Saturday, May 31, 2008

Conference in Austin

I got the chance to sit down and grab a few drinks with regular posters and fellow-bloggers, Michael and Grits for Breakfast while I was in Austin yesterday. Its always nice to sit down and have an intelligent discussion with folks over a beer or three. We had good talk over everthing from FLDS to CPS to politics.

It was a lot fun, guys. Let's do it again, soon.

Thursday, May 29, 2008

Okay, I Can't Resist Either

Okay, I have to admit that I'm inspired by Leviathan's comments, and an earlier off-blog e-mail from Michael stating (in response to this Chronicle article) that he wasn't aware that Pat Lykos had already taken office.

I've decided to assist the Chronicle and re-write the Rat Snake Article for them. Here we go:

In a predictable move today, local attorney Lloyd Kelley filed suit against the Harris County Sheriff's Office, the District Attorney's Office, the Harris County Sanitation Department, and an unnamed Rat Snake for various and sundry civil rights violations committed against his clients, the Ibarra brothers.

"This snake is very similar to one that Sean and Erik saw in their front yard last Wednesday, when they were busy praying on their lawn for the FLDS kids as well as the victims of the Myanmar earthquake," Kelley stated. "Clearly, the snake is a sophisticated surveillance tool utilized by the Sheriff's Department to spy on my clients, who, by the way, have done nothing but pray since being awarded their $4 million from the county."

Community activist Quannel X was quick to join Kelley's call for justice, criticizing the snake: "As a community, we must demand better of our serpents. To even consider working in conjunction with Sheriff Tommy Thomas makes them no better than a snake in the grass."

Mr. X subsequently demanded that the snake be replaced with a Federal Turtle.

Harris County Criminal Lawyers Association President Mark Bennett hailed the discovery of the Rat Snake as "a strong and positive step towards Anarchy".

Defense Attorney Danalynn Recer, who is representing the unnamed Rat Snake was quick to release a report to the media stating that her client was not, in fact, a snake. Rather, her client was a bunny rabbit who only wanted to snuggle with children until it was discovered by District Attorney personnel. Recer clarified that the Rat Snake only became a snake when it suffered a panic attack after being taken into custody. "It perceived being taken into custody as a threat to it's safety. This snake, uh, rabbit, is clearly legally insane."

When interviewed from a holding cell at the Harris County Jail, the Rat Snake stated that it had not intended to do anything appropriate. It issued the following statement:

"Although I have enjoyed excellent treatment on the banks of Buffalo Bayou, I have come to learn that a particular combination of drugs prescribed for me in the past has caused some impairment in my judgment. Specifically, they made me think that living in closet in the CJC would be preferable to chasing rats on the bayou."

The Rat Snake also stated that he regarded the DELETE key on his computer as prey, which caused him to strike at it repeatedly.

Additional attorneys for the Rat Snake have demanded that it be removed from custody and returned to the CJC closet where it was living.

Democratic candidate for District Attorney, C.O. Bradford stated that the snake was welcome in his administration, but if the snake drew a Batson challenge, the snake would be brought before the Disciplinary Committee.

Republican candidate for District Attorney, Pat Lykos stated that she would support the snake being returned to the closet of the CJC if the snake was willing to follow the Rule of Law.

Guess Who is Back

In his continuing effort to sue all of Law Enforcement into oblivion, Lloyd Kelley has filed yet another law suit today.

At the moment, only the television media seems to have articles up and running about it, and their coverage on the Web leaves a lot of questions. The Chronicle website, as we speak, doesn't have anything on the lawsuit yet, which leads me to believe that Jeff Cohen is still in euphoric ecstasy over the Quintero verdict to the degree that he isn't paying attention to what else is going on.

Apparently, Lloyd and Quannel X are calling for the Feds to take over the Sheriff's Office because they don't like the way HCSO is doing it's job.

Had I known that Lloyd and Crew had the power to dictate who could take over an elected office when they were displeased with job performance, I would have gladly joined his anti-Rosenthal bandwagon earlier, if they had only demanded Chuck be replaced with Angelina Jolie.

More on this as it develops.

Yet Another Reason Being a Criminal Lawyer in Texas is Awesome

Where else but Texas, in the midst of everything else, could you get an awesome story like this?

Honestly, there are so many lawyer jokes or Rosenthal jokes that can come out of this, that I truly don't know where to begin.

Tuesday, May 27, 2008

Poll Results

Well the polls closed over the weekend, scientifically answering the questions of who will win the D.A.'s race, who should win the D.A.'s race, and what would the candidacy of Ken Magidson do to the race?

In the poll for who will win the race, former-HPD Police Chief Clarence Bradford edged out Pat Lykos by 55% to 44%. I think with the enthusiasm generated behind Barack Obama's candidacy getting stronger as he gets closer to locking in the Democratic nomination for President, that this number is actually pretty damn likely.

In the poll for who should win the race, Pat Lykos beat Bradford 57% to 42%, which also makes senses given her more extensive experience in the legal system from within a courtroom.

But once the potential of Ken Magidson as a candidate was thrown into the mix, the numbers get thrown completely to the wind. Magidson took home 70% of the vote, with Lykos getting 20% and Bradford getting 9%.

Now, I'm not a political scientist, and I'm sure nobody would consider this poll to be even mildly scientific.

