In response to the tremendous Brady blunder committed the week before last by the Harris County District Attorney's Office, fearless leader and speed-spender Pat Lykos decided to jump into action. Rather than take any sort of definitive action such as publicly calling any prosecutors names or issuing any type of apology on behalf of the Office, Lykos decided just to throw some money at the problem.
She hired TDCAA representative Clay Abbott to come to Houston and give a lecture on Brady material.
Now, I like Clay Abbott and he is a very good speaker. He speaks every term at Baby Prosecutor's School in Austin about Ethics. In addition to being an incredible resource on DWI cases, he is also a great teacher. I've got no gripes about him.
That being said, the early reports that I've gotten about the training seem to indicate that the message was put forth that an open file policy was adequate to comply with Brady. I wasn't there, so if anybody wants to chime in on that, please do so.
I am kind of curious as to what old Roger Bridgwater is doing to earn his keep around 1201, though. Last I heard, he was the head of this fabled "Ethics Bureau" that Lykos promised during her campaign. I wonder why exactly he wasn't the one spearheading this project. You would think with as cash-strapped as they are, the D.A.'s Office wouldn't be doing so much out-sourcing.
Then again, I have heard that since the Donna Goode incident, Roger doesn't exactly have the street cred with his underlings like he once hoped.
The biggest question to me is whether or not the Lykos Administration thinks that this little training session will serve as the only type of answer to the Brady disaster. If so, I don't think any of us should be expecting this story to be ending any time soon.
37 comments:
The talk was that an open file was the minimum that needed to be done. I never heard anyone say that an open file was enough.
It is worth noting that neither Lykos nor Chow were there. Now that is an example of good leadership!
as I recall from law school, Brady requires the prosecution to GIVE the defense the information, not just make it available for the defense to find if they look hard enough
Anon 8:41, if I give you my open file, I've given anyone but a lazy moron all information contained there. If someone is defending a case, they actually need to sit down and read what they are given. Relying on the prosecutor to spoon feed you isn't compatible with the 6th amendment.
The issues arises when prosecutors like Denise or Warren D, as in the tow truck driver case, don't put the exculpatory evidence in the file. Maybe it is because of an ego or fear of consequences from a loss but some people don't make it known. They cheat to win. The focus turns from the law to winning.
Prosecutorscan't break the law to enforce the law. Defense lawyers can't lie, cheat & steal to win. Tyler Flood learn this. Cases can never be all about the lawyer's ego or justice loses.
Speaking of "Tyler Flood", what a douche-bag! I find it incredible that there is no accountability for his behavior. He's celebrated for lying and cheating. This just makes me sick!
An open file is not the issue.
If a prosecutor becomes privy to any information that could "credibly" be considered as exculpatory it must be disclosed to the defense.
There are no ifs about it and the credibility standard must be reasonable; if it is borderline, the prosecutor must err on the side of disclosure.
Winning at all costs for a prosecutor should be insuring that justice is served at all costs not merely that a particular individual is convicted.
When Denise Onken type tactics such as Brady are tolerated and glossed over it ultimately jeopardizes the integrity of other prosecutors.
When a prosecutor who works her butt off and demonstrates extraordinary advocacy skills to win a very tough cases is tainted with the pejorative "win at all costs" label rather than with: "thank you for working so hard and ethically to see that justice was ultimately served"; we should be ashamed.
Justice has been replaced with pure politics at the HCDAO and no one seems to have noticed or cared.
Seer, regardless of you opinion, I suggest the opinion of the Supreme Court of the United States and well as other appellate courts might be the opinion that counts. Having said that, I suggest you read Brady and its progeny. It may be with the thought there are lazy defense attorneys that the courts have ruled as they have. Good luck with your current procedure for handling Brady.
9:02,
"Winning" ought to be when the correct and just result occurs; irrespective of the degree of difficulty.
Simply because a defense attorney is deemed to have "won" when his client is exonerated regardless of actual guilt; it does not follow that when an innocent defendant is convicted a prosecutor has won.....more has been lost than a mere statistic.
