Saturday, January 31, 2009

"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.

Wednesday, January 28, 2009

The Houston Press Article

About a week ago, I did an interview with Randall Patterson of the Houston Press for an article that came out today entitled "A Digital Bathroom Wall for Pat Lykos". The interview lasted about two and a half hours and covered a range of topics from why I wanted to be a prosecutor in the first place to working under Chuck Rosenthal to the HPD Crime Lab scandal to the blog to my disdain for Pat Lykos. Although I enjoyed the conversation with Mr. Patterson, one can't help but be concerned about giving such a lengthy interview without knowing what direction the article was going.

I have to admit that the article today wasn't exactly what I thought it was going to be. Although I wasn't misquoted and nothing was written completely out of context, there are several things in it that I'd like to address. Mr. Patterson blended things I said in the interview with things I've said on the blog along with what commenters have said on the blog and he wrote his article.

I was highly amused to see myself described as "an Aggie cowboy prosecutor". I am certainly an Aggie and I'm certainly a former prosecutor, but the cowboy description cracked me up. I did say that the District Attorney's Office was a great place to work, and it absolutely was. However, I wasn't placing an emphasis on the fact that it was so wonderful because of the fact that Chuck was the acting D.A.

During my interview with Mr. Patterson, I emphasized that Chuck wasn't actively involved in the day-to-day affairs of the rank and file prosecutors, and he let us do our jobs without fear of being fired, demoted, or transferred on a daily basis. When asked what positive things Chuck did for the prosecutors, I told Mr. Patterson that he worked to raise our salaries, sent us to more training, and paid our Bar dues (NOTE: that is Bar dues, not bar tabs). I tried to emphasize to him that we really didn't deal with Chuck, and that over all, the environment was a pleasant one to work in.

I made the comment about prosecutors being used to feeling like "the guys wearing the white hats" while we were talking about what it was like to pick a jury in the immediate wake of the Rosenthal e-mail scandal. I pointed out to Mr. Patterson that prosecutors were having to ask potential jurors questions like "Do recent events in the news cause you to have a dislike or distrust of the D.A.'s Office that would keep you from being able to give the State a fair trial?" and on occasion, some of those jurors would agree that they couldn't be fair to the State. I remarked that prosecutors were "used to being the guys wearing the white hats, and now the jurors were looking at us like we were the bad guys".

It was that experience that made me start writing this blog in the first place. I knew that I wasn't an unethical or racist prosecutor, and Chuck's e-mail scandal shouldn't have been attributed to us all.

I do object to Mr. Patterson saying that I wasn't "fazed" by the criticisms of the Office prior to the e-mail scandal. He and I actually spoke quite at length about how a prosecutor's worst nightmare would be to convict somebody that was factually innocent. We discussed the HPD Crime Lab and I tried to explain to him that prosecutors aren't scientists, and at the end of the day, all trial lawyers have to rely on their witnesses to varying degrees -- especially those testifying to scientific evidence. I do believe I mentioned the old adage of it being better that 99 guilty men go free rather than one innocent person be convicted (and yes, I know I'm paraphrasing) several times.

I don't believe I ever referred to defense work as "the Dark Side", either in public or private. I've never viewed the job we all do as being that black and white. I've heard defense attorneys refer to the prosecution as the "Dark Side" and vice versa since the day I first walked into a Harris County courtroom, but I always found it to be nothing more than good-natured bantering.

And finally, as far as me vowing "to be the criminal defense lawyer whose blog supports prosecutors" to my "last dying breath", that is true that I said that. But I think those of you who have read this blog for any amount of time know that I will support the prosecutors when they are being treated like hell by Pat Lykos. It has nothing to do with what is going on in the courtroom. It has everything with how things are run administratively.

Lykos has been in power for four weeks now, and she's off to a remarkable start of showing little to no respect to the people she is now leading. These are people that I worked with for over nine years and I care about them as my friends and family. What kind of person would I be if I didn't? Does it bother me and upset me about the way they are being treated by Lykos and Leitner? You bet it does.

And am I going to keep speaking up about it?

Yep.

Monday, January 26, 2009

Intake Sign Up

Back in April, I did a couple of articles on how the Intake System and the Probable Cause Court System worked at the Harris County District Attorney's Office. One of the things that I didn't cover back then was the madness behind the method that went into assigning what prosecutors were going to cover what shifts for either P.C. or Intake.

