Sunday, March 25, 2012

Disconnect [UPDATED]

For those who have been rumbling that the disconnect between the police agencies of Harris County and Pat Lykos' District Attorney's Office is strictly political, perhaps this story being aired by Channel 11 and other news agencies might give you an alternative perspective.

It seems that every summer we hear of at least one tragic case of a child dying because he or she was left alone in a hot car.  For every one of those cases, there are numerous other ones where fortunately the child wasn't permanently harmed.

Some of those cases should most definitely NOT be filed.  Although leaving a child in the car unattended for any amount of time is never a good idea, a five minute lapse in judgment while Mom runs into the cleaners doesn't necessarily warrant a felony charge of Abandoning a Child.  Somewhere along the slippery slope that runs between that scenario and a man who leaves two infants in a car while shopping for a firearm, one could argue that charges should be filed.

At the scene of the crime, the responding officer is usually a fairly decent set of eyes and ears in helping the Assistant District Attorney at Intake decide whether or not charges should be filed.  What seems pretty clear in the news piece from Channel 11 is that the Precinct Five Deputy Constable who responded did his part by calling the case into Intake.

What isn't as clear is why the charges were rejected.

There could be a host of reasons.  Perhaps since the children did not appear to be in physical danger, the Assistant D.A. decided to take more time in investigating before filing it.  Maybe there was some other intervening factor.  I don't know.  I wasn't there.

But this case does illustrate what the police unions were talking about when they issued their vote of No Confidence in Pat Lykos.  The communication has apparently broken down between the police and the Office and that can't be good for anybody.

[UPDATE:  I heard from several friends at the District Attorney's Office who gave me a little more background into this case and the information provided to the D.A.'s Office at intake.  The prosecutor who took the call is a highly respected, knowledgable and fair Assistant District Attorney.  According to my sources (who, just FYI was not the prosecutor in question), the case was discussed at length with the Deputy Constable at the scene.  They went over the Code and the elements needed to be proved and the Deputy apparently expressed that he did not feel the children were harmed or placed in danger, thus charges were not accepted at that time.  Furthermore, it is my understanding that the case was referred for further investigation.]

17 comments:

Anonymous said...

How is the Pat's fault? She doesn't work intake. And I bet she will now throw someone under the bus and call them incompetent. In fact, it could be one of your friends Murray, or one of the DAs running for Judge.....

We need more facts too. When did this happen? The article is dated today, did it happen Saturday?

Oh, and I'm sure PCT 5 did a bang up job on their investigation and when they talked to the DA, what did they say? The DAs aren't on scene and rely on the cop there to explain what is going on, my bet says the PCT 5 wannabeacop couldn't articulate what happened.

Anonymous said...

Pat Lykos doesn't know the law and has never taken a call at the Intake Division. She is slow to approve investigations much less file criminal charges if there is any possible publicity involved that she perceives might reflect questionably on her. In other words, she only wants charges filed when the case is a whale.

Her mindset pervades the organization therefore, no one is willing to take charges that might raise her ire. This is why all the major Law Enforcement agencies in Harris County voted no-confidence in Lykos. In 3.5 years Lykos has managed to dismantle the criminal justice system inthis county. She HAS to be replaced this term.

Anonymous said...

Not being lettered in the law and reading this blog from the armchair of a citizen, I find myself disturbed by the thought that the security of my person and property falls subject to the District Attorney's preoccupation with how acting in such matters might reflect publicly on her. The concept of the will of the people being expressed through the legislature appears an inconvenience to this DA and I am left convinced that if "a" Rachael Palmer were my trespasser I dare not raise my voice least I become the target of my own complaint.

Just Sayin' said...

Anon 5:38 in the morning,

Besides Constitutional Law, it appears you are not "lettered" in Harris County law enforcement or deductive reasoning either.

Here's an enlightment for you: PCT Constables are to HPD what Rage Judicata is to Chief Justice John Roberts.

How the Texas legislature and Rachael Palmer are factors in whether or not the constable in this instance had sufficient probable cause is beyond me.
Are you suggesting that intake be a rubber stamp for law enforcement and to Hell with the 4th Amendment?

Pat Lykos has her issues no doubt but trashing the US Constitution is wrong regardless whose side you are on.

Just Sayin'

Miranda said...

Two things stuck out to me in the article to which you linked. First was the police officer's idea of what the DA's office is supposed to do. "’It’s the sheriff department’s job to take the report, do their job and then present it to the district attorney and try to build a case,’ Alcede said.” Well, if that were true we wouldn't have an intake office. It's not the DA's job to take whatever the cops say and press charges or build a case. In this case, it seems odd that the charges were rejected, but the cops don't seem to understand that part of the DA's job is to use discretion in whether or not to accept charges.

Second, "authorities" sited in the article misstate the law, saying children under 14 can't be left in a car. Actually, children under seven not attended by someone at least 14 can't be left in a car longer than five minutes. So the scenario you give about mom running into the cleaners wouldn’t even be a violation is it took her less than five minutes, no matter the age of the children.

I point out these two things to highlight that maybe it's not just the DA's office that doesn't know what its job is. Maybe the cops don't know theirs either.

Anonymous said...

So what you're saying is that there was no disconnect?

Rage

Anonymous said...

Murray,

I know you don't like the current leadership of the Harris County DA's office. I also know that you want Mike Anderson to win in the primaries. However, you lose credibility when you post stuff like this and the video from the debate. Your candidate loses a bit of credibility also. Stop throwing spaghetti at the wall. Exhibit the integrity that you expect out of the DA, and everthing else will take care of itself.

A Harris County Lawyer said...

