Falkenberg's Article Today

Okay, so compared to some other articles that Lisa Falkenberg has written, the one in today's Chronicle isn't so bad, and actually has newsworthiness to it.

She apparently met with 10 former and current African-American prosecutors at Vivian King's home to discuss what it was/is like to work at the District Attorney's office. In addition, Lisa also interviewed Joe Owmby for a counter-point to what was said at Vivian's house.

Out of the ten prosecutors at Vivian's house who spoke, only two, Carvana Hicks and Te'iva Bell had the courage to list their names in the article, which in my opinion gives them a lot more credibility than those who don't.

For those of you who don't know Carvana Hicks, she has a sterling reputation within the D.A.'s Office on both sides of the Bar. She is also someone that is truly working to make this community better. The fact that she is raising a red-flag means that the messsage clearly needs to be listened to.

And the fact that Chuck Rosenthal sends out an office wide apology for the "ear kissing e-mails" when they are revealed, yet remains conspicuously silent after the "watermellon e-mail" is offensive.

And in my humble opinion, there's no excuse for that.

Te'iva Bell is a former prosecutor, whom (to my understanding) had a difficult time in the felony bureau with the outcome of some of her cases, and left the Office as a Felony Three (if my information is correct. I can't 100% attest to this). She stated that a Chief told he that she was letting too many minorities on a jury is a little surprising, but it's worth noting that the written evaluation that Te'iva produced stated she needed to be aware of the "make up" of her juries. Falkenberg doesn't specify what the exact phrase of that sentence was, so there's no way to know the complete context.

I will say this, though. All attorneys who litigate have to be aware of the "make up" of their juries. That doesn't mean racial make up. That doesn't mean gender make up. That doesn't mean religious make up.

It just means make up. Folks, the media seems to think that walking into voir dire and saying "I'll take the first 12 jurors" is a fine way to select a jury. Nice idea, but its just not right. If that idea worked, there would be no such industry for The Jury Consultant. In higher powered civil trials and also in capital murder trials, great amount of attention is paid to the "make up" of the juries to an almost ridiculous degree:

"# 3 would be a leader. They've clearly got a dominant personality. That's your foreman."
"# 17 already hates #14. You put them both on the jury and you'll never get a verdict."
"#27 is clearly a follower. He's going to do whatever the rest of them want to do."

These are all part of the analysis of the "make up" of the jury.

Now, one last thing before I go. Two of the former-prosecutors who have chosen to remain anonymous (which is their right, and I'm certainly not the one to be identifying them) are only telling half the side of the story. I will address them as Anon 1 and Anon 2.

Anon 1, who was the prosecutor that was angry with the initial breaking of the "Candadian e-mail" story, was a very talented trial attorney with the D.A.'s Office. He rose and rose quickly to the level of Felony Two within the Office, before leaving for a higher paying job. During his time with the Office, he had two run-ins with the law that were serious. Very serious. Under interpretation, it could even by regarded as felonious. However, in spite of this, the Office kept him there.

He may claim hostile work environment, but the fact is that the Office bent over backwards to keep this talented young litigator in it's employment. Some would say long past the point when it was rational to do so.

Anon 2, on the other hand, may or may not have been a good litigator. We don't know, because he steadfastly refused to go to trial. He was given opportunity after opportunity to go to trial, and would find a reason not to. It is alluded to in Falkenberg's article that the term "trial dodging" was thrown out as a silly excuse for him not being promoted.

Trial dodging in the D.A.'s Office is not a silly excuse. It's actually bordering on derilicition of duty.

Anon 2 became angry when he wasn't promoted to Felony Two (the level where a prosecutor starts trying murders and aggravated sexual assaults of children), and was in fact, skipped over. What he neglects to mention when he is talking to the media is that he only had 3 or 4 other felony trials under his belt when it came to promotion time.

No supervisor in their right mind is going to try and send a prosecutor in to try murders when they only have four felony trials as experience. It would be horribly irresponsible to the victim's family, not to mention the entire community.

Anon 2 became so angry that he wasn't promoted despite his low trial numbers, that he ultimately walked off the job and never returned.

