"Counting Scalps" Revisited

Almost a year ago, as the Republican Primary was cranking into gear, Pat Lykos went before the Chronicle editorial board and said:

"We need a change in the leadership there. It shouldn't be about counting scalps [number of convictions]. It has to be about the rule of law and quality of justice."

Her implication was that prosecutors in the Harris County District Attorney's Office were just out for convictions and nothing else, which was something I strongly disagree with (both now and then). During last year's campaign, it was something that Lykos roundly criticized the D.A.'s Office for.

Now that she's taken over the helm on the 6th floor of the CJC, it looks like Pat has had a change of heart, and has decided it actually does matter what the Office conviction rate is. Prosecutors who suffer through the dreaded "two word verdict" (that would be a "Not Guilty" for those of y'all not in the Biz) are now required to do a "Post-Mortem" on what they could have done better to win the case. And they need to do it in written form.

Now, getting past the fact that Lykos has never tried a case as a prosecutor in her entire life, I suppose it could stand to reason that she is just trying to compile a list of "Trial Don'ts" in written form on the off chance that she decides to break out and try a DWI no test/no accident case or something. However, at some level, I would hope that she would realize the offensiveness of experienced trial prosecutors having to write down what they think they did "wrong" and turn it over to somebody who has never stood up in front of a jury and announced "The State is ready".

The bottom line is that no jury trial is a done deal, and that once there are twelve people in the box, almost anything can happen. Trials are fought hard on both sides, and a single juror can often defy the minds of eleven others.

One thing that both members of the prosecution and the defense have in common is that when you get an adverse verdict, it feels like a kick in the stomach. You feel like you didn't get your job done, and Lord forbid it happen on violent case, or a high profile one. The last thing you want to do after a verdict like that is to sit down and write up how you somehow screwed up. Sometimes juries just do crazy things.

During my career as a prosecutor, I lost one murder trial to a jury. It was a tough case against an excellent defense attorney (Eric Davis) and the facts centered around whether the Defendant's actions were self-defense. I was a Felony Two at the time, and I knew that the Office was making a promotion of somebody to Felony Chief that same day (and I was in the running). I lost my only murder case that day, and was informed later that afternoon that I had, in fact, made chief. (NOTE: Rosenthal actually went up to the courtroom to give me the news of my promotion, assuming I would be in the punishment phase of trial, only to find it empty. That was a cool feeling.)

The point of that semi-embarrassing story is that even though I lost a murder case, it wasn't held against me in any way. Experienced trial lawyers know that in any given trial the most bizarre outcome can occur, and the idea of having to do a memo on losing one is offensive. I will agree that if a prosecutor is losing virtually every case they go to trial on that some counseling might be in order, but having to do a memo for just one NG? That's insanity.

But, I guess in the long run, a "not guilty" makes Lykos feel like she looks bad, and she demands an explanation in writing.

Look who is "counting scalps" after all.