Monday, April 28, 2008

Ethics and the Media

QUESTION: What would happen if a prosecutor made this statement during his opening?

"Ladies and Gentleman of the jury, this case is about punishment of the Defendant, because there is no question of his guilt. How do I know that? Well, I know that because he offered to plead guilty if I would offer him ten years in prison. However, during plea negotiations, I decided that 10 years was too low, and I want at least 40."

ANSWER: There would be an immediate mistrial. The prosecutor would most definitely be fired. The prosecutor would be grieved.

For those of you who don't practice criminal law, the plea negotiations that occur before any trial are absolutely forbidden from being brought up during a trial. The jury should absolutely have no knowledge of the plea bargain offers and counter-offers, because they aren't relevant.

That being said, I found it interesting when I read Brian Rogers' article on Sunday that noted that accused cop-killer Juan Leonardo Quintero's attorney, Danalynn Recer, had sent an e-mail to local media announcing that Quintero wanted to plead guilty in exchange for a life sentence.

I also found it to be quite suspect that this article ran on the eve of the trial over Houston Police Officer Rodney Johnson's murder.

So, my question (and I throw it open to debate) is: was Ms. Recer's e-mail to the media a blatant attempt to publicize the plea bargaining process to those (already selected) jurors who read the Chronicle?

If so, was there anything wrong with that (assuming there was no gag order)?

Discuss amongst yourselves.

Sunday, April 27, 2008

The Capital Murder Decision

Harris County has long been synonymous with being the "Death Penalty Capital of the World" and it has always been pretty much the center of every debate on capital punishment since the 1970s. Couple that in with the fact that Mr. Kathryn Kase (AKA Jeff Cohen) is the Editor of the very anti-death penalty Houston Chronicle, and it seems like the District Attorney's Office will always be destined to be portrayed as more blood-thirsty than those it puts on Death Row.

This piece isn't about whether or not the Death Penalty should exist. Former District Attorney Johnny Holmes once told me that there was no point in ever debating the death penalty, because it is too much of a part of a person's moral and religious values to ever change a mind. If you believe in it, then you will, most likely, always believe in it. If you oppose it, you will always oppose it.

But have you ever wondered what goes into the decision-making process behind a capital murder case in Harris County, Texas?

Like almost all other cases, a capital murder is first presented at D.A. Intake. Homicide investigators come in and present the case to a District Court Chief or above for acceptance. Only a person who has attained the rank of District Court Chief or higher has the authority (according to the Operations Manual) to even file a charge of Capital Murder.

And when they do so at Intake, they are simply deciding whether or not the elements of the offense of Capital Murder have been met, and whether or not the case can be proven.

For those of you who don't know, not every murder is a Capital Murder. To be a Capital Murder, it must be one or more of the following:
1. A murder in the course of committing another enumerated felony (such as burglary, robbery, sexual assault, kidnapping, etc.)
2. A murder of a police officer or fireman in the line of duty.
3. A murder of a child under 6 years of age.
4. A murder of another for money.
5. A multiple murder

There are a couple of others, but those are the main ones.

When a Capital Murder is filed at Intake, there is no decision made at that time about the appropriate punishment that should be sought. The case is simply filed and it lands in a court. Once it is there, the Chief Prosecutor of the Court will handle it in most cases (sometimes a "higher up" may actually be the one handling the case).

The Chief Prosecutor will spend the next 90 days working on the case, and will go over it with a fine-toothed comb. The offense report is read multiple times over. The scene photos and videos are reviewed. The autopsy report and photos are reviewed. All statements are read and noted.

If a Defendant has priors, the prosecutor won't just order the Judgment and Sentence reflecting the conviction. They will order the offense report, the old file, and everything else that they possibly can to understand what happened on the prior offense. They often pull the Defendant's school records if he is young. They will talk to the victim's family members and discuss their feelings about the case. They will look at the offense itself and decide how bad the facts of the case-in-chief are. Sadly, in this day and age, a capital murder during a convenience store robbery doesn't really "shock the conscience" like it used to.

The Chief will also talk with the defense attorneys about things that might mitigate, or lessen the Defendant's personal blame-worthiness in the case. Was the Defendant abused as a child? Did the Defendant have a low IQ? Are there any mental issues that might tend to explain what is going on? Was there some form of provocation behind the murder?

Once all of this information has been gathered by the Chief Prosecutor, it becomes his or her duty to write up a "Capital Murder Report", which details the offense. It will contain a detailed narrative of the offense. It will also have a list of "aggravating" factors that might make the case more egregious. It also has a list of the mitigating factors that should be considered as reasons why death should not be sought.

When the Chief has finished the Capital Murder Report, he or she will write a recommendation as to how the charge should be presented to the Grand Jury. Perhaps it shouldn't be a capital. Maybe it should be indicted as a regular murder or even an Aggravated Robbery. Whatever the case may be, they hand-write their recommendation. Although I have heard other Divisions may do it differently, I always included whether or not I thought it should be a non-death or death case at that time. Some say the decision is made a little further down the road.

Once the Chief Prosecutor has made their recommendation, they take the form to their Division Chief, who is usually a prosecutor that has been at the Office over 15 years and has a good feel for what cases are worthy of seeking the death penalty on versus those that are not. They write down their recommendation as well. The Chief Prosecutor and his or her Division Chief then travel to the 6th Floor where they meet with the Bureau Chief of the Trial Division (currently, that would be Lyn McClellan). They review the case with him, and he writes his recommendation.

The Chief, the Division Chief, and the Bureau Chief (this is starting to sound like the Wizard of Oz, now, isn't it?) then travel down the hall to meet with the District Attorney. He reviews the summary and sometimes there is discussion and sometimes the summary is enough. Obviously, the District Attorney has the final say-so in how the charge is filed, and whether or not to seek death.

So, for those out there who believe that prosecutors at the Harris County District Attorney's Office yell out: "Yee haw! Get the gurney ready!" every time a capital murder charge is filed, please rest assured that there is a lot more to it than that.

Mr. Holmes once told me that in making the decision whether or not to seek death on a Defendant charged with Capital Murder, he asked himself the question "would 12 reasonable minds agree that a Defendant deserved to die for what he had done". If you look at how many people were sent to death row during the Holmes administration, it would appear that the man's assessment of those 12 "reasonable minds" was usually pretty accurate.

A senior prosecutor told me that in his mind, the standards at the Office are whether or not the Defendant's actions "shock the conscience". Perhaps the facts of the case-in-chief shock the conscience, or perhaps a Defendant's violent criminal history does. The more the Defendant "shocks the conscience", the more likely the State will seek death.

One last note before I turn this over to the commenters to blast me.

Although the Chronicle likes to make a big deal out of how many people Harris County sends to death row, they seem to pay very little attention to those capital murders where the State does not seek the death penalty. Now, I know that Mr. Kase, uh, Mr. Cohen has his agenda, and portraying the D.A.'s Office as being the slightest bit reasonable would not help his agenda, but the vast majority of Capital Murders are "non-deaths". They get tried with little to no fanfare on an almost weekly basis.

For those who oppose the death penalty, I know that there is no such thing as a case that would change your mind. However, for those who do agree with it, or are, at least, willing to consider it the Conscience Shockers are going to be the only ones on the table for consideration of lethal injection.

Those cases where death is sought are truly the ones that "shock the conscience".

The Memorial Service

The Memorial Service for Melissa Harper was held today.

It was a beautiful ceremony held at the Parador (courtesy of James Stafford and Deborah Keyser). A collection of family and friends all spoke about what a wonderful person, attorney, and friend Melissa was to so many people.

There was an impressive gathering of members of the D.A.'s Office, the Defense Bar, and the Judges who came to pay their respects to someone who earned the love and respect of so many. Seeing us all together under one roof really reinforced what a family we truly are.

We all truly miss you, Melissa. And Kelli, we love you and are there for anything you could possibly need.

Friday, April 25, 2008

When Someone You Know Is Charged

One of the more awkward situations that a prosecutor can find themselves in at any time is when a friend, or someone they know is charged with a criminal offense. Depending on how long you stay at the Office, it is just something that is bound to happen. If it isn't the situation where you have a friend or family member charged, you will most certainly have someone call you at some point because a "friend of a friend" is charged.

It is an interesting situation because of how many times prosecutors have listened to a friend or family member of a Defendant when they are trying insist that their loved one didn't do it. Prosecutors are confronted routinely by the zealous family members who will say everything from "How do you sleep at night?" all the way to down to wishing them (and sometimes their family) death.

Ah yes, you never feel more popular than when you are a prosecutor in the proximity of the Defendant's family and friends.

