Thursday, October 29, 2009

Adios, Amigo

Tomorrow (Friday, October 30th) will be my friend, Mark Donnelly's last day at the Harris County District Attorney's Office before he heads off to work at the U.S. Attorney's Office.

To say his departure is a loss for the D.A.'s Office is a tremendous understatement, but given the way he was treated by Pat Lykos, the move comes as no surprise.

I first met Mark when I was a Misdemeanor Chief during the Summer of 2001. The offices at 1201 Franklin had been abandoned in the wake of Tropical Storm Allison and we were operating under Flood Conditions out of the old Early Voting location on Texas. He was a rookie prosecutor who had the audacity to wear some sort of prissy little bow tie to work.

It was a pretty bold move for a rookie, and I decided to harass him about it. If I recall correctly, he had no hesitation about hurling back a barrage of bald jokes in response. Even though it was totally at my expense, it was hysterical. Mark pretty much fit right in from the second he set foot in the door at the D.A.'s Office.

Mark was immensely popular at the Office, and he was one hell of a good prosecutor too. He was smart, talented in trial, and bilingual. He was fair and even-handed with the Defense Bar. He was helpful to his co-workers. He was respected by the judges. I don't think he had an enemy within the Office, and we all knew he was going to end up in politics some day.

Everybody freaking loved Mark.

I can remember one time having to call Judge Susan Brown about getting a search warrant signed in the middle of the night. I was assigned to her court, so when she answered the phone, I joked: "Hey Judge, it's your favorite prosecutor."

Her response: "Donnelly?"

The point I'm trying to make (without letting this post sound too much like a eulogy) is that Mark was literally a Golden Child at the Office and few prosecutors who have ever worked there could make the claim that they represented the Office as well as he did. He was born to be a leader in that Office, and I have no doubt he will be a leader with the Feds.

His career was immaculate and unblemished until Pat Lykos decided to jump the gun and call him "negligent and incompetent" on the front page of the newspaper. Of all the colossal f*ck ups that Lykos and crew have committed in their 10 months in power, nothing has gotten anywhere near what she did to Mark and Rifi.

And she never even bothered to offer those guys an apology.

I find it tremendously interesting when you compare Lykos' reaction to the Batson situation with her complete and total lack of reaction to last week's Brady situation. Apparently Lykos and the Gang don't consider the hiding of exculpatory evidence to be quite as serious of an ethical violation as a Batson challenge.

My hope is that HCCLA will ultimately beg to differ on that particular issue.

So Mark, I (and everybody else who worked with you) wish you the best of luck over on the National Level. I assume we'll see the bow-tie trend taking over the Federal Courthouse in no time. Even if your fashion sense was a little off, you are a great prosecutor and you'll continue to be one no matter where you are.

And to Patsy and the rest of the Gang Who Couldn't Shoot Straight, I hope at some point you all will sit down and realize what a tremendous screw up you have made in running off a dedicated public servant like Mark Donnelly. You showed your asses on that move back in March and now you're paying for it.

The citizens of Harris County were lucky that he stuck around as long as he did.

Sunday, October 25, 2009

Brady & Over-Reliance on an Open File

Prosecutors and Defense Attorneys alike were buzzing about on Friday afternoon, discussing the hearing in the 180th District Court over whether or not prosecutor Denise Oncken had wilfully withheld Brady information on a Sexual Assault of a Child case. At issue was whether or not the head of the District Attorney's Child Abuse Division had failed to notify defense attorneys Bill Stradley and Lisa Andrews that the child victim in the case had initially stated she had been sexually assaulted by a black man when the Defendant in the case was white.

As noted in Brian Rogers' article, Judge Van Culp ruled that the exculpatory evidence had indeed been withheld, but since it had been discovered before the trial was over, the error was harmless and therefore no mistrial would be granted. That's a good thing for the District Attorney's Office because if a mistrial had been granted due to prosecutorial misconduct, Glen Kahlden (the Defendant) would be a free man. The State would have been barred from retrying the case.

But this may have been a case of winning a battle and losing a war for the D.A.'s Office, because in Judge Culp's finding, he officially acknowledged that the Office had committed the most unpardonable of sins that a prosecutorial agency can commit -- they had withheld evidence that pointed towards a Defendant's innocence.