But maybe Magidson ought to look into investing into some "Ken in 2012" bumper stickers.

Friday, May 23, 2008

Which is Worse?

In the wake of the Quintero verdict, there has been much discussion over the appropriateness of the punishment. Clearly, a Life sentence was not punishment enough for the State or for the family and friends of Officer Rodney Johnson.

Of course, Life without the Possibility of Parole (LWOP) is a punishment, and a significant one at that. I certainly don't disagree with that principle and I don't think anyone else does either.

What I do disagree with is the theory set out by some that Life in Prison is a worse punishment than receiving the Death Penalty.

Although a person may be spending the rest of their natural life in prison, that doesn't mean that they won't learn to adapt. They will develop a new routine and social structure. They will go on. There are many plus sides to being alive as opposed to dead -- even in prison.

A long time ago, I had the rare experience to be back in the holdover with a young kid who had been convicted of capital murder. He was still a teenager and I wasn't all that much older than he was.

When we spoke, a jury was back in the jury room, deliberating over what his capital punishment would be.

"If I were in your shoes," I told him. "I don't know what I would want the jury to do."

He made a face and then nodded.

"That's what I kind of thought when this all started, you know," he said. "I was like, I don't know whether I would want to live or die."

He paused for a second and then said: "But trust me, when you've got those twelve people back there deciding what to do with you, you want to live."

I've never forgotten what he said to me that day, and ultimately, he did live. I bring it up now, just to point out that, although "LWOP" is certainly a serious punishment, I don't think anyone can really make the argument that it is more severe than the death penalty.

Wednesday, May 21, 2008

Of Babies and Bathwater

With the certainty of Barack Obama being the Democratic Nominee for President of the United States becoming clearer and clearer every day, the biggest underlying theme of political discussion around the CJC is "will there be a Democratic sweep in Harris County come November?".

I'm too young to have been around when the "Republican Sweep" of the 1980s occurred, but I've heard the stories of some (not all) good judges losing their benches in Reagan-era fervor.

To me, the idea of a sweep illustrates why I really and truly wish that the words "Republican" or "Democrat" didn't have to appear next to a candidate for a position involving criminal justice. Honestly, I think it is fundamentally inappropriate that it happens that way.

The statue of Lady Justice shows a lady with a blindfold, holding the Scales of Justice. If our judges are to be politically partisan, than how can we really claim that Justice is still truly blind to anything but the law? Leave it to your partisan legislators to write the law, but when it comes to enforcing criminal laws, a judge's position on taxes, abortion, and immigration don't have any relevance to their job description.

The reason I'm writing about this is that there are some damn good Republican Felony District Court Judges on the ballot this year that I don't think anyone who works in the CJC wants to see go. Now, I'm sure that my friend, Grits for Breakfast will speaketh from the Holy Temple in Mt. Austin that "Change is necessary. Change is good.", but I don't agree. Sometimes you do get people in elected positions that are so damn good at their jobs that you really don't need a change, and change would most definitely not be good. (As an aside, my analogy to counter Grits' argument is that if change is always so freaking good, why aren't we encouraging more skilled heart surgeons to go into podiatry?)

An example of why change is not always good could probably not be more clear in the case of Judge Caprice Cosper of the 339th District Court, who is on the ballot as the Republican candidate this November.

Judge Cosper is widely regarded as one of the best (if not the best) Felony District Court Judges in the CJC. She is one of the founding judges and heart and soul behind the STAR program, which focuses on rehabilitating defendants with drug addiction problems. She will argue with Defendants who opt to take the "easy" route of a quick 12.44(a) conviction for Harris County jail time, rather than try to get their lives together through a deferred adjudication with drug treatment. She is known for her compassion and willingness to take risks on people who need help.

She's also not afraid to be tough when toughness is called for, and has no problem with sentencing a violent offender to Life in prison if that is what the evidence demands.

She is a legal bookworm who remains constantly up-to-date on the latest court opinions, which she has memorized. She is friendly and pleasant to both members of the defense bar and the prosecution.

In short, she's a model judge.

Her opponent on the Democratic side is a City of Houston Municipal Court Judge. I've tried to find her name on the internet, but my Googling skills seem to be lacking this evening. To date, her most significant case may be a really big speeding case, or perhaps a huge "no seatbelt" case.

She specializes in traffic tickets, folks. The thought of her taking over the 339th bench due to a Democratic sweep is saddening.

Judge Cosper isn't the only Judge that I hope keeps his or her bench come November. As a matter of fact, I hope the vast, vast majority of them do. I know there will be some disagreement from the Defense Bar over how many of them should stay or go (and yes Mark, I'm rooting for Shawna in this one), but in my personal opinion, when you look at the Judges on the ballot (Judge Devon Anderson, Judge Roger Bridgewater, Judge Mike Wilkinson, Judge Brock Thomas, Judge Mark Ellis, and Judge Cosper), you have included 4 out of 4 of the Judges who spend their extra time in the STAR program, and a group of good men and women who are trying to make a positive change in the Justice System.

A sweep of them all simply because of partisan politics would be a miscarriage of justice, not to mention incredibly foolish of the voters.

R.I.P. DA Blog

It is with great sadness that I must inform you all that the much more humorous "DA Blog" which I had previously linked to, has abruptly ended it's brief and brilliant career.

