Guest Post: Lykos and Judicial Activism

A guest post from a commenter who wishes to remain Anonymous:

I ask all those who consider themselves to be Republican party activists, members of the Tea Party, and/or those who find judicial activism to be antithetical to the law and the will of the people to imagine the following scenario. 

Attorney General Eric Holder holds a press conference to announce he has unilaterally determined that the Department of Justice will no longer prosecute certain low weight narcotics cases even though Congress passed a law making it illegal to possess these narcotics regardless of their weight.  He provides four reasons for this decision: (1) This is the practice in other jurisdictions, including Canada and France (2) Federal judges complain that these cases are clogging their dockets, (3) Assistant United States Attorneys observe that juries do not care much about these cases, (4) in a period of limited resources, law enforcement’s time can be better used fighting other crimes.  Drug Enforcement Administration officers complain that this policy undercuts their ability to practice the “broken windows” strategy of law enforcement that has proven to be successful in reducing the crime rate in New York City and elsewhere.  Their complaints fall on deaf ears at the Department of Justice and Holder even goes so far as to suggest that the DEA officers who are complaining are more interested in “getting arrests for the sake of having statistics.”

My guess is that if this were to happen, you would be appalled that a public official unilaterally decided to ignore a law passed by the legislature simply because they disagree with it.  You would be aghast that justification for the policy was based on practices in different jurisdictions.  You would be outraged that the government’s leading law enforcement official not only disregarded police officers’ complaints but belittled their concerns. 

This is exactly how Harris County District Attorney Judge Patricia Lykos has acted with regard to Possession of a Controlled Substance Less Than One Gram cases.  Based on her unilateral decision Harris County Assistant District Attorneys no longer prosecute cases in which defendants are found to possess narcotics like cocaine, heroin, and methamphetamine weighing .01 grams or less.  (The Houston Chronicle, December 5, 2011, compared this amount to approximately one-half a grain of rice.)  Her reasons for the policy: (1) This is the practice in Travis and Bexar counties (2) Harris County District Court Judges complain that these cases are clogging their dockets (3) Harris County District Attorneys observe that juries do not care much about these cases (4) and “(w)hen you have finite resources, you have to make decisions and this decision is a plus all around.”  (Houston Chronicle, December 8, 2011).  When the leaders of six Harris County police organizations, including the Houston Police Department, expressed that the unilateral policy change was not a plus all the way around as it hampered their ability to practice “broken windows” policing and prevent invasive property crimes like burglary, Judge Patricia Lykos dismissed their concerns as “getting arrests for the sake of having statistics.”  (Houston Chronicle, November 29, 2011).     

Judge Patricia Lykos insists, “We are not ignoring state law.”  (KUHF-FM, November 29, 2011).  This is a lie and a prime example of judicial activism run amok.  The Texas legislature has drawn a clear distinction between cases of Possession of Marihuana and Possession of Controlled Substances.  Texas Health and Safety Code Section 481.121(a) sets forth that a person commits the offense of Possession of Marihuana when they “intentionally or knowingly possess a usable quantity of marihuana.”  In essence this means that if you possess enough marihuana to take a drag you have broken the law.  Texas Health and Safety Code Section 481.112(a) covers Possession of a Controlled Substance crimes and sets forth “a person commits an offense if the person knowingly manufactures, delivers, or possesses with intent to deliver a controlled substance.”  Note that there is NO language about a usable amount.  If you have cocaine about the size of a half-grain of rice, the legislature has decided that that is illegal.      

To be certain there are some valid issues and concerns with low level Possession of a Controlled Substance cases.  In particular they do contribute to jail overcrowding.  But there were ways that Judge Patricia Lykos could have dealt with this category of cases without ignoring the legislature, and the people.  Though it would take time, she could have joined the Harris County District Court Judges in trying to change the law.  On a more immediate timetable she could have encouraged the Harris County District Court Judges to reduce the bond schedule for Possession of a Controlled Substance Less Than One Gram cases from $2,000 to $500, which is the bond if an individual is charged with a similar amount of Marihuana.  This latter step would substantively address jail overcrowding and simultaneously allow police officer’s to enforce the law.  However, it would not grab headlines, which appears to have been among Judge Patricia Lykos’ motivations.

