as Hannah Chow's "Your Friend the Water Cooler", Jim Leitner's "The Effect of the Porn 'Stache on Jury Credibility", and Roger Bridgwater's lecture on "Insubordination and Anger Management".

June 24 -- after watching a Death Wish marathon on TNT, Roger Bridgwater goes off on fellow Bureau Chief Donna Goode for daring to question him during a Tuesday morning staff meeting. After attempting an exorcism on Donna, he files a complaint on her with the Disciplinary Committee for insubordination and has her locked out of her office computer. In a move that conclusively showed that Donna had more class and guts than him, Donna gave Harris County the finger and resigned.

JULY

July 14 -- in a speech to rookie prosecutors at TDCAA's Baby Prosecutors School, former Harris County Prosecutor George Weissfische publicly denounces Lykos' new DIVERT program. That same week, former prosecutor Donna Goode, is named as the First Assistant in the Galveston County District Attorney's Office. Bridgwater suffers a nervous breakdown.

AUGUST

August 10 -- surrounded by churning turmoil and chaos within her Office, Lykos decides to decisively remedy all the problems by getting the Office a dog. The dog quickly becomes the most highly respected member of the Gang Who Couldn't Shoot Straight.

August 15 -- Hannah Chow takes time out of her busy schedule of monitoring the water levels in the Office coolers to write a letter to the Chronicle criticizing Lisa Falkenberg's article on the lack of diversity within the D.A.'s Office. Rather than acknowledge that the D.A.'s Office has a stunning lack of African-American and Hispanic prosecutors in upper echelon positions, Chow instead criticizes Corporate America for their stunning lack of leadership positions for Asian and Native American employees.

August 20 -- the Twitterverse is shocked by the appearance of a Twitter participant calling herself "Pat Lykos". Once it is clear that the poster actually understands the legal system and has a sense of humor, it becomes obvious that the poster isn't REALLY Pat Lykos. This in no way appeases Republican Chairman and Joseph McCarthy wannabe Jared Woodfill from blaming the practical joke on a vast left-wing conspiracy.

August 24 -- The Chronicle's Brian Rogers finally does an article on the massive amount of prosecutors fleeing the Office under the Lykos regime. It is met with a resounding "no shit" from frequenters of the CJC.

August 28 -- Lykos is caught dismissing the case against Supreme Court Justice David Medina's wife for the offenses related to arson. There is no confirmation that Lykos also personally gave Justice Medina a T-shirt that read: "My wife got prosecuted by the Harris County District Attorney's Office and all I got was this Lousy T-shirt".

SEPTEMBER

September 6 -- the Lykos Adminstration implements a seemingly good idea of putting law school pre-commits in felony courts to get some real world experience before they pass their bar exams.
That real world experience?
Don't trust politicians, because we ain't actually gonna pay you once you pass the bar.

September 26 -- the move to create a Public Defender's Office gains steam until Lykos points out that with all the concessions she's been giving to the Defense Bar lately, that the D.A.'s Office has actually become a Public Defender's Office.

OCTOBER

October 6 -- I finally give up and realize that Lykos isn't sending me a birthday card, yet again.

October 19 -- Lykos and Crew resurrect a disposed of case where a driver killed a couple in an automobile crash, by agreeing to a Motion for New Trial, and then subsequently dismisses the case. Cocaine-using reckless drivers across the county rejoice.

October 19 -- Lykos clarifies her new policy on auto-related fatalities by saying that if a cell phone is involved in a fatality, not only will you be taken to trial, but you will also get some pretty nasty name-calling from the elected D.A. herself.

October 23 -- in a press conference to explain the D.A.'s Office's new policy on automobile related fatalities, First Assistant Jim Leitner has a nervous breakdown and flees an interview with Channel 13's Ted Oberg. Rumors that Jim may have wet himself a little when faced with a tough question are unconfirmed.

October 28 -- despite a finding of a blatant Brady vs. Maryland violation against Child Abuse Division Chief Denise Oncken during a sexual assault of a child trial, the presiding judge does not grant a mistrial based on the prosecutorial misconduct. This leads Lykos to do a dance of joy and she declares Oncken the Employee of the Year.


NOVEMBER

November 3 -- the pre-commits at the Harris County D.A.'s Office learn the hard way to never trust a politician when they are told that the Office doesn't have the money to pay them real salaries once they pass the Bar Exam. Jim Leitner defends the information by saying, "Hey, we've only known this was coming for about two months now, and we were afraid if we had told you back then that you might not have done all this work for us for $10 a hour."

November 5 -- the pre-commits pass the Bar Exam and Pat Lykos goes back to being the only licensed lawyer in the D.A.'s Office to have never tried a case.

November 14 -- D.A. Child Abuse Paralegal Kim Flores, who brought to light the Brady violation of Denise Oncken gets "Newmaned" (aka Fired despite the fact that she was already leaving the Office) by Hannah Chow. For such a ceremonious event, Chow wears her judicial robe from the 5 minutes she spent on the Bench, and tells Flores that she was firing her "because she can". An attempt to have Flores escorted out of the building is foiled by people with some actual integrity.

DECEMBER

December 9 -- Lykos announces that as of January 1, 2010, the Office will no longer be filing crack pipe residue cases.
Crackheads around the county rejoice!

December 10 -- Lykos announces that she will be rethinking the policy of no longer filing crack pipe residue cases.
Crackheads are confused. So is the rest of Harris County.

December 14 -- the announcement that 262nd District Judge Mike Anderson will not be seeking re-election causes many to wonder if he will (TRANSLATION: pray for him to) run for District Attorney in 2012. Lykos increases her chain smoking to a carton a day.

December 18 -- Judge Don Jackson is convicted by a jury for the offense of Official Oppression. The Lykos Administration issues the following statement: "See. We told you we'd do something right by the end of the year."

December 22 -- in lieu of the annual Office Christmas party, Lykos allows all employees to come see the new hardwood floors in her office. She then leaves early to go to the mall and tell children that there is no Santa Claus.

December 31 -- Lykos invites everyone to a mandatory meeting at the jury assembly building at 9 a.m. on January 1st to help her and the Gang celebrate a wonderful first year.

Black Ink's Take on the CCL 13 Race

It's worth reading. Check it out here.

Monday, December 28, 2009

Petition Signing for Don Smyth

For those of you who are interested, there will be a petition signing get together for Don Smyth tomorrow (December 29th) from 4 - 6 pm at Cielo's Mexican Restaurant located at the intersection of Main and Congress.

The deadline for signature collection is January 4th so all help will be greatly appreciated.

Thursday, December 24, 2009

Don Smyth runs for County Court at Law # 13

As mentioned in the comments section of my last post, there was a lot of excitement generated on Wednesday by the announcement of Division Chief Don Smyth's candidacy for Judge of County Court at Law # 13.

Don is currently the Division Chief of Division A in the Trial Bureau of the District Attorney's Office, and he has been a prosecutor with the Office for over 32 years. He has held pretty much every position that the Office has to offer, from Misdemeanor Three all the way to Bureau Chief. He was the former Division Chief of the Civil Rights Division, before becoming the Bureau Chief of the Governmental Affairs Bureau (which encompassed the Civil Rights and Public Integrity Divisions). He served as a Bureau Chief for 8 years. During his tenure as an Assistant District Attorney, he also served as the Division Chief of the Misdemeanor Division.

Don is a graduate of the University of Texas Law School, and also got his undergraduate degree from UT, as well. He has been married to his wife Lydia for 25 years, and they have 3 grown children. He has been active in the Boy Scouts since 1986, serving as a Scout Master and Scout Master Emeritus. He is also a long-time volunteer with the Emergency Aid Coalition, which he works on through his church.

Don is currently working on getting his petitions together for the race, and is trying to organize a get-together some time next week after work.

Anyone interested in helping out with Don's campaign, especially with the Petition Drive (they are due on January 4th), should contact Don's wife, Lydia, at l_smyth@att.net.