DA Texan wrote a good illustration over how it works in the juvenile system with his post "He's a Good Kid." I would imagine that the situation is even more magnified if the person charged is a juvenile.

Sometimes, it is difficult to refrain from being a smart-ass and respond, "Oh, I'm sorry, should I not be concerned that your son shot this kid eleven times? Am I really just being an asshole by proceeding?"

It's moments like today when I read about Craig Washington's indictment in the Chronicle that a prosecutor understands, maybe a little bit where those family members are coming from.

It is a very conflicting situation. On the one hand, Craig Washington is a friend of mine. I consider him to be someone I like very much. He is an honest and sincere man who follows his own code of ethics in a way that most people wouldn't have the courage to. He is one of those people that when I see him at the elevator banks around the CJC, I can't help but smile and just want to talk to him. He re-defines charismatic and its just always great to talk to him.

I had read about the incident with which he is now charged when it first happened. And at that point, knowing how much I like Craig, I made it my active duty to avoid learning anything about the case to the best of my ability. I think I've pretty much limited it to what I've read in the papers.

I did that for two reasons.

The first being that I didn't want to ever run the risk of doing anything improper. I don't want to be the person out there yelling "He didn't do it!" when I know nothing of the facts.

But more importantly, I didn't want to run the risk of learning something that might potentially change my opinion of someone I respect and consider to be a friend. And I would never want to turn my back on that friend.

I know nothing about the charges other than what the Chronicle has written, and I don't want to know anything about them. I wish to remain blissfully ignorant and pray that everything turns out for the best.

But at the risk of giving Mark Bennett the opportunity to yell "I told you so!" on his premise that prosecutors should be more mindful of what Defendants' families and friends go through, I have to say that I'm feeling more empathy today than I did yesterday.

I'm thinking that in a situation like this all you can really do is have a compassionate heart and say a little prayer:

"May Justice be Done."

Thursday, April 24, 2008

The Office in the Aftermath of the Election

A couple of weeks have gone by now since the April 8th run-off election. The Assistant District Attorneys (especially the ones who have been there for over ten years) are coming to terms with the fact that whoever wins the election in November, that the jobs that they've known and loved for so long now will never be the same.

The term "End of an Era" has been uttered so many times now, that I'm really wishing I got paid a royalty fee for it, so I could retire wealthy.

Some people are comparing these next eight months at the Office as being akin to their Senior Year of High School. Others are comparing it to the final season of a long-running television show.

I can't decide which analogy I think is more appropriate. One of the Senior (Citizen) prosecutors pointed out that the Senior Year analogy wasn't appropriate, because the end of one's Senior Year had everyone looking hopefully towards the future.

That's just not the case within the Office at the moment.

Prosecutors are talking amongst themselves over whether or not they would stay under one a Bradford regime, but not a Lykos one, and vice versa. Some are placing phone calls to other counties and applying there. Some are applying with the Feds.

Some are just keeping their heads low and waiting to see what happens.

Others are talking about hanging out a shingle and starting their own businesses. People are stressing out about insurance and overhead.

Big cases and horrifying cases continue to be filed on a daily basis, and the prosecutors that handle them are wondering if they will even be around to try them when the case finally makes it to trial. They are all hopeful that if it isn't them that gets to try the case that a good replacement will step up to the plate.

The first actual departure was Amy Smith from Victim Witness. I know of several that will be coming in the following months.

With each departure, the place loses a little bit of its identity and character, and it feels like a family member is moving away from home.

Of course that family member is still in your life, but it just isn't the same once you all aren't under the same roof, is it?

Wednesday, April 23, 2008

Memorial Service for Melissa Harper

I know that an e-mail went out to pretty much everyone in the courthouse, yesterday, but in case you didn't receive the information regarding Melissa's Memorial Service, here it is.

There will be a Memorial Service and a Celebration of Life for Melissa Harper on Sunday, April 27, 2008 at The Parador, 2021 Binz, Houston, Texas 77004 at 2:00 p.m.

For those few of you that might not have known Melissa, she was a very loved and respected defense attorney here in Houston who will be deeply missed. Please keep Kelli and the rest of the family in your prayers and thoughts.

The family is asking that in lieu of flowers, donations be made to either the DePelchin Children's Center, 4950 Memorial Drive, Houston, Texas 77007 or Citizens for the Protection of Animals (CAP), 11925 Katy Freeway, Houston, Texas.

Thank you to Angela Beavers for getting this information out.

Also, thank you to all of Melissa and Kelli's friends and family who have written so many wonderful things about her below.

Monday, April 21, 2008

The Juvenile Appointments

Probably the worst four months of my life as a prosecutor was the time I spent as a prosecutor in the Juvenile Division.

It was many moons ago, and I was a rookie prosecutor, having been at the Office less than a year. The entire system was unproductive, in my opinion. The dockets were pointless because cases rarely worked out, and yet, it seemed, they rarely went to trial, either. The kids almost always went home to the custody of their parents, whether found to have engaged in delinquent conduct or not.

The whole damn thing was just so . . . frustrating.

There was a natural course of business there. If a case was on it's first setting, it wouldn't work out. I mean, it wouldn't work out if you offered a dismissal, an apology, and a free trip to Chuck E. Cheese. It was going to get reset. That's all there was to it.

Only those juvenile delinquents who were the Heir to Charles Manson's throne were ever treated with any degree of severity or seriousness. And for those of you saying "that's how it should be, they are just children", I would agree in principle.

Except you haven't met some of these kids.

Yes, some of them are kids (caught up in our over-policed school system) who are charged with Assaults on the very same type of incidents that their fathers received swats from the Principal for.

But some of those kids . . .

They are freaking scary.

The problem with the System is that there wasn't a whole lot of time spent separating the truly demented juvenile from the kid just being a kid. If you think that the Bond Schedule is uniform, and doesn't take into account the severity (or lack thereof) of all the circumstances, you've never seen anything like the juvenile system back in the day.

That was a long time ago, and I don't know the current status now. The Juvenile Division is headed by a different Division Chief now, and two out of the three judges that were there when I was are now gone. Unfortunately, my least favorite of the three remains on the bench.

The Chronicle did an interesting article on the cronyism of the Juvenile System this weekend. It pointed out the fact that the minority of the attorneys there are making the majority of the appointment money.

Frankly, that doesn't bother me all that much (and no, I'm not one of the ones listed).

Juvenile law takes specialized knowledge. One of the things I do recall from my time there was that when I went, I had to "unlearn" regular criminal procedure, and learn Juvenile Law. They aren't "Defendants", they are "Respondents". A "respondent" isn't guilty of a crime. They engaged in delinquent behavior (God forbid that they feel guilt!). Leaving juvenile to go back into the regular courts required a de-briefing.

My point is that if those attorneys mentioned in the article actually want to do the juvenile appointments, then more power to them! I know that I sure as hell don't. The majority of the folks listed in there were around back when I was. And they were all very knowledgeable in Juvenile Law, and that is what is needed. Sure, there is a big financial incentive, but who cares? They get the job done.

The issue that the Chronicle touched on but didn't really focus on is the bigger issue, actually. I don't think they got it.

If there is "cronyism" within the Juvenile system, it doesn't have to deal with who gets appointed to the cases. It has to deal with what they do once appointed.

Ask yourself this: if the cases and their outcomes are so "cookie-cutter" (for lack of a better word), then why does it take six resets to dispose of a case with no issues to it?

Before the Civil Libertarians start getting all up in arms and say that I'm advocating attorneys not thoroughly researching their clients' cases, just put a lid on it. That's not what I'm saying.

What I'm saying is that the System (at least as I knew it, way back when) was very open to abuses. Cases being reset so that an attorney could get another "setting fee" of a couple of hundred dollars, when all they were doing was signing a Reset document. No work was being done, but, baby, people were getting paid.

If I was a kid (a good kid) who had a juvenile case pending, probably the first thing on my mind would be to get the damn thing over with. The sooner the better. Being in limbo creates nothing but angst and uncertainty, and if your attorney is resetting your case just to get another setting fee, then he isn't really acting in your best interest, now is he?

So, I guess my overall point is (and yes, it comes with the caveat that it has been years since I was in juvenile) that I wouldn't criticize the fact that the same lawyers are getting appointed in juvenile over and over again.

But, I might take a look at what the average number of resets that an attorney was able to get.

Sunday, April 20, 2008

Melissa Harper

My good friend Melissa passed away yesterday.

I have known Melissa since the day I first came to work for the District Attorney's Office.

I've gone to trial against her. I've drank beer and wine with her. There may have even been a cigarette or two smoked with her, too, on occasion (but don't tell anybody).

