Brian Rogers "Expose"

In what is clearly the "harshest" treatment of Pat Lykos by the Houston Chronicle, Brian Rogers wrote an article about the "two sides" of Pat Lykos.

Brian has been working on the story for some time now, and I'm glad to see that the fan club over at the Chron allowed it to actually be published. All in all, it is a pretty fair piece to Lykos, due in most part because they let her rebut (and by that I mean "spin") those negative things said about her.

I'm keenly aware that most fans of Lykos label me and the commenters who blast her as "malcontents" who are suffering from "sour grapes" and who are so bitter over our "reign of terror during the Rosenthal Administration" ending that we can't see that Pat is the second-coming. That's fine. But those who would argue that my motives in blasting the current Administration are somehow tainted never seem to actually rebut the facts and the message that I'm writing. They just throw in the random references to "Chucky" and figure that their point has been made.

And such is the world of politics.

But let's take a critical eye at Brian's article and address some of the things that Lykos has said in her response to some of the criticisms:

1. As Brian points out, "Prosecutors under Rosenthal had much wider latitude on decisions, especially on plea bargains. Shaving years off sentences, lowering felonies to misdemeanor charges . . . are daily decisions that used to be entrusted to line prosecutors . . ."

Lykos responds that "Justice should not be at the whim of any particular individual."

Okay, "at the whim?" Seriously? A prosecutor who has handled the case and worked it up who makes a judgment call on appropriate sentences is NOT doing it on a whim. They are going to be the most informed person employed by the District Attorney's Office about that case. Lykos' recent policy changes have set parameters that her "line prosecutors" know better than to work outside of. This has led to an increase in cases set for trial, which comes with the added side effect of clogging up dockets for months.

Not to mention that this policy of Lykos and the Gang Who Couldn't Shoot Straight is the equivalent of her giving the finger to her prosecutors in the trenches every day and saying that she doesn't trust their judgment to do the right thing. My suggestion is that maybe she should go work a docket one morning and actually handle a freaking case before she makes foolish blanket policy decisions that take the power away from the people who actually know what they are doing.

2. Brian makes mention of the departure of Donna Goode as an example of the numerous seasoned prosecutors that Lykos has run off from the office. Lykos responds that "the attrition rate is normal".

Um, yes, I suppose the attrition rate is normal if you were to compare it to Pickett's Charge. But other than that, the number of senior prosecutors leaving the office during her first two years of her Administration have been staggering. Life long prosecutors have fled. According to my unofficial numbers, around 60 prosecutors have left during her tenure.

That's roughly about 25% of the Assistant District Attorneys.

I'm sure the uninformed will again say this is a good "house cleaning" of the remnants of the Rosenthal Administration, but those who practice in Harris County know better. A seasoned prosecutor is the one most often to recognize a bad search or the lack of provability of a case. They are also the ones who will stand up and say a policy is bad for criminal justice. More importantly, they are the ones who know that a defendant with two prior pen trips that is caught with 1.1 grams of cocaine doesn't deserve 25 years.

The younger ones are usually the more over-zealous, hang 'em high prosecutors. I know that I was in my earlier days.

But the point is kind of moot, I suppose, since Lykos seems to be running everybody off on all levels of the Seniority Spectrum.

3. Lykos "heralds" herself for the major initiatives that she has put forward. Brian specifically cites the injunctions against Gang Members at Haverstock Hills and now lobbying for a new law to target "pill mills" that prescribe dangerous drugs for recreational use.

I actually find the Gang Member Injunction thing fairly interesting. Kim Ogg is spearheading that project and she'll be good at it. That move has worked in some other larger communities. I would point out, however, that I'm curious as to whether or not the District Attorney has the legal authority to go after them. As someone much smarter than me pointed out, only the County Attorney has the authority to initiate a law suit under the Texas Government Code (see Sec. 43.180 versus 45.201).

