Wednesday, November 9, 2016

What Happens Now?

Walking through the halls of the CJC this morning brought a very unwelcome feeling of deja vu.  Eight years have passed since November 5, 2008, but there were many unpleasant similarities between that election's "morning after" and today.

To be fair, there were some minor differences, too.  In 2008,  we prosecutors had known since May that someone from outside the D.A.'s Office would be taking over -- we just had to wait until November to find out exactly who that person would be.  We had a politically neutral caretaker in the form of Ken Magidson, who was there to facilitate the incoming Pat Lykos Adminstration, and he had been a calming force in the transition.  We had been through so much turmoil earlier in the year that Lykos' victory seemed somewhat anti-climactic.

And then the morning after arrived.

The rumors started swirling immediately.  Rumors of who was getting fired.  Rumors of who was getting hired.  Rumors of demotions, promotions, and policy changes.  Rampant speculation was asserted as fact.

We learned who our friends were.  There were plenty of defense attorneys who could not have been more kind, sympathetic and supportive to all the assistant D.A.s who were facing an uncertain future.

And then there were the jackasses.

The ones who floated rumors of a "list" going around of all the people sure to be fired by Lykos.  The ones who gleefully spoke loudly in the courtroom of which prosecutors they couldn't wait to see fired.  And then there were the mega-jackasses, who insinuated that they had a significant amount of influence over what prosecutors would be placed on "the list."  I even had one defense attorney come tell me how pissed off he was that Lykos wasn't firing a prosecutor that she had promised to fire when he (the defense attorney) had donated to her campaign.

And then came the Gatekeepers to the Defense Bar.  These loud-mouthed attorneys warned that prosecutors who had previously crossed them would be neither welcome nor successful if they found themselves attempting to become a defense attorney.  Apparently they felt that they were privy to some sort of Star Chamber that had the exclusive right to grant passage to the defense bar.  Some said that a seasoned prosecutor's tenure at the D.A.'s Office was a worthless attribute if one wanted to be a defense attorney.

I've now been a defense attorney for closing in on half of my legal career, and I still get the occasional jab about not having let go of my prosecutorial roots.  I have a large number of clients, past and present, who would beg to differ.

All of this was so very reminiscent of the popular kid in grade school who felt threatened when a new kid moved into the class.

It was silly, stupid and unbecoming of a grown-up -- let alone a lawyer.

I bring this up, because I saw all of this bullshit happening again in the courthouse today and it annoyed the crap out of me.

The reality is that some of the current prosecutors will lose their jobs during the transition from the Anderson to Ogg Administration.  If you find yourself having to start over on January 1st, it will suck and it will be scary. It will also pass.  You will find yourself stronger and wiser for the experience.

Trust me on this.  I have a little bit of knowledge on the topic.

There will be defense attorneys who will be glad to help you get your feet back under you and explain the ropes.  You will never forget their kindness and they will become people you consider your mentors.  I have a laundry list of people that I feel eternally indebted to.  Pat McCann, Dan Cogdell, Charles Thompson, Charley Davidson, and Mark Bennett (yes, I said Mark Bennett) are just a few that immediately come to mind.

You will also always remember the ones that weren't kind -- just like you remember that schoolyard bully from grade school.

Most important, if you do decide to become a defense attorney, do it with pride and dedication.  It won't take long before you realize how much you generally like your clients.  Sure, there will be the ones that piss you off royally, but the vast majority are decent people, scared shitless of the criminal justice system, that need and deserve your help.  You will have the power and ability to change (and sometimes save) lives.

If none of what I've said thus far makes you feel better, then let me share, once again, the obligatory story of my last day at the Office.  Misery does, in fact, love a bit of company, I have learned.

In December 2008, I knew that my contract as a prosecutor wasn't going to be renewed by Pat Lykos.  I was going through a contentious divorce and wasn't getting to spend Christmas with my then-3-year-old son.  My parents were spending Christmas in Florida and my sister and I weren't speaking to each other at the time (bygones).  I looked forward only to a lonely Christmas with my dog and I planned on my final departure from the Office to be at noon on Christmas Eve.

And then Ken Magidson fired me (for the second time) at 9 a.m. that morning because of things written on this blog.

I went home to my sad and pathetic bachelor apartment, wrote a blog post about getting fired, and then got in the car with my dog to just get the hell out of town.  As I slowly navigated through stop and go traffic on Highway 290, I checked my e-mail on my Blackberry.  Much to my surprise, I had an email from Chuck Rosenthal, who had apparently read my blog post about getting fired.  It read simply:
You were never my favorite prosecutor, but at least I respected your First Amendment right to write what you wanted.
At some point, the absurdity of the situation became so much that I just started laughing.

To be honest, the first day walking into the CJC as a defense attorney felt unnatural and awkward.  It took me at least a month to stop offering State's Exhibit 1 during pleas.  But each day got better than the one before.  I came to realize that although it would have never been my choice to leave the D.A.'s Office, it ultimately became one of the best things that could have ever happened to me.

