Thursday, March 31, 2011

A Second Blog

I was recently invited by the Houston Chronicle's Dwight Silverman (via Lisa Falkenberg) to join the Chronicle's blog section on

So today, I'm starting a second blog over with the Chronicle.  It's called "Criminal Background", and you can reach it by clicking here.

To be clear, nothing is going to happen to this blog.

There are some rules and parameters that I have to follow over with the Chronicle that will necessitate it being a little more toned down than what we talk about over here, so please keep that in mind (ahem, Rage).

I'm excited about the opportunity to reach out to more readers through the new blog.  We may have more "insider" debate on this blog, but I think the Chronicle blog will be a chance to educate more people about how the Criminal Justice System works in Harris County.

I'll need y'all's help.  Please help me with your input (either through the comments or your off-blog e-mails) on the different sides of different issues.  Remember that it is a family newspaper so we need to keep the comments clean (ahem, Rage).

And while we are on the topic of the comments, I will probably be a little more restrictive on folks posting as "Anonymous".  If you like the blog over there and want to comment on it, I'd appreciate it if you developed a pseudonym so that the readers can identify your perspectives by authorship.  I'm not saying you need to sign your name, but I'd love to see regular and easily-identifiable commenters over there.

And, as always, I'll appreciate your input on the blog itself -- whether publicly or privately.

(NOTE:  From a technical standpoint, the blog layout over there is a little different from the one I'm used to here, so please have patience if it takes me a little bit to figure out how it all works.)

Tuesday, March 29, 2011

Not-So-Simple Signs of Faith

Controversy has erupted within the ranks of the Criminal Justice System over the past week as it was brought to light that Criminal County Court at Law # 4 Judge John Clinton had apparently been mixing a bit of Church and State with some of his probationers.  The story landed on KHOU last night.  Both Mark Bennett and Paul Kennedy have done some very thoughtful and well articulated blog posts on the issue and I agree (in most part) with what they've written.

The issue seems simple enough on its face.

If a Judge is adding conditions that include reading a Christian-based book, it seems rather indisputable that he is no longer keeping Church and State separate, right?

Sure, a defendant on probation in Judge Clinton's court would probably love to read a book rather than do the manual labor of community service, but as Mark and Paul aptly point out, this could cause a whole host of side ramifications for people -- from the possibility of non-Christians having to do their community service manually because they don't wish to read the book or a non-Christian being forced to hide his true faith in order to get the book report as a probation assignment.  Clearly, this is prohibited under the Constitution and with good reason.

These issues were brought to the attention of Judge Clinton, who has agreed to not add those conditions to probation any longer.

Problem solved, right?  Apparently not.

Both Mark and Paul, who ironically both have the names of Apostles (and to my knowledge, there was no Murray the Baptist), have expanded on Judge Clinton's misstep by casting doubt on his ability to be a judge at all.  Mark points out:
"If the Judge is so unfamiliar with the First Amendment that this seemed okay to him until the judges' counsel told him otherwise, what hope is there in his court for the Fourth, the Fifth, or the Sixth?"
And Paul echoes the sentiments with:
"If a judge is going to be so cavalier as to ignore the First Amendment's prohibition of state-sponsored religion, how's he going to treat the Fourth, Fifth, and Sixth Amendments?" 

Okay guys, let's not entirely freak out here.  I'm not here to get into a debate about how many wars have been waged in the name of religion or the potential for the End of the World if we still include the words "Under God" in the Pledge of Allegiance, but are we really insinuating that because Judge Clinton let his religious beliefs bleed into a probation condition that he's going to be cool with violating all aspects of the Constitution?

Isn't that kind of akin to saying that each and every one of our shoplifting or DWI clients is inevitably going to turn into a serial killer?

We all believe in something.  Even if that is a firm belief in not believing.  And whether or not you are Christian, Jewish, Muslim, Hindu or whatever, your personal beliefs or lack-thereof affect every thing you do.

I'm not an outwardly religious person.  I have a tattoo of the Cross on my left arm and I've worn a Cross necklace around my neck pretty much since I was 16 years old.  They aren't fashion decisions for me .  They are just the simple signs of faith that mean something to me. I usually thumb through the Bible every morning looking for some inspiration, and I try to teach my little boy those things that I was taught as a child.

