Dan Gerson

The Harris County Criminal Justice Community lost one of our legends overnight with the untimely passing of our friend, Dan Gerson.  He had been battling cancer for some time now, and although this loss was not unexpected, it doesn't make it any easier to deal with.  From judges to prosecutors to defense attorneys to police and court personnel, everyone seems to have known Danny and to know the guy was to love him.

In a building that is already brimming with personality, Dan was a standout.  Easily one of the most well-dressed attorneys, he alternated between the laughing friend that you always enjoyed talking to and the formidable attorney representing his client.  He did so seamlessly.  He was thoughtful, perceptive, funny, suave and kind.  A fellow attorney, commenting on Facebook, noted Dan's "quiet grace" and I can't think of a more succinct way to describe him.

He certainly wasn't an over-the-top type of lawyer.  He was quiet, yet gregarious.  Serious, yet bitingly funny.  He told war stories that were engrossing, and I never heard him tell the same story twice.  He was sincere and asked about your family, and he truly wanted to hear the answers.  He adored his family and he loved hearing about his friends' families too.

Dan was also a gateway to the history of Harris County Criminal Justice.  He literally had been practicing law since I was one year old.  He fully grasped how fascinating the cases and personalities that had passed through the hallways of the courthouses were and he would tell the stories.  He always downplayed his roll in them, but he recognized how important knowing those stories.

I've always said that the best thing about practicing in Harris County was that we younger lawyers got the opportunity to walk amongst Giants.  Dan recognized that principle in telling the stories of the old days, but he never acknowledged that he was a Giant himself.  

Dan had battled serious illness before and defeated it.  He made a point to check in with those who went through their own medical battles later on.  He was a kind and caring man.  

He also had a great sense of humor.

Those of us in the courthouse community have known that Dan was quite ill for some time.  Although we all hoped for the best, we have all known for awhile that our time left with him was running short.  Not quite as short, however, as some thought.  A month or so ago, an attorney erroneously notified the HCCLA Listserve that Dan had passed away.  Given Dan's prominent place in the community, word of his passing spread like wildfire.  Fortunately, the information was premature, and Dan took to Facebook to let his friends, family and fans know that the rumors of his demise were greatly exaggerated.

There are few people in the world who could have appreciated the humor of such a false rumor like Dan did.  It also gave all of us an opportunity to pour out our emotions and tell him how much we loved him and were relieved that he was still with us.  If there was ever something positive to come out of a false rumor, I suppose this may have been the one example.

Dan was a true Renaissance man, and he easily had one of the most entertaining Facebook pages on the internet.  The travels with his family and the cool cars and cool places were always fun to see.  Few people possess Dan's self-confidence.  Only he would have the confidence to be a skinny bald man rocking the striped Speedo in the 80s.

The last time I saw Dan, he told me he was having to go back for more treatment and would be out for a while.  As always, he was smiling, upbeat, and funny.  He knew what he was about to start, and he still exhibited that quiet grace.  About a week ago, his wife posted a picture of Dan as he was walking into chemotherapy.  Dapper as always, he was wearing a collared shirt.  He was suave even in the worst of times.

There was a definite sadness in the courthouse about the loss of our friend, today.  He made his mark there and he was truly loved.  The place will truly not be the same without him.

I'm not alone in saying that I will miss my friend very much.

Fundraiser for Judge Stacey Bond

There will be a fundraiser for the re-election campaign for 176th District Court Judge Stacey Bond coming up next Thursday, September 1st at Ladybird's at 5519 Allen, Houston, TX from 4:00 p.m. - 7:00 p.m.

Judge Bond has been an outstanding judge in her first term in the 176th.  She knows the law, follows the law, and holds all sides to the same standards.  I sincerely hope you will join me in supporting her for re-election!

Congratulations to Alex Bunin

Congratulations are in order for THE Public Defender, himself, Alex Bunin for being named the winner of the Champion of Public Defense Award by the National Association of Criminal Defense Lawyers today.  The award is given to the attorney who demonstrates "exceptional efforts in making positive changes to a local, county, state, or national public defense system."

