David Hilburn is still Alive and Well

From our Bad Rumor-Squashing Department . . .

I was asked today by a concerned attorney whether or not beloved former prosecutor (and Brazos County) David Hilburn had passed away.  Since Dave is a really good friend of mine, I was pretty sure I would have heard that news, but I texted him to be sure.

Dave was happy to report that he is still alive and well, but acknowledged that this was the second time this week that someone had texted him to ask if he was dead.

Apparently, another David Hilburn passed away recently and that David was a friend of a friend on Facebook, who had subsequently posted "RIP David Hilburn," and that's where the confusion began.

So, rest easy friends, Dancing Dave is still not dead.

Rocks, Hard Places and Writs of Attachment

Last night, Channel 2 KPRC's Jace Larson profiled the disturbing story of a sexual assault victim who had been placed in the Harris County Jail on a Writ of Attachment after having a nervous breakdown in the trial against her attacker.  The details of the story are mortifying:

After a rape victim named Jenny had an obvious mental breakdown while testifying against her attacker, Harris County prosecutors decided the best way to make sure she'd return to complete her testimony was to lock her up in the Harris County Jail.

From there, things went from bad to worse.  The report, paraphrasing the lawsuit filed on "Jenny's" behalf by attorney Sean Buckley noted:

Buckley says his client was put in jail without due process, given a black eye by another inmate while kept in jail for nearly a month over Christmas. Jenny also suffered injuries when she was punched by a jailer after she attacked the guard. Jenny was charged with assault but prosecutors later dropped the charge. 

The idea of arresting the victim of an Aggravated Sexual Assault on a Writ of Attachment is a PR nightmare, isn't it?  It certainly flies in the face of a District Attorney's Office mission statement to seek justice for the victims of crime, right?  Are prosecutors so desperate to win their cases that they will stop at absolutely nothing?  Even if it means locking up a mentally ill victim of rape?

Well, ultimately, although the actions taken by the District Attorney's Office may have been illegal, the motivation isn't quite as sinister as the news article would make it out to be.

The case surrounds the trial of Keith Hendricks, an accused serial rapist who was believed to have targeted homeless women in Downtown Houston.  His case had previously garnered media attention when the media was focusing on the backlog of DNA testing from HPD.  A glance at this article from March 2015 notes:

Another suspect, Keith Edward Hendricks, a homeless man convicted of a 1978 rape in Indiana, is now facing four sexual assault charges from 2006 to 2013.  Officials said Hendricks attacked homeless women, luring them to abandoned buildings and raping them, sometimes while brandishing weapons such as a box cutter.

A kit in the city's backlog first tied him to a 2006 sexual assault.  One year after that alleged rape, he was ordered to submit a DNA sample on another sexual assault charge.  Had officials tested the 2006 kit, it might have spared a victim in an alleged 2013 rape. 

But the women accusing Hendricks of rape may have been difficult to put on the stand, said Jane Waters, head of the district attorney's special victims bureau.  Many of the women were homeless, and some had drug or alcohol addictions. 

Although a brutal crime still is not ever justification for breaking the law, this does give some insight into the scenario that arose around "Jenny."  The D.A.'s Office had evidence indicating that Hendricks was targeting transient and mentally unstable women, and Jenny apparently fit that description.  The prosecutor tasked with handling that type of case has a tremendous challenge of getting his witnesses to just show up.  Obviously there is a public safety interest and justice needs to be served, but that can be easier said than done.

The prosecutor on the case was Nic Socias, who is named in both the KPRC story and Buckley's lawsuit.  I know Nic and I've worked on cases with him.  He is a good prosecutor and an ethical one.  In my experience, he's always been a standup guy.  Unfortunately Nic found himself in the middle of a trial where he was not only prosecuting a man accused of doing horrible things, but also one that was a continuing danger to people just like "Jenny."  Her breakdown on the stand may or may not have been expected, but her unreliability certainly had to have been anticipated.