The DA Blog, if you never got a chance to read it, did an excellent job of pointing out the humor in the dark world that prosecutors live in. It was much more edgy than my blog, and I enjoyed it immensely.

I can only hope that DA Texan will find another entertaining and enlightening mechanism to channel his considerable writing talents.

Tuesday, May 20, 2008

The Quintero Verdict

As you probably know by now, Juan Leonardo Quintero was sentenced to life in prison today for the murder of decorated Houston Police Officer Rodney Johnson.

I will not criticize the decision of the jury, because I wasn't there, and I don't know what they saw or what did or did not factor into their decision.

That being said, I think the decision is a travesty.

I believe that whenever a person thinks of what the ultimate police officer should be, that they need only to look to the example set by Officer Johnson. A veteran police officer who had stayed in the patrol division like Officer Johnson did is clearly an officer who likes being out and interacting with his community and doing everything in his power to improve it. The stories of his bravery, dedication, and kindness resonated throughout the trial and the media's coverage of it.

To put it mildly, the term "a credit to the Force" doesn't seem to have even scratched the surface in describing this fine man.

On the opposite end of the spectrum of good and evil, we had Quintero.

A convicted sex-offender and previously deported felon who, after shooting Officer Johnson multiple times in the back and head, called the dying hero a "nigger" in his final moments.

The jury had two questions to answers in deciding his fate.

The first was whether or not Quintero would be a continuing threat to society. The jury answered that he would.

The second was whether or not there was evidence that was sufficiently mitigating that would warrant a life sentence be imposed, rather than death. This question is commonly referred to as the "safety valve" question. If a juror finds any reason from the evidence that life is more appropriate than death, they only have to answer "yes", and Life it is. The Quintero jury did not reach a unanimous verdict on this, rather they reached a 10-2 verdict that the answer was yes. That was all that was required by law.

Where the jury found mitigation is beyond me. Quintero was raised in a strict household where none of the other children had turned out to be cop killers, and his "insanity" defense had been rejected during the guilt/innocence phase.

Playing arm-chair quarterback, I think the jury just didn't want to give a death sentence to someone.

Because God knows that if anyone deserved to die for his crime, it was Juan Quintero.

The District Attorney's Office was represented by three of the best prosecutors in the building: Lyn McClellan, John Jordan, and Denise Bradley. If they couldn't secure the death penalty against this monster, then nobody could.

What I fear is that today's verdict is more reflective of the changing attitude of our society, specifically in Harris County, Texas. When voices are more vocal in support of a child molester/cop killer than they are for one of the most honorable peace officers to ever hold a badge, what does that say about the shift in our values?

Have we really gotten to a place where victims of crime, and advocates of victims of crime can be shouted down by those who argue that it is the law (not to mention those who enforce it) which is barbaric, rather than the criminal? Do we really want to celebrate that somewhere Danalynn Recer is toasting her great success today, while the Johnson family is left to wonder what it was that made this crime somehow less deserving of the ultimate punishment?

Susan Johnson, Officer Johnson's sister, said that in prison, Quintero would most likely join one of the prison gang's and be a celebrated member by virtue of the fact that he killed a cop. I fear that her statement is nauseatingly accurate.

Tonight, my heart goes out to the family and the memory of Rodney Johnson. I have so much admiration and awe of the job that Peace Officers of Harris County do every day.

No single officer seems to have embodied those qualities which I look up to more than Officer Johnson.

Monday, May 19, 2008

Chief Bradford Responds to Rumors

We were glad to have former-HPD Chief and current-District Attorney candidate Clarence Bradford write in, responding to the Rumors in the Air post we did last week. (Quite frankly, we were shocked that anybody important read this blog -- except you, Grits, of course).

Below are the question-by-question responses that Chief Bradford gave to the rumors that have been circulating around the CJC for some time now.

Here we go:

1. He will dismantle the Special Crimes Division (and maybe the Public Integrity Division) of the Office.
No decision has been made regarding existing Divisions. After I am elected, I will complete a review of each Unit and Division.

2. Lloyd Kelley will be his first assistant.
Lloyd Kelley will not be working within the DA's Office under my administration.

3. Quannel X and his followers will have free access all over the District Attorney's Office.
As DA, I will be visible and accessible to all communities. However, no one will have free access to roam thru the DA's Office.

4. His 'Upper Administration' (i.e., Bureau and Division Chiefs) will be filled with people of no more than three years of legal experience, including some who never rose to the level of misdemeanor chief.
No decision has been made regarding existing personnel. After I am elected, I will complete a review of personnel and overall staffing.

5. Bradford will bring up for Disciplinary Rule any Prosecutor who draws a Batson challenge.
No potential juror should be struck based solely on their race. One good probable cause for inquiry would be a Batson challenge being granted by a judge.

6. Bradford is accepting lists from Defense Attorneys regarding which current prosecutors should be fired.
No such list has been solicited or received.

Thank you for taking the time to respond, Chief.

Saturday, May 17, 2008

The Probation Ineligible Defendant Out on Bond

In talking with former-HPD Chief, and current District Attorney Candidate Clarence Bradford to hear his platform, one of his main topics of concern is the bond schedule. Chief Bradford, quite correctly and admirably has stated that he no longer wishes to see an accused person's bond being used as punishment.

