Tuesday, March 31, 2009

Okay, Seriously?

In the midst of budget woes, and the Office being short-staffed, Pat Lykos apparently decided that this morning (in the middle of normal docket call hours) would be a great time to schedule a CLE.

For those of you outside the biz, a CLE is a Continuing Legal Education class where attorneys receive training in the legal field.

There is nothing unusual about the District Attorney's Office putting on an "in house" CLE course so that the prosecutors can keep in compliance with their required amount of hours received in training. In the past, the CLEs were usually taught by senior prosecutors on a variety of topics ranging from jury selection to cross-examination to closing arguments to prosecuting family violence cases to child abuse cases, etc. And they were always held in the afternoon so as to not interfere with the morning dockets which pretty much require all three prosecutors in the court being present.

Not so under the Lykos Administration.

Rather than utilize her senior prosecutors that actually have the training and experience to teach younger prosecutors just fine, Lykos brought in her own special lecturer -- a lady named Lisa Blue.

Ms. Blue is no doubt an impressive and knowledgeable speaker, but one has to wonder about the timing of her speech.

One also has to wonder whether or not the budget-strapped District Attorney's Office actually paid for Ms. Blue to come speak to the troops.

The courts were short-handed this morning as prosecutors were required to attend the class. It was poor planning and poor planning.

But what was the most disturbing element of the whole speech was it's underlying theme -- apparently Ms. Blue stood for the proposition that it was the job of the Assistant District Attorney's to make Elected-District Attorney Pat Lykos "Look Good".

A sentiment that Lykos can clearly get behind.

I just want to know if any of the prosecutors had the sense of humor to stand up and say "Good God, lady, we're prosecutors not miracle workers!"

Thanks to the Houston Press

Many kudos to John Lomax of the Houston Press for writing something that the Houston Chronicle doesn't have the courage to with this article.

Monday, March 30, 2009

Comes A Prosecutor

I'm proud of my service at the District Attorney's Office.

I make no apologies for that.

What has transpired in that Office over the past 90 days has been absolutely devastating to that Office in ways that not even the biggest Pat Lykos detractor (um, that would be me) could have imagined. Her actions since last Thursday have gone far beyond even the worst case scenarios that I could have imagined.

As a prosecutor, I was always used to being insulted by Defendants, Defense Attorneys, and often the Media. Sometimes making the right decision meant making unpopular decisions and that came to as part of the job.

What I never had to deal with as a prosecutor was my boss encouraging me to fail to do my job.

But under the Lykos Administration, that's exactly what prosecutors are having to do. After the absolutely disgusting and morally reprehensible actions by Lykos against prosecutors Mark Donnelly and Rifi Newaz on Thursday, there was a follow up by Lykos' Chief Peon, Jim Leitner. Leitner entered into a series of meeting with Special Crimes, Division Chiefs, and Chief Prosecutors, in which he reiterated the his moronic platform from his ill-fated campaign of more or less abandoning peremptory strikes.

For those of you who don't practice law, scenarios like the following could happen under the Lykos/Leitner in dealing with a juror during voir dire:

PROSECUTOR: So, Juror # 13, have you ever had any bad experiences with the police or the D.A.'s Office?
JUROR # 13: Absolutely. Two of my children were wrongfully arrested and convicted by a bunch of corrupt and lying police officers and prosecutors.
PROSECUTOR: I'm guessing then by your answer that you could not be fair to the State.
JUROR # 13: Heh heh heh. Nah, I can be fair. You bet. Heh heh heh.

Under the Lykos/Leitner Rules, that juror is going to be on the jury. At least, they will be if they are a member of a protected class.

That's absolutely ridiculous.

Call me old fashioned, by I kind of like voting for a District Attorney who is actually going to be a prosecutor--not a defense attorney who is going to spend more time pandering to voters than actually doing the job that they took an OATH to do. That is the message that Pat and Jim sent out to their people with what they did to Rifi and Mark.

And prior to today, I thought that this new found attitude had all of the prosecutors beaten down.

So, it was with a great deal of relief and admiration when I saw my friend, Division Chief Bill Hawkins walk into the court where I was working today. A jury trial in the near future was being discussed and a prosecutor under Bill's supervision asked if the new Leitner rules would be those that governed jury selection.

Bill's response was something to the effect of: "In this Division, we're going to continue to follow the Law."

I know very well that Bill has had his controversial moments in his career as a prosecutor, and Lord knows I've disagreed with him on plenty of occasions.

But Bill Hawkins is a Man with a Code of Honor that he follows, no matter what his detractors may say about him. To paraphrase Davy Crockett (at least the one played by Fess Parker), he decides what is right and then he "goes ahead".

Incidentally, Hawkins was also one of the people that stood up to Leitner in defense of Mark and Rifi during one of Jim's special meetings.

Bill Hawkins is a leader in that Office. More importantly, he's a prosecutor.

Which are two things that most decidedly do not describe Lykos and Leitner.