To take a dangerous man off the streets, Nic had to have Jenny's testimony.  The problem he had was there was no legal mechanism for making sure that Jenny came to court.

As Buckley noted in his Complaint:

Texas state law authorizes a judge, upon request by a party, to issue an “attachment” order and/or a “witness bond” to hold a material witness in custody without bail, or release her subject to posting bail, respectively. An attachment order was unauthorized because [Jenny] was not subpoenaed as a material witness and was not a resident of Harris County. See Arts. 24.12 and 24.14, Tex. Cd. Crim. Proc. Nor could [Jenny] be held on a witness bond, since the applicable statute prohibits jailing witnesses who are, as [Jenny] was, financially unable to post bond. See Art. 24.24, Tex. Cd. Crim. Proc.

Article 24.12 states that a writ of attachment is possible for "a witness who resides in the county of prosecution," but in this instance, Jenny was apparently a resident of Gregg County.  I'm not sure about the allegation that she hadn't been subpoenaed as a material witness, but that jurisdictional issue could potentially be a big problem.  Additionally, Article 24.24 does clearly state that if "any witness is unable to give security upon such bail, he shall be released without security."

What followed after the Writ of Attachment was executed on Jenny was a series of unfortunate events that continuously went from bad to worse.  Although initially Jenny was being housed in a mental health facility, she ultimately ended up in the Harris County Jail.  Once in the jail, Jenny was treated like any other inmate accused of a crime.  She was listed as being there for a Sexual Assault case, and apparently jail personnel missed the designation of her being there as a Witness, rather than as a Defendant.

As Buckley notes in his Complaint, what happened to Jenny after that does truly resemble a Kafka novel.

“Someone must have slandered Josef K., for one morning, without having done anything truly wrong, he was arrested.” —Franz Kafka, The Trial.

Ultimately, what happened to Jenny is what we risk when we follow the adage of "well, we've always done it this way."  Uncooperative witnesses who prosecutors know (or believe) won't show up for trial get Writs of Attachment filed on them.  Unfortunately, it doesn't appear that the parties involved looked at the Code of Criminal Procedure before taking Jenny into custody.

In most instances of Writs of Attachment, the witness is held overnight or for a few days at most.  In Jenny's case, there was a break in the trial for the Christmas holidays that led to an extended stay for her.  That's how all Hell broke loose.

Whether or not the D.A.'s Office and all the named parties in Jenny's lawsuit are protected by governmental immunity is something that will be decided by the Federal courts.  I don't practice civil law, so I won't make any predictions.  I do think Jenny's rights were violated and what happened to her compounded an already tremendous tragedy.

That being said, I have a hard time throwing any stones at Nic Socias or the District Attorney's Office.  Prosecutors often have to proceed on cases in the interest of justice, even when the victims don't want to cooperate.  I can recall more than one case I prosecuted where a child was being sexually abused by an adult relative and nobody in the family wanted it prosecuted.  To accuse Nic or the District Attorney's office of not caring about Jenny or other victims of sexual assault is just simply not true.

Unfortunately, the road to Hell is often paved with good intentions, and this whole incident reminds me of the infamous quote from Vietnam that said, "It became necessary to destroy the town to save it."

Whatever the outcome is of this case, I feel sorry for all involved.

The Perils of Politicians Pandering

Ugh, politicians.  They truly can be nauseating critters.

In most cases, the Empty Suit style of shaking hands and kissing babies is innocuous enough.  I mean, if a vote is earned because someone agrees with your gutsy stand that babies are cute, more power to you.  Sadly, the voting public has proven time and again to not be all that hard of a sell when giving up its vote to style over substance.  I could expand on this, or you could just switch over to any major news channel and you'll get the point.

Try as I might, though, I just can't get past the frustration of watching elected officials allow political pandering to seep into the criminal justice system.  As I've written time and time again, partisan politics have no place here.  If a candidate wants to sit on a criminal court bench or run for District Attorney, his or her position on abortion, gay marriage, foreign policy and taxes are irrelevant to their job description.  In theory, those who hold elected positions in the criminal justice system should be governed by the law and only the law.  What they do should be insulated from politics of any kind.

