Tuesday, September 29, 2009

After Over a Month of Careful Consideration . . .

The long awaited "Move Memo" from the 6th Floor at the D.A.'s Office finally arrived over the weekend. Now, keeping in mind that the Division Chief who retired (which caused the need for the Moves in the first place) has been gone for almost two months now, it boggles my mind that Lykos and the Gang Who Couldn't Shoot Straight really needed all that time.

But, the good news for prosecutors is that the Move Memo has now finally arrived.

The bad news is that Lykos, Bridgwater and Jimmy apparently drafted it over a few too many Jack and Cokes at the TDCAA Seminar in Corpus.

Here are some of the highlights comings from this brilliantly crafted document:

1. Marc Brown was promoted to Division Chief of Grand Jury. That's good news, because Marc had been quite an excellent Division Chief prior to the Lykos Administration. They had decided to demote him to a regular Chief because of political reasons when they took over. Good to see that they came to their senses and put him back at a level he earned and deserves. The downside to that is that Marc is one of the most brilliant minds in the Office when it comes to Search and Seizure issues and drafting Search Warrants. His mind is going to turn to mush in the Grand Jury Division from lack of use.
Seriously Gang, you aren't utilizing one of your skill players in the appropriate position. You did good by making him a Division Chief again, but you need to get him in a place where he's putting his mind to work.

2. Kari Allen is being moved to Special Crimes. That's good news for the longtime veteran, and she'll do great in that job. The downside is that the Gang apparently forgot to replace her. So, the 338th is currently without a chief.

3. Katie Warren is being moved to Family Violence. Katie is a very skilled trial lawyer and she'll do great in the Family Violence Division, which is filled with tough cases and recanting complainants. The downside is that the Gang forgot to replace her, as well. So the 263rd is going to be running a bit short in their staffing without a Felony Two in that court.

4. Jen Falk is going to the 338th as a "Co-2". Jen is also a rising star in the Trial Bureau with very strong trial skills. She will be joining David Nachtigall as a Felony Two in the 338th. So, by my count, that leaves no chief in the 338th, no Two in the 263rd, but now two "Twos" in the 338th. I have nothing to add to this, other than WTF??

5. All moves are effective Immediately. Wow. Although Move Memos have always been notoriously made at the last minute, the worst I ever recall was being informed on a Friday that I was going to be in a new court the following Monday. I thought that was bad. This memo is dated on Monday, September 28, 2009, and states the moves are to take place "Immediately".

What does that mean exactly? Drop everything and proceed directly to your nearest court like a warped game of Musical Chairs? Seriously? The nimwits on the 6th Floor took two months to devise the moves, and now they wanted it in full effect instantaneously? You've got to be kidding me.

Good job, Gang! Y'all really did a bang up job this time.

Next time you may want to try putting all of your prosecutors' names on pieces of paper and then have chimpanzees stick the the names on a flow chart.

That would probably make more sense.

And it certainly wouldn't take two months.

Sunday, September 27, 2009

Eyewitness I.D. Mystery

Alright my fellow honorary members of the Bloodhound Gang, I've got a mystery for you. I need help reconciling an absolutely positive identification of somebody with the fact that I'm not sure that there was any logical way it could have actually been the person I thought I saw.

Sound confusing? It is.

First a little background.

I'm in New York City for the weekend visiting my favorite Grammar Editor, and last night she made reservations for us at Sparks Steakhouse. Now, as much I love a good steak, my Editor also knows that I like all things about famous crime, and Sparks is the scene of the famous Organized Crime hit on Paul Castellano that John Gotti ordered back in 1985. Needless to say, I was already quite excited about the evening.

We arrived at 8:30 p.m. and had a drink at the bar while waiting for our table. As we were talking to the bartender, a blond lady walked in, dressed in some sort of purple velvet suit. Her date was an eccentric looking man who was dressed in a bizarre suit with a ultra-wide tie that only a celebrity could get away with. I took one look at the man, and I knew exactly who he was.

He was this guy:

Yeah, Phil Spector walked into the bar. I'm not talking about a guy who looked like Phil Spector. I'm talking about Phil Spector. We compared this guy to pictures on my Editor's IPhone for two hours. Same hair. Same cheekbones. Same eyes. Same nose. Same mouth. Same eccentric taste in clothing.

The only problem being that the last I heard, Phil Spector was serving the beginning of a 19-year-sentence in California for the murder of Lana Clarkson.

So we thoroughly searched through Google.com to see if perhaps Mr. Spector was out on an appeal bond or something. I know in Texas you can't get an appeal bond following a murder conviction or a conviction with a sentence of over 10 years, but we all know that California has always marched to the beat of a different drummer.

But the only thing our Google search yielded for the Spector case was an article about how he was having trouble finding a location to transition to from his lock-down drug rehab.