But I don't go to Church, and I usually find myself wanting to smoke a cigarette every time I read something in the newspaper about what is being said or done by certain religious organizations.  So, I'm kind of cross-brand version of Christian that nobody can really support, aren't I?  I'm not vocal enough for the Far Right, and I'm too entrenched in my beliefs for the Far Left.  My first ex-mother-in-law told me she was sure that I worshipped trees.

But the point being is that my beliefs filter into what I do every day.  If someone wants to talk to me about religion and their beliefs, I will gladly tell them why I believe.  If I think it will help somebody going through a rough time, I'll share moments of inspiration that I've had in my life.  And no, I'm not a Judge or any kind of government employee (any longer), but I tend to look at Judge Clinton's actions as something that should have been stopped, but nothing that should condemn him as a person or a Judge.

There are law libraries full of cases based on rulings saying that a Judge screwed up.  If every one of those Judges were suddenly deemed unqualified to be a Judge then there literally would be no Judges.

But we come out swinging hard against Judge Clinton because his decision crossed the line between Church and State and the protections of the First Amendment -- therefore, it is inevitable that he will probably violate all the Amendments that follow.

Give me a break.  Judge Clinton made a mistake of law that was a reflection on his belief in God.

You wouldn't be persecuting him just because of his choice in religion, would you?

Let the wailing and gnashing of teeth begin in response to this.  I'm already getting in duck and cover mode for what's bound to be coming from Rage.

Friday, March 25, 2011

The Budget Crunch Settles In

The effect of the budget shortfall has hit home over the past two weeks at the Harris County District Attorney's Office.  The Office, like all the other county offices, is having to do significant cutbacks on their operating budgets and that has unfortunately led to layoffs.  They hit the support staff first, with members of the Central Records team being terminated a week or two ago, and then a few secretaries this week and last.  Today, there were three prosecutors who were laid off (NOTE:  I'm not going to put their names on here, and if you are leaving comments, I ask that you don't either).

The budget crunch isn't the Lykos Administration's fault, but they have a big job ahead of them -- they must continue to keep up with the massive amounts of cases in the courts and they have to do so with dwindling personnel.

It is time for a shake up in the Office's Organizational Flow Chart.  They need more prosecutors in the courtroom and less in their offices in the morning.  Here are a few of my thoughts on what might help:

1.  Get Rid of the Deputy Dawg Positions (both of them) -- as I've mentioned before the Deputy Dawg position is one whose primary purpose was to coordinate the recruiting of pre-commitsfrom the various law schools around the State.  The Office isn't hiring right now, so their position is about as useless as having an extra orchestra member on the Titanic after it hit the iceberg.

It is time to send Rachel Palmer and Justin Keiter back into the trial Bureau to do some real work, rather than just keeping stats.  John Jordan will do just fine in his position of making sure the Misdemeanor Courts run smoothly.

Having two Deputy Dawgs when you have felony courts that aren't fully staffed is completely inexcusable.

2.  Downsize or Eliminate the Child Abuse Division --  no, I'm not urging that the Office stop prosecuting Sexual Assault of a Child cases.  I'm just saying that it is something that can be part of a Felony Two's job description.  That has always been something that Felony Twos were expected to try.  I never spent a day in the Child Abuse Division, but I tried more of the "kiddie cases" than I care to remember.  Having a Division that just handles those cases within certain parameters is wasteful.

I can see Child Abuse remaining in place for child fatality cases involving such things as Shaken Baby Syndrome.  Those involve some specialized medical knowledge.  But having a specialized division that just tries the same types of cases that any trial court Two does is work duplication.  Your resources would be better served with having a more fully staffed court.

3.  Figure out what exactly Roger Bridgwater and Hannah Chow do around there -- since Chow's water cooler placement program at the beginning of the Lykos Administration and Bridgwater's implementation of the DIVERT program, what exactly have they been doing with their time?

At last glance, Chow was somehow supervising intake and grand jury or something like that.  Here's a newsflash, that's not a particular branch of the Office that needs a lot of supervision.  And now that Bridgwater has DIVERT firmly in place, what exactly is he doing now?

I'm not naive enough to think that Lykos would ever cut lose one of her cronies, but I'd sure like to hear her justify why they are making the top salaries while we are laying off lower-payed, yet more useful court prosecutors.

