Monday, April 6, 2009

A Letter to Pat Lykos

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

Patricia Lykos
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.



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!


Arthur Seaton said...

It will never be read by the party intended to read it.

Anonymous said...

Wow. Well said. Letter to the editor? Throw into the mix the fact that the office is totally confused by Jim and Pat's "positions" on several issues and you have a good ole fashioned cluster at the CJC.

Anonymous said...

Here here!

Anonymous said...

Calvin was always a class act.

Anonymous said...

One problem:

Several of the black jurors the State struck were never asked any questions. Hence, they were stricken on the basis of racial stereotypes.

Hmmm, can someone explain to me the difference between being "racist" and "acting on racial stereotypes?"

Anonymous said...

That was awesome!!!! Calvin has always been a wonderful person. It is so nice to have the old guard sticking up for the DAs. Not that anyone believes The Troll will pay a bit of attention to it. Calvin - YOU ROCK!!!

Anonymous said...

Unfortunately, she will never read this letter. If she did, she would try to find another prosecutor to take her anger out on. I only hope that she is voted out of office in 2012 and that we can recover from her disaster quickly.

A Harris County Lawyer said...

Anon 8:53,
Just playing Devil's Advocate here, because I haven't read the transcript (yet), but let's say one of the juror's struck had put on their brief questionnaire that they had not finished high school nor taken the GED.
Would lack of education be a race neutral reason for striking them?
Would they need to be asked any questions to determine that if they had already put it on their information sheet?
And while a juror may not have been specifically asked a question, are you certain that there weren't questions posed to the entire panel that they didn't answer?
I don't know whether they did or not, but it is something to consider.

Anonymous said...


Please reference "rule of law" for my reply.


Anonymous said...

You Who Wronged

You who wronged a simple man
Bursting into laughter at the crime,
And kept a pack of fools around you
To mix good and evil, to blur the line,

Though everyone bowed down before you,
Saying virtue and wisdom lit your way,
Striking gold medals in your honor,
Glad to have survived another day,

Do not feel safe. The poet remembers.
You can kill one, but another is born.
The words are written down, the deed, the date.

And you'd have done better with a winter dawn,
A rope, and a branch bowed beneath your weight.

Czeslaw Milosz
Translated by Richard Lourie :~)

jigmeister said...

I certainly agree with you Calvin. However, your letter contained some optimism that I don’t share. I don’t think that Lykos can change her spots. While on the bench, as I am painfully personally aware, she often made decisions without regard to the facts; and as you recall, she had to retract those decisions. She is a prisoner of her personality as we all are. Unfortunately, her Machiavellian personality forces her to exercise power for the purpose of making herself look good, without regard to what’s right or who she hurts along the way. Your prediction of nine years ago had no chance of being wrong.

I also think though that some of the difficulties that the office is now facing were inevitable. Philosophy of crime and punishment has changed. No longer do the majority of average citizen jurors believe that being tough on crime is a valid method of preserving public order. Because of that, selecting a jury is a land mine for those who wear the not so white hats. We have seen this cycle before in the 70’s and 80’s. Remember when the average life sentence was paroled in 7 years. The recitivism rate was out of control. Crime became so bad that public perceptions changed and being tough on crime became politically correct again.

That makes it imperative that the office be managed well in order to adapt to today’s political climate in recruiting, retaining and developing a professional staff. Pat Lykos is eminently unqualified for that task. Sorry to be so pessimistic, but the boat is leaking and the pump is busted. I hope not too many go down with the captain.

Anonymous said...

"These two prosecutors were merely doing their job, apparently believing,...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."

Not to quibble, for I do believe that Ms. Lykos' actions in addressing her staff in a public venue was highly inappropriate, but does the prosecutor's office actually try cases that they believe do NOT support a guilty finding? Say it ain't so, Joe!