NOTE: I'm sure there are going to be a lot of posts on this story. I ask whoever posts not to name Anon 1 or Anon 2, although I'm sure you know who they are. They want to be anonymous, and they will remain so as far as my blog is concerned. Any comments that name them will not be published.

Trial 101: For you, Lisa Falkenberg

Yesterday must have been National Integrity in Journalism Day, because I didn't see a single article bashing the D.A.'s Office for racism. Did I dare let myself believe that this was the entry into a new era of good feelings between the Chronicle and the D.A.'s office?

Nah, I'm not that stupid.

Lisa Falkenberg rode back into town this morning on her old dead horse that she's been beating, with an article about Kelly Siegler and the Lakewood juror. Except, this time she has a new twist on it. Apparently, Kelly had not exercised a peremptory strike on two other Lakewood Church members, but (gasp) they were Hispanic, and not African-American. Falkenberg clearly believes she has now found the smoking gun that proves that Kelly is a racist.

Falkenberg opines that these two dastardly potential jurors even put on their juror cards that they thought the propensity to commit violence could be linked to race. And Kelly still, didn't do her civic duty as a prosecutor and use her peremptory strikes.

So here's the deal, Lisa, because you clearly don't understand trial. Both sides have a certain set of peremptory strikes. If I recall correctly, in a death capital, each side gets 15 peremptory strikes that they can use to strike a juror for any damn reason (as long as it isn't about race).

Now, here's the deal, Lisa, which you don't seem to understand. The number "15" is a long way from infinity. Both sides tend to horde their peremptory strikes and not use them unless they have to. If one side is certain that the other side will have to "burn" one of their strikes, all the much better.

Now, Kelly and her trial partner Luci Davidson, being no dummies, read that two jurors in their questionnaires felt that "blacks are more violent than other racial groups". And, Kelly and Luci also realized that their opponents in the case were also, no dummies. Kelly and Luci knew that there was no way in Hell that Loretta Johnson Muldrow and her trial partner were going to allow those two jurors on the jury.

Does it really stretch a columnist's mind so much to see the strategy here? Okay, let me spell it out to you, Lisa. Kelly and Luci knew that Loretta would have to burn defense strikes on those jurors (if Loretta wasn't able to get the two jurors for cause). Why on earth would they use strikes?

Now, Lisa, I gotta say that I appreciate you for keeping your articles in the Columnist section, and don't pretend to be writing "real news" like Alan Bernstein does on his editorials.

But Loretta, I'm disappointed in you. You know damn good and well how a capital murder voir dire works, and you are manipulating the press to make Kelly Siegler and the D.A.'s Office out to be racists. Where's the article on you for striking not one, but two Lakewood Church members? There's not one? Why is that? Maybe because you had good, sound reasons to?

Does it really stretch the imagination so much to think that maybe Kelly and Luci had some sound reasoning in their trial strategy too?

They did win the trial, after all.

Criticism

After re-reading my original (and what I didn't really think was controversial) post on African-American jurors, Batson, and the D.A.'s Office, I've come to realize that some of the wording on it didn't convey what I was trying to say in it.

I've updated it with a notation of what is updated. I never intended my words to convey the idea that ADAs exclude any group of people from juries. What I was trying to convey is that ADAs are conscious that the system historically has not treated certain groups of people fairly, and that causes concerns during the jury selection process.

What I was trying to illustrate was that this is a problem within the Criminal Justice System that was created by the Criminal Justice System. And that was all that I was trying to convey. ADAs are good people who are trying to help their community by seeing justice done.

If anyone was offended by what I wrote earlier, I'm truly sorry.

How Did I miss This?

After a brief period of sulking over the Packers game, I decided to sit down and read the rest of today's Chronicle.

Somehow, I had managed to miss the large photograph of Chuck Rosenthal and the corresponding article by Jolanda Jones. In addition, I had also missed the opinion piece written by Pat McCann.

Jolanda's article pretty much just reiterates what the media has been saying for two weeks: that the District Attorney's Office is racist. She cites different sentences for different people and states that the Office sentences Defendants harder if the Defendant is African-American. As her example, she cites a case involving Farrah Fawcett's son. I vaguely recall when that case was working its way through the 176th, but I don't recall its end result. She describes him having gotten pre-trial diversion, a rarely used type of probation that (if successfully completed) functions like a complete dismissal of a case. It requires both the District Attorney's Office's approval, as well as the Court's. I'm surprised that Brian Rains granted it in his court, given how much he dislikes probation in any form.