So, of course, being a complete and total tourist and celebrity gawker, I did a walk-by on the way to the restroom for a closer look.

Yep, it was Phil Spector. And to make matters worse, the woman he was with was arguing with him!

Good Lord, lady! Don't you know how this guy handles an unruly woman!! Quit arguing with him!

We also sat and watched as a waiter was taking photographs in the general vicinity and Phil kept turning his back to the camera. He was clearly feeling very awkward with being documented. I mean, it was hysterically blatant how this guy was avoiding being photographed.

We discussed with our waiter whether or not he thought the mystery guest was Phil Spector, and he agreed completely with us.

But how could he be in New York City and Corcoran Prison in California at the same time?

The Grammar Editor and I left the restaurant at about the same time as Mystery Phil, and he was pacing around, waiting for a cab. He wouldn't stand still as she tried to sneak a photograph of him on the IPhone. The closest thing she got to a picture of him was this shot:

Although it is a crystal clear photograph of my right shoulder, Mystery Phil came out a little blurry.

So, you guys be the judge. I'm 99.99% positive we were sitting across the restaurant from a convicted murderer who is supposed to be sitting in prison right now.

Can anybody help me reconcile this?

Or is Eyewitness I.D. really that unreliable (at least when it comes to me?)

Saturday, September 26, 2009

The Public Defender Debate Continues

The tabloid we all love to hate, the Houston Chronicle is again spreading their wisdom of how to best administrate the Harris County Criminal Justice System with today's editorial piece calling for a Public Defender's Office in Harris County. The article is co-authored by Cynthia Hujarr Orr, a defense attorney out of San Antonio who is the president of the National Association of Criminal Defense Lawyers, and Norman Lefstein, who is a professor and dean emeritus at Indiana University School of Law.

Now, as much as I just thoroughly enjoy people who don't practice criminal law in Harris County telling us how to run our business, I'm afraid I'm going to have to disagree with their assessments.

The idea of a Public Defender's Office has always appealed to critics of the Harris County Criminal Justice System, because those who don't understand the system seem to believe that a new bureaucratic agency with investigators and secretaries, etc. would put the Defense Bar on a more level playing field with the District Attorney's Office.

And, in principle, I would be inclined to agree -- to a point.

One of the things I miss about working at the District Attorney's Office is the support network. Although often unappreciated, the work of the Administrative Assistants and the Investigators provides prosecutors with priceless assistance. In the world of private practice, an attorney can certainly have a secretary, an investigator, and hell, even a paralegal, but these personnel are usually really needy and want things like paychecks and insurance.

So from the aspect of a Public Defender's Office with support staff with investigators, paralegals and administrative assistants provided, I will concede that this particular element is a good idea.

After that, however, is where the plan goes astray for a couple of reasons.

First of all, I'm absolutely astounded that Orr and Lefstein (and the Chronicle) would actually try to say with a straight face that a P.D.'s office would actually save money for Harris County. I mean, come on. How in the hell would creating an entirely new bureaucratic agency with personnel from top to bottom that need insurance, retirement plans, and office space end up saving taxpayers money? Sure, you can argue all day long that it is the right thing to do, but when you start asserting that it's going to be some sort of bargain, you're undermining your own credibility.

Make no mistake about it. If a Public Defender's Office is going to be created, it's going to cost money -- a boat load of money. And in the big scheme of things, it's probably going to cost a lot more money than even Orr and Lefstein are contemplating if they want to make it any good.

In the comments to the Chronicle's editorial, a regular commenter under the name of "Helpful" astutely points out several other issues that would come along with a new P.D.'s Office. The one that should be most concerning to the general public is the type of attorney that would be drawn to work for this bureaucracy:

". . . a public defense office will mostly employ newly minted lawyers without much experience and pay them at such a rate that the best of the batch will leave once they get enough experience to compete with their seasoned counterparts. The resulting government body will still demand ever-increasing amounts of money each year, all supported by people like Orr that tell us how ill-funded it is and the horrors of underpaid defense attorneys fighting against those mean old prosecutors."

Right now, there are Defense Attorneys who accept appointments in Harris County that could dance circles around other attorneys across the Nation when it comes to trying criminal cases. The indigent defendant who gets an attorney appointed to him like, say, Skip Cornelius or Tyrone Moncreif, just hit the freaking mother lode when it comes to quality representation. Skip and Tyrone won't be headed to work for a government agency any time soon.

The ones that will be going there are going to be attorneys who either 1) just got out of law school, or 2) are not successful enough to survive in their private practice.

As the current appointment system works, a Court needing an attorney to represent an indigent defender will get a computer generated list of ten attorneys that they can select from. Court coordinators aren't going to select an incompetent attorney. I'm sure that the last comment will draw comments from the skeptics, but the bottom line is that the current system does give a Court a choice in what attorney they are getting. Under a Public Defender system, they are going to get stuck with a certain attorney assigned to the court, regardless of their skill.

