Saturday, January 26, 2008

Perception vs. Reality

Ever heard the saying that "perception is reality"? I think most of us have, and right now it's a phrase being repeated over and over again around the CJC. Most prosecutors right now would probably like to take the author of that statement out back and shoot him.

What kind of inspired me to write this particular post this fine Saturday morning was after reading Leviathan's post about the D.A. candidates and their baggage on Mark Bennett's blog. Leviathan is one of the more witty and rational posters on both this blog and Mark's, and he or she makes a very witty post with this one. His conclusion is an endorsement of Jim Leitner as his or her selection for who should be the D.A.

You aren't ever going to catch me saying anything bad about Jim Leitner, because I think he is one of the most honorable, humble, skilled, and decent attorneys I've ever met in my life. You aren't going to catch any of the ADAs saying anything bad about him either, because they feel the same way. But, I do have an issue with all this ranting about Kelly's "baggage", and how this so-called "baggage" should prohibit her from Office.

The Defense Bar battles against "perception" every day of a client's case. There is a a perception of guilt from the time of arrest that we have to vocally defend against. There is a perception of guilt when our client is sitting at a counsel table when the jury files in, and that's where our battle really become a full-fledged war, isn't it? And fighting against the perception of guilt is the credo of our jobs, isn't it? Because the reality is that all persons accused are innocent until proven guilty.

Sometimes to get to reality, you have to prove that the perception is bullshit, don't you? Even when the fundamental principle of the criminal justice system is the exact opposite of that.

So, let's examine some perceptions and realities that have been thrown around lately.

Perception # 1 - The D.A.'s Office harbors a racist attitude and this is clearly proven by the fact that Chuck had two racially offensive e-mails on his computer, and that Mike Trent sent the "Canadians" e-mail.

Reality - Three e-mails are linked to two prosecutors (three prosecutors, if you listen to Trent's eager "I heard it from Freyer!" mantra. Something tells me Trent won't be on Freyer's Christmas card list this year). Yes, Chuck's e-mails (especially the "overdose" one) were grossly inappropriate and have no place on anybody's computer, especially not an elected official's. But how does that translate to the other 200+ prosecutors at the Office?

Jolanda Jones keeps talking about racist A.D.A.'s who offer African -American defendants higher plea bargain recommendations than white defendants.

Really? That's terrible.

And surely, Ms. Jones, you have been calling a press conference every time this has happened this happened to you. Surely, as a competent attorney diligently representing your client, you brought this to the Court's attention every time this type of injustice happened. Surely, Ms. Jones, you have successfully Batson challenged every prosecutor for a racially motivated strike, and have hundreds or thousands of incidents that you can cite where the trial court, or a Court of Criminal Appeals backed you up on this.

Surely, Ms. Jones, you aren't just jumping on the "ADAs are racist" bandwagon because it's fashionable right now. A newly-elected city councilwoman such as yourself wouldn't ever do something like that for political purposes, would she?

Perception # 2 - Kelly Siegler was part of Chuck Rosenthal's inner-circle who complacently allowed all of his bad acts to continue without saying a word. Thus, she is not a good candidate for District Attorney.

Reality - It is true that Kelly has been a prosecutor for the District Attorney's Office for over 20 years now. She served under Johnny Holmes, and subsequently Chuck Rosenthal. When Holmes left office at the end of 2000, she was a felony Chief. Under Rosenthal's administration, she's been promoted to Bureau Chief of Special Crimes, which specializes in the investigation and trying of "Cold Cases". She isn't his First Assistant. She isn't his General Counsel. More importantly, she's not his Chief Investigator.

If you want to know who is really in Rosenthal's "inner-circle", ask around the courthouse. It's an extremely small circle.

The lumping in of Kelly with Chuck is nothing more than a political smear on her. As a former/current/retired prosecutor, or whoever the hell I am these days, let me state one thing clearly about being a prosecutor:

A prosecutor's loyalty is to your job description, not your elected official. Not a damn one of those prosecutors gets up every morning and goes to the courthouse to please Chuck Rosenthal. They get up to do a job that they love.

Punishing Kelly Siegler because she's been a prosecutor for so long, and because of the fact that she's risen to the level of Bureau Chief is insane. That makes her more qualified to be the D.A., not less. Those who would want you to believe otherwise would probably like to have the D.A.'s Office abolished in general.

