Fear versus Anger

One of the sagest pieces of advice that I ever received during the time that I was a prosecutor was from Judge Caprice Cosper, whom I consider to be the best Judge I ever had the honor to practice in front of.

The case was a mildly high profile case where two working parents had left their five year old child in charge of their three year old child for an hour while their work shifts overlapped.  During the space of one tragic hour, the five year old daughter had played with a lighter and inadvertently set the family home on fire.  The five-year-old had escaped the flames.

The three-year-old had not.

I had been working the intake desk when the call came in.  As a new father, I was incensed, and (now, in retrospect) very reactionary.  I filed the case as a first degree Injury to a Child that had resulted in death against both parents.  A Grand Jury downgraded those charges to the State Jail Felony of Endangering a Child.

Both parents pled guilty to a PSI (Pre-Sentence Investigation) hearing before Judge Cosper (which is the equivalent of throwing yourself on the Mercy of the Court).

In my time as a prosecutor, I looked at countless crime scene photographs and attended many autopsies.  Thankfully, very few of those memories stick in my mind.

Sadly, the photographs of the aftermath of that fire have never been able to leave my mind.  I think the effect of being a father to a small child has enhanced that.

I argued to Judge Cosper that the parents both deserved the maximum sentence of two years in a State Jail Facility.  She disagreed and gave them probation, and she then told me, very kindly, the following words that guided me as a prosecutor in the short time I had remaining as a prosecutor.

"Mr. Newman," she said, "in this job there are those people we deal with that we are mad at and those that we are afraid of.  You need to learn the difference."

And she was right.  I did.

As a parent, I was upset, and, quite frankly, outraged at the results of what happened to a defenseless three-year-old due to her parents' horrible mistake in judgment.

But they weren't threats to Society.  That was a fact that escaped me at the time.

A few months earlier, I had seen the crime scene video of the home of Andrea Yates.  I wish to God that I never had.  To this day, I can be giving my son a bath and an image of Noah Yates will flash through my mind.  The sickening feeling is something that I don't think I can really translate to you, unless you've seen the video.  Just suffice it to say that it is heartbreaking.

I was all for prosecuting Andrea Yates to the fullest extent of the law.  All the way to the ultimate penalty.

Why?  Because I was angry about what she had done.

There wasn't a single thing about her that indicated she would be a future threat to society.

Today, the District Attorney's Office filed the charges of Injury to a Child with reckless intent causing serious bodily injury against Jessica Tata for the deaths of four children under her care when a fire broke out at a daycare she was responsible for.  I don't know any more about the case than anyone else who has followed it in the media.

As a parent, I applaud the decision, because I am furious with Jessica Tata for her role in the deaths of tiny little children who had no ability to save themselves from fire -- just like I feel fury against every person charged with hurting any child.

But, I'm not scared of her.

The Defendants that we are scared of are so much easier to deal with, aren't they?

The 2012 Election Season So Far

As I mentioned in the first post of this year, the 2012 Election Season has already gotten off to an early start with aspiring Republican candidates wasting no time in declaring their intentions to run for Judicial Benches.

Thus far, here's who we've (tentatively) got.

174th District Court
Former-ADA Robert Summerlin (R) vs. Incumbent Judge Ruben Guerrero (D)

177th District Court
ADA Ryan Patrick (R) vs. Incumbent Judge Kevin Fine (D)

178th District Court
ADA (and former 178th Judge) Roger Bridgwater (R) vs. Incumbent Judge David Mendoza

179th District Court
Former-ADA Kristin Guiney (R) vs. Incumbent Judge Randy Roll (D)

337th District Court
ADA Alexis Gilbert (R) vs. Incumbent Judge Herb Ritchie (D)

338th District Court
ADA Joe Vinas (R) vs. Incumbent Judge Hazel Jones

339th District Court
ADA Brad Hart (R) vs. Incumbent Judge Maria Jackson

Since Judge Mark Ellis was the sole Republican survivor on the Judicial Level of the 2008 elections, it is highly doubtful that any Republican would challenge him in the primary.  Therefore, I'm sure we'll see a Democrat announce there.  But the Dems haven't seem to have jumped to their 2012 planning quite yet (at least, not that I've heard).

Judge Shawna Reagin (D) of the 176th District Court has not drawn an opponent as of this writing, and I hope that it stays that way -- she's just doing too damn good of a job for any candidate who truly has the Judicial System's best interest at heart to run against her in good faith.  But sadly, that just leaves open the door for some miscreant who just likes to run because he has run in every election since the Stone Age to announce and he is feeling cocky since the barratry charges against him were dismissed.