He's absolutely right about that. A bond amount should be set by taking into account the reasoning set out within Article 17.15, and if you will note, none of those reasons articulated is to "pre-punish" a person accused.

That being said, this post is meant to inform folks of a common phenomena in the plea bargain process in the District Courts. It isn't designed to say that something should be changed or that people shouldn't bond out.

It's just to illustrate, folks.

One of the more common things that happens in the CJC is for people to make bond, regardless of their criminal history, the seriousness of their charge, or their ability to be a good candidate on probation. Once a person has made bond, the odds of them signing up for a plea bargain agreement that results in incarceration is slim to none. Understandably, once an accused Defendant goes to the trouble of bonding out of jail, the last thing that they will wish to do is sign a piece of paper that sends them back into custody.

For many first offenders, this isn't a problem. Especially on the "victimless" crimes. A deal for probation or deferred adjudication is signed for and the person goes forward with the hopes of complying with their probationary conditions. (NOTE: Before anyone gets too riled up, the probation and deferred offers will come for the first-offenders who fail to make bond, as well.)

However, often times, a person out on bond isn't eligible for probation. The typical reason being that they have a prior conviction. It is true that even a non-probation eligible person can still receive a deferred adjudication, but it is rarely offered (without exceptional circumstances) to a person with prior felony convictions.

But even offers that would seem incredibly reasonable, if not generous, to a person sitting in custody, seem like a monstrous slap-in-the-face to those out on bond.

These are the cases that get set for trial, regardless of the merits of the case.

A person charged with an aggravated robbery that is caught on video, along with three signed confessions, will take his chances with a jury, rather than sign up for even a minimal plea agreement of five years.

The world's greatest defense attorney can advise a client that a plea offer is fair (or generous), and their client still won't take it.

Some of the most incredible trial stories have sprung out of this phenomenon, too. There have been plenty of Defendants who have refused to sign for two years TDCJ, and in return gotten a 60 year sentence from a jury.

All because the taste of freedom can be so intoxicating that it clouds rational thinking.

Friday, May 16, 2008

Ken Magidson and the Rosenthal Investigation?

Y'all aren't going to believe this, but I'm irritated with the Chronicle again.

In yesterday's edition, Rick Casey ventured back into CJC coverage (after spending a few months in hiding, hoping that Sam Siegler would forget about his earlier articles on him) with a column blasting District Attorney Kenneth Magidson for refusing to confirm or deny whether or not there was an on-going investigation into any misdeeds that Chuck Rosenthal committed as D.A.

I mean, how dare Kenneth Magidson focus on doing his job rather than appeasing Casey's journalistic curiosity?

"But . . . but . . ." sputters Casey, "the public has an interest in the decision and the reasons behind it."

Probably true. I'm sure the public has an interest in it.

Just like I'm sure "the public" had an interest in what General Eisenhower's invasion plans were for D-Day.

But sometimes there are things that the "public" is just going to have to wait on.

"I don't care what the public thinks," Magidson retorted. "I will do what is right."

(NOTE: I love how Casey used the word "retorted". It's almost like you can see the foam coming from Mr. Magidson's mouth as he dared to oppose the crusading journalist.)

All kidding aside, I say good for Kenneth Magidson. This guy is proving time and time again that the Governor made the right choice in who he selected to be the interim District Attorney. As many people like touting leaders who are a "PR Dream", I'd rather follow the leadership of somebody who does what's right, as opposed to what "looks best", any day of the week.

The bottom line is that when a case is in an "investigative phase", it often does need to be "kept on the QT", as Casey notes in the title to his article. An investigation is just that, an investigation. It doesn't mean any type of conclusive proof that there has been wrong-doing. The pre-hyping of an investigation leads to the pre-supposition of guilt, and a trial by public opinion, which nobody deserves.

Not even Chuck Rosenthal.

I think many of us will automatically jump to the conclusion that, by virtue of the fact that the "investigation" in question involves Rosenthal that, therefore, there is no need to keep any of it under wraps. Interesting theory, but that pretty much violates the theory of "innocent until proven guilty", now doesn't it?

If the District Attorney's Office was investigating any other public figure, the leaking of that investigation would be blasted as a political maneuver to undermine the Defendant's presumption of innocence, wouldn't it?

Did you expect Magidson to chunk that ideal out the window simply because he was dealing with Chuck?

If you did, you shouldn't have. Magidson's got more integrity than that. This guy is the real deal and he's proving it more and more by every day he's on the job.

It is regrettable that the Attorney General's Office did not follow the same idea that Magidson had, but they can play by their own rules.

By the way, Rick, maybe you ought to ask Pat Lykos and Clarence Bradford about what they think about the possibility of Magidson running an investigation into Chuck? I'd bet that they would tell you they were glad that he was shouldering the fallout of it so that they won't have to. I'm sure that they are quite happy that you are whining in your articles about Magidson, rather than them.

Don't get too stressed out if Magidson still doesn't bow to your request though, Rick. You can always just re-write your same column five times in a row. I mean, hell, if Jeff Cohen lets Lisa Falkenberg do it, he should let you do the same thing, too, right?