She was that world-weary, sarcastic, and talented Defense Attorney who had a heart of gold. She could argue her case with a prosecutor in a way that made you feel like if you didn't agree with her position that you might just have lost your moral compass. She was smart, but not in the way that she ever tried to make you feel stupid.

And she sure as hell wasn't scared to go to trial. The second felony case I ever tried was against her. I won't tell you the details of it, but it was one of those serious cases that had a lot of those bizarre funny moments in it. (Let's just say that sometimes when you put a mannequin in front of a jury without a properly "wood-shedded" lay witness that crazy things can happen.)

We were still laughing and talking about that case as late as last week.

When I talk about how our little community of lawyers are a family, I can't think of a better example of that than Melissa Harper. We could fight like cats and dogs and argue like we couldn't stand each other in court, on occasion. And then chat with each other like life-long friends hours later.

To me, she was like a cool older sister. She gave me advice on everything, especially fashion tips (which I desperately needed). She was a friend to me and she was a friend to my family.

God, this hurts so bad.

My thoughts and prayers go out to every friend and family member of Melissa's -- whether biological, courthouse, or otherwise.

KJ, you are especially in our hearts and prayers. Please let the family at the CJC that loves you be there for you as much as you can tolerate us.

To Melissa, your absence in the hallways of the Criminal Justice Center will create a deafening silence.

We will miss you more than words can ever express.

Saturday, April 19, 2008

P.C. Court and the Bond Schedule

As alluded to in some of the comments in my article on Intake, there is also a Probable Cause court open 24 hours a day, 7 days a week, 365 days a year. The job is split amongst five P.C. Judges -- Blanca Villagomez, Frank Aguilar, Ron Nicholas, Jill Wallace, and Eric Hagstette. Between the five of them, the office is always staffed.

Every two to three hours, a docket is called for the recent arrests who have arrived in custody at the Harris County Jail. The inmates all sit on benches over at 49 San Jacinto, while the Judge, a Clerk, a representative of Pre-Trial Services, and a prosecutor are on the first floor of the CJC. The proceedings are done via close-circuit TV, and are taped and kept on file if they need to be reviewed later.
(NOTE: Sometimes some wildly bizarre things happen on those tapes. )

The Judge Presiding reads all the Defendants their rights and then they individually approach the front of the room. The prosecutor then reads the Probable Cause for their arrests to the Court.

Usually, the Judge finds probable cause exists to continue their detention. Sometimes, they ask for more information and ask the prosecutor to get that information by the next docket. And, believe it or not, sometimes, they find no probable cause exists and order the Defendant released from custody.

If Probable Cause is found, the Judge then moves on to the issue of setting a bond. The Judges at Probable Cause are required to follow the "Bond Schedule" set by the District Court Judges.

Here's a general (and very abbreviated) summary of the bond schedule:

On Misdemeanor Cases, the starting bond is either $500 or $1000 (depending if the charge is a Class B or Class A). For every prior conviction, the bond goes up. If the prior conviction is a felony, it goes up $1,000. If the prior conviction is a misdemeanor, it goes up $500. Juvenile convictions don't count. Either way, in the vast vast majority of the cases, the bond "caps" at a maximum of $5,000 on a misdemeanor case.

Felony Cases are much more complicated. A State Jail starts with a base of $2,000. A third degree starts at $5,000. A second degree starts at $10,000. A first degree starts at $20,000. Aggravated offenses (like Aggravated Assault, Aggravated Robbery, or Aggravated Sexual Assault for example) start off at $30,000.
Murders start out at $50,000, and Capital Murders are set at No Bond.
Priors for a misdemeanor case normally have no effect on a bond for a felony case. Prior felony cases will generally bump a bond amount up a degree amount. (For instance, a third degree underlying offense with a prior felony conviction will bump the bond amount up to $10,000).
A State Jail Felony offender with two prior convictions will cap out at $15,000. If a person is charged as a "True Habitual", the bond can be set at No Bond.
People on a felony probation who pick up a new felony charge will also be set at No Bond.

Whew. Did you get all that?! Of course, there are exceptions on all the cases.

Leviathan, members of the Defense Bar, and several D.A. Candidates have discussed the under-utilization of "Pre-Trial Release Bonds".

Basically, to my understanding, under the current system, only Misdemeanor cases with no prior criminal history are eligible for a Pre-Trial Release bond that would not require a Defendant to put up money to be released on bond. There are other factors, of course, like a stable address and references, but those are the cases where the Pre-Trial Release bond is made.

With the exception of Judge Mary Lou Keel, I don't believe that any of the other District Court Judges permit a pre-trial release bond being granted for a felony case during the P.C. Court appearance

Leviathan makes the argument on the Bond Schedule doesn't accurately reflect Art. 17.15 of the Code of Criminal Procedure, which lists the legal considerations a Court should consider when setting bond. They are:

1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.
2. The power to require bail is not to be so used as to make it an instrument of oppression.
3. The nature of the offense and the circumstances under which it was committed are to be considered.
4. The ability to make bail is to be regarded, and proof may be taken upon this point.
5. The future safety of a victim of the alleged offense and the community shall be considered.

He's right, of course, because a Bond Schedule doesn't take the time to really make those judgment calls during the initial Probable Cause hearing.

But the fact of the matter is that there is no feasible way to do that without a lot of extra-positions across the board - more judges, more prosecutors, more clerks, more pre-trial folks. A Bond Schedule is a guide that, if only theoretically, takes into account the nature of the offense, the criminal history, and the future safety of a victim.

The Intake System and the P.C. Courts are the equivalent of a MASH Unit during combat. Patch it up and get it moved to the appropriate court.

But don't lose heart, just yet.

Once the case arrives in the corresponding court, which is normally the following business day (or the day after that), the bond can be revisited by the presiding Judge in that court. I'm sure there are some judges more willing to revisit a Defendant's bonds than others, but I will leave that to the Commenters to address.

This article is already longer than I usually write, and I haven't been able to include a large amount of the other surrounding issues (like MOEPs, etc.), so feel free to throw out some other ideas to discuss about P.C. Court and Bonds.

Thursday, April 17, 2008

Victim Witness' Amy Smith's Q&A Session

Amy Smith of the D.A.'s Office's Victim Witness Division graciously agreed to be the first subject of our Question and Answer Session on the blog (thanks Amy!). We are going to miss you around the CJC.
(NOTE: Please remember if you have any suggestions for who you want interviewed to let me know. Remember, this can end up like voir dire real fast, and only the quiet ones end up on the jury.)

On to the questions!

1. Where are you from originally? Houston

2. How does one get involved in the Victim's Advocacy business? 1st you have to have a compassionate nature and want to help people and be willingly to do it for low pay and a lot of headaches and heartaches. 2nd For this office you need to have a degree in criminal justice, sociology, psychology or social work.

3. What's the most well-known case you've ever worked on? I can't single out a particular case because each case is well known to the victim or their family members so that makes each case special to me and those that I am working with.

4. What was your best moment working in Victim Witness? There was a woman I worked with about 12 years ago that was a victim of several family violence cases and seeing her blossom from a meek, mild and traumatize person into an incredible survivor. She still calls me about once a year and we catch up and it's amazing all she has accomplished.

5. What was your worst? Dealing with the death of Di Glaeser and Diana Maldonado's stroke. It's hard to lose friends and good people.

6. The best thing about dealing with prosecutors on a daily basis is . . . when they have that "aha" moment that victims really do have rights and they start treating them with the respect and dignity they deserve.

7. The worst thing about dealing with prosecutors on a daily basis is . . . talking to the victim that is upset because they have not gotten a return call from the prosecutor

8. I'm most proud of . . . my co-workers in Victim Witness that do an awesome job on a daily basis dealing with all kinds of people, in all kinds of stages of trauma and handling them with grace.

9. The last vacation I took was to . . . I went on a cruise with my family

10. My favorite prosecutor is . . . I'm not touching that question! I would get into too much trouble by too many people for not naming them!

11. My favorite defense attorney is . . .See above

12. The best lawyer I've ever seen in action is . . . Kelly Siegler, her passion for her job, her cases and for the victims in her cases is beyond anything I have ever seen.

13. I've been working helping victims of crime since . . . I graduated from college. My first job was counseling sexual assault victims for a year and then I moved over to the DA's office. So for 20 years I've been in the victim field.

14. If I weren't working in the criminal field, I would like to be . . .A Senator they seemed to have a cool job!

15. The best restaurant Downtown is . . .Hmmm..... depends on the menu item.

16. In my spare time, I like to . . . Hang out with my dog, Maisie

17. The thing I will miss most about the D.A.'s Office is . . . the good hard working, dedicated people

18. The thing I will miss least about the D.A.'s office is . . . the elevators in the CJC!

Thanks again for participating, Amy!