The pill mill thing is, again, political grandstanding. Doctors who provide wholesale drugs or prescriptions when not necessary are just as susceptible to be charged under the Obtaining Prescription Drugs by Fraud statute as parties as those who actually get the drugs. Perhaps, Lykos might want to familiarize herself with the laws already on the books before lobbying for new ones. However, Lykos coming up with "new" laws is nothing new for her.

4. Lykos created the controversial DIVERT program, which basically allows for pre-trial diversions for DWI cases. The law, as it currently stands, forbids even a deferred adjudication for an intoxication defense. Lykos has bypassed that law with her program, which was created for some rather iffy reasons.

Brian did a good job on following up on this particular issue by interviewing 25 year veteran and former Bureau Chief of the Appellate Division, Calvin Hartmann. Calvin correctly points out that what Lykos is doing isn't following the law or her duties as a prosecutor. Instead, she is unilaterally deciding which cases not to prosecute. This may make her a darling of the defense bar, but it isn't what she was elected to do.

5. Finally, Lykos points out to Brian that she thinks most people are happy at the office. She points out that if they aren't, they are surely members of "some of the old guard". Brian disappointingly gives her some credence on this issue by pointing out that her critics may not like her because she is "an outsider".

Technically, Ken Magidson was an "outsider" when he took the D.A.'s Office under his command. He had been gone for decades from Harris County, and none of us knew him. But Ken Magidson knew what he was doing as an elected D.A. He didn't politicize or pander. He did his job and the Office generally loved him.

Hell, I loved the guy, and he fired me!

I find it an interesting statistic that early on in the article Brian mentions that he interviewed 12 current prosecutors for the piece. He wraps it up by saying "two prosecutors said they like Lykos and complimented her on changing the office."

Wow. 2 out of 12. That's impressive.

But, of course, I'm sure that the other 76% of the prosecutors are just malcontents experiencing sour grapes.

A Letter to Pat Lykos

Former Bureau Chief of the Appellate Bureau under former-District Attorney Johnny Holmes, Calvin Hartmann, sent the following letter to Pat Lykos in response to the scandal she created regarding Mark Donnelly and Rifi Newaz and the Batson controversy. It is reprinted here with his permission.

March 30, 2009

Patricia Lykos
District Attorney, Harris County Texas
Harris County Criminal Justice Center
1201 Franklin, Suite 600
Houston, Texas 77002

District Attorney Lykos:

Approximately nine years ago at a campaign debate between Chuck Rosenthal and yourself for the office of the Harris County District Attorney, being vacated by the retirement of John B. Holmes, Jr., I stated to you that if you were elected that it would lead to numerous departures of the professional staff and that you ultimately would destroy the employee morale in the office. In three short months following your election in November 2008 that prediction unfortunately has come to fruition. The purpose of this letter is twofold: 1) to educate you on what I will call “lawyering” in light of the fact that to my recollection you have never litigated a criminal case except as a “cop-out” lawyer in the early 1970’s and 2) to educate you on what a respected administrator does and does not do. Hopefully, you will take these constructive comments in the vein in which they are offered, that is to insure that the office over which you administer is able to employ and retain the best legal talent for the taxpayers and voters of Harris County – that only will occur, however, when those employees respect you in the manner that they did John B. Holmes, Jr.

There is an old adage among lawyers that bad facts make bad law. Undoubtedly the Supreme Court decision in Batson made bad law – bad law not from a philosophical, theoretical or equitable perspective, but from one of practicality, patently because lawyers are not race or gender blind (for sake of brevity these terms hereinafter will be referred as “minorities”). Although none of us are born into this world with biases and prejudices, these attitudes are instilled in us as the result of personal experiences and societal and environmental factors. Setting aside all of the laudable goals and objectives mandated by Batson the rationale underlying the decision is predicated upon a logical fallacy, namely that the exclusion of minorities from a jury panel is prima facie evidence of blatant discrimination.

