Return of the Jedi

Some of you on the 6th Floor might have had a flashback if you happened to run into former First Assistant District Attorney Bert Graham or attorney Dick Bax today.

Both men have been asked by District Attorney-elect Mike Anderson to come in to be a part of the transition team as he prepares to take office on January 1, 2013.

District Attorney Pat Lykos has followed in the footsteps of former interim District Attorney Ken Magidson by allowing the incoming District Attorney's transition team to begin work on the Monday after Thanksgiving.

It was a decent and classy move by Lykos.  Yeah, I said that in print.

Allowing Judge Anderson's transition team to come in early will help eliminate any confusion that could potentially take place on January 1st.  She didn't have to do that, so kudos to her for allowing it.

I'm sure that the next few weeks will be filled with rumor and gossip as names are dropped for who will be doing what under the new administration. That's natural, and, in some ways, kind of exciting.  I look forward to hearing who Judge Anderson will choose for his Leadership Team.

The 177th's Death Penalty Hearing

The media (especially the Houston Chronicle) has been abuzz this week over the hearing going on in Judge Kevin Fine's court about the death penalty. Specifically, this morning, the Chronicle seems aghast that District Attorney Pat Lykos would order her appellate division (represented by Alan Curry) to remain silent during the hearing.

The Chronicle calls Lykos' move "bold".

I'll call it something else -- smart.

Yes, I know you are probably shocked that I agree with Pat Lykos on something, but let's look at what other choice does she really have in this matter at this point? The Harris County District Attorney's Office has registered their objection to the hearing taking place at all. They have put those objections in writing and Judge Fine has overruled them and is proceeding with the hearing anyway.

So, the move Lykos and Company are making is really the only one they can play now. They don't believe that the hearing has any legal value because it isn't something authorized by the Code of Criminal Procedure. Legally and respectfully, they aren't going to justify its existence by participating in it.

And, in this, I think they are taking the right tactic.

When I was in law school, I interviewed then-District Attorney Johnny Holmes about the Death Penalty. One of the many things he pointed out to me when I interviewed him that afternoon was that he would never participate in a Death Penalty debate, despite the fact that he was constantly bombarded with invitations to do so. The point that Mr. Holmes made to me was that the Death Penalty is something that is such a hot-button issue that it is deeply ingrained in the way a person thinks and feels. Much like issues of abortion or anything else that ties into a person's definition of religion and/or morality, one's feelings on the Death Penalty aren't going to get changed by a debate.

He was right, and the Lykos crew is treating the hearing in Judge Fine's court as a very public debate in a courtroom. What is the point in entering into it?

I like Judge Fine, and I think his heart is in the right place. I also think he has courage in his attack on the Death Penalty. It is certainly not going to be the most politically savvy move he has made on the bench.

But he knows that.

And he's proceeding anyway.

I find his principles admirable, even though I don't really agree with what he's doing.

I had a talk with Pat McCann last night over, um, coffee, about whether or not the hearing in the 177th would actually change anything. We disagreed over whether or not it would. Personally, I think the hearing will bring a lot of attention to the Death Penalty in Texas, but I don't think it will change anything directly.

But, I could be wrong about that. I have been before.

In the meantime, grab some popcorn and sit back and watch. It should be interesting.

The New Crack Pipe Policy

Pat Lykos has gotten herself back in the news today with the announcement of her new policy of the Office no longer filing crack pipe "residue" cases. As the Chronicle article points out, the move is being met with polar opposite reviews from police officers and defense attorneys.

For those of you unfamiliar with the lingo, a crack pipe residue case is typically called a "trace case" by most criminal lawyers. The typical scenario is that a person is arrested for a Class C offense (in the poorer neighborhoods, that's usually a jaywalking, walking in the street where a sidewalk is provided, or a bicycling without a headlight). Once a patrol officer arrests the Class C scofflaw, the "search incident to arrest" will often times recover a crack pipe with no crack rock in it. However, a quick test with a field kit will show that the pipe tests positive for cocaine residue and voila, we have felony charges.

