Tuesday, March 1, 2011

Let's All Play the Blame Game!

With Jessica Tata absconding off to Nigeria (and totally undermining my attempt to achieve a more Ghandi-like view of the Criminal Justice System with my previous post), a War of Words has broken out between the Harris County District Attorney's Office and the arson investigators with the Houston Fire Department.  It was inevitable, really.  The deaths of four children and no one to hold accountable for it is a tragedy, and God forbid a tragedy ever happen that we couldn't blame on somebody, right?

So, let's do a quick breakdown on some of the things that are notable with the Tata escape.

Point 1 --  There is generally nothing wrong with the D.A.'s Office wanting to make sure a case is well-built before accepting it from a Police Agency.
Houston Fire Marshal Richard Galvan is blaming prosecutors for Tata's flight because they were being too picky about what they wanted done on the case.  Galvan cites that investigators with the Arson had to make four approaches to the D.A.'s Office before charges were accepted.
Whichever prosecutor was handling the case for the D.A.'s Office wanted to make sure that the case would stand the test of time once it got filed.  Asking the investigating agency to do more work on what is going to be one of the more high-profile cases is smart.  Avoiding the knee-jerk reaction of filing something because it is high-profile is even smarter.
Advantage:  D.A. Office


Point 2 --  That being said, an Injury to a Child case with this fact pattern isn't going to be all that tricky, in the big scheme of things.
They weren't investigating Tata for Arson (at least, not yet).  They had to answer one simple question.  Was she home or not when the fire broke out?  In the article DA Spokesperson Donna Hawkins states that they wanted to establish that no other adults or workers were in the house either.
Ok.  Fair enough, but how much time do you really need to spend doing that?  It would seem to me that a preliminary investigation that satisfies Probable Cause against Tata could have been done within a couple of hours and at the scene of the fire.
Its nice to have a well-made case, but being too picky on charges is not good.
Advantage:  Arson Bureau


Point 3 --  The D.A.'s Office disregarded information that Tata was about to leave the country
Wow.  If this is true, I don't know how much defending can really be done for the D.A.'s Office.  The Special Crimes and Intake Division are open year round, 24/7.  A warrant could have been drawn up pretty quickly on exigent circumstances and Tata could have been brought into the fold.
Advantage:  Arson Bureau


Point 4 --  If the Arson Bureau had a tip that she was going to flee, why weren't they sitting up on her?
I know that manpower shortages affect us all, but when we are talking about a potential fugitive who is going to be taking off and leaving four unaccounted for dead children in her wake, do some surveillance dammit.  This isn't a case where somebody burned up a Ford Pinto in the hopes of getting insurance money.
Advantage:  D.A. Office


Point Final --  the real person to blame for this is Jessica Tata.  She is clearly a responsibility-avoiding low-life.  Could more have been done to make sure she stuck around?  Yep.  But at the end of the day, she's the one that ran.

I hope some day they catch her.  I hope she faces Justice.

But in the meantime, I don't see a whole hell of a lot of good in playing the Blame Game.

36 comments:

Anonymous said...

Murray, if the arson investigators felt so strongly that she needed to be in custody immediately, why didn't they place an investigative hold on her? The HCSO places a 72 hour investigative hold on people all the time in situations like this.

A Harris County Lawyer said...

Good point.

ADVANTAGE: D.A. Office

Anonymous said...

If Arson had information that she was about to flee, they didn't need a warrant to arrest her. See Article 14.04 of the CCP. Arrest her and bring her before a magistrate. That gives them time to get file charges.
It's for cases like this that the Legislature adopted 14.04.
On the other hand, where does the HCSO get the authority to put a 72-hour investigative hold on anyone. Seems to me that the Supreme Court ruled it is a Fourth Amendment violation to hold someone more than 48 hours without a judicial determination of probable cause.

Anonymous said...

Patsy is grandstanding today in the press that she is filing NINE charges on Tata in connection with the fire. One good charge, filed in time, would have been better. My guess is that some of this barge-load of crowd-pleasing paperwork will be state jail felonies, and that most of it will be offenses for which the sentences will be served concurrently. In other words, pandering to the masses...sound and fury without meaning.

Anonymous said...