First, a little background on the shifts themselves:

Outside of the regular 8-5 weekday shifts, additional prosecutors are needed to cover the night and weekend shifts. Since only chiefs can work Chief Intake and Probable Cause Court, that means that, at most times, there are two Felony Chiefs on duty.

On week nights, Chiefs are needed to work a Five to Midnight and a Midnight to Eight schedule for both Intake and P.C.

On the weekends, the shifts change a little bit. A Chief works from Midnight to Eight and then another is needed to work from Five to Midnight at the Intake Position. For some reason, a Chief is not called for between the hours of Eight to Five. However, since Probable Cause Court has a docket every two to three hours, there are shifts on the weekend for a Probable Cause Court prosecutor from Midnight to Eight, Eight to Four, and then Four to Midnight.

Prior to the Lykos Administration, every three or four months, Chiefs had to go through the dreaded and incredibly annoying process of "Intake Sign Up". One of the conference rooms on the Fourth Floor would have every last chief who worked intakes crammed into it, taking turns signing up for all the shifts that were coming up over the next few months. We would all take our turn and sign up in a crazy process that normally took a minimum of two hours. The chaos that ensued was frustrating beyond belief. While all other intake shifts for non-Chiefs were randomly assigned by computer, the Chiefs went through a process that made the floor of the New York Stock Exchange look neat and orderly.

In my opinion (and the opinion of most chiefs), the Probable Cause Court shifts were much more desirable than the Intake shifts. Intake can make you go crazy with the frantic and incessant phone calls, the warrants, and the screening of cases. The Probable Cause shift is typically more leisurely, with the prosecutor having to go and basically act like (what I always referred to as) a Reading Monkey. He mindlessly reads a summary of the offense to the Magistrate who then finds probable cause (or not). It isn't exactly high stress.

In addition to the P.C. shifts being a little easier than intake, obviously, the timing of the shift was very important to those of us signing up for them. For me, personally, a good old Eight to Four shift on a weekend was better than a Five to Midnight shift. And I usually traded away those Midnight to Eight shifts that I signed up for. But, all things considered, a Five to Midnight shift wasn't such a bad thing. You still had time to go home and get a few hours of sleep before reporting back to work the next morning.

During Intake Sign Up, the Eight to Four P.C. shifts were always snatched up first, quickly followed by the Five to Midnight shifts. The Midnight to Eight shifts usually went dead last.

The Lykos Administration took the much-needed step this week of abolishing the inefficient Intake Sign Up, and brought it back to random sign ups for the shifts. Prosecutors who are assigned shifts that they can't (or won't) work are still free to trade with one another to get something that better fits into their schedules.

That was a good move.

But, apparently, operating under the theory of "To the Victor Belongs the Good Shifts", the list wasn't quite as "random" for some prosecutors as it was for others.

First Assistant Jim Leitner seems to have been "randomly" assigned only Probable Cause Court shifts that fall on weeknights between Five to Midnight. Bureau Chief and former-Judge Roger Bridgwater also "randomly" was only assigned the exact same types of shifts. New Division Chief Clint Greenwood does have a couple of Midnight to Eight shifts that he will be covering, but he is only doing Probable Cause Court, and not any Intake shifts.

I suppose Lykos' new leadership either a) knew well enough that they weren't qualified to try and tackle the hectic and difficult work of intake, so they stuck to the "Reading Monkey" positions instead; or b) they were just too lazy to work the hectic shifts.

It is worth noting that during my tenure at the Office, I never saw the First Assistant working an Intake Shift, but I can certainly sympathize with Jim working extra shifts to make ends meet. I have a child of my own, too. They can be expensive!

But as Jim, Roger and Clint enter into the Wacky World of Intake, I hope they will remember that even if you are working cushy assignments like ones you've "randomly" been assigned, you will still be expected to be at work on time the next morning.

Failure to do so could have your right to work intake arbitrarily removed from you without warning -- whether you have kids or not.

