Sunday, January 20, 2008

Pat McCann's Questions

In his editorial piece today, Pat McCann wrote that the following questions are ones that need to be addressed by whoever becomes District Attorney in 2009. Before I list them, I do have to point out that I noticed he wrote:

"Republicans will have a contested primary with experienced candidates, Jim Leitner and Kelly Siegler, as well as Houston police Capt. Doug Perry and former Judge Pat Lykos."

Now, God knows that I'm no grammatical genius (just read these posts closely), but was Pat saying that Leitner and Siegler were the only "experienced" candidates? I think he was.

And I couldn't agree more.

Now, onto the questions he posed for the new D.A.:

1. Will the district attorney's office begin to work to find serious alternatives to help the mentally ill who wind up in district and county courts? My Answer: I can't see why not. The Andrea Yates case left a bad taste in the public's mouth because it looked like the D.A.'s office was ruthlessly pursuing a clearly mentally ill woman. I think this got spun a lot by the media and the issue as to whether or not she was legally insane was something much more debatable than the media did. Nevertheless, I think this is an issue to be resolved by the legislature, but I think that any good D.A. is going to back that something be done, and done quickly.

2. Will the district attorney's office continue to prosecute minor drug cases with such vehemence, clogging our dockets and wasting resources and jail space? Good question. My Answer: Show me a prosecutor who is trying a minor drug case with "vehemence" and I'll show you a rookie prosecutor. Those that have been prosecuting for a long time get tired of the infamous "crack pipe" cases, and don't know what to do with them anymore. Recent policy changes within the office have banned the use of 12.44(a) on the cases, which was at least some sort of consolation prize to those representing clients charged with them. But they are still accepting the charges like they were going out of style. One or the other has got to give before the docket becomes so unimaginable that there is a crisis created solely by the charging decisions. My suggestion on the residue cases? Class C, baby.

3. Will the new DA continue to support the serious and thorough review of the HPD lab fiasco? At this point, how could he or she not? This one is a "no brainer" for the candidates.

4. When will we see the return of genuine second chances for first-time offenders? This is the only place where I think Pat slips a little, because the question is over-broad. Should there be a second chance for first offenders on drug charges? Sure. Thefts? Absolutely? Aggravated Sexual Assault of Child or Murder? Well, let's hold on there a minute. It has been my experience that the ADA's will try to help keep a record clean if the Defendant is charged with a (more or less) minor offense, provided that the Defendant wants the same thing for himself. Too often, a Defendant will leap at the chance for a reduced amount of pen time rather than place accept a deferred adjudication with a chance to get something off of his record. Also, what, if any effect is there if the Defendant is 17 years old and has a lengthy and violent criminal history?

5. How often and when should the death penalty be sought, and at what cost? A valid question from a person who morally opposes the death penalty. I think the reality is that the change in legislation that resulted in life without the possibility of parole has led to a drastic reduction in the cases that the Office seeks the death penalty on. I think that for the Office to seek death on a Defendant now, the case has to be something that truly shocks the conscience, or the Defendant's criminal history has to be something that would scare the living crap out of the common citizen.

Great article, Pat.


Gritsforbreakfast said...

Just a couple of offhand reactions:

You write: "Show me a prosecutor who is trying a minor drug case with "vehemence" and I'll show you a rookie prosecutor"

That's just incorrect except to the extent those cases are simply assigned to rookie prosecutors. The overcharging of low-level drug cases, especially the residue cases, has been an overt policy of the DA's office, one shared by no other large Texas county. Also, not giving bail on less than a gram cases basically keeps the jail full (which is why Judge McSpadden wants to drop less than a gram to an A misdemeanor). More people are in the Harris Jail over low-level drug charges pending trial than the county ships to Louisiana! Without question, Harris prosecutes these cases with far greater zeal than in other large counties.

You also write: "Too often, a Defendant will leap at the chance for a reduced amount of pen time rather than place accept a deferred adjudication with a chance to get something off of his record."

Very true, yet don't you think that's a direct result of the structure of plea offers by the DA's office? Defendants make rational choices in reaction to a contract offer. McCann's point was that if you change the offer (and he wasn't talking about murder, so get off that canard), you change the options for the defendant and likely, for many, their choices in the end.