But I won't ever forget those days in between.  My heart goes out to those of you at the Office dealing with uncertainty.  I promise you it gets better and no matter how it feels right now, it will be okay.

As always, if any of you need anything -- from help, advice, or just a sympathetic ear, call me.


rsp said...

Good post Murray ... hopefully this will be a smoother transition for most prosecutors and few terminations.

Damon said...

Interesting read Murray. I am sympathetic to anyone that loses their job, but not to ADA's that were bullies, rude or operated with no regard to fairness. Whether right or wrong, there are prosecutors that I would never accept as defense attorneys without some intervention from the man above.

Eddie Cortés said...

Tell me something though, if being a DA "is a calling." What is being a Defense Attorney?

Murray Newman said...

I answered your question on Facebook, but I wanted to put it here, too. For me, being a defense attorney was looking at the other side a coin that I'd never paid attention to before. And I firmly believe that I'm a better person for it.

On an unrelated note, when was your profile picture taken? Your senior year at BHS? Your hair has been grey since the first Bush Administration, brother.

Eddie Cortés said...

Yeah, but when you act like you're doing "God's work" it leaves you very little room to understand the other side. And sometimes that leads to disrespect.

I remember when I first started. The disdain. The disrespect. That lack of collegiality. I don't know the specific attorneys you're talking about but I remember being treated like I was asking my dad for money when all I was asking for was to look at a file. I still see people take pleasure in enhancing a misdemeanor to a felony. I still here the frustration behind, "Why doesn't he just take the probation??" I still see years in prison being handed out like Skittles. I don't take too kindly to that and although I may not punch their meal ticket, I sure as hell don't have to be nice to them.

Unknown said...

Enjoyed the blog MN. My job hunt is underway.

Unknown said...

Should recently fired ADAs,especially the young ones, be given court appointments straight away? Or should they get at the end of the of line, struggle like the rest of us have, and learn how to represent people first?

Murray Newman said...

That's also a fair question and I think the answer is based on capability far more than anything else. Every lawyer has his or her first case somewhere at some time. In a strange twist of fate, my first case was retained. It also resulted in me getting it dismissed on the first setting. I felt like I was ready to start.
I suppose the simple answer is that ready is ready. If you aren't ready to represent people charged with crimes, then spend some time learning before you do so. That applies whether you are fresh out of law school or fresh out of the DA's office.

Unknown said...

Great post Murray. I share my story of losing my job to politics. In 1998, Judge Baird, the last statewide elected Democrat was defeated by Judge Keasler. At the CCA, when your judge loses - the entire chamber loses their jobs - staff attorney, briefing attorney, and secretary. I remember coming in the morning after the election and some judges had Cheshire cat grins not even trying to hide their glee. But I remember Judge Holland - solid Republican stalwart - came and offered comfort. She asked if I was ok and she would do whatever she could to help me. Eighteen years later, I am still tearing up at her kindness.
I left Austin, was fortunate to have the greatest mentor ever offer, Mac Secrest, offer me some office space ... and it worked out.
I have been thinking about the ADA's who might lose their jobs -- I am sorry. It sucks. Good luck. Even if you don't know me - stop by the PD's on 13 and I'll offer whatever help I can.
Jani Maselli Wood

Unknown said...

I think that is a fair statement. I have been at it for three years, been mentored by great attorneys, attended more CLEs than most lawyers attend in a lifetime, have been trained through Gideon's Promise specifically how to represent indigent clients, I have won all but one trial (that was not my case to work up), I have won every motion to suppress, and I have received more than my fair share of dismissals, yet I still cannot get a court appointment in Harris County because I am not a former prosecutor. The problem? It is largely not a merit-based system, and it is not my style to try to get to know judges, just like it was not my style to be a teacher's pet. Yet I see former ADAs plugging away at the plea mill day after day as soon as they are let go from the HCDAO. It just doesn't seem fair. I guess the real question is whether being a capable prosecutor makes you a capable defense attorney straight away. Looks like its back to the end of the line for me and many of my brothers and sisters in arms who could really fuck up the system.

Anonymous said...

Personal politics exist in all jobs. The HCDAO is only worse because every cop and lawyer think they are somehow more special than every other citizen.

It's a job. Nothing more.

Anonymous said...

Hey look on the bright side. At least one lawyer we know will still be getting court appointments, Jim Leitner!

Murray Newman said...

I would be VERY surprised if Leitner isn't part of the new Ogg Adminstration. He attended her campaign kickoff announcement and she can tout his previous experience. I'll bet he's polishing up the belt badge as we speak.

Anonymous said...

Leitner ran against longtime dem hack Vince Ryan. Ogg would anger many dems by giving him a role in her regime. On the other hand, it will give Jim time to brush up on his computer solitaire skills.

Murray Newman said...

You may be right, but I'll bet you $10 he goes back.

Pam Knobloch said...

Very well-put, my friend

Anonymous said...

