Piling On

As prosecutors continue to turn in their Two Weeks' Notice and the county-wide Hiring Freeze remains in place, it has gotten to be a relatively bad time to be a prosecutor over at the Harris County District Attorney's Office.

The manpower shortage has resulted in a virtual log-jam of prosecutors who are getting stuck in the same spots for excessive amounts of time. As I've mentioned before, Felony Threes are some of the most overworked lawyers in the legal profession. Back in the Olden Days when I was a prosecutor (yeah, I know I'm starting to sound like Grandpa Walton), a typical first time stint as a Felony Three lasted right around six months.

Now there are Felony Threes approaching a year in their respective District Court. I can't even begin to imagine the burnout they are feeling. One would hope that Lykos and the Gang would start rotating these folks back and forth with their Misdemeanor Chiefs.

You can do that, ya know, guys? I understand if you can't be doing promotions with the budget crunch, but there is nothing wrong with people being Misdemeanor Chiefs and Felony Threes more than once.

But, apparently, alleviating the workload isn't exactly the most pressing issue on the Administration's mind these days.

About a week or so ago, the Edict came down that prosecutors were to no longer abandon enhancements without a valid legal reason.

Well, that's cute. The same office that created Pre-Trial Diversion for DWIs and decided to stop filing Crack Pipe cases has suddenly decided to get tough on crime.

Explaining how enhancements work to the non-lawyer is tricky and complicated. The short version is that if a person has been to prison and/or jail prior to their current charge, the record of the old convictions can be used to "boost" their current charge to a higher level.

For example, a 3rd Degree (normally 2 to 10 year punishment range) can be "enhanced" to a 2nd Degree (2 to 20 year punishment range) if proof is made of a prior enhancement (AKA trip to the penitentiary). If a person with a 3rd Degree has two prior pen trips, their enhancements can change their punishment range to 25 years to Life. The terminology is that person is a "True Habitual", which is Texas' (sort of) equivalent to a "Three Strikes" Rule.

Enhancements are important. I don't dispute that.

But they can also cause a very unjust result if prosecutors aren't given the discretion to "abandon" them (in other words, disregard the enhancements to get to a more appropriate punishment range).

For example, let's say that we a Defendant who back in 1969 served two years in prison for cocaine, and then served another two years in 1972 for a Burglary of a Motor Vehicle (which isn't even a felony anymore). Now, let's say that after 37 years of sobriety, he relapses and gets caught with 1.1 grams of cocaine (a third degree felony).

That guy is looking at spending a minimum of 25 years in the Texas Department of Criminal Justice.

Now, I'm sure that there are plenty of folks who read this blog that would think that's fair, but I don't. And no, I didn't think it was fair back when I was a prosecutor, either.

Now, although he or she may not have a "legal" reason to do so, a prosecutor has the power to "abandon an enhancement", and take the punishment range back down to 2 to 20 years. He could then make a plea offer of 2 years to the Accused. (Hell, if he was feeling really generous, he could even knock it down to State Jail or County Time).

But under the new Lykos Rule, no such flexibility exists for her prosecutors. They can now get in trouble if they plead our theoretical Defendant to less than 25 years TDCJ without a legal reason.

So, what's the fallout from this new rule?

Well, more overworked prosecutors who are going to have to be getting ready for trial on cases that could have easily been worked out if the enhancements were abandoned. That's one thing.

The other thing is that Lykos is showing a complete lack of faith in her prosecutors to do their jobs with the discretion to be compassionate when the situation calls for it.

That's the part that ticks me off, actually. All of her prosecutors have courtroom experience that she'll never have, and she's taken away their ability to use their discretion.

That's ridiculous.

Look, Gang, I know y'all enjoy circling your wagons and believing that only your "Leadership Team" knows what it is doing, but you are really screwing the pooch, here. You've got great prosecutors who know what they are doing down in the trenches. If you've got a prosecutor who is "giving away the farm" on serious cases to avoid trial, then deal with him or her individually.

This policy is ridiculous and needs to be rescinded for the sake of Justice.

And the sake of the poor Felony Threes who are about to collapse under the strain of their jobs already.


Anonymous said…
A wise former prosecutor once told me "If you don't give an assistant prosecutor any discretion, he won't have any."
Anonymous said…
I agree Murray - but do you think they are more concerned with the enhancement issue when it pertains to STJ cases that are enhanced; and then ADAs are turning around and abandoning those enhancements and giving county time? If I was the Sheriff, I would be asking Patty how ofter that is happening, and thus filling up the jail.

Also, your forgetting that ALL files are going to be reviewed by the 6th floor to see what it was pled to.

And lastly, your forgetting about the weekly trial update report that must go to the division chiefs that show what was set for trial, what the pre-trial offer was, what it pled to, if it was re-set and why, etc.

Doesn't seem like the DA's get to make their own decisions anymore.

Glad I left when I did.
Anonymous said…
The "funny" part is thatJudge Lykos was on some PBS show called Red White and Blue Sunday, and flat out stated that the proesecutors' only job is "to do the right thing" and that she lets let them do what needs to be done without interference. I almost did a spit take when I heard that.