Think about it. Skilled attorneys in the defense bar aren't going to stick around with a governmental salary for very long. In fact, the majority of good defense attorneys are typically veterans of the D.A.'s Office who left, not because they didn't enjoy the job, but because it didn't pay enough. The creation of a Public Defender's Office ultimately is just a call for a Bureaucratic money pit that recruits mediocrity (at best).

Right now, to accept felony appointment in the criminal courts, attorneys have to take a test, have trial credentials that reach the standards for appointment, and then be approved by the District Court Judges. Under a P.D.'s system, they'll have to do none of those things before representing defendants.

The Chronicle likes to insinuate that the current system is prone to cronyism and appointments being given solely to campaign donators. That's pretty damn insulting, but it's also lazy reporting in my opinion. If they want to start doing some hard fact writing about an incompetent attorney who is getting appointments solely because he delivered a hefty campaign donation, then let's see it. Otherwise, this is just idle griping about what they feel may be behind a high conviction rate in Harris County.

Now, before I close and the commenters start bringing in their usual banter of insults, I acknowledge that I take felony appointments, and I am happy to do so. I was a prosecutor for nine and a half years, and from a business standpoint, appointments are how one builds a defense practice. I make absolutely no apologies for that. I will also freely admit that I would hate for there to be a Public Defender's Office because it could potentially cut into my business. I have no intention whatsoever of going back to work for a government agency.

That being said, I also know that I bust my butt for all cases I get appointed to and work on them with the equal amount of zeal and effort that I do for the retained cases I have. I've been happy with the results so far, and more importantly, so have my clients.

If Orr, Lefstein, and the Chronicle want to do something to increase the level of effectiveness of indigent representation in Harris County, there are plenty of things that can be done.

Creating a new bureaucracy that appeals to the lowest common denominator of the legal practice isn't one of them.

Monday, September 21, 2009

Memo of the Highest Importance

Prosecutors at the Harris County D.A.'s Office got a rare e-mail from the 6th Floor last week. Given the Upper Administration's general reluctance to send out Office Policy via e-mail, it clearly had to be something of the utmost importance to warrant the All Prosecutors e-mail, right?

What could it possibly be?

The long awaited and long overdue memo regarding promotions and moves?


An explanation about how the investigators could be potentially about to lose their TCLEOSE certification if the Office doesn't find the money to pay for their training by October?


A schedule for whose turn it is to walk the Office Dog?

Not even that.

This e-mail was for those slacking Assistant D.A.s who haven't changed the standard boiler-plate language at the end of the each of their e-mails (regarding Work Product and Privacy, etc.) to reflect that the elected D.A. is now a "she" and not a "he".

It's a controversial and hot topic issue, but apparently some of you lazy prosecutors hadn't ever changed it. You guys really need to watch your pronouns if you truly want to keep looking good, thinking smart and winning.

Now, hopefully you will all take care of this immediately, because if the 6th Floor has to take a break from redecorating again to send a follow up e-mail, some heads are going to roll.

NOTE: Special thanks to my NYC grammar editor for pointing out how bad I am with contractions.

Tuesday, September 15, 2009

All Quiet on the Western Front

I'm spending the first part of this week in San Antonio for a Continuing Legal Education seminar, which is a real Barn-Burner, let me tell you. There's Wi-Fi which is allowing to spend countless hours browsing the Internet and checking my e-mails, which helps pass the time. Yesterday, I got an e-mail from my best friend in Austin remarking that things are awfully quiet on the blog during those down times where the Branch Davidians haven't screwed anything up lately, but I guess that's just the nature of the game.

Hell, even Rage seems to be hibernating.

But apparently the Lykos Administration has finally realized if they quit doing stupid crap then I wouldn't have much to write about. It's a solid plan, and one I don't mind at all.

Maybe I'll write a book or something in my down time!

The only thing of note really coming out of the 6th Floor is actually a lack of action. The Division Chief of Grand Jury retired from the Office a couple of months ago, and the Gang still hasn't caught up on corresponding personnel moves that need to be made. Word has it that based on some, um, spending indiscretions, the Office doesn't have the money in the budget to promote anyone to the Division Chief level.

It's not really all that big of a deal, though. Being the Division Chief of Grand Jury is kind of like being a Red-Shirt Golfer when it comes to job difficulty and stress. It doesn't really need a true division chief to handle it. Quite frankly, that would be a waste of money.

So it is kind of hard to criticize the Gang for that particular move. However, they have been sitting on their hands for weeks and weeks now on other Office moves, which isn't quite as acceptable. Moving courts is a regular occurrence within the D.A.'s Office, although it is often stressful. Prosecutors have to wrap up their caseloads and leave them in a presentable form to their successors. Advanced notice is needed, but the moves need to get made.