I'm hoping that more and more prosecutors will continue to follow Hawkins' lead -- Know what is right, and then go ahead. Stop worrying about getting fired or punished by Lykos if you follow the law. Even that horribly misguided Politico and her Lap Dog must know that if she were to retaliate against her prosecutors for violating the law by either firing, demoting, or transferring them that they could turn around with a lovely whistle-blower's lawsuit.

It's time for prosecutors to be able to get back to doing their job without fear of retaliation from their boss, who is a politician, and actually much more of a defense attorney than a prosecutor.

If you need an example of how a prosecutor is supposed to act, just go look to Bill Hawkins right now.

Thursday, March 26, 2009

Two Good Men

Sorry in advance, folks, but this one is going to be a long one . . .

During my career at the HCDA's Office, I had the pleasure to work with two (amongst many) outstanding prosecutors -- Mark Donnelly and Rifi Newaz.

Mark was was Three Man when I was a relatively new Felony Two in the 185th District Court and Rifi was my Three when I was a Two in the 209th, right before I was promoted to Felony Chief.

Mark is the type of prosecutor that nobody has any complaints against. A brilliant and talented attorney who could write the book on Diplomacy, Mark exhibited a maturity beyond his years from the second he walked in the door of the D.A.'s Office. He was excellent in trial. His knowledge of the law and his common sense when assessing cases was unparalleled. He was the type of prosecutor that nobody could have a complaint against. He patiently listened to any issues that a defense attorney may bring to his attention and he looked in to every aspect of every case.

Mark is the kind of guy that you vote for when he runs for President, actually.

Rifi was much more junior to Mark when we worked together, but I have to say he was probably one of the most diligent, hard-working prosecutors I ever had the honor to serve with. The man had more heart and character in his little finger than the entire Gang Who Couldn't Shoot Straight has in the entirety of their bodies. A devoted public servant in every sense of the word, Rifi is the kind of guy that has the moral compass that we could all stand to learn from.

If it isn't obvious by now, I consider them both to be very dear friends that I think the world of.

Today, they became the latest casualties of a blow-hard politician who has unfortunately assumed the mantle of the elected District Attorney of Harris County.

Prior to today's events, Rifi Newaz was the Two Man in the 182nd District Court and Mark Donnelly was his chief. They were in trial against two very talented defense attorneys, Jaquelyn Carpenter and Eric Davis earlier this week, and were selecting a jury.

For those of you who read this and are not trial attorneys, explaining the process of selecting a jury (aka voir dire) is a bit difficult. The short synopsis is that 65 members of the Harris County community are brought over and listen to the Judge, the prosecutors, and the defense talk and ask questions, all in the effort of finding twelve neutral jurors who can listen to a case without bias and ultimately determine the results of the case.

Under the rules of voir dire, each side has ten peremptory strikes that they can make when striking jurors from the panel. If a juror is a high school drop out, a peremptory strike can be used against him. If he or she seems to be more responsive to opposing counsel, he can be struck. If he hasn't held a job in the past year, he can be struck. If he has a freaking mullet, he can be struck. If the attorney making the strikes just gets a bad vibe off of the juror, a peremptory strike allows that attorney to remove him from the panel with no questions asked.

With one humongous exception . . .

Peremptory challenges cannot be exercised based on race, gender or any other factors that are protected under the law.

If opposing counsel feels that a peremptory challenge was, in fact, exercised based on the above-mentioned reasons, they make what is called a Batson challenge, which is basically an accusation that the prosecutor made a peremptory strike of an otherwise qualified juror based solely on their race, gender, etc.

These types of "challenges" are not unusual, in any way. The typical scenario is that the Defense Attorney will observe that a juror has been stricken from the panel by the Prosecution, and the Prosecutor will then have to explain their "race neutral" reason for striking the juror.

The Judge becomes the ultimate decider over whether or not the Prosecutor's explanation is sufficient to prove that they did not, in fact, make that strike based for racial or gender issues. The problem for prosecutors, however, becomes that the "bad vibe", "more responsive to the defense", or any other reasons that may be based on gut instinct become difficult to explain. If the juror in question was not a protected class of citizens, it wouldn't be an issue.

(NOTE: When I was a prosecutor, I was Batson challenged once by a defense attorney who claimed that I had struck an African-American potential juror based on race. In reality, I had not struck that potential juror, the Defense Attorney had. The reason? The potential juror was the defense attorney's probation officer.)

Sorry for the tangent there.

Back to the story, earlier this week, Rifi was trying a case in the 182nd with Mark sitting with him, as his supervisor. Several African-American jurors were struck by the State, and Rifi and Mark subsequently were Batsoned. Jacquelyn and Eric made their objection that the State had used their strikes because of race. Jacquelyn and Eric would have been remiss in their duties as Defense Attorneys if they had failed to do so. Judge Barr then took up the issue, and Rifi and Mark had to explain their reasonings.