Thursday, May 15, 2008

New Poll

In case you are one of those people who are so engrossed in what excellent word of wisdom I have recently added to my posts, you may have noticed that I've now placed two new polls on the right side over there, asking 1) Who you think will actually win the District Attorney's Race; and 2) Who do you think would be the best.

Obviously, your answer may not necessarily be the same on both questions.

I'm putting the poll up there because I'm genuinely interested in what the majority of my readers think. I'm hoping you will only vote once, because I'd like to get a realistic view of it, but obviously, I can't stop people from voting as many times as they can.

Have fun.

Tuesday, May 13, 2008

Rumors in the Air

One of my commenters on my below post at 6:29 (although waaaaay off topic) brought up a list of "rumors" about the plans that Clarence Bradford had should he take over the District Attorney's Office. Normally, I wouldn't really care about what was said, but some of the rumors that he listed are ones that I've heard as well, and I write this in the hope that former-Chief Bradford will either confirm, deny, or explain them.

The anonymous poster lists the following rumors about what Bradford would change:

1. He will dismantle the Special Crimes Division (and maybe the Public Integrity Division) of the Office. Okay, first of all, I think the "maybe the Public Integrity" portion is a complete load of B.S. added by the commenter. No major law enforcement agency doesn't have a Public Integrity unit of some sort. I did hear about the possibility of dismantling Special Crimes, and I would like to hear from Bradford regarding the veracity of the statement.

The Special Crimes Division is the "crown-jewel" of the District Attorney's Office. It has the best prosecutors in the Office handling the toughest cases. Specialized lawyers who handle everything from white-collar crime, violent gang task forces, major narcotics suppliers, and Cold Cases. I would be surprised if Bradford decided to dismantle such an integral part of the Office, but I think it would be a grave mistake if he did.

2. Lloyd Kelley will be his first assistant. This concerned me early on, but I have since been informed that Bradford has told people that Lloyd Kelley will not be working within the District Attorney's Office under his administration.

3. Quannel X and his followers will have free access all over the District Attorney's Office "like they did at HPD"-Quite frankly, I think that this part is just alarmist panic-mongering. I believe that Quannel X and his followers should be able to get an audience with the elected D.A. (just like all citizens should), but being able to walk through the Office with unfettered access would be ridiculous.

In addition to those raised by the Anonymous poster, there are two additional things that I have heard, that I would like to hear Chief Bradford address:

4. His "Upper Administration" (i.e., Bureau and Division Chiefs) will be filled with people of no more than three years of legal experience, including some who never rose to the level of misdemeanor chief. Frankly, this is a concern to many people. I fully understand that a newly elected official can staff an office any way they damn well please, but one would hope that the people they bring in have the experience to do the job. These are folks that will ultimately be making major policy decisions regarding everything from the death penalty to the decision on how to handle crack pipe cases.

Please note, I'm not saying that the people in those positions need to be current prosecutors, but at least someone with experience. (As an aside, one of the more persistent rumors going around the CJC is that Jim Leitner would be Pat Lykos' 1st Assistant. Although I'm not a big fan of Jim's at the moment, I will concede that he does have the experience to know how to properly run that position).

5. Bradford will bring up for Disciplinary Rule any Prosecutor who draws a Batson challenge-first, a quick primer: a Batson challenge is if the defense attorney makes a challenge that a prosecutor struck someone based solely on their race. They are quite commonly made to protect a defense attorney's record in defending his client, but they are very rarely sustained. If every prosecutor who just gets a challenge is going to be brought before a disciplinary committee, one of two things will happen: 1) the Disciplinary Committee is going to be very busy; or 2) prosecutors will be gun-shy about exercising their judgment on making peremptory strikes. Neither is a good option.

I applaud Bradford's effort to crack down on racially motivated strikes by prosecutors, but I would suggest his standard should probably be if a Batson challenge is actually granted by a judge before bringing a prosecutor up on disciplinary violations.

And finally . . .

6. Bradford is accepting lists from Defense Attorneys regarding which current prosecutors should be fired. This is quite possibly the most ludicrous things I have heard. The idea of the defense bar dictating who should get to stay or leave is akin to Joe Gibbs calling up Tom Landry before a Cowboys/Redskins match and telling him who he should start or sit.

Again, I cannot stress enough that these phenomenally bad ideas are just rumors, but they are ones that are persistently floating around the CJC. I hope that Chief Bradford will address them in the near future.

(NOTE: Previously, I had attributed "many" of the above listed rumors to Jim Leitner as being the source. Jim contacted me and wanted to know the source who had told me that. I was unable to directly attribute it to any person who had directly heard it from Jim, so I have deleted that portion of the original post. For those of you who know how courthouse gossip works, you can probably understand how that happened. However, since I can't directly attribute it to someone, I feel that I owe Jim an apology.
I apologize for the trouble, Jim.)

Sunday, May 11, 2008

Cry Me a River

I gotta admit that I thought it was pretty damn funny to read the Chronicle's editorial this morning lamenting Ken Magidson's decision to create a media office.

I mean, it just absolutely cracks me up.

Let's see, Jeff Cohen and crew have been calling the prosecutors at the Office racists, corrupt, and stupid for quite some time now, and yet they now seem stunned (just, stunned, I tell you!) that perhaps the Office has decided to exercise some "caution" in talking to reporters.

