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.