CLE Hours - Public Service Announcement

Mark Bennett was kind enough to post that there are 6 free Ethics hours of CLE available tomorrow at the CJC.
(NOTE: For the non-attorneys reading this, CLE stands for "Continuing Legal Education" hours that each attorney is required to keep up with every year. At least three of those hours have to be approved as hours of Ethics education. For some reason, the Ethics classes are relatively few and far between.)

Mark, himself, is going to be speaking, and I highly encourage folks to attend. He's a great speaker even if you disagree with 99.99999% of what he is saying, and I bet his portion will be entertaining.

Even if he pleads the 5th during the Question & Answer session. :-)

Write-In Candidates

A friend of mine today provided me with the rules from the Secretary of State for "Write-In Candidates". It reads:

In order to become a write-in candidate in the general election, file a Declaration of Write-In Candidacy with the Secretary of State or your county judge, as appropriate, no earlier than July 27, 2008, and no later than 5:00 p.m. on August 26, 2008. Your declaration must be accompanied by either a filing fee or a nominating petition signed by a certain number of qualified voters.

The rules for a Write-In Candidate for District Attorney requires a filing fee of either $1,250 or a petition of 500 signatures. If a person complies with one or the other, they can be official, eligible "write-in" candidates for the D.A.'s race. They won't be on the ballot, but you can fill them in if you want to.

So, if you want to run, get your closest 500 friends to sign your petition and make it a possibility!

If I were to run, I think I would announce up front that I drink alcohol and cuss like a sailor. It might offend the delicate and duplicitous Terry Lowry, but that's how life goes in the real world of Public Service.

The "Holding Your Nose" Conflict

Kevin Whited wrote in a comment today under my "Bradford vs. Lykos -- pt. 1" that the race for District Attorney will end up with voters feeling: "Man, talk about holding your nose and picking between the lesser of two evils. Sheesh."

As a former/current Assistant District Attorney, it is so sad for me to read that quote, yet I have a hard time disagreeing with it. Whether you were a Siegler or Leitner fan during the Republican Primary, the fact of the matter is that the voters are left with two candidates who have never been prosecutors and have no trial experience.

Now, I've stated, and I stand by the position that I will never ever ever ever cast a vote in support of Pat Lykos. To me, she illustrates everything despicable about politics, and reaffirms for me that partisan politics have absolutely no place in elections regarding criminal justice. (SIDE NOTE: If our city's mayoral election doesn't have a Republican/Democrat marking on it, why does the Justice System? Partisan politics would seem to me to have much more relevance in a mayoral race than in the one for D.A.)

I'm very conflicted, personally. I'm fully aware of the knocks against C.O. Bradford and I don't want to minimize them on this blog. That being said, I don't think that Lykos has the leadership skills to guide a prosecutor to the restroom, let alone in issues that deal with criminal justice.

Although Bradford has my vote, I fully understand that this will cause a division amongst the folks that read the blog. My goal for the rest of this election season is to promote the idea that the truth and all of the truth needs to come out on both candidates. Because even if you do have to hold your nose to vote on the race, you still need to vote. It's just too damn important not to.

I don't think it is fair that Bradford be continuously bashed over the head with the crime lab scandal and the K-Mart raid, while the Chronicle turns a blind eye to Lykos. In my opinion, Lykos' sins equal, if not outweigh anything Bradford ever did, and unlike Bradford, she doesn't have the capability to blame the sins on anyone else.

The Chronicle failed its readership during the Republican primary. I hope they don't do the same thing during the general election.

Examine your candidates and vote carefully, folks.

A Couple of Outside Takes on the D.A. Race

I ran across two pieces today on the D.A.'s race.

The first was from the Houston Press, which offered a comparison chart between Bradford and Lykos. It was actually pretty damn funny, if it weren't so sadly true. Yet again, reading the Houston Press, I become depressed that they aren't the dominant Houston newspaper, rather than the Chronicle. Their writing (although very liberal) at least looks at both sides of the issues and has insightful writing.

The other part I read was from Off the Kuff in an article entitled "Early Overview of the DA Race". Again, dammit, I'm having a hard time isolating that particular article off the page, but scroll down and find it. It's a good article, and I agree with it whole-heartedly. The only part I question is that I thought it was documented somewhere that C.O. Bradford was waaaaaaaay ahead in the fundraising department (but I could be wrong about that).

Anyway, it is worth the read.

Wednesday, April 16, 2008


One of the lesser known aspects of how the Harris County District Attorney's Office works is what goes on behind the scenes at Intake.

Located on the second floor of the CJC, the Intake Division is the place where criminal cases are first filed.

It is staffed by at least three prosecutors 24 hours a day, 7 days a week, 365 days a year. Prosecutors get paid extra money outside of the standard 8 to 5 business day. It's the only possible way that prosecutors can make extra money to supplement their salaries, and the vast majority of them participate in it.

This is how it works:

When a police officer seeks to arrest a suspect on any criminal case (other than a Class C misdemeanor), they must get the charges approved by a prosecutor. A typical example of what the call from a police officer on a case (let's say a DWI for this scenario) goes something like this:

"This is Officer Smith with HPD. Stopped a guy for speeding, failure to maintain a single lane of traffic, and running a stop sign. Smelled a strong odor of alcohol on his breath, so I asked him to perform field sobriety tests. Got all 6 clues on the HGN. 3 clues on the walk and turn. Stumbled during the walk and turn, and swayed during Rhomberg. Took him into custody and down to the station, where he blew a .14."

The prosecutor then will accept or deny charges. Obviously in the above scenario, he or she would accept. The officer will then officially file the DWI charges.

About thirty minutes to an hour later, the Officer will have typed up a brief summary of the case, and entered in the Defendant's identifiers and criminal history. The prosecutor will get the written package on his desk and then "screen" it. They will make a request for a bond that will reflect the level of the offense, combined with the Defendant's criminal history. They give their screened case to the intake secretaries, who will put the case in final form with all the legal paperwork.

Where it gets funny is when a prosecutor doesn't want to take a charge (which believe it or not, happens quite often!). Cops and prosecutors will sometimes end up screaming at each over the phone over whether or not charges should be accepted. Some officers who have charges rejected will have their supervisors call in to argue as well. Nothing will get a prosecutor more fired up than when things happen like that.

In addition to the accepting and screening of charges, the prosecutors on duty at intake are also responsible for doing Grand Jury subpoenas, as well as writing search warrants and arrest (AKA "To Be") warrants for Defendants not in custody. The "To Be's" are usually not that tricky, but search warrants can often times take hours to write.

On some nights, the pace of intake can be relatively slow. But picture the scene on a Friday or Saturday night around, say, 2 a.m. Every last single charge that will be filed has to get the final blessing of a prosecutor. Every line on the phones are blinking. A prosecutor finishes a call and hangs up, and the line immediately starts blinking again.

At times, prosecutors are praying that it will just settle down to "Chaotic" level.

But ultimately, it's a system that speeds up and streamlines the Defendant receiving his or her Due Process rights in a timely manner.

So, if you weren't familiar with it, that's the intake system in a nutshell.

Now, that being said, I now invite all former and current prosecutors to share their favorite intake war stories.

(NOTE: It's also worth noting that the Special Crimes Division also operates as a de facto intake with the more complicated and serious cases. The prosecutors in that Division (headed by Kelly Siegler) are on call 24/7 by cell phone. They get the phone calls in the middle of the night and write warrants too. Just without the overtime pay.)

Bradford vs. Lykos - Pt. 1

I'm calling it Part 1, because we've got over six months until the November 8th election, and I highly doubt that this will be the only post on it.

For those of us who were active Kelly Siegler supporters (and still are, I might add), careful consideration now has to be made over who is the best candidate for District Attorney -- former HPD Chief C.O. Bradford or Pat "Snookems" Lykos.

Today, the Chroncile ran an editorial suggesting that this week's settlement of the the majority of the lawsuits was "Burying a Blunder", and Bradford's role in the raid "should and likely will be an issue in his November contest".

Um, okay, after the Chronicle's antics during the Republican primary, I hardly see them as being the appropriate entity to accuse anyone of "burying" something. Getting the Chronicle to run stories regarding Pat Lykos' behavior was like pulling teeth, and when they finally did do something, it only revealed about 50% of what was out there.

Now, don't get me wrong on this. Chief Bradford has definitely got some issues to address, and perhaps the settlement of the K-Mart civil cases will clear the runway for him to do so. Time will tell. However, one of the stories that the Chronicle ignored on their "expose" on Lykos was that she hasn't exactly been a champion of civil rights, herself.