And as for your uneducated jurist, it only applies if the prosecutor also would have excused an uneducated non-minority member from the same jury or a juror from a similar case...and that is explainable to the court, by the way. Not just say it as an excuse to circumvent Batson, but to actually believe it and do it. And that's not "lawyering"; that's serving justice, whatever Calvin may think. Batson exists because of the abuse of discretion of some DAs. They forgot, I'm afraid, to serve justice first but instead were serving their own agendas. I'm not referring to either of the attorneys involved in this fiasco but only what I believe drove Batson and that attitude, I suspect, is reflected in Calvin's attitude toward the original decision. Calvin is correct regarding the two ADAs being thrown under a bus and future ADAs being on the horns of a dilemma but he is wrong regarding any issue of practicality regarding Batson. If you are lying about your real reason for excusing a minority juror so as to circumvent Batson, you are wrong, you know it and you shouldn't be doing it. If it's legit, the judge can deal with it. :~)

Anonymous said...

Murray, Anon 11:07's poetry is good enough for a blog entry.

Anonymous said...

BRAVO Calvin! A little heavy on the Batson fundamentals but strong on Crazy Pat's total lack of leadership ability. The troll sure as heck ain't JBH. Class and common sense will always trump narcissistic troll-like behavior.

Unfortunately the Jigmeister's assessment will prove correct well before the troll and her little bitch Jimmy's removal in 2012. There won't be an ADA with integrity AND ability left by 2010.

Brian Rogers hides behind the mask of political correctness to cover his cowardliness. He is simply a pussy as are most of his remaining colleagues still holding on to employment at the Chronicle by a let's not expect any truth about the corruption at the HCDAO to be actually published by that crew.
The Chronicle's agenda is to dismantle the DA's office....the question is: Which fiefdom will fold 1st? I would like to see Pat "Queen in her own mind" Lykos and Jeff "King of the Tabloids" Cohen engage in an old fashioned duel to the death with mega high voltage tasers.

Anonymous said...

Calvin the Prophet,
I'm afraid Ms Lykos has confused lawyering with loitering and administrative leadership with arbitrary mismanagement.
In fulfillment of another prophecy I am quitting this month.
Thank you for continuing to care....I just can't anymore.

R-E-S-P-E-C-T said...

Hey Trish the Troll,
Aretha Franklin sure as hell wasn't thinking of you.

Anonymous said...

Anon 1:48 I am not far behind you. The only thing that could change my mind is if Pat were to quit and take her cronies with her. It would be too much to ask. I am afraid they are immune to any criticism because everyone else is wrong and lord forbid they would ask anyone with a different opinion. They don't want anyone to advise them. They are simply blind in their arrogance.

Anonymous said...

Well said Calvin. Youa re another example of what a true leader and supervisor is supposed to be. Lykos could learn a thing or two from you.

- A former Harris Co. ADA

Anonymous said...

Calvin missed the training where we were given the OREO COOKIE training. If you really believe we were not taught to strike minorities, then you still believe in the tooth fairy.Ask some of the old time prosecutors what they were told to do. Lets get real.

baby prosecutor said...

Anons 1:48 and 2:34:
I may only be a "baby prosecutor" but I sure didn't sign up for this and I don't want to grow old in such a bad environment.
The cops I play ball with are in total disbelief as to how fast and bad things have gotten in our office.
I always wanted to work in Special Crimes before our new bosses destroyed it. I thought that was my calling. I wanted to be as good as Kelly Siegler. It's not just me, none of my buddies really want to work here anymore. What's the point anyway with Mr. Leitner's unrealistic new voir dire mandate and Judge Lykos' odd leadership and anger issues? I can't lie to my witnesses, my victims or myself just to play along as if this was some kind of weird survival game.
I'm very sad to have to leave what was once was a really great place to be a part of; but to stay at what it has become would be even sadder.
To those that stay I wish you all the best and I will deeply miss working with you guys--it was a great honor and privilege for me.

Kohl said...

Anonymous 4:34

Grow some balls why don't you. Your going to make a claim that racism was fostered or taught in that office put your name out there instead of hiding behind "anonymous". People like you who claim something as hideous and incendiary as institutional racism NEVER have the GUTS to identify themselves. They just want to stir the pot but not be held accountable or required to put the proof out there. I'd be willing to bet if it was known who you were there'd be some credibility issues with you.