"Constructive disclosure" in place of actual disclosure at the expense of justice is what sets the 1/2 ass prosecutors apart from the rock stars.....so it looks like Onken ethics will soon set the tone.
When Judge Pat yaps about cleaning up corruption at the courthouse tell her Brady may be great for New England but it is destroying the HCDAO.
Lykos & Chow have not been and will never be real lawyers so they do not need legal training.
This administration has been more than fair to the defense bar. You now get offense reports, pretrial diversion and people to voice your opinions to if something goes wrong (and even if it doesn't).
In the meantime, one of your members Tyler Flood (HCCLA) gets in the newspaper and says what he says. Keep in mind this is the same guy that was defended on this blog. He showed he is no different than Andy Nolan. It seems to me that the HCCLA needs to get its act together before its members criticize the HCDA. We aren't going to defend your cases for you. Quit wining!
What I find appalling is that the training was basically designed to justify what Denise O. Did and make it accepted. The fact that they even said an open file policy is generally sufficient to satisfy Brady is so wrong its crazy. Bottom line, it has to be turned over. Orally, by motion, something.
What also is sickening is that Mark Donnelly and Rifi Newaz were basically nailed to the stake and what they did was not wrong. In fact, a judge specifically held that they didn't. However, in the Denise Oncken debacle, she was found to have violated Brady, and she lied. She is not disciplined, she is supported blindly? What is wrong with this picture? Oh right, I forgot politics. Its a game most prosecutors don't like to play, and aren't very good at. By the time Lykos is done with her politicking, there won't be many real prosecutors left at the DAs office. There will be a lot of political cronies.
I have worked with several defense attorney's that are prior prosecutors and several ADA's that are still in the office. Yes, I'm just a secretary and I do not claim to know the law. That being said, every and I mean every ADA and every ex ADA I've worked with have given me free access to the cases. I can call the ADA and ask if someone can review the file and given immediate approval. I don't wait for the ADA to run back to the office and finger through the file taking out what they do not want the defense to see. Usually they have one folder that says work product in the file and most of the time it's nothing more than an email or two. They tell me to take that out and give the defense the ENTIRE file. I always have the defense attorney sign the inside of the folder showing they've reviewed the file. Some defense attorney's I mark in the folder the amount of time they reveiw the file. Why, because I may have 2 redwells and they spend 15 minutes with it and that's it! So you want to blame someone, you need to be blaming the lazy defense attorney's that spend 15 minutes with a file or send a paralegal over to look at the file to prepare for trial when the defense attorney has not even looked in the file.
I can tell you when one of those ADA's have any concerns about Brady they are bouncing questions off other ADA's and the final answer, if you have any concerns give it to them.
Maybe those Defense attorney's running off at the mouth about the Brady issue should look at their own work ethics in defending someone and failing to dilegently review a file that is open.
And stop putting ALL ADA's in the same basket when one screws up. That's like saying ALL defense attorney's are sleezy. Bottom line, do your job because most ADA's do theirs without complaining about those sleezy defense attorneys. Well maybe they do complain about a few of them. But I can count the ones they complain about on one hand.
To all the Brady preachers: define "turn over" or "disclose" as it applies to a prosecutor's Brady obligations. And please cite relevant caselaw or statutory authority. I have yet to see this defined. And it is the definition of what is "disclosure" that is central to the argument.
Many people have said an open file isn't enough and that the evidence/information must be "turned over." Please tell me what the hell that means. If you are saying that a prosecutor must send you a brief entitled "The Weaknesses of My Case," you are flatly wrong.
It appears that many defense counsel and prosecutors are talking out of their ass. Kind of like when defense lawyers bitch about things that they are entitled to see when the CCP clearly states they are not. Most poeple in the criminal bar talk about what they think the law is without looking it up.
I would be interested in seeing if anyone can point us to a case to assist us in determining what is a proper disclosure. This would be helpful to prosecutors, defense lawyers, and judges. I have not been able to find this, but I'm just a dumb trial lawyer.