"This is reprehensible that somebody would take advantage of the death of these babies," Harris County District Attorney Pat Lykos said.

http://www.khou.com/news/local/Houston-Red-Cross-launches-campaign-for-victims-in--117199708.html

Please note that this said with a straight face as she attempted to milk every bit of political mileage out of these dead babies.

Anonymous said...

Holy crap - http://www.chron.com/disp/story.mpl/metropolitan/7451919.html

Let me see if I can get this straight: if you could have filed one charge of Reckless Injury to Child on Sunday, you could have filed all of these additional charges for each one of the complainants. And filing these additional charges does NOTHING to change or increase the possible punishment since they're all out of the same criminal transaction.

So why the additional charges? This move is consciousness of guilt. If they hadn't done anything wrong, she would just come out and provide the proof. Instead, she come up with this pointless move to do nothing more than curry political favor and divert attention from her dropping the ball.

ADVANTAGE: No one if the public is led to believe she is accomplishing something by filing these additional charges.

Anonymous said...

I grudgingly accept the Harris County Lawyer's invitation to play the blame game because of my bad golf day.
As Anon. 2:44 points out a "72 hour investigative hold" is illegal - there has to be a probable cause determination by a magistrate within 48 hours of the detention or the person is to be released. See, TEX.CODE CRIM.PROC., art. 15.17.The City of Houston and its police department learned this hard fact forty or so years ago at a cost in federal court. Like much folklore and ignorance on the part of law enforcement, however, these "holds" unfortunately still exist.
Anon. raises a good point vis-a-vis TEX.CODE CRIM. PROC., art. 14.04. I suspect, however, that arson never heard of this provision. The problem to me though with its application in this case is that apparently the District Attorney's intake prosecutors thought that there was not sufficient probable cause at least three times with which to file felony charges. In theory then the provision is inapplicable. It would appear to me based on what has been reported that the arson people were attempting to present the relevant facts known to them. Again, based on what seemingly has been reported prior to the flight of the putative defendant, the officers knew there were several dead bodies of children in the day care center, also several more severely burned children, the caretaker had gone shopping and had left the seven very young children in that house, a fire originating in the kitchen, and no other adults were found in the house or were seen fleeing from the building, the caretaker was identified by parents of the children. If those were facts known early on, which they seem to be, I believe that there was sufficient probable cause to have filed the charges and arrested the lady. I can only conclude therefore that an "anachronism" still exists - "one does not acccept arson charges without a confession "(sic). Apparently that is what the District Attorney's Office was waiting for. As the Harris County Lawyer accurately points out there really is only one person to blame in this tragic matter, the caretaker. I do not feel, however, that the District Attoney's Office deserves a pass - with all of the top heavy, overpaid supervisors annointed by Lykos; it is apparent that somebody dropped the ball - it is incredible with public relations of utmost concern to that office that this case was apparently handled in the manner in which it was.
Calvin a. Hartmann

Thomas Hobbes said...

Murray, maybe it's confusion brought about by old age, but I read the PC statement on the KHOU site and I can't discern anything that wasn't known - and in some cases reported - by Saturday morning. Am I missing something?

A Harris County Lawyer said...

No, Mr. Hobbes. You are correct. I don't see anything that couldn't have been learned at the scene in the P.C. statement.

Anonymous said...

Point of Order: The perpetual dispute that arresting officers vs prosecutors have, not withstanding; the HCDAO has a longtime pattern and practice of letting criminals flee before accepting charges.
By "requiring more evidence" when a child molester confesses to the sex crime, yet gets to walk out of the interview a free man because the investigator can't make a lawful arrest even after a full confession.
This allows the offender to have second thoughts soon afterward, and flee long before a warrant is issued.
Happens every day in Harris County, Texas.

DISADVANTAGE: The children/victims

Anonymous said...

I am sorry to have to contribute to this blog again so soon after my earlier comments, but I have discerned the problem - definitely no pass to the District Attorney's Office - at approxiamtely 7:02 p.m./ 3/1/11 I heard Lykos on KTRH tape say that whether one can arrest is set out in the Penal Code. No wonder the caretaker was not arrested. Lord say us from the barbarians, a/k/a pretenders at the HCDAO.
Calvin A. Hartmann

Anonymous said...

