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.


Anonymous said…
Denise does not have the caseload her underlings do. It is hard to believe she wasn't aware of everything in the file when she took the time to present the case to two different grand juries.

Murray, you present two extreme scenarios where Brady is not disclosed. I suspect most violations fall somewhere in the middle. A prosecutor may become convinced of the defendants guilt and not want the jury to be caught up thinking about a particular detail. The problem is that prosecutors shouldn't get to make that call.
Anonymous said…
Anonymous said…
For the most part Murray, I agree with your post. Two exceptions: I was at the hearing and the ex-detective never said he "intentionally" left out the detail. And there was never any doubt as to who the defendant really was in this case. The teenage girl only first said it was a "black man" because, while she was ready to admit to being sexually assaulted, she wasn't ready to identify her father's best friend, who also lived on her street, as the man who sexually assaulted her.

As for anonymous 2:21, Darin was never accused of any wrong doing. In fact, Lisa, Denise, and Stradly all three testified to Darin being nothing but above the bar. It is my understanding that he came in late on the case and assumed defense knew about the exculpatory evidence since it was contained throughout the record that he reviewed when he came in on the case.

I also understand that Lykos and Leitner support Denise.
Anonymous said…
Okay people. Let's review. Denise blames her para legal because she knows that the DA will fire her. Limp Punk leitner comes out and says he suppores her ? Hahahaha. What a joke. He is going to get rid of Denise bc that's what they do. Screw up in any way and you are done. Get ready joni/kaylynn/maria/terese and any other appointee. What goes around comes around. Gotta love real justice.
Anonymous said…
I think you're way too nice to Denise, I guess you never worked with her. Those who have know she plays way to fast and loose with the rules. I thought it had finally caught up with her, but no such luck. She's a "win at all cost" prosecutor and if that means not turning it all over to the Defense then so be it.

In this particular case, the Defendant had previously been no billed by a grand jury and the case was represented. Denise told Bill and Lisa she had presented "all" of the evidence, including the IM messages discovered after a jury was picked, when she represented the case to a different grand jury. It was later learned thru 2 State's witnesses the IM messages weren't turned over to the State until April of 2009, long after the Defendant had been indicted. And these IM messages were never shown to Bill or Lisa, the State relying on "them being in the file." Of course when Lisa reailzed there was something in the file she needed to see the file was all of a sudden closed because it was organized for trial. So, don't rely on an "open file policy" when the file has been closed to the Defense. And in Child Abuse generally they won't give you the entire file. So the Defense would have to know there were IM messages in the file in order to ask for them.

I'm sure Bill and Lisa neither one took any pleasure in having a hearing to determine if there had been misconduct, but when the prosecutor has lied to you and not turned over material you believe to be Brady it makes you wonder what else may be in the file that's Brady.
Anonymous said…
I know Denise and do not believe she would risk her license just to win. I suspect Denise just relied on the open file policy to comply with Brady if she was aware of the statements in the video. The DA's office has relied on the open file policy too long. The only way to change this is through training of the new prosecutors and retraining of the older prosecutors. I know I had gone to a written Brady notice in most of not all of my cases long before leaving the office. So Roger, how is that training coming along? Oh, I forgot, the primary training is to make the DA look good. Well, the DA does not look good. Perhaps it is time for professionals to take over training and by that I mean professional prosecutors not politicians.
Anonymous said…
What is most frightening about this case is that a Division Chief of the DA's Office (backed up by Durfee) thinks that the law is that an open file is Brady notice. That is NOT the law which the Judge specifically stated. If this defendant hadn't had the money to hire 2 lawyers, I wonder if lesser diligent attorneys would have discovered this Brady buried in the file? I know from speaking with Lisa and Bill that the decision to have this hearing was one both did not want to have to make. But, not only was the information not specifically shared, but Denise continued to tell them lies about the evidence and when it was known during the trial. That is a fact that is not being shared in the media or by Durfee. And if she's lying, then you have to wonder why?

