Monday, January 25, 2016

Between Law and Party

Let me preface all of this by saying that like most white kids growing up in my part of Texas in the 1970s and 1980s, I was raised Republican.  My dad is a business owner and a Marine who served three tours of duty in Vietnam.  Fiscal conservatism and strong national security positions were and are important issues to my family.  As I grew older and became interested (and then involved) in criminal justice, I found that I identified more with the pro-Death Penalty and high sentences that were typical of the Republican platform.

In Harris County, the vast majority of my friends who seek elected office run as Republicans – from the District Attorney to Judge to Justice of the Peace.  Quite frankly, it is my personal (if biased) belief that the Republicans generally field the best criminal justice candidates in Harris County.  If a candidate wants to get elected to a countywide office, they are well advised to run as a Republican.  With the exception of 2008, the Republicans generally sweep.  As of this writing, I’ve only voted in Republican primaries.

While Getting Elected in Harris County 101 has consistently required winning the Republican Primary, it seems that more and more the key to winning that nomination is making sure that Republican voters know that you are the candidate who is the farthest to the Right on the political spectrum.  Sadly, that has led to the death of the moderate Republican candidate.  Even in the criminal justice system where issues like gay marriage, Syrian refugees, and abortion rights have virtually zero effect, Republican candidates must let the Party constituency know how violently opposed they are to all three of those things. 

The Republican kingmakers, Steven Hotze and Terry Lowry, audition all of the Republican candidates for their “endorsement” which comes with some purchased ad space in their “Slate” mailers.  Any candidate who hopes to gain their favor must toe the Party line if they want their endorsements.  Sadly the endorsements of Hotze and Lowry do, in fact, make or break elections.  I thought I knew the definition of the word “unseemly” until I watched how the Republican Machine works in Harris County.

Absolutely NONE of the Republican Party platform crap has any place in the Criminal Justice System.  Zilch.  The Law is what the Law is.   Slimy kingmakers who don’t have law degrees have no business attempting to dictate it.

The reason I write this long-winded preamble is because today, the Harris County District Attorney’s Office under Republican D.A. Devon Anderson showed that Law matters more than party politics. 

Last year, Republican Governor Greg Abbott and Republican (and currently indicted) Attorney General Ken Paxton asked the Harris County D.A.’s Office to investigate a series of disturbing videos produced by a group called the Center for Medical Progress, an anti-abortion group led by David Daleiden and Sandra Merritt.  As you may recall, the videos purported to have caught representatives of Planned Parenthood offering to sell fetal tissue and body parts for a fee.  The videos drew outrage, despite Planned Parenthood stating that they were doctored into a format that was extremely misleading.

Governor Abbott and General Paxton must have anticipated that their Republican friend D.A. Anderson would get an indictment against Planned Parenthood for attempting to sell body parts.  It would be great to show what a strong stand Texas is  taking against those murdering abortionists, right?  If no indictment panned out, Abbott and Paxton could say “hey, we tried” and point out it was Anderson who must have dropped the ball.

Unfortunately for Abbott, Paxton, and the gang at the Center for Medical Progress, the investigation didn’t turn out the way they hoped.  No indictments were issued against Planned Parenthood or anyone involved with that organization.  At that point, the D.A.’s Office and Anderson could have just said “oh well” and moved on.  They could have done a little speech about how the evidence was inconclusive and yada yada yada.

But the D.A.’s Office didn’t stop there. 

“We were called upon to investigate allegations of criminal conduct by Planned Parenthood Gulf Coast,” said [Devon] Anderson, a Republican.  “As I stated at the outset of this investigation, we must go where the evidence leads us.  All the evidence uncovered in the course of this investigation was presented to the grand jury.  I respect their decision on this difficult case.”

In a truly surprising move, the Grand Jury investigating David Daleiden and Sandra Merritt’s accusations against Planned Parenthood found probable cause to indict Daleiden and Merritt instead.  Both were indicted for the second degree felony offense of Tampering with a Governmental Record and Daleiden picked up an additional misdemeanor charge of attempting to buy a human organ.

The rejection of indictments against Planned Parenthood, coupled with the indictments of Daleiden and Merritt, tend to indicate that they were trying to pull something over on somebody.  As of this writing, copies of the indictment aren’t available on the Harris County website.  Whether they falsely made some identification to bolster their credibility, or whether the videos they made were ultimately considered to be falsified evidence is unclear at the moment.  Daleiden apparently was unaware that his attempt to purchase fetuses was illegal in and of itself. [UPDATE: The government documents that were falsified were fake California driver's licenses with fake names on them.  They are charged with using them with intent to defraud.]

It would be easy to think that the credit for these indictments goes solely to the members of the Grand Jury, but that would be misleading.  The District Attorney’s Office did not have to present the Grand Jury with the option to indict Daleiden and Merritt.  But they did.  And they should have.  And it was what Justice required.

For those keeping score at home, that brings the score to “Duty to Seek Justice: 1, Duty to Republican Party: 0.”

Make no mistake about this, Devon Anderson is about as pro-life as they come.  I’ve known her for a little over 15 years and her personal beliefs very much align with the Republican Party.  No one could ever accuse her of being a dreaded R.I.N.O.  I’ve seen her give speeches at Republican functions that would make Ronald Reagan pale in comparison.   She doubtlessly knew this would not sit well with her party, but she proceeded with integrity.

Governor Abbott, on the other hand, was a little less dignified.

“Nothing about today’s announcement in Harris County impacts the state’s ongoing investigation,” Abbott said.

Really?  Nothing?  Your two star witnesses in this case just got indicted for Tampering with Evidence and that doesn’t impact your investigation, Greg?  Didn’t you used to be Attorney General?  As a trial lawyer, I gotta tell ya, that’s kind of a big kick in the crotch from the old evidentiary standpoint.

Fortunately, it is too late for Devon Anderson to draw an opponent in the Republican Primary this election cycle.   The die-hard conservatives are already foaming at the mouth.  The conservative website The Federalist is already saying the indictments were unfair because Lauren Reeder, a prosecutor at the Harris County D.A.’s Office, is on the board of Planned Parenthood.  The intellectually dishonest article insinuates that Reeder had something to do with the indictments, when in fact, she was completely uninvolved with the case.  They post her personal information in some attempt to shame her, and, I suppose, shame Devon Anderson for employing her.  The Federalist is going to be really mad when they find out the D.A.’s Office hires gays, blacks, and Hispanics, too.

Things like Abbott’s boneheaded statement and The Federalist’s lame attempt at a smear campaign are what make me feel so very alienated from the Party I grew up in.  That level of vitriol and intellectual dishonesty is a far cry from the values I was brought up to respect.  Doing the right thing in the face of dire consequences is a much more admirable character trait.  That’s what true public service is about.

Today, Devon Anderson and her prosecutors at the District Attorney’s Office reminded me of that. 

And for that, I am profoundly grateful.

Saturday, January 16, 2016

Me, Greenfield and Bill Cosby

This week, I was invited to be a guest on Lawyer 2 Lawyer on the Legal Talk Network with Bob Ambrogi.  Scott Greenfield suggested my name as a co-guest with him, and we talked about the Cosby case.  It was a lot of fun and I enjoyed the hell out of doing it.

I think Scott and I should start our own reality show featuring a New York defense attorney and a former Texas prosecutor.

If you want to listen to the 30 minute broadcast, you can by clicking here.