Whenever the State has to give their reasons, the Judge has to make the call as to whether or not they were sufficient. In this particular case, Judge Barr made the decision that the reasons were not sufficient. Upon making that finding, the Judge granted the Batson motion, and ultimately released the jury that had been selected. A new jury would have to be selected the following day.

It is unfortunate that this happened, absolutely.

But what happened in the aftermath of the Judge's ruling is beyond unfortunate.

Pat Lykos realized that it would be to her utmost political advantage to throw two very good prosecutors under the proverbial "bus". In an article in the Houston Chronicle, Patsy described Mark and Rifi as "incompetent" and "negligent".

For those of us who know Rifi and Mark, that statement is beyond outrageous.

For Pat Lykos to be calling these two good men "incompetent" and "negligent" is obscene. Perhaps we should give Patsy a little bit of understanding (since she was never a trial lawyer herself and has no idea what an actual trial lawyer has to factor in when picking a jury), but actually, I don't think so. Lykos ran to be a leader to the prosecutors under her, and she is failing them in pretty much every possible way. She has proven herself to be nothing more than a politician by scapegoating her people rather than hear their versions of events. A true trial lawyer would have at least listened.

But not our gal, Patsy.

She quickly latched onto the fact that the public would celebrate her disciplining two prosecutors for what they were perceived to have done. She disciplined and transferred both prosecutors and will doubtlessly be cheered for it.

She shouldn't be.

Anyone (from either the defense or the prosecution) knows that Rifi and Mark are good, decent, honest, and hardworking prosecutors. There may be some prosecutors to find fault with, but these two guys don't fit that bill. Lykos made bad examples out of two men that, in reality, serve as good examples of what prosecutors should be every day of the week.

And you know what? It was chicken shit.

As noted by Mark Bennett's comments in the article, some members of the Defense Bar will (wrongly) applaud her decision. I doubt that they will be clapping their hands as loudly when the Office loses what these two guys brought to the table.

I know that I am sometimes accused of being a "prosecutor sympathizer" and some say I haven't been able to "mentally adjust" to being a defense attorney.

That's silliness.

I would rather deal with a good prosecutor any day of the week than a bad one. A good prosecutor knows the difference from a strong case and one that is B.S. A good prosecutor knows when the probable cause for a stop is no good. A good prosecutor knows when to dismiss a case if it should be dismissed, and they aren't afraid to do it.

Rifi and Mark fit that description down to the last detail. It's a shame that Lykos is too stupid and too much of a political grandstander to realize that. She just cut off her nose to spite her face.

Mark and Rifi, anyone who has ever dealt with you all from either the State side or the Defense side knows that you all are both examples of what every prosecutor should be.

Pat Lykos is a clear example of what a prosecutor should not be. Making judgments based on perception rather than fact is ludicrous in ways that I can't even scratch the surface on describing. When not openly trying to castrate her prosecutors in public, she's been soliciting defense attorneys to let her know who they have complaints against. She's not a leader in that office. She is the Destructor.

I have no idea what Rifi or Mark's plans for the future are, but I hope that they leave the Office.

The Lykos Administration doesn't deserve them.

And on a side note, I'd like to ask the question, where in the hell were Roger Bridgwater and Jim Leitner during Lykos' punishing of Mark and Rifi? As former defense attorneys, they stood by people accused of the most reprehensible actions and defended them to the best of their abilities. Did they do the same in acting as buffers for Mark and Rifi from Lykos' lunatic actions?

Apparently not.

Guys, you need to go search in your closets for your backbones. You both know that Rifi and Mark didn't deserve this. Did you stand up for what you believed in? Or did you just jump in on Lykos' mob mentality that stands against every principle the Criminal Justice System was created for?

Today is a dark day in the Office's history.

Wednesday, March 25, 2009

Terry Wilson

I learned last night from Casey O'Brien that former Division Chief, Terry Wilson passed away after a long battle with cancer.

Terry had the unusual distinction of being a member of the Harris County District Attorney's Office on two separate occasions. He initially retired as a Division Chief in the late 1990s, and then returned as a consultant under the Rosenthal Administration, working on office policy issues and international extradition matters. It was during his stint the second time that I got to know him a little bit.

Former Assistant District Attorney Ted Wilson (no relation to Terry) described Terry to me in an e-mail this morning:

I first met Terry in law school. He was a year ahead of me but we did share a few classes. We became friends and I would pick his brain every chance I had. He was an outstanding student and it was fun to listen to Terry when some professor tried to outsmart him in class. They never succeeded.

Terry came to the D.A.'s office a year before me and worked his way through the Trial Bureau. He was picked by Henry Oncken to go to Special Crimes when Terry was a #2 in District Court. He made Chief a few months later and was sent back to District Court as chief prosecutor. He did that for a couple of years and then started the Civil Rights Division. Back then he made every police shooting himself. And, that included when officers got shot as well as when they shot someone. Terry loved that job because he loved "investigating" as well as going to court. And, he was a hell of an investigator.

