Former Bureau Chief of the Appellate Bureau under former-District Attorney Johnny Holmes, Calvin Hartmann, sent the following letter to Pat Lykos in response to the scandal she created regarding Mark Donnelly and Rifi Newaz and the Batson controversy. It is reprinted here with his permission.
March 30, 2009
District Attorney, Harris County Texas
Harris County Criminal Justice Center
1201 Franklin, Suite 600
Houston, Texas 77002
District Attorney Lykos:
Approximately nine years ago at a campaign debate between Chuck Rosenthal and yourself for the office of the Harris County District Attorney, being vacated by the retirement of John B. Holmes, Jr., I stated to you that if you were elected that it would lead to numerous departures of the professional staff and that you ultimately would destroy the employee morale in the office. In three short months following your election in November 2008 that prediction unfortunately has come to fruition. The purpose of this letter is twofold: 1) to educate you on what I will call “lawyering” in light of the fact that to my recollection you have never litigated a criminal case except as a “cop-out” lawyer in the early 1970’s and 2) to educate you on what a respected administrator does and does not do. Hopefully, you will take these constructive comments in the vein in which they are offered, that is to insure that the office over which you administer is able to employ and retain the best legal talent for the taxpayers and voters of Harris County – that only will occur, however, when those employees respect you in the manner that they did John B. Holmes, Jr.
There is an old adage among lawyers that bad facts make bad law. Undoubtedly the Supreme Court decision in Batson made bad law – bad law not from a philosophical, theoretical or equitable perspective, but from one of practicality, patently because lawyers are not race or gender blind (for sake of brevity these terms hereinafter will be referred as “minorities”). Although none of us are born into this world with biases and prejudices, these attitudes are instilled in us as the result of personal experiences and societal and environmental factors. Setting aside all of the laudable goals and objectives mandated by Batson the rationale underlying the decision is predicated upon a logical fallacy, namely that the exclusion of minorities from a jury panel is prima facie evidence of blatant discrimination.
This rationale immediately has a chilling effect on the questioner, and is difficult to harmonize with the real world of advocacy, to which you were never seemingly exposed, since when all the high principles and accolades are given their due, the primary
objective of one in voir dire is to seat a jury that is biased and prejudiced in your client’s favor and adverse to that of your adversary. Unfortunately the victim or the complaining party (the State) in a criminal case is not entitled to Due Process, but the accused, in practice, can select a jury employing discriminatory calculus with little or no consequence. The Texas Legislature has provided the mechanics, that is essentially the three stage process for Batson scrutiny in TEX.CODE CRIM PROC., art. 35.261. Little would be gainsaid except to direct you to that provision for your further education.
At first blush the prosecutor is cast upon the horns of dilemma, since to strike minorities would automatically expose one to a claim of invidious discrimination, and a prima facie violation of Batson in every case. Moreover, it again ostensibly would lead to an assertion by you that the prosecutor was incompetent and negligent without a regard to the facts. It is suggested, however to the contrary, that a prosecutor would be incompetent and negligent to intentionally fail to strike minorities if their responses during voir dire in any wise suggested a potential juror displaying a bias and prejudice in your adversary’s favor, merely to preclude or survive a Batson challenge.
Contrary to myth popularized by members of the defense bar, during my fifteen plus year tenure as the training coordinator for the District Attorney’s Office prosecutors were not taught techniques as to how to successfully discriminate against minorities in voir dire selection. What prosecutors were taught was the manner in which to address unsubstantiated or unfounded claims of invidious discrimination in voir dire such that it was clear to the trial court and ultimately to an appellate court, if there was a conviction, that the State of Texas had accorded the accused Due Process. There is no reason for the undersigned to believe that this policy and aspirations somehow have changed.
Based upon the information available to me, and most particularly the trial judge’s comments in chambers to the effect that the defense had failed to demonstrate a violation of Batson, but it “did not look right” for the minorities to have been excluded from the jury panel, we have now reached the position where you have thrown two well respected prosecutors by their peers under the proverbial bus ostensibly based solely on an effort to please those disciples of “political correctness.” These two prosecutors were merely doing their job, apparently believing, based upon information and responses of these minorities that to seat any one or more of them would result in a hung jury, if not an out right not guilty in a case in which the prosecutors patently believed supported a guilty finding. They were “lawyering”, a concept apparently unknown to you.
The most troubling aspect of this whole unfortunate scenario, however, is your ready willingness to air this matter in the press, exposing these prosecutors to public ridicule and hatred in some quarters, clearly for your own self aggrandizement and without a wit of concern to their future legal careers, whether within or outside the office. As stated earlier you have “thrown them under the bus.” Regardless of the facts, good administrators do not conduct their assessment of employees in the press; good administrators conduct administrative matters in private. Quite candidly one would wonder whether even bad ones would do otherwise. Therefore, it is difficult to discern where that places you. It is clear that this exercise was undertaken solely for the media in order to again attempt to please those people at the Chronicle and their rapidly diminishing readership as to what a politically correct prosecutor that you are. It is suggested that it demonstrates something else, however, namely that the voters made a terribly wrong decision in November 2008.
During your brief tenure in office you have amazingly proven two things not subject to conjecture, that is you are not a leader and that you are a blatant narcissist I worked for John B. Holmes, Jr., for twenty-three (23) years. John B. Holmes, Jr., intimidated the members of his staff, but that intimidation was born of respect, respect that he was fair and that he would not ask you to do something that he would not do. You likewise have intimidated the members of your staff, but that intimidation is born of fear, fear of unabated arbitrariness, fear of an ever expanding “1984 Orwell” atmosphere within the office.
One can only hope that there will remain some semblance of this once proud and respected office when the 2012 elections roll around.
CALVIN A. HARTMANN
cc: Honorable Mark Donnelly, Assistant District Attorney
Honorable Rifian Newaz, Assistant District Attorney
Brian Rogers, Houston Chronicle
Well said, Calvin. Much better than I could have!