How long before your buddy Clint is back to being a defense attorney?

Anonymous said...

I am marveling at how quickly your perspective changes once you start defending people if you previously prosecuted. Nathaniel

Roy said...

I am not an attorney, mearly a prior officer and deputy sheriff who was asked by a great attorney to be her investigator when she was "Devon'd". Since then I have worked with many attorneys helping with the defense. As in all lines of work, some are better than others. I have found that former prosecutors have an insight into the system that helps ensure or at least try to ensure a fair trial.

It has taken a long time to change the mind set from they are all "turds" and if the police arrested them they must be guilty. I no longer believe that after reading reports that barely if at all meet the basic elements of a crime. Like former prosecutors making good defense attorneys, former cops make good investigators.

Maybe with a new administration the baby ADA's will actually read a file before offering 40 years to someone.

I will tell the one example that will forever make this job my calling. A client had sat in the HC jail for six months. It took that long to get a copy of the report from the DA. The incident was at an apartment complex. A neighbor heard sounds of distress from an apartment. The manager attempted to enter with his set of keys but could not and HFD had to force entry. The complaint who also turned out to be MHMRA accused our client of sexual assault and that she had beaten unconscious . The initial deputy missed it, the investigation missed it, but all you need to know to show this crime couldn't have happened is in this paragraph.

Even after showing this to the ADA they didn't want to dismiss the charge but eventually had no choice. Sometime it just takes a fresh set of eyes to see where injustice is hiding. To me it is a tragedy that "punitive pretrial jail time" and anything to get stats is the norm. The DA has a job to not only prosecute the accus d but to ensure that justice is served, even if that means dismissing charges that should never have been accepted in the first place.

Maybe Kim will take a look at her intake system and make some much needed repairs and that the ADA's working that job will be more then a name on the report as accepting charges and more a true gateway to avoid bad charges.

Unknown said...

I am surprised that there are so many defense attorneys who would not "welcome" certain ex-prosecutors to the defense side. Come on people, this is a PROFESSION! These prosecutors that got under your skin were doing their jobs the way they thought they should. Perhaps getting under our (defense attorney's) skins was a sign that they were doing their job well! (At least, as they saw it.) I welcome all in our profession to the defense "side" and wish them well. After all, if they are professionals they will want to do the best in any part of the legal profession they are in. The reputation they build is their most important asset!

Anonymous said...

Glad you are keeping at the Blog....I haven't seen you in years but I absolutely love your writing style and wit. You simply must write a book.

Anonymous said...

It's not much better inside the office. The cool new thing to do is "accuse" people of being secret Ogg campaigners. I wish I were making this up.

Anonymous said...

Anonymous said...

We can only be thankful Lloyd Oliver didn't run for a position this year. Randy Roll is enough of a joke.
If only the administration running the probation department had to campaign to retain their jobs. Perhaps some much needed reform and respect for the hard working officers and the few compassionate supervisors would improve the collapsing morale. Teresa and Bryan, along with Neil and Winfred only give lip service to treating their staff with respect and dignity. They are a joke and have the judges fooled.

Unknown said...

"The cool new thing to do is "accuse" people of being secret Ogg campaigners."

That's just a little reverse psychology. The "accused" are the ones who won't get fired.

Anonymous said...

I like pancakes

Unknown said...

Turtles are better.

Anonymous said...

Coming up on four weeks since the election. Any changes announced yet?

Anonymous said...


Anonymous said...

To Anon 12:20

Well yes! Big changes were announced on Channel 2 yesterday. The incoming DA will: prosecute violent crime; decriminalize marijuana and; reform bail in Harris County.

OK, so even Lykos prosecuted violent crime. That's nothing new.

The DA cannot decriminalize anything, but those whacky folks that meet in Austin every two years can.

What the heck does the DA have to do with bail reform? She might want to read this before getting involved with that issue:

Hopefully the new DA will move past the window dressing and move on to real issues.

Anonymous said...

So she takes office in what...18-19 days? Her only announcements are that she wants to keep doing the 1st chance program, read about a bail lawsuit, and hired an employment lawyer and some other "Bobs" type figures on her "transition team"?

Who is the 1st Assistant? Will there still be a bail schedule? How will cases be handled differently? Does she want to make any substantive announcements before she takes office or just wing it? Did she not have a plan past running for election?

Anonymous said...

Anon 6:59

She cannot do away with the bail schedule. It was created as part of some Federal lawsuit settlement in either in the 70's or 80"s. You would need someone with institutional knowledge like Bert or Calvin to give you the backstory. Also, the bail schedule is set by the Judges not the DA.

As for a plan after the election. We will have to wait and see if there is a plan or simply flying by the seat of her pants.

Anonymous said...

Apparently all will be revealed at noon today via email.

Way to start off classy.

Anonymous said...

Looks like 37 not counting retirements and those who leave voluntarily. Fired by email a week before Christmas with no meetings.


Hope you weren't hoping for transparency....