Thursday, May 7, 2009

"Look Good, Think Smart, and Win!"

"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.

41 comments:

Anonymous said...

You've really lost me on the anti-Lykos slant. Rosenthal was far more 'win at all costs' than Lykos ever will be. She is implementing new policies on jury selection and evidence disclosure, which ou and severa others have said will make it harder to win cases and will make Harris County less safe. Now you say the opposite, that she wants them to win at all costs.

Anonymous said...

Murray,
Doing the right thing verses doing what looks good is what distinguishes a good prosecutor from a good politician.
Lykos is merely a good politician.

Anonymous said...

this is yet another unethical policy. When a prosecutor gets promoted she gets paid more money. To base promotions on winning in trial is the same as paying prosecutors to win. It is not even ethical for defense attorneys to base their fees on whether or not they win at trial.
Prosecutors should not be tasked with winning as many trials as they possibly can , so as to get more money, their job is to do justice in each case. This could mean dismissing a case in mid trial, because the prosecutor learned something that made her feel that the defendant was not guilty. They should not be tempted to try to go forward and win because they need the money.
This policy also encourages prosecutors to only try easy to win cases, letting the guilty defendants (who have tough cases) go free or plead to super bargain deals becuase the ADA doesnt want to take a chance on losing and messing up her trial stats and thus earn less money.
This policy is as unethical as the batson policy and the illegal immigrant policy.

Anonymous said...

Well... it is better than "Look Bad, Think Stupid, and Lose!"

Anonymous said...

It's now clear that Pat Lykos was merely projecting when she unfairly condemned Kelly Siegler for her outstanding trial record by "Lykos labeling" Kelly's dedication to achieve justice at all costs by use of the misnomer "winning at all costs". Lykos' audacity to now personally and blatantly advocate a "win at all costs" policy at HCDAO for appearance sake at the expense of actual justice, is the height of arrogance, hypocrisy and deceipt.

jigmeister said...

Is there a written "prosector's discretion" yet? That might answer the question about what policies exist.

Anonymous said...

Anon 12:52,
You are trying to use logic to understand an idiot's perspective. Lykos wants to tie the ADAs hands and then demand a high scalp count. Anon 2:52 sums up the real Lykos "Look bad, Think Stupid and Lose". Saying you're a good prosecutor is not the same as being a good prosecutor. Look at Jim Leitner for confirmation on this issue.

Anonymous said...

Want misdemeanor prosecutors to "win" more? Teach them to not take shit cases at Intake and give them unfettered discretion (as most prosecutors have)to dismiss the awful cases that land on their desk. And have their back when they do so.

Anonymous said...

This goes back to leadership. Numbers are an easy cover for somebody who doesn't know what they are doing in terms of supervision.

Anonymous said...

"You look mavelous!"

Anonymous said...

There are NO written policies. That would leave a paper trail and create some form of accountability with management. It is my understanding that the only correspondence to the staff from Lykos in her entire tenure came last week in an email regarding swine flu. If nothing is written, you cannot be blamed for it. As for Anon 12:52, you don't have the slightest idea what you are talking about. Why don't you go have some Kool-Aid.

Anonymous said...

Anon 12 52 You are right. One day the blog is praising the new bunch and next day they are just the opposite. Whatever is going on it is better than the past people who were running the show. There still some Chuck hangoners ,but soon they will decide to move on and make up some poor excuse for leaving.

Anonymous said...

Un-freakin-believable! Many of the best ADAs had horrible win-loss records in misdemeanor. You learn from every trial, whether you win or lose. Promoting merely on win-loss record will make ADAs cut-throat and both victims and defendants will suffer because there is no justice for anyone with those rules.

Anonymous said...

I somewhat agree with Anon 12:52 but in a different regard.

Aren't some felony prosecutors (chiefs) obsessed with docket numbers? And wasn't this happening under the previous administration. How is the docket numbers race any different than this new misdemeanor policy? "We are under 700" is no different than a win/loss ratio. It's all about the numbers.

Anon 1:13,

And a good politician will get farther than a good prosecutor.

Anonymous said...

