Tuesday, December 30, 2008

The Value of a Prosecutor's Discretion

Of all the decisions that have been made thus far by the Lykos/Leitner Administration, probably the only one that I've truly understood thus far was the decision not to renew my contract to work for her. I mean, she and I are very much equal in our mutual dislike of each other, and I certainly wouldn't have had her working for me had the shoe been on the other foot. So, for those who feel that I've been "whining" on the blog about her decisions regarding the Office, please know that it isn't my departure from the Office that I'm griping about.

It's the departure of morale and, by extension, prosecutorial discretion that I mourn.

I'm sure that some of you are now thinking "why do you care if the prosecutor's have good morale or not? You're a defense attorney now."

It's a valid question, and it has two answers:

#1 - that Office is still staffed by excellent prosecutors, investigators, and secretaries that I worked with and I still care very much about them as my friends; and (more importantly)

#2 - the loss of prosecutorial discretion is going to affect every aspect of criminal cases and how they are handled from January 1, 2009 through December 31, 2012.

Say what you want to about Chuck Rosenthal (and God knows we all have), but one thing you can give him credit for was that he let the prosecutors be prosecutors. He didn't micro-manage or second guess the decisions of his staff on a day-to-day basis. He also wasn't scared to stand by unpopular decisions if he felt that they were the right thing to do.

Unfortunately, there were other things wrong with Chuck that led to his downfall, and the downfall of the Office, as a whole. But under his reign, prosecutors didn't have to sweat over the safety of their jobs if they dared to displease him. I should know. I was never one of his favorites.
But this article isn't about the past. It's about the future.

The future under Lykos is bleak. Her firings, demotions, and transfers of prosecutors who were less than enthusiastic about her campaign have sent out a clear message about what her Administration stands for.

That message is that when it comes to job security, one's performance or devotion to the job comes in a distant second to loyalty to Lykos, herself.

Her firings of the secretaries three days before Christmas also show that she's got no qualms about what she's doing to people or their families. In short, she's already fostered an atmosphere of Fear in the Office, and she hasn't even taken the reins yet.

My friend, Mark Bennett and Miami Defense Attorney and blogger Brian Tannebaum have suggested some civil disobedience to Lykos by not showing up at her mandatory Coronation on Thursday. I doubt that the prosecutor who knows what's good for him will fail to attend, however. There would, without a doubt, be retaliation on her part.

So, what does that have to do with a Prosecutor's Discretion?

A Prosecutor's Discretion gives them the ability to do what they feel is right:
-If a case can't be proven, they can rely on their own training and experience to dismiss it.
-If a Defendant is charged with a crime and the punishment range is disproportionate to what a fair resolution is, they can make a reduction.
-If they have the opportunity to show compassion or just make the right call, in general, they have the power to do so.
-They can also try cases the way they want to. (NOTE: Given the fact that even the Misdemeanor Baby Prosecutors who passed the Bar Exam in November will have more prosecutorial trial experience than Lykos does, that's probably a good thing.)

But under the atmosphere that Lykos has fostered, will prosecutors still be so willing to exercise their discretion and feel like their boss will have their backs even if she disagrees with them? Will public perception matter more to her than doing the right thing?

Or will they risk being unceremoniously canned the second they do something she would not approve of? If so, I can guarantee you that Prosecutorial Discretion just went out the window.

What will be the tangible effects the Judges, the Defense Bar, and everyone else involved will have to suffer through?

One word: Backlog.

When prosecutors won't be free to move within the guidelines for a just result, the only remedy that the Defense will have is to set cases for trial.

Lots and lots of cases set for trial.

Trials take time, and most courts can't try more than two of them (if that many) in a week. A backlog means that cases will take lengthy amounts of time to even get a trial setting, and we all know the old saying about Justice delayed being Justice denied . . .

Mark Bennett said that the Lykos Administration was already appealing to the Anarchist in him. I have a strange feeling that he ain't seen nothing yet.


Anonymous said...

you need to check some of your facts and ask around about how many people chuck tossed out. they were all good people but they had crossed chuck in some way.there were several that he sent on their way.at the time it was a real slam because they were excellent prosecutors and had been with the office many years.

A Harris County Lawyer said...

Anon 6:09 p.m.,
Please don't misunderstand me. I'm not trying to be an apologist for Chuck. Yes, he did fire several people when he took over as the elected D.A. However, my understanding was that those he fired were based on some long standing beefs he had with them that pre-existed his running for office.
I know for a fact that there were several prosecutors that actively supported other candidates during his race that he not only a) did not fire, demote, or transfer; but he also never hesitated to promote them when their time came.
I'm not defending his firings of the people, but they weren't based on who they supported during the campaigns. That's all I'm saying. He did support our freedom of choice when it came to who to vote for.

Rage Judicata said...

