Sunday, June 29, 2008
Casey has stepped to the defense of the Baytown juvenile who was charged with capital murder this week for murdering her newborn son. I don't know any more details than anyone else who has been reading the paper and/or watching the news, but my understanding is that the baby was found strangled, drowned, and had toilet paper crammed down his throat by his 14-year-old mother.
Gee, who wouldn't have sympathy for that?!
And, of course, Rick Casey is quick to assess who the real villain is in the scenario: Bill Hawkins, the Juvenile Division Chief of the District Attorney's Office.
Yes, let's quickly skip over the fact that apparently we, as a Society, are now quite comfortable with 14-year-olds having babies, and the fact that the 14-year-old should have had some parents to guide her in what to do regarding the child. Let's not blame the 14-year-old herself, either. Let's act as if a 14-year-old has the moral equivalency and intelligence level of a three-year-old, and excuse her right off the bat.
The real villains in this scenario are the prosecutors, yet again, because dammit, those kill-joys down at 1201 Franklin are just totally acting like they've got a stick up their butts when it comes to infanticide.
They dared to charge a 14-year-old with Capital Murder.
Well, guess what, Rick -- from everything I've read in the paper, it sure as hell seems to me that there's a lot of evidence to indicate that she did commit Capital Murder.
Casey's over-arching theme is more about the fact that the D.A.'s Office has a policy of charging the highest crime possible, and gosh-darnit, that's just freaking mean! What a stupid policy! The Office really should look long and hard at how they are filing charges. They really should be filing these charges as lesser offenses.
The guy who sexually assaults a six-year-old shouldn't be charged with Aggravated Sexual Assault of a Child, when a Class C Assault with "offensive touching" would work.
The guy who burns down his neighbor's house shouldn't be charged with Arson, when a simple misdemeanor of Criminal Mischief will do.
And the guy who goes and shoots a gas station attendant while he's stealing $20 shouldn't be charged with Capital Murder. Hell no, let's charge him with Class C Theft.
Casey surmises all kinds of facts that may or may not be in play, such as the 14-year-old just being confused or stressed out. I'm sure that's true, but it doesn't somehow make the charges of Capital Murder less appropriate.
Bill Hawkins cited a Chuck Rosenthal-era policy of always charging the highest crime possible. Although I wasn't familiar that this was an actual "policy", I fail to see the problem with charging a person appropriately for their actions, especially when it comes to a fatality crime. There are plenty of charges where filing the lesser offense may be appropriate (say for instance, a Class C paraphernalia case on a crack pipe rather than a felony Possession of a Controlled Substance).
But on a Capital Murder? Give me a break, Rick.
Casey talked to both Clarence Bradford and Pat Lykos about their views on the filing "policy", and both danced around the issue, saying that they would have to look at the facts. Although Lykos and I aren't exactly fans of each other, I can say that I found more assurance in her statements than in Bradford's. Her response was to look more at a totality of the circumstances, while Bradford's was more of a vow to stay away from a maximum punishment.
Casey's indignation continues on with the D.A.'s Office. Even after they dared to charge her with Capital Murder, they then dared to keep her detained! And Rick goes ahead and pontificates that the 14-year-old won't flee or commit any more crimes while awaiting trial. Man, it must be nice to be so omniscient.
God forbid that we treat this 14-year-old like a juvenile who has been charged with the most serious crime on the Texas books.
My favorite part of the article comes at the end, after arguing that we should be trying to help this 14-year-old child.
Here, Casey preaches: "That's what a civilized society does with 14-year-olds."
Are you freaking kidding me, Casey? What part of any of this is civilized? The part where a 14-year-old is having a baby? The part where that baby is choked to death on wet toilet paper? The part where a 14-year-old doesn't have any appreciation for human life or empathy for what she is doing to the most defenseless of all living creatures?
Are you really preaching that the only thing that isn't "civil" is the prosecution of this?
Rick, you really need to shake your moral compass a few times. I think that damn thing is broken.
I believe I will be siding with the baby that died in the toilet on this one.