Unfortunately, the horrific events in Minnesota, Louisiana and Texas over the past weeks have practically begged for hardcore Republican politicians to prove to the electorate how pro-police they are.  There's nothing wrong with being pro-police, mind you.  I've never been shy at expressing my admiration for police officers and the jobs they do.  I admired them as a kid.  I admired them as a prosecutor.  And even though I've heard them grumble about my move to the "Dark Side," I continue to admire them now as a defense attorney.

The killing of eight officers in Dallas and Baton Rouge hurt my heart and they make me worry for my friends who are police officers locally and around the country.

And before someone starts asking, "Why are you only talking about the deaths of police officers and not the killings of Alton Sterling and Philando Castile?", bear with me.  I'm not writing this particular post to compare the worth of competing tragedies, but I will talk about them in a moment.

Today, Texas Governor Greg Abbott announced that he would be proposing what he called the Police Protection Act, to the cheers and accolades of all police-loving Republicans everywhere.  If the Act passes (and what good politician would ever oppose a law that protects the police?), if a crime against a police officer is proven to be motivated by the hatred of police officers in general, then that crime can be found to be a "hate crime" and raised to a higher degree of crime.

Uh huh.  Now, let's talk about that for a minute.

As noted in the Governor's press release, police officers (in their capacity as public servants) are already treated as a protected class under the laws of the State of Texas.  If you punch me in the face, the worst you are looking at is a year in the county jail, and perhaps an enthusiastic hug from Pat Lykos.  If you punch a police officer in the face, you are looking at spending the next ten years in prison.

If you were to take a gun and shoot me in the leg, you would be looking at a maximum of twenty years in prison.  If you shoot a police officer in the leg, you would be looking at Life in prison.  If you shoot me and kill me, the worst thing that could happen to you is Life in prison.  If you shoot and kill a police officer, the Death Penalty is most likely going to be sought.

The point is, Texas Law already has very harsh upgrades in punishment when the victim is a police officer.  Abbott's proposals under the Police Protection Act will have very few practical upgrades in punishment, but damn, it sure does show how much he loves police officers, doesn't it?  Okay, if you punch a police officer in the face solely because you hate police officers, you could be looking at up to twenty years rather than ten.  Of course, the prosecutor is going to have to prove up that hatred of police officers was your sole motivation  -- not as easy as it might sound.

But it isn't as if an Aggravated Assault on a Public Servant can be upgraded from a first degree felony to a capital offense without a fatality.  The big thing that Abbott's proposal does is call for police officers to be treated as a "protected class."  However, police officers already are a protected class.  The Act is 99% pure pandering and Republicans are loving it.

Although I'm not a big fan of Governor Abbott in general, one can forgive him for his pandering.  Even though he is the former Attorney General of Texas and should be a little embarrassed over it, "Feel Good Legislation" is part of a Governor's job description, I suppose.

That can't be said for Criminal District Court Judges, however.  An honorable Criminal Court Judge is the one guided by the law and only the law -- public opinion be damned.  Law above politics no matter what the fallout, right?

Apparently not if you are Judge Kerry Neves of the 10th District Court of Galveston County, who made a post on his Facebook page today, which read as follows:

I have just signed an Order which goes into effect immediately in this Court. No plea bargain agreements for deferred adjudication or probation involving Assault on a Public Servant, Evading Arrest, Resisting Arrest or any other offense in which a member of Law Enforcement is threatened or placed in danger will be approved. In the event the State and the defense attorney believe there is compelling evidence to support such an agreement, the Court may consider it if presented with such evidence. Approval will require a sincere written statement of apology to the officer or officers involved, and agreement from the officer or officers involved to the plea bargain agreement. Prior criminal history will play a big role in whether any such agreement is approved.

