"It doesn't matter if you win or lose. It's how good you looked!" - David Lee Roth
Despite the fact that District Attorney Pat Lykos campaigned partially on the platform that there would no longer be any "counting scalps" under her promised regime, it appears that she and the Gang have backed off of that promise in regards to how the Misdemeanor Division is being run.
A month or so ago, Jim Leitner got to eat some, uh, crow, over the Office's new "whale policy", which dictated that misdemeanor prosecutors were to find a no-lose case and refuse to plead it, thus ensuring a trial victory. The motivation behind this quickly-retracted policy was to boost the winning stats coming out of the Misdemeanor Division. The idea was stupid from get-go. If a case could work out to a reasonable resolution, isn't it a bit unethical to be selectively prosecuting cases more aggressively just because it is a weak case for the defense?
It seems to me that this policy was nothing more than institutionalized bullying for the sake of making Pat Lykos, um, I mean the Office look successful.
Having now backed off this beyond-stupid policy, the upper Admin has now let the Baby Prosecutors in Misdemeanor know that Big Brother is now carefully watching them. Well, not actually watching the individual prosecutors, actually, but watching their statistics, which is the only thing that seems to matter to them.
I cannot stress enough how idiotic and dangerous it is to have a District Attorney who is now being governed solely by statistics. When prosecutors start having to look at cases based on percentages and statistics rather than on a "case by case" basis, everybody involved is going to get screwed.
Misdemeanor prosecutors have now been informed that promotions are going to be based primarily on their win/loss ratio.
The side effects of this are horribly damaging.
As I've mentioned before, the Office always has had a good ladder structure of promotions. Rookie prosecutors don't get to try a murder on their first day at work. They start off low, sometimes even in the Justice of the Peace Courts trying traffic ticket cases. They then progress gradually upwards toward the more serious cases.
In the past, this structure has allowed prosecutors to develop familiarity with the Rules of Evidence, case law, and trial skills without an enormous amount of pressure that they might be accidentally freeing Charles Manson in trial. Prior administrations had a good mentoring system and open doors of their supervisors for advice. If a Misdemeanor Prosecutor lost a "no test/no accident" DWI case, they didn't spend a month's worth of sleepless nights wondering "My God, what have I done?".
It was all part of the education process of training good prosecutors, and it worked out well. Mistakes were made and learned from. Trust me, if I learned from all of my trial mistakes in Misdemeanor, I would have qualified for MENSA by the time I started trying serious felony cases.
But more importantly, what I gained from growing up as a prosecutor in the Misdemeanor Division was an absolute infatuation with being in trial. I mean, I freaking LOVE being in trial. I didn't have associated stress with what my statistics were. I wasn't afraid of getting in trouble for a "Not Guilty", and I ended up having no fear of losing a tough case. The support network there let me know that if I went into trial and tried my hardest and left everything I had out on the Battlefield, then I did my job.
And because of that, I loved my job. So did most of the other prosecutors that I worked with back then.
An added bonus of having no fear of trial was that if you had a case that you didn't think could or should be tried, you knew that when you talked to a supervisor about dismissing it, they would take your concerns seriously. There wasn't an underlying concern that "well, this prosecutor seems to only want to try the 'whale cases'."
I heard from a Misdemeanor prosecutor the other day who said that the Misdemeanor Division now has an official slogan of "Look Good, Think Smart and Win!". As this prosecutor aptly told me, "Quite frankly, many of us feel that if we really must have a motto, it should be something along the lines of 'Do the right thing'."
I couldn't agree more.
Placing an emphasis on "winning at all costs" is never a good idea, but it is even more damaging in the Misdemeanor Division. If Lykos and the Gang Who Couldn't Shoot Straight are going to keep up with this policy, not only are they going to run off some excellent future felony prosecutors, they are going to be committing some serious injustice.
A Baby Prosecutor's win-loss ratio is no indicator of what kind of felony prosecutor they are going to be. Legend has it that Kelly Siegler lost her first 8 misdemeanor trials. On the converse side, I knew a prosecutor who claimed to have never lost a Justice of the Peace trial, yet he somehow couldn't manage to win a felony case if his life depended upon it.
My advice to Baby Prosecutors is simple.
Screw the Administration. Go out there and try your cases with all your heart and learn to love the profession that you went to law school to join. Good chiefs will back you up on your valiant efforts, even if you get the "two word verdict" at the end of the day. You didn't join the Harris County D.A.'s Office to make Lykos look good, despite the mandatory CLEs that she sends you to. You joined it to be prosecutors. Real prosecutors. Not the kind that wanted to be bureaucratic dweebs like the Gang Who Couldn't Shoot Straight.
"Look Good, Think Smart, and Win!" might look nice on a cookie cake, but at the end of the day "doing the right thing" is something that you will carry with you forever.