Saturday, June 28, 2008
From: Graham, Bert
Sent: Friday, June 27, 2008 1:05 PM
To: All DA Employees
Subject: Legend of this Office has died.
Ted Busch, former First Assistant District Attorney of the Harris County District Attorney's Office died two days ago. He was my good friend and mentor and he will be missed by those of us who stayed in contact with him through the years. He was a career prosecutor having started here in the early 1960's and retiring as First Assistant D.A. in 1987. He was smart and extremely dedicated to helping provide a quality prosecutors office while seeing that justice was done.
Ted was definitely what I would call a "character" because of his eccentricities, but they were mostly the endearing type. For example, he never agreed to accept social security because he thought his retirement check from the county was enough, and he thought the program might last a little longer if it didn't have to pay him. Everyone that knew him has a different story to tell about his unique outlook and personality. Each one brings a smile.
He spent his retirement years in Fort Stockton, Texas and every six months he would meet several of us in Salado, Texas for 3 days of golf. He has a brother in Minnesota. I am not sure when, where or if there will be a service.
I am proud to have served with Ted Busch.
Uh, it didn't turn out so well for him. Who would have ever thought that an ADA in Brazos County would be facing more danger than one in Harris County?
For those of you who don't know David Hilburn, he was probably one of the most popular ADAs to ever walk the halls of the CJC. The reason being he was just so damn nice, and so damn funny. Dave seems to be adapting well in Brazos County -- he's married up and allegedly has a bambino on the way.
Dancing Dave assured me that he is recovering well from the bump on the Noggin, and if there was any type of brain damage, well, nobody really would have noticed.
Of course, at this point, it is pretty much all random speculation when it comes to either candidate.
Bradford reached out to those ADAs who would be willing to talk to him some time ago. This week, all the ADAs received a letter from Pat Lykos, saying that their jobs were safe for "those who believe in the rule of law, and understand our solemn duty to ensure justice and protect our citizens". I think we all realize that there won't be a wholesale purging of the Office. There just wouldn't be enough people to replace them.
I do imagine that several who have placed themselves "out there" a little more aggressively than others (like say, a certain Blogger, for instance) wouldn't expect to be keeping their post depending on the Administration, but, trust me, they knew that going into the game.
But what is to certainly be expected is for whoever wins the election to replace the "Upper Echelons" with their own people. This, of course, begs two questions:
1. What qualifies as the "Upper Echelons"?; and
2. Who do you replace them with?
The answer to Question #1 is most certainly the First Assistant and the Bureau Chiefs. It's about a 50-50 shot over whether or not it includes Division Chiefs as well.
The answer to Question #2 is more interesting. Does the victor of the election just pull up loyalists from within the Office, or do they recruit from outside?
It was the idea of replacing the "higher ups" with outsiders that made up most of my conversation with K.B. this morning (and it also explains the title of this post).
If a person is brought in from outside the Office, they could theoretically be the new First Assistant and still be on "probationary" status with the county. In other words, they could be the second in command, but still be limited to only two weeks of vacation a year for their first five years there. They also wouldn't even get put on the insurance for the first several months. The lure of that just wouldn't seem all that appealing to me if I was in private practice.
What do you think?
Wednesday, June 25, 2008
The article reports that District Attorney himself had interviewed Madisyn's eight-year-old sister, who was a fact witness on the case. According to the article, the sister had a "different story" from the one she originally told investigators, although it does not go into details. Whatever the details are, they must be substantial enough for the entire office to be forced to recuse itself from the case in it's entirety.
I find this to be completely bizarre.
I realize that Montgomery County's District Attorney's Office is substantially smaller than Harris County's, but it sounds like the proper procedures were followed by D.A. Mike McDougal in interviewing the child. The interview was not recorded, but in my experience, I never taped a meeting with a witness prior to trial.
But I did normally have a witness to the interview (especially when dealing with a child witness). In fact, it is this exact type of scenarios that make the Harris County District Attorney's Office's Victim Witness Division such a God-send. They are the ones who typically will come sit with the child during the interview, and make the child feel at ease. If the child does something unexpected, they can become a witness.