And although the act of a Brady violation is most definitely inexcusable, it is usually explainable on how it happened. (NOTE: Before people start jumping on me for my phraseology on this sentence, please read it more closely.)

The Defense Bar loves nothing more than to loudly announce that prosecutors withhold Brady information all the time. In their mind, they picture prosecutors sitting in their office, twirling their moustaches like Snidely Whiplash and gleefully giggling "The DNA completely exonerates this guy, but I'll never tell his lawyer!"

That's a bunch of crap.

But where prosecutors can often find themselves in trouble is not doing their Due Diligence in going through their files and making sure that they themselves are aware of the Brady information. Although they have been told time and time again that their duty under Brady extends to being responsible for the actions of the police agency and any other representative of the State, they are often normally more than content to rely on just what's in the file.

In fact, the standard response of a prosecutor to most accusations of a Brady violation is to say "Well Judge, I've maintained an open file policy and the defense attorneys were always welcome to come look at it. That information was in there."

I'm keenly aware of that explanation, because that's what I did as a prosecutor. I kept a wide open file that was available to the defense even after trial had begun. I rarely, if ever, had a work product file that I wouldn't share with the Defense. If a defense attorney didn't know about something in that file, it was his own damn fault for not looking closely enough at it, right?

The short answer to that is "maybe". That's the lazy method of complying with Brady and it's one that is utilized because of the massive case loads that all prosecutors carry. The problem arises when (as in Denise Oncken's situation) there is something not readily visible by just having an Open File, because it isn't written in the offense report. Although I wasn't at the hearing, my understanding is that the information about the initial outcry describing a black assailant was in a taped statement. Furthermore, the investigating officer admitted to intentionally not writing it down in the offense report. Theoretically, the information was available and out there, but nobody had pointed it out to Stradley and Andrews.

And let me just editorialize about Bill Stradley and Lisa Andrews real quick. These are two outstanding attorneys with excellent reputations for their trial skills and work ethic. They are also extremely diplomatic in dealing with the prosecution. There is no way in hell that they just somehow "missed" that exculpatory evidence. If they were unaware of it as trial began, it was not going to be because they didn't do their homework. They would have never made an accusation of a Brady violation lightly.

But this does not mean that Denise Oncken needs to be vilified over this. I would imagine that her failure to turn over the evidence on this case was more based on a lack of Due Diligence than it was on Snidely Whiplash-esque behavior.

But that doesn't make it any less wrong.

While I'm sure that Lykos and Leitner are already in the midst of their latest knee-jerk reaction to this debacle, I would encourage them to take a step back and think before they react to it. I know that isn't really their style and they are probably already plotting to have Oncken executed on the courthouse lawn, but what they really need to be doing is formulating a well-reasoned way of ensuring this doesn't happen again.

Here's my two cents (for what it's worth):

1. If the Lykos Administration has done anything positive, it has been in the way of sharing information on cases. The step of giving the defense copies of the offense report was huge. I would suggest that they expand on this a bit. In addition to giving copies of the offense reports to the defense, also provide copies of all recorded statements, crime scene videos, photographs and reports. Keep in play all the same rules as you do for the offense reports, and you'll be protected.
I know that the defense bar isn't entitled to copies of these things under the Rules of Evidence, but we weren't entitled to the offense reports either. That policy has worked well, and this one can too.

2. In dealing with the statements of child victims, I know that these statements can't be turned over to the defense bar, nor should they be. You can cover yourself under Brady by having a standard form that basically is addressed to Defense Counsel, listing all taped interviews of child witnesses that are in the possession of the State and telling them that they are available for viewing. Have a form for Defense Counsel to sign.

3. Keep track of what supplement number had been reached when the offense report was turned over to defense counsel. Make sure that when a case gets set for trial that no new supplements have been added.

4. Keep a checklist. Have an itemized list of everything that has been turned over to the Defense and make sure it has everything on it a Defense Attorney could possibly ask for.

5. Pat Lykos needs to issue a blanket statement to all law enforcement personnel in Harris County that they have a duty to include all of their information in their offense reports. If they have information that needs to be kept confidential from the defense than they need to call the prosecutors on that case immediately. It's a policy statement that needs to be made and carried out if she is going to protect her prosecutors.