Republicans should care, and do care, about judicial activism.  When politicians and judges ignore the clear letter of the law and the absolute intent of the legislature they subvert the will of the people.  We the people elect the legislature.  Our elected officials have drawn a clear distinction between the offenses of Possession of Marihuana and Possession of a Controlled Substance.  This distinction should be respected until it is changed.

Judge Patricia Lykos is a Republican.  But her party affiliation does not allow her to unilaterally ignore the law, misrepresent this fact to the media, and then thumb her nose at law enforcement when they complain that they are being asked to ignore a law they have sworn to uphold. 

Judicial activism should not be tolerated, regardless of party affiliation.  If Eric Holder acted as Judge Patricia Lykos has you would demand his removal from office.  Judge Patricia Lykos should be treated no differently.  


Anonymous said…
PLEASE send this to the Chronicle: They need an author name and contact so they can validate if they choose to run it. They probably won't but it beautifully explains the situation.
Anonymous said…
Police and prosecutors have great discretion in deciding what crimes to prosecute. The chief of police could order his police to arrest every traffic violator when the officer had the right to take the driver into custody. And, prosecutors could push for the maximum fine in every case.
But that would be nuts.
And, police and prosecutors have great discretion in deciding how to best use their limited resources in manpower, court space and, yes, jail space. A prosecutor might believe it is better to concentrate on violent crime rather than small drug crimes. And, a police chief might decide to issue tickets rather than arrest every traffic offender because it takes cops off the street to book people who run red lights.
The question is who decides. Like it or not, Pat Lycos is the elected district attorney of Harris County at least until December 31 at least. She gets to set the prosecution priorities in Harris County. The question is how she sets priorities.
Some years ago, Johnny Holmes (yes, that Johnny Holmes) decided that there would be no probation offers in auto theft cases after his wife's car was stolen. And, he stopped offering probation in burglary of habitation cases when a friend's home was burglarized.
Were those legitimate exercises of discretion. Yep. But I don't know if I like the reasoning.
A case can be made that filling prisons with folks from dirty crack pipe cases is a waste of resources. A real good case. Another case can be made that busting users of small amounts of crack is worthwhile under the broken window theory of law enforcement.
Setting police and prosecution priorities is NOT ignoring the law. It's deciding where to use the available resources. No reasonable criminal justice system can prosecute every violation of the law. One need only look at the Katy Freeway to see that the police don't strictly enforce the speed limits even though speeding is a crime in Texas. If they stopped every speeder, the Houston Police Department wouldn't be able to do anything else.
You and I may disagree with Pat Lycos's discretionary calls. And, they may be a reason for voting against her. But, she did nothing wrong, illegal or immoral.
Anonymous said…
Dear anonymous guest: How cute that you still use Patsy's "title."

I'll take any effort to oust Patsy, and I appreciate your effort on this issue. But you have way better "activism" ammo than that. Like her refusal to seek the death penalty on a number of beyond serious cases, which has been heavily criticized here.

Don't forget when she didn't charge that idiot who locked his babies in a hot car while shopping for guns for an hour. And, I know it's been a while, but don't forget Justice Medina's wife...
Anonymous said…
@Anon 3:25 - A better analogy would be a chief of police ordering officers to no longer stop, cite, or arrest people for speeding less than 10 miles over the limit, or for changing less than three lanes without signals. Doing so would limit the ability of officers to best police their area.
Anonymous said…
Judicial activism should not be tolerated, regardless of party affiliation.

So... I guess the anonymous poster will be voting against Texas Supreme Court candidate Don Willett, who claims that he is the "judicial remedy to Obamacare."


Am I right?


I didn't think so.


(Link, for those who don't know:

As for a few other issues I have with the post:

When politicians and judges ignore the clear letter of the law and the absolute intent of the legislature they subvert the will of the people.

You think the legislature doesn't subvert the will of the people? Do you think the majority of Texans are for abortion, or against it? Compare that with the legislature's recent actions.

We the people elect the legislature.

This is Texas. We elect the judges, too.

And we elected President Obama--yet his policies are targeted by those who would use the court system to subvert them.

Anyway, I think Lykos needs to go. Anderson isn't the way to go either, so I'm hoping Fertitta keeps intake low, which helps keep our taxes lower. We can no longer afford a return to the Holmes/Rosenthal era of locking everyone up and denying them a fair bail.