I've even had a routine meeting with a child witness turn into an outcry of additional sexual abuse before, and thankfully, there was a person from Victim Witness there to be the official witness.
KHOU is making a big deal out of "the interview" not being recorded, but I don't see why the second prosecutor as a witness doesn't remedy that. Of course, if the changes in the story amount to Brady they must be disclosed, and the other prosecutor "witness" can't be sitting second chair with McDougal when the case goes to trial.
But what's causing the whole freaking recusal? Am I missing something?
Let's play out the scenario:
The child testifies. The defense attorney is well-informed of any inconsistent statements that she made. She either acknowledges the changes on the stand, or she doesn't. If she doesn't acknowledge them, then the defense attorney calls the "witness prosecutor". What's the big deal?
McDougal states that he doesn't want to be put in the position of cross-examining someone who works in his own Office? What the hell is that about? Is he going to attack his moral turpitude or something? If the child recanted or something along those lines, then so be it.
Investigators, victim witness personnel, and even prosecutors in Harris County take the stand all the time for various and sundry reasons. There's nothing tricky about it. Hell, it can actually be kind of fun sometimes.
I'm sure that there is more to the story than KHOU is reporting at the moment, so I'm not making any judgment calls, other than saying I don't understand it.
What is a tragedy is that it will delay the trial, apparently, which is causing a hardship for the victim's family.
Sounds like a job for Kelly Siegler, if you ask me.
First of all, the Great Blogging Spirit of the Sky has somehow arbitrarily decided to stop alerting me whenever I get a new comment, which means that I have no idea when somebody has posted a comment on the blog. It was kind of funny, actually, because first it trickled off, and then it just stopped altogether. So, now I've learned to just check my comments box on the computer at least twice daily.
Then, the mother of all blogging catastrophes happened this week when my laptop crashed altogether. I kept getting messages about the "device" I had installed wasn't allowing the computer to start up. I found this to be very interesting since I had not installed any devices on the computer since . . . uh, ever.
Thankfully, a good friend with a lot more technological know-how fixed the lap top, so we are back in business again.
Now I just have to think of something to write about.
Sunday, June 22, 2008
It seems that Craig Watkins has been doing some side-lawyering when not busy being a "PR Dream" for prosecutors.
It would be really nice if prosecutors could earn some extra income by drawing legal fees for side jobs like, say, doing a divorce for a friend, or writing a will.
But the law says that you can't. You just have to stick to that ultra-high paying government salary (and the side perk of being universally loved). (NOTE: Please read this mini-paragraph with as much sarcasm as you can muster.)
But not only is District Attorney Watkins doing some side-lawyering, he's also assisting in a little bit of mortgage fraud. I'm willing to give D.A. Watkins the benefit of the doubt and say that I really doubt he knew he was aiding in mortgage fraud.
However, he should have known better with the whole side-lawyering thing.
Saturday, June 21, 2008
The Char Bar (aka Duke of Hollywood Tailors) was originally a tailor shop that first opened in 1936. Owner Mike Shapiro, and his son, Jeremy converted and added the "Char Bar" element to the tailor shop in 2001. You can still get your tailoring needs met there, but the primary reason most criminal lawyers gather there is to enjoy a beverage. While the drinks and conversation are flowing, Big Weldon Renfro will be happy to give your shoes the best shine in town.
On any given weekday afternoon, you will likely find an interesting mix of prosecutors and defense attorneys swapping war stories and talking with each other. There are good discussions and debates over the law, and maybe even the occasional mutual griping about some judges. Many trial attorneys who have been battling it out all week in a trial will come to "Char" after a verdict and have a beer together to re-hash the trial.
You'll find defense attorneys being candid with their issues with certain prosecutors, cases, and judges. Prosecutors will be equally candid with them, and everyone knows that what the conversation is all off the record.
It's a fantastic place to unwind. Unlike many bars that pop in and out of Downtown, this one actually has character (not to mention a cast of characters who regularly hang out there). If you haven't dropped by there, you should.