Terry went from that job to heading up the Major Offender Division. He, and his assistant, Chuck Rosenthal, handled investigations involving violent crimes. I was in Special Crimes by that time so Terry and I handled several investigations together. We also tried a solicitation of capital murder case together. He was brilliant and a lot of fun to work with.

Terry also taught the Penal Code to Houston Police cadets for years. He knew the code backwards and forwards. You could throw any set of facts at him and he could tell you what, if any, violation fit those facts.

Terry acted like a lawyer who wished he was a Texas Ranger. He was gruff and didn't act like a "button down lawyer". I loved watching Terry come to court to go up against a defense attorney who didn't know Terry nor had heard of him. They would look at Terry and assume he wasn't all that great of a lawyer. His demeanor suggested a lot of hot air with little to back it up. But, man was there ever plenty to back it up. He would chew up lawyers in the courtroom. Good on the law, quick on his feet, articulate, and just plain smart. Any case he had, the State was well represented.

I always thought that the newer lawyers in our office didn't take the opportunity to learn from Terry when he came back part-time. They didn't know about Terry prowess when he was a full time prosecutor. So, they didn't know how much help and advice he was capable of providing to them. They missed a lot if they didn't seek his advice.

It was my pleasure to have known and worked with Terry. Not only did we get to do a lot if interesting and challenging things over the years but we had a lot of fun doing it. I learned a lot from Terry. I will miss him and the great times we had.

When Terry did come back to the Office the second time, he was mostly known for the rascal motor scooter than he blazed down the hallways on at a high rate of speed. It was after having to leap to safety to avoid being run over by Terry a couple of times when I finally got to know him. Although I clearly didn't know him as well as Ted or some of the folks from back in the "old days", I enjoyed hearing his war stories. I was also able to learn how to turn down the throttle on his scooter, which probably saved countless lives in the Office.

Terry had been involved in the Max Soffar case when it was first tried back in the 1980s, and he testified in the case when it was re-tried in 2006. It was something very interesting to watch and listen to him talk about. When then-Gubernatorial candidate Kinky Friedman testified in trial on Soffar's behalf, I remember telling Terry that it was a tough call to see who looked more "grizzled" - Terry or Kinky.

Terry claimed it was him.

In talking to Terry, I just enjoyed feeling his enthusiasm and camaraderie that he felt about the Office. In retrospect, I think it was characters like Terry Wilson that made the D.A.'s Office such a fun and desirable place to work.

Ted is correct in saying that newer lawyers didn't take the time to get to know Terry when he came back to the Office. That's a shame.

I did. And I'm glad that I did.

Terry will be missed.

Tuesday, March 24, 2009

Memo to the Gang: Rotate Your Peeps

Now, I know that since the vast majority of the Gang Who Couldn't Shoot Straight haven't been prosecutors during this millennium that it probably stands to reason that they are currently unaware of the biggest internal enemy the District Attorney's Office faces.


More specifically, burnout at the level of Felony Threes.

I've explained the job duties before, but I'll do a brief recap (on the off-chance that you are as bad about finding articles in the archives of a blog as I am).

The Felony Three is the foot soldier of each District Court. They pull the docket every morning. They "screen" each new case, writing a Defendant's criminal history on the front of the file, as well as a brief synopsis of the case. If there are offense reports to be ordered, they do it. If there are preliminary calls to be made to Complainant's, they get to do that too. During court, they normally have to fill out the majority of plea paperwork, and then stand before the bench to "take" the pleas on behalf of the State. If any phone calls need to be made for various and sundry reasons, they are usually the ones to make them.

And now I'm sure they are getting to do more than their fair share of offense report copying, too.

In their multitude of "down time", they get to work their cases up for trial, and in some courts, that's just an intellectual exercise. It's difficult for Threes to get their cases to trial in some courts. Understandably, most judges will put a priority on trying a Felony Two's murder case over a Three's less than a gram Possession of a Controlled Substance case.

Most Threes quickly accumulate the 240 hours of Comp Time that they cap out on, and then spend their Sundays working for free by screening their cases.

If it isn't obvious, my point is that Threes burn out with massive workloads.

Luckily, the position in the standard rotation that follows being a Felony Chief is the position of Misdemeanor Chief.

The life of being a Misdemeanor Chief is important, but I think everyone would agree that it is significantly more leisurely. There are supervisory duties, but most chiefs don't carry much (if any) of a caseload for trial.

I know that when I was a Misdemeanor Chief, I was able to whittle down my 240 hours of Comp Time down to around 8 remaining hours over the period of a little less than a year!

And the rest was needed.

The first time up as a Felony Three is an overwhelming time period, and it often separates the prosecutors who want to be Career Prosecutors from those who don't.

But the average time that most prosecutors used to spend as First Time Threes used to be right around six months. After six months, they got rotated down to be Misdemeanor Chiefs and got the much deserved break they had earned during their time up in the Big Leagues.