Rage Judicata said...

Come on now Murray, my last post can't have been too hard on your former ADA sensibilities.

Anonymous said...

Pat Lycos will never read Calvin's letter, but I am sure glad he wrote it.

When I worked for Johnny, there was such a sense of pride in being and ADA. I made so little money, but didn't care. I had a sense of pride an honor.

Never in a million years could I have imagined what would happen to this office. It's heartbreaking, really. There are many good people that still work there. Unfortunately, the new administration and many of the people they put in positions of power are sucking the life right out of them. I feel so bad for my friends. Come this Fall, when many of them vest, there will be a flood of resignation letters on the 6th floor, and that is just sad. The victims of crime deserve better than what they are getting.

Pat, you should be ashamed of yourself. How do you sleep at night?

A Harris County Lawyer said...

You and I have disagreed on many points on many occasions, but I give you my word that I did not get a comment from you that I didn't post.
If you want to send it again, I will post it, but I promise I didn't "edit" you.
Sometimes things do get lost in cyberspace. Take another shot at it.

CSB- A former prosecutor. said...

I too am a former prosecutor hired by Johnny Holmes (Calvin was on the executive hiring committee that agreed to hire me). Johnny and Calvin and the rest of that committee took a chance on me. I was from the east coast and had been educated at two very liberal schools. And as one of the members of the committee said, "You're going to law school in a state that doesn't even have the death penalty...what are you doing here."

It did not take me long to figure out exactly why I was at the DA's Office. It was there that I learned about justice, making tough decisions, standing up for victims, supporting your fellow prosecutors and cops, and most of all making sure "you don't get a darn fool result" (a Johnny Holmes saying). I grew up there...learning tough lessons from folks who made sacrifices (personal and financial) to see that justice was done and that the victim's voices were heard.

So today when I went to the CJC for the second time since Lykos took office, I was very sad. I was sad to walk by the old DA building and remember the honor and pride we all felt working there. I was sad to see and talk to current and former prosecutors who made such an impact in my life and that of others act and look so defeated and beat down.

It really is a travesty of justice what Lykos is doing. And as someone already commented, "It breaks my hear."

Anonymous said...

Thank you Calvin. I was hired when Mr. Holmes was the DA and I'm still an ADA. I cannot believe the downward spiral we are in. More than anything I want the old days back. Sadly, I don't see a way to get back there. There is however a strong and large group of people here that were raised up by Johnny and we are teaching the new ADAs Johnny's values and standards. We are refusing to compromise any of those standards even if it means we will be suspended, slandered or even fired by our current DA. I was taught by Johnny and ADAs like you, that the right thing is what you do - no matter how popular or unpopular the decision is. I will not allow a "damn fool result" and neither will any real ADAs at the office. Don't worry about Harris County. We are not going without a fight. Thanks for fighting with us.

Anonymous said...

My own prediction is Lykos will last one term only.

Calvin's remark about the Houston Chronicle's "rapidly diminishing readership" is dead center accurate. Today it's like reading the National Inquirer.

Rage Judicata said...

Oh man, if you only knew how hard it was to make this stuff up the first time, much less twice...

I just mentioned that the allusion to the altar is a bit rich for me. It is apropos, though, since Harris County Justice (tm) does have a decidedly Old Testament flair.

I also take issue with his claims that people were not trained to strike minorities. Calvin's statement that "prosecutors were not taught how to discriminate" is wordsmithing that would make Dick Cheney proud. I believe 100% that they were never told "here's how you discriminate." I do, however, believe that they were told "here's how to deal with a Batson challenge when you strike minorities" and that they were trained how to beat it in advance by making sure to get race-neutral reasons in advance. I've been told that they were by people who received the training. Anon 4:34 says they were as well. I don't believe that's racist, in fact, I believe it would have been absolutely irresponsible of the DA's office not to train their prosecutors on how to beat a Batson challenge. That's in part because you know defense lawyers are going to make them often whether there's a basis for it or not, but also because blacks historically have felt disenfranchised (this is well known--hell, that's why most of the people in Zion were minorities in the Matrix, even), and the real-world application of their distrust for police and the state is that they are less likely to convict. In civil trials where I am the defendant I strike US postal workers, teachers, union members, and minorities of the same ethnicity of the other party--all based on generalizations of those groups. I'll even go you one better, because not even all minorities get along with each other. If my client is black I strike Hispanics, and if Hispanic I strike blacks. Race is an important factor in the psychology of a jury. Taking that into account is not racist. Not taking it into account would damn-near be malpractice.

