Tuesday, February 26, 2013

The Bunker Mentality

As you may or may not be aware by now, the mandatory ethics training hosted by the Harris County District Attorney's Office on January 31st has recently come under attack by political pundit and die-hard Pat Lykos fan, David "Big Jolly" Jennings.   Big Jolly says:
"Immediately after the conclusion of newly elected Harris County District Attorney Mike Anderson's first training session for Assistant District Attorneys several [emphasis added] people that were appalled by the "training" asked me to look into it."
Gee, I wonder who those "several" people were.

Now (after I get this image of "Super Jolly to the rescue!" out of my head) let me point out a couple of things that I think are relevant before we break down his interpretation.

First off, David Jennings isn't a lawyer.  I'm not saying that makes him less intelligent -- Dave is very intelligent -- however, he often misses finer points of law.  At the early part of last year, I spent an hour trying to explain to him what the legal problem was with the DIVERT program, and the information just wasn't taking.  His allegiance to his particular candidate caused him to shrug off the law I was trying to explain to him.

Second, from the Missing the Forest for the Trees Department, did we forget the point that the new administration, in the first month of their regime, held a mandatory training session on Ethics?  If I recall correctly, the first mandatory training hosted by the previous administration was given by a paid speaker who talked about how the primary job of an Assistant District Attorney was to make their boss "look good."

Don't even say it, Rage.  I'll move along.

Big Jolly posted his article last Wednesday, and felt so strongly about it that he felt the need to do a follow up post on Friday where he cherry picked his favorite snippets of dialog from the lecture.  To be fair, he acknowledges his own bias in both posts.  In the meantime, the article picked up some traction and has been addressed by Scott Henson's Grits for Breakfast and Paul Kennedy's The Defense Rests (where in typical non-inflammatory Kennedy style, he refers to the D.A.'s Office as "a cult.")

I haven't posted on it before today because I thought I would actually take the time to watch the entirety of the video before commenting.  I know Big Jolly watched it all.  At the time of writing his article, Grits acknowledges that he had not watched it all.  Paul doesn't say whether or not he watched it all.  It is lengthy -- about 1 hour and 40 minutes.

My take on it is kind of tepid.  It certainly isn't the most awesome Continuing Legal Education seminar that I've ever watched.  I think that it could have used a lot more specific examples of what is Brady (exculpatory evidence, for you non-lawyers) material and a stronger emphasis on the fact that the duty to disclose Brady material extends to collecting it from police officers.

However, I don't think it resonates with the "cult-like" "bunker mentality" that Big Jolly is hoping it is portrayed to be.  I'm not going to go into as much depth on the class as Big Jolly does in his pieces, but I encourage you to watch the video yourself if you've got the time to kill.

In the end, I think the biggest problem with the seminar was that the wind up lasted about ten times longer than the pitch did.  Rob Kepple, Mike Anderson, and Johnny Holmes spent more time talking about how the "day and age" had changed more so than they did explaining how to adapt to it.

Anderson introduces the program, and points out the fact that the Innocence Project thinks of prosecutors as something "less than pond scum."  I suppose that is inflammatory, although I didn't think it was designed to rile up the audience of prosecutors against the Innocence Project.  I thought it was more a word of caution that prosecutors (and how they handle their cases) are under the microscope.  The message was very clear:  if a prosecutor thinks they are going to get away with fudging on facts because they operate under the delusion that everyone considers them the guys in the "White Hats," that belief is mistaken.

I can understand the interpretation that it may cause an "us vs. them" mentality, but hasn't the Defense Bar always wanted the prosecution to know that they are being watched when it comes to their ethics?

Mr. Holmes' appearance at the class was clearly an effort to get prosecutors fired up about doing their jobs, again.  He was the cheerleading opening act to Kepple's speech.  If some would take offense to the idea of getting the ADAs excited about prosecuting, there isn't much I could say to rebut their feelings.  He tells a story about trying a case against defense attorney Mike Ramsey, where Ramsey acknowledged that he was arguing some flimsy material.  His point is that prosecutors don't get to argue flimsy evidence when defense attorneys can.