Right now, however, Felony Threes are staying well past six months with no apparent end in sight as to when they get to go back down. In addition to other things that the Lykos administration has done to kill morale, failing to rotate the Felony Threes back down to misdemeanor is running good prosecutors into the ground.

It's tough on their health. Sometimes it can even be tough on their family lives.

So, here's the Memo to the Gang: you've got a lot of good people working for you at those levels, but they aren't bulletproof. If you don't start taking some more interest in trying to make their lives a little easier, you are going to lose them. They'll leave to save their social lives. They'll leave to save their marriages. Hell, they'll leave to save their sanity.

Do something about it, folks. You are really going to regret it if you don't. I know you've blown the budget already, so there is no hope of getting them some backup with adding a fourth person to the courts.

But you could still rotate your Felony Threes with your Misdemeanor Chiefs for no money!

It's common sense, and it's free.

But then again, it seems like a little common sense around the 6th Floor would be priceless these days.

Monday, March 16, 2009

Swats Versus Felonies

Major kudos today for HCDA Juvenile Division Chief Bill Moore for saying what plenty of Defense Attorneys and Prosecutors have been thinking and saying for a long time.

In a report on KHOU, Moore addressed the felony criminalization of "graffiti" by referring to it as a "cop out by schools and police" who seem more than willing to saddle a school aged kid with a felony conviction for doodling on their desk or a bathroom wall.

While Bill is just addressing the graffiti element of crimes that occur in school, I think he has identified the tip of the iceberg when it comes to the handling of kids and the things that they do in schools today. I don't think that it is any stretch of the imagination to say that things that you and I would have gotten swats on the rear end for when we are in school are now things that get kids involved in the Juvenile Justice System.

And the bottom line is that it has become beyond absurd.

I graduated from high school in 1991. Back in those days, if a police car pulled up in front of the school, you could guarantee that every student in the class was struggling to get to the window to see what on earth was going on that could possibly bring a police officer to the campus. Today, there are police stations at most major high schools in this county. There is now the phenomena known as the Independent School District Police Departments, and they are very aggressive in making sure that students at a school walk the line.

But the question becomes "do they go too far"?

I don't dispute that today's 5th through 12th grader is a lot different from those I went to school with. Violent and scary students are a sad, but undeniable truth on every campus now days. The sad fact is that a police presence on campuses is an unfortunate necessity. Schools are dangerous today, and having police officers there is prudent.

But what happens on a slow day? When the Charles Manson of the 10th grade Algebra class isn't acting up, do ISD cops start looking to boost some felony stats by filing criminal charges on behavior that used to just result in swats in the principals office?

The calls at intake regarding the graffiti charges are one of many charges that ISD police often call in about. Fights in school are now called in as Assault charges. If a kid used a ballpoint pen or scissors in the fight, look for felony Aggravated Assault charges. In a story that is now legendary within the D.A.'s Office, one ISD cop called in seeking charges on a student who had turned off the lights during a class. What charge did he want, you ask? That would be Inciting a Riot.

Give me a break. (NOTE: Those charges were declined by the ADA on Duty, but they shouldn't have ever been sought in the first place.)

My personal thought on the state of Juvenile Law and the ISD police is that so many parents were outraged over the thought of principals giving swats to their children that the schools reacted by giving them Due Process through the court system. It was a nice idea, but it has clearly blown up in their faces.

I think during my entire public school career, I got called to the Principal's office once or twice. And it mortified me. I got in trouble at school. I got in trouble at home. I learned my lesson, and I never saw the inside of a courtroom. If I screwed up, the consequences were immediate and they were handled by the school.

It was effective.

I think it is time to expand on what Bill Moore went on record with today and start returning more disciplinary power to the schools and keeping more kids out of the System. Graffiti is just a starting point. But like I said earlier, it's just the tip of the iceberg.

I'm hoping that the Lykos Administration will follow Bill's lead and start using some serious discretion when it comes to what charges to file on kids acting up in school. There's a big difference between a criminal and kid being just . . . well, a kid.

Saturday, March 14, 2009

A Great Idea!

There appears to be a new addition at the front desk on the 4th floor of the D.A.'s Office.

Thursday, March 12, 2009

Just a Couple of Friendly Suggestions

With long-awaited and much heralded arrival of Offense Reports for the Defense Bar last week has come a lack of consistency and some confusion on the proper way to administrate the actual release of those offense reports:

-some courts just turn over the offense report upon a verbal request from the defense attorney.
-some courts have a pre-printed form entitled "Defense Request for Copy of Offense Report".
-some courts are requesting a formal Discovery Motion be filed before turning over the offense reports.

I don't think that a Discovery Motion is appropriate, because offense reports are work product, and not technically discoverable. From my perspective, I think the middle option is probably the most reasonable course of action in turning over the offense reports. A short form with the Defendant's name and Cause number on it, followed by standard language that assures the D.A.'s office that an attorney is in fact the Attorney of Record, and is requesting the OR.