I'm sure there are some more things that can be done, and if you've got some ideas, let's hear them.

Friday, October 23, 2009

The Not Ready for Prime Time Player

It's tough being one of the spokespeople for the Gang Who Couldn't Shoot Straight.

Your boss doesn't understand the law and good policy making. You don't understand your boss.

You have to go on camera and defend what your boss is doing.

It's kind of like the Perfect Storm -- just ask Jim Leitner, who found himself in front of Channel 13's Ted Oberg this week to answer some questions about the District Attorney's new policy of reviewing vehicle fatality cases. The problem is that (as I pointed out in this post) there doesn't seem to be any guidelines for what cases make the grade for Pat Lykos and crew and what cases don't.

So, poor Jim Leitner was pretty much a deer in the headlights when Ted Oberg came a calling for an explanation on the cases. Bless his heart, Jim didn't even make it past "State your name" before he apparently decided to bail out on the interview. Clearly violating the Office's earlier motto of "Look Good, Think Smart, and Win!" by spontaneously changing it to "Look Foolish, Don't Think and Run Away!"

Now that's the kind of leadership I'm looking for in my D.A.'s Office!

In Jim's absence, Oberg turned to my anarchist, former-HCCLA President and defense attorney buddy Mark Bennett to explain how the D.A.'s Office should be run.

That's just awesome. Does the term "fox running the hen house" come to anybody else's mind? See what happens when you don't know what you're doing, Gang?

To catch Jim in all his glory during the "non-interview", click here.

In the meantime, Jim's response to Ted Oberg reminds me of the Knights of the Holy Grail's response to the Killer Bunny in this old movie favorite.

Wednesday, October 21, 2009

Ghosts of Cases Past

Something that occasionally arises when you are a former or current Assistant District Attorney is the scenario where you are out and about in town and get flagged down by someone who recognizes you. I'm not talking about somebody that recognizes you from the TV or the newspaper, but recognizes you from a case that you worked on that involved them.

When a current or former prosecutor gets the question "Aren't you a D.A.?", one thing flashes through your mind very quickly -- "Does this person love me or hate me?"

Odds are that if you are encountering someone you once prosecuted or one of their family members, you could be dealing with a potentially dangerous situation (depending on the outcome of the case). Luckily, this situation has yet to happen me.

But if you are seeing someone who you had as a victim or a witness on a case, the results can usually be very pleasant, or in some cases pretty funny.

Coming back from lunch today, I was flagged down by a guy that I didn't recognize who asked me "Aren't you a D.A.?"

After running through a couple of names and the facts of the case, I realized he had been the victim on an aggravated assault case that I had used during the punishment phase on a case back in 2001. The defendant on the case had ultimately gotten 60 years.

I told him that I was the prosecutor on his case, and he nodded, very satisfied with his own memory.

"I thought so," he said. "But it's been awhile back, and you've put on some weight."

Um, thanks.

Gotta love the life of a (former) public servant.

Monday, October 19, 2009

A Tale of Two Cases

A couple of years ago, under the Chuck Rosenthal Administration, a specialized "team" was created that was specifically designed to assist in the investigation of automobile fatality cases -- those involving alcohol and otherwise. The group of prosecutors, under the leadership of Warren Diepraam, was called the Vehicular Assault Team (or VAT) for short. (NOTE: Personally, I found the alternative of Fatality Accident Review Team to be more appropriate only because of the acronym it created, but my idea never "officially" caught on).

Prosecutors would be sent out to make the scene of auto fatalities to advise and assist the police officers as they were investigating the case. Although it may seem like an automobile fatality case would be a relatively simple one to investigate, nothing could be further from the truth. The assistance of prosecutors was something that could definitely be used in the drafting of warrants and making charging decisions at the scene.

The team soon generated a little bit of controversy when the investigation of non-alcohol related fatalities were resulting in the filing of criminal charges (usually felonies). The most high profile of these being the case of a school bus driver who was charged with a manslaughter charge after accidentally running over a young student in a cross-walk. The bus driver was ultimately acquitted by a jury, but the outrage amongst the Defense Bar over charges being filed in the first place was very vocal.