Monday, December 21, 2009

The 2009 Twelve Days of Lykos

On the First Day of Lykos, Snookems gave to me One D.A. endorsed Brady Violation.
On the Second Day of Lykos, Snookems gave to me Two Stellar employees crucified in the Chronicle.
On the Third Day of Lykos, Snookems gave to me, Three Washed Up judges demanding to be called "Judge".
On the Fourth Day of Lykos, Snookems gave to me, Four people who actually care that Snooks testified before Congress.
On the Fifith Day of Lykos, Snookems gave to me, Five DIVERT and Trace Case flip-flops.
On the Sixth Day of Lykos, Snookems gave to me, Six weekly resignations from career prosecutors.
On the Seventh Day of Lykos, Snookems gave to me, Seven Leitner bobbleheads, nodding to the Judges.
On the Eighth Day of Lykos, Snookems gave to me, Eight unfilled spots in the Trial Bureau.
On the Ninth Day of Lykos, Snookems gave to me, Nine friends of Bridgwater and Chow hired to fill positions.
On the Tenth Day of Lykos, Snookems gave to me, Ten Golden parachutes for 10 Republican Failures,
On the Eleventh Day of Lykos, Snookems gave to me, Eleven unpaid Pre-Commits.
On the Twelfth Day of Lykos, Snookems gave to me, Twelve months of General Mass Confusion.
Thanks to everyone for the contributions! It's much funnier (and on point) than last year.
Everybody have a Happy Holidays!
I'll show myself to the door.

The 2009 Rookie of the Year

Congratulations to Judge Shawna Reagin of the 176th District Court who won the 2009 Rookie of the Year at the CJC by a very large margin.

For those of us who practice regularly in her court, that comes as no real surprise. Judge Reagin has done a great job of combining intelligence, fairness and compassion to prove herself as an excellent judge in her first year.

She is backed up by a great court staff that make a visit to her court both a professional and pleasant experience.

Congrats Judge!

Friday, December 18, 2009

Christmas Dress Code

I realize that it is Christmas time and everyone is in a more relaxed mood around the courthouse. However, I think it is very important that we don't let the court room attire dress code to lapse to such total fashion faux pas --

And yes, Brian, I know your glasses cost like $50, but couldn't either of you afforded a real tie?


Holiday Classics

Last year I got canned (for the second time) for running the 12 Days of Lykos (that YOU GUYS wrote, I might add!). Looking back on the list now, it seems so absolutely non-abrasive compared to what Snookems and the Gang actually did during their first year in Office, doesn't it?

So, without further ado, I'm re-running the 2008 Days of Lykos. I'm also taking suggestions for the 2009 Days of Lykos.

Y'all remember how to play this game right??

Oh, and by the way, I will be ceremoniously firing myself again Christmas Eve so that Ken Magidson doesn't have to do it this year.

Merry Christmas everybody!


The 12 Days of Lykos - 2008 Edition
On the 12th Day of Lykos, Snookems gave to me 12 jurors chosen without a preemptive strike;
11 free "crooked cop passes" from Mr. Police Integrity himself;
10 internal memos regarding unprofessionalism of reading toxic, antiregime blogs;
9 new ashtrays for the 6th floor smoking lounge;
8 days of Lykos Hell every single week;
7 insulted yarmulke-wearing witnesses;
6 emails from my family wanting an explanation for why I won't be visiting as planned for New Years;
5 new pantsuits;
4 free tickets for a reception on January 1, 2009 that I'm forced to attend;
3 washed out judges;
2 Leitner balls; and
A troll from a spider hole.

Thursday, December 17, 2009

Petition Signings

Channel 13's Miya Shay is reporting tonight from the trial of Judge Don Jackson that controversy has arisen over the signing of a political petition.


The gist of the story is this -- Don Jackson was the judge of County Court at Law # 3 of Harris County, Texas. In the race, there is a Republican challenger named Cary Hart (who would be a freaking excellent judge, by the way, but there will be more on that later). As part of her preliminary steps towards running for judge, she asked friends and other supporters to sign a petition that allowed her to run without paying a massive filing fee.


It's THE common practice for all candidates who run for office. It is common for there to be big political party events (both Republican and Democrat) where party faithful can sign petitions for all the candidates. I signed Cary's petition gladly. So did plenty of other defense attorneys who know and support Cary. So did plenty of prosecutors who know and support Cary.


One of those prosecutors who signed the petition was Lance Long, who is the lead prosecutor in Jackson's trial. It is also worth noting that Lance signed it far in advance of ever being assigned to handle the case against Judge Jackson.


Jackson's defense counsel, Dan Cogdell, has taken issue with that fact and has brought it before Judge Ellis. I'm not going to comment on the merits of Dan's Motion, because I just typically don't comment on jury trials that are currently underway.

But I do think that it is worth pointing out that probably the majority of the criminal lawyers who practice in the CJC and are voting in the Republican Primary signed off on that petition. I understand Dan wanting to cover all his bases in his defense of Judge Jackson, but I don't like the idea of the media blowing it out of proportion. I would imagine that if one looked at the complete list of signatures on Cary's petition one would see a lot of familiar names on it.

I don't think that signing her petition would necessarily make one an "enemy" of Judge Jackson per se.

The reason I'm writing this post is that I got an e-mail from a commenter who asked what Lance had been charged with. Um, Lance wasn't "charged" with anything.

Lance Long is one of the most honorable, talented and intelligent prosecutors that Harris County still has to offer, and for Channel 13 to zoom in on him like he did something wrong is ridiculous. He's doing the job that he's supposed to do, regardless of what petition he signed.

(NOTE: Due to the fact that this trial is still going on, I'm not going to publish any comments regarding the trial, trial tactics, or the actions of the participants until after the trial is complete. Not that I think the general public reads the blog, but just to be on the safe side.)

Wednesday, December 16, 2009

The Race for County Court at Law # 13

With Denise Bradley's departure from the Republican Primary for County Court at Law #13, controversial Assistant District Attorney Rachel Palmer now sits alone as the only candidate in the Republican Primary.

The fact that this is happening is not sitting well with a lot of readers of this blog, including the poster known as Black Ink, who has posted his own commentary on his blog known as Stealth.

As I've said before, Rachel has never done anything to me personally, but I do have my concerns about her. One of which is her description of herself as the "Deputy Chief of the District Attorney's Office".


This seems to imply that 1) there is a singular "Chief" of the D.A.'s Office [there isn't]; and 2) therefore there is a singular "Deputy Chief" which is her [there isn't and she certainly isn't].


Rachel is a Felony Two who is on the cusp of being promoted to a District Court Chief. She is the Deputy Chief of the Misdemeanor Division, but that is in no way near the level of importance that she is implying on her campaign literature.


That's kind of like when Dwight Schrute claims to be the Assistant Regional Manager of Dunder-Mifflin, when, in fact, he's just the Assistant to the Regional Manager of Dunder-Mifflin.


Monday, December 14, 2009

Rumors Are Flying

In case you hadn't noticed, I've refrained from doing any posts on the upcoming Judicial Elections of 2010 so far. The reason for that is that the races aren't closed until the first part of January and who knows what could happen in the next two to three weeks?

A clear example of how things can change in a heartbeat happened today when the Assistant District Attorney Denise Bradley (formerly Nasser) announced that she was moving from the race for County Court at Law # 3 to run for the bench of the 262nd District Court.

Accompanying the notice was the announcement that Judge Mike Anderson who is the current judge of the 262nd was not going to run again in 2010.

And rumors started going crazy at that point.

People are posting comments on my other posts speculating that Judge Anderson will be beginning an early campaign for District Attorney.

My answer to that?

I have no freaking clue. I'm sure that me stating that I have no clue will do absolutely nothing to stem the rumors that will probably swirl on the blog, but until something gets corroborated, I wouldn't put too much stock in anything yet.

But it sure as hell is an interesting thought, isn't it?

Sunday, December 13, 2009

The Veterans' Court

Due to the hard work of some very dedicated Defense Attorneys and Public Servants in the Texas Legislature and the CJC, this past week Harris County proudly held the first docket of its newly established Veterans' Court.