Along with receiving the Offense Reports, the Attorney of Record receives a standard, 2 page form letter which states the rules and regulations regarding the reports, as well a confidentiality agreement. All of which is very reasonable, in my opinion.

So, here's Suggestion # 1 - on the Confidentiality Agreement that the Defense Bar has to sign, the D.A.'s Office needs to add a bullet point that reads: "I have previously read the Harris County District Attorney's Office's Rules Governing the Release of Offense Reports and I agree to abide these rules."
If you add that bulletpoint to the agreements, your prosecutors aren't going to have to keep regenerating the two page letter on every freaking file. As my 8th grade algebra teacher used to say, "Save a tree. Make a dog happy."

The bigger problem with the new OR policy is the actual delivery of the offense reports to the Defense Bar. Obviously at the time the new policy was put into place, there were already thousands and thousands of cases pending in the courts. Obviously, the prosecutors didn't go immediately xerox and redact all of those cases already pending. The copying is going to take a little bit of time, and it isn't fair to think that prosecutors are going to be able to be doing that copying in court while they are trying to run the docket.

Obviously, the reports will have to be copied in the afternoons when the prosecutors are back from court. The copies will then need to be redacted as well. The prosecutors then have to coordinate with the defense attorneys over when the offense reports are ready to be picked up. Currently, I have a couple of requests in for offense reports on different cases from different courts. I'm e-mailing and calling the individual prosecutors, and quite frankly, I'm beginning to feel like a pest.

So, here's Suggestion # 2 on the delivery of the offense reports:

On cases that can't be immediately copied and redacted in court, have the Defense Attorney fill out the Request for the Offense Report and go ahead and sign the Confidentiality Agreement and let the prosecutors go back to running their docket. In the afternoons, the copies can be made and then left up at the front desk on the 4th Floor of the D.A.'s Office.

The office should invest in those little file dividers that have all the letters of the alphabet on them, and then just file the copies in alphabetical order according to the defense attorney's last name. That way, a defense attorney doesn't have to keep pestering the prosecutor about when the copies are going to be done. They can just swing by the 4th Floor and ask the receptionist if they can pick up any offense reports left for them.

The plus side to this is that the defense attorneys don't have to go running around from court to court to try to collect all of their offense reports, and prosecutors don't have to be lugging around the reports trying to coordinate with the defense attorneys.

It's just a friendly suggestion, but I think it would simplify a lot of things.

A Good Idea

Congratulations to Pat Lykos for announcing a new policy of testing all forensic evidence in cases where it is "relevant and available". In the Chronicle article, she also again states her desire to have a regional crime lab, stating: "You cannot expect a police department, no matter how large, to oversee a crime lab".

I agree with her completely on this particular issue, and I think it is an extremely noble idea. It was also one echoed by pretty much all of the candidates in the 2008 D.A.'s race.

I will be curious to see how quickly this idea is put into place, and more interestingly, where the money is going to come from to pay for it.

Tuesday, March 10, 2009

What the Hell is Going on Over There (AKA Are you missing Bert Graham yet)?

As we enter into month 3 (of 48) of the Lykos Administration, the Gang Who Couldn't Shoot Straight (henceforth referred to in this post as "the Gang") continues to astound me with the ineptitude coming from the top of their food chain.

Now, before I go too far into this post, I want to acknowledge that this post will probably be of little to no interest to anyone other than Assistant D.A.s or ex-Assistant D.A.s, but if you are a taxpaying citizen of Harris County, it should actually interest you as well.

As the (voluntary) departures from the HCDA began last month, it was not surprising to see that the official reaction from the Lykos gang has been "no biggie". In the past few weeks, Sylvia Escobedo, Warren Diepraam, Michelle Mishoe, and Billy Skinner all decided to head for greener pastures. Now, Mishoe and Skinner were both relatively junior prosecutors, but the departure of Sylvia and Warren was an example of the Office losing two very senior Felony Chiefs (not to mention two very talented trial lawyers).

Despite the fact that the departures should have been considered a loss for the Office, Lykos and the Gang seemed to shrug it off under the theory that if they had warm bodies to fill the senior positions, it wasn't a big deal.

The problem, however, seems to have arisen that the Gang doesn't necessarily know what to do with the aforementioned "warm bodies".

Once Sylvia Escobedo had announced her impending departure, the Office took the unusual step of bringing Joe Vinas in as a co-chief in the 337th District Court along with Sylvia for her final week. I can honestly say that I have never heard of a court having two chiefs before.

To fill Joe Vinas' position at the Police Intake, the Office promoted Spence Graham from his position of Felony Two to the level of Chief at Police Intake. In promoting Spence to the position immediately, they left the Number Two spot in the 177th District Court vacant.

