Wednesday, February 25, 2009

Where's My Offense Report?

During the campaign for District Attorney one of the issues that probably meant the most to those of us working in the CJC (and probably the least to the general voting population) was the idea of Xerox copies of offense reports being provided to the Defense Bar on their cases.

For those of you who don't practice criminal law and are just morbidly curious as to how the criminal justice system works, let me give you a little bit of background.

Obviously whenever the police do a criminal investigation, they document their actions (some times better than others) in an offense report. Under the law and the rules of evidence, that offense report is considered to be what is known as "work product". Work product is basically privileged information because it is generated by a party to the lawsuit, namely the State of Texas (via the police agency) in a criminal case.

Theoretically, the State of Texas (AKA the District Attorney's Office) doesn't have to let a defense attorney representing his or her client even glance at an offense report prior to a trial. If a police officer is testifying in trial, the defense attorney is entitled to review the officer's offense report prior to cross-examining. But other than that, there is not an actual mandate that commands the State to show the offense report to the Defense.

But as a practical matter, the practice has always been that the Harris County District Attorney's Office has always maintained an open file policy (despite the fact that Lykos claimed she would be initiating a "new" open file policy). Defense Attorneys have always been able to go and read the offense report and take notes to their heart's content.

However, where Harris County has differed from some counties is that there was a strict policy that the Defense Bar was not entitled to a Xerox copy of the offense report, and the notes taken on the file could not be jotted down "word for word" (like who in the hell has the time or energy to do that?!). Some counties hand out the offense reports to defense attorneys, which has (of course) brought up the question as to why Harris County does not do the same.

It's a very legitimate question. The copying of offense reports expedites the job that needs to be done by defense attorneys. Rather than having to make the trip to the D.A.'s Office, a copy lets the defense attorney save countless hours of taking handwritten notes on a file. It can eliminate inaccurate note taking. It can let a lawyer be lawyer rather than a stenographer.

In principle, there is absolutely no reason whatsoever not to allow the Defense Bar to have copies of offense reports. It simplifies the job for both the defense and the prosecution. When I was a prosecutor, I was never opposed to the idea of giving copies of offense reports to the defense bar -- I just wasn't allowed to. And, I never knew of another prosecutor who was opposed to it, either.

So, if it's such a fantastic idea, why hasn't it been happening all along? And why hasn't it happened in compliance with Lykos' campaign promise that she would allow the copies immediately?

Well, it's bureaucracy and logistics, of course. I mean, we are dealing with government after all, now aren't we?

NOTE: PLEASE APPRECIATE THE IRONY OF THE STATEMENT I'M ABOUT TO MAKE.

Pat Lykos is right in taking a cautioned and well-thought out approach before handing out copies of offense reports to the Defense Bar.

Offense reports contain detailed information about the parties involved in criminal cases. They contain Social Security numbers, Driver's License numbers, dates of birth, addresses, and phone numbers of victims. Sometimes they contain medical history. They have all kinds of private information. There is a very strong argument to be made that this type of information shouldn't be released in copied form from the D.A.'s office.

In any attorney-client relationship, the client is entitled to demand a copy of his file (kept by his attorney). If a Defendant is engaging in identity theft, it probably isn't in the best interest of the Public to be handing out the Social Security numbers of victims to said Defendant. If a Defendant is a member of the Texas Syndicate, a name and address list of all the witnesses may be contrary to their best interest.

You get the picture.

So what do you if you are the elected D.A.? You want to be fair and helpful to the Defense Bar, but you want to protect the privacy of the victims and witnesses. There is a need for some serious redaction of the information in the offense reports before handing them over to the Defense Bar.

The logistics of the copying problem are now twofold:

1. Who is going to pay for the copies?; and (more importantly)
2. Who is going to do the redacting?

My modest proposal here is that it is time for the D.A.'s Office to start hiring some paralegals. Putting the burden of redaction on the actual prosecutors is going to have them spending more time at the Xerox machine than they are working on their cases. They didn't go to law school for that, and it isn't what they should really be spending their time doing. They need to be working on their cases, not copying them.

I'm just throwing this out here, but this is my far-fetched idea of what the D.A.'s Office should be doing regarding the copying of the files:

1. Print out two copies of every offense report.
2. Invest in a stamp that says something to the effect of "Defense Copy" in a color other than black and put it on every page of the copies. The stamp should also contain a warning that the pages are not to be Xerox copied.
3. Draw up a non-disclosure agreement that the Defense Attorney must sign that makes them swear not to divulge an enumerated list of items (e.g. Social Security numbers, Driver's License numbers, etc.) to their clients.
4. Part of the agreement should be that no Xerox copy of the offense report shall be copied or disseminated to anyone other than counsel or investigators or other agents for counsel.
5. Make part of the agreement be that the offense report is returned to the District Attorney's Office upon disposition of the case. That way, if the client demands a copy of his file from his attorney, the offense report isn't part of it.