I for one am glad the defense requested the hearing. This needs to come out. It needs to stop. Oncken needs to be accountable.
Anonymous said…
Now this is bad. This is real life misconduct. This is the sort of stuff that causes wrongful convictions....

C'mon, saying open file is good enough in a child rape case with a delayed outcry and no physical evidence... Those cases are made on inferences, circumstances, and psychological bulslhit- all of which can be controlled by the prosecutor.

That is disgustingly bad. I do not anticipate Lykos will tolerate this and she shouldn't. A knee jerk reaction would not be inappropriate nor would it be a knee jerk reaction after a judge officially ruled on this and the HCDAO was represented in the hearing.

ACHL, you are just being a diplomat but this isn't the situation to be diplomatic.
Anonymous said…
I heard the investigator was Donald Wine? Denise was his boss wasn't she?? WTF
Anonymous said…
How can they discipline Mark and Rifi for a judge granting a Batson challenge and not punish these guys when the judge finds they knowingly withheld Brady material?
Anonymous said…
Having been a prosecutor for years, I was not surprised when I heard that Denise Oncken might have hidden Brady. Sadly, I would not put it past her. Just ask others that worked for her in the Child Abuse Unit, including Lisa Andrews. Murray, your logic on an open file policy is flawed. I realize that prosecutors are over-worked and have large dockets. But, you know what, so do members of the defense bar. A policy "Oh, you can find it in my file" is not what Brady stands for. Brady is law school 101....if it has anything to do with THE GUILT OR INNOCENCE OF THE ACCUSED OR CAN MITIGATE PUNISHMENT it it Brady and you turn it over. It is plain and simple. Defense has no duty to SEEK AND FIND. STATE HAVE EVERY DUTY TO DISCLOSE. No one who works in the criminal justice system wants an innocent person to be convicted. For the most part, no one wants the guilty to go free. That is why this is so important. This is much more egregious than any Batson violations could have been. Denise has been a prosecutor for years....longer than me. She knows this, and you know what, she's knows Brady and simply ignored it, hid it, or dropped the ball. Shame on her and shame on Patsy and Jimster for standing behind her. She should, at the very least, be sanctioned. If you read or watch any news outlets, people are ashamed of the criminal justice system. They constantly berate prosecutors and defense attorneys. They talk about public defender offices and how all will be fixed. That's just plain BS. If a prosecutor can't get it right or won't try or is just too fricking lazy to get it done or to frickin political, we all lose....just ask the Duke LaCrosse Team and Michael Nifong. We went through a horrible year of negative media because of "the Chuckster". We were called racist, unethical, and that we didn't pay attention to Chuckster"s administration by this current administration while campaigning....none of which was true. We lost the battle, and shouldn't have. So, I have to ask Patsy and the Jimster....JUSTICE RUN AMOK OR JUSTICE POLITICAL? It is time to answer.
Anonymous said…
From watching much of the trial and talking to the lawyers, here's what I learned. Yes, anon, the investigator was Donald Wine when he worked in the DA's office under Oncken. This case was originally no billed after Eileen Bogar presented it to GJ and the defendant testified. The cw's family complained. Oncken criticized Eileen thoroughly saying she didn't do a "thorough investigation". Oncken had Wine do a followup investigation when he was assigned to her in the Child Abuse Division. That's when the video statement of the "important witness" was taken. Wine did the supplement omitting the Brady material. You connect the dots.
Anonymous said…
Without question, both prosecutors should be disciplined by Lykos. Both were responsible for the case and both were ethically bound to make sure all Brady disclosures where made to the defense. This doesn't compare to the Batson fiasco. This is much much worse.
Anonymous said…
True Test of Cronyism:

Who did Denise and her family support?