For those of you who aren't familiar with the Office, the position of Felony Two is probably the most difficult job there. The Two tries the murders, aggravated robberies, serious aggravated assaults, and all of the sexual abuse cases. It is a position that absolutely cannot be left unfilled for any amount of time -- not even for a week. So, to remedy this, the Office apparently temporarily had Ed McClees serving double duty as the Felony Two in both the 177th District Court, and in his old position of Felony Two in the 263rd. Given the workload that a Felony Two has, I'm not really sure how Ed pulled that off, even if it was only for a week.

While the Office acted quickly, and in my opinion, impetuously in rushing to promote everyone so quickly in the instance of Sylvia's departure, they have seemed to have taken the exact opposite approach when it came to replacing Warren Diepraam and Michelle Mishoe.

Warren Diepraam was the head of the Vehicular Crimes Section, which handled Intoxication Manslaughter and Intoxication Assault cases. Warren's last day was Friday, March 6th and he gave two weeks notice prior to then. As of this writing, the Office has yet to figure out who they want to replace Warren.

I guess we can all sit around and keep our fingers crossed that there aren't any Intoxication Manslaughters that happen in Harris County while Lykos and the Gang are sitting on their hands trying to figure out how to replace Warren.

In an even more egregious move, the Office has also failed to fill the position of Felony Three in the 262nd District Court which was vacated by Michelle Mishoe. With each felony court having to handle anywhere from 500 to 1000 pending cases at any given time, it is an absolute must that they be fully staffed at all times. The idea of running a court without a Felony Three is like trying to run a car without an engine.

The Felony Three in any court is responsible for pulling and screening all the cases for docket, making preliminary phone calls, and normally taking any and all pleas that a court has during the day. They are truly the "grunt soldiers" in the hierarchy of the D.A.'s Office, and how Lykos and the Gang think they could possibly leave that position vacant while they try to figure out what the hell to do with themselves is nothing short of astounding.

I was in the 262nd this morning on a case, and Chief Natalie Tise and Felony Two (presumably acting Three, as well) Jennifer Meriwether were outnumbered and getting bombarded by defense attorneys. To both ladies' credit, they moved swiftly and effectively through the docket, but the point is they shouldn't have had to. Quite frankly, most courts should have at least four prosecutors in them (rather than the standard number of three), and they definitely shouldn't be running with only two.

So, as to the title of this post, I really don't get what the hell is going on over on the 6th Floor of the CJC. Prior to his departure, Chuck Rosenthal had gotten approval for the addition of somewhere around 50 to 60 new prosecutors. I'm having a hard time making the logic fit as to why courts are running short and positions aren't being filled.

I have heard that part of the problem is that Lykos and Leitner screwed up the budget for the Office so quickly that they aren't hiring new prosecutors, which is creating the problems. Leitner's predecessor at First Assistant was 30+ year veteran Bert Graham, who for years under both Johnny Holmes, Chuck Rosenthal, and Ken Magidson was able to keep the budget balanced and the courts fully staffed. When Lykos informed him that his services would not be needed under her administration, Bert volunteered to help consult with them on how to keep things running.

Lykos and the Gang Who Couldn't Shoot Straight declined Bert's assistance. They were brilliant enough to go ahead without his help.

I'm betting my last dollar that they are probably kicking themselves for their arrogance now.

I fully understand that the vast majority of citizens who don't deal with the criminal justice system could probably care less which person is doing what job within the District Attorney's Office.

But I wonder what the excuse is going to be from Lykos when she starts running out of warm bodies to fill the positions.

It just makes no sense to me.

Sunday, March 8, 2009

Collegiality, Diplomacy, and the Aspiring Yodas

A week or so ago, I sat down and had drinks with my friend, Pat McCann, and a prosecutor-who-shall-remain-nameless. There was nothing unusual about the fact that I was having a beer with Pat, other than we were having the drinks over at Picazo rather than Char for some strange reason. During our conversation, as we often do, the talk turned to the overall state of affairs at the Criminal Justice System, and Pat made the comment that over the past year, he felt that there had been an increase in the "collegiality" between prosecutors and defense attorneys around the CJC.

I agreed with him, and we talked about the different factors that had contributed to that, which included Rosenthal's departure, the subsequent vulnerability of the HCDA office, Mark Bennett's and my respective blogs, and the passing of some of our friends from the Defense Bar.

Now, before some of you start yelling "how can there be collegiality since prosecutors and defense attorneys have opposite purposes?", I would argue that the common purpose is achieving Justice within the System. We may not always agree with what True Justice is, but both sides are working toward that goal. Prosecutors, contrary to popular belief, are not trying to lock up every person and throw away the key. Defense attorneys, by contrast, are not trying to help absolve the criminal population of ever accepting responsibility.

We work towards Justice -- all of us, in our own way. The collegiality exists, and I've never been more aware of it than when I was welcomed to the Defense Bar earlier this year.

Of course on both sides of the Bar, there are always going to be examples of those who have somehow abandoned the idea of collegiality and replaced it with bravado, arrogance, and often, rudeness. Some prosecutors do it. Some defense attorneys do it. Hell, even some judges do it, I suppose.