Don't get me wrong, I will freely admit that as a prosecutor, I love(d) talking to the media about my cases. It was always great to send a link to a website on one of my cases to the folks back at home. Its a sad day that it can't be done anymore, but I think Mr. Magidson's decision is a reasonable and prudent one.

Will it make the jobs of the roving reporters and columnists who work the courthouse more difficult? Yep.

Do I feel sorry for them? Well, yes and no. I like Brian Rogers and Peggy O'Hare and I don't think that they ever abused what a prosecutor had to tell them.

For them, I feel sorry.

For Lisa Falkenberg, Rick Casey, and my boy, Alan Bernstein? Not so much.
(As an aside, I did find the complaint about the "establishment of a fresh layer of bureaucracy" to be pretty funny as well. This is the same Chronicle that allows Falkenberg to write four articles a week advocating the creation of the Public Defenders Office, right?)

And do I feel sorry for the Chronicle as a whole? Absolutely not.

Over the past five months their "institution" has done everything it can to make the jobs of the people at the District Attorney's Office as difficult as they could. I'm not feeling much sympathy if the D.A.'s Office is doing the same thing to them now.

Cohen and Crew are griping about the Office talking to them in a more limited fashion?

Hell, they should be glad that the Office is talking to them at all.

Friday, May 9, 2008

Kelly Siegler's Resignation

I'm sure by now that all of you have heard that Kelly Siegler resigned, effective immediately from the Harris County District Attorney's Office.

I know that death penalty opponents nationwide are rejoicing that the most effective voice for victim's advocacy has retired, but I think that there are many more who fully realize the tremendous loss that Harris County has suffered today. There was probably no person who tried harder to assure that justice was done, regardless of where and when a crime was committed, or who the Defendant was (or who he hired to represent him).

The cynics may laugh and say that it's not like she could completely stop crime in Houston. Fair enough, I suppose, but if there were more hours in the day, she just damn well might have.

Without Kelly Siegler:
-A man who fired a shotgun into the head of his eight-month pregnant wife may still be going to work every day without ever feeling a single repercussion of his actions.
-a young man who killed a woman in a wig shop so he could experience "the thrill" of taking another human's life might be still partying it up in college.
-a man who paid another man to kill his wife, rather than divorce her, might be relaxing at home.
-the man that took that money to kill may have done other unspeakable acts to finance himself.
-the murderer of a Precinct One Deputy Constable may be sitting around, having a beer, bragging to his friends about "that cop he killed".
-one of the murders of Jennifer Ertman and Elizabeth Pena may have been the grand leader of the gang he was joining that night.

And that doesn't even begin to scratch the surface of all she has done.

I'm proud to call Kelly Siegler a friend and a mentor to me. She was a prosecutor's prosecutor who could pick up a file and understand the pain that a victim or a victim's family had been through.

She never thought of doing anything other than being a prosecutor.

I mean, hell, look at it. Her first day as a private practitioner and she picks up a gig as a special prosecutor in Wharton County. It may not make good business sense, but it speaks volumes of who Kelly is, and who she always has been.

You can't be a prosecutor anywhere without picking up some enemies along the way, and I'm sure that the family members of murderers and criminals that she put in prison are having a cathartic release over on the Chronicle message boards. Members of the Defense Bar have recognized her talent as a formidable opponent, and only those with a bitterness that bred classlessness took joy in her departure.

But for those families whose lives she touched- the ones she drove out to talk to-the ones she met with for hours in her office-the ones that she would spend her time consoling during every break in a trial-they know that the job of being a prosecutor is one where you make a stand for what you believe in.

She was accused of being "win at all costs" - an easy phrase from ill-informed critics. I think she's more aptly described as a prosecutor who gave everything she had for a case she believed in.

Seriously, what did her critics expect?

"Hey Kelly, would you mind kind of half-assing it during the cross of the defendant? Thanks."

Kelly Siegler never did anything half-assed in her life, and the Harris County Criminal Justice System and the District Attorney's Office has never had another prosecutor with more dedication or talent.

In the history of the Office, there has probably never been a prosecutor more deserving of the name "Legend".

Tuesday, May 6, 2008


Brian Rogers is reporting that Juan Leonardo Quintero's defense attorney, Danalynn Recer was held in contempt this morning.

Recer's co-counsel on the case told the Chronicle that the reasoning was that she "forgot a doctor's report at her office this morning, delaying the court about 10 minutes while it was faxed over", although I highly doubt that Judge Joan Campbell would have found her in contempt for something so minor. This is just me arm-chair quarterbacking here, but my guess is that Recer's behavior throughout the case (and perhaps her e-mail to the media) probably may have had some influence in Judge Campbell's decision.

I say good for Judge Campbell.

The hearing regarding the contempt will be held after the Quintero trial is over, but Danalynn has been put on notice that the judge is going to make her play by the rules.

I know I'm a day late and a dollar short with this topic, because Mark discussed contempt at length in the amusing Adam Reposa articles on his blog, but I think there is a tad bit more to discuss on the topic. By the way, I think that Reposa's 90-day sentence was pretty outrageous. I've heard about some of the things he's done in court in Travis County, and I'm not so certain that perhaps a night in jail might have been warranted, but ninety freaking days? Come on. That's like your whole summer vacation when you're a kid.

I digress.