Perception # 3 - Bringing in an outsider like Pat Lykos will restore integrity to the D.A.'s Office, and that will be for the best.

Reality - You know who else could have restored integrity to the D.A.'s Office if he were still alive? Late children's TV host Mr. Rodgers. He was such a sweet, dignified man.

Too bad he didn't know anything about the functioning of the D.A.'s Office, either. Has anyone else noticed that Republican "It" Girl, Pat Lykos has yet to challenge either Kelly or Jim Leitner to a debate on any of the real issues facing the Criminal Justice System? Why do you think that is? Could it be because that to do so would be to clearly illustrate her lack of understanding of what we do every day down there? Hit all three candidates (I'm no longer acknowledging Doug Perry as a candidate) with substantive questions and watch her crumble.

Here's my challenge to my readers: Write in your comments substantive questions that you believe ought to be posed to the D.A. candidates. I mean real ones. Not political ones. Not ones like "Kelly, how do you remove the stench of Chuck Rosenthal from the Office?"

I mean ones like this: "Should 12.44(b) be more utilized in crack pipe residue cases where the Defendant is a first offender, and an otherwise poor candidate for probation?" or "Should the Office's use of pre-trial diversion become more common-place for non-violent first offenders?"

I would humbly suggest to my readers that if you start asking substantive questions, you will cut through more of the bullshit perceptions about the CJC and get down to the Reality, which should be true Justice.

Just a thought.


Mark Bennett said...

The candidates will get the chance to answer questions on February 19th at STCL. I'll keep an eye out here and pass the questions on to Earl Musick, who is organizing the debate for HCCLA.

Anonymous said...

Another perception. Cindy states that Harris County ADAs are underpaid. This is absolutely incorrect. Look at the rate of pay in major, large and semi-large Texas cities and you will see how crazy this assertion is. In comparison to adas around the state, Harris County adas make alot of cash. Alot.

It is a travesty that Kerry Spears makes $89,500 a year. Can the work she does be worth that? Certainly not. The worker bees at HCDAs work alot more than she does, for ALOT less money.

How about that take home car? What possible need could the DA's secretary have for a take home county vehicle? Visit crime scenes and assist police with legal questions and investigative techniques? Give lectures to civic organizations, schools and other such organizations? Be on call 24/7 for any kind of DA emergency that might require the presence of the DA's secretary (when there are other DA staff on duty 24/7) at the DA's office in the middle of the night?

The fact Spears has a take home car should be probed into. Her milage should be checked, and an inquiry into just what she has used that car for should be conducted, and then aired in public.

Just a thought: Maybe the money spent for Ms. Spear's take home county car, it's gas, insurance, tires & etc could have been used for salaries. Or for racial sensitivity training.

I wonder if Ms. Spear's county car had a County DA or police radio? If it did, what was her radio number?

Anonymous said...

AHCl, you said: "I mean ones like this: "Should 12.44(b) be more utilized in crack pipe residue cases where the Defendant is a first offender, and an otherwise poor candidate for probation?" or "Should the Office's use of pre-trial diversion become more common-place for non-violent first offenders?"

Respectfully, in this day and age, if these are even on the list of questions that you think need to be asked of a candidate, you have been prosecuting too long in Harris County.

Aren't these two questions no brainers? See, this is the thing and the types of revalations that scare the hell out of the average citizen. Hell yes, we need to show some mercy with crack pipe residue cases. Hell yes, show big mercy to first time violent offenders.

Maybe I've been wrong all along. Maybe we do need a defense attorney, or worse, an outsider to the CJ system as DA.

A Harris County Lawyer said...

Anon 12:01, I think you mean Kerry Stevens. Kerry Spears is an elected D.A. in another county.

Anon 12:09, I think you misunderstood me. The two questions that I threw into the mix were policy questions that you should ask of your candidates and see what they say. I would venture a guess that both Jim & Kelly would agree that a radical departure from the norm is called for. What I was trying to illustrate is that I think Jim and Kelly can give you some very articulate and detailed ideas of what they would like to do, while Pat Lykos will be more inclined to give a broad, feel-good statement with little to no substance to it, because she doesn't understand the system.
And trust me, there are a lot of ADAs who want a relaxation of some of the harder core rules. They just have to do what their bosses tell them.