I do strongly dispute that I've ever seen someone getting higher recommendations on punishment based solely on their race. That's ridiculous. There are a lot of different factors that go into sentencing recommendations and race is NOT one of them. A persons' criminal history and the nature of the offense are the two primary factors. A victim's feelings regarding the offense is a secondary, although very important, factor in sentencing. In the case of Fawcett's son, I do recall that the victim of the forgery case was his grandfather, who wanted his grandson to learn a lesson, but not go to prison.

Although I think there are a lot of issues to be addressed within the District Attorney's Office, I'm downright angry at Jolanda's assertion that the Office sentences based solely on race.

As to Pat McCann's article, I think that this well-reasoned and well-written article shows why he has done such a good job of our Harris County Criminal Law ers Association. Mark Bennett is taking over in May, but he's got some big shoes to fill.

And no, the author of this blog is not Pat McCann.

This particular post is always running a little long, so I'm going to address Pat's list of questions in a separate blog.

Ouch. Backlash.

It's always nice to wake up on a crisp, cool Sunday morning to a little criticism. I got an e-mail from "Anonymous" stating the following:

"This isn't much of a blog. You delete comments you don't agree with or deem inflammatory. What use is it having a blog on Harris County CJ if you don't discuss this subject. I mean, has there ever been a worst media interview or denial than that given by Trent a few weeks ago? Really now, Trent has a very lame excuse for the use of the word canadian. Very sad, really, and a black eye to all fair Texas prosecutors."

I cleared up a couple of issues in Anonymous' statement during the comments portion of the article he posted to, but I would like to make sure that if you are reading and posting, then I'm going to post your comment. The only case that I've come up with where I wouldn't do it is if it is naming folks that you think are the author of this blog. As I stated in my last post, I don't want anybody getting an open-records request put on them just because they are wrongly associated with being me.

That being said, I'm not responsible for the Internet. I tried to be responsible for it when it was in it's early teens, but it's just too damn rebellious.

Sometimes comments disappear in cyber-space. I've had it happen to me on a blogger.com website when I tried to post to Mark Bennett's website. They just disappeared. That's why it's always good to save your comments before sending. If you are having problems, please let me know.

Now, that being said, my Anonymous poster would like to discuss the Mike Trent response to the Canadian e-mail scandal, so let's discuss it.

For those of us who have dealt with Mike at the courthouse, well, he's can be a bit different. One of the things he certainly isn't, however, is stupid. He wrote a very lengthy explanation to the e-mail on Mark's website under the title of "A Prosecutor's Reply", which (if I did this hyper-link thingy correctly) you can read here. It obviously is more in depth than anything seen on TV, and I think it's worth discussing.

African-American Jurors, Batson, and the D.A.'s Office

On a serious note, a lot of things have been brought up lately regarding whether or not the D.A.'s office is systematically striking African-American jurors from panels. Alvin Nunnery in his Fox 26 interview regarding the "Canadian" e-mail alluded to the idea that there is an attitude within the D.A.'s Office (even going back to when he was a prosecutor) that an African-American juror is somehow "incapable" of serving on a jury as a fair juror.

It is an interesting debate, and I'm not going to enter it. As far as I'm concerned, if you believe that the D.A.'s office is racist, there is nothing that I can say on this blog that will change your mind of that. I'm also pretty sure that I won't be changing anybody's mind on the issues of the death penalty, abortion, or the fact that the Dallas Cowboys aren't really "America's Team".

But I would like to throw this out for your consideration, and I hope there is a frank discussion over it.

Proposition # 1 - In every criminal trial, both the Defendant and the State are entitled to a fair trial. That means that no juror should be seated that already has a bias or prejudice that could affect the State or the Defense's case. If you don't agree with that principle, then this post is probably going to be meaningless to you.

Proposition # 2 - an effective attorney should seek out those biases or prejudices when during jury selection, and make sure that those jurors are struck for cause (and if that fails, exercise a peremptory). If you don't agree with that principle, then you aren't an attorney.