First, there is a big difference between a D.A. and a Defense Attorney. Only one has the power of the State behind them and can take someone's liberty away. The D.A. should always err on the side of caution and release any possible Brady material. If they have a good case, what does it matter?
That said, I agree with the secretary that there are many lazy defense attorneys out there. They don't review files thoroughly, might look at a video once, and never go to the scene. They take the first offer the state gives them so they can move on to the next case.
The real problem with Brady, and a lot of the issues at the courthouse is the intellectually dishonest judges that sit on the bench. The former prosecutors still think their job is to convict. Since the D.A. knows they won't have to sweat a motion to suppress, or worry about Brady, they get lazy. Lazy lawyers are not good lawyers.
Whatever happened to Lykos' blacklist of officers that commit perjury, or have sustained complaints of untruthfulness? Why are charges still being accepted from them? Why are they still being put on the stand and no Brady notice given?
Anon 9 20 am,
You are right.
Ahcl, don't let him slide on this.
Anon 8:58, I am at a loss in trying to understand your lack of knowledge as to compliance with Brady. When I was a law student I learned that words are defined by their common usage absent the legislature or courts providing special definitions. Keeping that in mind, to turn over would mean to surrender control of something to someone else, such as giving copies of text messages to the defense. To disclose means to make known such as giving notice a witness has identified or described the suspect entirely differently than the defendant would be described. Neither word means I have an open file and you can read it, it requires affirmative action on the part of the prosecutor. The prosecutor is not required to do a brief describing the weakness of the state's case. When I was a prosecutor, I resented having to point out Brady information to the defense especially if the defense attorney was one known for being lazy and was earning three or four times the amount of money I was earning. Regardless of my feelings, I tried to always comply with Brady. Sometimes I missed stuff simply because I did not understand the defense or the information just did not seem significant. Recognizing all Brady material is always the more difficult part of Brady for a prosecutor. The prosecutor has to step out of their normal mind set and try to think like the defense attorney. The simple part is notice-if you recognize the information is Brady, you must disclose (make known) or turn over (give copies). Short of that, the prosecutor has failed to comply with Brady.
While working as a defense attorney in another jurisdiction, I never received Brady notice. I handled a number of cases where Brady information was in the state's file and no notice was given. Like it or not, Brady should be complied with in each and every case. Likewise, the defense should understand not all failures to disclose are intentional acts of hiding information. Brady can and always will be a thorny issue to deal with.
It's not a "lazy moron" when certain evidence is not to be found in the DA's file (e.g., a supplemental witness statement taken by the investigating agency that is mysteriously not disclosed). One of the frustrating things I have encountered is law enforcement officers 'forgetting' to provide or inform the DA of additional evidence. I guess Kyles is supposed cover this sort of thing, but I do sympathize with conscientious prosecutors who have tried to provide all the known evidence and suddenly find themselves in an 'oh shit' moment on the eve of trial.
With a great deal of trepidation I submit the following, primarily since as I have read what in effect may only be fairly characterized as intellectual masturbation from the masses (or self-serving trivia), both prosecution and defense (and probably the TDCAA emissary as well) there is what may only be described as a rather elementary understanding or misunderstanding of both a prosecutor's responsibilities as well as that of the criminal defense attorney under Brady.
At the outset the decision in Brady is ostensibly not understood by either side of the bar. Brady held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to the guilt or to punishment, irrespective of the good faith or bad faith of the proscution." 373 U.S. at 87. It imposed no direct duty upon either prosecution or defense until application was made by the defense for exculpatory evidence.