I am willing to bet she wasn't an out front Siegler supporter. Leitner, quit being such a god darn whore.
Anonymous said…
I recall that Darin has been on this case for 6 months. He has enough tenure to know that kissing ass is not as important as doing the right thing. He also knew Denise's reputation going in. Shame on him as well.
Anonymous said…
I am a prosecutor and although I am familiar with Brady no one in the former or the current administration has ever bothered to explain to me (or to the best of my knowledge my colleagues) how to best fulfill my obligations under Brady. Do I have to underline or highlight the potentially exculpatory or mitigating information in the offense report before I hand it over? Do I have to file a separate notification motion?
Regardless of whether the false allegations made by the complainant that the perpetrator was an unknown black male were contained in the offense report, what is most troublesome to me is that nowhere in “the file” or the offense report was there any mention of the instant messages between the complainant and potential witnesses where that false allegation was made. Also several witnesses were explicitly told by Denise not to speak to any member of the defense team. Those instant messages could have been vital information that the defense might never have stumbled upon. When asked point blank, Denise told the attorneys for the defense that she had ABSOLUTELY presented the evidence of the instant messages to the second grand jury. When it became obvious that was an impossibility because the IMs weren’t received by the State until long after the second grand jury heard the evidence, Denise testified under oath, that she must have “misunderstood” the question. Really???
Denise’s own paralegal testified that Denise directed her to prepare an inventory of the evidence that would be initialed by the defense attorneys after they reviewed each document. The paralegal testified that there is a standard inventory applicable to all child abuse cases. In addition to that list, she also prepared a specific list tailored to this case. There was no category for IMs. How in the world was the defense ever supposed to find out about those messages-the exculpatory evidence-if they weren’t in the file or mentioned anywhere in any of the materials the defense reviewed?
It should also be noted that when the defense attorneys tried to review the file, Denise made it cumbersome and difficult, even going so far as to tell Ms. Andrews that she could not review the complainant’s statement on the eve of trial because all the evidence had been “organized for trial.” I have never closed a file to defense counsel-not before trial and not during. There is no organization system I can contemplate where pulling a DVD from a manila folder would somehow disrupt the State’s organization. Denise’s paralegal testified that Denise was irritated that Ms. Andrews wanted to look at the file so much.
Denise should absolutely be punished. Leitner and Bridgwater would not have stood for that kind of deceit and manipulation of the system when they were defense attorneys and they can’t and most certainly shouldn’t stand for it as prosecutors
Anonymous said…
Turn over only what is required at the last possible minute. This happens frequently in the specialized divisions. Why the need to limit preparation is confusing.

Frankly, this is a result of the new administration instilling a win at all cost mentality on any case that could become media worthy. Prosecutors are so afraid to lose now they do this. If they lose, they have to explain why and don't get promoted. The administration is so ripe that they are not sophisticated enough to look beyond wins and losses (personally I don't think they have the capacity but I am being nice).

The prosecutors who succomb to this will get their conviction but very well may escape justice.
Anonymous said…
Yea, 9:15 pm, Darin has "been on this case" about 6 months. However, it wasn't until about 6 months ago, just before Darin got on the case, that the Instant Messages were made known to the State. When Darin got on the case, he assumed that the defense knew and had everything Brady. Don't you think that if the defense thought that Darin did something wrong in this case they would have called him to testify last Friday? Darin Darby is a good prosecutor. Don't blame this on him.
jigmeister said…
I am afraid this caldera has been building for years. Regardless of any disciplinary action, it seems time to establish a written Brady policy that both sides of the aisle agrees satisfies the law and it's purpose. The criminal justice professional is already held in low esteem by the public; it's time to stop justifying it.
Anonymous said…
Perhaps I'm missing something, but do I understand correctly that defense attorneys went to trial without reviewing ALL the taped interviews and taking notes and knowing exactly what was in them? Because while the Brady violation is inexcusable for a prosecutor, not looking at every bit of available evidence prior to trial is equally inexcusable for a defense attorney.
Anonymous said…
That "lack of diligence" is often called "incompetence."

You didn't really excuse her action, and you outright say you are not, but you go on to mention how these things happen and ADA's have huge case loads. I think you're on record as saying that when defense lawyers have similar case loads they cannot effectively represent their client and are prone to making mistakes that are indicative of their incompetence.

So, let's be honest and admit that it goes both ways.