One of the reasons that some political pundits have said that Lykos won the Republican Primary was because, sadly, she went negative, and Kelly didn't. Obviously, the lesson that we want to teach our children is that campaigns should be positive and not negative, but that isn't the reality.

Thus far, Bradford has refrained from going negative on Lykos.

He needs to.

Because we all know that she is going to be beating the DNA Crime Lab and K-Mart Raid drum for all to hear.

He needs to fight back, and he needs to make sure that people hear it. The Chronicle proved during the Republican Primary that it will more than gladly ignore stories that don't mesh well with their desired objectives.

And, Chief, if you need the Cliff's Notes version on Lykos, here it is. You just have to get a forum to hear it in.

This race is going to get ugly.

Tuesday, April 15, 2008

Concert Review

Although I'm not quite as high-brow as my friend, Mark Bennett and the League of Extraordinary Gentleman, I thought that I would try to make my blog a little more cultured by adding an Arts Section.

I begin by reviewing last night's concert by Bruce Springsteen and the E Street Band at Toyota Center.

It was freaking awesome. Seeing Bruce Springsteen, Steven Van Zandt, Clarence Clemmons and company may just be the coolest damn concert I've ever been to. My ears are still ringing, and it was just incredible.


You have now had your daily dose of culture.

Sunday, April 13, 2008

A Reader's Idea

I got a suggestion from one of my readers that, in an effort to let the people who read this blog get to know some of the cast of characters within the CJC, that I ought to start doing a 20 questions type of interview with Defense Attorneys and Prosecutors.

I think it's a great idea, and I actually have the technology to do it!

Since the D.A.'s Office makes it a little easier to figure out the e-mail, I will probably need more help getting in touch with the Defense Attorneys. So, if you are a member of the defense bar and would like to participate (or would like to suggest someone who should participate) just shoot me an e-mail at

Think of the free advertising, Defense Bar!

And thanks for the idea to the Person who already knows who he/she is. This could be fun with a little participation.

[NOTE: In the spirit of keeping this fun, I will be monitoring the comments. If you want to say something nice about the person profiled or ask a follow up question or make a pleasant comment, go right ahead. I won't be posting things that in any way trash a person who is willing to submit to the questions. ]

The Prosecutor Translation

Mark. Mark. Mark. Mark. Mark. You were so nice the day after the election, and now you've hauled off and written this crap.

Now, I've grown accustomed to your article comments when you, Steve Gustitis and that Scott Greenfield dude start applauding yourselves as Defense Attorneys like you were from the League of Extraordinary Gentleman, but come on, who appointed you the Gate Keeper to who and who is not going to translate well from the job of prosecutor?

Now, granted, you hedged your bets and said Kelly might end up being a good defense attorney, and then you added:but give ‘em all a few years of proving that their hearts are in the right place as defense lawyers before you even think about trusting them with your freedom.

Isn't that a bit of a Catch-22 for the poor ex-prosecutor?

Now, you clarify your position in your comments that you aren't threatened by the business competition because there are plenty of cases to go around. I agree with that. Most prosecutors (like allegedly myself) don't know doodly-squat about the Federal system, and are pretty much restricted to having a good base of knowledge in the State courts. You, on the other hand, have spent a significant amount of your career, um, fighting the Feds (and, on occasion, the Fashion Police).

But when you say that a criminal defendant can only be well-served by a "true believer", and thus a new former-prosecutor just won't be as good, I think you may be out of your mind.

I've always felt that extremism in any field is foolish and frightening. The Radical Right scares the pee-pee out of me every bit as much as the Radical Left.

The same applies to prosecutors and defense attorneys.

Any prosecutor that believes that "everybody charged is guilty" is as foolish as the defense attorney who believes that every client they have is factually innocent. If you ask me, neither is going to be that swell of an advocate when it comes to trial time.

That type of zeal leads to tunnel-vision, and tunnel-vision leads to mistakes. Sometimes enormous mistakes. For a prosecutor who makes the "facts fit his ideas", the potential for injustice is obvious.

But how about the "true believer" defense attorney who tells his client: "I don't care if you have three videotaped confessions, and the murder was caught on videotape, and the State is only offering you 10 years. If you tell me you didn't do it, then I say, let's tee it up!"

I would suggest to you that a person charged with a crime is best served by an intelligent, well-spoken, hard-working pragmatist. One who can go in and assess the case from both the defense side and the State's side, and offer good advice. If I got charged with a serious crime, I would want somebody that I knew wasn't going to bullshit me, even if I was bullshitting them!

True Believers start thinking of themselves as bulletproof, and that's not good for anybody.

If I ever find myself in trouble with the law, give me a good realist who knows how to fight over someone who thinks that their righteous indignation will carry the day.

(NOTE: As an aside, check out this post by Harry Lime for a great write up on Kelly Siegler. She's clearly the James Bond of prosecuting.)

Rick Casey's Article on Kelly Siegler

Rick Casey wrote an article on Kelly Siegler that has generated some conversation on the blogs. A defense attorney friend of mine pointed it out to me (since I've been trying to avoid reading the news for a week), and his opinion of it was that the article was designed to praise Kelly. One of the commenters on Casey's article thought the article was "kicking Kelly while she was down". And somebody in one of the comments on Bennett's article on the topic pointed out that we were all missing the boat, because the article was clearly satire.

Um, okay.

Me, I viewed the article from a more practical standpoint. It was a complimentary article that Rick Casey buried until after the election so as not to displease his boss, Jeff Cohen by saying something nice about Kelly Siegler. Casey was also writing the article in a weak attempt to make peace with Sam Siegler so that Sam doesn't sue Casey's rear-end.

Casey is the one who reported (without fact checking) that Dr. Siegler had been the sender of the racist e-mails on Chuck Rosenthal's computer, which was NOT true. Now, after Sam and Kelly had been called racists in public thanks to Casey's article, and he learned that it was untrue, he printed a tiny little retraction buried within another edition of the Chronicle, that I'm willing to bet that none of you ever saw.

Casey is trying to do a little bit of sucking up so that his own reputation doesn't get dragged through the mud like Sam Siegler's did.

The difference would be, however, that if Sam decides to file a lawsuit against Casey, it will actually be based on facts that he knows to be true.

If you go back and look at his columns during the election, Rick mysteriously didn't have a whole hell of a lot to say about the Republican race. That's a little out of character for him, wouldn't you agree?

The Reason? He screwed up so big time in his first column on Sam that he was a bit gun-shy for the rest of it.

Now, I know that libel and slander suits are about as popular with juries as trying a 88-year-old with cataracts for possession of marijuana. And yeah, there would be debates over whether or not Sam was a "public figure" and if that changed the standards.

But, by God, it would get some attention, wouldn't it?

Friday, April 11, 2008

Amy Smith Leaving the D.A.'s Office?!?!?!

Longtime Victim Witness Coordinator Amy Smith is leaving the D.A.'s Office on April 25, 2008 to head to work for CrimeStoppers, much to the sadness of her co-workers at the D.A.'s Office.

Although a certain candidate in the race for D.A. is claiming that she will be establishing a Victim Witness Division if elected, the Division has, in fact, been around for some time now.  Amy and the incredibly kind-hearted people that work with her on a daily basis have been helping the victims of violent crime since before I ever came to work for the Office.

Victim Witness first becomes involved in a victim's life when they send out preliminary letters to victims of all crimes (violent or not), seeking to gather information for Victim Impact Statements that will become relevant in the punishment of any given defendant.

When the case involves a homicide, they make quick efforts to locate the next of kin of the victims and let them know of all services that victims in Texas are entitled to.

While cases are pending, they will respond at a moment's notice when a prosecutor needs someone to help them when they meet with victims.  No seasoned prosecutor would even think about sitting down with the child victim of a sexual assault without a representative of victim witness sitting there with them to assist.

When cases go to trial, Victim Witness will often serve as the host to the victim's families.  Helping them with all their travel arrangements, keeping them updated on what is happening in court, and holding them when they break down.  I can't put into words the job these ladies do on a daily basis, because it is, quite frankly, amazing.

The Office literally could not function without them.  Although it's not a complete list, I know that my job couldn't have been done on many occasions without the work of people like Amy, Alex Moscoso, Diana Maldonado, and Colleen Watkins.  (NOTE:  Speaking of Diana, get well soon and get back to work!)

The job, in and of itself, is amazing.

The people who staff it are even more so.

Amy Smith has served as the leader of that Division since I can remember, and she was the perfect person for it.  Amy has the perfect blend of compassion, caring, and toughness to handle it.  And trust me, it is not a job for sissies.  

