Friday, July 30, 2010

Don Smyth Retires from HCDA

Career prosecutor Don Smyth retired from the Harris County District Attorney's Office today, putting the end to a 33 year career as a prosecutor.

Now, as we all know from articles here and here, that this is by no means the last we've heard of our friend, Don. He's still actively campaigning as the Republican candidate for County Court at Law # 13.

And although I hope we are about to see the beginning of Don's "new career" come January 1st, I wanted to tell him congratulations on 33 years at his old job.

Don is a man of the highest character. Although he was more than eligible to retire when the Gang Who Couldn't Shoot Straight rode into town, he didn't leave. Even when they demoted him from Bureau Chief to Division Chief, he remained loyal to the people who had served under him and stayed to act as a buffer between them and the folks who knew what they were doing.

Unlike some of the other prosecutors (who in Don's position who would sell out their prosecutors to be "team players" with the New Administration), Don was known to always have his prosecutors' backs. He was a leader where being a leader wasn't exactly deemed a good quality after January 1st, 2009.

And the loyalty he showed his fellow prosecutors was returned, when in late December of last year, he decided to take on a campaign for Judge that pitted him against Lykos' Office Darling, who had been prepping her campaign for two years priors. The real prosecutors of the Office rallied around Don's campaign was able to pull off an amazing upset.

Quite frankly, it restored my faith in the idea that sometimes (just sometimes) character still matters in politics. It also showed that Don had extreme courage.

They don't make leaders like Don Smyth anymore. The District Attorney's Office was lucky to have him for nearly a third of a century.

Here's to hoping we'll have him on the Bench for many years to come.

In the meantime, Happy Retirement, Don!

Thursday, July 29, 2010

Tonight's Reasonable Doubt

Just a programming note about tonight's Reasonable Doubt for those of you addicted to cable access television.

Todd DuPont and I will be hosting with special guest Pat McCann. Not sure what the topic is going to be yet, but I have a feeling we'll be talking some about mental health issues in the court.

Tuesday, July 27, 2010

Closing the Barn Doors

I had a bad day on Friday.

I mean I had a really bad day.

Back in 2008, when I still wrote with semi-anonymity, I told you all about my friend from high school "Jim" in this post. I re-read that post this morning for the first time since I wrote it, and I was sad to see how accurate I had been in analyzing Jim's chances for some sort of recovery from the mental health issues that he had.

Jim has had some good days since I wrote that post. Several months after that encounter at the D.A.'s Office with him and Mark Bennett, I got a phone call from him. He told me that he was taking his medication and back to working for his dad. He thanked me for being his friend and helping him. I passed on the good news to Mark.

But sunny days don't last forever.

Last fall, I was driving around with my 4-year-old when "Jim" called me on the phone wanting to know if we could meet up. Stupidly, I made the assumption that since he was mentally "well" the last time I talked to him, he probably still was. My son and I went and met up with him at my office.

After about five minutes of conversation, I realized Jim had relapsed. Again, he was talking about electronic monitors and cameras in his eyes. Again, the focus of his rage was inexplicably his father. Again, he wanted my help in making his father pay for this.

Jim is a big guy. Much bigger than me. Hearing these words coming out of his mouth and realizing my son was there in the office with a severely mentally ill person scared the hell out of me. I abruptly ended our meeting and got my kid out of there, but the incident made me realize something that I hadn't realized earlier.

I was scared of Jim.

With his size and his mental issues, Jim was a volatile force and I wanted him nowhere near my son.

Over the next year, Jim would pop in and out of my office every couple of months or so. He'd seem normal in our greetings, but would rapidly devolve into the monitors and camera talks. I'd implore him to get help. He'd smile at me and shake his head.

"You know I think you're crazier than a shit-house rat, right?" I'd tell him when he was leaving.

"Yep," he would grin. "Everybody does, but I love you anyway."

"Love you too, man," I'd say, and he would hug me and leave. I'd call his family and let him know there had been a "Jim Sighting," as Jim aimlessly wandered around Texas.

Last month, Jim showed up in my office with the crown of his tooth that he had pulled out. He was convinced that the metallic solder inside of the tooth was a microchip. He wanted to show it to me as proof that his father was monitoring him. I pointed out that I did not believe that to be a microchip, and he left, very frustrated with me.

On Thursday of last week, he returned. He had stripped out the air conditioning of his car and pulled out the control circuitry, which he proudly presented to me at my office. He was sure he now had proof that his father was monitoring him through his car.

But there was something slightly different about him this time. He seemed more disorganized and fatigued. He was mumbling more about knowing what he "had to do" and stressing that he couldn't say what his plans were because his father could hear him. He was pretty much homeless and wanted to come home with me -- as much as I love him, I couldn't let that happen. I gave him money for a hotel room and sent him on his way.