Alex has a lengthy and distinguished career in indigent defense and the Harris County Public Defenders' Office has become yet another one of his many success stories.  As I've said before, when I was leaving the D.A.'s Office, I was petrified of the creation of a Public Defenders' Office and the possibility of available cases drying up.  Alex made sure that the PD's Office was an asset to all defense attorneys practicing in Harris County.  His office routinely puts on CLEs for attorneys and has become an important and respected voice in the CJC.

He's also fielded a team of excellent trial and appellate attorneys who are willing to share their time and expertise with any attorney needing help.

None of this could have developed without Alex's diplomacy and leadership.  He is absolutely deserving of this award, and I'm proud to call him my friend.

Judge Marc Carter Wins William H. Rehnquist Award for Judicial Excellence

Tremendous congratulations to 228th District Court Judge Marc Carter, whose longstanding dedication and hard work with veterans charged with crime has earned him the prestigious William H. Rehnquist Award for Judicial Excellence.  The award is given to only one judge a year, and is presented by Chief Justice of the Supreme Court, John Roberts, during a dinner ceremony at the Supreme Court in November.

Judge Carter was selected by the National Center for State Courts who awards it to a judge "who demonstrates the outstanding qualities of judicial excellence, including integrity, fairness, open-mindedness, knowledge of the law, professional ethics, creativity, sound judgment, intellectual courage, and decisiveness."

They made a great choice, because Judge Carter is the embodiment of that description.

Judge Carter, who as most of you know, is an Army veteran himself, has been helping lead Harris County's Veterans' Court for years now.  His temperament and background has made him the perfect leader for the program.  He follows the law, but he is truly guided by compassion and a sincere desire to help.  Veterans struggling with mental health or addiction issues are given second (and sometimes more) chances to readapt to society.

Judge Carter's compassion doesn't extend solely to veterans, however.  He has shown time and time again a willingness to save those people who appear before him who have a chance to be saved.  He has the unenviable task of balancing between protecting society and not throwing away people who can still be productive members of that society.  He does so with kindness, compassion, and intelligence on a daily basis.  

With his standard humility, Judge Carter has passed all of the credit for this prestigious award to the staff of both the 228th District Court (and coordinator extraordinaire Vanessa Guerrero) as well as Mary Covington and the staff of Veterans' Court.

The attorneys who practice in the 228th could not be happier nor prouder of Judge Carter.  It is hard to imagine a more deserving recipient.

David Hilburn is still Alive and Well

From our Bad Rumor-Squashing Department . . .

I was asked today by a concerned attorney whether or not beloved former prosecutor (and Brazos County) David Hilburn had passed away.  Since Dave is a really good friend of mine, I was pretty sure I would have heard that news, but I texted him to be sure.

Dave was happy to report that he is still alive and well, but acknowledged that this was the second time this week that someone had texted him to ask if he was dead.

Apparently, another David Hilburn passed away recently and that David was a friend of a friend on Facebook, who had subsequently posted "RIP David Hilburn," and that's where the confusion began.

So, rest easy friends, Dancing Dave is still not dead.

Rocks, Hard Places and Writs of Attachment

Last night, Channel 2 KPRC's Jace Larson profiled the disturbing story of a sexual assault victim who had been placed in the Harris County Jail on a Writ of Attachment after having a nervous breakdown in the trial against her attacker.  The details of the story are mortifying:

After a rape victim named Jenny had an obvious mental breakdown while testifying against her attacker, Harris County prosecutors decided the best way to make sure she'd return to complete her testimony was to lock her up in the Harris County Jail.

From there, things went from bad to worse.  The report, paraphrasing the lawsuit filed on "Jenny's" behalf by attorney Sean Buckley noted:

Buckley says his client was put in jail without due process, given a black eye by another inmate while kept in jail for nearly a month over Christmas. Jenny also suffered injuries when she was punched by a jailer after she attacked the guard. Jenny was charged with assault but prosecutors later dropped the charge. 

The idea of arresting the victim of an Aggravated Sexual Assault on a Writ of Attachment is a PR nightmare, isn't it?  It certainly flies in the face of a District Attorney's Office mission statement to seek justice for the victims of crime, right?  Are prosecutors so desperate to win their cases that they will stop at absolutely nothing?  Even if it means locking up a mentally ill victim of rape?

Well, ultimately, although the actions taken by the District Attorney's Office may have been illegal, the motivation isn't quite as sinister as the news article would make it out to be.