The Veterans' Court was the product of bipartisan work from the State Legislature, most notably Senator Rodney Ellis and Representative Alan Vaught. Representative Vaught is the Vice Chairman of the Veterans' Affairs Committee, and my understanding is that his staffer, Jo Cuevas, was instrumental in keeping the bill from dying along the way. Also along the way, the project was assisted by Defense Attorneys Pat McCann and Jack and Terri Zimmerman. According to Pat, the Harris County District Attorney's Office was also instrumental in helping to redraft the bill into a workable form.

To use Pat's quote, the effort to get the creation of the Veterans' Court, literally "took a village."
Also instrumental in the administration of the Veterans' Court are Mary Covington (who also is the heart and soul of the Success Through Addication Recovery (STAR Court) Program), and, of course, Judge Marc Carter. Attorney Staci Biggar (who already spends a significant amount of time already working in the Mental Health Courts) is also dedicating time to assist in the project.

What the Veterans' Court provides is alternative options for the men and women who are active or honorably discharged members of the United States Military (including the Reserves and National Guard) with a "service connected disability" that is linked to their criminal problems. The offense that the veteran is charged with can't be a 3G Offense (that's an aggravated offense for you guys not familiar with the lingo).

NOTE: My understanding is that the correllation to the "service connected disability" to the related criminal behavior could be, for example, a veteran suffering from Post-Traumatic Stress Disorder that exhibits itself through alcohol abuse picking up a DWI charge.

Eligible candidates will be screened by Mary Covington for admission into the court and the hope is for these men and women who have served their country will ultimately receive pre-trial diversions that will allow them to ultimately have their case expunged from their record (if successfully completed). The District Attorney's Office will also be instrumental in the administration of the program and have been very active in the effort thus far.

It's a great cause that took a tremendous effort, and everyone involved deserves our thanks and a congratulations.

Editor's Note: Any information written here from the HCCLA List Serve is used with permission from Pat McCann.

The Final Four

Congratulations to the Final Four Finalists for the CJC Rookie of the Year -- Judge Shawna Reagin, Judge Kevin Fine, Judge Herb Ritchie, and D.A. Pat Lykos.

Commence to voting for the winner, folks. Polls close next Sunday at 8:00 p.m.

Thursday, December 10, 2009

Now THAT'S What I Call Decisiveness

Ya know, I try to work on our relationship, Snooks, but I can't do it all by myself.

Just after I supported your move to stop filing crack pipe residue cases YESTERDAY, you've turned around and changed your mind about it today. Looks like you are going to be rethinking things at HPD's urging.

Now, I'm all for Lykos and the Gang making some attempts to start thinking, but damn, I was really getting behind her new policy before she hauled off and changed it.

I love that Lykos is so adored by the Houston Chronicle that she has no qualms about announcing a policy in the Wednesday edition and then turning around and reversing her position the next.

By the way, Pat, that doesn't make you look inept, clueless at your job, unprofessional or anything.

Really. I promise.

But once again, I wanted it noted for the record that I tried to support you on an issue, but you wouldn't work with me.

I just don't know if our relationship is going to make it.

Wednesday, December 9, 2009

The New Crack Pipe Policy

Pat Lykos has gotten herself back in the news today with the announcement of her new policy of the Office no longer filing crack pipe "residue" cases. As the Chronicle article points out, the move is being met with polar opposite reviews from police officers and defense attorneys.

For those of you unfamiliar with the lingo, a crack pipe residue case is typically called a "trace case" by most criminal lawyers. The typical scenario is that a person is arrested for a Class C offense (in the poorer neighborhoods, that's usually a jaywalking, walking in the street where a sidewalk is provided, or a bicycling without a headlight). Once a patrol officer arrests the Class C scofflaw, the "search incident to arrest" will often times recover a crack pipe with no crack rock in it. However, a quick test with a field kit will show that the pipe tests positive for cocaine residue and voila, we have felony charges.

The reality of the situation is that the crack pipe once held a perfectly solid crack rock, but now it's gone. The way the statute reads allows for any amount of cocaine be filed as a State Jail Felony. In other counties, however, the cases can be disposed of with a Class C Possession of Drug Paraphernalia plea. In Harris County, the cases were often handled with 12.44(a) Time, which is a felony conviction punished with misdemeanor jail time.

The police are not happy with Lykos' new policy, and I understand why. Police Departments like to utilize the statistics of Felony Arrests, and if the D.A.'s Office isn't going to let them count crack pipe residue cases anymore, then those stats are about to take a severe dip. That ain't going to make the upper echelons happy, if you ask me.

My thoughts on Lykos' policy is that this was probably a good move, though.

Yes, you read that correctly. I agree with Lykos on this particular issue.

Filing crack pipe cases are a tremendous use of State resources that could be better expended on more serious cases.

And it isn't as if she is de-criminalizing drugs. The option will still remain for a police officer to file a Class C violation on a crack pipe holder and they will still have the power to take that person into custody (if they so choose). They just aren't going to get their felony arrest stat and the accused isn't going to spend the next several months in jail.

And the prosecutors at the D.A.'s Office can spend more of their over-worked time focusing on more serious cases.

Now I'm wondering what the Office is going to do with all the residue cases that are currently pending. I'm hoping that a lot of us are going to be getting our Class C offers immediately and we can get some of these folks home for Christmas.

Saturday, December 5, 2009

Rookie of the Year

As we begin wrapping up 2009, I thought it might be fun for y'all to get to pick the Rookie of the Year from our new elected candidates.

There were eight new District Court Judges and one new District Attorney, so the question for deciding who the Rookie of the Year is for 2009 is who do you think has done the best job in their new position.

Because of the way the Blogger Dashboard runs, I can only put a maximum of five candidates on an opinion poll, so it looks like we're going to go to the playoff system again. The top two vote-getters in each individual poll will be placed in the final poll.

As a side note, although I'm not including him on the poll, I think some major credit needs to be thrown to District Clerk Loren Jackson for the major technological advancements he's made with his Office. He has quietly done some very impressive things and word on the street is that we ain't seen nothing yet from him.

So, that being said, commence to voting!

Sunday, November 29, 2009

Post-Thanksgiving Wrap Up

Since I first set foot in Harris County as a lawyer over ten years ago, I've always loved this time of year at the courthouse.

Things are starting to wind down for the year. Prosecutors and Defense Attorneys are a little less snippy with each other. There's kind of an aura of goodwill towards each other that will disappear on the first work day of the new year.

But, sadly, that also means that it is a really dull time to be a blogger.

Yep, there just isn't too much to report on around the old CJC generally this time of year. About the only thing worth noting last week was that the Pre-Commits finally got sworn in as bona fide prosecutors. In typical fashion, Lykos kept it a closed ceremony so none of the new lawyers' families could attend. That was some PR genius, Snooks.

But on the whole, things are quiet, and that's a good thing, I suppose.

I will point out that my friend, Pat McCann, wrote a great piece in the Chronicle today about the execution of his client, Robert Lee Thompson. If you didn't read it, check it out. It's a heartfelt article that kind of gives you an insight to the work that Pat does on a daily basis. It also shows why I admire Patrick so much.

Other than that, all is quiet on the Western Front.

By saying that, I have now invited all Hell to break loose tomorrow.

Until then, I hope that everybody had a safe and happy Thanksgiving.

Wednesday, November 18, 2009

10 Years Ago Today

Ten years ago this morning, I woke up in a small house that I was renting over in the Timbergrove Manor part of town. I was a Baby Prosecutor of three months, assigned to the Justice of the Peace Division and I was due in Judge Patronella's court Downtown that morning. I got up, showered and got dressed with Good Morning America on the television set. I wasn't paying much attention to it until I saw that it was covering the Aggie Bonfire.

I'm from Bryan, Texas and I grew up in a house about a mile and a half from the polo fields at Texas A&M. I graduated from there in 1995. So, when I saw that a national TV show was covering my hometown, my initial reaction was "oh, cool". I figured they were just doing a profile on the traditions of college football and they were covering the A&M tradition.

It took me about ten seconds to realize that what they were covering was probably the worst tragedy that ever hit the community where I grew up. I stopped everything and sat down and watched the coverage in stunned silence.