She alos, among other things, again claimed credit for "creating" animal and elderly abuse prosecution, the victim's rights office, and further stated that the over 400 years of prosecutorial experience that has left or "been run off" since she took office was no more attrition than usual. And she said all of this with a smile.
Anonymous said…
This "no abandoning of enhancements" policy seems to pop up periodically. I remember Holmes did it for a while in the early 90s. After a few not guilty verdicts on habitual crack pipe cases (this was before the creation of state jail felonies) where the defendant was facing 25 years the policy seemed to just disappear. Rosenthal did the same thing back in '07 or '08. I remember doing a stint as attorney of the week in one of the courts and not being able to work out a single case where the defendant had priors. That policy sort of went away too. We'll see how long this one lasts.
Anonymous said…
This is the sort of thing I was talking about a few weeks ago when I suggested that defense attorneys start using what little power we have. In response to this, every case needs to be set for trial. Every appointed attorney on a drug case needs to demand that the drugs be tested by an outside lab. Every appointed case needs to demand money for an investigator. We don't have much pull, but we can bring the system to a halt if we get together.
Anonymous said…
"This is the sort of thing I was talking about a few weeks ago when I suggested that defense attorneys start using what little power we have. In response to this, every case needs to be set for trial. Every appointed attorney on a drug case needs to demand that the drugs be tested by an outside lab. Every appointed case needs to demand money for an investigator. We don't have much pull, but we can bring the system to a halt if we get together."

Sure, you can do that. But guess what--I watched a guy get 30 on less than 2 grams of crack last week. Should he have taken the 3 he was originally offered, or should his attorney insisted on a trial when there was no way in hell the case should have been tried?
Anonymous said…
This is where all hell brakes loose: go without a rec to the judge who then finds enhancements not true or just ignores them. Then later on when that defendant commits a really bad a crime, a sharp defense attorney will catch that, and we could be barred from proving those enhancements up in the regular ways.
Anonymous said…
The "edict" does not require a "legal" justification. Just a reasonable one. If a person is charged with Agg Robb or Burg Hab and it's a solid case, and he's a true habitual, say with 2 prior burg habs, that's one thing. But your PCS example with that amt and two old priors is exactly
the case where we would abandon... Just write a sentence or two explaining why inside the file. You're mistating the "rule."

And big moves coming at the beginning of September. To fix the exact situation you're referring to.
Anonymous said…
a sharp defense attorney

Don't you mean 'scum bag criminal loving defense attorney'?

we could be barred from proving those enhancements up in the regular ways.

Well, you'll have to stick to falsifying evidence of his current crime or withholding exculpatory evidence or refusing to test DNA evidence in order to really get him good.

Anonymous said…
Glad to see Rage back in his milieu--The hole of the a-hole.
jigmeister said…
Is there really such a thing as a "weekly trial update report"?
Anonymous said…
When I was a prosecutor, I was happiest when I had real discretion. When I had none and I had a Chief who refused to allow me to exercise ANY, I was miserable. In part because I was forced to trial on stupid cases that could've been easily disposed of. When those types of cases are pled out or dismissed or whatever, the attorneys can spend their time on cases that are truly trial-worthy.

Part of what draws a lot of attorneys to prosecution is the feeling that they can do some good. Sometimes it is the prosecutor's job to exercise a little mercy to the defendant, especially in cases when you KNOW the jury would do the same. What is the point of forcing cases to trial when the jury is going to laugh at you for asking for a ridiculously harsh punishment? People may say the old regime was heavy on punishment and maybe they were. But there was never an edict saying enhancements were unabandonable.

You know, probably the only reason why more prosecutors aren't leaving is because the job market sucks. Until Patsy has to do the #3 job (or the #2 job, which I think is actually much worse), she'll continue to make bad decisions like this and drive more prosecutors into private practice.
Anonymous said…
"You know, probably the only reason why more prosecutors aren't leaving is because the job market sucks. "

How many prosecutors leave to get a job WITH someone? Very few. They go out on their own, and that's what everyone who has been leaving has been doing.
Unknown said…
The point regarding overcrowded jails and state jail felonies with enhancements reduced is a valid point. The issue came up while I was at the office and Sheriff Thomas had way overcrowded jails after Tropical Storm Alison.

However, watch out setting these enhanced state jails felonies for trial. When I was a first time #3 in Shaver's court. I had a defendant who sold one small rock of crack cocaine to an undercover cop. Problem was that he had a prior 3g offense (agg robbery) and another drug offense. My chief and I almost begged the Defendant to take our 18 month state jail offer. My chief and I felt that punishment fit the crime. He said no and said something to the effect of "I ain't taking the time you'll have to give it to me." Well the jury gave it to him. He was sentenced to THIRTY NINE years in TDCJ. When the bailiff took him back to the holdover he meekly asked "Can I have the 18 months now?"

This was about 1998 or 1999 and it was the first time Judge Shaver had a state jelony enhanced to a habitual. The jury charge was sooo long and it took us so long to write because there were so many different permutations of the outcome with the enhacements. But the jury stopped at the first page and socked it to this guy. So its a big risk you take...
Anonymous said…
especially in cases when you KNOW the jury would do the same.

Or more likely, when you know they won't.

Anonymous said…
Is "rage" a nickname for dipshit? Isn't there an "I don't try criminal cases but know all about" blog you can pester?
Anonymous said…
Are you having a bad week Rage?

It seems old Pat is determined to do everything in her power to diminish anyone else's power. She must be one insecure old bat. I feel sorry for the people that have to work under her.

Anonymous said…
You think advocating compassion when you know a jury won't is me having a bad week?

I thought the boy named sue was the one who was having the hard time. How's the ear?

Anonymous said…
Had a state jail defendant yesterday, arrested for walking on the right side of the roadway where there was no sidewalk (yeah right, as if they would have taken him to jail if they HADN'T found anything). Search incident to arrest, found a crack rock weighing 1/10 gram. Had two prior SJF drug convictions. The offer? 2 years TDC, no less. Needless to say the defendant didn't accept the generous plea offer. ADA was apologetic, would have offered him 60 days if he could have.

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