A FEW SALIENT POINTS:

1. None of Lykos' high-salaried legal geniuses, nor her, have EVER written a probable cause statement to obtain a warrant so why are they commenting on it?

2. The only person in that press conference who actually sounded like (and is) a seasoned, well-spoken prosecutor was Lynne Parson.

3. This was clearly campaign literature at it's very lowest.

4. The additional charges are being filed because if they bring Tata back to US territory, they are precluded from filing additional charges per the Treaty with Nigeria. They have to be filed now.

5. Whatever fault lies with HCDA in the situation, is ONLY because of the Leitner micro-management and Lykos "show me the camera" restrictions that prevent the few experienced ADA's there from doing their jobs.

Anonymous said...

Why was the Fire Dept in charge of the investigation? There is no suggestion or evidence that this crime was arson. At that point, HPD should have done the investigation. While HPD isn't perfect, they have many top notch homicide investigators who would have done a far better job. Instead of filing the warrant and walking away, they would have followed up. And they would have done surveillance on Tata.

The HCDA's office cannot escape blame. Once there was a suggestion that Tata may leave, charges should have been filed. No question. But for the Fire Chief to get on a high horse is hypocritical at best. If he ran a competent group, they would have had someone on top of the situation.

There is plenty of blame to go around, and the families of these children deserve far better than this. But blame isn't going to bring Tata back.

Anonymous said...

In reading the article mentioned by Anon 5:47, the public comments show that HC voters are wise to the Lykos political ways. Its only a matter of time until election 2012

Anonymous said...

Sadly, this is the strongest evidence yet that the DA's office has been castrated by Lykos. Courage is punished, experience is run out the door, and yes men are left in power positions. You can be certain that Ms. Tata would have never had the chance to leave if Kelly Siegler were DA. But Kelly's a prosecutor, and Pat's a politician.

Anonymous said...

Massive failure by the DAO. If Kelly were running the show, would that have happened.

Anonymous said...

TO: Special Crimes Chiefs
There is no requirement under the law for a search warrant for an automobile. Remember the Carroll doctrine. If you have probable cause to search a car, search it; you don't need a warrant. And if you can look through the car window and see evidence of a recent shopping trip by your suspect at the same time a fire is burning up babies, that sounds like pretty good probable cause to believe you have evidence in the car. And you don't have to have a suspect trying to drive away in that car to search it. Geez, is that really the advice you gave to the HFD Arson guys as set out in their affidavit on chron.com?
Had you known the law, we wouldn't be having this discussion.
Signed: former special crimes prosecutor PRE-Lykos

Just Sayin' said...

Lykos Logic 101:

1. buy 9 lottery tickets after the winning numbers are published and win the jackpot.
2. put a bullet proof vest on after the crackhead pops a cap in your chest and presto your GSW is healed
3. put a condom on after you bang an HIV prostitute IV drug abuser and you will be protected from infection
4.buy fire insurance after your house burns down and you win a new house
5. file 9 nonextraditable charges on a suspect after she flees the country and ask her nicely to return and your failure to file 1 approprite charge before said suspect flees shall be excused.

"Life is hard. It's even harder when you're stupid"
-- John Wayne

Just Sayin'

Anonymous said...

Murray, talk about jumping out of the frying pan into the fire!

Have any of your commenters ever been to Lagos, Nigeria? I have. It is THE rathole of the world.

I can think of fates worse than death and spending the rest of your life in Nigeria would certainly be one of them.

Since Delta Airlines least costly ticket on their website from Atlanta to Lagos is around $3600, it would be interesting to investigate how she paid for the ticket or who paid for her.......

Anonymous said...

Regarding CCP 14.04 and bringing a defendant before a magistrate: I am a current HPD Investigator and can shed some light on that. In every other county in Texas peace officers can be peace officers and can do just that. We must go to the HCDAO and ask, "mother, may i?". We cannot arrest on a class b misdemeanor or above without approval from a prosecutor in the intake division.

Just Sayin' said...