Monday, January 19, 2009

Pragmatism & The True Believer

During my time with the District Attorney's Office, I can honestly say that the vast, vast majority of all defense attorneys that I had the pleasure of dealing with were hardworking, ethical, and rational groups of professionals. Unlike on shows like Law and Order or other silly legal dramas, their wasn't seething animosity. Cases were discussed rationally. Search issues discussed. Witness testimony debated. Negotiations were entered into. If cases were set for trial, they were set for trial because either a) a good defense attorney felt that it was in their client's best interest; or b) their client wouldn't listen to their advice.

But on occasion, prosecutors dealt with members of the Defense Bar that we labeled as "True Believers" -- a handful of defense attorneys who knew no such thing as a guilty client.

It didn't matter if their client had been caught on video, identified by a pack of nuns, and gave four audio-taped confessions. Dammit, their client was not guilty. It was all part of a broad State conspiracy of planted evidence and coerced confessions.

There was no entering into plea negotiations, because it was dismissal or nothing. More often than not, these cases went to trial with disastrous results for the clients. Although having a True Believer for a defense attorney was probably heartwarming prior to a verdict being read, in the end, the client wasn't served.

Now before anybody starts doing any commentating in the comments section, I'm not going to name any names of any particular defense attorney that fits under this particular description. And I ask you not to either. Those of us who practice in and around the CJC know the handful of folks I'm talking about, and those names don't need to be broadcast here. I will say that the few I dealt with were always on retained and not appointed cases.

The reason I bring this up now is that the comments in my post last week on Keeper Cases indicated that there are some prosecutors that fall under the category of "True Believers", as well.

One of my commenters pointed out:

Has it occurred to you that there might be a very good reason that there shouldn't be "keeper cases?" You will find out the reason when you eventually run across a prosecutor who is so emotionally invested with the victims and the case that he or she has lost the ability to reason and be objective about the case.

AND

You can't be objective and do what you need to do when you are emotionally attached to your client or family, and neither can prosecutors.

I thought a lot about what that Anonymous commenter said, and I ultimately found that I agreed with him or her in some regards. Although I still believe that the policy of banning "Keeper Cases" by the Lykos Administration is a bad idea, I do agree that when an attorney becomes so attached to a Defendant or a Victim (or victim's family) that they can't rationally evaluate the strength and weaknesses of their case, they are not serving anyone -- especially not those that they are hoping to.

But there is a fine line between being a "True Believer" and a dedicated advocate of one's side.

The idea that a prosecutor who believes strongly in his case and tries it with all of his or her might is "dangerous" is silly. The prosecutor who believes so blindly in their case that they are overlooking relevant evidence is obviously an idiot, but the one who works hard to prove their case is just being a good prosecutor in my opinion.

The same applies to the Defense. The defense attorney who busts his butt to make sure his client has the best damn representation he can provide is somebody I admire. And I admired that type of defense attorney when I was a prosecutor, too.

I've always considered myself to be a pragmatist and my assessments of cases when I was a prosecutor was usually extremely multi-faceted. I tried to take into account all relevant factors from the severity of the crime, the provability of a case, and the background of all involved. I tried to look at cases through the eyes of both a prosecutor and a defense attorney. Doing so helped me immensely in preparing for trial (and usually helped me avoid those Nasty Little Surprises that Mark Bennett talks about).

I guess the point I'm trying to make here is that there is nothing wrong with believing in your case strongly from either the defense side or the prosecution side, as long as you always have logic and reason as your ultimate guiding light. A defense attorney would (and should) be highly offended if someone suggested to them that their heart shouldn't be in their case. Why should a prosecutor be any less offended when the same suggestion is made to them?

Every client that I've handled thus far has gotten my full level of attention and devotion to them and their cases. I'm scouring offense reports for problems with probable cause and search warrants. I'm searching for every issue that can be used to my client's advantage.

And I've genuinely liked my clients and I've wanted to do a good job for them.

I've been accused of still sounding like a prosecutor in my writings. Perhaps that is what my writings sound like, but at the end of the day I'm a pragmatist and a rational thinker.

In the end, I know if I was in trouble with the law, I'd want to have a critical thinker whose mind will be racing on how to help me effectively and knows the ins and outs of the legal system. In my opinion, that's going to do a lot more good than having a person represent me who is a True Believer.