The case surrounds the trial of Keith Hendricks, an accused serial rapist who was believed to have targeted homeless women in Downtown Houston.  His case had previously garnered media attention when the media was focusing on the backlog of DNA testing from HPD.  A glance at this article from March 2015 notes:

Another suspect, Keith Edward Hendricks, a homeless man convicted of a 1978 rape in Indiana, is now facing four sexual assault charges from 2006 to 2013.  Officials said Hendricks attacked homeless women, luring them to abandoned buildings and raping them, sometimes while brandishing weapons such as a box cutter.

A kit in the city's backlog first tied him to a 2006 sexual assault.  One year after that alleged rape, he was ordered to submit a DNA sample on another sexual assault charge.  Had officials tested the 2006 kit, it might have spared a victim in an alleged 2013 rape. 

But the women accusing Hendricks of rape may have been difficult to put on the stand, said Jane Waters, head of the district attorney's special victims bureau.  Many of the women were homeless, and some had drug or alcohol addictions. 

Although a brutal crime still is not ever justification for breaking the law, this does give some insight into the scenario that arose around "Jenny."  The D.A.'s Office had evidence indicating that Hendricks was targeting transient and mentally unstable women, and Jenny apparently fit that description.  The prosecutor tasked with handling that type of case has a tremendous challenge of getting his witnesses to just show up.  Obviously there is a public safety interest and justice needs to be served, but that can be easier said than done.

The prosecutor on the case was Nic Socias, who is named in both the KPRC story and Buckley's lawsuit.  I know Nic and I've worked on cases with him.  He is a good prosecutor and an ethical one.  In my experience, he's always been a standup guy.  Unfortunately Nic found himself in the middle of a trial where he was not only prosecuting a man accused of doing horrible things, but also one that was a continuing danger to people just like "Jenny."  Her breakdown on the stand may or may not have been expected, but her unreliability certainly had to have been anticipated.

To take a dangerous man off the streets, Nic had to have Jenny's testimony.  The problem he had was there was no legal mechanism for making sure that Jenny came to court.

As Buckley noted in his Complaint:

Texas state law authorizes a judge, upon request by a party, to issue an “attachment” order and/or a “witness bond” to hold a material witness in custody without bail, or release her subject to posting bail, respectively. An attachment order was unauthorized because [Jenny] was not subpoenaed as a material witness and was not a resident of Harris County. See Arts. 24.12 and 24.14, Tex. Cd. Crim. Proc. Nor could [Jenny] be held on a witness bond, since the applicable statute prohibits jailing witnesses who are, as [Jenny] was, financially unable to post bond. See Art. 24.24, Tex. Cd. Crim. Proc.

Article 24.12 states that a writ of attachment is possible for "a witness who resides in the county of prosecution," but in this instance, Jenny was apparently a resident of Gregg County.  I'm not sure about the allegation that she hadn't been subpoenaed as a material witness, but that jurisdictional issue could potentially be a big problem.  Additionally, Article 24.24 does clearly state that if "any witness is unable to give security upon such bail, he shall be released without security."

What followed after the Writ of Attachment was executed on Jenny was a series of unfortunate events that continuously went from bad to worse.  Although initially Jenny was being housed in a mental health facility, she ultimately ended up in the Harris County Jail.  Once in the jail, Jenny was treated like any other inmate accused of a crime.  She was listed as being there for a Sexual Assault case, and apparently jail personnel missed the designation of her being there as a Witness, rather than as a Defendant.

As Buckley notes in his Complaint, what happened to Jenny after that does truly resemble a Kafka novel.

“Someone must have slandered Josef K., for one morning, without having done anything truly wrong, he was arrested.” —Franz Kafka, The Trial.

Ultimately, what happened to Jenny is what we risk when we follow the adage of "well, we've always done it this way."  Uncooperative witnesses who prosecutors know (or believe) won't show up for trial get Writs of Attachment filed on them.  Unfortunately, it doesn't appear that the parties involved looked at the Code of Criminal Procedure before taking Jenny into custody.

In most instances of Writs of Attachment, the witness is held overnight or for a few days at most.  In Jenny's case, there was a break in the trial for the Christmas holidays that led to an extended stay for her.  That's how all Hell broke loose.