The keynote speaker of the engagement was TDCAA's Rob Kepple.  I know Rob, but I've only met him on a couple of occasions.  Did I think his speech could have been better?  Yes.  Do I think it was as evil and conspiratorial as others have made it out to be?  Um, no.  Not even close.

Kepple begins by saying that times have changed and that the public doesn't have that blind love of prosecutors and law enforcement that they did back in the 1980s.  Is he lamenting?  I don't know.  Probably.  Who cares?  He then cites reasons that there may have been a change in attitudes from then to now.

He talks about how prisons were built and people got locked up.  People began to feel safer.  Fighting crime was no longer a priority in their minds.  He does cite the fact that formerly supportive business groups now regard the District Attorneys' Offices across the State as just another part of "big government" and aren't as supportive as they used to be.  Again, is he "lamenting"?  Who cares?

He cites the Pedro Oregon case, but he isn't applauding anyone.  He is simply pointing out that prosecutors have to make decisions that are often wildly unpopular in the public.

But after this is where Kepple's speech gets really misconstrued by Big Jolly.  Kepple readily acknowledges that prosecutors have not helped their own public perception by the way they've reacted to change.  He cites Mike Nifong and "Nifong Charlie" Sebesta for their over-aggressive and unethical prosecutions.  He talks about the Michael Morton case and Ken Anderson and John Bradley.  He acknowledges that John Bradley was his friend, but points out that Bradley's antics cost him his job in the primary in an extremely pro-prosecution county.

Does he call Michael Morton "lucky" because he got retesting done which ultimately freed him?  Yes, he absolutely does, but he doesn't do it with sarcasm.  He points out that many prosecutors have been opposing retesting of DNA and that fortunately Morton got his done and was exonerated.  He wasn't belittling that by any stretch of the imagination.  He stated that his hope is that Mr. Morton will come speak to TDCAA in the future about what happens when exculpatory material is withheld.

He does talk about how in sports, incidents of cheating are often forgiving, but his point is to show that this type of mentality does not work in prosecutions.  Prosecutors have a higher standard.  There should be no fudging.  There should be no cheating.  The example he gives of Billy Jack is of the prosecutor who wins their case with the material they are given and don't have to do anything sneaky to succeed.

Maybe I missed it, but I didn't see Kepple telling any of the prosecutors anything other than to do their jobs fairly and to be proud of the work they did.  He told them people are watching the job they are doing so they better do it right and they had better do it ethically.

Isn't that kind of what the Defense Bar has been wanting them to do since, I don't know, the beginning of the Legal System?

As for the "Bunker Mentality" and thinking that other people are out to get them, one of the comments on Grits' post may have provided some insight into why prosecutors feel that way.  An anonymous poster wrote the following information, referencing the murder of Kaufman County prosecutor, Mark Hasse:


That was over 48 hours ago, and (as of this writing) there hasn't been one single comment even arguing with that poster's logic.

To me, that's a hell of a lot more offensive than anything said during the Ethics Training Seminar.


37 comments:

Ethics 101 said...

Mr Newman, Sir:

If an ADA feels ethically compelled to drive to his boss' house on a Sunday to ask if it is okay to dismiss a case against a wrongfully accused defendant; is it really relevant that the defendant plays ball for the NY Mets?
The suggestion that such a drive demonstrates high ethical ADA standards begs one to ask: if that same ADA discovered that the arresting officer in one of his pending cases planted drugs on a poor crackhead defendant should or even would the ADA in question make the same Sunday drive to his boss' house seeking permission to dismiss?
Prosecutorial ethics demands that there be but 1 set of ethical standards at any DA's office.......whether the defendant is liked, is well connected, plays professinal baseball for the NY Mets or lives under the Pierce elevated with his crack pipe should never influence the ethical behavior of a prosecutor.

A Harris County Lawyer said...

Ethics 101,

Did you not feel that enough people would read your exact same comment on the last post?