And there are plenty of reasons I dislike Holder--reasons that show that he and Obama are closer to Cheney in ideology. Hell, they make W look liberal. Arguing to the supreme court that a prosecutor should have immunity when they manufacture evidence to get a conviction? Why aren't you guys singing that guy's praises? That's your dream job--just decide who you think is guilty then make stuff up to get him convicted and you'll be immune! Even Scalia took him to task on that one.

This anonymous guest post is more of a pre-textual complaint to get rid of someone because of selfish, personal reasons, not a substantive issue that signals the real need for a regime change.

Anonymous said…
I agree with your guest post with the exception of addressing Lykos as "Judge". Historical titles are inappropriate for career politicians, especially those still seeking validation as does Lykos. She is no more a Judge than is one of the custodians of the building. in fact, when she was schmoozing all the current staff while running for DA, she wanted to be known as "Pat" and wanted "all those kids over there" not to worry about her firing them. What did she do immediately after taking office? Demands to be called Judge and started firing people right and left. Such a liar!
Anonymous said…
Lykos does nothing wrong or illegal in failing to prosecute small quantities of cocaine, heroin, methamphetamines, etc.cases. What? I guess all those cases upholding such prosecutions were just plain wrong. Moreover,
I guess that oath of office which she took which requires, in part, that she preserve, protect, and defend the laws of Texas was just a meaningless group of words, given lip service, in order to get that new wood floor, a trip to Hawaii, a fat pay check, and a chauffeur among other goodies. Johnny Holmes' practice, however, in refusing to offer probation in auto theft and burglary of habitation cases (assuming that he did) would have been clearly discretionary as it would have been for a judge or jury and was not a violation of his oath of office.
While we are on violation of that oath, however, let's take a gander at DIVERT, another area in which Lykos has gone off the reservation. The Legislature has specifically provided that those charged with DWI may not avail themselves of the benefits of deferred adjudication community supervision. Notwithstanding this prohibition Lykos implemented DIVERT, a program virtually indistinguishable except in name only from deferred adjudication community supervision. Charges filed against a successful DIVERT participant are not available for use in enhancing a subsequent DWI and may be expunged, both contrary to law.
Clearly DIVERT is illegal, not having been enacted by the Legislature and contrary to the specific provisions of the Code of Criminal Procedure. Lykos' claim that the statutes addressing pretrial services and intervention programs support DIVERT is without merit, there being no substantative statute governing these programs. Moreover, once charges are filed and a guilty plea is entered, as in DIVERT, there is no longer authority for a pretrial diversion.
Lykos, as has always been her wont, again in this instance in essence has told the Legislature that she is wiser than their collective body and that she need not be governed by the laws which they enact if they are inconvenient to her narcisstic agenda and not in harmony with her philosophy (making the Chronicle and County Judge and Commissioners happy) . The obvious danger to Lykos remaining in office is what offense(s) will be next to be "unlawfully" subjected to her knife.
Calvin A. Hartmann
Anonymous said…
Anon 5:08 according to Pat, people on this blog call her a WHORE. If anyone did that, I am sure they meant it in the best possible way.
Anonymous said…
According to the TDCAA's top lobbyist, in an effort to win the War on Copper Theft, the Texas state legislature managed to make the theft of a single penny (coin) a state jail felony.

According to the U.S. Mint, even modern day pennies are 2.5% copper. Certainly enough to constitute a "trace" amount.

So I'm curious... if elected DA, would Mike Anderson prosecute penny-thieves to the full extent of the law? Or would he use his prosecutorial discretion to focus limited taxpayer resources on other priorities?

And please don't bother arguing about "legislative intent" or some such crap. Mike has repeatedly claimed in multiple public forums that the LAW is the LAW and you follow it AS WRITTEN and it isn't a prosecutor's job to decide which laws to prosecute and which laws to ignore.

So until the legislature (possible) amends the law and addresses this, would a DA Anderson pursue these charges?
Anonymous said…
To 6:28,

Theft under $50.00 is a class C, a night in the city jail, but great PC to search the suspect and get the crack pipe out his pocket and send his ass to jail where he will not be allowed to rape, rob, and steal...