Whether or not the D.A.'s Office and all the named parties in Jenny's lawsuit are protected by governmental immunity is something that will be decided by the Federal courts.  I don't practice civil law, so I won't make any predictions.  I do think Jenny's rights were violated and what happened to her compounded an already tremendous tragedy.

That being said, I have a hard time throwing any stones at Nic Socias or the District Attorney's Office.  Prosecutors often have to proceed on cases in the interest of justice, even when the victims don't want to cooperate.  I can recall more than one case I prosecuted where a child was being sexually abused by an adult relative and nobody in the family wanted it prosecuted.  To accuse Nic or the District Attorney's office of not caring about Jenny or other victims of sexual assault is just simply not true.

Unfortunately, the road to Hell is often paved with good intentions, and this whole incident reminds me of the infamous quote from Vietnam that said, "It became necessary to destroy the town to save it."

Whatever the outcome is of this case, I feel sorry for all involved.

The Perils of Politicians Pandering

Ugh, politicians.  They truly can be nauseating critters.

In most cases, the Empty Suit style of shaking hands and kissing babies is innocuous enough.  I mean, if a vote is earned because someone agrees with your gutsy stand that babies are cute, more power to you.  Sadly, the voting public has proven time and again to not be all that hard of a sell when giving up its vote to style over substance.  I could expand on this, or you could just switch over to any major news channel and you'll get the point.

Try as I might, though, I just can't get past the frustration of watching elected officials allow political pandering to seep into the criminal justice system.  As I've written time and time again, partisan politics have no place here.  If a candidate wants to sit on a criminal court bench or run for District Attorney, his or her position on abortion, gay marriage, foreign policy and taxes are irrelevant to their job description.  In theory, those who hold elected positions in the criminal justice system should be governed by the law and only the law.  What they do should be insulated from politics of any kind.

Unfortunately, the horrific events in Minnesota, Louisiana and Texas over the past weeks have practically begged for hardcore Republican politicians to prove to the electorate how pro-police they are.  There's nothing wrong with being pro-police, mind you.  I've never been shy at expressing my admiration for police officers and the jobs they do.  I admired them as a kid.  I admired them as a prosecutor.  And even though I've heard them grumble about my move to the "Dark Side," I continue to admire them now as a defense attorney.

The killing of eight officers in Dallas and Baton Rouge hurt my heart and they make me worry for my friends who are police officers locally and around the country.

And before someone starts asking, "Why are you only talking about the deaths of police officers and not the killings of Alton Sterling and Philando Castile?", bear with me.  I'm not writing this particular post to compare the worth of competing tragedies, but I will talk about them in a moment.

Today, Texas Governor Greg Abbott announced that he would be proposing what he called the Police Protection Act, to the cheers and accolades of all police-loving Republicans everywhere.  If the Act passes (and what good politician would ever oppose a law that protects the police?), if a crime against a police officer is proven to be motivated by the hatred of police officers in general, then that crime can be found to be a "hate crime" and raised to a higher degree of crime.

Uh huh.  Now, let's talk about that for a minute.

As noted in the Governor's press release, police officers (in their capacity as public servants) are already treated as a protected class under the laws of the State of Texas.  If you punch me in the face, the worst you are looking at is a year in the county jail, and perhaps an enthusiastic hug from Pat Lykos.  If you punch a police officer in the face, you are looking at spending the next ten years in prison.

If you were to take a gun and shoot me in the leg, you would be looking at a maximum of twenty years in prison.  If you shoot a police officer in the leg, you would be looking at Life in prison.  If you shoot me and kill me, the worst thing that could happen to you is Life in prison.  If you shoot and kill a police officer, the Death Penalty is most likely going to be sought.

The point is, Texas Law already has very harsh upgrades in punishment when the victim is a police officer.  Abbott's proposals under the Police Protection Act will have very few practical upgrades in punishment, but damn, it sure does show how much he loves police officers, doesn't it?  Okay, if you punch a police officer in the face solely because you hate police officers, you could be looking at up to twenty years rather than ten.  Of course, the prosecutor is going to have to prove up that hatred of police officers was your sole motivation  -- not as easy as it might sound.