If approved, the defendant will be required to read the statement in open Court.

I may only be one person, one Judge, but I will do what I can to stop the disrespect and aggressive behavior against our police officers. If you are an officer, spouse of an officer or know an officer, make sure they know of this change in my Court.

I love the last paragraph.  "I may only be one person, one Judge . . ."  Martyrdom is a lonely business.  "If you are a registered voter an officer, spouse of an officer or know an officer, make sure they know of this change in my Court."  At some point, there seems to be a very fine line between showing solidarity in the wake of a tragedy and capitalizing off of it.

What better way for a judge to announce that he has prejudged the credibility of absolutely every officer that will ever testify in his court and graded that credibility as Immaculate?  What better way to announce that, as an elected judge, you cannot be open to the full range of punishment on any case where a law enforcement officer is the victim?

So, the kid that runs three feet from a police officer before getting tackled doesn't get probation, huh?  The guy that elbows the officer in his bulletproof vest is looking at a minimum of 2 years TDCJ in your court?  That Facebook post pretty much assures us that there are no shades of gray in Judge Neves' court.  As my friend Jeremy Gordon pointed out, if you are a defense attorney in Judge Neves' court, you better have a Motion to Recuse ready, unless you want to be ineffective.  Politics have forced out any minimal appearances of judicial neutrality.

Which brings me to the killings of Alton Sterling and Philando Castile.

I've watched the videos on both shootings and I've read the different articles (and multitude of personal opinions) on them.  My personal opinion is that it looks pretty damn bad for the police officers involved.  I'm not a police officer and I wasn't there, but what I've seen merits a trial.  I've been disappointed in those who have tried to drag Sterling and Castile's reputations through the mud rather than address the actions of the police officers.  

I recognize that police officers have dangerous jobs and risk their lives on a daily basis.  They also have special training and equipment that is designed to minimize the risk of death for all parties involved in a police encounter.  Just as a surgeon would be held accountable if he or she were to act outside of his or her training and cause a death, so should a police officer.  This isn't a call for conviction.  It's a call for examination and accountability.

I can't imagine any rational mind looking at the videos of the deaths of Sterling and Castile and thinking that neither of them deserve any level of scrutiny.  To feel that way exposes a level of bias that is contrary to the principles of criminal justice.

It's apparently a level of bias that Judge Kerry Neves is quite comfortable with.

Simple Tragedy

Like most of you, I've been stunned by the events of the past several days.  The deaths of Philando Castile and Alton Sterling followed by the attack in Dallas have illustrated that there is now a clear war between those who support #BlackLivesMatter and those who support #BlueLivesMatter.

This is the moment we've been waiting for, right?  The official declaration of war?

For years, every time a black male died at the hands of the police, it indicated a war was coming.  Every time a police officer died at the hands of a black male, it was a war coming.  The events of this week have surely removed all doubt that we now have a full-fledged war, haven't they?  Clearly the videos graphically depicting the deaths of Castile and Sterling prove a systematic targeting of black males by homicidal cops.  Correspondingly, no one can argue that sniping 12 cops from an elevated position isn't "targeting."

We obviously have two very homicidal groups of people clashing with each other now, don't we?

To find sympathy and understanding towards one of those groups is to most decidedly turn your back on the other.  If you think that Castile and Sterling should still be walking the Earth today, you are quite obviously a Cop Hater.  If you think that Micah Xavier Johnson was nothing more than a coward and a murderer, then clearly you have no sympathy or understanding for the plight of African-Americans who face police brutality on a daily basis.

You simply must chose a side, for better or for worse.  Failure to do so only earns you the disdain of both sides of this war.

Many moons ago, when I was in college, I took a sociology class where the professor made the off-hand comment that the only taboo that was acknowledged in all cultures was treason.  Initially, the statement seemed overly broad.  However, if you think about it, it makes sense.  Across the globe, there are some cultures in some places that will condone killing, stealing and raping.  None of those cultures, however, will tolerate betrayal.