Very few people believe that DNA results are intentionally withheld. But I do believe that confessions are withheld, because the prosecutor didn't "believe" them, and as a result it wasn't "really" exculpatory. And I believe that police tactics lead to false convictions more than DA misconduct does, but DA's just roll with what's in front of them and don't adequately review their own case.

Confirmation bias is, in my opinion, the largest problem in prosecuting defendants.

Also, although defendants aren't really entitled to see witness statements and other file materials, yet the prosecutors aren't properly reviewing them, how can there be an effective trial? It's paramount to secret evidence in a Patriot Act case, if you ask me. Evidence is never viewed by the defense and the prosecution, if they review it, may dismiss it in favor of their own confirmation bias.


Isn't this story, which you agree was intentional, proof?

Anonymous said…
"But I do believe that confessions are withheld, because the prosecutor didn't "believe" them, and as a result it wasn't "really" exculpatory. "

Of course you "believe" that, because you have no real basis in fact for believeing it.
Xi said…
As Defined by Pat "the Troll" Lykos:

1. Experienced Rock Star prosecutor with national reputation who has an incredible trial record based on her obsessive preparation coupled with charismatic courtroom presence and ability. The record speaks for itself.

Political Pat condemns this behavior as bad and corrupt based on unsubstantiated innuendos and rumors.

2. Prosecutor knowingly withholds exculpatory evidence and is found by a trial judge to be in violation of Brady.

Political Pat praises and defends this prosecutor's behavior.

Rationale for this seemingly illogical assessment:

Prosecutor 1 opposed Political Pat while Prosecutor 2 supported Political Pat.

Bottom Line:
Political Pat is not cleaning up political corruption at the Harris County District Attorney's Office she is taking it to new heights never imagined in law enforcement. Shame on us Harris County!
I support my elected DA said…
I will put my faith in Pat Lykos any day for turning out the truth and justice that people elected her to do. Murray quit being a cry baby and just say job well done Judge Lykos
Anonymous said…
Peel a layer back and let's look at this from purely a trial strategy perspective. What you will find is a reflection of the talent and leadership that is left at the DA's Office.

Rule 1: If there is a problem issue in a case, lessen the potential damage by dealing with it up front. Tell the jury immediately, confront it, and move on.

This is one of the oldest rules in the book.

Rule 2: You are a prosecutor, the jury should be able to trust your every word. If there is ANY sign of dishonesty on behalf of the prosecutor or law enforcement, you have severely compromised your case.

The outcry issue could and should have been dealt with long ago. This would have a been a non-issue had the government not decided to hope the defense would not find it. It was a way of cutting corners and not doing the right thing.

What those two Batson prosecutors did was actually competent... but this...

This is a reflection of the trial leadership that is left in Lykos' cupboard. Many times political hacks are just that because they couldn't try cases. Leitner was never known for his judgment or trial skills. Lykos is well known for her lack of ability. Start going down the list of Bureau Chiefs...

Talent exists at that office but most of the talent has one foot out of the door and has been stripped of their passion because of the consistent absurd leadership decisions that are made. These two prosecutor should not just be reprimanded for their unethical decision, they should also be reprimanded for their judgment.

Of course, those in a position of leadership would have to know what judgment and competence was before they made that determination.
Anonymous said…
Anon 10:38, you are risking the wrath of "I Support My Elected DA" who is the blue haired older sister of "I Support My Elected Obama". Who needs dem stinkin' qualifications when political bullshit is so much easier? Speaking of incompetence, can you imagine Leitner as Chief of Staff on a national level? Remember boys and girls it could always be worse.
Anonymous said…
"I will put my faith in Pat Lykos any day for turning out the truth and justice that people elected her to do. Murray quit being a cry baby and just say job well done Judge Lykos"

And I'll bet you've got a pile of old rotted teeth under your nasty little pillow still waiting for the ever elusive Tooth Fairy.
Anonymous said…
It's time for Denise Onken to pack up her stuff and get the hell out. How dare she disgrace all of us like this. Have we not been degraded enough already? Mark and Rifi were publicly humiliated for DOING THEIR JOB THE RIGHT WAY and Kelly before them. Now we have a prosecutor who DID HER JOB THE WRONG WAY and she is coddled by the media and praised by Lykos and Leitner. FUCK WHAT THIS OFFICE HAS BECOME! And for the trollettes that think Judge Pat is all that-- fuck you all too for being that incredibly oblivious to reality.
Anonymous said…
Lykos will never punish a division chief. It would look bad.
Anonymous said…
For those of you referring to Judge Pat as "Chuck Lykos" that is over-the-top insulting to Rosenthal. He has been punished enough for his sordid transgressions.