I'm sure there are plenty of flaws in my plan, and I know you guys will be more than happy to point them out to me.

The bottom line is that I think Lykos over-reached when she said she would turn over the offense reports immediately upon taking office. She made a campaign promise that she couldn't realistically live up to in the way she described.

But she's right to think it out before handing over the reports.

I have no doubt that we'll get there eventually.

Thursday, February 19, 2009

Lykos on Diversity

Well, we're a little over a month and a half into the Lykos Administration and it doesn't look like there has been much ground gained in making the Office "the best in the Nation" as promised by Pat in her campaign.

-members of the Defense Bar are still anxiously awaiting their copies of offense reports. We keep being told that they are coming!
-the A.D.A.'s are being told that the budget has already been expended.
-the morale within the Office continues to plummet.
-Lykos is spending a large amount of time in the basement parking garage smoking like a chimney while forcing her staff to come with her to talk business.
-the Office is hemorrhaging money having to pay for special prosecutors to handle every case where Jim Leitner or Clint Greenwood acted as defense attorneys.
-the investigator that Lykos brought in to act as her personal chauffeur for her county vehicle has apparently already wrecked said county ride.

But of all the things that Lykos has failed to accomplish or screwed up thus far, one of the most interesting broken campaign promises that I've seen thus far is her definition of "diversity" regarding personnel within the Office.

First of all, for those of you who don't understand how the Hierarchy Flow Chart works within the Office, here's the thumbnail sketch for the higher positions -

1. Elected District Attorney
2. First Assistant
3. Bureau Chiefs (approximately 5 or 6 of them)
4. Division Chiefs (approximately 20 or so of them)
5. District Court Chiefs (approximately 40 or so of them)
6. District Court Twos (approximately 60 or so of them)

Granted, the Office was not exactly all that incredibly diverse when Lykos was coming in. There were two African-American Division chiefs, one Hispanic Division chief, and one Hispanic District Court Chief (and no African-American Chiefs). If I recall correctly, there was one Hispanic District Court Two, and two African-American District Court Twos.

The Office definitely needed some more diversity in it, and Lykos vowed that she would bring it.

Let's see how she did.

Well, she started right off the bat by not renewing the contract of one of the two African-American Division Chiefs, Joe Owmby (for reasons that are still beyond me), and she moved one of the two African-American District Court Twos out of the Trial Bureau entirely because she had dared to support Clarence Bradford during the campaign.

After finishing up with her firings, demotions, and transfers, Lykos was given the opportunity to promote seven District Court Two's to the level of District Court Chief. She picked seven excellent candidates to be promoted, and I think every last one of them deserved to be made chief. Every last one of them, however, was Caucasian and about as diverse as the Brady Bunch.

Of those promoted to Felony Two, I am unaware of any promotions made that would have made the flow chart look a little more diverse, but I could be wrong about that.

Now, keep in mind, when it comes to promotions from within the Office, Lykos didn't really have a whole lot of diversity to choose from when she was moving folks up the ranks. There weren't too many senior Felony Two's who were African-American (other than the one Lykos moved out of the Trial Bureau).

If Lykos was going to get a jump-start on making the Office a more diverse place, she was going to have to do it with her lateral hires and the folks that she brought in to form her Bureau and Division Chiefs. These would be the folks that she could hand pick to be her Upper Administration, and she was certainly not shy about picking political cronies and old friends -- surely she could make some space for some other folks as well.

But as Lykos was building her Gang that Couldn't Shoot Straight, there was about as much diversity as a Mississippi Country Club in the 1960s. With the exception of former-Judge Hannah Chow (who is Asian-American) becoming the Public Services and Infrastructure Bureau Chief, every last person that Pat Lykos has brought into the Office on lateral hires has been of the Caucasian Persuasion.

From Jim Leitner all the way down to Mark Bennett's favorite Lateral Hire to everyone in between, I'm failing to see any steps towards diversity.

So, at the final count, under the Lykos Administration, we now have one African-American Division Chief, one Hispanic Division Chief, one Asian-American Bureau Chief, zero African-American District Court Chiefs, and one Hispanic District Court Chief.

That's not sounding all that diverse to me.

And, oh, by the way, the one Hispanic District Court Chief turned in her resignation on Monday.

Tuesday, February 17, 2009

Cynthia Henley Joins the Blawgosphere

My friend and fellow member of the Defense Bar, Cynthia Henley is joining the ranks of Mark Bennett, Paul Kennedy, and me as a new person who is willing to be yelled at for putting her thoughts on criminal justice in writing. She's just getting started with her blog, so bookmark her website and see what she has to say.

Welcome to the Blawgosphere, Cynthia! It will definitely teach you to have a thick skin!

