Sunday, February 10, 2008

"Counting Scalps"

In today's political climate, isn't the term "counting scalps" offensive to Native Americans? That's the term that Pat Lykos used in her meeting with the Chronicle's editorial board meeting, but I guess it falls under the a safe-haven of non-offensive language in their eyes. Of course, there's not much that Lykos can do wrong in the Chronicle's eyes.

Don't worry, I'm not doing the politically correct dance here. I just wanted to address what Lykos was attacking when she made the statement:

"We need a change in the leadership there. It shouldn't be about counting scalps [number of convictions]. It has to be about the rule of law and quality of justice."

Damn, the more I read about what Lykos says, the more I see what an empty suit is. What the hell does that sentence mean? Quality of Justice? Rule of Law? Huh?

I guess these are convenient "throw down" terms when you don't know what in the hell you are talking about, right Judge? Are you seriously advocating not enforcing the laws that you would be elected to enforce if this county is foolish enough to listen to the Chronicle?

Here's the bottom line.

If a prosecutor is going to take a case to trial, they better damn well believe that the Defendant they are trying is guilty. And they better believe that because the evidence shows them that. There are too many cases out there to be going to trial on cases where the State doesn't think the guy or gal did what's alleged.

That being said, once a prosecutor believes in their hearts that a Defendant is guilty of something and that the evidence will show that, then there is nothing wrong with the prosecutor doing his or her best within the Rules of Evidence, Criminal Procedure, and Ethics to prove that case to a jury. That even includes dragging a king-size bed into a courtroom, folks.

Call me crazy, but I still believe in the jury system (and I've dealt with some wild ones in my time). If the defense and the community disagrees with the prosecutors point of view, then I still have faith that a jury is going to do the right thing.

My point is, I don't think we should fault prosecutors for trying hard on cases that we disagree with them on. I mean, argue with them all you want over the facts of the case, but calling them, um, "scalp hunters" for believing in their cases and trying hard on them is "hating both the player and the game".

Can prosecutors get over-zealous on their cases? Absolutely. I can remember from my own experience when I was a baby prosecutor who ended up in the Justice of the Peace Division. I was bound and determined to make those no-seatbelt-wearing-bastards pay!! (NOTE: Please read into that statement that I'm making of fun of my own over-zealousness as a baby prosecutor and not as a serious statement about non-seatbelt-wearers).

If prosecutors are making recommendations on cases that are too high, then call them out on it for being too hard-core. But don't fault them for trying a case that the law mandates is a crime.

And certainly don't demean their jobs, their duties, and their integrity by calling them "scalp hunters", Judge Lykos. That's just crappy politicking.

And that's just one of the many reasons that nobody who knows you within the CJC wants you as the elected District Attorney.

23 comments:

Ron in Houston said...

AHCL

I don't "believe" in the jury system and frankly the problem is "belief."

"Belief" like it's near cousin "faith" are not based on a rational evaluation of the evidence but are based on things like gut feelings and hunches.

Do witnesses lie? Sometimes. Is eyewitness identification faulty? It certainly can be. Do governments runny crappy crime labs? Well in Houston they do.

ADA's have a hard job. In a lot of ways they need to be like judges while still being advocates.

Just be careful about your beliefs.

Ron in Houston said...

"I was bound and determined to make those no-seatbelt-wearing-bastards pay!!"

AHCL - sometimes I really love what you say.

You've given me the best laugh of the morning.

Mark Bennett said...

I just got finished reading The Afghan Campaign. It appears that the tribesmen in Afghanistan's hills were taking scalps for trophies a long time before the Native Americans discovered Columbus.

Is it not true that the DA's office keeps track of -- and bases advancement in part on -- numbers of convictions and length of prison sentences?

A Harris County Lawyer said...

Mark,
The D.A.'s Office does keep track of trial stats and the win/loss ratio, but I think that's an important statistic to track. Number One, prosecutors are paid to go to trial there. If a promotion comes up and its between one candidate who has 50 trials, and another who has 3, there is clearly a significant difference in qualifications.