I do believe that a win/loss record should be part of a prosecutor's evaluation, but it should be down in the middle of the list. It does give an objective indication of trial ability, ability to evaluate a case and a willingness to walk the walk, not just talk the talk. However, it isn't the end all and be all. Really awful prosecutors win trials and really good ones loose trials. I agree that "do the right thing" should be the goal of every prosecutor, but there has to be some objective standard to evaluate prosecutors. Now what isn't acceptable is going out of the way to manipulate those numbers other than by making sure your people are doing their best and trying cases they believe are just. I have seen great prosecutors loose several in a row and ones that suck win several in a row despite themselves. The how to make subjective into objective has always been the ongoing dilemma. And Anon 12:52, Rosenthal was never win at all costs. I really don't think he cared that much what his employees did on a day to day basis. And I am NOT defending Rosenthal by that comment. I think it is much more fare to compare prosecutors as to how they performed under Magidson than Rosenthal.

Anonymous said...

I must agree with Anon. 12:52. I do not see a "win at all costs" directive in the motto. I see a directive to accept charges with discern, and prosecute those that can be proven "beyond a reasonable doubt." That IS doing "the right thing."

Anonymous said...

Anon 10:30,
When comparing a good prosecutor to a good politician some might agree with you that a good politician goes farther.
It all depends what road in life you choose to follow that defines your journey.
When honor, integrity and good character take a back seat to self aggrandizement then that was a bad ride.......even in a brand new Bentley Azure.

Anonymous said...

Hey 10:44,
Don't get me wrong Kenny Magidson was a nice enough guy and a helluvalot better than Lykos and the final years of Pickled Chuck; but you have to admit he was more of a babysitter than an actual leader. The DAs office needs a real LEADER who knows what the hell a prosecutor's job actually is and is more concerned with doing the right thing than covering his/her political ass.

A Harris County Lawyer said...

Anon 7:20 am,
Perhaps if you read the last two words of the slogan, you might be able to interpret the part about winning.

Anonymous said...

Anon 5:18,
Exactamundo!!!

Anonymous said...

AHCL:

Perhaps I did read the last two words of the slogan, and there is still nothing that supports your "only this" conclusion. I believe my interpretation is correct, although I can read it a third time if you wish. The more I hear about Lykos, the more I wish I had voted for her.

Anon. 7:20

Anonymous said...

Anon 12:52 & Anon 9:41 get real. You have missed the point in your blind desire to support Lykos(were you hired January 1, 2009) If a defendant wants to plead guilty and be sentenced, the District Attorney's Office should not stand in the way just because Pat and Jim want false numbers to show how they have "improved" the office. I can understand when the District Attorney's Office is afraid the Judge is going to give a deferred where the District Attorney's Office is opposed and wants the conviction to impact the defendant. (The defendant is licensed in the state of Texas as a teacher, nurse, etc.) In the misdemeanor division I suspect there are few cases that merit this response, certainly more in the felony division. Perhaps the number of misdemeanor convictions is down and they are afraid the public will find out in real numbers the negative impact of the current administration.

Anonymous said...

I think she should call a press conference every time a prosecutor loses a case. She should call them incompetent, dock their pay and send them to intake for a few weeks. Any time a prosecutor WINS a case, she should assume they somehow abused their discretion or manipulated the system to prevail. She should then call a press conference, label the prosecutor as incompetent, dock their pay and send them to intake.

Anonymous said...

Anon 11:42,
Spot on. What a circus. Barnum, Bailey, Lykos and Leitner....with a special appearance by Anon 7:20 stage right.

Anonymous said...

Anon.11:42:

Hmmmmm. Good plan.

Anonymous said...

10:56, I'm not a Lykos supporter necessarily, I'm just pointing out the inconsistency in the argument.

Either Lykos is a win-at-all-costs unethical bitch, or she's an elected defense attorney that's giving in to the defense bar and making the county less safe. Those are the two sides of Lykos presented on this blog by you and many ADAs who are unhappy, and you can't have it both ways. You see it as one consistent argument because they're both anti-Lykos. I see it as inconsistent because she can't both win at all costs and give in to the defense bar at the same time.

Your anti-Lykos bias projects onto me a pro-Lykos bias simply for pointing out the discrepancy.

Anonymous said...

I started off in the office the same time you did, Murray. And I disagree with your rose-colored glasses view of the office's opinion on statistics. You know that stats were mentioned in every admin. meeting. You also know that stats were considered when someone was promoted. Shoot, we know people who jumped the ranks solely on stats. You probably remember that a certain person who started with you lost his first six trials and was told to do better or leave. I lost my first trial to a big-name defense attorney and didn't feel so bad about it until one of my neurotic colleagues, who hadn't tried a case yet, said, "Oh my gosh. You must feel like crap. I'd kill myseslf if I lost my first trial." The truth of the matter is that ANY trial bureau, whether in a civil firm or at a government agency, puts pressure on people to win their trials. While I wholeheartedly agree that the focus of a prosecutor should be do the right thing, most DAs and their admin. staff will focus on wins as a measure of how successful they are. It's sad, but it's true. And as for Kelly Siegler, she put so much pressure on the felony prosecutors to win and work their fingers to the bone while she had her short stint as trial bureau chief that prosecutors cracked under the pressure and left in droves. Highest turnover rate EVER! I know you're a huge fan of hers, but please don't paint her as someone who would subscribe to the motto, "Do the right thing." I think her motto would've been, "If your life isn't this office, like mine is, get out! And while the old admin. never had a motto or explicitly went around saying that we should win, it was an unspoken rule.