Thursday, February 12, 2009

The "Aggie Special" on Video

I was glad to see that the local TV station in my hometown of Bryan, Texas did a small piece on Dude McLean. They even included the video replay of the famous "Aggie Special" that helped earn him his claim to football fame. You can check it out here.

Information on Ken "Dude" McLean's Memorial Service

A service celebrating his life will be held at 3 p.m. Friday, February 13, at Klein Funeral Home, CyFair Northwest. Graveside services will take place at 1 p.m. on Monday, February 16, at Stennett Cemetery in Stennett, TX.

Wednesday, February 11, 2009

Humor in the Courtroom

From Rayford Carter in the 351st today, addressing the folks awaiting docket call:

RAYFORD: I'm looking for [Smith]. Is [Smith] here?

After a few seconds of awkward silence . . .

RAYFORD: Anybody here forget their last name?

Tuesday, February 10, 2009

Ken "Dude" McLean

I learned the sad news that our friend and distinguished member of the Defense Bar, Dude McLean passed away earlier this week.

Although I had seen Dude around the courthouse during my entire time as a prosecutor, I never really got to know Dude until we tried a very brutal Aggravated Robbery case against each other in Judge McSpadden's court in 2006. It was a re-trial of a case that Dude had gotten flipped on appeal, and was taking it to trial. The victim of the aggravated robbery (who had been shot during the crime) had subsequently died from other reasons, and the case was very sad. From the State's perspective, the case was a "whale", and Dude didn't have much to work with, but that didn't slow him down in the slightest. He threw his heart and soul into the case and tried it with grace and dignity.

In the weeks leading up to the trial, I mentioned to my dad, during a trip home, that I was trying a case against Dude, and my dad was very excited about it. Dad had known Dude and taken classes with him when they were both at A & M. He told me that Dude had been a legendary wide receiver for the Aggies and told me the story of a play called "the Aggie Special" that Dude had been the star of.

When I talked to Dude about our Aggie connection and my Dad, we became fast friends. He told me priceless stories of what playing college football was like for A & M in the early 1960s, and then in the pros. We learned how many friends we still had in common in Brazos County, especially Judge Travis Bryan III, who had been a great friend of Dude's, and my across-the-street neighbor growing up. Dude rarely made a trip to Brazos County where he didn't seek me out in the courtroom the next day to tell me about it.

When I made my transition to the Defense Bar, Dude offered to do anything he could to help me out. Even as his health was starting to fail him, he still was so willing to help with anything he could. He was such a very very kind man.

During the trial that he and I tried together in Judge McSpadden's court, Dude approached the (now-deceased) victim's mother and took her hands is his and expressed his sincere condolences that her son had passed away. He did it in private and he didn't do it for show. He did it because he cared. He did it because he was a good, sweet, and decent man. In our often dark world of the CJC, Dude always seemed so upbeat and optimistic.

Late last year, his health was clearly taking a turn for the worse, but I never heard him complain of it. I would ask him how he was doing, and he would waive off the question like he had never felt better. He always smiled and he always wanted to talk.

One day, Dude came into my court, smiling from ear to ear, and told me he had to tell me a story. We went into the back and he told me how he had been riding on the MetroRail to the doctor when two gangster-looking folks had approached him and started asking him some very pointed questions about how expensive his suit was and how much money he had on him. Of course, it had subsequently erupted into a fight on the MetroRail, and Dude proudly told me how he (with a little help from another passenger), had managed to subdue the two gangsters.

He was so thrilled that a man in his late 60s and going through cancer treatment could still handle two young punks that tried to jump him on the train. I think the incident actually made his day. The police had arrived and arrested the would-be crooks.

"Did they charge them with assault or robbery?" I asked Dude. Dude looked a little taken aback for a minute.

"You know," he said. "Come to think of it, I guess they were going to rob me!"

The point of the story is that Dude always had such a cheerful and unbridled optimism about things that he went through. Only Dude could have had fun during a robbery.

I'm going to miss that cheerfulness and that kindness in the courtroom. He was a good friend.

Most of all, I'm going to miss his stories.

Saturday, February 7, 2009

The 0800 Rule

As I've mentioned here before, Assistant District Attorneys don't get paid overtime (with the pseudo-exception of Intake pay). If they work past the typical eight-hour work day, they get to earn Compensation time, which they can use whenever they want. It's a good system, and a workable one, as well. It also gave some flexibility to prosecutors who may have outside family obligations that might require them to come in late or leave early.

The way that Comp Time worked usually depended on what position one was holding within the Office. Felony Threes, for instance, will typically arrive at the Office anywhere between 6:00 a.m. to 7:30 a.m. to make sure that all of the cases have been pulled for the docket, offense reports have been ordered for those cases, and calls have been made to the victims on the cases. Felony Twos who aren't responsible for getting the docket together for court, often work well past 7:00 p.m., and sometimes would sleep in a little later, arriving between 8:30 a.m. and 9:00 a.m.