Anon 1:08,

1. Pat Lykos is the DA
2. Pat Lykos has no idea what DAs do and could care less
3. Intake for Pat Lykos is limited to fatty foods and Jack Daniels
4. The United States Constitution, Texas Penal Code and other Rules of Law do not apply to Pat Lykos
5. I am a just a common ADA and you are just a common peace officer Pat Lykos is the media's Golden Girl she is special and not to be fucked with do I make myself clear?

Just Sayin'

Anonymous said...

The Comical's recent defense of its apparent darling noted that the "outraged" District Attorney fired back at the criticism of her office. It is understandable that this time a defense was mounted since that criticism in reality was directed at her and should be contrasted with her prior unprofessional appearing public berating of a former assistant. Missing from the article though was one relevant question and answer when it was contended that the arson investigators were law enforcement officers and could have arrested Tate. Query - why would these investigators risk arresting Tate when they were told numerous times by an allegedly knowledgable and professional staff that there was insufficient probable cause to do so? One suspects that these invetigators had heard of 42 U.S.C. 1983.

Anonymous said...

How much longer will it take before the Public and the Chronicle realizes that an incompetent lawyer was unfortunately elected to the position of District Attorney in Harris County?

Not only that, but the cat dragged in several other unqualified "Bureau Chiefs" with her who continue to mismanage the office. Roger Bridgwater sees the handwriting on the wall and is hoping to escape via another Judgeship. Leitner would leave but he can't figure out how to take his gold belt-badge with him. Chow is just riding the wave of Lykos' verbal flatulence and reassuring her that the smell is wonderful!

Can't wait until November of 2012...

Anonymous said...

Mr Newman:
I read in the Houston Chronicle where DA Pat Lykos defended her charges on Ms. Tata stating that manslaughter and reckless injury to a child are both second-degree felonies in Texas.
While it may very well be true both offenses are second degree felonies, if reckless injury to a child is not specifically on the US-Nigeria laundry list of extraditable criminal charges how is that comparison relevant?

Anonymous said...

And the hits just keep coming!

http://www.chron.com/disp/story.mpl/metropolitan/7453215.html

Chinese guy flees in mid trial. Wow.

Trident 5 said...

Kelly Siegler kicked butt on the bad guys--rich, poor, black, white, brown--it didn't matter how difficult the case or the political fallout what mattered was justice! She was so good people assumed she must have cheated and put innocent people away--well these folks picked Pat Lykos over Kelly Siegler and now look what that brought! Kelly Siegler would have personally prosecuted this Tata woman and Pat Lykos doesn't even know how to file the charges. Houston citizens should be the ones who are furious.

Trident 5 said...

Kelly Siegler kicked butt on the bad guys--rich, poor, black, white, brown--it didn't matter how difficult the case or the political fallout what mattered was justice! She was so good people assumed she must have cheated and put innocent people away--well these folks picked Pat Lykos over Kelly Siegler and now look what that brought! Kelly Siegler would have personally prosecuted this Tata woman and Pat Lykos doesn't even know how to file the charges. Houston citizens should be the ones who are furious.

Tom said...

I don't know where anon 1:08 has been but as a defense lawyer, it is rare for me to see an arrest other than by the cops before charges are filed. I don't know what division of HPD he works in but the DWI task force, for one, makes arrests every day without checking with the district attorney. Or maybe my clients and the police are lying in those cases. Same is true in virtually every drug case.

And, while I have to disagree with my friend Calvin Hartmann, there is a difference between probable cause to arrest and sufficient evidence for the district attorney's office to decide to pursue charges. I am sure that prosecutors in the Harris County DA's office daily makes decision based on prosecutorial discretion where technically there is sufficient evidence to get by a motion for instructed verdict.
As to Article 14.04, if the police (or HFD Arson) has information that a suspect is headed to IAH with a one-way Air France ticket in his pocket, they can arrest if they believe they have probable cause. If they are wrong, the fruits of the arrest such as a statement or a search may be suppressed but the suspect will be handy for trial.
It isn't my job to defend the DA's office but the Arson Division didn't cover itself with glory in this one.
The DA's office appears to have used reasonable prosecutorial discretion in wanting more evidence before charging a person with a felony. Maybe the assistant DA's handling the case were trying to see that justice was done.
My heavens, is that a new concept? Shouldn't be.

Anonymous said...

All this investigation did was pull back the scab off the wound. Don't be surprised if law enforcement in this county pours a little salt in that wound.