As to keeping track of guilties, it isn't for "scoring" purposes like a soccer match. However, if a person has gone to trial on 50 cases, and lost 25 of them, one of two things is happening:
1) that prosecutor isn't adequately evaluating his or her cases for trial and they shouldn't have been tried in the first place; OR
2)they aren't doing a good job in trial or they aren't preparing well enough.

I think you would agree that either of those two problems would be a legitimate concern to a supervisor, and they aren't just "counting scalps" (like the Angient Afghans!).

DA-esque said...

No, St. Mark, that isn't true - at least in the way that you probably believe it to be.

They do look at dispositions, but there is a ratio that indicates someone is doing a good job - or not. You expect to see dismissals - but you wouldn't expect to see 90% of cases dismissed for instance. And - it also depends on where that person is working - you might expect to see something different if you worked in Child Abuse versus Hot Checks.

They look at number of actual trials - and again - expect to see a certain number based upon a certain time period.

As far as dispositions - again - depends on what types of cases. You wouldn't expect to see someone doing a lot of probations for murder cases. But, you would in domestic violence cases.

Otherwise - there aren't any objective measures - it would just "a belief" as RIH stated.

AFHCP said...

On that same note, the office does not keep count of anyone's dismissals. I don't remember ever getting in trouble for dismissing a case. The few times a dismissal came back to bite me in the ass was when a victim called Chuck to complain because they were unhappy with my decisiion. Even then, as long as I had a good reason and was able to back it up, it was never a problem. That just shows that the office is not all about convictions and sentences. I was promoted out of misdemeanor with a 50% conviction rate (mostly DWIs of course) but got much better as I advanced in the office. That is a product of being a better prosecutor, advocate and lawyer, not being an over-zealous prosecutor. After all, juries convict and assess penalties in trials; prosecutors present the evidence. And if defendant's are pleading guilty to offers made by prosecutors (whether high or low), then how is that the prosecutor's fault?

-a former harris county prosecutor

Mark Bennett said...

"St. Mark". I like it. Inapt, borderline sacrilegious, and absolutely, totally, and in all other ways inconceivable, but I like it.

Thanks for the enlightenment, though DA-esque and AFHCP seem to disagree on whether dismissals are counted.

I wonder what kind of differences in numbers are significant. Does the prosecutor who has tried 55 trials do better than the prosecutor who has tried 45? Does the lawyer who has dismissed 12% of his cases do better than the lawyer who has dismissed 15%? Does the prosecutor who has gotten guilties on 60% of his jury trials do better than the prosecutor who has gotten guilties on 55%?

I've seen the child abuse division's charts tracking prison time obtained by its prosecutors. Does the lawyer who puts people in prison for 200 years in January do better than the lawyer who only put people in prison for 150?

Never having had the fortune to work as a prosecutor, I'm extremely curious and glad to find some people who are willing to talk about the system, albeit anonymously and therefore unattributably.

A Harris County Lawyer said...

I always preferred Monsignor Mark for you, actually.

Both da-esque and AFHCP are correct, actually. Records of dismissals are kept on a monthly basis for each court. They aren't kept in regards to a person's personal long-time stats. What they are getting at, actually, are the statistics looked at on the infamous "Chief's Poll" that comes around when it is time to promote a District Court Chief.
Nowhere on a Chief's poll are dismissals listed, but the trial statistics ARE. Also on a chief's poll are the candidate's start date, and date the person was promoted to Felony Two.
As far as tracking the AMOUNT of time a person gets on his cases, that is also not on the Chief's poll, but it is available in other statistics. All prosecutors are required to turn in their "Contested Matters" report, so I'm sure the data is out there for everyone. It just doesn't always generate in a report that is seen that often.

The Phantom Bureaucrat said...

St. Mark, I don't think the pure numbers are the guiding principle in this case; ie: marginal differences are not weighed as heavily so much as vast disparities like AHCL describes would be. Those stats are kept in part to evaluate the divisions as a whole too; some suggesting that media frenzies like the current one impact all of the divisions more than a little bit.