On Friday morning, I talked to Susan Bishop at the D.A.'s Office about what could be done for Jim. Susan works with the Mental Health group there, and she couldn't have been more sympathetic or understanding. She's a very busy lady, but she took time to sit down and talk to me about the different options for Jim. The best one seemed to go swear out a mental health warrant on him. It would only be a temporary fix.

Because, you see, the big problem here is that although Jim had been acting crazy, he hadn't been acting quite crazy enough, yet. Nothing he had done indicated that he was a danger to either himself or others. While the mental health system would have a fairly rigid structure for him if he had assaulted somebody in a delusional rage, there is no crime committed with mumbled rants.

I went back to my office on Friday morning, and called Jim's dad to give him the latest update, and then I pulled up the website for the Harris County Psychiatric Center to see what I needed to do to swear out a mental health warrant.

Five minutes later, Jim was in my office again.

He was wearing the same clothes from the day before and looked like he hadn't slept. He stepped into my office and announced: "I'm going to show you the camera."

He produced an elongated metal spoon/stirring stick from a bar and attempted to stick it in his eye. I grabbed his wrist and got it out of hand and asked what in the hell he thought he was doing. He sat down on my couch and I tried to surreptitiously text message our office manager to call the police while I talked to him.

He knew what I was doing. He got up to leave. I followed him. We got into the elevator. The elevator stopped on the next floor down and a big guy got on the elevator with us.

As the elevator doors closed, Jim pulled out his car keys and began repeatedly stabbing himself in his right eye.

I grabbed his arms, but he was stronger than I was. He kept stabbing. I could see blood dropping on the elevator floor and I yelled for the other person on the elevator to help me. All that guy needed to do was slap the keys out of his hand, but I guess the sight of blood kept him from wanting to get involved. He did seem to be calling 911.

In the meantime, I was hanging on to Jim's back like a gnat on the back of a raging bull.

And Jim just kept on stabbing himself in the eye.

We spilled out of the elevator and into the lobby. We moved out the door and onto Main Street, where thankfully, a group of U of H Downtown Police Cadets were walking by. Once they realized what was going on, they finally came and helped me.

It took about eight of them.

Once they got him handcuffed and seated him on the ground, the paramedics were treating him. He proudly yelled to me: "I got the camera out, Murph!" He was thrilled. We were both covered in his blood, and he couldn't have been happier. Miraculously, his eyeball was still intact.

I did about the only thing I could think to do at that point.

I just started crying.

Jim's in the hospital now, but once again, he committed no crime. He's clearly presented that he is most definitely a danger to himself. The hospital is vague when they explain to his parents how long they can keep him. I can't help but think that the next time he walks in my office, he'll have taken that eye out in advance.

The reason I'm writing this post is because I don't really know what else to do. I'm of the firm belief that he will be released sooner rather than later, and we'll repeat this whole song and dance over again.

And again, I'll be about as useless as I was riding on his back in the elevator.

There doesn't appear to be any meaningful, long-term way to deal with Jim until after he seriously hurts or kills someone.

Or kills himself.

Because, sadly, the way the law is structured is much more reactive than proactive when it comes to the mentally ill.

In Jim's instance, I'm afraid that it is going to be the equivalent of closing the barn doors after the cows got out.

Tuesday, July 13, 2010

Quit Digging

Yesterday's Houston Chronicle had this editorial in it, giving their views of Houston Police Chief Charles McClelland's ill-advised memo forbidding HPD officers from talking to Defense Attorneys without express permission from the prosecutors. As usual, the Chronicle's effort to suck up to the Lykos Administration makes it painfully apparent how little the editorial board knows about the Criminal Justice System.

But I'll get back to them in a minute.

The first thing that stands out is the response of the Chief, himself. In all honesty, I was kind of excited when Mayor Parker appointed Chief McClelland. I'm a big fan of promoting from within when it comes to law enforcement, because I think it makes for better leadership and respect between the Chief and the rest of the Department. I thought his memo was basically just a brain fart that he would retract when called out on.

I was wrong. Apparently the Chief never heard the old adage about the first thing you're supposed to do when you find yourself in a hole is stop digging.

His quote to the Chronicle astounds me.

"It makes you wonder if there's something improper going on between police officers and defense attorneys."

Are you kidding me, Chief? I knew that you weren't a big fan of defense attorneys from your memo, but did you really just suggest that your own officers are doing something improper?

And you're dumb enough to say that to the freaking media?!?!?

Well, apparently, the stupidity is contagious.

Because First Assistant Jim Leitner decided to weigh in on the topic.

Now, keep in mind, I've been taking it easy on the Lykos/Leitner administration lately because they hadn't done anything too profoundly idiotic recently. I had assumed that Lykos would disavow any knowledge or encouragement of McClelland's new policy.

I mean she is the one who campaigned on the platform of transparency, right? Surely ordering any and all police officers to clam up when it comes to defense attorneys would fly in the face of transparency, wouldn't it? I was kind of thinking old Patsy would give a statement that read something like: "Our Office would never discourage the free exchange of pertinent information between police officers and attorneys representing their clients. The Chief of police was not requested to issue this policy and our Office does not believe it to be necessary in the pursuit of truth and justice."