Anon 1:20,
100% agree that Denise Onken needs to go. This ain't her 1st rodeo.
Anonymous said…
You were good to get out when the getting was good....twice fired beats the heck out of working for a Craig Watkins wanna be.

There will be a media explosion very soon......there's just way too much good old boy dealing going on to keep covering up and ignoring.
One thing certain is that the media folks are the vultures of humanity and Shield Law loyalty to Lykos won't be enough to stave off a feeding frenzy when one news outlet starts the expose.
The DA's office will be decimated......and at this point, who cares?
Rage Judicata said…
The DA's office will be decimated......and at this point, who cares?

I do. This incident is proof positive that the cuts haven't been deep enough yet. So keep on decimating...
Anonymous said…
Ditto on Denise Onken anon 2:59. An oversight is one thing a deliberate attempt to deceive is quite another.

We all should try and win as hard as we can. Where Denise Onken is confused is that by winning at all costs a prosecutor wants to achieve justice at all costs; not convict at all costs regardless of guilt.
Pat Lykos' political ally, Denise Onken, actually is what Pat Lykos accused others of who weren't.
Disgusting how politics works and that's precisely why we needed a prosecutor and not a politician as DA.
Anonymous said…
It's a shame your parents didn't love you as a child you poor bastard.
If your daddy had been better connected you wouldn't have had to settle for VMI and all the mediocrity that went with that.
As for the etiology of the HCDAO's decimation you have it ass backwards once again. You're always on the outside looking in. But hey, the way things are going you would be perfect for an actual inside gig at the L&L DA's office. I know, you make way too much money in your lucrative private practice to go work as a gubment bad so sad. It's just that you and Patsy would work so well together......your commonality with respect to intellect, character, morals, work ethic, empathy and criminal law experience is a virtual match made in Hell. So rethink it Rage...
Anonymous said…
Darin was just doing his job covering Denise's screw-up. He was merely acting in his capacity as a quasi defense atty., if you will, for an office employee who acted very inappropriately.
Darin has been put in very difficult positions over the past few years dealing first with the Rosenthal crap and now putting out all of the Lykos and the gang's brush-fires. It was just a matter of time when one of the rogue ADAs befriended by Lykos would get caught pulling a stunt like Denise did. To blame Darin for Denise's bad behavior is like blaming a defense lawyer for his/her client's bad behavior. So let's place the blame where it belongs on this--squarely on Denise Onken's arrogant shoulders and ultimately on Pat Lykos unless she takes swift action in strongly disciplining one of her own.
Anonymous said…
for once murray's commenters agree with the chronicle's. everyone seems to want denise onken fired.
Anonymous said…
Isn't this where Mark Bennett says "File a grievance?" Are the defense attorneys going to file a grievance? They should -- regardless of what Lykos' gang does (or does not) do.
Anonymous said…
One thing is certain, Lykos is loyal to one person and only one.... Limpin Jimmy Leitner would not be spared if it would benefit Patsy.