As with most careers, evaluating the performance of an individual is at least partially based on their peers and quantitative data is the easiest method of making side by side comparisons. Those as givens, why should it be such a bad idea that they are used in conjunction with a variety of other factors to hold public employees accountable?

DA-esque said...

The Child Abuse stat is meaningless - they count up the total amount of prison time for cases disposed in a period of time.

It doesn't tell you anything - and it isn't used for any evaluative purposes. I don't know why they keep it.

In other words - it might say, 20 cases disposed of - 200 years total prison time - so what? Was that 20 cases with 10 years each? 3 cases with 60 years and 17 cases with whatever 20/17 is? Who knows. That's why it is a meaningless stat - maybe it sounds good - like - "Last year we got 1,000 years in prison for child molesters." (I just made that up by the way - I don't what the total was).

I always wished we had better stats - maybe the new DA will hire someone to do just that - it would be great to have actual data on how cases are disposed.

Ron in Houston said...

Employee evaluations - God is there any worse way to determine where your career is going?

The reviewer first tries to make is objective rather than subjective. So, they rely on statistics. After all statistics don't lie right? Yeah, we all know there are lies, damn lies, and statistics.

No matter what statistic you use to evaluate the career of an assistant district attorney, you've just created a lose-lose situation.

First of all, cases are random. If you use statistics you are penalizing the ADA who was unlucky enough to get a bunch of crappy cases.

I don't have any solutions. This is just the norm for corporations and large organizations.

The ideal evaluation would be a large sample of all the people who work with the person. The sample would evaluate the person on relevant issues like character, and fairness.

Crap, why can't reality be nice and clean?

jigmeister said...

Bert just likes stats. We keep far to many now and many of them are meaningless. All you ex's and deceased exs., Bert still keeps every trial report.

As for evaluations, they are a joke. I suppose there is a need for some kind of an evaluation system but the one we have had for ever is far to subjective and based on the personality of those being evaluated and those doing the evaluation.

I have argued for years to at least get rid of them for chiefs and above. Once you make chief only the DA promotes and I guarantee it ain't based on evaluations.

Just to spite the system, every evaluation I wrote was good. Bert knew that so on mine, I always got downgraded for being easy. Oh well, I didn't care.

The how many jury trials tried and how many won or lost is an important one. At least if one doesn't match up to his peers then he/she may not be cut out to be a trial prosecutor. And, if one is trying lots of cases, but losing a disproportionate number, they may have judgement problems.

I certainly don't think that means counting scalps. Only politicans and egocentrics announce their records to the world.

Anonymous said...

Of course the Chronicle endorsed Pat Lykos. She'd be a reporter's wet dream. The division, animosity, and the dischord she'd create in the Office and the courthouse with the judges would be daily fodder for stories with next to no effort by the reporters. She's ideal from a media perspective.

Ron in Houston said...

For all you DA race junkies:

Bernstein's blog has an entry on Kelly Siegler's endorsements.

Michael said...

Lykos saying "counting scalps" is not nearly as offensive as a DA's office that's actually doing it.

anonymous c said...

Wow. Unless I'm missing something, those where some slightly complimentary words about Siegler.

From Bernstein?!?

Somewhere, a pig is flying.

Of course, that blog doesn't seem to be much of a public hot spot...

And we're still waiting on those answers...

adaspouse said...

This is more the form of an email to AHCL since I can't figure out a better way to do it. No credit is asked for the following:

I am an ADA’s spouse. While admittedly biased, I do find the more balanced viewpoints of the author and the posters a refreshing change from the crazies at the Chronicle or the recurring self-righteousness of the defense side of the bar. My spouse is not a senior administrator but does have a good position. My spouse has been at the office long enough to have served under Johnny Holmes and Chuck. None of this is their idea nor does my spouse know I am doing this.