Seeing something like that happen in the small town you grew up and have great affection for was heartbreaking. It was 2 years prior to the attacks of 9/11, and at the time, it seemed like the worst thing I had ever seen in my life.

I had to go to work, though. I didn't even have a cell phone back then, so during every break during Judge Patronella's docket, I would call home and get an update on what was happening. Every time I called, the death toll would have risen and it felt like a kick in the stomach.

When I had attended A&M, I was by all accounts what the Aggies call a "Two Percenter". I guess growing up in Bryan/College Station had caused some of the novelty of the Traditions there to lose their effect on me. I didn't go Midnight Yell. I didn't even go Bonfire, usually. I liked going to the football games, but for the most part, there was very a much a disconnect between me and my college experience.

But on that day I felt a deep connection through deep sadness.

In the days that would follow, I would go home to Bryan/College Station for Thanksgiving. I saw the logs of the fallen bonfire and I went to the candlelight vigil. I remember standing there when the crowd parted and then-Governor George W. Bush and his father walked out. He shook my hand and said "It's a sad day."

I heard my voice cracking as I said "Yes sir, it is."

I remember the A&M/U.T. game the next day. I've never been to a more emotional sporting event. The Longhorn players and their Student Body exhibited so much sympathy and class to the Aggies in the wake of the tragedy that I don't think the rivalry ever really recovered. It was just too difficult to get fired up with hatred towards a group of people that had been so kind during the darkest days.

I remember the Aggies won the game that day. I remember Ja'Mar Toombs scoring a touchdown and I remember the giant fullback weeping in the end zone.

I cried too.

So much has changed in my life and in the world over the past ten years. In some ways it is incomprehensible to think about how much is different from way back then. But even now, ten years later, it seems no less heartbreaking as it did right about this time that morning.

I don't know why exactly I felt the need to write this post, other than to tell that little old town where I grew up, and that big old university that I once attended that I'm thinking about them today.

Saturday, November 14, 2009

The Paralegal

I received a comment on the blog this morning under my previous post on Ethics Training that I thought was worth posting in its own article.

If you recall, during the Brady hearing last month, the testimony of Denise Oncken was contradicted by longtime Child Abuse Paralegal Kim Flores. Shortly thereafter, Kim turned in her resignation and accepted a job working for Bill Stradley. In what I think is a pretty stand up move, Stradley was willing to give her a job after she made the courageous stand by testifying against her employers.

Some might even call Kim a whistleblower . . .

All was well in the wake of the Brady hearing. Lykos and company held an Ethics Training and then went about sweeping the whole incident under the rug. The media stopped paying attention to the violation and Kim turned in her two weeks notice.

It was looking like Lykos and the Gang Who Couldn't Shoot Straight were going to successfully dodge the issue until yesterday.

I'll just let "The Paralegal" tell the rest of the story:

Friday I was called by Judge [Hannah] Chow and was told that my last day would be that day effective immediately. I asked why (considering I gave a two week notice the Friday before). She responded with, "Because we can." and then turned around and walked out the door.

It didn't bother me that they were cutting me a week short and docking me a weeks pay, but what really bothered me was that I was insulted when I was told that I would be escorted to my office and out the door by an investigator.

I was treated like I had been fired.

Forget the 10 years of loyalty and the great reputation that I had earned for my dedication to my job. Luckily someone fought for me and I was not escorted out. Thank you for that.

What I can tell you is that information is out there. What the office chooses to do with it is up to them...which I know that nothing will change.

I have had a great deal of support from many about my difficult decision to leave the office and for that I thank you. However, I know that there are a couple...that I know of for sure that aren't pleased.. not my decision for leaving, but rather who I am going to work for.

For those doubters, you already know my character and have commented on such...do you really think it's going to change? I'll tell you like I told Denise...I have morals. I didn't put up with it when my morals were challenged at the office and I will not put up with it when I work defense.

Interesting to see how Lykos reacted when a little too much "transparency" occured.

Like I said, it sure seems like Kim Flores could be considered a whistleblower to me, but what do I know?

Tuesday, November 10, 2009

What to Do With Susan Wright

Back in the Spring of 2004, I got the opportunity to sit second chair with Kelly Siegler on the State of Texas vs. Susan Wright -- a highly publicized murder case at the time which was made even more highly publicized during trial.

The short version of the case was that a young mother tied her husband, Jeff Wright, to their bed and stabbed him over 190 times before burying him in a flower bed right outside their bedroom door. She then reported him to the police as having beaten her and then left their home on foot. For a more detailed version of the case, here is an article I wrote for TDCAA several years ago.

The case got National attention when Kelly had us reconstruct the bed in the middle of Judge Jim Wallace's courtroom and did a re-enactment of the stabbing for the jury. (NOTE: No, I was not the dude in the bed. That was Paul Doyle.)

Ultimately, Susan Wright was convicted of the murder of her husband and was sentenced to 25 years in TDCJ. The jury had rejected a claim of "Sudden Passion" (which would have capped sentencing at 20 years) and had also rejected the State's request for 45 years.

Almost immediately, the verdict was attacked both in the Press and in the Appellate Courts by the shy and demure Brian Wice. He took on Susan Wright's case and for the past five years has fought like a mad man to get her a new trial. Brian is a good friend of mine, and although we were on opposite sides of this particular issue, I truly respect the work he did on this case.

Last year, he and Carmen Roe took the case to a hearing in front of Judge Wallace making the claim that Wright's defense counsel had been ineffective for failing to put forth an effective Battered Woman Defense. Specifically, Brian and Carmen were arguing that defense counsel had erred in not putting on witness Mistie McMichael (Jeff Wright's ex-girlfriend who alleged abuse by him) and an expert on Battered Woman's Syndrome.

Although Judge Wallace did not have the power to overturn the case, he did make findings agreeing with Brian's assertions that there was ineffective assistance, and the case was then taken to the Texas Court of Criminal Appeals. In a ruling that I will admit absolutely stunned me, the Court ruled 9-0 that Susan Wright deserved a new punishment hearing.

With that ruling, the ball is now thrown into the District Attorney's court to see what they want to do with Wright's case on punishment. Both Kelly Siegler and I are both gone from the D.A.'s Office now, obviously, so new prosecutors will be making the decisions.

The case goes back to the 263rd District Court with Judge Wallace. Mia Magness is the Chief in that court now and she is one of the best trial prosecutors that the D.A.'s Office still has left. You might remember her from that little Clara Harris trial awhile back.

But the chances of the Wright case actually going back to trial aren't in Mia's hands at the moment. The decision of whether or not to plea bargain the case away is in the hands of Pat Lykos and Jim Leitner.

What they will decide to do with the Wright case will be a pretty big statement on their feelings for victim's advocacy and how much they will bow down to the defense bar.

Obviously, Wice and Wright would love nothing more than to get a plea offer of time served. The Office could accomplish this by letting her to plead to 5 years TDCJ. In lieu of that, the Office could also plead her to 10 years TDCJ making Wright automatically eligible for parole.

I hope they don't. And here's why:

-Susan Wright was convicted of tying her husband to a bed and stabbing him over 193 times.

-the number 193 is an under-estimated count, because as Dr. Dwayne Wolfe testified, there were so many wounds that many of them ran in together and couldn't be counted individually.

-Wright testified that she went for her husband's eyes first when the stabbing began.

-Wright also testified that in the middle of the stabbing, she was interrupted by the couple's young son, who she had to put back to bed. (Can you imagine what she looked like walking down the hall with him?)

-Wright went to great efforts to disassemble her bedroom and clean it with paint and bleach.

-while Jeff Wright's body was being desecrated by the family dog in the back yard, Susan had the audacity to go file a police report that he had assaulted her.

I expect supporters of Susan Wright to claim she was a battered woman, but her claims weren't even close to credible. During trial, she testified to only three specific incidents of abuse (while saying that Jeff beat her continuously, she could only remember these three).

The three incidents were as follows:

1. An incident where Susan had a small bruise under her eye. She told neighbors that her son had accidentally popped her in the face with an action figure. The neighbor saw the action figure and saw it was consistent with the size of the bruise.