Amy's loss from the Office will be immeasurable, and it will certainly be CrimeStopper's gain.

Good luck in all your future endeavors, Amy!

And on behalf of the countless victims of crime that you (and everyone in V.W.) have helped over the years, a simple "thank you" will never be enough.

You all are irreplaceable.

Thursday, April 10, 2008

The Blog

I had several people ask me about the future of the Blog yesterday, and whether or not I would continue running it.

I was kind of surprised that they asked.

I know I've gotten a lot of flak from lots of people for running a campaign blog for Kelly Siegler. One guy, yesterday, who I assume was this former-prosecutor guy James Rust (the one that Lykos had to go back 20 years and 200 miles away to get for a last minute endorsement) even told me that I needed to change the name of the blog.

I understand their criticisms, and this blog has been very political and very pro-Kelly over the past three months.

And if this was a blog on Gardening, I would understand their criticism. But this blog is on Life at the Harris County Criminal Justice Center, and there has been nothing more important within the CJC over the past four months than this election. Could I have been more neutral (okay, a lot more neutral)?

Sure I could have. But Kelly Siegler was the best choice by a long shot in this race, and Lykos was by far the worst. There was no avoiding the topic.

The Republican Race is over now, so hopefully those of you seeking a more neutral discussion of life around the Old CJC will get what you are looking for.

There are still lots of politics to talk about and countless and countless issues for Mark and I to disagree with each other over. :-)

But for now, if you prefer a little less politics with your coffee, you'll probably get your wish. At least for a while.

To those who thought I would take down the blog because the Republican Race is over, well, you just don't know how much JAGJO inspired me to keep writing!

The Day After

Yesterday was a very strange day around the Harris County Criminal Justice Center.

The ADAs who had worked on Kelly Siegler's campaign were still shell-shocked over the results of the election.

Many of the members of the defense bar offered words of encouragement to the ADAs and told them that everything would be alright. The words of kindness meant a lot to them.

Not all defense attorneys were so kind. At least two that I know of took a morbid pleasure in trying to rub the ADA's noses in the election results, gleefully telling them that they would all be fired. I'm not real sure what ends those attorneys were trying to accomplish other than to give an exhibition on low class.

ADAs discussed scenarios under which they would stay within the Office.

Oddly enough, although shock and sadness permeated through the Office, the anger was only directed one way.

The name being discussed and cursed throughout the entirety of the day?

Chuck Rosenthal

Wednesday, April 9, 2008

Clarence, Meet Snookems

In part of the Chronicle write up this morning, Alan Bernstein notes that the shots are already being fired across the bow between Lykos and Bradford. Bradford fired the first shots, but it wasn't anything outrageous.

What makes the article so damn funny is Lykos' response:

"I am very disappointed in Mr. Bradford," Lykos said. "I was hoping we could run an issue-oriented campaign."

I nearly spit my coffee out on the computer when I read that.

The Queen of Mean has been dodging the issues since January to take personal shots at Kelly Siegler and the ADAs, but now she suddenly wants to tackle them with Bradford.

And it's worth noting that Bradford hasn't called the ADAs a bunch of drunken racists, like Lykos gladly did. I wouldn't be too surprised to see a lot of the ADAs getting behind his candidacy now.

I know that I'm liking Bradford more and more . . .

Tuesday, April 8, 2008

An Open Letter to Kelly Siegler

Dear Kelly,

You have been my friend for a long time now.

You are one of those people in my life that I can truly and honestly say that I am proud to know.

After Chuck's debacle at the end of last year, you stepped up to the plate to fight for what all of the Assistant District Attorneys who needed something to believe in.

You aren't a politician, and you never were. You are too honest and true to yourself to be a politician. You offered yourself up for to so much scrutiny to protect what the Harris County District Attorney's Office has always stood for (no matter what the critics said). You let people like Pat Lykos and Terry Lowry and Jim Leitner attack your professional and personal life.

And you did it all for us.

You sacrificed yourself to make one last valiant stand to see that justice was done.

And we went out in a Blaze of Glory, didn't we?

I'm so proud of you, Kelly.

I'm proud of the fact that the most talented lawyer in the United States stayed in a government job to do what was right on behalf of so many people.

I'm proud of the advocacy you have done on the most downtrodden of all people.

I'm proud of the fact that when this Office, in an absolute state of despondency after Chuck destroyed it, turned to you.

And you answered them with your willingness to serve.

There are friends that you call "friends" and there are friends that you call "family".

You are family to me and my family. You, Sam, and the girls. You always will be.

I'm so proud of you that I can't see straight.

You are the greatest lawyer that I have ever known, and in time, Harris County will realize everything that they lost tonight.

Thank you for every last thing that you have done for the past 22 years, and especially for the last four months.

You remain, always, my hero.

So Now What?

Obviously tonight was a disappointment to me and a lot of people.

One of the mantras that you learn when you first become an Assistant District Attorney is that sometimes, the bad guy wins.

Tonight, the bad guy clearly won.

I offer this advice to the ADAs who supported Kelly Siegler because they knew she was the best candidate in this race.

Keep quiet. Don't be politically active. This too shall pass, and if you ride out the storm, you just may be okay.

To Pat Lykos, congratulations on defining everything ugly about politics. You weren't qualified, yet you won. Your behavior disgusts me no less than it did this morning. For a person interested in law and order, you have done more to set it back by your actions than anything I could possibly imagine.

I'm a life-long Republican, but you can guarantee that I will be voting for Clarence Bradford in November. He's kept quiet during this election and watched you damage your own party. And yet, through it all, he has yet to call the Assistant District Attorneys racist, drunks, or corrupt. Something that you have done gladly. I will take his behavior over your classless evil any day of the week.

To Jim Leitner, I hope you will take time to apologize to the ADAs tomorrow for the wound in their backs caused by your stab wound. Never in my life has someone plummeted more in my personal opinion of them.

To Kelly, for the job you've done, I will make a post on it in about five minutes.

But to paraphrase what I'm about to write, you remain, always, my hero.

Go Kelly! Go!

It's finally here, folks! Call all your friends and family and tell them to call their friends and family and co-workers.

Tell them to go vote!

And tell them to remember that there is only One Qualified Candidate in this Race!

Monday, April 7, 2008

Heroes - It's Worth Repeating

Growing up, I never wanted to be a lawyer.I actually wanted to be a cop (or an FBI agent to be more precise).

As I got older, I realized that getting shot at and risking getting killed on a daily basis was probably not the most stable way to raise a family. So that fell by the wayside, although most cops remain my heroes to this day.

Ultimately, I decided I wanted to be a prosecutor by the time I reached high school. I went to law school, not to become a lawyer, but a prosecutor. I had no interest in civil law, trusts and wills, torts, contracts, or any of that. I suffered through three years of dry material so that I could be a prosecutor.

I wanted to do what the police did, but I wanted to do it in a courtroom. I wanted to stop bad people from doing bad things. I wanted to help people who had been hurt by crime.

I was an intern when I first met Kelly Siegler.

Ironically, she and Vic Wisner were trying the one death penalty case that she didn't get the death penalty on.

The defendant's name was Brian Gonzales. He had shot and killed a young man named Omar Aycox while robbing an AMC movie theater. Mr. Aycox was a young African-American man who was home for the summer from college, and helping his family out by working through his summer vacation. If I recall correctly, Mr. Aycox had a mentally handicapped older brother that he had a special bond with. Mr. Aycox's brother thought that the sun and moon set by his baby brother.

Omar Aycox was shot four times in the back as he fled from Mr. Gonzales during a robbery.

I watched Kelly Siegler try that case through the guilt/innocence phase as if Omar Aycox was her own child. After a quick guilty, she proceeded into the punishment phase with the same passion. (NOTE: The only thing that saved Brian Gonzales from death row was a pregnant juror that went into early labor during punishment deliberations, thus resulting in a mistrial.)

But as a first year law student, watching Kelly Siegler try that case, she became my hero.

I watched Kelly Siegler prosecute him, and I wanted to be just like her. I wasn't a five-year-old kid who thought being a fireman would be cool. I was a 25-year-old law student who was in awe that a lawyer could be that passionate about her case.

That good at what she did.

I doubt Kelly remembers me back from those days, or knows what the effect of watching her in trial had on a young law student.

It made me want to be the best prosecutor in the world, and I knew that where I wanted to be was in Harris County. I wanted to walk amongst the Giants of the Criminal Justice World. I wanted to work for Johnny Holmes. I wanted to try cases against lawyers like Racehorse Haynes and Dick DeGuerin.

What can I say? I was a starry-eyed kid.