Lykos and her Gang do need to get off their butts and make their moves.

But other than that, folks, it's all quiet on the Western Front.

Friday, September 11, 2009

Card for Steve Pena's Family

Jen Falk, the Two in the 183rd District Court, just posted a comment on the post on Esteban "Steve" Pena. In case you aren't a regular comment checker, I thought I would repost it.

Jen will have a card today in the 183rd District Court, Judge Vanessa Velasquez, on the 18th Floor for the family of Esteban Pena. Everyone is invited to drop by and sign it to express their condolences.

Thanks Jen for taking the time out to set that up.

Wednesday, September 9, 2009

Esteban "Steve" Pena

Yesterday, I was set for trial in the 180th District Court.

I showed up right around eight o'clock to make sure I had everything ready and set up, even though I had been told by the prosecutor that my case wasn't the first in line to go to trial. As everyone who practices in the CJC knows, just because your case isn't the first one "up" for trial, you can easily find yourself in front of a jury panel at the blink of an eye.

While I was killing time in the courtroom, waiting to find out whether or not my case was going to trial, I thumbed through the court's docket to see who else was set for trial that day. The defense attorney on the first case up was a man named Esteban "Steve" Pena. An attorney I would later realize that I knew in passing, but not by name.

I did recognize his name yesterday, however.

The reason I had known the name was because it had been posted on the Harris County Criminal Lawyer's Association website that Steve Pena had passed away over the weekend.

It was a sobering thought to realize that an attorney set for trial in front of me wouldn't be in court that morning because he had died. It was even more sobering when I realized that Steve Pena was a year younger than I am. When I saw his picture posted in the hallway of the 185th District Court today, I did remember who he was. He was a nice guy, who was always very pleasant to deal with.

As I mentioned earlier, I didn't know Steve other than to nod and say "hello" in the courtroom, but I do wish to extend my condolences to his widow and his family. If any of you knew him and want to say something in the comments section, I hope you will.

And although I didn't know him, I think he definitely provided us all with the reminder that life can often times be unexpectedly short.

You should appreciate it -- love it -- live it well.

Sunday, September 6, 2009

A Good Idea Implemented

Brace yourselves, folks. The Gang Who Couldn't Shoot Straight did something right last week, and I'm acknowledging it.

Starting last week, numerous Felony District Courts began getting pre-commit attorneys as Felony "Fours".

For those of you not familiar with the terminology, a "Pre-Commit" is a soon-to-be lawyer who is just waiting on the results of his or her Bar Exam results before they can get sworn in and all officially lawyerlike. The District Attorney's Office hires them after a lengthy interview process and they begin conditional employment with a Bar Card (it's kind of like a Learner's Permit for lawyers. You can drive, but a licensed attorney has to be sitting with you). The condition is that the Pre-Commit has to pass the Bar Exam.

In the past, Pre-Commits who were hired by the Office went directly to the Misdemeanor Courts where they filled the role of a Misdemeanor Three -- trying DWI cases with no accidents or breath tests, small marijuana and theft cases, etc. It wasn't a bad idea, because they could get a couple of trials under their belt before they were even bona fide lawyers.

However, although starting a pre-commit could get some trial experience, what starting in Misdemeanor failed to provide them with was some good old fashioned Perspective.

In one of my posts last year, I pointed out that rising up through the ranks as the D.A.'s Office promotion ladder is structured was a good way to gradually get more comfortable trying progressively serious cases. The downfall of that is that the prosecutor is perpetually at the zenith of his or her most important cases tried.

I pointed out the example that I started in the Justice of the Peace Division and by God, I was one hell of a crusader against them No-Seatbelt-Wearing Bastards. Had I spent some time in the Felony Division before heading down to Class C court, the speeding ticket cases might not have seemed quite as proportional to a Capital Murder to me.

The Gang's idea of sending the Pre-Commits into the Felony Courts first is not one that they originated, but they do deserve credit for implementing it.

A Baby Pre-Commit now has the benefit of getting his or her first lessons in prosecution from a seasoned Felony Chief who has been prosecuting for years. These are the men and women of the D.A.'s Office who have actually tried the murders, sexual assaults, and aggravated robberies and have a lot to teach. The Pre-Commits might actually get to learn how to truly work up a case, and ultimately learn the difference from a good case and a bad case.

But the real value in it, in my opinion, is that the Pre-Commits under the new policy will realize that there is a tremendous difference between a murder and a misdemeanor possession of marijuana, and there truly is not such a thing as a "Capital DWI" trial. That type of perspective can shape the general attitude of the prosecutors in the Trial Bureau, while making them better at their jobs at the same time.

So, good call this time, Gang.

There, now I've actually written a post complimenting the new administration. The Final Sign of the CJC Apocalypse has arrived . . .

Friday, September 4, 2009

Thursday, September 3, 2009

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 ...