As I've mentioned before, I'm sure this field will look vastly different by March of 2012.

The Lesser Known Dangers of Children on the Internet

When you are the parent of a child who is too young to be computer literate, often times the warnings about "beware of letting children on the internet" goes in one ear and out the other.  I mean, I knew there were people on-line that we all need to be worried about.  I just didn't know that those people might be the children themselves on occasion.

Over the past weekend, my 5-year-old son and I went to the lake for a much needed vacation.  While there, we played some on the computer, including www.JibJab.com, which, much to my son's delight, gave us the ability to put use our pictures in videos that made us Star Wars characters.  He spent almost an hour watching a replay of himself blowing up the Death Star.

Unfortunately, JibJab also offers a video that allows you to place yourself in a video with Justin Bieber.

My boy played around with the Bieber video while I was making him dinner this evening, apparently.

And then he clicked another icon he recognized on the screen:  Facebook.

So, when I woke up at 2:00 this morning, and glanced through my iPhone, I noticed that I had some interesting comments regarding my Facebook profile.  It seems that my son had posted on my profile a link to Justin Bieber's JibJab page which read:

"Are you a victim of Bieber fever?  Would you classify yourself as a Belieber?  When you star in Justin Bieber's video for his new movie, you can BE with BIEBER!  What' that sound?  It's all of your dreams coming true at once."

My initial reaction was to be mortified, but then I started laughing so hard that I can't go back to sleep (hence the time of this posting).

After nine and a half years at the District Attorney's office and engaging in practical joke wars with the likes of Robert Summerlin, Steve Shellist, Justin Keiter, Lyn McClellan, and Will Womble, I finally truly get taken out by a 5-year-old.

Bowling for Convictions (and other misguided morale makers) [UPDATED]

Mark Bennett's Defending People did a post last night on a recent memo from HCDA's Misdemeanor Chief John Jordan to the younger prosecutors in Misdemeanor offering them incentives for going to trial.  In it, Mark rightfully points out that morale over at the D.A.'s Office must be "in the basement" for John to be offering a "fratboy game" that encourages the less-senior ADAs to go to trial more often (and win) for such prizes as the opportunity to sit on big felony cases or get a Friday afternoon off for things like bowling.  Mark (also rightfully) points out that this type of incentive program seems to fly in the face of the seriousness of a person being charged with a crime.

Do we really want a prosecutor in closing argument to be telling the jury:  "Ladies and Gentlemen, by convicting Mr. McCann for assaulting Mr. Fickman, not only will you be sending a message that violence is not acceptable in our community, you will also be assuring that I can spend all afternoon at Ninfa's next Friday with my friends." ?

The incentive program outlined in John's e-mail was not a well thought-out idea.  Putting it in an e-mail was also not a well-thought-out idea.

But, you can't blame John Jordan for what he was trying to accomplish with it -- trial stats are down at the D.A.'s Office and morale is in the toilet.

When addressing the trial numbers,  I'm not talking about the win-loss ratio.  I'm talking about trials in general.  From one report I received, the stats show that in 2008 (the last pre-Lykos year at the D.A.'s Office) there were 436 felony jury trials tried.  In 2010, that number of jury trials had shrunk to 248.  Lykos will already have a tough time explaining to her Republican cronies in the 2012 primary why she more or less legalized crack pipes and created lighter sentences for DWI, but now she's going to have to explain statistics!  God knows how much politicians love their statistics.

From a political standpoint, the Office is going to want to show that they have more prosecutors trying cases.  Hence, an incentive program trying to get the prosecutors to trial more.

Regarding the morale issue, I'm glad to see John doing what he can to make the Office a more pleasant place to work -- even though the execution of said plan was flawed.  John and I started in the same class and back then, the morale was very high.

Lykos has systematically destroyed the morale through a series of pointless personnel and policy changes.  As I've pointed out in the past, that's going to bite her in the ass when she's in the middle of a hiring-freeze and can't replace the droves of prosecutors who leave because the job just isn't fun anymore.

So, as my public service of the day, I will once again tell Lykos and the Gang Who Couldn't Shoot Straight some tips on how to improve morale.  I'm sure I'll get a thank you note in the mail by Friday.