A cop in the real world
Anonymous said…
Hilarious! You sure got him good!
Anonymous said…
Murray: Attempting to "translate" the letters to prove I am not a robot sometimes reminds of the days I was attempting to translate Ceasar's Gallic Wars in Latin class many years ago. ---
The answer to the penny question, intended to be an analogy to the trace drug question and suggest the absurbity of such prosecutions, to me is quite simple applying "crap" (the law). The rule that a penal statute is to be strictly construed does not apply to the Penal Code, and the provisions of the code are to be construed according to the fair import of their terms, to promote justice, and effect the objectives of the code.(See Objectives of the Code).[Please do not tell Lykos that -she will go even more wild). There is no such caveat or luxury to be applied to the Controlled Substances Act. Sorry that the answer had to be "crap" - by the way under the Code it also could be argued, for example, that the theft of an empty aluminum can is a state jail felony. I can not answer for Mike but I suspect that his answer for a penny theft is not to file a state jail felony under the above formula, but a Class C is still available in Justice Court.
Calvin A. Hartmann
Anonymous said…
I voted for Mike Anderson yesterday not because I'm a Republican or I think Lykos is mean or a crappy administrator or she is weak on crime (actually tend to agree with Anon 3:25)or because she had wood floors put in her office. I did it because I felt there was something fundamentally *wrong* with any employee of the DA's office taking the fifth in an investigation of their own office.
Anonymous said…
The Liecos drug policy just rewards "bogarts":

Don't Bogart That (crack pipe)
Lyrics: Lawrence Wagner
Music: Elliot Ingber

Don't bogart that (Crack Pipe) my friend - Pass it over to me

Don't bogart that (Crack Pipe) my friend Pass it over to me

pack another one, Just like the other one

You've been holding on to it
And I sure will like a hit


Pack another rock of crack
Just like the other one

That one's burned to the end
Come on and be a real friend

Knock, Bam! "POLICE - "DON'T MOVE M.F'S WHO HAS THE SHIT?" Officer 1 to Officer 2: " Damn we only got one. This guy over here who calls himself Bogart only blew what he had left in my face. "Alright arrect the stupid one for smoking too slow...dumbass! Don't you know who's DA?
Michael said…
There are plenty of reasons for the citizens of Harris County to show Pat Lykos the door next week. The fact that she chooses not to prosecute people for possession of less than a hundredth of a gream of a controlled substance is not one of them. The fact that the legislature enacted such an idiotic statute is not persuasive, nor is the fact that every law enforcement personnel in Harris County is outraged at losing another petty crime to roust suspects in the poorer parts of Houston.
Anonymous said…
To 9:17pm - Yes there is something fundamentally WRONG with a prosecutor in the HCDAOs office taking the Fifth in a Grand Jury investigation into the HCDAO. And Lykos rewarded her pet prosecutor by assigning her to the prestigous Appellate section. They deserve better, and so did the Grand Jury.

By the way, if Clint Greenwood hasn't voted yet, will somebody please take him to Montgomery County around 6am tomorrow. As we all know from the Rachel & Clay recusal circus, it will take Clint 10 days to get back to Harris County and he will miss the election!

Just Sayin'
Anonymous said…
Anon 9:17 - Hallelujah - God is Good!
Anonymous said…
Can anyone explain why the DAs office is paying a temp agency to place interns at the office. Seems like a real waste of taxpayer money.
Anonymous said…
which relative of lykos, polland, or emmett owns the temp agency?
Anonymous said…
Jimmy, Rachel, David...somebody better get those Lykos campaign signs off of the jury assembly building property by 9 or I'm filing a complaint...this is bullshit
Anonymous said…
I voted for Pat Lykos in 2008 and I am a former prosecutor in Harris County. I will not make that mistake twice.

When I was at the office, there was a rule - if you are stopped for suspicion of DWI, you (as a current ADA) had to give a breath sample.

Now, under the constitution, you were not required to blow. It was a known rule and it was a good rule.

While Rachel Palmer was well within her constitutional right to take the 5th, it didn't mean she should (from the office's perspective).

The fact she has been rewarded is insulting to every other ADA.

