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.

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.

Shirley Cornelius

Shirley Cornelius turned in her letter of resignation to the Harris County District Attorney's Office on Wednesday.

In light of the massive exodus of long term prosecutors that has occurred over the past year and eight months, facially, it would seem that Shirley's resignation was no more nor less significant than those who have resigned before her (or the ones who will be resigning in the months to come). But a closer look at Shirley's departure is actually very telling on many levels about the Pat Lykos administration and the way they treat their employees.

Shirley leaves after a 27 year career with the District Attorney's Office that began under Johnny Holmes. Both of her brothers, Skip and Terry had served distinguished careers with the Office and are now highly respected members of the Defense Bar. Working for the D.A.'s Office was something of a Family Tradition for the Cornelius family, and they all did their family name proud during their tenure.

Most people know that.

What most people might not know is that during the fifth year of her career, Shirley's 10-month old son was diagnosed with static encephalopathy, which is permanent brain damage. As he grew older, her son's health problems grew to include Autism and Mental Retardation.

At that time, Mr. Holmes was the District Attorney, and he made sure that the Office worked with Shirley and her family to do everything that they could to help. Shirley had to meet the challenging needs of getting her son ready for his school, and Mr. Holmes approved her for "flex time", which allowed her to work from 9 a.m. to 6 p.m.

It was a Reasonable Accommodation and the right thing to do. And it was something that continued for Shirley for the remainder of Mr. Holmes' tenure, into the Rosenthal Administration, and even under interim D.A. Ken Magidson. It even continued under the Lykos Administration until May 17th of this year.

And on May 17th, under the Lykos Administration, the Office let go of its Moral Conscience when it came to how it treats its employees. And keep in mind, this comes from the same District Attorney who has done this and this (oh, and this) to her employees.

What Lykos and the Gang Who Couldn't Shoot Straight did to Shirley Cornelius was much worse.

On May 17th, Shirley was transferred to the Truancy Division, and notified that she would no longer be allowed the 9 a.m. to 6 p.m. accommodation. She was told that she would need to work the 8 to 5 schedule like everyone else. Keep in mind, Shirley still has to care for her now-22 year old son, who still has all of the difficulties that he has always had. Even the most minimal of tasks such as getting dressed and brushing teeth are things that she has to do for him.

To add insult to injury, over the Memorial Day weekend, Shirley spent it at the office, moving into the office for her new Truancy position, and learning how to enter data on the cases she would be handling. This type of work has always always always been approved for "Comp Time" in years past, as it is outside regular business hours and something that you must do for your job.

Rightfully so, Shirley filled out her time sheet and listed the hours she spent moving her office and doing the data entry as Comp Time. She clearly and accurately listed the hours she had spent.

A few days later, Shirley was informed by her supervisor that Lykos' right-hand woman, Hannah Chow had refused to approve Shirley's comp time hours.

Now, keep in mind what a steaming pile of B.S. it is that Hannah Chow is arbitrarily deciding to not approve comp time after it has already been worked. When questioned about the decision, Chow brushed off the insanity of her decision with a simple "we do it all the time" and stated that Shirley would not be allowed to earn any comp time at all.

Shirley took the news with class and chose not to argue with Chow's unilateral decision, and that would have been the end of the story, if Lykos and Crew had not tried to push the issue further.

Chow sent notice that she wanted her to change her timesheet to reflect that she had not ever actually earned the comp hours in the first place.

Here's where things get a little interesting.

You see, since Assistant District Attorneys work for the Government, that kinda sorta makes their timesheet a Government Document. If you think that government employees have been filed on for altering their time sheets before, you would be 100% correct. It's a little felony offense that we like to call Tampering with a Government Document. Don't believe me? Ask former-Justice of the Peace Mark Fury.

Shirley refused to alter her time sheet for that very reason and was told if she wanted to get her paycheck, then she better turn in her revised time sheet. She stood her ground and told her supervisor that she would not be revising her time sheet until someone explained to her how she could do so legally.