Welcome back to the blog. Its been awhile. Of course, you were writing under a different name back in 2008.

Ethics 101 said...

You're an honorable man, Mr. Newman, which is more than I can say for most.
My original comment was made under the wrong post, my sincere apologies.

But unlike Mike--I believe whether it's the pee wee league in Lubbock or the SEC in College Station, ethics are ethics and I don't need a Sunday drive for an ethics check with JBH.....I know JBH well enough to know how rock solid his ethical compass is without pandering.

Paul B. Kennedy said...

Non-inflammatory? I'll just have to try harder next time.

David said...

Ethics,

Could it be he wanted to check with, and give a heads up to, JBH before dismissing a case that the media may pick up on? Just a thought...

Chris Downey said...

The one thing Mr. Holmes taught everyone who worked under him was a simple rule that all prosecutors should keep in mind: Prosecuting is not a team sport. You do what is right.

That may mean going to trial on cases with thin evidence that you might lose because after evaluating the case, you believe that the defendant is guilty. Because It is not about winning and losing. And it also means dismissing cases when things are done wrong, or can't be proven or get screwed up because you don't cover up mistakes. Instead you do the right thing and unpopular thing and move on.

And then the system gets stronger because smart people learn from mistakes.

Ethics 101 said...

David,

Three problems with your reasoning come to mind:
1. JBH was never intimidated by the media.....doing the right thing simply because it was the right thing to do was always a sufficient rebuttal in his administration
2. Suggesting that Mike had an emergency epiphany Sunday morning requiring a face-to-face CYA is hysterical
3. They had phones back in the "good ole' days" to discuss the disposition of defendants who were deemed the "privileged elite" by those who did not appreciate the JBH philosophy.

In hindsight, Mike's "NY Mets dilemma" actually revealed his apprehension to independently make tough decisions. Leaders lead with conviction; they don't punt every tough decision

Anonymous said...

Awwww. Poor little bradley lost. His primary?

Need I go down the list of things a wrongfully-convicted person loses?

Overall I get your post. I still think you're trying to wear two hats, though, and you need to make the switch for good. Either be a defense lawyer, or go back to prosecuting.

The pond scum analogy is way off though. You know better than that.

Rage

David said...

Ethics,

While I agree with you that doing the right thing because it was the right thing was a sufficient rebuttal, and that JBH wasn't intimidated by the media (I never suggested he was), giving a heads up to JBH and getting his thoughts before the media came calling was appreciated and expected. Any good chief knew to let the 2nd floor know what was going on with cases that might interest the media so they weren't blind-sided by a reporters phone call.

Bottom line is that neither you nor I know the why. The story told at the training was a way to introduce and compliment JBH to those who didn't know him....which I think was achieved.

Finally, your reasoning that Mike "punt(s) every tough decision" based on a story told by him at the introduction to an in-house training is what is hysterical.

Anonymous said...

If we all ignore BJ he becomes irrelevant again. You increased his readership ten-fold+ by introducing your audience to him.
He's never coming around and is not worth any effort....

Ethics 101 said...

David,

2 points:

1. "...Any good chief knew to let the 2nd floor know what was going on with cases that might interest the media so they weren't blind-sided by a reporters phone call..."

I agree 100%. However, that is not remotely the same as driving to JBH's home on a Sunday afternoon hat in hand like a timid mouse.

2. "...Finally, your reasoning that Mike "punt(s) every tough decision" based on a story told by him at the introduction to an in-house training is what is hysterical..."

I'm sure you will agree that my job will be safe "taking the 5th" on that line of reasoning!!! (diplomacy for the sake of censorship).

Anonymous said...

Chris Downey @7:58,

Excellent comment........and then there are the Dick DeGuerins who personify "you can't fix stupid".

Rage, before you start whining as to the different role defense counsel serves......I was referring to Chris' closing line.

Anonymous said...

Murray,

Any scuttlbutt on who the Special Prosecutor is going to be?

There are a bunch of top prosecutors to choose from since your pal Mike Anderson decided that restoring trial experience to the HCDAO was a better campaign slogan than enacted policy.