My vote is for Judge Anderson.
Anonymous said…
Re : Small crack : As long as you can prove the defendant knew the substance was cocaine the amount is irrelevant for the purpose of deterring cocaine use. The legislature could not make it illegal to use cocaine since impossible ever to prove unless filmed it. So they did next best thing and made it illegal to possess it. They didn't care as much if someone possessed it but they didn't want anyone using it and only way to deter use was to prevent possession. So whether you just used a bunch and only have a trace remaining in possession or whether you used some and have a bunch remaining, you are still a user and that is who the legislature and most citizens want arrested. If you want to legalize cocaine use and possession then convince the legislature. Don't fool people into thinking small amount possession is insignificant.
Anonymous said…
Early voting is 7am - 7pm through Friday. Vote at any early voting location in Harris County. No lines yet. Don't wait till Friday. Early voting locations:

After Friday, no voting till primary day on Tuesday May 29th, and then you can only vote at the polling place for the voting precinct where you are registered. In other words, don't wait, vote now.
Miranda said…
I'm as shocked at a DA refusing to prosecute petty drug cases as I am at a defense attorney encouraging a DA to prosecute shitty drug cases.
Anonymous said…
Excellent point Miranda. My guess is that nobody cares, except to the extent that they can use the issue to get rid of Lykos.

Anonymous said…
The totalitarian Republican control of this County will be it's downfall.
Anonymous said…
The office policy on trace cases makes sense. It should be continued regardless of who is in the big chair on six.
Anonymous said…
I'm sure many of ya'll have seen this, but it's awesome. It's a reaction to Lykos' assertion quoted below, and clearly states what the problem with the trial was.

"Absolutely not, the black prospective jurors were struck by
the defense, so there's nothing we could have done to
prevent what actually occurred with respect to jury
selection," Lykos said.

Says Chip--
"Mrs. Lykos, you really must tell the public the truth. You failed to challenge Mr.
DeGuerin's peremptory strikes of both black jurors on the panel. There is no valid
excuse. Your failure to challenge these peremptory strikes amounts to abject
incompetence or a desire to seat an all-white jury. By publicly proclaiming, "there's
nothing we could have done to prevent what actually occurred with respect to jury
selection," you really meant to say: "We chose not to enforce the Constitution of the
United States." Harris County's top prosecutor decided not to enforce the law of our
Even a non-prosecutor like you is familiar with Batson. Lest you forget your public
persecution of two very fine prosecutors relative to this constitutional maxim. You were
wrong then and you are wrong again. Mr. Curry, in case Mrs. Lykos has forgotten this
constitutional principle, please enlighten her. (By denying a person participation in jury
service on account of his race, the State also unconstitutionally discriminates against the
excluded juror. Moreover, selection procedures that purposefully exclude black persons
from juries undermine public confidence in the fairness of our system of justice. Batson
476 U.S. 85-88 (1986).)
It matters not that Mr. DeGuerin could have postulated race-neutral reasons for his
strikes. (I assure you Mr. DeGuerin did not need any help from you.) As the elected
advocate for this complainant, Chad Holley, you owed him a duty to fight for a fair and
impartial jury. Your failure to demand a race-neutral reason for the exclusion of all black
jurors reveals your true identity - you are nothing but a political grandstander. You are Mail - Tell The Truth
1 of 2 5/21/12 7:47 PM
not a prosecutor. You never have been and you never will be.
It is time for you to do the right thing - tell the truth. As you cannot not tell the truth, it is
time for you to resign and restore honor to the remaining assistant district attorneys of
Harris County that strive to honorably serve the public - black, brown, white and all. It is
time for Harris County to enjoy a district attorney, Mike Anderson or Zack Fertitta, who
will prosecute for all citizens and not politicize for self- promotion.
Anonymous said…
Only two potential jurors were black? In a whole venire? Even in smaller county court panels I've never seen such a thing in Harris County.

Now, if only two were shallow enough in the panel to potentially get seated, well, the prosecutor not only needed to make a Batson challenge, he needed to shuffle.

Anonymous said…
From what I understand there were many blacks but most couldn't be fair because they had seen the tape on TV. After all of the fallout since the verdict, you probably won't be able to get any next time. At least nit in this county
Anonymous said…
I thought that the officer was entitled to a jury of HIS peers. If that's true...WHY are you guys making such an issue of an all white jury?