Monday, June 16, 2008
There was a fantastic turnout from the Defense Bar, the Prosecution, and several judges.
Mack was there, and he looked great. As usual, he was sharp as a tack. It was really great to get to see him.
For those of you who didn't get a chance to attend, it isn't too late to donate. The information you need is in the right-hand column, and PayPal is available on Mark Bennett's website.
It was a great evening tonight.
Friday, June 13, 2008
Back when I had delusions of grandeur of being an offensive lineman (at 5' 11" and 140 lbs.), I remember my dad telling me a story of a lineman in the pros. He told me that the lineman was so good that when he took the line before the snap, he would tell the defensive tackle across from him exactly what he was going to do -- and then he would do it.
There was no trickery. There were no misdirection plays. He would just knock his opponent on his ass.
For some reason or another, that story that my Dad told me (way back when) always comes to mind when I think about compliance with Brady.
As a prosecutor, I never had any reservations about laying out what I had. Hell, I normally would/will give a defense attorney a complete copy of my exhibit list and my witness order, in addition to keeping a completely open file.
If there is something that the Defense Bar can do to manipulate it to a not guilty, more power to them.
But if prosecutor's case is good and righteous, there is no reason to be hiding things.
Sure, there are some things that are not Brady.
For instance, take the following two examples:
1. Complainant on a Family Assault case tells you the assault never happened -- DEFINITELY BRADY.
2. Complainant on a Family Assault case tells you that although the assault did, in fact, happen, she doesn't want to testify -- NOT BRADY.
But, as a prosecutor I never felt/feel anything wrong with telling defense counsel that our witness wasn't cooperating with us. More often than not, the defense attorney probably knew this fact long before the prosecutor did, because the victim of the assault called him first (and probably often). By hiding the fact, a prosecutor just sacrifices his or her own credibility.
That's just my thought.
The bottom line is that if a prosecutor tells a defense attorney something that the defense can somehow spin to a degree that an acquittal results, then the acquittal probably needed to happen. If the State's case is weak enough that they have to hold their cards that closely to their vest, then they probably need to be looking more closely at their cards.
That's how I always operated/have operated, and I've been pretty satisfied that justice was done in the vast majority of my cases that I took to trial. (NOTE: On those instances where I didn't think justice occurred, it was an acquittal when I thought there should have been a conviction. It's a personal opinion thing.)
I also enjoyed the benefit of nobody ever calling me unethical or questioning how I did my job.
I always do/have give the defense everything I have on a case, because I didn't want anyone questioning my ethics. And guess what. I still won a case or two. :-)
As Father's Day approaches this weekend, it's kind of nice to think back on some of the lessons we have learned from our fathers.
Tuesday, June 10, 2008
Out of a field of four, highly unlikely events, you, the Voters have decided that the most likely event to occur next (thus being the next sign of the CJC Apocalypse) will be that none-other than Dr. Victor Jay Wisner will end up on the cover of Gentleman's Quarterly Magazine.
For those of you who don't know Vic, the man is a fashion trendsetter of the highest caliber.
Some of the hottest fashion tips of the Fall that we can get from Vic include:
1) several staples will always handily fix a torn inseam.
2) if a tie was fashionable during the Nixon Administration, there's no reason it won't work now.
3) worn-out elastic on socks can easily be replaced by office-grade rubber bands
4) a tear in the seam of your suit jacket will not easily be noticed if you keep your arms at your sides.
6) there's nothing wrong with delivering a closing argument with a busted zipper as long as you've stapled it properly.
Congratulations, Vic! You are a fashion model who has truly done it "your way".
Take for example Sylvia Escobedo Newman, who is quickly making a name for herself as a photographer in her spare time. If you get a second, check out her website at: http://www.sylvianewmanphotography.com/.
Lately, for some reason or another, they aren't going through to the Blackberry. Sometimes they do and sometimes they don't. When I go back and log onto the website, I will often have a whole back up of comments waiting on moderation. I found one this morning from Grits that he had sent yesterday, and I never got notification of it.