A Harris County Lawyer said...

I have heard a name associated with the Special Prosecution but I don't know if it is confirmed yet so I'm not publishing it yet.

Anonymous said...

Leave Mike Anderson aloooooooooone!

Anonymous said...

Rage, before you start whining as to the different role defense counsel serves......I was referring to Chris' closing line.

You grossly exaggerate how important your post is to me.

Rage

Anonymous said...

Rage,

Au contraire mon ami!

Do you not appreciate the gross hypocrisy in your exaggerating one's import! That's some funny shit coming from you.

***************

Anon 1:48,

Stellar defense of your boy Mikey!
Who needs seasoned veteran prosectors when Mike Anderson has you?

Anonymous said...

Chris Downey:

Your statement as to what made Mr. Holmes such a great and RESPECTED District Attorney nailed it. Harris County lost a lot when he retired........and lost again when those who shared his convictions left behind him.

In fact, post-Holmes when a prosecutor dares to try a tough case they believe in and prevails in spite of the odds; that prosecutor risks being labeled a "win at all costs" corrupt personification of evil.

John B. Holmes would NEVER have stood down in the face of false accusations leveled against one of his ADAs who fought for justice simply because it was the right thing to do........popularity be damned

It is no wonder few HCADAs today have the courage and character to try tough cases they believe in......why should they and who will teach them?



Gritsforbreakfast said...

Murray, I must say it's straight up BS to equate an anonymous blog comment at the end of a long string with a formal ethics training sponsored by the DA and the prosecutor's association. Yes, some anonymous commenters are full of shit, but that's utterly insignificant compared to the instruction received by prosecutors at the DA's official training sessions.

You may have noticed the Houston Chronicle editorial board was less generous than you in their assessment, but maybe one of their commenters will say something nasty so you can dismiss them, too.

Brad Walters said...

The exoneration cases over the last few years were not for the most part "tough cases". They were cases that required cheating and leaps of logic to win. Convincing 12 average citizens that there is no reasonable doubt of guilt while not presenting or revealing the evidence of reasonable doubt is not making a mistake...it is winning at all cost except that with absolute immunity there is no cost to the cocksure sociopath that brings the so called tough case and "wins" an unjust verdict. When someone is actually innocent it takes a lot of illogical leaps and sluffing off reasonable doubt to get a guilty verdict, but it keeps on happening. Something tells me the new general counsel will support this rationalization regarding prosecution of "tough cases".

Anonymous said...

Brad Walters,

I guess if the defense attorneys did their job and presented the evidence of reasonable doubt, the innocent might have a better chance. Obviously nobody wants an innocent person to go to jail, but so many defense attorneys expect the prosecutors to tell them everything. Get off your collective butts, get to the DA's Office, and look at the files more than a week before trial. Quit expecting te ADA's to do your job for you!

Anonymous said...

Brad Walters, Aldape Guerra was NOT an exoneration like Michael Morton. In Aldape witnesses recanted and claimed to have been coerced into implicating the Defendant. Judge Hoyt, that legal midget, ordered a new trial. Elsa Alcala then an ADA evaluated the case on remand and determined that due to missing witnesses and the lapse of time the case could not be retried. Ultimately JBH approved the dismissal. Maybe you an Lil' Red of Chron fame should get your facts stra

Thomas R. Griffith said...

Damn Murray, closing up a piece like this with the Cutting & Pasting of a quote left by an Anonymous commenter in a reputable Blog's comment section, as going to the character of ‘all’ simply because you've monitored it for 48 hours & it garnered no reaction(s). Now, when the victim's family researches his legacy they'll see this article that ends with an Anon's statement having nothing to do with anyone's Post. I hope they understand Grits is very busy and the act of ignoring is the proper thing to do until he gets time to clean house and it’s hoped they don’t bash you for the lumping.

‘You’ could consider Replying to the Anon. You could consider ignoring or replying to Grit's Reply. Then there's apologizing or not and the thought of sharing the I.P. address to verify if it's a frequent visitor of yours under a different name. Thanks.