Holding an attorney in contempt is often times the only effective way to curb "bad behavior" by the defense bar. Don't get in a tizzy, defense bar, because I'm not singling you out. I'm just saying a Judge has more remedies to curb bad behavior of the prosecution. Those non-contempt sanctions can run from calling your boss (and getting you disciplined or even fired) to granting a mistrial based on prosecutorial misconduct (thus barring a retrial).

The reaction to threats of contempt or even findings of contempt vary amongst defense attorneys. Most are very deferential to the court and have no desire to draw the ire of a Judge they will be practicing in front of for years to come. A small minority could care less.

For those who could care less, the reason is mainly because attorneys rarely (if ever) actually go to jail after being held in contempt. They are entitled to be released on a PR bond, and the sanctions usually work out in the form of a donation to a worthy cause (and no, that doesn't mean the judge's campaign). Normally the contempt charge dies a quiet and places like Star of Hope and the Houston Area Women's Shelter get a much-needed donation. The attorney apologizes. The judge accepts it. Life goes on.

Reposa's situation is the only account I've ever heard of someone actually being ordered to spend some time in the pokey after committing a "bad court thingy".

I doubt that Recer is losing any sleep over being held in contempt, and I also doubt it is going to change the way she has behaves in for the remainder of the trial. She's a true-believer, anti-death penalty advocate, and I would imagine she would wear spending some time in jail like a badge of honor (simply because it happened during a death penalty trial).

On a side note, as I've mentioned earlier on, one of my favorite Judges, Judge George Godwin, is retiring at the end of the year. Judge Godwin has always run his court in the utmost professional manner, and you can bet your rear-end that means that punctuality is a must. When he schedules a hearing for 8:00 a.m., everybody had damn well better be present and accounted for.

The first time you are tardy to a hearing, Judge Godwin will tersely, yet politely explain to you that you get "one free one" for being late. The second one "will cost you", meaning contempt. The part where it gets amazing is that he doesn't mean the second one in a week, month, year, decade or even millennium.

He means the second one ever.

A friend of mine (who shall remain nameless) in the defense bar had the misfortune to show up tardy for hearing in the last year or so. Judge Godwin told him: "Mr. ____, you were late this morning. My records show that you were late for a hearing on April 24, 1987. Do you care to tell me why I shouldn't hold you in contempt?"

Judge Godwin keeps his record in a book, and I'm sure it reads like a Who's Who of the famous and infamous attorneys that have practiced law in Harris County over the past two decades. Personally, I think that is one of those awesome things that gives our legal community character.

I know that when Judge Godwin retires, he will take "the Book" with him, but man oh man, if he were to put it up for auction (like for a good cause, perhaps), I wouldn't be surprised to see that thing sell for thousands of dollars.

Sunday, May 4, 2008

Houston's Newspaper

As much as I like to blast the Houston Chronicle, the irony of the situation is that my grandfather had been a reporter for a newspaper in his younger years.

Although he only did it for a few years, it was an experience that he always spoke very fondly of. He went on to a more lucrative career, but I think he was always very wistful of his time reporting the news. I was raised by him telling me that a journalist was a noble profession and one that was there to seek the truth and keep people honest.

I suppose that the duty to seek the truth is something that newspapermen and prosecutors have in common, theoretically.

But it seems that on a daily basis that Jeff Cohen's Houston Chronicle has more and more turned it's back on it's duty to report the news.

Now, I'm not getting overly sensitive -- yet.

The editorial that ran in today's edition probably didn't sway a single person on their opinion on the death penalty. For that matter, I don't know that the Chronicle has yet to write any column or article on that topic that swayed an opinion. We are Houston, Texas, after all.

What ticks me off is that the results of studies are being misrepresented and they are over-emphasizing some portions while wilfully overlooking others. As someone who has been involved in a capital murder trial when the State sought death, the idea of putting a statistical number on its outcome is as absurd as it is obscene.

It mathematically accounts for things that can't be mathematically accounted for -- the people pulled at random to be in the multiple jury pools that the jurors will be pulled from. The jurors' responses on their questionnaires and their Q&A with the attorneys. The attorneys' "gut instinct" on who to strike and who to keep. The witnesses that will testify and the way the jury will react to those witnesses. The closing arguments and their ability to sway. The evidence presented in the punishment phase.

And most importantly, when twelve people sit in that back room, can they answer the question to decide the defendant's fate?

How in the hell do you put a number on that?

But that doesn't slow the Chronicle down. Editor Jeff Cohen knows that he will catch hell at home from his anti-death penalty zealot wife, Katherine Kase, if he doesn't maintain the offensive against the Death Penalty.

And there's nothing wrong with that. At least, there's nothing wrong with it until the news and the facts start getting twisted or ignored.

Last week, a conference was held in Galveston for Judges, Prosecutors, and Defense Attorneys who practice criminal law. It was a good conference with a lot of information coming from it. Noted defense attorney and Innocence Project founder Barry Scheck spoke. In addition, attorney Bob Wicoff spoke regarding his continued work with Chris Downey and Judge Mary Bacon on reviewing flawed serology from the HPD Crime Lab.