It has been my experience that those members of the legal profession often exhibit rude behavior in their younger and less-experienced years. When you've gone to trial and you've both won and lost many tough cases, you don't really have the need for bravado. You are comfortable in what you've accomplished and you don't really feel the need to go around puffing or treating your opposition like crap just to make yourself feel better.

I would like to think that by the end of my career as a prosecutor that I was known for treating everyone with respect, but I know that in my younger years as a prosecutor I could be quite a tool. I remember the day I realized what a tool I was being.

I was giving James Dyer (whom I still fondly refer to as "Chewbacca") a mean-spirited and rude speech. I don't remember what it was about or why I felt my rant was necessary, but I remember what he said to me. He looked at me, sadly, and said "I don't know what I did to make you so mad at me, but whatever it was, I'm sorry."

I felt like a bully and jerk (which I was). There wasn't any need for it, and in his understated way, Mr. Dyer pointed that out to me. If there was ever any "turning point" in my career and who I wanted to be as a prosecutor or a criminal lawyer, in general, that's the moment I can point to.

Prosecutors are normally the ones who get blasted for their rudeness and their arrogance. Nobody has been either rude nor arrogant to me since I left the Office, at least not yet, but I have heard a bit of puffing here and there. But other defense attorneys assure me that it will be coming soon.

Perhaps they are right.

But I think it is worth asking the question of whether or not both sides of the Bar are often contributing to the lack of collegiality. Although James Dyer responded diplomatically and effectively to me many years ago, I wonder if all of today's Defense Attorneys are as interested in such an approach today. Or will there still be some who would prefer to throw diplomacy by the wayside and go on the attack.

Although he is my good friend, even Mark Bennett has taken some potshots at me and my ability to "think like a criminal defense attorney". (NOTE: Don't get me started on that Rage Judicata guy who doesn't even practice criminal law but seems to think he was sent to the Blawgosphere to re-invent the the CJC. ) Even today, in his latest post, Bennett is attacking a former judge for daring to be a defense attorney. Mark notes:

A prosecutor is an advocate; a former prosecutor who spent his prosecutorial career screwing the accused has that fact to fall back on in justification. A judge is not an advocate; a former judge who spent her judicial career as another prosecutor in a black robe needs a change of heart before she is ready to defend the accused.

I guess my question is, who exactly appointed Mark to be the Yoda of the defense bar? Does being President of HCCLA really make him the Gatekeeper for those who are or are not worthy of being a true member of the Defense Bar? Or, is Mark, in his attempt to be provocative, just being a tool (like I was being to Mr. Dyer)? The things that he (and folks like Mr. Judicata) post on the web have questioned my ability to do my job based on what I write.

But isn't it a bit questionable that they've never seen me practice?

My clients (whose opinions actually matter) have registered no complaints with me thus far.

I'm going to keep on writing the way I write, and that includes saying that Harris County prosecutors are the best in the Nation. If you are being prosecuted by some of the best, you are definitely going to need some of the best to defend you, too. (See how that works?)

The vast majority of both the prosecutors and the defense attorneys I know will continue to be kind, professional, and diplomatic to me as they always have been.

Others, will continue to do something different, I suppose.

As for me, I think I may try to be a little bit more like James Dyer.

Monday, March 2, 2009

They're heeeeeeeeere . . .

Today proved to be the arrival of a most anticipated day for the Defense Bar, as the Harris County District Attorney's Office finally began the process of providing copies of offense reports to Defense Counsel.

Now having been a member of the Defense Bar for a little over two months now, I do feel slightly disingenuous applauding the arrival of the ORs so wholeheartedly. I've only been forced to take notes for two months, while most members of the Defense Bar have had to do so for years, after all. That being said, I was extremely excited to be the charter member in the 177th District Court this morning to get to sign off on the confidentiality agreement one signs in getting an offense report.

Those who read this blog know that I am no fan of Pat Lykos, but I have to give the D.A. credit for pushing through this initiative and getting the ORs out there. Her move actually will make the criminal justice system move at a faster and more effective pace. It was an idea thought up by others, but it did ultimately happen on her watch.

So, I say good for her.

There is still some small confusion on the actual execution of the plan. The offense report I received had the addresses and Social Security numbers blacked out and redacted. Some other defense attorneys that I spoke with said the names of witnesses and complainants were blacked out entirely. But hey, it's Day One. Some things will take some ironing out. I was happy just to have the OR.

I received an off-blog e-mail from a citizen asking if the ORs were available to defendants and the general public.

The answer to that is a resounding "no".

Citizens involved in traffic accidents can get copies of accident reports, but the offense reports still belong only to prosecutors, the police, and now, defense attorneys.

I know I can be quite vocal in my distaste for Pat Lykos and the Gang that Couldn't Shoot Straight, but tonight, I will actually give them an ovation for doing something good.

Good job, guys, on a good policy decision.

But don't get too used to the flattery.

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 ...