Saturday, January 17, 2009

Rookie Observations

Well, I've been a Defense Attoney for a few weeks now, and I've come to realize that there was some merit to what Mark Bennett (who is for some reason claiming this blog is humorless) said when he pointed out that former prosecutors becoming members of the Defense Bar are starting out as rookies. Here are just a couple of things that I've noticed over the past couple of weeks:

1. Prosecutors just think that they hate the CJC Elevators-yes, that morning commute from the 4th or 5th floor up to your court in the morning can often last longer than your commute into work from, oh, say, Katy, but if a prosecutor remembers all their materials, they only have to make one trip up and one trip down. Defense Attorneys have to hop on and off of elevators all freaking morning long. That brings us up close and personal with Stupid Elevator People much more often than the State.
For those of you who would encourage my cigarette smoking butt to try the stairs every once in awhile, I do try when we aren't talking about climbing from the 9th floor to the 18th floor. However, damn Murphy's Law has been in play lately. Every time I've taken the stairs, it seems that the particular door on the particular floor I need is locked.

2. It is Amazing that a former Prosecutor who has tried Capital Murder cases can't figure out how to fill out a voucher- honestly, trying to fill out vouchers in the District Courts has made me feel like the slow kid in a 3rd grade art class. Seriously, it's just one sheet of paper with not all that much to fill out, but for some reason that's incredibly confusing when you are starting out. Special thanks go out to 177th coordinator Vickie Long, as well as defense attorney Lori Gooch for taking the time to explain the vouchers to me without breaking into tears of frustration once.

3. Speaking of Court Coordinators-I don't think I ever realized as a prosecutor how over-worked these poor folks are. When you are the prosecutor in a court, you just sign a reset and go back to work dealing with other defense attorneys. You never really pay attention to what happens after that. If you paid more attention, you would notice the herd of defense attorneys who have piled up in front of the coordinator's desk and are chirping for their resets.
The court coordinator is like a "den mother" to a group of spoiled children who all want his or her attention at once. After standing in line for a reset a couple of time, its a wonder that more attorneys haven't been shot to death in open court by a coordinator who has taken all he or she can take.
They really deserve to be commended for the jobs they do every day without killing any of us.

4. The HCCLA is a Very Impressive Organization-the first check I wrote from The Law Offices of Murray Newman went to my membership dues with the Harris County Criminal Lawyers Assocation (headed by the humorless President, Mark Bennett). All day long, you see defense attorneys helping other defense attorneys with complex legal and logistical issues (and there are alot of them). They also show the same sense of camaraderie that I enjoyed so much with the D.A.'s Office. It is beyond me why any criminal defense attorney in Harris County wouldn't want to join HCCLA.

5. Going through the Metal Detectors Sucks-I will say that I sincerely miss having the ability to bypass those damn metal detectors. I can just feel the Wackenhut people undressing me with their eyes when I am taking off my belt and boots every morning (just kidding). Actually going through the metal detectors isn't so bad if you get a formula down, and learn the secret ways to avoiding the lines. (HINT: entry through any building other than the CJC is helpful).

6. The Job of Prosecutor and Defense Attorney is much more similar than one would think- the thing I loved the most about being a prosecutor was helping victims of crime. There was a profound feeling of doing something important when meeting with the victim's family on a murder case, or the surviving members of an aggravated sexual assault, robbery, or assault and telling them you would do everything in your power on their cases.
By analogy, the same thing happens when you meet with your client for the first time. As a prosecutor, I had become very used to the "tough guy" posturing of so many Defendants in the holdover cells whenever I was asked to come back to talk to them. It's different as a Defense Attorney. The Defendants back there are more scared and desperate for help than anything else.
And they are looking to their Defense Attorney to help them. The felling of saying that you will do everything in your power to help them is also a profound feeling of doing something important. I think the thing that prosecutors and defense attorneys have in common (regardless of what side of counsel table they are sitting on) is the desire to help others.

And finally . . .

7. Yes, the Stress Level is Definitely Better-as I've told plenty of people the past couple of weeks, that I'm not financially prepared to buy that house in the Hamptons quite yet, but the stress level decrease is really remarkable. I don't know if it is the smaller caseload or the not having to keep a timesheet, but I'm feeling much less stress and tension than I've felt in ten years. I'm working just as hard (if not harder) running back and forth and figuring out the logistics, but for whatever reason, it just feels like less worry. I didn't really expect that as much when leaving the D.A.'s Office, but it is the truth.