My idea for a post or thread is for both sides of the bar to state what they think the next DA should do. Change is the mantra of the election. Let’s everyone leave out personalities (comments like fire so and so or promote x to this spot) but give specific ideas for procedures, policies, and organizational change for the office. No one can work at or with an organization and not think of better ways to do things.

While Falkenberg’s piece in today’s paper was a slap at the DA’s office (evil ADAs hiding things from white knight defense attorneys—never explaining why it sometimes—but not all the time--happens), it does open up an interesting topic of discussion. What should the policy be? I personnaly like the idea of on-line offense reports and official documents so nothing can go missing. The ADA can have their own file to supplement this which the defense attorney does not have a right to. The idea of being required to fax or xerox large files is ludicrous, especially since they are always changing and growing.

Another topic that come to mind is organization—is the way things are the best? Why are they this way? Also, training, evaluations (counting scalps?), promotions. It’s a potential Pandora’s box, but this seems to be a good spot for a free discussion.

The candidates should be encouraged to steal freely from these ideas and to comment on them. They may be a good source for questions for the KHOU debate.

jigmeister said...

Change the policy and configure the computer to generate a second offense report without victims name, address, and phone numbers and give it to the defense as a matter of course. At least then they won't give that info to defs.

Anonymous said...

Questions for the KHOU debate can be sent thru the khou.com website up until Friday...so send some in!

Michael said...

I think adaspouse should set the example for leaving personalities out of a thread by refraining from calling posters at the Chronicle "crazies" or defense attorneys "self-righteous".

In my civil experience, attorneys have kept privileged or nondisclosable materials in red folders within their accordion files or banker boxes; they could withhold those folders while disclosing or copying the other parts of the file (while identifying the material, under the civil discovery rules). If there are new documents placed in a file, they should be supplemented to the defense attorneys too. This sounds similar to what adaspouse is suggesting.

I don't understand spouse's contention that the Falkenberg piece was a slap at the DA's office, other than the fact that it was critical of the no copy policy. Siegler thinks that policy is silly, if you believe her announced intent to abolish it if she is elected. (It's not clear from the article whether she thought the rule was silly when she used it to deny Dick DeGuerin full disclosure of the David Temple file.)

jigmeister said...

Don't you believe that Dicky didn't have the whole file. Even if the state didn't give it to him, he had a source of the original at HPD and usually had the report before the DA.

jigmeister said...

Don't believe for a minute that Dicky didn't have the complete offense report. He had a mole at HPD for years. Not sure of other agencies, but he usually had the OR before the DA. Even when he had the complete OR he set every case for an examining trial. That's why the files get closed to him. That only makes him file the appropriate discovery requests with the court.

My previous comments are still a concern. Michael: Criminal cases have problems that civil cases don't, in regards to insuring the safety of victims of violence or sexual assault (particularly of children). The assailant should not get their contact information. But defense attorney's don't have that obligation. We need a system to insure that the defense gets adequate discovery, but not at the expense of safety or harassment to victims and witnesses.

J said...

Michael,

Mea culpa (see I have learned some legal things), not all Chronicle commenters are crazies, but you have to admit that the majority of the discussions tend to be extreme with a lot of wild accusations and conspiracy theories. Also, not all lawyers are self-righteous, but they have tended to be in these discussions. I apoligize for painting everyone in both camps with the same brush because of the statements and actions of a few (kind of like what's been happening to people at the DA's Office).

Falkenberg's column was disingenuous in that people that didn't read it through or didn't read it closely got the impression the DA's office was somehow witholding vital info from the defense attorneys. My protective instincts come up with too much criticism.

I like jigmiester's suggestion-- offense reports with the personal information redacted should satisfy the needs of the defense attorneys and protect victims. Your idea of seperate files for "public" and "private" is good too. I don't think the DA's Office is obligated to be a Kinkos to provide defense attorneys with a flood of copies. Where is the balance? Maybe make the redacted offense report available to the defense attorney but make the responsibility of making copies of further "public" parts of the file the defense's. Maybe they could put a xerox machine on each floor that worked off of a debit or credit card.