The team of geniuses that comprise the Gang Who Couldn't Shoot Straight had no response. Ultimately, they had no choice but to accept her time sheet as is. She stood her ground. (NOTE: to any other ADAs who have been placed in a similar situation by the Administration, you might want to keep Shirley's story in mind.)

So, after having the Pat Lykos Administration take away her reasonable accommodation to care for her son, and then encourage her to commit a felony, Shirley Cornelius finally turned in her letter of resignation on August 25th.

Her last (official) day as a Harris County employee was today, August 31st.

Her 27th anniversary with the Office.

The Capital Murder Decision

Harris County has long been synonymous with being the "Death Penalty Capital of the World" and it has always been pretty much the center of every debate on capital punishment since the 1970s. Couple that in with the fact that Mr. Kathryn Kase (AKA Jeff Cohen) is the Editor of the very anti-death penalty Houston Chronicle, and it seems like the District Attorney's Office will always be destined to be portrayed as more blood-thirsty than those it puts on Death Row.

This piece isn't about whether or not the Death Penalty should exist. Former District Attorney Johnny Holmes once told me that there was no point in ever debating the death penalty, because it is too much of a part of a person's moral and religious values to ever change a mind. If you believe in it, then you will, most likely, always believe in it. If you oppose it, you will always oppose it.

But have you ever wondered what goes into the decision-making process behind a capital murder case in Harris County, Texas?

Like almost all other cases, a capital murder is first presented at D.A. Intake. Homicide investigators come in and present the case to a District Court Chief or above for acceptance. Only a person who has attained the rank of District Court Chief or higher has the authority (according to the Operations Manual) to even file a charge of Capital Murder.

And when they do so at Intake, they are simply deciding whether or not the elements of the offense of Capital Murder have been met, and whether or not the case can be proven.

For those of you who don't know, not every murder is a Capital Murder. To be a Capital Murder, it must be one or more of the following:
1. A murder in the course of committing another enumerated felony (such as burglary, robbery, sexual assault, kidnapping, etc.)
2. A murder of a police officer or fireman in the line of duty.
3. A murder of a child under 6 years of age.
4. A murder of another for money.
5. A multiple murder

There are a couple of others, but those are the main ones.

When a Capital Murder is filed at Intake, there is no decision made at that time about the appropriate punishment that should be sought. The case is simply filed and it lands in a court. Once it is there, the Chief Prosecutor of the Court will handle it in most cases (sometimes a "higher up" may actually be the one handling the case).

The Chief Prosecutor will spend the next 90 days working on the case, and will go over it with a fine-toothed comb. The offense report is read multiple times over. The scene photos and videos are reviewed. The autopsy report and photos are reviewed. All statements are read and noted.

If a Defendant has priors, the prosecutor won't just order the Judgment and Sentence reflecting the conviction. They will order the offense report, the old file, and everything else that they possibly can to understand what happened on the prior offense. They often pull the Defendant's school records if he is young. They will talk to the victim's family members and discuss their feelings about the case. They will look at the offense itself and decide how bad the facts of the case-in-chief are. Sadly, in this day and age, a capital murder during a convenience store robbery doesn't really "shock the conscience" like it used to.

The Chief will also talk with the defense attorneys about things that might mitigate, or lessen the Defendant's personal blame-worthiness in the case. Was the Defendant abused as a child? Did the Defendant have a low IQ? Are there any mental issues that might tend to explain what is going on? Was there some form of provocation behind the murder?

Once all of this information has been gathered by the Chief Prosecutor, it becomes his or her duty to write up a "Capital Murder Report", which details the offense. It will contain a detailed narrative of the offense. It will also have a list of "aggravating" factors that might make the case more egregious. It also has a list of the mitigating factors that should be considered as reasons why death should not be sought.