2. An incident where Jeff (who was a very large and strong man, especially when compared to Susan's small frame) had repeatedly slammed her hand in a heavy door. She admitted under Kelly's cross-examination that her hand was not broken and she never sought medical treatment for it. Her description was rejected by the jury.

3. An assault the night of the murder which had led to bruising on her arms and legs. All the bruising on the arms and legs were consistent with somebody banging themselves up while moving a body and disassembling a bed.

And let's not forget that Jeff Wright's body was found with ties around both wrists and both ankles, with corresponding ties found tied to the bed frame. There was also candle wax dripped on his genitalia.

The crime scene was much more indicative of kinky sex than an assault, folks.

So, Pat and Jim, you've got a decision to make.

Susan Wright tortured her husband and the father of her children and killed him about as brutally as one can imagine. Jeff Wright was far from the perfect husband, but he didn't do the things Susan claimed. Her claims of domestic abuse are an affront to all the real victims of domestic violence out there.

Quite frankly, 25 years TDCJ was a gift from the jury.

If you guys are interested in doing the job you were elected to do, it's time to make a statement.

One of your best prosecutors could retry this case in a heartbeat and leave Susan Wright wishing for that 25 years.

Or you can just surrender and plead her out to back time.

If I were you, I'd take this case back to trial.

Thursday, November 5, 2009

On a Lighter Note . . .

Congratulations to all the Pre-Commits who passed the Texas Bar Exam today!

There is nothing quite as miserable as those three to four months waiting for the results, and today should be one of the happiest days of your life.

Although as you progress in the Office you will eventually get to know all of your fellow prosecutors, there will always be a higher level of camaraderie and friendship with the ones who are in your "starting class" with you. They will be the ones that you will celebrate your victories with, drink after your losses with, and grow up in the Office with. The longer you stay at the Office, the more they will become a second family to you.

You've got some great times ahead of you.

Enjoy them.

And congratulations, again, for getting that damn test in the rear-view mirror.

Ethics Training

In response to the tremendous Brady blunder committed the week before last by the Harris County District Attorney's Office, fearless leader and speed-spender Pat Lykos decided to jump into action. Rather than take any sort of definitive action such as publicly calling any prosecutors names or issuing any type of apology on behalf of the Office, Lykos decided just to throw some money at the problem.

She hired TDCAA representative Clay Abbott to come to Houston and give a lecture on Brady material.

Now, I like Clay Abbott and he is a very good speaker. He speaks every term at Baby Prosecutor's School in Austin about Ethics. In addition to being an incredible resource on DWI cases, he is also a great teacher. I've got no gripes about him.

That being said, the early reports that I've gotten about the training seem to indicate that the message was put forth that an open file policy was adequate to comply with Brady. I wasn't there, so if anybody wants to chime in on that, please do so.

I am kind of curious as to what old Roger Bridgwater is doing to earn his keep around 1201, though. Last I heard, he was the head of this fabled "Ethics Bureau" that Lykos promised during her campaign. I wonder why exactly he wasn't the one spearheading this project. You would think with as cash-strapped as they are, the D.A.'s Office wouldn't be doing so much out-sourcing.

Then again, I have heard that since the Donna Goode incident, Roger doesn't exactly have the street cred with his underlings like he once hoped.

The biggest question to me is whether or not the Lykos Administration thinks that this little training session will serve as the only type of answer to the Brady disaster. If so, I don't think any of us should be expecting this story to be ending any time soon.

Tuesday, November 3, 2009

Your Friendly Neighborhood Office Lobbyist

While Pat Lykos and her Gang seem to have been incapable of approaching the County Commissioner's Court to try and drum up a little money to pay their pre-commits, she seems to have had no problem in approaching the Court for money for an Office Lobbyist.

Historically, the District Attorney's Office has sent a legislative liaison of some sort to Austin when Congress was in session to work with the Representatives and Senators on upcoming criminal law bills. This has generally drawn a disgusted eye roll from members of the Defense Bar, who assume that this was an example of a Police State trying to come up with more laws to imprison the poor citizen. However, the liaisons in the past have often worked along with TDCAA in trying to help the legislators keep from putting laws into effect just because they seemed politically popular. (EXAMPLE: Harris County actually tried to talk Legislators out of expanding the death penalty to non-Capital murder situations like sexual assault a few years back).

However, prior to the Lykos Administration, the liason was a prosecutor who worked in a regular assignment until the Session was on the horizon. They then would spend the Session in Austin, meeting with the Legislators. Different prosecutors were often called to Austin to testify in support (or opposition) to a Bill on different topics, but only one person was there full time. In the past, that position has gone to senior prosecutors like Troy Cotton, Chuck Noll, and most recently, Kevin Petroff.

That all changed when the Free Spending Pat Lykos came to town and began treating her D.A. budget with all the restraint of Paris Hilton on Rodeo Drive with a new platinum card.

In her view, the Office Legislative Liason would certainly need some professional help -- especially, if they were going to get laws passed of such public criminal justice importance as the Press Shield Law!

So, Lykos decided to seek the help of professional lobbyist Hank Mitchell, who was already doing a little lobbying for a group called the Retired Senior and Visiting Judges (a group that Lykos served for three terms as president of, I might add). On February 24, 2009, Lykos and the Gang asked the Commissioners Court for approval of $17,500 for Mr. Mitchell to serve as a liaison from February 24 through June 1, 2009.

The move got some attention in Dallas (but not Houston).

Okay, so fine. Lykos doesn't think that her own inside people can do an effective job of lobbying in Austin during the Session. I guess she can sort of justify getting a professional lobbyist. (NOTE: Not really.)

But let's now jump forward to the June 9, 2009 Commissioner's Court Agenda to see what the Gang has on their wish list . . .

Well, goodness gracious, there's old Hank Mitchell's name again. It looks like Hank did such a good job for them when Congress was in Session that they thought they would bring him on for a longer period of time.

This time, Lykos requested $58,000 to employ Hank from June 9, 2009 through January 10, 2011. Yep, $58,000 for a time period where there is no legislative session going on.

This, folks, is bureaucracy at its finest.

We can get $58,000 for one guy to sit around during the off-season like a red shirted golfer, but we can't drum up the money to pay 12 pre-commits for the month of November?

Now, I'm sure that Lykos will defend herself by saying these funds were out of the discretionary account, which are not legally allowed to be used to pay prosecutorial salaries. To my understanding, that's true.

However, what that argument does not defend is why in the hell wasn't she spending as much time in front of the Commissioner's Court trying to get money authorized for her Pre-Commits as she was for Hank Mitchell?

The Pre-Commits Get Screwed Over

The budget woes of the Harris County District Attorney's Office continued to deepen reportedly today. This time the folks losing out because of Pat Lykos' spending habits were the Pre-Commits.

As I've mentioned before, the term "Pre-Commit" refers to recently (or soon-to-be) graduated law students who have been hired as interns for the District Attorney's Office. They are promised employment conditioned only upon them passing the Bar Exam. Prior to the Bar results arriving, they are employed by the Office as interns. My understanding is that they are paid about $12 an hour during their internship.

Upon passing the Bar Exam, the Pre-Commits are then upgraded to a starting "real" salary, and they get sworn in by a judge in a nice ceremony that family can attend. At present time there are somewhere between 10 to 15 Pre-Commit Interns who are awaiting their Bar results.

This week was supposed to be a big one for the Pre-Commits, because the Bar results are due to be released on Thursday or Friday. It's time to upgrade from working for beer money to a real salary, right?

Apparently, wrong.

Pre-commits were told this morning that due to a "budgetary shortfall," the Office can't afford to actually pay them "real attorney" salaries. The Office is hopeful that they will be able to start paying them a real salary in December, but for now, the Pre-Commits are just sh*t out-of-luck.

These poor rookie prosecutors have made a commitment to the Office and the Office has made a commitment to them for employment. These attorneys bypassed employment with other people to work for the D.A.'s Office and now they are getting absolutely screwed over financially. This is beyond ridiculous.

As my NYC editor pointed out, you can get paid more for babysitting.