Assuming or even declaring that an all white jury is somehow incapable of reaching a fair and unbiased decision just because they are WHITE is RACIST.

Shame on you for disparaging these fine jurors who volunteered their time to listen to this case and render the verdict THEY chose to render based on the evidence THEY heard.

Anonymous said…
To 6:27 pm : I heard there were 12 or so black people on the original panel and most were struck for cause (for non lawyers that means because they couldn't follow the law) before the defense got to use their peremptory strikes on the 2 who remained. Normally the prosecutor would try to rehabilitate those struck for cause including those who said they had formed an opinion of guilt from viewing the tape. They at least should have been told that they would be qualified even if they had already formed an opinion of guilt IF they could set aside that opinion during the trial and let only the trial evidence determine their ultimate decision in the case. And they should have been told that if they can't do that, they will be disqualified. That gives the juror an understanding of how the system works and how they can be qualified even if they already saw the tape and formed an early opinion. I wonder if that was done by the prosecutors in this case. If it wasn't, it would have made DeGuerin's job too easy in getting rid of them for cause.
Anonymous said…
11:53, the problem is that lots of judges in this county (the state, actually) don't understand the law on disqualification. They think any indication of bias should get them booted. Or, at least, will get defense-oriented jurors booted as a general rule in criminal courts. The reason I'm voting against all but one Democratic civil judge is because they do not understand, or do not care about, the law with respect to rehabilitating jurors. As a group, they exclude defense-oriented jurors and will bend over backwards to explain why they are keeping a plaintiff-friendly juror.

Knowing the law isn't all that matters in a court room.

Anonymous said…
Anon 8:53,

IF you really are a former HCADA AND you voted for Pat Lykos over Kelly Siegler in 2008 then any comment you might have on the issue in 2012 is without merit.
Anonymous said…
Anon 7:59,

Check with anon 8:53 to see who her dumb ass thinks Dick DeGuerin would rather try a case against:Pat Lykos' surrogate Clint Greenwood, Mike Anderson or Kelly Siegler.
Better not run that rhetorical by Dick he will shit his pants if he thinks he might have to face KS again.
Anonymous said…
After Kelly lost the primary last go 'round, most of us here probably voted for Lykos in the General Election. I would imagine that's probably what Anon 8:53 is talking about. Too many people jump to conclusions...
Anonymous said…
7:30am (Rage) : I am 11:53pm and agree partially with your comment but I think Ruben understands the distinction because I have tried cases w/ him when I was a prosecutor when the issue was handled the proper way. If Greenwood/Bily didn't attempt the line of questioning I suggested in my comment to rehabilitate those black jurors I think he really missed the boat. If he tried it and Ruben nixed it then shame on Ruben.
Anonymous said…
Anon. 8:53: You voted for Mike Anderson now. That's what counts! Please get all your friends and family to the polls for Anderson, Guiney, Vinas, Magee, and Patrick.
Anonymous said…
Would someone please explain why some people spell Lykos with a "c" instead of a "k"? Is there some significance to that, or do they really not know how to spell it after all this time?
Anonymous said…
Because that might be the closest to mucus???
Anonymous said…
Part of the reason that is given for the use of a 0.010 gram (10 milligram) standard for residue cases is that this allow the defense to request a retest of the evidence. The question that should be asked about this amount is just how many times do you want it re-analyzed. Only a sloppy, incompetent lab would use that much material for analysis in a residue case. The greater concern for me is that this standard was created outside the law and that it is an arbitrary standard. As long as we are getting arbitrary, why not just do away with all those MJ cases, even if it is a usable amount? If small amounts of crack are not punishable, then why are small amounts of MJ?

Then we are told that DWI is a huge problem. So much so that we now routinely have No Refusal weekends and mandatory blood draws through search warrant. A magistrate is kept on stand-by, and multiple agencies provide large numbers of officers, deputies, and troopers to enforce the law, all at huge cost to tax payers. Then the importance of all this law enforcement effort and the true seriousness of DWI is brought home through the DIVERT program. Makes you wonder if anyone ever bothered to think this through.

I also find the comparison of Lykos to Holder appropriate. Both have made up law to suit their own needs and agenda. Both swore to uphold the law as top law enforcment officials, yet both seem to have total disdain for that law. I guess that's why both are also held in such high esteem.

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