I will keep you posted as more thoughts develop . . .

Sunday, January 11, 2009

Yet Another New Blog

I came across another new blog today that seems oddly familiar and funny. Check it out. A link has been added on the right. Welcome to the Blawgosphere, Mr. Seaton.

240

As I'm kicking back on the couch and watching some Justice League cartoons with my son on this lovely Sunday afternoon, I'm reminded of the fact that right now the Offices of the Harris County District Attorney over at the Criminal Justice Center are probably full of prosecutors working on cases -- Prosecutors who are missing time with their families, and missing some NFL Playoff games to try to get a jump start on the coming week.

The weekend is about the only time that a prosecutor can come even close to catching up on the massive caseload that they have.

On a typical weekday (even assuming a prosecutor isn't in trial), getting some work done for a prosecutor is difficult, to say the least. The first half of the morning is stuck in court docket, and it is not unusual for docket to run well past 1:30 in many courts. If a prosecutor does take a lunch, they come back with two and a half to three hour left in the regular work day. This time is usually spent returning the phone calls received during the morning while the prosecutor was in docket call, or trying to get a task done between constant phone calls.

The reality is that for a prosecutor to truly get some meaningful work done on his or her cases, it usually has to be outside the typical 8 to 5 weekday window. The docket and the constant barrage of phone calls prevent a prosecutor from sitting down and actually reading a long file without interruption. Prosecutors (especially those who are Twos and Threes within the Office) spend large portions of their weekends up at the Office just to keep their heads above water managing their caseloads.

The reason I bring this up is to point out that prosecutors don't get paid overtime for their work. They earn Compensation Time (AKA Comp Time). If a prosecutor works a couple of hours on the weekend, at some point they can take two hours off during the normal 8 to 5. It all comes out in the wash, right? Nothing wrong about that, is there?

In theory, that system should work out just fine.

Unfortunately, there are a couple of kinks in the system.

The first and foremost of these "kinks" is the fact that the amount of Comp Time that can be earned by a prosecutor is 240 hours.

So what happens once a prosecutor has accumulated over 240 hours (which can happen quite rapidly for the Twos and Threes)?

They start working for free at that point.

No time and a half. No supervisor telling them to take some time off before they go insane. A blind eye is usually turned to the fact that these folks aren't being compensated at all for the time that they are spending up at the Office.

I've often wondered how that was legal under the Employment Code, but that's not my area of practice. If somebody who knows more about employment law would care to enlighten us, please do so.

The other thing that I find interesting about the Comp Time system is that when a prosecutor leaves the Office through resignation or termination (or even Super Double Termination), they only get paid for half of their Comp Time. That loosely translates into getting paid 50 cents on the dollar for the time they earned working for the County. I really don't get how that is legal.

Don't get me wrong. There are a lot of great perks working for the county. There is no overhead and the insurance is great. I understand and I don't dispute that.

But I guarantee you that pretty much every prosecutor that has ever worked at the D.A.'s Office has put in plenty of hours working for free without so much as a pat on the back for doing so. I'm just not real sure how that can legally happen.

What do y'all think?

Thursday, January 8, 2009

Congratulations to Mark Bennett's Defending People

Congratulations to Mark Bennett and his blog Defending People for winning the American Bar Association's 2nd Annual Blawg Poll in the category of Criminal Law. Mark is being very humble about the Award, but I think we can all agree that (whether we agree with what he writes or not) that he is an excellent and very cerebral writer. The Award is well deserved.

Congrats Mark!

Wednesday, January 7, 2009

Keeper Cases

Whether a criminal attorney is a prosecutor or a defense attorney, there are some cases that you know are headed to trial the first time you ever read over them. There is just something about the facts or surrounding circumstances of the case that tells you, based on your experience, that the only way that case will ever be resolved is through twelve citizens of the county telling the Defendant what their judgment is.

From a defense perspective, that doesn't present much of a continuity issue. If you are retained or appointed on the case, you will be handling that case unless your client decides that they don't want you working on the case on their behalf.