For a former Holmes prosecutor to say that Batson is bad law is expected, but exposes his bias and quite honestly, ignorance. Minorities couldn't even serve on a jury within the lifetime of many people reading this blog. I don't know how old Calvin is, but if he was alive during the Civil Rights era blacks weren't allowed to serve on a jury during his lifetime. His statements are either completely ignorant of our history, or callously indifferent to it. To protect their right to serve as well as a Defendant's right to a jury of his peers (that's in the Constitution, in case anyone wants to read up on it) had to be done because of the obvious abuses by prosecutors in the past. If Batson is bad law, it was only a reaction to their abuses. There is never a legal procedure that can satisfy both sides of an issue when it comes to protected classes, but history mandated that some procedure be devised. Batson was a reasonable effort at doing just that. And on top of that, it's easy as hell to beat so to claim that it's a burden or to draw Biblical allusions to prosecutors trying to do justice while at the same time trying to exclude minorities is a disgrace. I know prosecutors and plaintiff's lawyers think they're doing God's work, but to see it played out like that is absurd.

I suggest that Calvin stop taking himself quite so seriously and read up a bit on the history of race relations in America.

Note: This is in no way intended to be a defense of Lykos. What she did was patently stupid. And the judge may be the real culprit procedurally here, depending on what the transcripts show. If the reasons really were SUFFICIENTLY race neutral (that's a step overlooked by many--you can't just say something that isn't borne out by the questioning and patently subjective reasons like "he didn't look at me right or seem to respect me" have been declared as invalid race-neutral explanations), the judge made a mistake. If she didn't believe their race neutral reasons, then the prosecutors didn't do a good enough job. But I still don't believe there's any way in hell that they didn't know they used 70% of their strikes on blacks, and if they didn't, well, that really was stupid.

Hope you're able to post the transcripts. We'll know more then. As for your "uneducated" example--sure, something on a jury questionnaire can serve as a race-neutral reason. BUT--if it's not listed as a reason during the Batson hearing, it's not a valid reason. They have to have given that as a reason for striking them. Again, we'll know more when the transcripts are available.

Rage Judicata said...

"It breaks my hear."

I hear they have aids for that...

Anonymous said...

I may not have to kick your ass after all. Good post.

Michele Hartmann said...

To Rage Judicata:

You do a callous disservice to one of the most ethical, articulate and well-respected legal minds (on either side of the courtroom) in the state. By your own words, you don't know him and it would follow you've never worked for him, with him, opposed him as counsel (for the state OR the defense), or been a member of his family or church or friends. If you had you would know how absolutely foolish your words and "judgments" are. Further as you critique someone whom you don't know with ad hominem attacks, you freely confess to using race as a factor in your selection/deselection of venire members as an example of your (admirable??)lawyering skills. May I suggest that you look to the state of your own integrity, biases and ignorance, before attempting to assess the intelligence, character, integrity and heart of people you don't know.

Finally, I would encourage you to consider using your actual identity when you post; it would be a step in the right direction for purposes of displaying courage and conviction of one's words which can then be measured for accountability and credibility. Your chosen appellation merely serves as an endorsement to the ignorance, spitefulness and ill advised judgments that tend to follow.


Michele Hartmann,
Calvin's daughter

Anonymous said...

I have know Calvin for 34 years and have not always agreed with him but I have respected him. Well said Michele Hartmann and well written Calvin.

mother said...

Pat lykos how do you sleep at night? You should stay at home and bake cookies or something with your grandchildren.I think you have great experience in chopping people and throwing them down the garbage disposal(houston chronice). Not enough training in how to run an office, let alone the DA's office.