4.  Move Felony Threes/Misdemeanor Chiefs into Grand Jury rather than Felony Twos --  this idea actually kills two birds with one stone.  Using Felony Twos (who are normally trying murders, sex cases, and other serious crimes) to do the mindless work of shuffling cases in and out of Grand Jury is like hiring Peyton Manning to be a football team's waterboy.  The job of Grand Jury prosecutor isn't difficult.  Those cases that are difficult to present to the Grand Jury should be presented by the trial court prosecutor handling the cases.

Furthermore, right now, your biggest spot of stagnation is at the Felony Three/Misdemeanor Chief level. You've had Felony Threes in their slots for well over a year because of lack of movement.  I've mentioned before that this is ripe for some extreme burnout.  If you add the spot of Grand Jury prosecutor to their position, you can give them a little more breathing room.  Let them go from Felony Three to Misdemeanor Chief to Grand Jury Prosecutor and then back to being a Felony Three again.

5.  Spend Your Freaking Asset Forfeiture Money on Some Part-Time Paid Interns --  you can't use the money on salaries, but you can use it for contract positions like law students eager for some criminal law experience.  This isn't the first time I've mentioned this suggestion, but the logic still stands.

6.  Send Your Special Crime Major Offender Prosecutors Back into the Trial Bureau --  under previous Administrations, Special Crimes was truly special.  You had the best prosecutors handling the toughest cases.  Now it is a reward position for favored prosecutors.  If you are downsizing, and not spending the resources to go proactive on cases anymore anyway, why even bother having it?  Seriously, if you aren't even going to bother sending a Special Crimes member out to the Tata crime scene, what exactly are they supposed to be doing.

Move those prosecutors back to being the Chiefs of Felony Courts and give younger prosecutors the benefit of their knowledge.  As a general rule, Felony Chief prosecutors assigned to courts were never all that excited to have the big cases taken away from them by Special Crimes, anyway.

7.  Think It Out Before Eliminating the Divisions You Do Truly Need -- Put the best prosecutors in those specialized divisions and keep them there!  One of the Office's biggest assets right now is having John Brewer in White Collar and Identity Theft.  He knows the material and he's good at training other prosecutors to be good with the material.  This is a Division that actually needs to be growing despite the cutbacks in the budget, as these types of cases become more and more prevalent.

8.  Lighten Up on the Non-Violent or (so-called) Victimless Cases and Return Some Discretion to Your Trial Court Chiefs --  you can save a lot of time and resources by giving more thought to those cases you are going to take to trial.  I'm not talking about doing wholesale dismissals on drug charges or prostitution cases, but you might want to evaluate how much it is worth to you before going to trial.  In my opinion, there is no excuse to ever be going to trial on a low-level PCS case over a year or two difference in the plea bargaining process.  Especially not if there are murder cases set for trial and waiting to go.  Let your chiefs make those decisions and let them make them without the fear of the Upper Administration going through old disposed files to chew them out later.

Times are tough right now in the D.A.'s Office, and they are apt to stay that way for quite some time.  There are things that can be done to weather this storm, because you just simply have to.  I don't envy the Upper Administration for having to make these tough calls, but they need to be thinking about the big picture in how to keep the Wheels of Justice moving.  The more bad cuts they make keep To Do's from getting done on the average cases.  Those To Do's mean more cases taking longer to work out or go to trial and that leads to jail overcrowding (not to mention the high potential for unjustified incarceration on people who can't make bond).

The bottom line is that there are some really big decisions to be made, and I hope that Lykos and the Gang is weighing out the big picture before making their decisions.

Thursday, March 24, 2011

Tonight's Reasonable Doubt

Tune in tonight (3/24/11) at 8:00 p.m. for Reasonable Doubt with me and Todd Dupont.

Our guest tonight will be Troy McKinney.  We have been off the air for the past few weeks, so we have a lot of things to talk about.

As always, you can watch it on live streaming video by clicking here.

Wednesday, March 23, 2011

Death by Injection -- In Concert

For those of you looking for something to do tomorrow, Harris County's Greatest Band Comprised of Prosecutors and Defense Attorneys, will be getting together to play some music.

