Saturday, January 31, 2009

"Counting Scalps" Revisited

Almost a year ago, as the Republican Primary was cranking into gear, Pat Lykos went before the Chronicle editorial board and said:

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

Her implication was that prosecutors in the Harris County District Attorney's Office were just out for convictions and nothing else, which was something I strongly disagree with (both now and then). During last year's campaign, it was something that Lykos roundly criticized the D.A.'s Office for.

Now that she's taken over the helm on the 6th floor of the CJC, it looks like Pat has had a change of heart, and has decided it actually does matter what the Office conviction rate is. Prosecutors who suffer through the dreaded "two word verdict" (that would be a "Not Guilty" for those of y'all not in the Biz) are now required to do a "Post-Mortem" on what they could have done better to win the case. And they need to do it in written form.

Now, getting past the fact that Lykos has never tried a case as a prosecutor in her entire life, I suppose it could stand to reason that she is just trying to compile a list of "Trial Don'ts" in written form on the off chance that she decides to break out and try a DWI no test/no accident case or something. However, at some level, I would hope that she would realize the offensiveness of experienced trial prosecutors having to write down what they think they did "wrong" and turn it over to somebody who has never stood up in front of a jury and announced "The State is ready".

The bottom line is that no jury trial is a done deal, and that once there are twelve people in the box, almost anything can happen. Trials are fought hard on both sides, and a single juror can often defy the minds of eleven others.

One thing that both members of the prosecution and the defense have in common is that when you get an adverse verdict, it feels like a kick in the stomach. You feel like you didn't get your job done, and Lord forbid it happen on violent case, or a high profile one. The last thing you want to do after a verdict like that is to sit down and write up how you somehow screwed up. Sometimes juries just do crazy things.

During my career as a prosecutor, I lost one murder trial to a jury. It was a tough case against an excellent defense attorney (Eric Davis) and the facts centered around whether the Defendant's actions were self-defense. I was a Felony Two at the time, and I knew that the Office was making a promotion of somebody to Felony Chief that same day (and I was in the running). I lost my only murder case that day, and was informed later that afternoon that I had, in fact, made chief. (NOTE: Rosenthal actually went up to the courtroom to give me the news of my promotion, assuming I would be in the punishment phase of trial, only to find it empty. That was a cool feeling.)

The point of that semi-embarrassing story is that even though I lost a murder case, it wasn't held against me in any way. Experienced trial lawyers know that in any given trial the most bizarre outcome can occur, and the idea of having to do a memo on losing one is offensive. I will agree that if a prosecutor is losing virtually every case they go to trial on that some counseling might be in order, but having to do a memo for just one NG? That's insanity.

But, I guess in the long run, a "not guilty" makes Lykos feel like she looks bad, and she demands an explanation in writing.

Look who is "counting scalps" after all.

20 comments:

Anonymous said...

I'm not convinced Lycos' policy of a memo on Not Guilty verdicts is based on saving her embarrassment. During the campaign, there was much talk about a lack of judgement on the part of some ADA's. Lycos vowed to turn things around. You can't make change without educating yourself about the problems and implementing some new policies. This may be a way for her to track what cases the office is losing and whether the NG verdict was just a runaway jury or a case that should not have been tried. And while her "No keeper cases" is a huge change it seems designed to give the case a fresh set of eyes to evaluate the case's merits. While not every ADA is going to like Lycos' new policies they seem to be designed to correct some issues that you refuse to admit ever existed.

Anonymous said...

Getting promoted to Chief under the Rosenthal administration was directly related to how many trials you had. If your cases were working out (as most cases do) you had to find a way to get trials. Nobody wants to try cases theyknow they will likely lose so with some ADA's that meant putting recs on "whale" cases that no reasonable defense attorney could take to ensure the case went to trial.

A Harris County Lawyer said...

Anon 10:13,
Although most cases do work out, there are plenty that don't and it has nothing to do with inflated recommendations for plea bargains. Child sex abuse cases go to trial quite often, even if a deferred is offered, because the Defendant doesn't want to have to register as a sex offender. Plenty of other probation offers are turned down to avoid felony convictions.
Trial numbers are a factor in who makes chief, and they should have been. Trial numbers equal experience. A person who has never tried a case doesn't have any business telling others how to do it.

Anonymous said...

When did this policy begin? Was there an email?

jigmeister said...