A Harris County Lawyer said...

Anon 8:18 am,
I guess our memories are somewhat different.
I'm not sure if you are talking about the same prosecutor that I'm thinking about who lost their first six trials, but if it is, that particular prosecutor not only was losing cases, but was clearly not understanding anything he was being taught. What I'm addressing is the issue of flat statistics.
There was the phrase thrown around about some prosecutors who "just didn't get it" and there was a difference between those who were just having a bad string of luck in trial. An Administration won't know the difference if they just look at flat win/loss ratios. They need to read evaluations and talk to supervisors, too.
As far as your recollections of Kelly in our early years, when we started Kelly was Chief in the 228th under Judge Poe. She had little to nothing to do with the Misdemeanor Division until she became the Misdemeanor Division Chief. As I recall, she was familiar with all the prosecutors she supervised and knew the difference between those that were doing good and those who weren't. She was the loudest cheerleader of those who did good jobs, regardless of their statistics. Here again, the difference was that she learned how they were doing outside of flat statistics.
And of course she wanted the prosecutors to do well and be good representatives of the Office. But there was a lot more that went into her calculations than just stats.

Anonymous said...

Anon 5:45 is right about quit taking shit cases at intake. And Murray, since you LOVE TRIAL, when are we gonna see you kick the State's ass?

Anonymous said...

Misd has not been told that promotions will be based mainly on a person's win/loss ratio. That's just false. And Jim's policy was to take a whale case with interesting issues/evidence and try it to gain experience. Like a BMV with DNA. A case that would likely plea based on the evidence, but one that deserved the max (based on crim hist and the facts) and would provide exposure to things you don't typically get to handle in Misd. Still may not like the policy of forcing a trial, but the idea was not to boost stats.

A Harris County Lawyer said...

Anon 10:02 a.m.,
I have a couple of cases set for trial in the Fall. The vast majority of the cases I have are all ones that were filed this year and aren't quite due for trial yet.
As far as "kicking the State's ass", I believe I've been pretty clear that I've never talked smack about a case before trial, and I don't plan on starting now.

Anonymous said...

Anon 8:18,

You are right, Kelly did have high expectations for felony prosecutors and expected each prosecutor to treat the victim and their families as she did.

"I think her motto would've been, "If your life isn't this office, like mine is, get out!"

Your quote speaks for itself. And I bet you can't say that any of the new admistration can set that example. If Kelly's desire that her subordinates treat work as she did is a bad thing than you need to return to the office you left or were kicked out of.

You can dodge trials, fail, point fingers and be promoted. Just make sure you are nice to the right people, you could get a good pay slot.

Anonymous said...

Anon 11:16

You're right the whole win/loss ratio was never given as a basis of promotion (that's not saying it won't be in the future). However your statement regarding boosting stats is "just false." The administration has made it abundantly clear that our stats need to improve. It's not about making better prosecutors, just making the D.A. look good. Trying hard cases is the way misdemeanor works, it's the way we learn.

Anonymous said...

Anon 8:18,
A great football coach at the University of Texas by the name of Darrell K. Royal once said "luck is when preparation meets opportunity". So I guess Coach Royal would say Kelly was lucky...but not in the sense you would criticize her for. Kelly was not an excuse maker; she was a dedicated hard working ADA with a special gift that she tried to instill in her subordinates. That was her job and she took it more seriously than most.
Many people tend to make excuses to justify not meeting expectations. A classic excuse model is to tear down a collegue who is a star performer in her/his game so as to make your station in life more acceptable. To condemn a leader for wanting her people to work hard and excel is ludicrous. Should all ADAs settle for mediocrity like you? Government workers do not all have to be lazy, do they?
Since you infer that doing the right thing was not Kelly's motto during her capacity as a Bureau Chief in Special Crimes (she was never Trial Bureau Chief) and that felony prosecutors were driven off in droves; be specific and back it up.