Anon 1:24 p.m.,

Your point is well taken, but in my defense I would point out a couple of things:

1) Regarding the snippet video, I was alerted to it and linked to it on YouTube. My understanding from people there was that it wasn't an unfair assessment of what she said, and in fact, her elaboration on her answer became even worse. Apparently, she began to state that there was a provision in the Code that there be an amount of narcotics left over for defense counsel to independently test. There is no such provision. Quite frankly, given HER penchant for misleading people and twisting facts, I don't feel that there was anything misleading about what I linked to.

2) On this article (Disconnect), I wrote about it after seeing three separate news agencies already reporting on it. I thought it was illustrative of the point that sometimes police and ADAs at Intake disagree. However, it appeared that given the facts that I read in the news that it was hard to understand why the rejection. I did put the caveat in the original story that I didn't know all the circumstances involved, and upon learning more details today, I listed what I knew.

To answer your question and Rage's before you, there IS still a disconnect between the DA's Office and police, or else this story wouldn't be running on all the different channels. I called attention to articles that were already in existence (which probably added a .003% point to total viewers of the story).

When I learned more information, I clarified and defended the prosecutor who handled the call at intake. I acknowledge that my tone in the original article indicated that the Office was failing in not accepting the charges, and now I've learned that I was wrong about it. I'll admit that.

Anonymous said...

Sounds like the DA was correct to reject charges.

If the Constable, and news media, actually read the law and weren't so concerned with making an arrest or throwing someone else under the bus they would see that this father's actions were unlawful and they would've written him a ticket for his actions.

It's a win/win. Except for the media that is, who is left unable to blow something out of proportion.

Texas Penal Code Sec. 22.10. LEAVING A CHILD IN A VEHICLE. (a) A person commits an offense if he intentionally or knowingly leaves a child in a motor vehicle for longer than five minutes, knowing that the child is:

(1) younger than seven years of age; and

(2) not attended by an individual in the vehicle who is 14 years of age or older.

(b) An offense under this section is a Class C misdemeanor.

Anonymous said...

7:54-

You must be one of the inept lawyers that Lykos dragged into office with her or you'd know a Clss C charge is inappropriate. Leaving 5 month and 17 month old infants in a closed, hot car for over an hour while their tatted-up daddy shops for guns is likely a State Jail Felony.

http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.22.htm#22.041

Anonymous said...

Since the media is never to be trusted with the accuracy of any report, let alone its motivation, I file this blog with a great deal of trepidation. However, before discounting whether a crime was committed as suggested by some I would suggest that they read the provisions of TEX.PEN.CODE 22.041(c)(f)more carefully which proscribes it to be a state jail felony to "recklessly, or with criminal negligence ...[to engage] in conduct that places a child younger than 15 yars of age in imminent danger of death, bodily injury.... The provisions of TEX.PEN.CODE, Sec. 22.10 (Leaving a Child in a Vehicle) have been held by at least one Court of Appeals not to in pari materia with the above provision. See, Fernandez v. State, 269///63 (Texarkana 2008), affirming a conviction under 22.041, supra.
At first blush some of the facts in Fernandez were similar to the allegedly reported instant matter, [particularly the times in the vehicle (total about 1 hr.)and the age of the children (15 and 18 months)in Fernandez]. As suggested by some this matter probably needs a bit more attention.
Calvin A. Hartmann

Anonymous said...

I think most of us would consider this child endangerment--a felony:

CHAPTER 22. ASSAULTIVE OFFENSES

§ 22.041. ABANDONING OR ENDANGERING CHILD.
(a) In this section, "abandon" means to leave a child in any place without providing reasonable and necessary care for the child, under circumstances under which no reasonable, similarly situated adult would leave a child of that age and ability.
(b) A person commits an offense if, having custody, care, or control of a child younger than 15 years, he intentionally abandons the child in any place under circumstances that expose the child to an unreasonable risk of harm.
(c) A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that places a child younger than 15 years in imminent danger of death, bodily injury, or physical or mental impairment.
(d) Except as provided by Subsection (e), an offense under Subsection (b) is:
(1) a state jail felony if the actor abandoned the child with intent to return for the child; or
(2) a felony of the third degree if the actor abandoned the child without intent to return for the child.
(e) An offense under Subsection (b) is a felony of the second degree if the actor abandons the child under circumstances that a reasonable person would believe would place the child in imminent danger of death, bodily injury, or physical or mental impairment.
(f) An offense under Subsection (c) is a state jail felony.
(g) It is a defense to prosecution under Subsection (c) that the act or omission enables the child to practice for or participate in an organized athletic event and that appropriate safety equipment and procedures are employed in the event.
(h) It is an exception to the application of this section that the actor voluntarily delivered the child to a designated emergency infant care provider under Section 262.302, Family Code.

Anonymous said...

Speaking of Intake decisions, whatever happened to that radio talk show host alleged FSGI case? Poof! Now you might see it / now you don't. Is it still NOT being investigated?

Anonymous said...

Oh my, I thought the two infants and buying a gun was a law-school-style extreme hypothetical. Didn't they charge the last three or four of these?

I do like this new law enforcement plan of throwing Her Majesty under the bus in the media when there is an intake problem or any problem really. Playing her game, if you will.

Anonymous said...

Here's one charged just yesterday:
http://www.click2houston.com/news/Police-Women-leave-kids-in-car-while-they-have-drinks/-/1735978/9706334/-/12usxst/-/index.html

Anonymous said...

Channel 11 detailing the story again tonight saying a window was left partly down, vehicle unlocked, children left for 52 minutes according to security camera footage. Children in CPS custody and charges expected to be filed against parents tomorrow.

Mark W. Stephens said...

To Calvin Hartmann -

I was reading through this topic and was just about to start pulling my hair out. Then I read your post and my blood pressure went back to normal!

As usual, you not only "get it", you explain it quite eloquently. Thank you sir.