Tom said...

Looking at anon 1:08's comments, I don't know what part of HPD he works in but most of my clients are arrested long before the DA's office signs off on charges. As an example, he county courts are full of defendants arrested by the DWI task force before anyone calls Intake and charges are filed. And, when is the last time anyone handled a small drug case where the arrest was after charges were filed or the DA's office blessed the arrest? A long time ago.

And, while I truly hate to disagree with my friend Calvin Hartmann, Article 14.04 exists for a reason. If the police (or in this case HFD Arson) has evidence that a suspect is headed to IAH with a one-way Air France ticket in his pocket, they have the right to arrest him if they believe they have probable cause. If they're wrong, the fruits of the arrest like the confession or search can be suppressed later but the suspect will either be in jail or on bond.

As Calvin will agree, the DA's office routinely uses prosecutorial discretion in deciding whether to file charges where technically there is probable cause. This could be part of seeing that justice is done, hopefully not a new concept in the DA's office.

It's not my job to defend the DA's office. But in this case, it seems they acted appropriately by seeking more evidence to sustain charges before filing felony charges against a citizen.
And, if, as Calvin suggests, HFD has never heard of Article 14.04, maybe they ought to spend more time learning how to be peace officers rather than pointing the finger at someone else when they screw up.
Tom Moran

Anonymous said...

Is Pat Lykos still investigating the arson at the Up-To-Date Cleaners on West Gray? What happened to that investigation? Jack Daniels anyone!

Anonymous said...

The indecision displayed this past weekend is a microcosm of the entire DAO. Some times a prosecutor is called on to make a quick judgment call. This was an easy one and the inability to make this simple decision will further divide this current administration from law enforcement. Complaints file in from law enforcement about intake and special crimes intake.

Defense attorneys complain of prosecutors inability to resolve simple cases. Not guilty verdicts are pouring in because you can always blame a jury.

Anonymous said...

@Tom

We can arrest without warrant, but we still have to call Intake for charges first. If they deny charges at Intake, we can't go forward with it. Your clients may be unaware of this, but we have to call Intake before arresting anyone. Until then, they're detained.

Since Lykos took over, we have had huge difficulty getting charges on the simplest of cases. I had Donna Hawkins fight me for ten minutes about taking a simple shoplifter with video and multiple witnesses. I've had Intake give me the most outlandish possible explanations that any defense attorney wouldn't be able to deliver with a straight face, then use that as justification to deny charges. (Example: a robbery suspect in possession of credit cards from a robbery complainant, the phone used to call other complainants to trick them into coming to abandoned apartments before beating and robbing them, and a positive lineup ID. Intake said that he might have found the cards, that he might have recently bought the phone, and that he might simply look similar to the "real" suspect.)

Anonymous said...

Sorry, but by the time we call intake they are under ARREST.. Not detained.. Example you say??? When someone is stopped, given field sobriety tests and then handcuffed- they have been arrested plain and simple. A peace officer cannot request a breath or blood specimen without first making an arrest. After they blow, or refuse, is when intake is called and charges accepted or declined. I don't know why so many officers are afraid to say that someone has been arrested. The law is your friend if used correctly....

A DWI officer...

Anonymous said...

The facts:

Let me clear the air about this case because there have been a lot of comments from people who don’t know the facts of what happened. First of all Arson Division worked the case per the Memorandum of Understanding they have with the HPD Homicide Division. If the murder occurs before the fire and the fire is used to cover the crime or destroy evidence then Homicide works it. If the fire is intentionally set to murder someone then HPD Homicide works it. If the fire is accidental, whether it negligent or not, and it causes the death its Arson’s case. From the start, it was determined that this fire did not appear to be an arson murder or a murder before the fire, so it’s Arson’s case.

In regards to the investigation, when Arson investigators started to question Tata on the scene, with full intentions of bringing her down to the Arson Division to question her, she began to complain of chest pains and shortness of breath. Arson investigators had no choice to have her transported to the hospital. While all that was going on investigators located a witness who reported seeing Tata arrive at the house, exit her car and go towards her front door. Several seconds later, the same witness reported that he saw Tata run from the house yelling fire and the witness saw black smoke coming from the house. Investigators were told there was another witness who saw the same thing but was already at work. Investigators then saw a receipt from a near by store close to the front door and upon checking with the store they quickly found video footage of Tata at the store when she should have been home with the children.