So, if you post a comment, and it isn't going through, please let me know at my e-mail address.
Saturday, June 7, 2008
During the love-affair that the media and others have had with Mr. Watkins, there has been quite a bit of coverage on him. From his discovery of the safe with Jack Ruby memorabilia to his strong support of a Conviction Integrity Unit to his suggestion of felony charges against prosecutors who withhold Brady material, Watkins has certainly become a Media Darling in a world where people typically don't like prosecutors.
So why does everybody love Craig Watkins so much, even though he's a prosecutor?
Well, uh, it could be argued that it doesn't seem like he's showing much interest in prosecuting -- at least not much interest in prosecuting anybody other than other prosecutors.
My big concern about Watkins has always been that, at some point, he needs to go back to prosecuting people. Although the community of victims of crimes (either violent or non-violent) may be much smaller than the media pundits who are loudly singing his praises on 60 Minutes, I've yet to see Watkins taking a strong-stance on crime. True, a heart-felt "thanks" for your strong victim's advocacy probably won't land you on national TV, but that's the job that prosecutors sign on to do.
In other words, being a Media Darling is all fine and good, but there's a hell of a lot more to the job of District Attorney than just having good PR skills. Although the District Attorney should be trusted, that doesn't necessarily mean that he has to be loved. Bad news, Mr. Watkins, but you're going to be ticking some people off during your tenure. You might as well get used to it.
This incident with accepting and (even worse) soliciting gifts from corporate sponsors and the members of the Defense Bar for gifts (and I mean nice gifts) to be handed out to the prosecutors breaks the law, and Watkins should have known that. Public servants can't accept gifts over $50 in value from anyone that they aren't personal friends with.
There has been several occasions during my career where victims of crime have given me a card with a gift certificate at the close of trial. I always keep the card and then return the gift certificate. That's just the way the law works. And really, that's the way the law should work.
In my opinion, Watkins just needs to get back to the job of being a prosecutor and stop trying so hard to be universally loved.
Friday, June 6, 2008
1) I left my lap top at work and didn't feel like dragging it back and forth; and
2) there hasn't been much to write about.
Trust me, I love to write, but I've got to have at least some sort of a mild topic before I go off on a rant. Things are just kind of in a lull at the moment, I guess.
If anybody has any topics that they would like to discuss, let me know.
Tuesday, June 3, 2008
The first sign that something new was wrong was that the line to reach the elevator bank was backed up all the way to the metal detectors in the foyer, which, in turn, created a back up well out the door of the CJC. There were also fire trucks in front of the building.
Um, okay, on second thought, the lines to the elevator backing up to the metal detectors and the presence of fire trucks in front of the building are actually pretty typical of any day at the CJC. Defendants do love to exercise their God-given right to pull the fire alarms in the hallway, unfortunately.
But today, as it turns out, the presence of the fire department was actually necessary!
In the early morning hours today, a small, accidental fire broke out in one of the offices surrounding the 183rd District Court on the 18th floor of the building. In one of the few moments of something in the CJC working like it was supposed to, the fire extinguisher sprinklers burst into action, and successfully put out the fire.
Now, here's where the real trouble started. Apparently, whoever was in charge of monitoring the alarms (and whatever else) for the CJC noted that the sprinkler system had deployed.
Did they notify the Fire Department? Nope.
They called a plumber. Seriously.
By the time the sprinklers were shut off, they had been running for a good hour and a half.
As Tropical Storm Allison proved to us all that you can flood out the CJC from the ground floor, the 183rd sprinkler system has now proven to us that the CJC can also be flooded from the top, as well. The sprinkler water ran through the building and stairwells all the way down to the 8th floor of the building.
As a consequence, the jail elevators which are used to bring the prisoners up to the courtroom were closed for service until they could be deemed safe for use again. The only in-custody defendants who were actually brought to court were those in a trial. To say the least, the court dockets were more or less brought to a stand-still.
It was kind of like a Snow Day from when we were in school.