Tip # 1 --  Stop being so blatant about playing favorites.
You've had some folks there who have risen to supervisory roles without ever earning their stripes in the trenches.  Thus far, their only real skill set that they've mastered is kissing crony butt.  Case in point -- Rachel Palmer.  She's been Deputy Dawg in Misdemeanor for how freaking long now?  The Deputy Dawg position used to be one awarded to a prosecutor who had been a Felony Two for several years and had tried numerous murder and sex assault and robbery cases to juries.  They had the respect of the Misdemeanor folks because that earned it.  Did Rachel ever get around to trying her first murder?

Rachel, instead, is more known for being a Lykos-loyalist who is much more inclined to rat out a misdemeanor prosecutor for a screw up than try to back them up and help them learn from the mistakes.

Why don't you try to put a Senior Felony Two in there that the younger folks might actually respect?

Tip # 2 --  Use some of that Asset Forfeiture Money to hire some law students as paid interns
With the budget crunch and the resulting hiring freeze, the ADAs that you still have left are over-worked in a serious serious way.  You can't use Asset Forfeiture Money on salaries, but you can use it for contract employment.  Pay a law student who aspires to be a prosecutor $10 an hour to do "To Do's" while the prosecutors are in trial.  They can make RIP calls and pull offense reports.

Give your prosecutors a little breathing room.

Tip # 3 -- Make Leitner and the other upper-Admin Guys quit crawling up prosecutors' butts with a microscope
Letiner seems to have embraced the role of being the Vice Principal of the Office.  Last year, he and some other upper-echelon guys decided to start calling prosecutors up to the 6th floor and demanding they explain themselves for plea bargains that had happened months earlier.  And on small cases, too.

Good Lord, Jim, give it a rest.  Shouldn't you be working on managing the budget or something?  Or at least polishing up your belt-badge?  You going through old disposed cases just to find out if a prosecutor was too lenient eight months earlier does nothing but instill paranoia in the people you've got left.  Stop being a jackass.

Tip # 4 --  Repeat After Me "A prosecutor who earns comp time can do whatever the hell they want with it whenever the hell they want with it.  It is their comp time."
If a prosecutor has given up their weekends or their evenings to try to keep on top of the monumental amount of "To Dos" that have piled up, then let them take their freaking comp time whenever the hell they want to.  If they get back from a long day in docket and want to take an afternoon off, let them!  If they want to go home and take a nap or if they want to go drink a beer, that's their decision.

Stop making them fill out requests long in advance, and have to justify why they need it.

Tip # 5 --  Give your Chiefs and Division Chiefs the okay to sponsor social get-togethers, even if (gasp) alcohol is served.
Part of what makes any group stick together during hard times is a genuine affection for each other.  Promoting events where they all get together and unwind helps that.  Back in the old days, there used to be monthly office birthday parties over at St. Pete's Dancing Marlin (R.I.P.) and they would be well-attended.

Let John Jordan send an e-mail for an Office Happy Hour at 5:00 on a Thursday, instead of one that sounds dangerously close to "counting scalps".  And if people comp out at 4:00 to go early, don't give them a ration of crap about it.

Speaking of rations of crap, I'm sure that I will get plenty of it from Lykos supporters who will bring out the usual tired old accusations of saying all of us folks from the old administrations wanted to do was drink.  But the bottom line is that the Office is going through a tough time right now because of the budget.  But the job is still a good one.  Good people will stay through the tough times if you stop making the job miserable every chance you get.

If you don't understand that, then you don't understand leadership.

Then again, leadership was never the Gang Who Couldn't Shoot Straight's strongest point.

[UPDATE:  In cae you missed it, Brian Rogers did an article on "the Contest" in today's Chronicle.  The  readers' comments aren't too favorable to Lykos and the Gang."

Right to Know vs. Right to a Fair Trial

By now, I'm sure that most of you are well aware of the video of Houston Police Officers hitting and kicking 15-year-old burglary suspect, Chad Holley.  I saw it the morning that Channel 13's Wayne Dolcefino aired it and was saddened and dismayed to see what happened.  As anyone who reads this blog with any regularity would know, I hold police officers in very high esteem.  They aren't flawless, and part of my job is to locate and bring to light flaws in procedures and investigations that relate to my clients.

It makes me sad for what a 15-year-old kid went through, and it makes me sad for the reputations of police in general that are tarnished by association with that video.

However, the release of the video leaves me with mixed emotions regarding the controversy of whether or not it should have been released pre-trial.  As you know, I'm completely against the idea of police officers and prosecutors and other public servants being crucified in the media when they are charged with a crime, simply because of who they are.