And ultimately, I did become a Harris County prosecutor, and other than my family, there's nothing I'm more proud of in my life.

I don't consider myself a "hero", but I don't see anything wrong in being proud of the job I've done. I'm proud of the people that I've done the job with. And I'm equally proud of the people I've done the job against. Whether you are a prosecutor or a defense attorney, if you have practiced in Harris County, you have truly walked amongst Giants.

Tomorrow, one of my heroes is on the ballot to become the District Attorney of Harris County, Texas. In a less controversial time and place, the decision would be one that there could be no question about.

A true leader. A prosecutor's prosecutor. A true hero would be the unarguable choice.

But instead, we have whispers and gossip. Stones overturned by a newspaper that is more willing to embrace a person convicted than a person victimized.

Innuendos by a practiced and polished politico who's "passion" for justice is no more than a cloak disguising political ambition. That same politico will most certainly begin to unceremoniously fire people who dare to cross her, regardless of their skill, talent, or passion for the job.

Has Kelly said or done things in her life that she wishes she could take back? Of course.

But, Dear Reader, so have you. So have I. So have we all.

Tomorrow Kelly Siegler will be on the ballot to become the leader of the job that she was born to do. For 22 years, Harris County has had the benefit of having a Legend of the Game walking amongst the Giants on the State of Texas' behalf.

The thought of this job that I have loved in the hands of anyone else is physically sickening.

Whatever happens tomorrow, Kelly Siegler will always be one of my heroes.

Last Thoughts On Lykos

And I do truly hope that these are the last thoughts that any voter ever has to have about her.

Bernstein's blog listed two articles today about Lykos.

The first listed her e-mails out to her supporters, finally finding a "victim" and a "former Assistant D.A." who supported her. The victim is named "Cheryl" (no last name given) which I won't make fun of, because if Cheryl truly exists and is truly a victim, then I'm not going to question her choosing not to reveal her last name. I will, however, point out (as the commenter did) that out of "20,000 criminal cases tried", Lykos now has only one single victim endorsing her.

Lykos also a former prosecutor endorsing her named James Rust, who apparently did a two year stint within the D.A.'s Office some time in the 80s.

That would be the equivalent of me doing a tour of the White House in 1973 and proclaiming that during the short time I spent there that I thought Nixon was a fantastic president.

It's a weak attempt at her trying to show that she has the backing of "victims" and "prosecutors". I can only hope that the voters recognize it for the pathetically weak attempt to make herself relevant that it is.

The second of Bernstein's posts has to deal with the fact that Commissioner Steve Radack has publicly endorsed Kelly Siegler as the only candidate with the experience to be the D.A.

Alan makes a couple of barbed references, questioning who sent them.

Ron, I'm trying to give Bernstein a fair shake, but seriously, what the hell was that all about?

Bernstein concludes his article by writing:

The statements from Radack and Lykos pretty much sum up the positive messages of both candidates.


What part of the Lykos campaign has been a "positive message"? Her entire reason for being has been to hide her lack of qualifications by trying to associate Kelly Siegler with Chuck Rosenthal. She has tried to form a bond with the voters by creating a pseudo "common enemy" with the District Attorney's Office.

It sends a bad message that the Office doesn't currently exist to serve the citizens of Harris County, Texas, which it always has -- under good leadership, and under bad.

Lykos' negative campaigning has illustrated so very clearly that she is a political hack that doesn't deserve or qualify for the job of District Attorney. She has exhibited nothing less than a malicious disregard for the job (that over 200 Assistant District Attorneys do every day) in the face of shameless self-promotion.

As a citizen of Harris County, I expect more out of my leadership than someone who tries to breed distrust of a system in the name of her own self-interest.

Pat Lykos should be ashamed of the way that she and Terry Lowry have run her campaign.

On a more positive note . . .

Long before Kelly Siegler announced her candidacy, and the Houston Chronicle decided that they didn't have much nice to say about her, they used to do articles on her ability every once in awhile.

I found this one in the Chronicle archives.

And yeah, I know that it has a quote from Chuck Rosenthal, but who cares? Take a look at it and the big picture of the prosecutor that it describes.

A prosecutor with the respect of former-Judge (now Congressman) Ted Poe:

"She talks to jurors in a language that they understand, and she addresses them with the fervor of a courthouse Joan of Arc with a Texas twang," said state District Judge Ted Poe.

Poe, who presides in the court where Siegler was the chief prosecutor until recently, said she is so genuine that jurors never think her down-to-earth approach is fake.

"It's not an act, not something learned at some training class," Poe said. "Juries are smarter than we sometimes give them credit for, and they can pick up a con job quicker than anybody. And she's not doing that."

Poe and others describe Siegler as "the 13th juror."

A prosecutor who has the weight of her cases on her shoulders, describing a death penalty case:

Davis now sits on death row, but Siegler didn't celebrate. She was sick to her stomach and cried the night he was sentenced to die.

"He was like every boy I grew up with," Siegler said.

A diligent and hard working prosecutor:

"She prepares her cases three times over," said prosecutor Craig Goodhart. "There is nothing that she won't know. You won't catch her off-guard."

And even had the respect of the Defense Bar:

"She's always prepared," [Katherine] Scardino said. "Not only is she so effective in the courtroom because she has a way of making jurors love her, but you don't go to trial with Kelly and not be prepared. She is damn good. I think she's the best trial attorney the D.A. has got."

So why has so much changed since when the article was written? I don't think anybody would argue that Kelly has changed.

But she did announce that she was running for office . . .

Sunday, April 6, 2008

Jim Leitner and the ADAs (Revisited)

Back when all of this election mess first started, I wrote an article, somewhat sentimentally praising Candidate Jim Leitner and the awkward position both he and the Assistant District Attorneys were in. Back then (and doesn't it seem like a lifetime ago?), things were so different.

Jim told the ADAs that he talked to that he had been placed in an awkward position, and that he was trying to help them out. He promised them that he would never support Lykos in the event were he to not make the runoff.

What he said in private, he seemed to back up publicly at the first candidates' forum over at the Spaghetti Warehouse. He told the Republican Women at the luncheon that the elected District Attorney needed to be a trial lawyer or else the Assistant District Attorneys would never respect or follow them. It was very clear that he advocated either himself or Kelly for the job.

As the campaign went on, conflicting word started coming from the trail. People attending some of the events were coming back with the information that Jim was telling people that he would endorse Lykos if he didn't make the run off.

"Not so!" cried Candidate Leitner when he would speak to the ADAs as he made the rounds of court dockets. Even the infamous Bubba Joe 6 Pack (later strongly suspected to be Clint Greenwood) denied the Lykos endorsement rumors at Mark Bennett's blog, stating:

"Leitner did not say that, either publicly or privately."

Assistant District Attorneys were actually getting into heated arguments with each other over Leitner's true intentions. Many, whom he had given his word to that he would never endorse her, said whoever was making up such B.S. stories about poor Jim was just wrong. Others said they just didn't know what Jim was really up to. Jim endorsed Lykos in 2000, they told people. They are friends. He's going to do it again.

ADAs told Jim that they would lose their jobs under Lykos. She was mean. She was power-hungry. He would assure them that he didn't have any intention of endorsing her.

Some of the ADAs, Jim told that he wouldn't have even entered the race if he had known that Kelly was going to run. He acted like he was being virtually "forced to run" and it wasn't what he wanted, since Kelly was now in the race, and could capably look after the Office.

On March 5th, the day after the election, Jim Leitner publicly announced he was "voting" for Lykos. Not endorsing her, he justified to nobody but himself, "endorsing is telling people who to vote for."

The prosecutors who had defended him felt like fools.

Tonight, Jim's complete turn-around has come full-circle, as his voice is on the robo-calls out endorsing Lykos. According to Alan Bernstein's blog, Jim even says he's going to be working polling locations for her.

The words to express my disappointment in Jim fail me, now. Part of it is because of how highly I formerly thought of Jim.

Don't get me wrong and say that I'm just having sour grapes because he endorsed the opponent of the person I want to win. It's not just that.

It's the lying he told the ADAs.
It's the fact that he knows how many of the ADAs that considered him to be their friend will lose their jobs - people with families.

I'm sure that Mark Bennett will blast me with another one of his posts about how anonymous bloggers are cowards again, but I don't care. Jim did "put himself out there" when he ran for D.A., and he's "putting himself out there" again by doing public endorsements of the absolutely least qualified candidate for the Office.

And I would say all of this to Jim's face, actually.

But right now, I couldn't even look at him

News from the Campaign Trail

Kelly Siegler and Pat Lykos have been busy in the final stretch of the campaign before Tuesday's run-off election.