Anonymous said...

For God's sake, quit griping about filing crappy cases. As a defense attorney we want more and more cases filed. File everything possible. More money for me!

Anonymous said...

Anons 11:45 and 5:11,
It's good to see others not afraid to stand up and defend someone who stood up so many times to defend us.
It's the near-do-wells like Anon 8:18, who can only excel in an environment where politics trump ability, that are always eager to throw stones at a noble warrior who stumbles; but can never look the same soldier in the eye when he/she regains his/her balance. Adversity reveals one's character it does not create it.
Kelly was a noble advocate for the HCDAO and the citizens of Harris County.
Who of us, if one of our loved ones was murdered, and we were able to personally choose the prosecutor, would not pick Kelly to represent the victim? That says a lot more than the hype on either side of the fence.
We all need to stand up for what is right and make the necessary self sacrifices; rather than buy into the shame of Chuck Rosenthal's mountain of shit, the media's anti death penalty agenda, and the political corruptness and collusion of Lykos and Leitner.
So for those that take glee over Kelly's "defeat" at the polls why not instead stand strong in her shoes instead of standing down. The courage of our convictions should not be for sale to the highest bidder.

Anonymous said...

Anon 8:18 responding to Anon 11:45. I was not asked to leave the office. I received the highest raises the entire time I was at the office. And in every division where I served, division chiefs and district chiefs praised my work and my ethics. I left for personal reasons that had nothing to do with money or the work I was doing at the office. I didn't leave the office when Kelly Siegler was in charge of the trial bureau. But I know that between January and May of that year, 28 felony prosecutors quit. That's more prosecutors than have quit or been asked to leave under Lycos's regime!

I am saddened to see that the new admin. is making everyone's lives miserable, but I honestly believe that Kelly Seigler, like Pat Lycos, is a horrible manager of people. She is a phenomenal trial attorney and she is a workaholic. My beef was with the fact that she expected everyone else to be a workaholic, like her. She chastised people who had a personal life. She viewed people who spent time with family as weak. And all of the people closest to her, including our beloved Murray, are workaholics too.

She may be a good example of someone who lost her first trials and then went onto being a nationally known and wonderfully talented trial attorney. But I take issue with the fact that Murray's view of the office pre-Lycos is sugar coated. Trial stats were taken into consideration before Lycos took office and they will when Lycos is long gone.

So who's running against Lycos this next time -- who can I cut a campaign check to? We all need to start building a war chest for the next DA because we all know the next DA can't be Lycos.

Anonymous said...

anon 8:39:
OMG!Well said.We forget so fast.What a loss.Kelly has my vote in 2012.

Anonymous said...

Anon 1:11,
The "I'm an entitled victim and everyone's a winner philosophy" is a bunch of crap. In real life everyone doesn't get a trophy. All the little league kids don't get to play in the Majors. Grow the fuck up.

Top notch law firms not only expect, they demand, that their people work smart and hard.....or they're fired. The taxpayers deserve the same from their elected DA and staff.

Kelly's mentor was Johnny Holmes not Walt Disney. So I'm sure his kitchen was too hot for you as well.

Everyone is not cut out to be a good ADA.
Every ADA is not entitled to a 5 on every evaluation just because they are breathing.
ADA promotions should not be based on pure seniority or petty politics.
ADAs are not entitled to work part time or makeshift time to shirk professional responsibility. The opportunistic manipulation of our flex time program to facilitate part time soccer Moms being part time ADAs is inappropriate and places an undue burden on co-workers and the system as a whole.
Making less money than a civil or criminal defense attorney counterpart does not entitle an ADA to give less dedication to their job.
Responsibility and self sacrifice are required to be an effective ADA.
Our job is not for everyone and poor performers need to be culled.

A leader must provide legitimate constructive performance reviews if she is to improve the quality of the team she manages.
The consequential rewards and punishments must be based on merit.
An effective leader must be able to discern actual ability and performance from mere generated stats.
It is more important for a leader to be respected than to be popular.

Judge Lykos rewards political favor rather than merit because that is all she knows. Therein lies the crucial difference in leadership skills between Kelly and Lykos.

I do agree with your war chest suggestion and I'll bet you can figure out who I'll be supporting in the next go round.

Anonymous said...

anon 12:03:
the flex timers are hating on you now bro......

Anonymous said...

they are telling the d.a.'s the same thing in moco. try the whales and stats matter. New d.a. had a tantrum at a meeting when there were a couple of mistrials one week. all politicans arethe same, they only care about their headlines