But it isn't as if an Aggravated Assault on a Public Servant can be upgraded from a first degree felony to a capital offense without a fatality.  The big thing that Abbott's proposal does is call for police officers to be treated as a "protected class."  However, police officers already are a protected class.  The Act is 99% pure pandering and Republicans are loving it.

Although I'm not a big fan of Governor Abbott in general, one can forgive him for his pandering.  Even though he is the former Attorney General of Texas and should be a little embarrassed over it, "Feel Good Legislation" is part of a Governor's job description, I suppose.

That can't be said for Criminal District Court Judges, however.  An honorable Criminal Court Judge is the one guided by the law and only the law -- public opinion be damned.  Law above politics no matter what the fallout, right?

Apparently not if you are Judge Kerry Neves of the 10th District Court of Galveston County, who made a post on his Facebook page today, which read as follows:

I have just signed an Order which goes into effect immediately in this Court. No plea bargain agreements for deferred adjudication or probation involving Assault on a Public Servant, Evading Arrest, Resisting Arrest or any other offense in which a member of Law Enforcement is threatened or placed in danger will be approved. In the event the State and the defense attorney believe there is compelling evidence to support such an agreement, the Court may consider it if presented with such evidence. Approval will require a sincere written statement of apology to the officer or officers involved, and agreement from the officer or officers involved to the plea bargain agreement. Prior criminal history will play a big role in whether any such agreement is approved.

If approved, the defendant will be required to read the statement in open Court.

I may only be one person, one Judge, but I will do what I can to stop the disrespect and aggressive behavior against our police officers. If you are an officer, spouse of an officer or know an officer, make sure they know of this change in my Court.

I love the last paragraph.  "I may only be one person, one Judge . . ."  Martyrdom is a lonely business.  "If you are a registered voter an officer, spouse of an officer or know an officer, make sure they know of this change in my Court."  At some point, there seems to be a very fine line between showing solidarity in the wake of a tragedy and capitalizing off of it.

What better way for a judge to announce that he has prejudged the credibility of absolutely every officer that will ever testify in his court and graded that credibility as Immaculate?  What better way to announce that, as an elected judge, you cannot be open to the full range of punishment on any case where a law enforcement officer is the victim?

So, the kid that runs three feet from a police officer before getting tackled doesn't get probation, huh?  The guy that elbows the officer in his bulletproof vest is looking at a minimum of 2 years TDCJ in your court?  That Facebook post pretty much assures us that there are no shades of gray in Judge Neves' court.  As my friend Jeremy Gordon pointed out, if you are a defense attorney in Judge Neves' court, you better have a Motion to Recuse ready, unless you want to be ineffective.  Politics have forced out any minimal appearances of judicial neutrality.

Which brings me to the killings of Alton Sterling and Philando Castile.

I've watched the videos on both shootings and I've read the different articles (and multitude of personal opinions) on them.  My personal opinion is that it looks pretty damn bad for the police officers involved.  I'm not a police officer and I wasn't there, but what I've seen merits a trial.  I've been disappointed in those who have tried to drag Sterling and Castile's reputations through the mud rather than address the actions of the police officers.  

I recognize that police officers have dangerous jobs and risk their lives on a daily basis.  They also have special training and equipment that is designed to minimize the risk of death for all parties involved in a police encounter.  Just as a surgeon would be held accountable if he or she were to act outside of his or her training and cause a death, so should a police officer.  This isn't a call for conviction.  It's a call for examination and accountability.

I can't imagine any rational mind looking at the videos of the deaths of Sterling and Castile and thinking that neither of them deserve any level of scrutiny.  To feel that way exposes a level of bias that is contrary to the principles of criminal justice.

It's apparently a level of bias that Judge Kerry Neves is quite comfortable with.

Simple Tragedy

Like most of you, I've been stunned by the events of the past several days.  The deaths of Philando Castile and Alton Sterling followed by the attack in Dallas have illustrated that there is now a clear war between those who support #BlackLivesMatter and those who support #BlueLivesMatter.

This is the moment we've been waiting for, right?  The official declaration of war?

For years, every time a black male died at the hands of the police, it indicated a war was coming.  Every time a police officer died at the hands of a black male, it was a war coming.  The events of this week have surely removed all doubt that we now have a full-fledged war, haven't they?  Clearly the videos graphically depicting the deaths of Castile and Sterling prove a systematic targeting of black males by homicidal cops.  Correspondingly, no one can argue that sniping 12 cops from an elevated position isn't "targeting."