"Prosecutorial discretion" does not mean "let prosecutors be prosecutors". It means deciding whether or not to prosecute at all. Rosenthal's discretion only came ou twhen he wanted to let one of his county buddies off the hook, like Tommy Thomas or whatever county judge was getting cheap (or free) work done by county contractors. If you were black, or had been shot in the face a few years earlier, there was no discretion--it was full balls, no matter what exculpatory evidence existed. Discretion my ass.

common sense said...

Rage Judicata,
Knock the chip off your shoulder.

Anonymous said...

I'm still believe that firing Mr. Newman was a bad mistake. For the most part, he was the Office's most ardent supporter. I am reminded of the reason LBJ gave for not firing J. Edgar Hoover. It was stated that it was better to have him inside the tent pissing out as opposed to outside the tent pissing in. I think we are going to witness a pissfest of monumental proportions over the next 4 years. It seems a gentle reminder about who's the boss may have been a wiser move by Ms. Lykos.

A Harris County Lawyer said...

Anon 8:38 a.m.,
That may be my favorite comment on the blog yet.
I think it would have been a very interesting situation if Lykos had thrown down the gauntlet to me and made me choose between blog or job. I guess she wasn't politically savvy enough to have the foresight to do so.

Anonymous said...

I agree with Anon 8:38. Keep your friends close, and your enemies closer.

I think Pat will soon come to regret her decision to fire Murray. Unfortunately, now that he is double fired, not only is he untouchable, he is a loose cannon (no offense Murray) at large, free to blog about whatever he hears about and see with the new DA's office that he doesn't cotton to.

Despite the emailed toxic blog warning(s) of Ms. Goode, it is likely disgruntled ADA's will continue to feed Murray with information for his blog. Anonymously, of course. And that's got to bug the hell out of wee man Jim and his mother, er, I mean, boss.

But the burning question of the day is, will Pat's management team wear dresses to the coronation like their fearless leader or will they be allowed to wear pant suits? it is unfortunate that Mr. Blackwell passed this year, as I'm sure there will be plentiful fodder for his Worst Dressed List within the hierarchy at the DA's office.

Anonymous said...

I like Anon 8:49's comment. I think all the prosecutors should go in dresses. In fact, perhaps they should all wear troll wigs and outfits. After all, if working for her is going to be a drag, start the regime off in drag!

Too bad. I'm envisioning Diepraam in drag right now. For some reason it doesn't seem too much of a stretch.

Anonymous said...

I've never understood how small the minds of some people elevated to crucially important government jobs can be. What's this retaliation business? So Joe Lawyer did not support my candidacy? Why would he? He favors another candidate! This is a democracy and the Boards of Supervisors who oversee these offices need to step in and tell the dictatorially inclined prosecutor to get some personal self esteem.
If you want to check out backload, get a load of Riverside County, CA

Justice Seeker said...

BACKLOG???....Prosecutors need to think about this before filing charges. Save the taxpayer's money....

ONLY charge someone when you are 100% sure of proving your case. If not, DISMISSING the case won't make you less of a person than the person who filed it in the first place.

A Harris County Lawyer said...

Justice Seeker,
That's exactly what I'm talking about. A prosecutor who is free to use his or her discretion will have no qualms about dismissing a case, or not even filing it in the first place, if they are able to operate freely.
But if they are scared of their boss and for the safety of their jobs every time they make a decision, those dismissals and "non-filings" are going to be hard to come by.

twilight zoned said...

Is it true that Jimmy "lose at all costs" Leitner will be passing out troll dolls at the coronation? My understanding is that the troll has mandated a likeness of her be visable at all workstations and little Jimmy thought toy trolls would satisfy this ludicrous requirement.

Anonymous said...

I joined the prosecutor and a public defender in the judge's chambers in Riverside Superior Court in a matter involving a young man who had been arrested in possession of a single rock of cocaine in one pocket and about $900 in the other pocket. As the CPS investigator in the matter, I had informed the prosecutor that the money was issued to him that day by DPSS as cash aid for his two young daughters. I knew this because I handed him the check and took him to the bank to cash it. Within two hours he was arrested when the mother of his two daughters called police to report he had a rock of cocaine in his jacket pocket. She later told me she put it there because she was mad at him.

In chambers I provided the paperwork documenting the origin of the money. I also provided a statement given me by the mother of the children that she planted the evidence. The prosecutor, who would not see me prior to this hearing was livid. The matter was dismissed.

The defendant was known to the D.A.'s office as a pain in the behind and I concluded that the prosecutor, knowing that a fellow professional had evidence of innocence which she refused to review, was mandated to "get" this guy because he must be doing something illegal. My appearance in court at arraignment was an inconvenience. Same D.A. continues to run a department that believes Americans who come to the attention of law enforcement are obviously guilty of something.

I did remove the girls from the mother and both parents agreed to relinguish for adoption. I interviewed the adoptive parents prior to their selection and the girls truly lucked out.

Anonymous said...

Anon 5:27 AM
What if you weren't there to testify, Who knows what could have happened to this Man?


How do you feel when you falsely accuse someone of a crime they did not commit?

What if this happened to one of your family members?