Wicoff pointed out to the room of prosecutors, judges, and defense attorneys that on several occasions he had complimented the prosecutors he had been working with and he had made those compliments to the Chronicle. Specifically, Wicoff told the room that he complimented the job done by Alicia Devoy O'Neill for her active assistance in the project. He told the room, almost apologetically, that he had informed the media of this several times, but nobody really seemed all that interested in printing the fact that the D.A.'s Office was being righteous.

Did you ever wonder why the Chronicle could possibly endorse a former-judge who had been retired from the bench for 14 years (and had a controversial career when she was there) over one of the most effective prosecutors in the Nation? Why did they bury all those Lykos stories?

It's simple: Kelly Siegler was an effective prosecutor who got the death penalty on Defendants. Stopping her early was a primary objective.

I'm well aware that this article will prompt folks, like Grits, to say that Old AHCL is back to pissing and moaning about the election again. That's not really my point (and the 12-step program is really helping me recover from it). And Ron will smirk at my conspiracy theory.

My point is that the Chronicle is a disingenuous, poorly-written, propaganda piece for the Death Penalty Opponents. And I think it continues to exist in that realm because Jeff Cohen is just pushing his wife's agenda.

I've said it before and I will say it again that I understand why people oppose the death penalty, and I agree with them on some of their points. But I don't think that the readers of the Chronicle deserve to have the news filtered to adjust to Cohen & Kase's viewpoints. It's bad management, and I would hope that, at some point, somebody (with a lot more influence than me) would take note of it.

Weren't newspapers founded on the idea of fostering more intellectual honesty? That certainly seemed to be why my grandfather respected the business so much.

I've never seen a newspaper that fought so hard to curb it.

Thursday, May 1, 2008

Ah, Statistics

You just gotta love the Chronicle.

What other major city has a newspaper that writes an article and then actually pays a columnist to write her own version of what the article means? It's cute really. It's kind of like Lisa Falkenberg has the journalistic equivalent of an Easy Bake oven where she writes a little column that corresponds to what the grown-up article is.

Today's topic is about a recent study created by Scott Phillips, a University of Denver sociology and criminology professor, which analyzed those cases where Harris County sought the death penalty, broken down by race. (NOTE: I haven't seen the entire report (although I would very much like to), so I'm relying on what was reported in the articles for my article.)

An interesting idea? Absolutely.

The results? Probably rather disappointing to Mrs. Kase (I mean, Jeff Cohen).

Turns out that between the years 1992 and 1999, Harris County sought the death penalty on 27% of white defendants charged with capital murder, 25% of Hispanics charged with capital murder, and 25% of African-Americans charged with capital murder. As a white person, I plan to protest around the CJC tomorrow based on the 2% increase in my likelihood of getting the death penalty if I'm ever charged with capital murder, because clearly, it is based solely on my race.

The beautiful thing about statistics is that you can "statistify" pretty much anything. As a matter of fact, on the drive home today, I realized that out of the restaurants that I frequent, only about 2% of them start with a vowel. Yep, I discriminate when I eat. I frequent Burger King, Taco Bell, Chuy's, McDonald's, and Whataburger. I realize that I am clearly not frequenting Escalante's and Imperial Palace enough.

The above listed statistic is about as useful to you in your day-to-day life as Dr. Phillips' study on when the Harris County District Attorney's Office sought death on capital cases.

Don't get me wrong, I'm not faulting the study for being created. If the statistics had come out with something dramatic, like say, the State sought death on 60% of African-Americans charged with capitals, versus 15% of white defendants, that would have been extremely alarming.

Frankly, I'm glad that he did the study. But the results aren't likely what he was hoping to find.

The statistics end up showing that a white defendant is slightly more likely to have the death penalty sought against him or her than an African-American or Hispanic person.

Not that such information would slow down an intrepid journalist such as Pippi Longstocking. Her article ran under the headline of "Remedying unequal punishment". To support her mathematically illogical position, she notes that Phillips had somehow miraculously quantified those cases which were "serious" or "heinous". Phillips concluded that under the definitions of "serious" or "heinous", African-Americans were disproportionately sought out for the death penalty.

In a related note, it appears that Phillips studied statistics under Republican D.A. candidate Pat Lykos.

Look kids, if the criminal justice system was so easy that we could put a meaningful statistic on it, 95% of the attorneys would be out of jobs. Each case is different and complex. There is a difference between the convenience store robbery where the defendant panics and shoots the clerk and leaves, versus the one where he shoots the clerk multiple times and seems to be enjoying every last minute of it. There are countless factors that juries assess.

And speaking of juries, Falkenberg cites cases where the juries returned life sentences (even though the State was seeking death) as some sort of proof that the community was trying to somehow rectify the State's erroneous decision to seek death. I wonder if the Journalistic Genius figured into the equation that jurors come from all walks of life and just a single juror's refusal to give the death penalty will ultimately result in a life sentence via mistrial?

The bottom-line is that this study didn't come out the way that the death penalty abolitionists had hoped.

I don't blame people for being against the death penalty. I really don't.

What I have an issue with is trying to mix and adjust statistics to try and prove a point that they don't actually support.

For future reference, a little intellectual honesty would go a lot further with me.

Episode Seven: The Voters Awaken - A One Act -Sci-Fi Play

SCENE:  The Death Star orbits over Downtown Houston. [INTERIOR] The Imperial Council Chambers. EMPRESS OGG sits at the head of a long table ...