Nope.

Instead, she sends out Big Jim, who gives a statement that is really making me think that running out in the middle of an interview wasn't such a bad move for him, after all. Here's the Office's official position:

"Harris County prosecutors will permit willing police officers to talk to defense attorneys, but will insist on being present for the interviews."

Are you kidding me with this crap, Jim? Seriously? You're going to insist on being present in all interviews. Hmmm.

Okay, well, then I'm going to insist on being present for all of YOUR interviews with police officers. How about that?

Wait. What do you mean I can't do that? You can only do that if you're a prosecutor? Oh, I see.

Now, it's one thing when the Chief of Police who isn't a lawyer starts writing stupid crap in a memo that borders on witness tampering, but now we've got Genius Jim, the 1st Assistant of the Harris County District Attorney's Office insisting that they be present.

Damn Jim, it was less offensive when us scumbag defense attorneys weren't allowed to talk to the cops at all. Now you want to babysit them to make sure that they are only telling us what you want them to tell us?

That's some damn fine transparency you've got there, Gang.

And last, but not least, let me turn my attention to our friends at the Houston Chronicle -- the D.A.'s Pets.

They have this to say about Jim's moronic statement:

This is a good solution, one that brings defense, law enforcement and prosecution together in the same room to exchange information and facilitate the fairest outcome of a case.

I'm so glad to hear that the Chronicle Jurisprudence Department has given it a stamp of approval.

What if a defense attorney wants to ask questions of a police officer that are part of his legal strategy and he doesn't want the prosecutor to know about it? The Code of Criminal Procedure says the defense doesn't have to tell the prosecutors where they are going with a case. Why does Jim Leitner get to override that?

You know what the difference is between Leitner and McClelland, though?

Leitner is a lawyer and a former defense attorney. He should know better than to encourage that type of behavior.

Is it unethical of him? Quite possibly.

Is it stupid of him? Absolutely.

Monday, July 12, 2010

Judge Debbie Stricklin Resigns

I was a little late to the ballgame with this information, but 180th District Court Judge Debbie Stricklin did make it official today that she will be resigning her position this week. Her last day on the job will be on Friday.

I'm sorry to see her go.

Judge Stricklin, and her husband, Judge Don Stricklin are two fantastic public servants, in my opinion, and I think the Harris County Criminal Justice System will miss them both terribly. The 180th District Court has been a great environment to try cases under Judge Stricklin's tenure. I tried my first two cases as a defense attorney in that court room, and I can say I received a very fair trial both times.

Judge Stricklin leaves behind very big shoes to fill on the bench. Her knowledge of the law and her even temper will be very difficult to replace. There is no word, as of yet, on whether or not Governor Perry will replace her for the remainder of the term. Marc Brown is the Republican candidate for the bench in November. I'll keep you posted as events develop on that.

In the meantime, I wish both Judge Stricklins a very happy and well-deserved retirement.

I'll miss seeing you around the CJC.

Thursday, July 1, 2010

A Troubling Memo

I was a little surprised when an anonymous friend of mine (not a police officer) sent me a copy of this memo circulated from Houston Police Department Chief Charles A. McClelland, Jr. to all HPD Officers.




If the picture is blurry on your computer, the highlighted portion reads:

Effective immediately, officers shall have no discussion with criminal defense attorneys regarding any pending criminal case without first obtaining express permission from the federal prosecutor, assistant district attorney or municipal prosecutor assigned to the case. This circular applies to criminal cases pending in any federal, state, county, or municipal court and shall include the prosecution of traffic citations.

Now, it doesn't exactly take a rocket scientist to realize that police officers generally don't enjoy talking to defense attorneys about their cases. After all, the defense attorney is usually trying to undo the job a police officer has done on the attorney's case, isn't he?

But when I was a prosecutor, we knew better than to ever instruct a police officer or any witness from talking to defense counsel. If a police officer's work on a case was so fragile that a phone conversation with the defense attorney could make the case fall like a house of cards, then we had a really big problem.

Telling an officer not to talk to the defense was unethical, in my opinion, and it gives an appearance of impropriety that borders on witness tampering.

If the officer didn't want to talk to the defense attorney, that was his or her business. They could expect the standard cross-examination question of "Isn't it true, Officer, that when I called you to talk about the case, you refused to speak with me?".

The good cops that I knew never had to answer that question, because they always spoke to the defense bar when called. They knew the job they had done on the case, and no call from a defense attorney was going to make that come undone.

So, the memo coming from Chief McClelland is actually doing his officers a pretty big disservice, if you ask me. The men and women who work for him are entrusted with guns and badges and the power to deprive people of their freedom, but he doesn't trust them to have a conversation with a defense attorney??

What kind of message does that send?

And by the way, Chief, you just gave every defense attorney in this county some great cross-examination material on each and every one of your officers before they even hit the stand.

They deserve better than that.