Most of the prosecutors and support staff around the Office have already come to terms with the fact that they won't be getting raises this year, but not paying the Pre-Commits jeopardizes these kids' ability to afford to live. It's insulting and dishonest. Lykos and the Gang are breaking a promise to the Pre-Commits that is beyond shameful.

But, hey, on the plus side, I hear that the hardwood floors in Lykos' office look fantastic! Oh, and the driver she hired to drive her around hasn't had a fender bender in months!

Sunday, November 1, 2009

Open Range

Okay Boys and Girls,

I'm on vacation this week, so I don't feel like blogging on a topic right now. So you all can talk about whatever you want in the comments section (in an idea I totally am borrowing from Lone Star Times).

Have fun and keep it semi-clean.

Sincerely,
The Blog Czar (inside joke)

Thursday, October 29, 2009

Adios, Amigo

Tomorrow (Friday, October 30th) will be my friend, Mark Donnelly's last day at the Harris County District Attorney's Office before he heads off to work at the U.S. Attorney's Office.

To say his departure is a loss for the D.A.'s Office is a tremendous understatement, but given the way he was treated by Pat Lykos, the move comes as no surprise.

I first met Mark when I was a Misdemeanor Chief during the Summer of 2001. The offices at 1201 Franklin had been abandoned in the wake of Tropical Storm Allison and we were operating under Flood Conditions out of the old Early Voting location on Texas. He was a rookie prosecutor who had the audacity to wear some sort of prissy little bow tie to work.

It was a pretty bold move for a rookie, and I decided to harass him about it. If I recall correctly, he had no hesitation about hurling back a barrage of bald jokes in response. Even though it was totally at my expense, it was hysterical. Mark pretty much fit right in from the second he set foot in the door at the D.A.'s Office.

Mark was immensely popular at the Office, and he was one hell of a good prosecutor too. He was smart, talented in trial, and bilingual. He was fair and even-handed with the Defense Bar. He was helpful to his co-workers. He was respected by the judges. I don't think he had an enemy within the Office, and we all knew he was going to end up in politics some day.

Everybody freaking loved Mark.

I can remember one time having to call Judge Susan Brown about getting a search warrant signed in the middle of the night. I was assigned to her court, so when she answered the phone, I joked: "Hey Judge, it's your favorite prosecutor."

Her response: "Donnelly?"

The point I'm trying to make (without letting this post sound too much like a eulogy) is that Mark was literally a Golden Child at the Office and few prosecutors who have ever worked there could make the claim that they represented the Office as well as he did. He was born to be a leader in that Office, and I have no doubt he will be a leader with the Feds.

His career was immaculate and unblemished until Pat Lykos decided to jump the gun and call him "negligent and incompetent" on the front page of the newspaper. Of all the colossal f*ck ups that Lykos and crew have committed in their 10 months in power, nothing has gotten anywhere near what she did to Mark and Rifi.

And she never even bothered to offer those guys an apology.

I find it tremendously interesting when you compare Lykos' reaction to the Batson situation with her complete and total lack of reaction to last week's Brady situation. Apparently Lykos and the Gang don't consider the hiding of exculpatory evidence to be quite as serious of an ethical violation as a Batson challenge.

My hope is that HCCLA will ultimately beg to differ on that particular issue.

So Mark, I (and everybody else who worked with you) wish you the best of luck over on the National Level. I assume we'll see the bow-tie trend taking over the Federal Courthouse in no time. Even if your fashion sense was a little off, you are a great prosecutor and you'll continue to be one no matter where you are.

And to Patsy and the rest of the Gang Who Couldn't Shoot Straight, I hope at some point you all will sit down and realize what a tremendous screw up you have made in running off a dedicated public servant like Mark Donnelly. You showed your asses on that move back in March and now you're paying for it.

The citizens of Harris County were lucky that he stuck around as long as he did.

Sunday, October 25, 2009

Brady & Over-Reliance on an Open File

Prosecutors and Defense Attorneys alike were buzzing about on Friday afternoon, discussing the hearing in the 180th District Court over whether or not prosecutor Denise Oncken had wilfully withheld Brady information on a Sexual Assault of a Child case. At issue was whether or not the head of the District Attorney's Child Abuse Division had failed to notify defense attorneys Bill Stradley and Lisa Andrews that the child victim in the case had initially stated she had been sexually assaulted by a black man when the Defendant in the case was white.

As noted in Brian Rogers' article, Judge Van Culp ruled that the exculpatory evidence had indeed been withheld, but since it had been discovered before the trial was over, the error was harmless and therefore no mistrial would be granted. That's a good thing for the District Attorney's Office because if a mistrial had been granted due to prosecutorial misconduct, Glen Kahlden (the Defendant) would be a free man. The State would have been barred from retrying the case.

But this may have been a case of winning a battle and losing a war for the D.A.'s Office, because in Judge Culp's finding, he officially acknowledged that the Office had committed the most unpardonable of sins that a prosecutorial agency can commit -- they had withheld evidence that pointed towards a Defendant's innocence.

And although the act of a Brady violation is most definitely inexcusable, it is usually explainable on how it happened. (NOTE: Before people start jumping on me for my phraseology on this sentence, please read it more closely.)

The Defense Bar loves nothing more than to loudly announce that prosecutors withhold Brady information all the time. In their mind, they picture prosecutors sitting in their office, twirling their moustaches like Snidely Whiplash and gleefully giggling "The DNA completely exonerates this guy, but I'll never tell his lawyer!"

That's a bunch of crap.

But where prosecutors can often find themselves in trouble is not doing their Due Diligence in going through their files and making sure that they themselves are aware of the Brady information. Although they have been told time and time again that their duty under Brady extends to being responsible for the actions of the police agency and any other representative of the State, they are often normally more than content to rely on just what's in the file.

In fact, the standard response of a prosecutor to most accusations of a Brady violation is to say "Well Judge, I've maintained an open file policy and the defense attorneys were always welcome to come look at it. That information was in there."

I'm keenly aware of that explanation, because that's what I did as a prosecutor. I kept a wide open file that was available to the defense even after trial had begun. I rarely, if ever, had a work product file that I wouldn't share with the Defense. If a defense attorney didn't know about something in that file, it was his own damn fault for not looking closely enough at it, right?

The short answer to that is "maybe". That's the lazy method of complying with Brady and it's one that is utilized because of the massive case loads that all prosecutors carry. The problem arises when (as in Denise Oncken's situation) there is something not readily visible by just having an Open File, because it isn't written in the offense report. Although I wasn't at the hearing, my understanding is that the information about the initial outcry describing a black assailant was in a taped statement. Furthermore, the investigating officer admitted to intentionally not writing it down in the offense report. Theoretically, the information was available and out there, but nobody had pointed it out to Stradley and Andrews.

And let me just editorialize about Bill Stradley and Lisa Andrews real quick. These are two outstanding attorneys with excellent reputations for their trial skills and work ethic. They are also extremely diplomatic in dealing with the prosecution. There is no way in hell that they just somehow "missed" that exculpatory evidence. If they were unaware of it as trial began, it was not going to be because they didn't do their homework. They would have never made an accusation of a Brady violation lightly.

But this does not mean that Denise Oncken needs to be vilified over this. I would imagine that her failure to turn over the evidence on this case was more based on a lack of Due Diligence than it was on Snidely Whiplash-esque behavior.

But that doesn't make it any less wrong.

While I'm sure that Lykos and Leitner are already in the midst of their latest knee-jerk reaction to this debacle, I would encourage them to take a step back and think before they react to it. I know that isn't really their style and they are probably already plotting to have Oncken executed on the courthouse lawn, but what they really need to be doing is formulating a well-reasoned way of ensuring this doesn't happen again.

Here's my two cents (for what it's worth):

1. If the Lykos Administration has done anything positive, it has been in the way of sharing information on cases. The step of giving the defense copies of the offense report was huge. I would suggest that they expand on this a bit. In addition to giving copies of the offense reports to the defense, also provide copies of all recorded statements, crime scene videos, photographs and reports. Keep in play all the same rules as you do for the offense reports, and you'll be protected.
I know that the defense bar isn't entitled to copies of these things under the Rules of Evidence, but we weren't entitled to the offense reports either. That policy has worked well, and this one can too.