When the Chief has finished the Capital Murder Report, he or she will write a recommendation as to how the charge should be presented to the Grand Jury. Perhaps it shouldn't be a capital. Maybe it should be indicted as a regular murder or even an Aggravated Robbery. Whatever the case may be, they hand-write their recommendation. Although I have heard other Divisions may do it differently, I always included whether or not I thought it should be a non-death or death case at that time. Some say the decision is made a little further down the road.

Once the Chief Prosecutor has made their recommendation, they take the form to their Division Chief, who is usually a prosecutor that has been at the Office over 15 years and has a good feel for what cases are worthy of seeking the death penalty on versus those that are not. They write down their recommendation as well. The Chief Prosecutor and his or her Division Chief then travel to the 6th Floor where they meet with the Bureau Chief of the Trial Division (currently, that would be Lyn McClellan). They review the case with him, and he writes his recommendation.

The Chief, the Division Chief, and the Bureau Chief (this is starting to sound like the Wizard of Oz, now, isn't it?) then travel down the hall to meet with the District Attorney. He reviews the summary and sometimes there is discussion and sometimes the summary is enough. Obviously, the District Attorney has the final say-so in how the charge is filed, and whether or not to seek death.

So, for those out there who believe that prosecutors at the Harris County District Attorney's Office yell out: "Yee haw! Get the gurney ready!" every time a capital murder charge is filed, please rest assured that there is a lot more to it than that.

Mr. Holmes once told me that in making the decision whether or not to seek death on a Defendant charged with Capital Murder, he asked himself the question "would 12 reasonable minds agree that a Defendant deserved to die for what he had done". If you look at how many people were sent to death row during the Holmes administration, it would appear that the man's assessment of those 12 "reasonable minds" was usually pretty accurate.

A senior prosecutor told me that in his mind, the standards at the Office are whether or not the Defendant's actions "shock the conscience". Perhaps the facts of the case-in-chief shock the conscience, or perhaps a Defendant's violent criminal history does. The more the Defendant "shocks the conscience", the more likely the State will seek death.

One last note before I turn this over to the commenters to blast me.

Although the Chronicle likes to make a big deal out of how many people Harris County sends to death row, they seem to pay very little attention to those capital murders where the State does not seek the death penalty. Now, I know that Mr. Kase, uh, Mr. Cohen has his agenda, and portraying the D.A.'s Office as being the slightest bit reasonable would not help his agenda, but the vast majority of Capital Murders are "non-deaths". They get tried with little to no fanfare on an almost weekly basis.

For those who oppose the death penalty, I know that there is no such thing as a case that would change your mind. However, for those who do agree with it, or are, at least, willing to consider it the Conscience Shockers are going to be the only ones on the table for consideration of lethal injection.

Those cases where death is sought are truly the ones that "shock the conscience".

The "Anointed One"

Listening to Pat Lykos on Michael Berry's show tonight, she blamed her loss in the 2000 D.A.'s race on Johnny Holmes "anointing" Chuck Rosenthal to be his successor.

It wasn't the first time, I've heard it said that Mr. Holmes "anointed" Chuck. The Chronicle has referred to it by those terms, too.

I was around in 2000, and I kind of remember things differently than Lykos and the Chronicle.

I remember that Chuck announced his candidacy the day the Mr. Holmes announced he wouldn't run again. I also remember that soon after that, Mr. Holmes said something to the effect that he wasn't going to endorse anyone unless an unqualified candidate (I believe his term was "nincompoop") was running. As a matter of fact, I remember Mike Stafford even quipping about it during a debate.

Stafford (at one of the debates) laughed that Holmes ended up endorsing Chuck soon after he (Stafford) had entered the race, and he jokingly stated that he hoped he wasn't the "nincompoop" Holmes had in mind when he made the original statement.

Mr. Holmes didn't "anoint" Chuck for anything.

In fact, he didn't want to endorse anyone. He even told Jim Leitner that he wouldn't.

What changed Mr. Holmes' mind in 2000?

I don't know, but it came after Pat Lykos entered the race . . .