In terms of Denise's lackey Darin, I would feel bad for him if he got in trouble trying to do the right thing, but that isn't the case. I just don't see him as a victim.
Anonymous said…
The defense is ethically obligated to file a grievance. Ironic that the first person to actually (as opposed to a trumped up violation to justify a Lycos decision) commit a grievous violation is one of her top supproters.
Anonymous said…
Denise has been a problem for years. Her win at any cost outlook long pre-dates Judge Pat. She's ruined a lot of lives for the sake of a win and it is long past time she be fired.
Anonymous said…
This comment section is starting to read like the Chronicles—everyone is spouting their preconceived prejudices and emotions without resorting to facts. I have yet to read a clear first hand report of exactly what happened and for a blog read by lawyers and people interested in the legal process the reliance on heresy is stupid. Everybody step back, review the facts and make a decision rather than “all ADA’s are out for convictions at any cost” and “all defense attorneys are all too lazy to read the files thoroughly”.
The issue raised in the background for all this is what access does the defense attorney get to the prosecution’s files. So far as I know there is no policy (pre or post Pat) for the office. Both sides are busy; both sides want to see the file when it is convenient for them. I also know that many defense attorneys have abused this right by copying information without permission, trashing the file (either intentionally or being pigs), or most often by making and breaking appointments the ADA has made in good faith without bothering to let them know and then complaining they didn’t get to see the file. Nor does their being the defense attorney allow them to have unlimited access to a file a prosecutor might also need. The ADAs cannot hide facts of the case from the file or the defense attorney either. Word product--yes, lab tests, interviews, and facts--no. What some folks see as Brady material others may not. This would be a good subject for RATIONAL discussion.
The razor’s edge is what needs to be available and when. The administration which believes in letting its employees know its policies via press releases needs to address the issue. That however would require that they take responsibility, something that has been thin on the ground with Lykos and company. Would they bother to consult some of the experienced prosecutors on their staff, unlikely?
What has made me angry at posters here has been all the comments about “spineless” ADAs and accusations that so-and-so is a Lykos pawn. In most cases I know it’s false—some of the folks accused of being pawns were big Kelly supporters and were at the restaurant with her on election night. The majority of ADAs are just hunkered down and trying to do the right thing. They are stuck with an administration that is so out of touch and arrogant they could be in another building and it would make no difference and has made a difficult job so much harder. It’s so sad to see morale so very low. But they know the administration is not all of the job—some do the job because it’s a job, most do it because they believe in what they do and are trying to do it under appalling conditions.
Anonymous said…
The Denise Onken Dilemma:

If Pat Lykos does not terminate Onken then her mantra regarding cleaning up corruption at the HCDAO is a flagrant joke.

If a grievance is not filed against Onken then Bennett is a joke.

Personally I believe neither will occur because Onken, Lykos and Bennett are 3 big jokers who are all talk.
Anonymous said…
Hilliary's 3:00 AM phone call moment has arrived.....will Denise Onken get her pink slip and a grievance filed or will Patsy sleep through the call.

The troops anxiously watch to see if political cronyism will trump leadership once again at the Harris County District Attorney's Office.

BTW 7:35, Denise Onken showing up at a restaurant on election night to "support" Kelly is called hedging one's bets not supporting a candidate. How would you define spineless pawn, bubba?
Anonymous said…
I was a Harris County ADA for nearly 8 years. I routinely called defense attorneys to give them information that was anywhere close to Brady. And every time I did, I was met with a shocked attorney on the other end of the line. I heard time and time again, "Wow! This is only the third time in 20 years that an ADA has ever called me with Brady information!" I had a hard time believing that those calls were so rare, but apparently they were. It is natural for trial attorneys to want to hide the ball from the other side. But prosecutors are supposed to do what is just. What is just is picking up the phone the second you discover anything that is Brady and disclosing what you need to disclose. To do less is not just. If you still believe you have enough evidence to go forward, then revealing the Brady information won't hurt your case. But not revealing that information may just permanently damage your reputation.
Anonymous said…
@ 7:35,
What facts are missing exactly? Are you saying that the judge really didn't find Onken to have intentionally withheld exculpatory evidence?

Too bad you weren't Ms.Onken's chief early on in her career.
Anonymous said…
"I think you're way too nice to Denise, I guess you never worked with her. Those who have know she plays way to fast and loose with the rules. I thought it had finally caught up with her, but no such luck. She's a "win at all cost" prosecutor and if that means not turning it all over to the Defense then so be it."
*Lykos' campaign theme comes full circle....except this time the allegations are actually true

"Perhaps it is time for professionals to take over training and by that I mean professional prosecutors not politicians."
* that's not what the voters wanted so don't piss off "I Support My Elected DA" and her blue hair buddies

"The majority of ADAs are just hunkered down and trying to do the right thing."
*ADAs aren't cowards they just represent a form of cruel kindness?