The Defense Bar argued that not every accident that results in a fatality needs to be filed on as a felony criminal charge.

I couldn't agree more. Not every accident does.

But some accidents are caused by such negligent or reckless behavior that they do actually deserve charges being filed and a jury to decide what happens.

The trick becomes determining the fine line between tragedies and criminal acts.

Within the past two or three weeks, there have been some interesting developments within the VAT Team that make me wonder just who is making the judgment calls on that line.

Take for instance, the case of Jeri Montgomery, the 24-year-old lady who was convicted last month of criminally negligent homicide for causing a fatality while talking on her cell phone, and subsequently sentenced to 30 days in jail as a condition of her probation. We all know that talking on the cell phone (or God forbid texting) while driving is dangerous. But it isn't illegal (yet) and it doesn't make a driver Charles Manson.

However, a jury found the evidence presented by prosecutor Brent Mayr to be compelling enough to return a guilty verdict. A few days later, your friend and mine Pat Lykos was not just standing by the verdict, but doing a little name-calling on the side. According to Patsy, Miss Montgomery wasn't just a crook, but a "selfish and narcissistic" one at that. (NOTE: By the way Pat, isn't that a little "Pot calling Kettle" with the name-calling?)

Now, compare the Montgomery case to the case of Sergio Jiminez Gonzalez that this article is describing. Here Pat Lykos' gang didn't just dismiss any old case -- they dismissed a case where the Defendant had already pled guilty. For those of you who don't deal with criminal law, we aren't talking about a pending case where the prosecutors decide they can't prove it and then dismiss it. We are talking about a completely finished case where a defendant has accepted responsibility and admitted to the criminal charges leveled against him. By pleading guilty, the right to appeal is typically waived.

But here, the Lykos Administration resurrected the case just long enough to dismiss it, which astounds me.

While Miss Montgomery's talking on the cell phone got her a conviction and some nasty names from the D.A.'s Office, apparently the fact Mr. Gonzalez killed not one, but two people (who were leaving church) while speeding in a tow truck, and had cocaine metabolite in his system was somehow less egregious.

In the meantime, the Lykos Administration has been having Special Crimes Bureau Chief Joni Vollman go through the pending cases of vehicular fatalities and there has been some dismissing of cases going on. I'm not necessarily criticizing this, but I am pretty curious to know the criteria for who gets the dismissal form and who gets called "selfish and narcissistic". There seems to be a sudden and drastic lack of consistency going on, if you ask me.

The Defense Bar is applauding the new move towards dismissing these cases, but at some point you have to ask yourself if you have self-admitted anarchist Mark Bennett applauding the D.A.'s Office for the job they are doing isn't that a little concerning? I mean, seriously, when was the last time we saw my friend Mark applauding the D.A.'s Office for a nice Life sentence? Just kidding, Mark.

It doesn't make much sense. Or does it?

Lykos is well-known for seeking out publicity and loves nothing more than adoration from the media. With the current backlash against those drivers talking and texting on cell phones, perhaps she felt that she could play that to her advantage.

Or then again, maybe at her age, the new technology of cell phones just scares her.

Wednesday, October 14, 2009

Absence from the Keyboard

I've gotten a couple of complaints about my lack of posting lately.

And by "a couple", I mean two. Thanks to Feroz and Kiatta for your enthusiasm towards the blog.

I actually sat down and started writing a new post on Monday, but then a family medical emergency sprung up and I had to head to out of town ASAP.

I'll get around to typing up something new soon. Anybody got any proposed topics?

Tuesday, October 6, 2009

Lise Olsen's Weekend Article

In the participation with the Chronicle's latest zealous campaign for a Public Defender's Office (which has already been approved), writer Lise Olsen assisted with this article over the weekend talking about indigent defendants spending inordinate amounts of time in jail. As usual, the Chronicle is missing their mark on the cause of the over-lengthy stays, but in this case, Ms. Olsen seems to have gone really overboard with some mischaracterizations and outright inaccuracies throughout her story.