Yet, I find myself in favor of this particular video being released, for some reason.

First of all, I think that Quannell X showed cajones of steel by releasing it, knowing that the Federal Courts were attempting to block it.  Furthermore, I think that whatever officer was silly enough to file a libel suit against Quannell when truth is a defense to libel pretty much just waved a red flag in front of a charging bull.

But it is very clear that a release of video of police officers beating a surrendering juvenile is a double-edged sword.  The sanctity of a trial and the right of the Accused to have an unbiased jury is the absolute cornerstone of the jury system.

That being said, there is an even larger interest in the General Public being aware of the fact that there are some police officers who are victimizing citizens suspected of a crime -- either rightfully or wrongfully.

It is not an uncommon occurrence at all for a Defense Attorney to be told by his or her client that the police roughed them up when they were arrested.  Some of those claims are sometimes baseless and no more than an attempt to shift attention away from the crime they are charged with.  But others do have merit, and I think that we only have to look at the video of Chad Holley's arrest to realize that we, as both prosecutors and defense attorneys, cannot just ignore those claims every time they are made.


So, ultimately what we have here is a stalemate.  You have the competing interests of an accused's right to a fair trial versus the public's interest in keeping from being abused.  


What's the answer to resolving that stalemate?  I have no freaking idea.


But, what I do see, however, is yet another double standard coming out of Pat Lykos' District Attorney's Office -- you know, the one that campaigned on the issue of "Transparency".  While Lykos has yet to make a stand on other non-police officer involved crimes being detailed in the media (how many times has she tried to block the release of a surveillance video of a convenience store robbery?), we do see her and the upper Administration trying to block them when Public Servants are involved.


And it isn't just the Holley case where she does it.  If you look back to how Lykos handled the cases against Supreme Court Justice David Medina, Former-District Court Judge Woody Densen, and former County Court at Law Judge Don Jackson, you see that she has already developed a history of trying to protect those she so chooses.  I wrote about it here back in August of 2009.  The investigation into the Densen case seemed to have stalled out completely in the District Attorney's Office before the complainant on the case released the video to the media, as a matter of fact.


The release of the Holley video to the media seems to have once again caught the Lykos Administration with its pants down.

First Assistant Jim Leitner, as usual, wasn't helping matters for the D.A.'s Office with the remarks he made at the recent NAACP Meeting held at Good Hope Missionary Baptist Church.  Good Lord, Jim.  Really?  "You people?"  At this point you should have A-1 steak sauce on your loafers with as often as you put your foot in your mouth.

The charging decision of filing Official Oppression on those officers may have been inevitable.  While the Penal Code does provide that Aggravated Assault by a Public Servant is a First Degree Felony (just as Aggravated Assault on a Public Servant is), there is no corresponding statute for regular Assault by a Public Servant. (NOTE:  however, regular Assault on a Public Servant is a Third Degree Felony).  From what I have seen, it doesn't appear that Chad Holley was the victim of an Aggravated Assault.  No weapons were used and I don't believe he suffered from Serious Bodily Injury (the pre-requisites for an Aggravated Assault).


But there does seem to be a fundamental unfairness in the laws as written that there isn't a higher charge for a police officer, under the color of his authority, committing the offense of Assault.


That being said, the Lykos Administration may be justified in filing only the Misdemeanor charges against the officers, but damn, they could have done a better job of explaining that to the General Public. Instead, Lykos chose to hide the ball from the public, and now it has blown up in her face.  


And given the way she seems to handle cases against Public Officials, one has to wonder what other files are staying dormant in the Public Integrity and Civil Rights Divisions of the Harris County District Attorney's Office . . .

Worser than Worst

What's the only thing more fun than standing in a line wrapped around the building at the CJC?

Doing it in below freezing temperatures.

That just ain't right.

Safety Alert

There were some scary moments this morning for a female ADA when she pulled into the Harris County Parking Garage.

An African-American male, approximately 5' 10" - 6' approached her before she got out of her vehicle, and he was carrying a black pistol.  The unknown person was wearing a blue coat, scarf, and was wearing slacks.  Fortunately, another Assistant D.A. was pulling into a parking space nearby, which apparently scared off the male.  All of this happened on the 10th floor of the garage.

I know that the District Attorney's staff has been alerted to what happened and an office-wide e-mail has gone out warning folks to be careful about their surroundings.

Obviously, the same warnings apply to everyone who parks in that garage.  If you have any information that could be helpful, contact a District Attorney's investigator.