This rationale immediately has a chilling effect on the questioner, and is difficult to harmonize with the real world of advocacy, to which you were never seemingly exposed, since when all the high principles and accolades are given their due, the primary
objective of one in voir dire is to seat a jury that is biased and prejudiced in your client’s favor and adverse to that of your adversary. Unfortunately the victim or the complaining party (the State) in a criminal case is not entitled to Due Process, but the accused, in practice, can select a jury employing discriminatory calculus with little or no consequence. The Texas Legislature has provided the mechanics, that is essentially the three stage process for Batson scrutiny in TEX.CODE CRIM PROC., art. 35.261. Little would be gainsaid except to direct you to that provision for your further education.

At first blush the prosecutor is cast upon the horns of dilemma, since to strike minorities would automatically expose one to a claim of invidious discrimination, and a prima facie violation of Batson in every case. Moreover, it again ostensibly would lead to an assertion by you that the prosecutor was incompetent and negligent without a regard to the facts. It is suggested, however to the contrary, that a prosecutor would be incompetent and negligent to intentionally fail to strike minorities if their responses during voir dire in any wise suggested a potential juror displaying a bias and prejudice in your adversary’s favor, merely to preclude or survive a Batson challenge.

Contrary to myth popularized by members of the defense bar, during my fifteen plus year tenure as the training coordinator for the District Attorney’s Office prosecutors were not taught techniques as to how to successfully discriminate against minorities in voir dire selection. What prosecutors were taught was the manner in which to address unsubstantiated or unfounded claims of invidious discrimination in voir dire such that it was clear to the trial court and ultimately to an appellate court, if there was a conviction, that the State of Texas had accorded the accused Due Process. There is no reason for the undersigned to believe that this policy and aspirations somehow have changed.

Based upon the information available to me, and most particularly the trial judge’s comments in chambers to the effect that the defense had failed to demonstrate a violation of Batson, but it “did not look right” for the minorities to have been excluded from the jury panel, we have now reached the position where you have thrown two well respected prosecutors by their peers under the proverbial bus ostensibly based solely on an effort to please those disciples of “political correctness.” These two prosecutors were merely doing their job, apparently believing, based upon information and responses of these minorities that to seat any one or more of them would result in a hung jury, if not an out right not guilty in a case in which the prosecutors patently believed supported a guilty finding. They were “lawyering”, a concept apparently unknown to you.

The most troubling aspect of this whole unfortunate scenario, however, is your ready willingness to air this matter in the press, exposing these prosecutors to public ridicule and hatred in some quarters, clearly for your own self aggrandizement and without a wit of concern to their future legal careers, whether within or outside the office. As stated earlier you have “thrown them under the bus.” Regardless of the facts, good administrators do not conduct their assessment of employees in the press; good administrators conduct administrative matters in private. Quite candidly one would wonder whether even bad ones would do otherwise. Therefore, it is difficult to discern where that places you. It is clear that this exercise was undertaken solely for the media in order to again attempt to please those people at the Chronicle and their rapidly diminishing readership as to what a politically correct prosecutor that you are. It is suggested that it demonstrates something else, however, namely that the voters made a terribly wrong decision in November 2008.

During your brief tenure in office you have amazingly proven two things not subject to conjecture, that is you are not a leader and that you are a blatant narcissist I worked for John B. Holmes, Jr., for twenty-three (23) years. John B. Holmes, Jr., intimidated the members of his staff, but that intimidation was born of respect, respect that he was fair and that he would not ask you to do something that he would not do. You likewise have intimidated the members of your staff, but that intimidation is born of fear, fear of unabated arbitrariness, fear of an ever expanding “1984 Orwell” atmosphere within the office.

One can only hope that there will remain some semblance of this once proud and respected office when the 2012 elections roll around.

Sincerely,


CALVIN A. HARTMANN

cc: Honorable Mark Donnelly, Assistant District Attorney
Honorable Rifian Newaz, Assistant District Attorney
Brian Rogers, Houston Chronicle

Well said, Calvin. Much better than I could have!