But from the prosecution side, it can very often be a problem due to the fact that prosecutors are continuously rotating through different positions in the Office in Harris County. In the Felony hierarchy of the Harris County District Attorney's Office, a Felony Chief (handling Capital murder cases) will often stay in the court where they are assigned for anywhere between three to five years. A Felony Two (handling murders, sexual assaults, aggravated robberies) is typically in their court for about a year rotation at a time. A Felony Three (handling all other felony cases) is often only their court for a maximum of six months before being rotated back to Misdemeanor as a Misdemeanor Chief.

When a case comes into a court on its first appearance (for those of you following the lingo, we call that a PIA for "Preliminary Initial Appearance". Redundant title, isn't it?) odds are that if it is going to ultimately go to trial, it will pend in the court for over a year, if not longer. Capital cases can pend for much longer based on all the work involved.

My point is that the prosecutor handling a case when it is first filed is very unlikely to still be in the same court when the case is ultimately ready to go to trial. For the vast majority of cases, that's not that big of a deal. The outgoing prosecutor who is being moved to a new position just leaves a memo on the file for his or her successor.

But other cases involve so much in-depth work, knowledge of the case, and ultimately emotional attachment that it would be an absolute travesty for any prosecutor other than the one who worked the case up to take it to trial.

I'm not talking about shoplifting cases or narcotics cases here. I'm talking about the truly complicated and emotional cases -- the murders where the prosecutor has developed the trust of the victim's family or the aggravated sexual assault of a child where the child victim is comfortable talking only to that prosecutor. Having the same prosecutor on that case from start to finish is to the benefit of the victims of those crimes. On the flip side, it allows a prosecutor to fully sink his or her heart into a case and get to know every aspect of it like the back of his hand.

In the past, it was quite common for a prosecutor to hold on to a specific case, even after they had been transferred to another court for various reasons.

When a prosecutor held onto a case after transfer, it was called a Keeper Case.

Now, to be sure, holding onto a Keeper Case for a prosecutor often brought along some headaches for that prosecutor, as well as the other prosecutors in his new court. They are basically increasing their work-load -- they have to keep up with their new duties in their new court, yet they are holding on to a trial case. When they actually go to trial on their Keeper Case, it will leave their new court short-handed while the prosecutor is off in another court trying the case.

Trust me, I speak from experience when I say that a Keeper Case for a prosecutor is often a logistical nightmare that causes a gigantic pain in the posterior for that prosecutor. It often involves you being in trial from eight to five and then working late into the night to keep up with your new duties in your new court.

But it's worth it.

Holding onto a Keeper Case because you've sunk your heart and soul into it is why so many Assistant District Attorneys wanted to be prosecutors in the first place. They are every bit as passionate about prosecuting a case as a defense attorney is about defending his client. That passion shows, too. It shows to the victim's family. It shows to the jury.

There is a big difference in a prosecutor that has been working on the same case for the past year and a half, working it up from start to finish, and the prosecutor who picked up the case the week before trial and did a crash course on bringing themselves up to speed on the case.

I'm reminded of a closing argument that Luci Davidson once gave, where she pointed out that the case had belonged to her for over a year and a half, and now she was placing it into the jury's hands. It was a powerful statement, and one that couldn't have been made had she just become involved in the case a month earlier.

In short, the Keeper Cases are the cases that prosecutors remember long after their careers at the Office have wrapped up. They are the ones you put everything on the line for, and you never forget them.

Why am I bringing this up?

The Lykos/Leitner Administration just put a ban on Keeper Cases.

I can understand why they did it to some degree. It does generate a logistical problem. And we all know that there may be the occasional prosecutor who wants only to hold onto the high profile cases so that their families can see them on TV.

But the vast majority of prosecutors that I know held onto Keeper Cases because their hearts told them to, and for no other reason.

Yes, Jim's memo said that they might make an exception with his approval, but those exceptions will be few and far between.

That really shouldn't be the Rule. If a prosecutor knows his or her case well enough to say that they should hold onto it, why on Earth should they have to go beg Jim to allow them to try it? This is one of those classic examples of where experience in the leadership of the Administration matters.

If Pat Lykos had been a prosecutor, maybe she would know what it meant to be emotionally invested in a case.

Alas, it isn't to be, I suppose. Instead, we will foster an atmosphere where prosecutors get tough cases on the day they are filed, and they will know not to get too emotionally involved in the case. They will know that there will be little chance that they will actually be the prosecutor who takes it to trial, so why get your heart into it?