*FWIW. I've never seen Grits appoint any of the very persistent Anon.(s) chain yanking / passionate / vile commenters' to you or anyone for that matter. Blawgs bashing Blogs over Anons. Comments’ regarding the actions’ & inactions’ of the public at large and /or blog owner considered disgusting and a bunker mentality. I believe that's a first.

A Harris County Lawyer said...

Thanks Mr. Griffith,

Your feelings towards prosecutors is well documented.

Anonymous said...

Hey Mr. Griffith, go fly a kite.

Brad Walters said...

Anon: 4:42. So you know that the witnesses that recanted lied about the coercion? Our new DA once had a physical altercation in a court room with a CW that that did not want to press a case. BTW I never mentioned the Guerra case.

Brad Walters said...

Anon 11:33 Do you even know your duty under Brady and Kyle? I am assuming you are a prosecutor. If you know that an agency is equipped with dashcams and has a policy requiring video of all stops is it not the prosecutors job to acquire that video or a good explanation as to why it is not logged as evidence on the OR? I have had multiple prosecutors supposedly ask for evidence to be turned over, over the course of several settings because I know it will contain exculpatory information. The LEO supposedly tells ADA it doesn't exist. Then because the LEO & ADA did not do their job by turning over Brady on request, I subpoena the evidence or get an order from the judge to turn it over and evidence that supposedly did not exist shows up after months of being withheld. If it is Brady and we have not accepted your plea offer you bet I want you to tell me everything exculpatory, impeaching or mitigating. You have an affirmative duty even in absence of a request. So get off your "collective butts" and do your job. I think we can all agree that no one wants an innocent person convicted. This goes a long way to prevent that from happening. How do you prosecutors feel about honoring the exclusionary rule and dismissing a case where we all know (thru illegally obtained evidence) that the defendant is guilty, but had his fourth amendment rights violated by an officer who is routinely violating the rights of the guilty and innocent alike? The innocence cases are bad, but the guilty where rights were violated are more common. Do you believe that you should encourage the violation of rights and due process in cases where we "know" the defendant is guilty? I have my doubts about the wisdom of the exclusionary rule because two wrongs don't make a right, but in a world where prosecutors have absolute immunity, LEOs have qualified immunity and some prosecutors and judges go out of their way to avoid prosecuting cops for violating the civil rights of citizens, it is all we have. For justice sake it would probably be better to nail both the guilty and the officer who violated civil rights. I have great respect for the ethical prosecutor who respects the exclusionary rule enough to invoke it without a suppression hearing when the evidence calls for it. BTW I have always read the entire file multple times before trial. I'm not part of a collective.

Ethics 101 said...

Brad Walters,

If a criminal defense attorney alleges an ADA violated Brady or otherwise performed in an unethical manner; it is the height of hypocrisy to presume the ADA is guilty as charged solely on the criminal defense attorney's unsubstantiated allegations.

When it comes to immunity, it seems that criminal defense attorneys are immune from defamation causes of action for recklessly attacking the reputation of an ADA.

Clearly the duty of an ADA to seek justice and that of a defense attorney to procure an acquittal for his client are vastly different; however, that should never preclude an ADA from seeking justice in the tough cases. Simply because most crooks are careless does not mean the clever crooks ought not be prosecuted. And when a "clever" crook or a well connected crook with a "clever" defense team gets convicted for his crime; the ADA's success in securing justice is not sufficient grounds in and of itself to presume she acted unethically......to suggest otherwise supports your being a graduate of the Dick DeGuerin school of sore losers.

Anonymous said...

Brad, if you haven't had a prosecutor dismiss a case because of a bad search before the actual motion to suppress then you should either try more criminal cases or reassess your method of persuasion. It happens all the time. I can count on one hand - one finger to be exact - the number of times I went to a hearing on a search I thought was bad. Turns out my chief was right and I was wrong. And before you ask, yes-I know what Brady is.