2. In dealing with the statements of child victims, I know that these statements can't be turned over to the defense bar, nor should they be. You can cover yourself under Brady by having a standard form that basically is addressed to Defense Counsel, listing all taped interviews of child witnesses that are in the possession of the State and telling them that they are available for viewing. Have a form for Defense Counsel to sign.

3. Keep track of what supplement number had been reached when the offense report was turned over to defense counsel. Make sure that when a case gets set for trial that no new supplements have been added.

4. Keep a checklist. Have an itemized list of everything that has been turned over to the Defense and make sure it has everything on it a Defense Attorney could possibly ask for.

5. Pat Lykos needs to issue a blanket statement to all law enforcement personnel in Harris County that they have a duty to include all of their information in their offense reports. If they have information that needs to be kept confidential from the defense than they need to call the prosecutors on that case immediately. It's a policy statement that needs to be made and carried out if she is going to protect her prosecutors.

I'm sure there are some more things that can be done, and if you've got some ideas, let's hear them.

Friday, October 23, 2009

The Not Ready for Prime Time Player

It's tough being one of the spokespeople for the Gang Who Couldn't Shoot Straight.

Your boss doesn't understand the law and good policy making. You don't understand your boss.

You have to go on camera and defend what your boss is doing.

It's kind of like the Perfect Storm -- just ask Jim Leitner, who found himself in front of Channel 13's Ted Oberg this week to answer some questions about the District Attorney's new policy of reviewing vehicle fatality cases. The problem is that (as I pointed out in this post) there doesn't seem to be any guidelines for what cases make the grade for Pat Lykos and crew and what cases don't.

So, poor Jim Leitner was pretty much a deer in the headlights when Ted Oberg came a calling for an explanation on the cases. Bless his heart, Jim didn't even make it past "State your name" before he apparently decided to bail out on the interview. Clearly violating the Office's earlier motto of "Look Good, Think Smart, and Win!" by spontaneously changing it to "Look Foolish, Don't Think and Run Away!"

Now that's the kind of leadership I'm looking for in my D.A.'s Office!

In Jim's absence, Oberg turned to my anarchist, former-HCCLA President and defense attorney buddy Mark Bennett to explain how the D.A.'s Office should be run.

That's just awesome. Does the term "fox running the hen house" come to anybody else's mind? See what happens when you don't know what you're doing, Gang?

To catch Jim in all his glory during the "non-interview", click here.

In the meantime, Jim's response to Ted Oberg reminds me of the Knights of the Holy Grail's response to the Killer Bunny in this old movie favorite.

Wednesday, October 21, 2009

Ghosts of Cases Past

Something that occasionally arises when you are a former or current Assistant District Attorney is the scenario where you are out and about in town and get flagged down by someone who recognizes you. I'm not talking about somebody that recognizes you from the TV or the newspaper, but recognizes you from a case that you worked on that involved them.

When a current or former prosecutor gets the question "Aren't you a D.A.?", one thing flashes through your mind very quickly -- "Does this person love me or hate me?"

Odds are that if you are encountering someone you once prosecuted or one of their family members, you could be dealing with a potentially dangerous situation (depending on the outcome of the case). Luckily, this situation has yet to happen me.

But if you are seeing someone who you had as a victim or a witness on a case, the results can usually be very pleasant, or in some cases pretty funny.

Coming back from lunch today, I was flagged down by a guy that I didn't recognize who asked me "Aren't you a D.A.?"

After running through a couple of names and the facts of the case, I realized he had been the victim on an aggravated assault case that I had used during the punishment phase on a case back in 2001. The defendant on the case had ultimately gotten 60 years.

I told him that I was the prosecutor on his case, and he nodded, very satisfied with his own memory.

"I thought so," he said. "But it's been awhile back, and you've put on some weight."

Um, thanks.

Gotta love the life of a (former) public servant.

Monday, October 19, 2009

A Tale of Two Cases

A couple of years ago, under the Chuck Rosenthal Administration, a specialized "team" was created that was specifically designed to assist in the investigation of automobile fatality cases -- those involving alcohol and otherwise. The group of prosecutors, under the leadership of Warren Diepraam, was called the Vehicular Assault Team (or VAT) for short. (NOTE: Personally, I found the alternative of Fatality Accident Review Team to be more appropriate only because of the acronym it created, but my idea never "officially" caught on).

Prosecutors would be sent out to make the scene of auto fatalities to advise and assist the police officers as they were investigating the case. Although it may seem like an automobile fatality case would be a relatively simple one to investigate, nothing could be further from the truth. The assistance of prosecutors was something that could definitely be used in the drafting of warrants and making charging decisions at the scene.

The team soon generated a little bit of controversy when the investigation of non-alcohol related fatalities were resulting in the filing of criminal charges (usually felonies). The most high profile of these being the case of a school bus driver who was charged with a manslaughter charge after accidentally running over a young student in a cross-walk. The bus driver was ultimately acquitted by a jury, but the outrage amongst the Defense Bar over charges being filed in the first place was very vocal.

The Defense Bar argued that not every accident that results in a fatality needs to be filed on as a felony criminal charge.

I couldn't agree more. Not every accident does.

But some accidents are caused by such negligent or reckless behavior that they do actually deserve charges being filed and a jury to decide what happens.

The trick becomes determining the fine line between tragedies and criminal acts.

Within the past two or three weeks, there have been some interesting developments within the VAT Team that make me wonder just who is making the judgment calls on that line.

Take for instance, the case of Jeri Montgomery, the 24-year-old lady who was convicted last month of criminally negligent homicide for causing a fatality while talking on her cell phone, and subsequently sentenced to 30 days in jail as a condition of her probation. We all know that talking on the cell phone (or God forbid texting) while driving is dangerous. But it isn't illegal (yet) and it doesn't make a driver Charles Manson.

However, a jury found the evidence presented by prosecutor Brent Mayr to be compelling enough to return a guilty verdict. A few days later, your friend and mine Pat Lykos was not just standing by the verdict, but doing a little name-calling on the side. According to Patsy, Miss Montgomery wasn't just a crook, but a "selfish and narcissistic" one at that. (NOTE: By the way Pat, isn't that a little "Pot calling Kettle" with the name-calling?)

Now, compare the Montgomery case to the case of Sergio Jiminez Gonzalez that this article is describing. Here Pat Lykos' gang didn't just dismiss any old case -- they dismissed a case where the Defendant had already pled guilty. For those of you who don't deal with criminal law, we aren't talking about a pending case where the prosecutors decide they can't prove it and then dismiss it. We are talking about a completely finished case where a defendant has accepted responsibility and admitted to the criminal charges leveled against him. By pleading guilty, the right to appeal is typically waived.

But here, the Lykos Administration resurrected the case just long enough to dismiss it, which astounds me.

While Miss Montgomery's talking on the cell phone got her a conviction and some nasty names from the D.A.'s Office, apparently the fact Mr. Gonzalez killed not one, but two people (who were leaving church) while speeding in a tow truck, and had cocaine metabolite in his system was somehow less egregious.

In the meantime, the Lykos Administration has been having Special Crimes Bureau Chief Joni Vollman go through the pending cases of vehicular fatalities and there has been some dismissing of cases going on. I'm not necessarily criticizing this, but I am pretty curious to know the criteria for who gets the dismissal form and who gets called "selfish and narcissistic". There seems to be a sudden and drastic lack of consistency going on, if you ask me.

The Defense Bar is applauding the new move towards dismissing these cases, but at some point you have to ask yourself if you have self-admitted anarchist Mark Bennett applauding the D.A.'s Office for the job they are doing isn't that a little concerning? I mean, seriously, when was the last time we saw my friend Mark applauding the D.A.'s Office for a nice Life sentence? Just kidding, Mark.

It doesn't make much sense. Or does it?

Lykos is well-known for seeking out publicity and loves nothing more than adoration from the media. With the current backlash against those drivers talking and texting on cell phones, perhaps she felt that she could play that to her advantage.