To make matters worse, around 11:30 a.m., one of the Defendants indulged himself to a good old pull on the fire alarm again. Normally, these alarms are widely ignored by anyone who knows the CJC. However, in light of there being an actual fire this morning, the courts were all ordered to evacuate.
It was quite an incredible pain in the butt.
There's never a dull moment at the CJC.
It's simple, really. Just call up the court and tell the coordinators that you'd like your name to be considered the next time the Judge is putting together a Grand Jury. They'll take down your name and number, and I'll bet you get a call at the next time they pull together a panel.
If a diverse group applies and gets rejected, let me know.
Right now, the Grand Juries that are meeting are in the 180's series of District Court, I believe. So if you'd like to serve quickly, give calls to the Judges in the 200's (Collins, McSpadden, Carter, Hill, Keel, etc.).
Just a thought.
Sunday, June 1, 2008
It's an interesting trick to write about the Grand Jury process, because everyone involved is sworn to absolute secrecy about what occurs behind closed doors -- an oath that is taken extremely seriously.
Mr. Gutheinz is correct in all his assertions, but I think it is worth noting that a lot of the problems within the Grand Jury system and who serves on it are caused by factors that don't have anything to do with intentional discrimination. The biggest factor that influences the way a Grand Jury is run from top to bottom is Time.
Those citizens that serve as Grand Jurors have to be able to give a significant amount of their time for the three month-long term that they will serve. During each Grand Jury Term, there will be five grand juries running at a time. The individual grand juries will meet twice a week, which means that on any given day of the week, there will be two grand juries meeting. Twelve people are on each grand jury and they must have a bare minimum of 9 there to make a quorum.
My point is that to serve on a grand jury, a grand juror has to make a serious commitment to take a lot of time out of their schedule for three months, and they can't just blow off showing up whenever they feel like it. Obviously, the citizen who works an hourly job and lives paycheck-to-paycheck is going to suffer a pretty big financial hardship by being a participant -- they just don't have the time.
Quite frankly, the job of a Grand Juror is almost tailored to retirees.
The Judges of Harris County who ultimately select the grand jurors are elected officials, and they don't want to tick off the general public by conscripting a citizen into service when that citizen really can't afford to serve. This leads to them selecting people that they know have the ability and desire to spend three months of their lives working as a grand juror. It is not unusual to see a judge struggling to come up with a long enough list to actually make that commitment. To my knowledge, the only judge in the CJC who actually just brings over a Grand Jury panel that is pulled from a true jury pool is Judge Mary Lou Keel.
I think that if the Harris County Criminal Justice System is going to ultimately reflect the community, that all the judges are going to have to go to Judge Keel's system of grand juror selection. We will just have to be prepared to deal with the hardships it will cause on those who ultimately get to serve.
The other aspect of the grand jury system where Time comes into play is in the presentation of the cases.
Grand Juries will hear hundreds of cases a day, presented by numerous prosecutors who will patiently (and sometimes impatiently) wait their turn to get an audience with the Grand Jury. Some of the cases a Grand Jury will hear are complicated. Witnesses and suspects are called, and ultimately a case is "pre-tried" to the Grand Jury before it is ever tried to a petit jury.
Others can be presented in record time.
Theoretically, on a simple "Buy/Bust" case (a street buy where an undercover narcotics officer will flag down a guy on the corner, and pay him about $20 and get a crack rock delivered to him), a prosecutor has a choice on how the case is presented:
1) the prosecutor could theoretically bring in the undercover officer to detail his recollection of the events. He or she could also bring in the chemist to testify about their lab standards and their findings on the crack rock. That could take about an hour.
2) a prosecutor could just state the facts in an approximately one minute synopsis, and then move on to the next case.
You can do the math on that. The prosecutors who are assigned to the Grand Jury Division will usually present about sixty cases each time they go before the grand jury. They can either take about an hour. Or they can take about two and a half days.
Do cases get presented shortly at Grand Jury? You could probably make a fairly easy argument that they are. That's the origin of the theory that a Harris County Grand Jury would indict a ham sandwich.
But until we start adding more hours to the day, I don't know how to solve that particular problem.