We obviously have two very homicidal groups of people clashing with each other now, don't we?

To find sympathy and understanding towards one of those groups is to most decidedly turn your back on the other.  If you think that Castile and Sterling should still be walking the Earth today, you are quite obviously a Cop Hater.  If you think that Micah Xavier Johnson was nothing more than a coward and a murderer, then clearly you have no sympathy or understanding for the plight of African-Americans who face police brutality on a daily basis.

You simply must chose a side, for better or for worse.  Failure to do so only earns you the disdain of both sides of this war.

Many moons ago, when I was in college, I took a sociology class where the professor made the off-hand comment that the only taboo that was acknowledged in all cultures was treason.  Initially, the statement seemed overly broad.  However, if you think about it, it makes sense.  Across the globe, there are some cultures in some places that will condone killing, stealing and raping.  None of those cultures, however, will tolerate betrayal.

As a former-prosecutor-turned-defense-attorney who still holds a great general admiration for the people of law enforcement, I think about that statement often.  When I blog in defense of a police officer (or prosecutor), I'm occasionally treated as being quite treasonous by the Defense Bar.  I used to be a member (and board member) of the Harris County Criminal Lawyers Association, but my ties to old friends from the D.A.'s Office and my work on Cold Justice ultimately led to the end of that relationship.  Conversely, when I criticize decisions of the District Attorney's Office or the police department, I suffer the same level of ire and criticism.

Man, it's rough out there trying to think independently.

But, I digress.

At the end of the day, in the immortal words of Obi-Wan Kenobi, "Only a Sith deals in absolutes."

Although it may be more satisfying to pick one side or the other, there are no such things as absolutes when it comes to humans.

Some of the most honorable, intelligent, brave, and selfless people I have ever had the honor to know wore a badge.  I may not have always agreed with them, or wanted to hear what they had to say, but in the vast majority of cases, I didn't doubt their honesty.  On the other side of the coin, I've spent the past seven and a half years of my life representing people accused of crimes -- from the innocuous to the heinous.  Some were guilty.  Some were innocent.  All were humans that had a story to tell and a reason for being in the position where I first found them.

None were the monsters that prosecutors often believed them to be.

The events that led to the deaths of Philando Castile, Alton Sterling, Lorne Ahrens, Michael Smith, Michael Krol, Patrick Zamarippa, and Brent Thompson were events that are a sad reflection of what the world is like today.

But they aren't a reflection of a "war."

There are horrible police officers out there who will use their badges as a license to lie, cheat, steal, brutalize, and sometimes, murder.  It cannot be denied that this happens, much more than we are comfortable admitting.

And of course, there are citizens who will lie, cheat, steal, brutalize, and sometimes, murder, albeit without the protection of a badge.  These are things that cannot be effectively prevented, unfortunately.  As much as we try, wish, train against, pray for, or teach about, there is no way to wipe out those who seem to truly enjoy harming their fellow man.

We flock to causes in the delusional belief that we can, though.

Yesterday, prior to the attack in Dallas, I watched a Facebook skewering of an individual who had dared to say "All Lives Matter" in response to a friend who had posted about #BlackLivesMatter.   Man, it was brutal.   This person was clearly going to perpetuate more deaths with an "All Lives Matter" posting, and thank God, Facebook was there to shout her down.

Four hours later, I was reflecting on the fact that five police officers went to work their shifts that day and never came home.  They said goodbye to their families with the assumption that they would see them again in a few hours, but those simple reunions would never happen again.

The families of Philando Castile and Alton Sterling would sympathize.

I'm rambling.  I know.  But in my opinion, none of this should be described as a "war."

It may make us feel better to pick a side and run with it, but that solves nothing.

This is simple tragedy.

Just an Observation

I was talking to a friend and fellow defense attorney today.  He told me about a recent experience with a younger prosecutor who had claimed being ready for trial and announcing that a case was "first up."  As it turned out, the prosecutor was not only not ready for trial, but also knew that the court wasn't going to trial that week -- the bold announcement of being "ready" and "first up" were merely ploys to get trial counsel to take a plea bargain.  The ploy failed, although the defense attorney spent his three-day weekend prepping for a trial that the prosecutor knew damn good and well wasn't going to be happening.