That's right, Death by Injection, featuring Bill Delmore, Scott Durfee, Doug O'Brien, Glenn Gotschall, David Mitchum, and Hal Kennedy will be playing at The Press Box Bar tomorrow (Thursday, March 24th) between 6:00 p.m. and 9:00 p.m.  The address is across from Minute Maid Park at 209 Jackson Street, between Congress and Franklin.

If you're still Downtown after work, drop by and listen to the guys play.

Saturday, March 19, 2011

Pat Lykos and the First Amendment

The Lykos Administration issued an update to the D.A.'s Office Operation Manual on Wednesday advising her employees on the etiquette that they must adhere to if they are either running for or supporting any political office in the upcoming elections.

Now, please keep in mind the irony of having Pat Lykos, who acted with all the social graces of a toothless, one-legged barfly in a Louisiana roadhouse during the 2008 election, advise anyone on the proper way to conduct an above-board campaign.  She took more comp time off from her county job to campaign and campaign dirty than probably any other candidate on the trail.

But the new Lykos policy for her employees seems to be a threatening new memo that infringes on all of their First Amendment rights.  Here are some of the highlights:

1.  The first paragraph of the policy prohibits any campaign material from being handed out or displayed at the Office.  That particular part is nothing new, but the Lykos policy goes a step further, dictating that no employee may receive any materials (including e-mails) from a candidate at the Office.  Now, perhaps her generational technology gap keeps her from understanding how e-mail works, but someone needs to update Lykos on the fact that you can't really control what people send you on the e-mail.

Furthermore, you can't control what people send you through the U.S. Mail, either.  Many attorneys at the D.A.'s Office have their office address listed with the State Bar as their preferred mailing address rather than their home addresses.  Are those employees going to be punished when a computer generated mailing list puts campaign literature on their desk?

Or will Lykos just issue an edict that interferes with the delivery of the U.S. Mail?

2.  The next paragraph states that employees "may express a private opinion during off-work hours concerning any candidate or political issue, but it should be made clear the expression is a private opinion and in no way represents the Harris County District Attorney's Office."  Wow.  So, my friends still with the Office, just remember that if over dinner you decide to tell your spouse that you think taxes are too high, that you also state "That's just me talking, and in no way represents the views of the Harris County District Attorney's Office."

3.  Any person seeking to run for Office must first clear it with Lykos before "taking any affirmative step toward becoming a candidate".  Are you freaking kidding me?  Sure, it would probably be in better taste to let your boss know you are running, but under what authority does she make it a pre-requisite that an aspiring candidate get her blessing before running?  I don't think that decision is up to the District Attorney, is it?  As a matter of fact, an employee of hers can decide that they are going to run against Lykos if they want to, and she doesn't get to stop them (or fire them) for doing so.

Also, isn't Lykos' demand that a candidate come check with her first make Lykos a de facto consultant on the wisdom of that decision?  And wouldn't that requirement mean that they would be discussing politics in Lykos' office?  Seems like this rule would contradict Rule # 1.

4.  The District Attorney's name may not be mentioned in campaigning without her express permission.  Well, I guess you ADA candidates can just say that you work for "She who must not be named."

5.  She makes the fair point that campaigning should not take precedence over a prosecutor's case load.  That's fine, but quite hypocritical if you look at how much time she took off from her county job to campaign for D.A. in 2008.  Then again, I never really thought she had many work duties in her old job.

6.  Regarding your conduct on the Campaign Trail, "Statements discrediting a fellow employees will be subject to review to determine whether they were made with knowing or reckless falsity of bad faith."

Well, that's going to pretty much put the kibosh on anyone going to Terry Lowry.  Lowry, who many of you remember from his homophobic and hateful spewing of gossip in the 2008 & 2010 elections is the king of mudslinging and dirty campaigning.  He was also somebody that Lykos went running to when she campaigned in 2008.  I wonder if she'll ban herself from using him this political season.

And finally, Lykos wraps up her memo with what she does best:  threatening her employees.

"An employee's participation in political activities in no way alters the employee's status as an at-will employee.  The District Attorney's Office and the employee retain the mutual right to terminate the employment relationship at any time and for any reason, notwithstanding the adoption of this policy allowing participation in political activities."

So, just so we're clear, Pat, you've listed an entire memorandum completely cutting through your employees' First Amendment Rights, but then follow it up with the catch-all of "if you do anything else I don't like, I can fire you anyway."