Anonymous said...

Brad Walters-Tommy Griffith Logic 101:

Mike Nifong, Charles Sebesta, John Bradley and Ken Anderson were all over-aggressive and unethical prosecutors.

Mike Nifong, Charles Sebesta, John Bradley and Ken Anderson are representative of ALL high profile prosecutors as a class.

John B. Holmes, Kelly Siegler, Rusty Hardin, Toby Shook and Murray Newman were all high profile prosecutors.

Therefore, John B. Holmes, Kelly Siegler, Rusty Hardin, Toby Shook and Murray Newman were over-aggressive and unethical prosecutors.

Brutha Puleeze!

Thomas R. Griffith said...

Sweetie, you left out Mr. Casey J. O'Brien in your haste to cast a blanket charge of "over-aggressive and unethical prosecutors". Mistakes happen when you are handing out Logic 101 in the dark to people you don't know.

*For the record, I've heard nothing but good things regarding Mr. Newman's record both as a former ADA & CDL. If you have documented information that he wasn't on the up & up, pray tell. Otherwise you are wrong to lump him in the mix and owe him an apology. Never heard of Mr. Rusty Hardin either, maybe you owe him one to. Mrs. Kelly Siegler is a friggin hero & you should hope she doesn't slap your face for lumping her as well.

*Jiggy? I don't see us flying kites together but stranger thing have happened, thanks for asking.

Anonymous said...

Murray- I appreciate your attempt to be even-handed in your evaluation of the Kepple " ethics" speech. I have watched the
Video and read the transcript. It have lectured lawyers on ethics. Calling it an ethics speech does not make it an ethics speech. It far more a political speech about the political issues facing prosecutors. Quite a bit of it was offensive and irresponsible. I wrote Rob Kepple at told him as much. Just one example: Kepple said more than once that John Bradly did nothing wrong or unethical. The man fought and obstructed the testing of critical evidence in the Morton case. Bradly needlessly extended Mr. Morton's incarceration tor a crime he did not commit. Kepples endorsement of Bradly sends the exact wrong ethics message to young DAs
Robb Fickman ( not anonymous)

You can be my huckleberry said...

Thomas "Tommy" Griffith,

Oh my goodness. You missed the entire point of my sarcasm.

The spoof was written to point out the convoluted logic so often employed by the likes of Dick DeGuerin and his ilk. The DeGuerin mentality suggests that a few bad high profile prosecutors taint all the rest. DeGuerin even went so far as to support a complete incompetent, Pat Lykos, in her successfull 2008 campaign for DA on this bullshit.

Johnny Holmes, Kelly Siegler, Rusty Hardin, Toby Shook and Murray Newman all exercised the highest ethical standards as prosecutors and continue to do so in the private sector........and that was the intended message you somehow missed.

Hint: If you re-read my original post you will note that the conclusion was based on the blatantly faulty assumption that the premise of the 2nd sentence was true and correct; thus rendering the conclusion erroneous.

Parenthetically, I am glad to have misjudged you as being in the DeGuerin camp; in retrospect, the heading should have read: Brad Walters-Dickless DeGuerin Logic 101.

Anonymous said...

Mr. Thomas Griffin you apparently are not aware that Casey O'Brien and Mike Anderson were joined at the hip while serving together in Special Crimes back in the good old days when they were both ADAs with Harris County.

Anonymous said...

How would you know if the search or stop was bad if the video of the stop is being withheld or in many cases destroyed? I don't know who you are so maybe you do the follow up to get that evidence. Others do not and even go so far as to pull recs off the table if I go after it when they pretend it does not exist or take the word of the cop that the video does not exist only to have it turn up after compulsory process months later.

Anonymous said...

Brutha please lookup "straw man" before you hang up your shingle to instruct on logic.

sdharms said...

Ethical and prosecutor should not be used in the same sentence. Prosecutors throw everything up against the wall and hope the defendant pleads to something. Discovery occurs at the counsel table 5 min before trial. And it is the poor and the black who mostly get the short end of the stick.