I guess you still have to do a trial report. Self appraisal is not necessarily a bad thing, but should be done regardless of the outcome, in one report. Do away with the contested matters report altogether.

I hear there are some problems in the budget. Is she hiring too many of her buddies without consulting commissioner's court?

Anonymous said...

I agree with you that a certain number of cases should be tried before one makes Chief, I disagree with you that the person with the most trials should get the promotion. This is how it usually happened under Rosenthal. More trials does not necessarily equal a better leader and it does put pressure on one seeking to make Chief to try more cases.

Further, you are naive if you think recs are never inflated on cases an ADA is chomping at the bit to try. Not all ADA's are excellent trial lawyers like you are and need the boost in the win category.

Windypundit said...

Out here in the business world, this sort of thing is pretty common. Failure analysis is an important part of improving quality, so we ask ourselves "Why did that part break?", "Why didn't that couple buy a car from us?", "Why are defects up in the Chicago plant?", "Why was that new product unsuccessful in the market?" It's not necessarily a bad idea.

However, one lesson learned by experts on quality control is that there's a conflict between getting honest reports of problems and punishing people for those problems. If people will be punished for their mistakes, then they'll try to hide them. The Lycos administration can either use these reports for genuine improvement and training, or it can use them to cast blame and punish people, but not both.

So the only way this self-criticism process can lead to genuine improvement is if Lycos promises not to use them against the ADAs and if they trust her promises. If that doesn't happen, I'm sure a bunch of smart lawyers can find ways to hide their mistakes and wesknesses

Anonymous said...

Windypundit,

Very good point. That is the atmosphere that I feel at the office now. It is one where people don't want cases that draw attention because they could be seen by Lykos. They also had better not lose. So, I feel there will be more hiding of exculpatory evidence than there was before. Word gets around the office quick and this new policy appears to be in response to a media case. The timing was suspect to say the least. So many see it as retribution. It just seems there is no leadership.

Mark Bennett said...

Murray,

Eric Davis is el chingón, no doubt.

But do you mean to say that, except for that one, every murder case you tried resulted in the jury giving the accused at least as much time as you offered pre-trial?

jigmeister said...

Anon 4:22

If you find yourself do that or even thinking of doing that, its time to leave. Your integrity is more important than the job.

Anonymous said...

Look at who the chief is and you will see why there is a leadership question.She is never around.This is nothing new.We feel as if we are on our own most of the time.A group of us are in dismay.

A Harris County Lawyer said...

Mark,
I'm not up on my Spanish, so I hope El Chingon is a compliment to Eric.
I would say that on every other murder case that I tried, the verdict usually came in within ten years of what the rec had been. Sometimes higher and sometimes lower.
In all fairness, the same can't be said for all of my OTHER types of cases. But on murders, yes.

Mark Bennett said...

Yes. Eric is a great lawyer and an upright man.

Anonymous said...

Mark,

Not sure how you meant to use "el chingon" but depending on the translation - he can mean the following:

Bad ass
Pile of shit
the fucker
the boss

I am assuming you meant that Eric is bad ass.

Mark Bennett said...

0903, Given the context:

"I lost one murder trial to a jury. It was a tough case against an excellent defense attorney (Eric Davis)"

"Eric Davis is ___________, no doubt."

I think your assumption is a fair one.

Nearest English equivalent for nuance and scatology?

The shit.

Anonymous said...

Eh, this is a common thing. I civil cases it can help educate your clients on how to view future risks and offer or accept settlements. I have tried almost 100 civil cases, and learned something from every one of them. More from the losses than the wins.

Jason said...

My memo;

Dear DA Lykoks;

The jury decided not to acquit. I did my job and did it best to my ability. When I can control how a jury will rule then I will control the weather.

Joel Rosenberg said...

I dunno. While jiǎntǎo has earned itself a bad name over the past few decades, if people can identify their own errors and both learn from them and teach from them, that should be a good thing.

Other than the fact that it's Lycos ordering it, is there any reason to think that this couldn't be a legitimate improvement tool?

Tenderfoot said...

You can no more control what a jury does than you can control the weather. Especially when morons are allowed to serve. For example, I had a DWI trial where a man arrested for DWI once, and a mother whose son was arrested for DWI were allowed to serve on a jury. Surprise! Surprise! Not guilty!

Mark Bennett said...

Tenderfoot,

Some lawyers would be able to find lessons (other than "all mothers of DWI arrestees are morons) even in a case like that.