This policy is a mistake because it is taking the passion out of the prosecutor's job (yet again).

Do you think a victim's family won't notice that?

Friday, January 2, 2009

There Should Be a Law . . .

One of the fringe benefits of having a small child is that a parent who is with said child can have the opportunity to use the "Family" Restrooms at public facilities. In such large facilities like, say, Reliant Stadium or Houston Intercontinental Airport, these can be a thoughtful oasis in the middle of chaos that can provide a bit of relief when either you or your child needs to, um, use the facilities.

One of my pet peeves, as a parent, however, has come in those situations where I've desperately needed the use of the Family Restroom, only to find that it is occupied. Occupied, not by another desperate parent seeking asylum, but by some inconsiderate jerk or jerks that just figured that they were entitled to their own moments of privacy.

The most egregious of these situations happened last season at Reliant Stadium where I was dealing with the Mother of All Diaper Blow Outs (my kid's diaper, not mine), and spent twenty minutes waiting outside the door while a drunken and frisky couple made use of the privacy together.

I was not amused.

As I've mentioned before, I spent the past couple of days with my Little Man visiting my Mom in Florida. On the trip to Florida, we had to make a trip to the restroom, only to be forced to wait while a single, college-aged female took her sweet time by herself in there. We damn near missed our plane.

And upon arrival back this afternoon, my boy and I again desperately needed to make use of the Family Restroom, following what I will just phrase a "Milk Disaster in the Sky", only to find that it was occupied for some time by a young, college-aged male, who seemed completely oblivious to the dirty look I was giving him when he exited.

Now, to my knowledge, there is no law on the books that prohibits non-Family use of a Family Restroom, but dammit, there ought to be.

As I begin my Criminal Defense practice, I'm occasionally asked if there are any types of cases that I would absolutely refuse to take.

I'm generally non-committal about that question, because it's way too broad.

But if some Legislator wants to earn my Vote for Life and put this one on the books, you can guarantee I will never defend the scurrilous cretins who perpetrate this crime.

I mean, come on people, you've got to have some sympathy for a Dad, loaded down with fifty pieces of luggage who is following this around an airport:

Thursday, January 1, 2009

Inauguration Day

Now that I've started the New Year off on the right foot, I can get back to being me again.

At this writing, there is about one hour left until the Mandatory Lykos Inauguration, and for some reason, I can't shake the feeling of being a little bit sad about that.

It absolutely sickens me that my former-colleagues at the District Attorney's Office are going through what they are going through. These are people who were (and still are, in many ways) my mentors. They are friends. They are family.

But more importantly, they are professionals who have earned the right to be treated with the respect that they've earned during their service to the District Attorney's Office. Each and every one of them has more trial experience than Pat Lykos, and they have more heart than Lykos and Leitner could ever come up with on their own.

And yet, they are now forced to cut their vacations short and show up for a mandatory swearing in ceremony. I'm willing to bet that well over half of them wish there was somebody else being sworn in this morning.

They don't deserve that treatment.

And I'm already cringing at what I can only guess Lykos will say to them during her Coronation Address.

-will she begin it with her patented opening word of "Friends"?
-how many times will she cite the "Rule of Law"? (NOTE: If the Coronation was being covered in Florida, I would so be starting a drinking game with that one.)
-will she preach optimism and professionalism, or will she blast them for the sins of the Rosenthal Administration?
-will she seek to frighten them with an iron hand or will she emphasize the team work required to make any Office a good one?
-will Leitner be standing over her shoulder pointing out which ADAs are "enemies" to her Administration?

I'm not optimistic about how she will handle it, seeing as how she and Jim have pretty much screwed the pooch on every other aspect involving morale at the Office.

But, like I said, I won't be in attendance. If any of you ADAs who show up are so inclined, please feel free to post it in the comments.

Today is a Dark Day for the Harris County District Attorney's Office.

Happy New Year!

I refuse to start the New Year off with a negative post. I want to set the tone for a good and positive year that will be MUCH better than the last.

I am currently visiting my Mom in St. Petersburg, Florida, and my three-year-old Little Man is with me. He's drinking hot chocolate (even though it's about 70 degrees outside), and I'm having coffee. He's watching cartoons, and I'm typing this while looking out over the bay.

Mom made bacon and sweet rolls for breakfast.

Life is good.