Brady, however, is not the case which is dispositive of the issue under instant consideration. There are more basics directives which deal with the matter, namely the candor of a litigant with the court [3.03(a)(1)(5)]and the special duties of a prosecutor under 3.09(d), Texas Disciplinary Rules of Professional Conduct, and also Texas Prosecutor Standards and Guides, 5.1(e). {note-the Texas Disciplinary Rules on Professional Conduct are currently under consideration for revision/amendment, but for the issues herein, the provisions are still apposite.} I would suggest the uninformed read these provisions; I think they more readily address "Brady" (sic)issues. The bottom line of the foregoing is that although Brady does not place the proverbial "monkey" on the prosecutor's back, these provisions do place the right of the prosecutor to retain his or her law license in issue. Although a defense attorney might be lazy or even incompetent, it still is the prosecutor's duty to provide defense counsel with any and all exculpatory evidence, whether requested or not, regardless of the limited holding in Brady. In whatever manner or with whatever procedure the Harris County District Attorney's Office in the future can satisfy such a rudimentary requirement of due process it will curtail future episodes such as that which has given genesis to the instant snafu under discussion. [I would point out that in 2001 each and every prosecutor on staff of HCDA was provided with a writing addressing a prosecutor's ethical duty - a reading of that writing would not require a rocket scientist to understand that a prosecutor should turn over all exculpatory evidence whether requested or not and should not hide evidence). Although in no wise ascribing any credibilty to the reporting of the matter herein under discussion by the Comical, apparently the standards of the HCDA office have evolved in a different direction, notwithstanding the demogoguery to the Comical from the current administration to the contrary in its electioneeering and now its noticable silence.
C. A. Hartmann
C.A. Hartmann:
1 Does Pat Lykos have any duty to report Denise Onken to the Texas State Bar for her Brady violation?
2.If so, what are the consequences for her failure to so comply?
Note: I seem to recall JBH reporting the ethical lapses of ADAs under his watch.
To Black Ink: Your 9:22 a.m., 11/6/09 blog clearly demonstrates your clearly understand a prosecutor's responsibilites.
One of my favorite law professors while I was matriculating in the bowels of the basement of the Cullen Library at U of H was Dean Hensley. Whenever asked a question, however, by a student his well worn response was generally "Let me hedge my answer on that question." I feel compelled to adopt Dean Hensley's reply. It would be inappropriate of me in this forum to address your specific questions for a myriad of reasons, and I shall not do so. That said, you could research your "hypothetical" question in the Texas Disciplinary Rules of Professional Conduct.
As to the JBH HCDA office reporting ethics issue to the State Bar, such reporting would have been confidential if such reports had been made. I can comment no further.
One bit of personal philosophy on my part though - I said this to many prosecutors while I was with the office: some cared to listen, others I suspect did not - if you can not let the defense see and have access to your entire file, then you probably should not be litigating the case in the first instance. As to how one memorializes that access, I will leave that to the fertile imagination of the prosecutor, noting, however, in other areas under the CCP an "open file" policy alone has been found to be deficient in providing the requisite notice.
Inkman:
*I know Johnny Holmes and Pat Lykos is no Johnny Holmes.
*Pat Lykos could care less about reporting genuine ethical violations
*Judge a person by the company they keep not
Anon 10:48 AKA C.A. Hartmann:
We all can read between the lines and know JBH was a man of integrity and appropriately reported ethical lapses of the ADAs working at his pleasure.
The question you danced around is whether or not there are any real consequences for Patsy if she covers up for one of her pet underling's (Denise Onken)unethical missteps?
In light of the confidentiality of the DA's actions in this regard, another interesting thought would be: whether or not other ADAs, privy to the Onken Brady issue, would have an ethical obligation, independent of Lykos', to report this egregious offense to the Texas State Bar?
Just asking, since they sure as hell don't have my back and prosecutors seem to be held to a higher standard in these matters.
Murray,
It seems as if Lykos has confused "cleaning up corruption at the DA's office" with putting it in turbo drive.
I find it rather amusing that Lykos campaigned on an anti-good old boy system at the DA's office and re-establishing ethics. Lets see, who hired her unqualified cronies in high paying positions, who went after two prosecutors who had not violated any rules and then passed on another prosecutor when a court found she had violated Brady? That's right, Lykos is no Johnny Holmes.
1:46, it looks like Lykos has replaced the GOP platform with the GOB's (Good old bitch's).
HBIC:
Too funny sista'.