As a former-prosecutor-turned-defense-attorney who still holds a great general admiration for the people of law enforcement, I think about that statement often.  When I blog in defense of a police officer (or prosecutor), I'm occasionally treated as being quite treasonous by the Defense Bar.  I used to be a member (and board member) of the Harris County Criminal Lawyers Association, but my ties to old friends from the D.A.'s Office and my work on Cold Justice ultimately led to the end of that relationship.  Conversely, when I criticize decisions of the District Attorney's Office or the police department, I suffer the same level of ire and criticism.

Man, it's rough out there trying to think independently.

But, I digress.

At the end of the day, in the immortal words of Obi-Wan Kenobi, "Only a Sith deals in absolutes."

Although it may be more satisfying to pick one side or the other, there are no such things as absolutes when it comes to humans.

Some of the most honorable, intelligent, brave, and selfless people I have ever had the honor to know wore a badge.  I may not have always agreed with them, or wanted to hear what they had to say, but in the vast majority of cases, I didn't doubt their honesty.  On the other side of the coin, I've spent the past seven and a half years of my life representing people accused of crimes -- from the innocuous to the heinous.  Some were guilty.  Some were innocent.  All were humans that had a story to tell and a reason for being in the position where I first found them.

None were the monsters that prosecutors often believed them to be.

The events that led to the deaths of Philando Castile, Alton Sterling, Lorne Ahrens, Michael Smith, Michael Krol, Patrick Zamarippa, and Brent Thompson were events that are a sad reflection of what the world is like today.

But they aren't a reflection of a "war."

There are horrible police officers out there who will use their badges as a license to lie, cheat, steal, brutalize, and sometimes, murder.  It cannot be denied that this happens, much more than we are comfortable admitting.

And of course, there are citizens who will lie, cheat, steal, brutalize, and sometimes, murder, albeit without the protection of a badge.  These are things that cannot be effectively prevented, unfortunately.  As much as we try, wish, train against, pray for, or teach about, there is no way to wipe out those who seem to truly enjoy harming their fellow man.

We flock to causes in the delusional belief that we can, though.

Yesterday, prior to the attack in Dallas, I watched a Facebook skewering of an individual who had dared to say "All Lives Matter" in response to a friend who had posted about #BlackLivesMatter.   Man, it was brutal.   This person was clearly going to perpetuate more deaths with an "All Lives Matter" posting, and thank God, Facebook was there to shout her down.

Four hours later, I was reflecting on the fact that five police officers went to work their shifts that day and never came home.  They said goodbye to their families with the assumption that they would see them again in a few hours, but those simple reunions would never happen again.

The families of Philando Castile and Alton Sterling would sympathize.

I'm rambling.  I know.  But in my opinion, none of this should be described as a "war."

It may make us feel better to pick a side and run with it, but that solves nothing.

This is simple tragedy.

Just an Observation

I was talking to a friend and fellow defense attorney today.  He told me about a recent experience with a younger prosecutor who had claimed being ready for trial and announcing that a case was "first up."  As it turned out, the prosecutor was not only not ready for trial, but also knew that the court wasn't going to trial that week -- the bold announcement of being "ready" and "first up" were merely ploys to get trial counsel to take a plea bargain.  The ploy failed, although the defense attorney spent his three-day weekend prepping for a trial that the prosecutor knew damn good and well wasn't going to be happening.

This particular maneuver by a prosecutor isn't a new one, but it is definitely chickenshit.

Our conversation then turned to the departures of three felony Chiefs and one very senior Felony Two from the D.A.'s Office in the past two weeks.

"You think they (the four departing prosecutors) ever would have pulled that shit?" I asked, referencing the younger prosecutor's maneuver.

Of course the answer was no.

The prosecutors leaving the Office right now are the exact types of people that shouldn't be leaving, and something needs to be done to stem the bleeding.

That "something" may not win any additional votes, but it goes a long way towards fulfilling that oath about seeking Justice.