The reality of the situation is that the crack pipe once held a perfectly solid crack rock, but now it's gone. The way the statute reads allows for any amount of cocaine be filed as a State Jail Felony. In other counties, however, the cases can be disposed of with a Class C Possession of Drug Paraphernalia plea. In Harris County, the cases were often handled with 12.44(a) Time, which is a felony conviction punished with misdemeanor jail time.

The police are not happy with Lykos' new policy, and I understand why. Police Departments like to utilize the statistics of Felony Arrests, and if the D.A.'s Office isn't going to let them count crack pipe residue cases anymore, then those stats are about to take a severe dip. That ain't going to make the upper echelons happy, if you ask me.

My thoughts on Lykos' policy is that this was probably a good move, though.

Yes, you read that correctly. I agree with Lykos on this particular issue.

Filing crack pipe cases are a tremendous use of State resources that could be better expended on more serious cases.

And it isn't as if she is de-criminalizing drugs. The option will still remain for a police officer to file a Class C violation on a crack pipe holder and they will still have the power to take that person into custody (if they so choose). They just aren't going to get their felony arrest stat and the accused isn't going to spend the next several months in jail.

And the prosecutors at the D.A.'s Office can spend more of their over-worked time focusing on more serious cases.

Now I'm wondering what the Office is going to do with all the residue cases that are currently pending. I'm hoping that a lot of us are going to be getting our Class C offers immediately and we can get some of these folks home for Christmas.

A Good Idea Implemented

Brace yourselves, folks. The Gang Who Couldn't Shoot Straight did something right last week, and I'm acknowledging it.

Starting last week, numerous Felony District Courts began getting pre-commit attorneys as Felony "Fours".

For those of you not familiar with the terminology, a "Pre-Commit" is a soon-to-be lawyer who is just waiting on the results of his or her Bar Exam results before they can get sworn in and all officially lawyerlike. The District Attorney's Office hires them after a lengthy interview process and they begin conditional employment with a Bar Card (it's kind of like a Learner's Permit for lawyers. You can drive, but a licensed attorney has to be sitting with you). The condition is that the Pre-Commit has to pass the Bar Exam.

In the past, Pre-Commits who were hired by the Office went directly to the Misdemeanor Courts where they filled the role of a Misdemeanor Three -- trying DWI cases with no accidents or breath tests, small marijuana and theft cases, etc. It wasn't a bad idea, because they could get a couple of trials under their belt before they were even bona fide lawyers.

However, although starting a pre-commit could get some trial experience, what starting in Misdemeanor failed to provide them with was some good old fashioned Perspective.

In one of my posts last year, I pointed out that rising up through the ranks as the D.A.'s Office promotion ladder is structured was a good way to gradually get more comfortable trying progressively serious cases. The downfall of that is that the prosecutor is perpetually at the zenith of his or her most important cases tried.

I pointed out the example that I started in the Justice of the Peace Division and by God, I was one hell of a crusader against them No-Seatbelt-Wearing Bastards. Had I spent some time in the Felony Division before heading down to Class C court, the speeding ticket cases might not have seemed quite as proportional to a Capital Murder to me.

The Gang's idea of sending the Pre-Commits into the Felony Courts first is not one that they originated, but they do deserve credit for implementing it.

A Baby Pre-Commit now has the benefit of getting his or her first lessons in prosecution from a seasoned Felony Chief who has been prosecuting for years. These are the men and women of the D.A.'s Office who have actually tried the murders, sexual assaults, and aggravated robberies and have a lot to teach. The Pre-Commits might actually get to learn how to truly work up a case, and ultimately learn the difference from a good case and a bad case.

But the real value in it, in my opinion, is that the Pre-Commits under the new policy will realize that there is a tremendous difference between a murder and a misdemeanor possession of marijuana, and there truly is not such a thing as a "Capital DWI" trial. That type of perspective can shape the general attitude of the prosecutors in the Trial Bureau, while making them better at their jobs at the same time.

So, good call this time, Gang.

There, now I've actually written a post complimenting the new administration. The Final Sign of the CJC Apocalypse has arrived . . .