ROFLMAO
Y'all seem awfully confused on what you should and should not do to comply with Brady. And yet, no one asked any questions at the training. In fact, the rumblings were that everyone understood Brady and the training was unnecessary. I suggest if you have questions, you ask someone at the office that you trust. If they don't know, find someone who does. Or gosh, you are all so distrustful of everyone . . . you could, I don't know, RESEARCH it yourself. TDCAA has put out a freaking BOOK on Brady that is on most of your bookshelves . . . Might be worth your time. Your law license could depend on it.
Anonymous 12:56 p.m.
The last thing of which I ever have ever been accused is being a good dancer - just ask my wife - the only time that she has been able to get me on the dance floor is when we are leaving a party or when I am heading for the snack/adult beverage bar. That aside, I still submit that it is inappropriate of me to specifically comment upon the ethical duties of Lykos or for that matter any other people involved in this apparent snafu if for no other reason than that I have only hearsay knowledge of same.
However, recognizing that nothing ostensibly has changed since I retired, with legal research now apparently still an anachronism , but having waited valiantly after I "waltzed" around Black Ink's question for some anonymous contributor-patriot to come forward with the answer, I feel compelled to "stroll" forward and at least generally direct those still interested in this episode to the premable of the Texas Disciplinary Rules of Professional Conduct, paragraphs 10,14 and Rules 3.09(d), 8.03(a), with their comments, for the possible answer to his/her (Black Ink) question. I assume that my global answer does not "twist" the issues and I have not given to those unnamed critics, likely to comment under the shroud of "anonymous", what might be characterized as the "chicken" response.
However, the obligations of any attorney clearly being aware of misconduct on the part of another counsel are patent, whether that attorney being aware of the misconduct is a judge, a litigant in the proceedings, or one closely connected to the matter. The above rules address issues of misconduct though; they do not address the consequences. That is for grievance committess, etc. [Murray, I sure wish you had spell check - my computer makes a lot of typos.]
Anonymous, a/k/a C. A. Hartmann
"...the obligations of any attorney clearly being aware of misconduct on the part of another counsel are patent, whether that attorney being aware of the misconduct is a judge, a litigant in the proceedings, or one closely connected to the matter. The above rules address issues of misconduct though; they do not address the consequences. That is for grievance committees..."
Whew! C.A. Hartmann can be a bit rambling at times.
In the spirit of succinctness I submit the following hypothetical:
1. the court transcript reflects the FACT that "prosector A" has intentionally withheld exculpatory evidence and is held in direct violation of Brady.
2. Prosecutor A's most senior supervisor, "THE DA", is made privy to the fact that Prosecutor A has been found to have violated Brady by the trial judge.
3. Prosecutor B, who is Prosecutor A's 2nd chair, was in the courtroom at the time Prosecutor A was found to have intentionally withheld exculpatory evidence and has actual knowledge of said misconduct.
What specifically are the obligations, patent or otherwise, of the DA, prosecutor B, defense counsel, the trial judge or any other attorneys who have actual knowledge of Prosecutor A's misconduct?
Lykos' definition of corruption is eerily reminiscent of Bill Clinton's response in deposition when he said "...well that depends on the definition of is".
The HCDAO is in self destruct mode and no one is willing to stand up and stop the madness.
AHCL, regarding the Tyler Flood article: It's very disappointing to see how much you bow down to the defense bar. When you were an ADA, you would have had a full blog post on his article and how disgusted you are by his actions. And now, you're afraid to do anything. In fact, the only people you're happy to take shots at are Lykos, Leitner and company. You have this forum, use it. Have the courage to post your feelings on the issue, otherwise this entire blog is censored and irrelevant. Don't become that guy...
Anon 11:37 a.m.,
Why do you presume to know exactly how I feel about the article on Tyler?
#1 - in the interest of full disclosure, I office in the same office with Tyler and he has always been a good friend to me. That was especially true in the days when I first left the office. So, quite honestly, I don't have any animosity towards him like some others do.