This particular maneuver by a prosecutor isn't a new one, but it is definitely chickenshit.

Our conversation then turned to the departures of three felony Chiefs and one very senior Felony Two from the D.A.'s Office in the past two weeks.

"You think they (the four departing prosecutors) ever would have pulled that shit?" I asked, referencing the younger prosecutor's maneuver.

Of course the answer was no.

The prosecutors leaving the Office right now are the exact types of people that shouldn't be leaving, and something needs to be done to stem the bleeding.

That "something" may not win any additional votes, but it goes a long way towards fulfilling that oath about seeking Justice.

Aggravated Robbery and the PSI Blockade

NOTE:  The first half of this lengthy post explains the law to people who don't regularly deal with criminal law.  If you already know criminal law, jump down about ten paragraphs and start reading.

Aggravated Robbery.

The name of the charge just sounds menacing.   The first degree felony is punishable by between 5 years and 99 years or Life in the Texas Department of Criminal Justice -- just like a Murder case.  Also like a murder case, there are countless ways that an Aggravated Robbery can be committed -- from the dramatic bank robbery with guns blazing and people injured to the proverbial starving mother who pulls a kitchen knife while shoplifting bread to feed her family.

Because there are so many different ways that an Aggravated Robbery can be committed, it is understandable that such a wide range of punishment is available for the offense.  Some cases clearly merit a higher sentence, while others do not.  However, because Aggravated Robbery is considered such a serious offense, a person who is convicted of it can only be given probation by a jury under Section 42.12 (3)(g) of the Texas Code of Criminal Procedure.  In other words, a Defendant on trial for Aggravated Robbery cannot ask a judge to give him or her probation if they are found guilty.  Only the unanimous verdict of the jury can save them from prison at that point.

The exception to this, of course, is Deferred Adjudication.  For those outside of the legal profession, Deferred Adjudication is where a judge finds sufficient evidence to find a Defendant guilty, but withholds a finding of guilt and places them on community supervision instead.  Since there isn't a final conviction, the Defendant can avoid prison as long as he or she successfully completes the terms of community supervision.  The downside to receiving Deferred is that if the Defendant screws up probation, he or she is only entitled to a hearing to the judge and the judge has the power to sentence him or her up to 99 years or Life in prison.

As a general policy, the Harris County District Attorney's Office will not offer a Deferred Adjudication to any Defendant accused of Aggravated Robbery.  I'm not a big fan of sweeping policies that forbid ever offering certain types of punishment for certain types of crimes.  Any lawyer that has handled felony cases for over a month realizes that there are exceptions to every rule and no matter how serious the words "Aggravated Robbery" sound, there are many some cases where a prison sentence just isn't the appropriate punishment.

Unfortunately, no District Attorney ever got elected on a platform of being "more understanding on violent crime."  I understand why such a policy exists, even if I don't agree with it.

Historically, if a Defendant wanted to get deferred adjudication on an Aggravated Robbery, he or she had to plead to the judge without an agreed recommendation from the State (WOAR).  In essence, that is the equivalent of throwing oneself to the Mercy of the Court.   In some instances, the judge would tell both the prosecutor and the defense attorney that if the Defendant pled to them without an agreed recommendation he or she (the Judge) would give them deferred adjudication.

For this to proceed, however, the State would have to agree to waive its right to a Jury Trial.

Like a Defendant, the State has the same right to a trial by jury.  If the State refuses to waive that right, then the Defendant's guilt or innocence must be determined by a jury.  If that jury finds the Defendant guilty, then the judge can no longer give them probation or deferred adjudication on an Aggravated Robbery (because a finding of guilty has been entered).  As noted above, only the jury can save the Defendant from prison with a probated sentence at that point.

Another way of resolving cases where the prosecution and the defense can't agree on an appropriate punishment for an accused is a Pre-Sentence Investigation (PSI) Hearing.  In a PSI Hearing, the Defendant pleads guilty to the offense and the Community Supervision (Probation) Department does a background check that ultimately results in a report to the judge.  That report can include information about the offense, the background of the Defendant, the criminal history of the Defendant, the feelings of the Victim, the substance abuse issues of the Defendant, and many other factors.  That report is given to the judge and then a sentencing hearing is conducted.