The first problem with her article is that it flat out just misses the boat. If the Chron was looking for why Defendants remain in jail for so long they can blame one main factor -- the enormous caseload of pending cases in each and every court in Harris County. It's been awhile since I last looked at the actual case counts for the individual courts, but before I left the D.A.'s Office, most courts were running between 900 to 1000 cases pending, on average. When you start dividing that up to how many cases can be on a daily docket, you start to realize that the average setting for each case is probably going to be at a minimum of one month intervals.

In other words, a Defendant is only going to get his or her turn to go to court about once a month. If the case isn't resolved on that date, they are normally going to be waiting for another month for something to change with their case. The reasons for a case not being resolved on a setting can range from a flat-out assertion of innocence to something as simple as a prosecutor not being able to reach a Complainant yet.

If a case is headed to trial, a Defendant is typically in for a good wait of anywhere from 9 months to 1 year (or more) before they get their day in court. If they can't afford to bond out, they are going to be sitting in jail. A court can only try one case at a time. Some courts try two cases a week, but the vast majority only have time for one a week. If you are keeping up with the math at home, this means (at the most), each court can try between 50 to (ballpark figure) 70 cases a year under the most ideal circumstances.

That isn't going to happen. So, when cases set for trial start hitting about 100 in the courts, you are going to have Defendants cooling their heels for awhile.

But according to Ms. Olsen and the Chronicle, rather than try to get more money and approval for more courts, the answer is a Public Defender's Office -- because dammit, those attorneys taking appointments right now just aren't getting the job done.

Um, okay. Let's look at some of the things that Ms. Olsen erroneously asserts in her article:

1. "None of the lawyers are routinely required to document the hours or provide details on how much they worked on each case" -- Oh really? Because the last I looked there was a form that had to be filled out for all out of court hours done by an appointed attorney on a defendant's case. An attorney has to keep up with that if he wants to get paid for the work he has done. Whether it be legal research, talking to witnesses, or jail visits, they all have to be documented before the case is disposed of and the attorney is paid.

And guess what! Attorneys do like to get paid.

And by the way, a Public Defender's Office would alleviate this how, exactly?

2. "Harris County's court-appointed indigent defense attorneys often are paid a flat daily rate regardless of how much time they spend on cases in or out of court." -- That's just a flat out load of crap. I don't know who Ms. Olsen was talking to, but she got some bad information. It is true that an appointed attorney does get a flat fee when they are working a Term Assignment (aka Attorney of the Day/Week) and that there is a set fee for appearances in court, but there is absolutely an amount where attorneys are paid for their out of court hours.

Again, don't you anticipate that the individual Public Defender's are going to be paid a flat salary? If so, there will be even less incentive for them to document their out of court hours.

3. "The bills don't usually provide details on the hours worked, with the exception being capital cases." -- Seriously, Ms. Olsen, where are you getting this information from? You couldn't be more incorrect. On every appointed case that I have handled, it has been documented on all billing what I've done on the case.

4. "Any poor defendant with complaints about a lawyer generally must appeal to the same judge who appointed him or her." -- Yep, they can certainly start out with complaining to the judge and asking for a new lawyer. And judges will listen. But they typically won't remove an defense attorney just because the attorney can't get the defendant the exact deal they wanted. It isn't unusual for attorneys and their clients to butt heads, but if a defense attorney's representation is really egregious, the Judge of the court isn't the only person they can complain to. There's this little-known organization called the State Bar . . .

And once again, I ask the question, how does a public defender's office help this? A judge can remove an attorney from a case if he or she appointed them. Do you really think they will be able to do the same for a public defender who is actually assigned to the case?

I'm in complete agreement with what Judge Michael McSpadden said about the topic in the article: "The people who think the public defender system is going to cure all ills in our system are crazy."

He's absolutely right.

I wonder if the Chronicle has thought that part out yet, while they are busy revamping the criminal justice system.

There are some other things that can be done to alleviate the amount of defendants who are languishing in the Harris County Jail, including revamping the bond schedule. I've got a few thoughts on that, as well, but I'll save them for another post. In the meantime, maybe the folks over at the Chronicle ought to be spending more time working on how to boost sales revenue rather than sponsoring an ill-written and poorly researched article like Ms. Olsen's.

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 ...