It's hard to believe that we have only 48 1/2 hours to go!

Lykos, in a statement to Channel 11 said that "We are going to restore morale in that office."

Many ADAs responded that Lykos could most effectively restore morale in the Office by never becoming D.A.

Real World Experience

Over the past couple weeks, Mark Bennett has been extolling the virtues of "real world experience" before holding any sort of job within the criminal justice system. I would quite describe him as "blasting" prosecutors that don't have prior experience, but he certainly makes his opinion known that he believes they are operating at a disadvantage because they lack some fundamental understanding of life.

In his write-up over his recommendations for the 174th Judicial Race (before March 4th) he advocated John Jocher and Terrance Windham, largely because of their real world experience.

So my question for the day, is (while acknowledging that real-world experience is always valuable), does it mean that an ADA can't do their job effectively if they took the straight path from high school to college to law school to D.A.'s Office?

I pretty much took that route, and I think I turned out okay, so there's your answer.

Okay, well, maybe we can discuss it a little more than that.

What I observed in law school was that the students who came there after having spent time in the "real world" generally did a lot better in law school than those of us 22-year-olds. They understood business and taxes and other things that I didn't. And as a side note, they drank a lot less than us 22-year-olds, too!

However, Mark kind of implies in some of his writings that young ADAs are too sheltered (and thus can't do as good of a job), and I have to strongly disagree with that. In my opinion, nothing opens your eyes more to the fact that life is probably a lot more wild than you realized growing up over on Whisteria Lane than being a prosecutor. I mean, I understand where Mark is coming from, but I don't think that having previously held another job is any type of prerequisite for being a baby prosecutor.

Mark laments that many of the Misdemeanor Chiefs, when they return to Misdemeanorland from their first stint in felony don't have the experience that they should to actually be leading a court.

That point may have a little more merit to it, but I think it all depends on the Misdemeanor Chief and the "real world experience" that they got during their felony stint. I also think that the way a Misdemeanor Chief leads his or her court is usually directly correlated to what they learned from their first felony chief. If their felony chief wasn't reasonable and not open to hearing a defense attorney's version of events, then there was a high likelihood that the new Misdemeanor Chief would be the same way.

My felony chief was so laid-back that I occasionally had to check him for a pulse. He was also a great teacher who offered good advice and let me try some aggravated cases my first time up.

I would like to think that when I went back down as a misdemeanor chief that I was pretty laid-back, as well.

What I'm saying is that my time in felony let me experience what truly serious crimes were, and I knew that when dealing with many (not all) misdemeanors, there was no comparison. I didn't have the type of "real world experience" that Mark advocates ADAs having before they apply for the job of ADA, but I certainly picked up a load of it during my time at the Office.

So, I guess on that issue, it is a debatable point.

I've toyed around with the idea in my head if it would be worthwhile to change the "Position Structure" of the Office. Rather than have a first-time felony three become a chief, change the batting order somewhat. I'm not endorsing this plan, but I have thought about it.

Under the AHCL Plan, the order could go like this:

Start as a Misdemeanor Three (or Four now, I suppose).
Move up to Misdemeanor Two.
Move up to Felony Three (because let's face it, there's nothing that a Misdemeanor Chief tries that a Misdemeanor Two doesn't).
Move up to Felony Two
Then, become a Misdemeanor Chief and when the opening finally comes up, become a Felony Chief.

Just a thought, and the plan probably has more flaws in it than benefits. Not to mention that it would be very challenging to try to change that batting order now (think of trying to re-arrange the cars in a train while the train is in motion).

But as to Mark's argument about "real world experience" outside of the prosecutor's office being a bonus to being a criminal District Court Judge, I do actually disagree. The only exception to that is that I do think that a District Court Judge with both prosecution and defense experience would be good. However, I don't think that if that Judge had been an accountant, or perhaps even a, um, police officer that it would benefit them as a judge.

I guess the only major gripe I have with Mark is the use of the term "sheltered" when he describes prosecutors. I would strongly argue that prosecutors (and defense attorneys as well) are probably the least sheltered members of any community they reside in, just by the mere fact that they are the ones who truly see the underbelly of their society.

From Our Humor Department - Pt. II

The recent backlash against Terry Lowry's LinkLetter and it's trash talk has probably taken away more votes from Pat Lykos than it gained her.

Thinking about Lykos' reaction to that reminded me of this classic commercial from the 1990s.

Saturday, April 5, 2008

Court of Equity/Court of Law

Mark's got a new post up on his site entitled "Do You Love the Law?", that I actually found myself agreeing with more than I do with most of his articles. The whole article is a rant, but it's an enjoyable one:

The law is a street fight. It’s trench warfare. There’s nothing beautiful about it. It’s inelegant, messy and dangerous. Sometimes the right side loses. Often everyone loses.

He cites (in the comments) that what set him off was the latest issue of the Texas Bar Journal that (to use his words) "was filled with pompous asshattery".

But I think he brings up an interesting topic to those of us who practice criminal law.

Do we do what we do out of a love with the abstract "Rule of Law" or because we like to just fight for what we individually believe is the right thing?

It seems in foggy, hung-over haze from law school, I recall learning something about an old-timey justice systems where it was divided into two parts: the Courts of Equity and the Courts of Law. The Courts of Equity always seemed a lot more reasonable to me, um, probably because they were equitable. The Rules of Law were a little stuffy for my taste.

But of course, the problem with the Courts of Equity, (and, by Mark's analogy, our "street fight") is the Equity is often in the Eye of the Beholder. I have a friend of mine who likes to jokingly refer to himself as "The Ultimate Arbiter of Reasonableness". I suppose he would make a great judge in a court of equity, but let's say that, instead of him, we got somebody like Idi Amin.

I'm sure old Idi would think that he would be a tremendous guy in deciding equity. The rest of us, not so much.

My point is that the Law, in my mind, is a necessary evil, and there is certainly little about it to "love". It's there as a protection against the unreasonable mind running a twisted version of "equity".

And the sad thing about the law, is that there is just too damn much of it. And it can all get twisted in an intellectual argument so that God knows whether the true ends of Equity are ever really being served. Mark is right. The wrong side sometimes loses.

There is a bar in Downtown Houston that I went to a couple of times a few years ago. Attorneys go there and drink.

When I went, I noticed that at one section of the bar was a table where a couple of prosecutors sat with a couple of criminal defense attorneys. They were laughing and talking with each other about all kinds of topics that ranged from criminal cases, courthouse gossip, to their home lives. They all seemed very comfortable with each other.

At a table nearby, there were a group of civil attorneys, talking about the majesty of the law, and how through a certain provision in the Code of Civil Procedure, something was going to happen that dealt with a lot of money, or somethingorother. All they talked about was the law.

The members of the two tables never spoke with each other (other than a polite nod or two).

Please don't get me wrong, I'm not making fun of the Civil Attorneys, but I think that when it comes to those of us who practice criminal law, that Mark is also right. We (rightfully) consider ourselves to be street fighters. The civil attorneys are playing with money. The criminal attorneys are fighting for lives. Lives either lost, damaged or in danger of being forfeited.

We do look at the civil guys a little differently, because we have been down in the trenches. We have fought life and death matters. They have not.

It's okay, though. The civil attorneys look at us a little differently too, but that's mainly because we're poor.

The law is often times the biggest obstacle to achieving equity, I think.

I'd much rather live in a world where the kid caught with weed had to call his parents and let them scream at him, rather than get arrested. I'd rather deal with low level narcotics cases with mandatory treatment.

I would imagine the defense bar would like me for my ideas on equity in those kind of cases.

But on the flip side of that, my sense of equity would lead me to a world where people who hurt or sexually abuse children would be beaten to death with two-by-fours. Thieves who just steal for the sake of stealing (as opposed to trying to feed their family) would get a huge kick in the crotch and then released by loss prevention. People who murder? Well, that's just going to depend on the type of case it is. If you committed a mercy killing, you are probably going to be alright in my world of equity. If you killed a child under six years old? You would be wishing for something as peaceful as a lethal injection.

The bottom line is that the law does lead us to be unnecessarily harsh sometimes, and sometimes it is all that keeps us in check. I don't know if I would go as far to call it a "whore", as Mark does, but I will definitely call it a stubborn damn mule at times.

So, I guess we just all have to go back to work on Monday and keep our street-fighting ways going for another day -- striving for life, death, freedom and equity within the Courts of Law.

But none of us will find any sort of majesty in the "Rule of Law".

CJC Closure for Tuesday, July 9th

 I'm dusting off the cobwebs from the old blog to do a public service announcement that all courts will be closed tomorrow, Tuesday, Jul...