Finally, McCann's question 5 is valid even if you support the death penalty. Especially then, since those questions only matter if the punishment will be implemented. It's rather odd bordering on ridiculous to say there's a perspective from which either "cost" or the justice of seeking the death penalty are not "valid" prosecutorial concerns. best,

A Harris County Lawyer said...

I hold by my position that a rookie prosecutor would be the only person still getting all that fired up about a crack pipe case. As a prosecutor tried more serious cases, they don't get all that fired up about the little things. When I was a baby prosecutor, I can remember thinking a "no seatbelt" case was the capital murder of the JP Courts. Experience tends to mellow people I think.

You mention that people are getting "no bonded" on crack pipe cases and crack cases under a gram. The standard bond schedule as it now exists caps the bond at $15,000 with a few exceptions. An under a gram case is no bonded if the Defendant is on probation, or out on bond. I'm sure there are other factors out there too. The only other exception is the 174th. Judge Godwin does make second offenders on drug cases be set at no bond at PC court until he can evaluate their bond personally. That "no bond" status is only temporary.

Yes, I would agree that Harris County does prosecute these cases with a zeal that isn't exhibited by other counties. That's an administrative decision that the prosecutors are required to follow. I think there are numerous (and I do mean "numerous") that would like to see some relaxation in the policies on personal use possession cases.

In regards to Pat's question about first offenders, you said I'm taking his argument out of context and telling me to "get off that canard"). For future reference, I would like all posters to please use words that don't require me to go look them up in the dictionary.

I saved Pat's article, and I re-read it again this morning to make sure I wasn't giving him too hard of a time on the blog. First, I think I'm pretty clear in my post that I think its a fantastic article that he wrote, and second, I was just pointing out that there has to be a line on what type of cases that would fall under that option of probation. I'm not blasting Pat on that issue. Just saying we need a little guidance on it.

I'm not really sure that I understand what you are writing regarding Question # 5. Of course his question is valid, and I don't suggest otherwise. I do point out that Pat is against the death penalty, but that I don't think that is a shocker to anybody. And I certainly don't think it is an insult to Pat to point out that he's against the DP. I admire him for going out there and trying to do something about it.

I think prosecutors make the decision on whether or not to seek the death penalty over those factors that I listed in my post. If the case doesn't shock the conscience of the prosecutor and the criminal history doesn't scare the piss out of that same prosecutor, then its probably pretty safe to assume that the State isn't going to seek the DP on it. I don't believe I ever said that the cost or the justice of seeking the death penalty weren't "valid" prosecutorial concerns.

Thanks for the comment.

Michael said...

You say that the life without parole option for capital murder (or should I say capital felony) trials has reduced the number of death penalties sought by the HCDA. Do you have any hard data on that? That's great if it's so.

A Harris County Lawyer said...

Michael, I don't have the stats in front of me, because that would require to get off my lazy butt and do some research. I do believe that in 2006, Harris County only sought death on three cases (one of which was a retrial of Max Soffar from the 1980s). I'm not sure of the stats in 2007. I'm sure it was up somewhat from 2006, but I don't think its anything like it used to be.

Gritsforbreakfast said...

When I mentioned failure to give bonds, I wasn't clear. I mean failure to give personal bonds for those who can't afford the $15K bail. Take a look at the state jail felony drug cases alone and there are a LOT of pretrial defendants in jail.

And the fact that the "zeal" these cases are prosecuted with stems from an "administrative decision" is exactly why I don't think it's just an issue with rookie prosecutors. My understanding is it's an office-wide policy established by the elected.

On #5, I was reacting to your first comment that it was a "valid question from a person who morally opposes the death penalty." Perhaps I read too much into it: I assumed you were saying it was valid IF you opposed the death penalty. Re-reading, I might have misinterpreted. best,

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A Harris County Lawyer said...

Hey Grits,
I meant to respond to you earlier but I got bogged down. Sorry about that. From my understanding, the only court that will even consider a pre-trial bond for a felony (or at least allows it at Probable Cause Court) is Judge Mary Lou Keel in the 232nd. That may be more of an issue with what the District Court Judges have decided than what the DA's office is doing.
As to #5 on the list about, I was just pointing out that Pat is a death penalty opponent. It in no way diminishes the strength of his argument, any more than it would have if he said "every human life is sacred". I think the death penalty is something you are either for or against, and you more than likely will never change your mind about it due to persuasive argument.