Most courts start their official docket around 9:00 a.m. (although a few do start at 8:30). Other than the Three getting the cases to court by 9:00 a.m., there wasn't a real pressing need for the other prosecutors in the court to arrive before then.

And the reality is that not much work on cases can really get done before going to court in the mornings. If a Felony Two or a Felony Chief didn't arrive to court until 9:00 a.m., and chose to burn some previously earned compensation time, that was just fine and dandy with everybody.

Well, it was fine and dandy with everybody until the Lykos/Leitner Circus rolled into town.

Under the new regime, the time for the understanding of the fact that Assistant District Attorneys have the audacity to have families that also require attention is over.

Jim Leitner sent an e-mail out the week before last stating that all prosecutors shall arrive at work at "0800" every morning. I guess Jim was going back to his time in Coast Guard when he decided to go with the military parlance.

So much for having the right to use your Comp Time whenever you wanted to.

Now, don't get me wrong. I think that each court needs to have a prosecutor at work by 8:00 a.m. every morning, but that duty usually falls on the Three. The idea of demanding that all three prosecutors be in the Office by 8 a.m. is actually pretty wasteful in the big scheme of things. Unless Lykos and Leitner want to start assigning them silly little duties like, say, walking around the Office and trying to find strategic places to put water coolers or something, odds are that the Felony Twos and Chiefs are just going to be sitting in their offices waiting for the time to go to court.

If you ask me, from a practicial standpoint, it was much better under the Old Rules, where a prosecutor would be more productive working later into the evening, or on weekends than they would be from the hour of 8 am to 9 am. As a taxpayer, I would rather the Public Servant actually be doing some meaningful work while they are at the Office. But that's just me.

The bigger thing of concern, however, is that the 0800 E-mail from Leitner is just yet another rule made by him and Lykos that seems to be made for the sake of making a rule. The proclaimed "Rule of Law" that Lykos crowed about during her campaign seems to have been replaced by the Rule of Micromanagement, which is so very unRepublican of her. What she is trying to do is tighten the leash on her employees to the point of strangulation.

She and Jim seem to have forgotten that some prosecutors live further away from Downtown than others. That some prosecutors have children that they need to get to school. Prosecutors who work late and don't get home until after the kids are asleep might just want to spend some time with their families in the morning.

In the old days, allowances were made for employees' personal lives, as long as they got their jobs done. It led to a happier atmosphere, and made it a good place to work. The Gang Who Couldn't Shoot Straight seems rather intent on making the place one of the most employee-unfriendly workplaces in the Nation.

If I were in their shoes, I'd ease up and start trying to rebuild a little morale around the CJC. Otherwise, they run the risk of losing some very good and dedicated employees who are already thinking of (to put it in terms that Leitner would understand) "abandoning ship".

Wednesday, February 4, 2009

Quiet! Delicate Genius at Work!

Assistant District Attorneys were scratching their heads today over an Office-wide e-mail announcing that the doors to the Southwest stairwell would be "off limits to all employees" on the 6th floor.

For those of you unfamiliar with the layout of the Harris County Criminal Justice Center, there are stairwells in the Northeast, Northwest, Southeast, and Southwest corners of the building. The stairwells are more or less off limits to the general public, but are useful to the Assistant District Attorneys traveling from floor to floor within the Office. Most of those doors are guarded by a cardreader, which beeps when an office personnel's ID card accesses it.

The Sixth Floor houses the Administrative section of the D.A.'s Office, with Pat Lykos' office being on the Northwest corner of the building, and Leitner's down the hall. The rest of the floor is comprised of some other divisions, including the Appellate and Writs Divisions, and the Office of the general counsel.

Well, apparently the noise of the card reader beeping and the door opening and closing has proven to be just too much for one of the new Bureau Chiefs. The e-mail sent out detailed the fact that prosecutors would now need to walk to the other side of the building if they wished to access the stairs to the Sixth Floor. The Bureau Chief in question could not be disturbed by their thoughtless noise.

Ah yes, because the rest of the Assistant District Attorneys get the luxury of working in pristine silence so that they can only hear the sounds of crickets chirping from the bayou.

This is one of those office-wide e-mails that leaves me at a bit of a loss for words. Seriously? The guy needs so much peace and quiet that the rest of the Office will have to walk the equivalent of a city block to get where they are going? Seems like a rather silly new policy to me.

In a possibly unrelated note, several Assistant D.A.'s have reported smelling cigarette smoke in the stairwell around the Sixth Floor . . .

Tuesday, February 3, 2009

Humor in the Holdover

The following conversation may or may not have taken place today with one of my clients:

CLIENT: I can't do that [amount of time]. I would be 36 by the time I got out, and my life would be over.

ME: Um, I'm 36.