What a great place to work.

The thing that strikes me as most interesting is why did Lykos generate this new policy?  Clearly, there is some prosecutor or prosecutors running that she doesn't approve of, so she is doing her best to diminish their ability to do so.

Quite frankly, I think her new policy is a Civil Rights Violation.

What do y'all think?

Thursday, March 10, 2011

War Stories

Earlier this week, I had the chance to grab a drink with Troy McKinney and a couple of other lawyers.  During the course of the evening, Troy and I started swapping some of our favorite War Stories that have come out of being in the Criminal Law arena, and it occurred to me that some of those lesser known stories don't get told enough.

In the midst of our jobs as prosecutors or defense attorneys, the subject matter can often be depressing, gory, and stressful.  We can have anyone from the Judge to the D.A. to our clients to the media breathing down our necks and second guessing our every moves.

But there are moments of levity and downright laugh-out-loud humor that happens every day in the courthouse as well, and those are what I define as a War Story.  One that is much more likely to have everyone laughing at your missteps than praising your successes.

Criminal lawyers have some of the best War Stories (with the possible exception of cops).  Face facts, if you're at a social event, how often do you see someone asking an accountant to tell them more about what he or she does every day?

So, in an effort to encourage the lesser known side of the courthouse, I'm encouraging you all to share your War Stories with the blog.  You can post them in the comments, or you can e-mail me off-list.  (NOTE:  If you e-mail me off list, I will gladly keep you anonymous if you want.  The point of this is to entertain. Just keep in mind that war stories are usually funnier when you know who is telling the story and the people involved.)

So, to start off, I'll tell one of my favorite War Stories, involving me and now-Judicial candidate Joe Vinas in a trial case.

Back then, I was the Misdemeanor Chief in County Court at Law # 5 under Judge Janice Law (which is a War Story all on its own).  Joe was a brand new Misdemeanor Three.  The policy then was that when a Misdemeanor Chief came back down from the Felony Division that they wanted them to try at least one jury trial so that their younger prosecutors could observe.

So I was lead counsel on a case with Joe as my second chair.

The facts of the case were that police had been called out to a domestic disturbance.  When they got to the home, the Defendant was in his bed, pretending to be asleep.  When the police went in and tried to wake him up, he reached toward a pistol, which the cops quickly knocked out of his reach.  He then began reaching for a freaking Bowie knife, which they also knocked out of his reach.  The Defendant then went reaching for (no joke) a tomahawk.

The police got all three weapons away from him and arrested him after a short struggle.

During the course of the trial, Joe and I were fascinated by the Bowie knife.  The police had tagged it into evidence, and during breaks in the trial, we played with it.  I mean, we played with it a lot.  We mimicked as if we were going to throw it.  We walked around the courtroom with it.  I think at one point, I even acted like I was shaving my face with it.

There was no harm in that, right?  It wasn't like it had been used in a murder or an assault case or anything like that.

So, Joe and I present our case, and the defense attorney, Frumencio Reyes, calls his client to the stand.  I can't remember the Defendant's name, but let's just say he was very much on the heavy side and not really all that into personal hygiene.

Through question and answer, his client begins calmly explaining each of the weapons that the police had recovered from him -- starting with the gun.

"That wasn't really a gun.  It used to be, but it was broken since the day I got it.  It was an antique and the kids played with it.  If you look in the barrel, there's a crayon stuck in it."

Sure enough, the gun was an antique, and you could see the red wax of a crayon jammed into the barrel.

So, Frumencio moved onto talking about the Bowie knife.

"Well yeah," the Defendant admitted.  "That's a real knife, but I didn't have it because I wanted it as a weapon."

"Then why did you have it in your bed?" Frumencio asked.

"Well," the Defendant said.  "I've got this really nasty rash on my leg, and when I go to bed, I just use the blade of that knife to scratch it."

Joe and I had to call a recess.  Moments later, we were in the men's room scrubbing down like we were preparing for surgery.

To this day, its probably a miracle that we didn't just vomit in the courtroom.

And neither Joe nor I have forgiven Frumencio to this day.

Wednesday, March 9, 2011

Lisa Falkenberg's Article from Yesterday

Most of you have probably already read this, but in case you missed it, the Chronicle's Lisa Falkenberg did a great article yesterday on the D.A.'s Office's handling of the Tata case.