During the sentencing hearing, both the prosecution and the defense (usually) have the option of calling witnesses.  Usually, the prosecution calls victim impact witnesses and the defense calls character references for the Defendant.  At the close of the hearing, the judge has the full range of punishment available to him or her.  In the case of an Aggravated Robbery PSI hearing, the judge can place the Defendant on Deferred Adjudication, or sentence the Defendant to Life in Prison.

A PSI Hearing is generally an educated gamble for a Defendant and his attorney.  However, for a PSI to proceed, once again, the State has to waive its right to a jury trial.  If the State wants to remove the mere possibility of a deferred adjudication being granted to an Aggravated Robbery defendant, all they have to do is refuse to waive a jury trial.

And in recent months, that's exactly what the Harris County District Attorney's Office has been doing with increased frequency.  Refusing to waive a jury causes a jury panel of 65 people to be called to court, so that 12 of them can be selected, so that the Defendant can simply plead guilty to them and then ask them for probation.

Now, keep in mind, there is absolutely nothing dirty, suspect or fishy about an Aggravated Robbery case going to a PSI hearing.  Part of any judge's duty is to determine sentencing for accused in such a hearing if called upon.  Certainly, some judges have reputations for being tougher on punishment than others, but a PSI hearing offers absolutely no guarantees.

Determining an appropriate punishment is what a judge is elected to do.

If at the close of a PSI hearing, a judge determines Life in prison is appropriate, so be it.  If a judge determines that deferred adjudication is appropriate, then that is okay, too.

Over the past several months (and twice in the past two weeks), I've been told in certain courts, the District Attorney's Office would be refusing to waive a jury trial on an Aggravated Robbery case I was handling,  thus prevent me from going to the judge for punishment.  In essence, the message that refusal sends is quite clear:

The District Attorney's Office doesn't trust the elected Judge to do the "right thing" on the case, and therefore, it won't risk going to a PSI Hearing with him or her.

That's a pretty arrogant stance to take with an elected official.  It also belies the underlying feeling that a judge should merely be an extension of the prosecution.  Unless that judge is guaranteed to not even consider something so dastardly as a a deferred adjudication (if appropriate) on an Aggravated Robbery case, then that judge shall not be entrusted to determine punishment.  In other words, unless the judge is definitely going to do what the prosecution wants, that judge should not be trusted.

Apparently, judicial neutrality is not something that is valued by the D.A.'s Office.

In one of my instances, I was told that the State would not agree to a PSI on an Aggravated Robbery in the trial court, unless I agreed to let the case be removed to Impact Court where a different judge would be presiding.  I pointed out to the prosecutor that this was the equivalent of the D.A.'s Office giving the middle finger to the trial judge.

The irony of this is that the District Attorney's Office has the power to block a judge that they feel is too lenient, while a defense attorney who feels that a judge is too harsh is just shit out of luck.  Additionally, it completely disrespects the fact that the judge, like the District Attorney, is also an elected official who was chosen by Harris County voters.  If the voters trust a judge's judgment, why doesn't the District Attorney?  A judge is an independent entity and not an extension of the prosecution.  Sadly, this is an idea apparently lost on the Office at the moment.

On occasion, some judges find themselves at odds with the District Attorney's Office.  For instance, when former Judge Kevin Fine declared the Death Penalty to be unconstitutional, the District Attorney's Office more or less went to war against him.  Without commenting on what side I was rooting for in that battle, it was at least understandable as to why the battle was occurring.  Recently, it appears the D.A.'s Office is ready to fight with a judge over every instance where it disagrees with that judge.  Judges who disagree with the Office (or take them to task) risk being labeled as the next Kevin Fine by the prosecution.

Perhaps the District Attorney's Office should take a moment to remember that almost every single criminal judge in Harris County is a graduate of the District Attorney's Office (including two of the judges that the D.A.'s Office indicated they would block PSIs to).  If a former-prosecutor-turned-judge has a different outlook on criminal justice than the current prosecution, maybe it shouldn't be entirely disregarded.

Not to sound cliche here, but if a prosecutor's duty is to see that justice is done, perhaps that same prosecutor should come to terms with the idea that he or she is not the ultimate arbiter of justice.

Theoretically, that person should be the neutral judge.