"How would you define spineless pawn, bubba?"
*Hmmmm.....Denise Onken.
Anonymous said…
A HUNG JURY! Who'd have thought it?

I'm sure it'll be reset for trial post haste---too bad the defendant wasn't driving a Wrecker truck. LOL
Anonymous said…
Anon. 3:08:

Now THAT'S funny!
Anonymous said…
Stradley would have been better off if his client had been found guilty. Then the Leitner/Vollman Appellate team would have told him to file a motion for new trial so they could dismiss his case.
Xi said…
So Murray see if I got this right:

Justice at all costs, AKA pejoratively as "winning at all costs", is only a bad thing if you're a really good prosecutor who calls bullshit on incompetent Pat.
However, "winning at all costs", regardless of actual justice, is a good thing so long as you're one of Pat's Pet Bitches?

The Lykos "Rule of Law" is quite a concept!
Anonymous said…
Has Ted Oberg called you on this mess yet? I understand he wants to do another "interview" with Little Jimmy Leitner. That should be a hoot.
Can you imagine the material that will be available for Lykos' opponents in 2012? Too funny!
Anonymous said…
Pat Lykos is without question at fault if she doesn't get rid of Oncken but do not blame Oncken on the Lykos administration. She is a product of the Rosenthal administration. Holmes had a 0 tolerance policy for this kind of crap but once Rosenthal took over, if you were part of the club, nobody second guessed your decisions. Until everybody with the Rosenthal mentality is purged from the office it will be plagued with problems. Lykos must be willing to continue to weed them out without regard to their pledged support or she is no better.
Anonymous said…
So, on the one hand, earlier this year Lykos publicly flogs two of her prosecutors even though the Judge did not find willful violations of Batson by the prosecutors, and, on the other hand, she's nowhere to be found after a Judge makes a finding that Onken directly violated Brady? umkay. The deviant side of me hopes that the Defendant is convicted so as to pour some additional gasoline as this fire.
Anonymous said…
A mistrial was granted. AHCL, do you think the case should be retried after this?
Anonymous said…
Funny, the gang tries to "win at all costs" and can't even do that.
Anonymous said…
Pat Lykos is a political whore not a prosecutor. As such, Lykos' decision regarding whether or not to terminate Onken will be based solely on the political impact to her not the HCDAO.
JBH was a main of principle and honor. Ms. Onken is fortunate not to have Johnny at the helm at this point in her career.
Anonymous said…
Agree anon 10:33.....but Political Pat is worse than Rogue Rosenthal ever thought about being.

Lykos could give a shit about justice. Doing the right thing because it is the right thing to do would never enter her mind.

At least Rosenthal wanted a just result to prevail. Unfortunately the end justifying the means mentality went too far under his watch; but it was also unfairly applied by association to others in too broad a fashion.
Rosenthal was just not the sharpest knife in the drawer when it came to personal morality, trial advocacy, IQ or managerial skills and he took those that were, down with him.

In balance, Lykos is personified evil while Rosenthal is just stupid.....neither should have been DA and the ADAs under each have, with rare exception, been too chickenshit to stand up in ways that count.
Anonymous said…
Darin Darby is no 'lackey'. Ask Bill Stradley and Lisa Andrews. My guess is they would tell you that Darin is a straight up prosecutor and a damn good trial lawyer. He's probably one of the best trial lawyers left at that office. Why do you think Denise got Darin on the case to begin with!!!
Anonymous said…
ANON 4:56.

AMEN AMEN AMEN!!!!!!!!!!!!!!!!!!!!!!!
Anonymous said…
New policy changes at HCDAO:
a. when defense attorneys are deemed not up to par the prosecutor(s) shall "tone it down a notch" (as defense attorney Neal Davis suggested in the Chronicle comments) so as not to make the defense attorney or defendant look bad
b. Brady violations are okay if you're a Lykosite (as suggested by former defense attorney Little Jimmy Leitner) and therefore your courtroom prowess is not up to par with opposing defense counsel.