#2 - would I have said the things that he did in the article? No, I wouldn't have.
#3 - I thought the article was well written and brutally honest. It provided a good insight into the "business" side of practicing criminal law. I enjoyed the hell out of reading it and I think Mike Giglio is a really good writer.
#4 - any statements that Tyler made in the article are basically going to be his to live with. Just like what I write on this blog is mine to live with. If he's going to piss off the baby prosecutors and the defense bar all at the same time then he's going to have to accept those consequences. But quite frankly, I think he'll be crying all the way to the bank on that particular issue.
#5 - several people have commented on the article in the comments section here, and I have published them all. So, I don't where you are coming up with the blog being "censored".
#6 - you crack me up with the phrase that I "bow down to the defense bar". Shit. Half the people think I sound too much like a prosecutor and now you say I'm being too much of a defense attorney. Oh well, you can't please all the people all of the time . . .
Tyler Flood is one of the go to guys for a DWI. So long as his self promotion is not prohibited how is it newsworthy and who gives a shit? Lykos and Leitner's shenanigans on the other hand provide tragic comic relief for all of us rat racers. Keep up the good work Murray we love you man.
Political cronyism at its best today..... Kim Flores, Denise Onckens paralegal, was told she would no longer be needed and didn't need to return next week. She had given her two weeks notice last Friday. All coincidence? I think not. So the office wants to support someone who willfully, and knowingly violated Brady. That's just and ethical. NOT! Just when you think Lykos and gang can't surprise you anymore... They sink lower.
Thanks Anonymous from Nov. 13th for your support. Friday I was called by Judge Chow and was told that my last day would be that day effective immediately. I asked why (considering I gave a two week notice the Friday before). She responded with, "Because we can." and then turned around and walked out the door. It didn't bother me that they were cutting me a week short and docking me a weeks pay, but what really bothered me was that I was insulted when I was told that I would be escorted to my office and out the door by an investigator. I was treated like I had been fired. Forget the 10 years of loyalty and the great reputation that I had earned for my dedication to my job. Luckily someone faught for me and I was not escorted out. Thank you for that. What I can tell you is that information is out there. What the office chooses to do with it is up to them...which I know that nothing will change. I have had a great deal of support from many about my difficult decision to leave the office and for that I thank you. However, I know that there are a couple...that I know of for sure that aren't pleased.. not my decision for leaving, but rather who I am going to work for. For those doubters, you already know my character and have commented on such...do you really think it's going to change? I'll tell you like I told Denise...I have morals. I didn't put up with it when my morals were challenged at the office and I will not put up with it when I work defense.
Again, the defense attorneys were lazy and didn't diligently read the file and listen to all recordings. The material was in the file and available. Unless the defense bar wants to start refunding their fees to the State based on work being done by prosecutors, this is all a big red herring.
You can't have your open file and eat it too.
So long as the exculpatory material was in the open file, the prosecutor has complied with all constitutional and ethical requirements. Any failure on the part of the defense attorney to read the actual file or to listen to recordings is their own lazy shortfall. The motion for new trial should have focused on the incompetent defense attorneys failing to diligently show up and do some simple reading. Shame on them.
Anon 4:08 - Shame on you for voicing an opinion without knowing the facts.
Anon 4:06 & 4:08 - The defense team did read the file and did listen to/view all the recordings. How do you think this entire fiasco started? The problem is that Ms. Oncken knew about this information and NEVER disclosed it. The other problem is the investigator who summarized an interview with the complaining witness’s sister in a supplemental offense report "conveniently" excluded any mention of the fact that the complaining witness initially described her assailant as someone of a different race than the defendant.
Let me ask you a couple questions. If you were a white male accused of aggravated sexual assault of a child, would you be okay with the investigator hiding the fact that the complaining witness told people that it was a black male who did it? Would you be okay with the prosecutor handling the case hiding this information? Would you be okay with her failing to tell the grand jury about that information?
The presiding judge ruled that Ms. Oncken violated Brady. What makes you think you’re in a better position to judge what she did or the defense team?
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