Or then again, maybe at her age, the new technology of cell phones just scares her.

Wednesday, October 14, 2009

Absence from the Keyboard

I've gotten a couple of complaints about my lack of posting lately.

And by "a couple", I mean two. Thanks to Feroz and Kiatta for your enthusiasm towards the blog.

I actually sat down and started writing a new post on Monday, but then a family medical emergency sprung up and I had to head to out of town ASAP.

I'll get around to typing up something new soon. Anybody got any proposed topics?

Tuesday, October 6, 2009

Lise Olsen's Weekend Article

In the participation with the Chronicle's latest zealous campaign for a Public Defender's Office (which has already been approved), writer Lise Olsen assisted with this article over the weekend talking about indigent defendants spending inordinate amounts of time in jail. As usual, the Chronicle is missing their mark on the cause of the over-lengthy stays, but in this case, Ms. Olsen seems to have gone really overboard with some mischaracterizations and outright inaccuracies throughout her story.

The first problem with her article is that it flat out just misses the boat. If the Chron was looking for why Defendants remain in jail for so long they can blame one main factor -- the enormous caseload of pending cases in each and every court in Harris County. It's been awhile since I last looked at the actual case counts for the individual courts, but before I left the D.A.'s Office, most courts were running between 900 to 1000 cases pending, on average. When you start dividing that up to how many cases can be on a daily docket, you start to realize that the average setting for each case is probably going to be at a minimum of one month intervals.

In other words, a Defendant is only going to get his or her turn to go to court about once a month. If the case isn't resolved on that date, they are normally going to be waiting for another month for something to change with their case. The reasons for a case not being resolved on a setting can range from a flat-out assertion of innocence to something as simple as a prosecutor not being able to reach a Complainant yet.

If a case is headed to trial, a Defendant is typically in for a good wait of anywhere from 9 months to 1 year (or more) before they get their day in court. If they can't afford to bond out, they are going to be sitting in jail. A court can only try one case at a time. Some courts try two cases a week, but the vast majority only have time for one a week. If you are keeping up with the math at home, this means (at the most), each court can try between 50 to (ballpark figure) 70 cases a year under the most ideal circumstances.

That isn't going to happen. So, when cases set for trial start hitting about 100 in the courts, you are going to have Defendants cooling their heels for awhile.

But according to Ms. Olsen and the Chronicle, rather than try to get more money and approval for more courts, the answer is a Public Defender's Office -- because dammit, those attorneys taking appointments right now just aren't getting the job done.

Um, okay. Let's look at some of the things that Ms. Olsen erroneously asserts in her article:

1. "None of the lawyers are routinely required to document the hours or provide details on how much they worked on each case" -- Oh really? Because the last I looked there was a form that had to be filled out for all out of court hours done by an appointed attorney on a defendant's case. An attorney has to keep up with that if he wants to get paid for the work he has done. Whether it be legal research, talking to witnesses, or jail visits, they all have to be documented before the case is disposed of and the attorney is paid.

And guess what! Attorneys do like to get paid.

And by the way, a Public Defender's Office would alleviate this how, exactly?

2. "Harris County's court-appointed indigent defense attorneys often are paid a flat daily rate regardless of how much time they spend on cases in or out of court." -- That's just a flat out load of crap. I don't know who Ms. Olsen was talking to, but she got some bad information. It is true that an appointed attorney does get a flat fee when they are working a Term Assignment (aka Attorney of the Day/Week) and that there is a set fee for appearances in court, but there is absolutely an amount where attorneys are paid for their out of court hours.

Again, don't you anticipate that the individual Public Defender's are going to be paid a flat salary? If so, there will be even less incentive for them to document their out of court hours.

3. "The bills don't usually provide details on the hours worked, with the exception being capital cases." -- Seriously, Ms. Olsen, where are you getting this information from? You couldn't be more incorrect. On every appointed case that I have handled, it has been documented on all billing what I've done on the case.

4. "Any poor defendant with complaints about a lawyer generally must appeal to the same judge who appointed him or her." -- Yep, they can certainly start out with complaining to the judge and asking for a new lawyer. And judges will listen. But they typically won't remove an defense attorney just because the attorney can't get the defendant the exact deal they wanted. It isn't unusual for attorneys and their clients to butt heads, but if a defense attorney's representation is really egregious, the Judge of the court isn't the only person they can complain to. There's this little-known organization called the State Bar . . .

And once again, I ask the question, how does a public defender's office help this? A judge can remove an attorney from a case if he or she appointed them. Do you really think they will be able to do the same for a public defender who is actually assigned to the case?

I'm in complete agreement with what Judge Michael McSpadden said about the topic in the article: "The people who think the public defender system is going to cure all ills in our system are crazy."

He's absolutely right.

I wonder if the Chronicle has thought that part out yet, while they are busy revamping the criminal justice system.

There are some other things that can be done to alleviate the amount of defendants who are languishing in the Harris County Jail, including revamping the bond schedule. I've got a few thoughts on that, as well, but I'll save them for another post. In the meantime, maybe the folks over at the Chronicle ought to be spending more time working on how to boost sales revenue rather than sponsoring an ill-written and poorly researched article like Ms. Olsen's.

Tuesday, September 29, 2009

After Over a Month of Careful Consideration . . .

The long awaited "Move Memo" from the 6th Floor at the D.A.'s Office finally arrived over the weekend. Now, keeping in mind that the Division Chief who retired (which caused the need for the Moves in the first place) has been gone for almost two months now, it boggles my mind that Lykos and the Gang Who Couldn't Shoot Straight really needed all that time.

But, the good news for prosecutors is that the Move Memo has now finally arrived.

The bad news is that Lykos, Bridgwater and Jimmy apparently drafted it over a few too many Jack and Cokes at the TDCAA Seminar in Corpus.

Here are some of the highlights comings from this brilliantly crafted document:

1. Marc Brown was promoted to Division Chief of Grand Jury. That's good news, because Marc had been quite an excellent Division Chief prior to the Lykos Administration. They had decided to demote him to a regular Chief because of political reasons when they took over. Good to see that they came to their senses and put him back at a level he earned and deserves. The downside to that is that Marc is one of the most brilliant minds in the Office when it comes to Search and Seizure issues and drafting Search Warrants. His mind is going to turn to mush in the Grand Jury Division from lack of use.
Seriously Gang, you aren't utilizing one of your skill players in the appropriate position. You did good by making him a Division Chief again, but you need to get him in a place where he's putting his mind to work.

2. Kari Allen is being moved to Special Crimes. That's good news for the longtime veteran, and she'll do great in that job. The downside is that the Gang apparently forgot to replace her. So, the 338th is currently without a chief.

3. Katie Warren is being moved to Family Violence. Katie is a very skilled trial lawyer and she'll do great in the Family Violence Division, which is filled with tough cases and recanting complainants. The downside is that the Gang forgot to replace her, as well. So the 263rd is going to be running a bit short in their staffing without a Felony Two in that court.

4. Jen Falk is going to the 338th as a "Co-2". Jen is also a rising star in the Trial Bureau with very strong trial skills. She will be joining David Nachtigall as a Felony Two in the 338th. So, by my count, that leaves no chief in the 338th, no Two in the 263rd, but now two "Twos" in the 338th. I have nothing to add to this, other than WTF??

5. All moves are effective Immediately. Wow. Although Move Memos have always been notoriously made at the last minute, the worst I ever recall was being informed on a Friday that I was going to be in a new court the following Monday. I thought that was bad. This memo is dated on Monday, September 28, 2009, and states the moves are to take place "Immediately".

What does that mean exactly? Drop everything and proceed directly to your nearest court like a warped game of Musical Chairs? Seriously? The nimwits on the 6th Floor took two months to devise the moves, and now they wanted it in full effect instantaneously? You've got to be kidding me.

Good job, Gang! Y'all really did a bang up job this time.

Next time you may want to try putting all of your prosecutors' names on pieces of paper and then have chimpanzees stick the the names on a flow chart.

That would probably make more sense.

And it certainly wouldn't take two months.