Thus endeth the lesson in judicial equity at the new and improved Harris County DA's office.

Murray, what is the line on whether or not Leitner will be instructed by Lykos to dismiss Susan Wright?
Anonymous said…
Don't be silly 9:45 Leitner will instruct that Wright be plead out. Retrying punishment is too big a risk for The Lykos Gangstas but I can't imagine a dismissal under the circumstances.
Anonymous said…
The line is 18:1 that Wee Man Leitner offers Susan Wright 20yrs or less. But if Susan is smart enough to reject the plea I'm offering 6:1 odds she gets an outright dismissal.
Anonymous said…
If a campaign contribution to the DA is not made contemporaneous with the donor client's dismissal by the DA, is that sufficient grounds to rebut the presumption of undue influence?
Murray Newman said…
They won't do an outright dismissal on Susan Wright, because her conviction still stands. My prediction is that they will throw her a ten year offer. She's was convicted in early 2004, and she would be eligible for parole immediately.

I think an administration that had any fortitude to it would go to trial on punishment only and see what happens. We had asked the jury for 45 years during punishment the first time and they came back with 25 years. Who knows what would happen on a new go-round.

But I doubt the Lykos Administration will have the guts to see.
Xi said…
That would be political suicide for the old hack. Lykos cannot afford a plea of 10 years and have any credibility left in the community....even the old blue hairs would abandon her. A plea offer of anything less than 20 years would result in a Mike Dukakis/Willie Horton issue in 2012.
If Wright does not take the offer of 20 it will go to trial on punishment and if the prosecutor gets an undesirable result Lykos will simply fire her/him and blame Rosenthal.
Never forget that Lykos is out for Lykos and then you will be better able to predict her actions.
jigmeister said…
Perfect opportunity for Patty to try a case that can't be lost, though Kelly would be justifiably revolted.
Xi said…
But Jigmeister, if Lykos seized the opportunity you suggest and invariably fucked up the unfuckable how could she subsequently blame Rosenthal?
You underestimate the vile deception that defines Lykos and her Gangsters.
Anonymous said…
I would mention that in this whole affair, that Denise Oncken as the chief of the division has a very small caseload and is not buried in work like most of the other prosecutors.

In addition, there are many, many prosecutors who during their tenure in that division have had to try a case or two with Oncken. They are placed in a terrible position where if the case goes south, they shoulder the blame, if it goes well its all Oncken's doing.

And most prosecutors who have tried one with her, swear never to do it again if they can help it. But no way will that administration ever punish her, or remove her from that position, which is a shame, there are many good prosecutors in that division, and they could do much better with good support and leadership
Anonymous said…
The truth is that the prosecutor complied with her duty by making the entire file available to the defense lawyers. The defense lawyer were lazy and failed to read and watch everything in the file until days before trial. Prosecutors should not have to babysit the defense attorney during discovery.
Anonymous said…
To Anon 11/2/09 at 930am.
The problem is that Oncken LIED about what she had when. She does NOTHING to restore the public's faith in the prosecution. And I can't say that I blame them. Unfortunately, we can't blame this on the Chronicle.
Anonymous said…
I know you worked at the DA's office and are still loyal to your fellow co-workers; but, if you think the DA's office doesn't purposely hide evidence you haven't been a defense attorney long enough. It happens all the time.

Also, I found it funny (ironic) that Lisa Andrews was accusing a prosecutor of wrong doing. Lisa was also a very unpleasant, unfair and untrustworhty prosecutor who had a terribloe reputation with the defense bar.
Anonymous said…
Denise Oncken is not only incompetent in the prosecution of her cases, she is also vindictive and incompetent both professionally and socially. She does not deserve the menial title she holds.
Anonymous said…
She's is a known liar and will do anything to cover her butt. Including throwing all those in her way under the bus. She should be removed as ADA.

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