In case you missed it, you can check it out by clicking here.

Monday, March 7, 2011

Gonna Be a Long Week

It is always nice when you get around to checking your mail first thing Monday morning to find this in it.


Hope y'all's week is off to a better start than mine.

Wednesday, March 2, 2011

I'll Take Diversions for $1000, Alex

In a story on CNN today, Pat Lykos announced that she will be asking a court to declare George Rodriguez factually innocent of sexual assault charges that he was previously convicted for.

The move comes seven years after Rodriguez was freed from prison by a Court of Appeals and one day after she was called into question for the Office's possible fault in allowing Jessica Tata to flee the country to escape responsibility for the deaths of four children.

Just Saying

Yesterday, Channel 13 reported that when they went by Jessica Tata's house to interview family, construction crews were already working on repairs to the house (four days after the fire).

Channel 11 reported that a classmate said Tata set fires when she was in high school.

I sure as hell hope somebody at the D.A.'s Office is subpoenaing when the hell the work orders for that construction were placed.

Tuesday, March 1, 2011

Let's All Play the Blame Game!

With Jessica Tata absconding off to Nigeria (and totally undermining my attempt to achieve a more Ghandi-like view of the Criminal Justice System with my previous post), a War of Words has broken out between the Harris County District Attorney's Office and the arson investigators with the Houston Fire Department.  It was inevitable, really.  The deaths of four children and no one to hold accountable for it is a tragedy, and God forbid a tragedy ever happen that we couldn't blame on somebody, right?

So, let's do a quick breakdown on some of the things that are notable with the Tata escape.

Point 1 --  There is generally nothing wrong with the D.A.'s Office wanting to make sure a case is well-built before accepting it from a Police Agency.
Houston Fire Marshal Richard Galvan is blaming prosecutors for Tata's flight because they were being too picky about what they wanted done on the case.  Galvan cites that investigators with the Arson had to make four approaches to the D.A.'s Office before charges were accepted.
Whichever prosecutor was handling the case for the D.A.'s Office wanted to make sure that the case would stand the test of time once it got filed.  Asking the investigating agency to do more work on what is going to be one of the more high-profile cases is smart.  Avoiding the knee-jerk reaction of filing something because it is high-profile is even smarter.
Advantage:  D.A. Office

Point 2 --  That being said, an Injury to a Child case with this fact pattern isn't going to be all that tricky, in the big scheme of things.
They weren't investigating Tata for Arson (at least, not yet).  They had to answer one simple question.  Was she home or not when the fire broke out?  In the article DA Spokesperson Donna Hawkins states that they wanted to establish that no other adults or workers were in the house either.
Ok.  Fair enough, but how much time do you really need to spend doing that?  It would seem to me that a preliminary investigation that satisfies Probable Cause against Tata could have been done within a couple of hours and at the scene of the fire.
Its nice to have a well-made case, but being too picky on charges is not good.
Advantage:  Arson Bureau

Point 3 --  The D.A.'s Office disregarded information that Tata was about to leave the country
Wow.  If this is true, I don't know how much defending can really be done for the D.A.'s Office.  The Special Crimes and Intake Division are open year round, 24/7.  A warrant could have been drawn up pretty quickly on exigent circumstances and Tata could have been brought into the fold.
Advantage:  Arson Bureau

Point 4 --  If the Arson Bureau had a tip that she was going to flee, why weren't they sitting up on her?
I know that manpower shortages affect us all, but when we are talking about a potential fugitive who is going to be taking off and leaving four unaccounted for dead children in her wake, do some surveillance dammit.  This isn't a case where somebody burned up a Ford Pinto in the hopes of getting insurance money.
Advantage:  D.A. Office

Point Final --  the real person to blame for this is Jessica Tata.  She is clearly a responsibility-avoiding low-life.  Could more have been done to make sure she stuck around?  Yep.  But at the end of the day, she's the one that ran.

I hope some day they catch her.  I hope she faces Justice.

But in the meantime, I don't see a whole hell of a lot of good in playing the Blame Game.

Episode Seven: The Voters Awaken - A One Act -Sci-Fi Play

SCENE:  The Death Star orbits over Downtown Houston. [INTERIOR] The Imperial Council Chambers. EMPRESS OGG sits at the head of a long table ...