Anonymous said...

Anon 12:01 Apologies to Kerry Spears. Any response, though, to my comments about Ms. Stevens and her salary and car?

Mark Bennett said...

It'd be neat if anonymous commentators gave themselves noms de plume so that we could tell later which anon said what.

A Harris County Lawyer said...

I think you are right on the money about her certainly not needing a car. I do think that the support staff of the office work hard and deserve to be compensated, especially if they stay there a long time. The things that they have to learn to do (especially in the DAs Office) require them to be intelligent, hard-working, and good at what they do. Kerry has been at the Office for a long time and she is a supervisor in the sense that she oversees the rest of the support staff. I don't really feel comfortable making a judgment call on her salary.
But the car, uh, no. She definitely doesn't need a car.

Leviathan said...

Perception: I didn't say that Kelly's baggage should prohibit her from office. I don't have that much stroke.

Reality: Her past actions (and inactions) leave me disinterested in having her represent me as the elected DA of Harris County. I very much have the right to feel that way. I think she's good at what she does, but that says nothing about her qualifications for the position she seeks. Good prosecutors do not automatically make good leaders.

Perception: Siegler deserves the presumption of innocence.

Reality: Give me a friggin' break! All evidence to the contrary, she's not on trial; she's applying for a job. Those of us who are involved in the hiring decision (the voters) have every right to question her judgment, her willingness to follow, and her ability to lead.

Seriously, I haven't seen anybody in this race clamoring for a debate.

Here are a few questions . . .

Q: What steps will you take to restore public confidence in the District Attorney's Office?

Q: Given the number of cases filed each year based on drug residue and the fiscal impact of drug recidivism, what would you do to support pretrial supervision and disposition alternatives that address defendants' underlying drug problems?

Q: As an actor in the Harris County criminal justice system, what do you see as the District Attorney's role in addressing jail overcrowding issues?

Q: Given the ongoing concerns related to jail population, staffing, and certification, and the fiscal and societal impact of unnecessary pretrial detention, what would you do to support the granting of personal bonds for low-risk defendants who are unable to make bond after 7 to 10 days?

Nice open-ended questions, because I need more than a Y/N response. I need to know that they're thinking and what they're thinking.

- - - - - - - - - -

"A problem cannot be solved with the same consciousness that created it." - Albert Einstein

AFHCP said...

As a former Harris County prosecutor and a dedicated AHCL Blog reader, I finally had to say something after reading the first anonymous comment here. ADA's DO NOT make a lot of money. They don't receive overtime pay and are usually working many, many long hours after 5 o'clock. The reason for the recent salary increase was because the county commissioners were presented with an in-depth comparison of ADA pay among several major cities in the country showing Harris County was at the bottom of the list. In fact, many prosecutors leave the office to become defense attorneys and find they make more money and work less hours than they did at the office. People who work there ARE NOT in it for the money. Like me, we do it/did it to help victims of crime and ensure that justice is served.

I do, however, agree that Kerri should never have been given a county car.

Anonymous said...

Kerry isn't a supervisor - not really. A good supervisor supports and helps people. She is probably the most hated woman in the office - even prior to all this. She's no Jo Tinkle. She used the power she had over Chuck to humiliate and degrade other people in the office. She's mean and petty. I was surprised to see her come back, but then again, if she had any shame, she wouldn't have treated people the way she did in the first place.

Anonymous said...

Money, and retirement accumulation, are big motivators to help folks dealing with alot of shame on the job come back to work. Where else can Stevens make that kind of money as a secretary? And get a free take home car, probably a pretty nice one. Does anyone know the brand and make of Stevens take home car?

Are not Chuck's civil lawyers being paid by the county at this time? That is another good reason to stay on and weather the controversy. Civil lawyers in federal court can get expensive. It will be interesting to see if Harris Co Commishs keep paying for his lawyers to fight his email deleting battles.

Tomorrow will be a big day. Too bad there is no Court TV coverage of the proceedings.

And Mark, if it makes you feel better, Chuck Rosenthal is no Pat McCann either.

Wonder what was in all those emails he deleted? Wonder if they are on the DA server?

A Harris County Lawyer said...