Keep in mind that this was all happening at the same time and the scene was very chaotic. The 7 children were transported to four different hospitals and then others were transported again to other hospitals, this made locating the parents and conducting interviews with them at that time extremely difficult. Also keep in mind that Tata made an unrecorded statement to an Arson investigator that she was home when the fire started, that she turned the stove on, went upstairs to use the bathroom, and when she came down their was a fire. Arson investigators went to the same hospital as Tata and waited for her to get medically treated, the plan was to interview her once the treatment was completed.

While that was going on, investigators found the second witness and interviewed him at his place of work, and this is where it gets more complicated. The second witness contradicted the first witness and stated Tata had arrived home and after about ten minutes she ran out of the house yelling fire. This statement seemed to back up Tata’s claim that she was home at the time of the fire. Back at the hospital, Tata suddenly developed a case of amnesia when investigators attempted to obtain a recorded interview, she would not give a statement other than she couldn’t remember what happened.

At that point, at around 2:00 am, investigators contacted DA Intake and spoke with a prosecutor. Because of the second witness statement charges were refused, and I don’t blame them for refusing charges at that time. Instructions were given to attempt a second interview with the witness for clarify the inconsistent statement and to attempt another interview with Tata. I do not believe investigators could arrest Tata at that time, they were refused charges by the DA’s office and frankly they needed to clarify that second witness statement.

Anonymous said...

The facts cont..

Friday mourning, the day after the fire, investigators re-interviewed the second witness and clarified why his statement was inconsistent with the first witness and the video tape. The witness’s second statement was consistent with the first witness statement and the video tape. Investigators then drove to where Tata was staying and attempted a second interview, but by then she told them she had an attorney and was meeting him at 3:00 pm that same day. Tata told investigators that she would not give a statement until she consulted with her attorney. Investigators spoke with her attorney and confirmed the appointment. Investigators requested that the attorney call them after the meeting and let them know if he was going to represent Tata and if he would allow her to give a statement. By this time, investigators had spoken with one of the parents of a child that had survived the fire. That parent told investigators that Tata was the only adult seen in the house on Thursday morning when he dropped his child off. Investigators also received tips that Tata was going to flee to Nigeria.

Investigators then contacted ADA Baldassano and informed him what they had so far, including the tip about Tata possibly fleeing to Nigeria. The facts included both witness statements, now consistent with each other, the video tape with the times on it, the statement from one of the parents, and the fact that only Tata was licensed with the State for that child care facility. Keep in mind this was the next day, investigators needed a warrant to arrest Tata at this time which was what they asked for when they called Baldassano. Baldassano refused charges and told investigators to interview ALL the parents who dropped their children off. In regards to the tip, Baldassano told investigators that he didn’t think it was reliable because Tata grew up in Harris County, she had a juvenile record, and he did not consider her a flight risk.

Those comments asking why investigators didn’t maintain surveillance on her at this point, well the sad truth is the manpower and overtime issue to maintain 24 hour surveillance on a person for an unspecified amount of time. Those of you that do not work for the City or County cannot possibly understand what I’m talking about and its very easy to say investigators should have done that without knowing what the response would be from the top, which is NO OVERTIME and NO MONEY!! What Baldassano was wanting before he accepted charges was ridicules. Of course the parents needed to be interviewed, but as everyone one the investigation doesn’t stop at charges, it continues until trial. By that point the parents were in several different counties, many of whom were not answering the phone due to the repeated calls from the media. It took investigators all day Saturday to locate and interview most of the parents. By Sunday morning all but one of the parents were interviewed; however, that still wasn’t good enough for Baldassano because he was still refusing charges Sunday morning, wanting ALL of the parents interviewed. Sunday evening Baldassano finally accepted charges but by then it was too late.

YES clearly mistakes were made and it is not unusual for investigators to call prosecutors several times before charges are accepted. However, the D.A.’s office needs to accept share of the blame. Investigators needed a warrant to arrest Tata and they were refused time after time. Those are the facts.