Thanks for everyone's posts. I agree with Mark's earlier post that I wish y'all would all get names so I could keep track of who all is saying what. Those of you who are writing great comments under the name of "Anonymous" are sharing the credit with too many people.
And Leviathan, I think your questions are excellent.
Anon 8:38, yes, the county is paying for Chuck's representation (at least to some degree) for the civil suit. I don't know if he has retained somebody on his own or well. There has been a mention of a Ron Lewis who represents him, but I don't know if he is public or private.
The county will provide legal assistance to prosecutors who are sued as part of the course of their job.

A Harris County Lawyer said...

And by the way, AFHCP, welcome to posting. I hope you'll leave your input often.

Mark Bennett said...

Chuck is facing possible jail time on Thursday. He needs competent criminal counsel.

Paging Richard Haynes . . .

Jason said...

Perception 1) It's painting with the same brush. Under this mentality we should ask every female school teacher if they've had sex with any male students lately. It's the same mentality that suggests every news reporter is a drunk or beats their women. It's the same mentality that says every male hairdresser is gay, well okay perhaps they're right on that one ;-)

As for Ms. Jones, I have a feeling she treats the race car like her American Express, she never leaves home without it.

Perception 2) Can't comment, don't know anything about that. I'll take your word for it.

Perception 3) Bringing in an outsider for HPD chief hasn't exactly panned out well in my opinion.

Anonymous said...

Big day tomorrow. What's gonna happen? Predictions?

Fox 26 had a story tonight.

Harris County DA Rosenthal Has Long History as Loose Cannon

Here's the link:

A Harris County Lawyer said...

Predictions from me? I'm the last person who should be giving predictions because I'm almost always wrong.

That's never slowed me down, however. So, here we go:

PREDICTION # 1 - Quannel X's march ends up being a non-event due to inclement weather. Quannel's suits are too nice to be taken out in the rain.

PREDICTION # 2 - The "Day Without a Plea" is completely ignored, as attorneys realize that they would be violating their ethical duty to their clients by participating. An angry Leticia Quiones (sp?) will call the D.A.'s racist and reset her case. Like she does on pretty much every day.

PREDICTION # 3 - Chuck Rosenthal is going to be strongly admonished about deleting the e-mails, but no conclusive proof will be shown that he violated the law. He will leave court, humiliated, yet defiant. He will predict that he's going to run for D.A. and win, before remembering that he's no longer in the race.

PREDICTION # 4 - Kelly Siegler will waste a lot of valuable campaigning time when Lloyd Kelley takes all day to present Clarence Bradford's campaign, (oh wait, I mean, his client's case).

PREDICTION # 5 - Lloyd Kelley will once again try to say with a straight face that he really cares about his clients' case, and this has nothing to do with politics.

PREDICTION # 6 - Lisa Falkenberg, Rick Casey, and Alan Bernstein maybe, just maybe (I'm not real sure about this) will write an article that portrays the District Attorney's Office in an unfavorable light.

Anonymous said...

Will Chuck take the 5th?

Just curious, but did anyone at Harris County ever try to settle this lawsuit? Are settlement negotiations/offers made public record pending trial in a federal civil matter?

I know many times in federal civil rights violatins suits that counties make offers that involve dismissal of the claims in exchange for a settlement that not only considers the merits of the case but the anticipated cost of litigation (mostly if specialized outside counsel is involved defending any of the government employees, which happens quite often due to conflict of interests).

I'd be curious to know if Harris County could have settled this suit for a reasonable amount long ago, and conversely if a reasonable offer was tendered, did the plaintiff's refuse?

I feel sorry for Kelly, Scott, Bert, to name a few, for being drug into Federal Court. They deserve much better and are very dedicated.

The Phantom Bureaucrat (aka: Anonymous 7:37 AM) said...

Baggage is such an interesting concept since anyone that has lived life should have some (or let us know the reason why they don't). Ms. Siegler's "baggage" is a selling point for me and as you look at all the candidates for office a little closer than the Chronicle has done, you find some glaring problems.

I'm not talking about Perry's interesting social skills either, though Bradford would love it if it came down to the two men (it would certainly come up at the last minute with Bradford's personal knowledge), but give it time since there are a number of people digging into each of the candidates right now. ;)