Proposition # 3 - Historically, the Criminal Justice System has been extremely unfair and unkind (to put it mildly) to African-Americans. If you don't agree with that principle, you clearly live in a cave and aren't familiar with American History.

I'm a white male. I can remember multiple occasions as a kid where I was walking in the street where a sidewalk was provided when a police car drove by without stopping. I wasn't stopped. I wasn't searched. Nobody ever stopped my car because it looked like I was "didn't belong" in the neighborhood where I was driving. When I get pulled over for speeding, the officer (or more commonly the DPS trooper) never asks me if he can search my car.

Prosecutors are very much aware of the fact that probably every African-American member of a jury panel has been treated like crap at some point during his or her life by a member of law enforcement, or perhaps even a District Attorney's office.

It is just the Historical Shame of the Criminal Justice System, and it is a shame that cannot be erased.

Does it mean that all cops are racists? Of course not.

Does it mean that all D.A.'s are racists? Of course not.

But a jury trial in a criminal case is most often the deciding of fact around a particular incident and whether or not a Defendant is the factually and legally responsible for it.

It is not a referendum on whether or not racism exists in the criminal justice system.

A potential juror who is going to let their bad experience with law enforcement shape their verdict shouldn't be on a jury, regardless of their race. I think prosecutors are very aware of the fact that in dealing with an African-American potential juror. It isn't a concern over whether or not that juror is "incapable" of serving (as Alvin listed). It's more a matter of whether or not the law enforcement through its own bad actions, has ruined this juror's perception of the System as a whole. Does that make sense?

In other words, if a prosecutor is wary of an African-American potential juror, its going to be because that the prosecutor knows the lengthy history of wrongs committed against African-Americans by law enforcement. That prosecutor doesn't want it to affect his case.

UPDATE: After reading some of the scathing posts and notes relating to the post, I realized that I didn't really clarify what I meant in the last paragraph. I've updated what I badly stated in the original article with an additional paragraph.

I was trying to explain in this article that no prosecutor thinks that an African-American juror is "incapable" of serving, as Alvin accused all prosecutors of being. The unfortunate reality is that some times the experiences suffered by some people is to the degree that they can't be fair. What I was trying to justify in the article was the asking of questions regarding that previous mistreatment, and it should in no way be read as advocating the excluding of anyone from a jury who is qualified and fair.

Racism in the D.A.'s Office?

I opened today's Houston Chronicle this morning and nearly died of shock. For the first time since December 27th, something that the D.A.'s Office had dropped the ball on wasn't the front page news.
But after the week that the Office has had, I guess they (at a minimum) deserved Sunday off. It seems like the media has finally given up on anything happening with Chuck Rosenthal. I guess he is firmly planted in his office and he ain't coming out. The new focus of the media seems to be part of a one-two punch: Kelly Siegler's "nuts and screwballs" comment about Lakewood Church, and the "Canadians" e-mail sent by Assistant D.A. Mike Trent. The poor ADAs seem almost punch-drunk after the bad publicity that they've had all week.
I don't really know that there is more that can be said about either of these two stories, because they both pretty much speak for themselves.
What I do find interesting is that the source of both stories seem to track back to defense attorney, Alvin Nunnery. He appeared on the Fox 26 news story about the Canadians e-mail and said the Office needed to be cleaned from "the inside and out" and that such a cleaning could not be done by someone from within the Office (a slam at Siegler's candidacy). What many don't realize, however, is that Nunnery was directly involved in the case that spawned the "nuts and screwballs" comment from Siegler, as well.

Is there a personal vendetta that Nunnery has for Siegler?

Well, maybe.

It seems that at some point during the Guidry trial, Alvin got cross-ways with Siegler and her co-counsel, Luci Davidson. This altercation led to him recusing himself from involvement in the trial, and apparently some degree of anger and/or embarrassment for him. I'm guessing that revenge is a dish best served, but damn, it sure is effective. Nunnery may single-handedly sink the whole D.A.'s office. I wonder if he realized how many people's lives would be affected by these news releases.
Is there racism running rampant in the D.A.'s office? Not that I've seen, but then again, I'm not African-American, either. I can't imagine in this day and age that any government institution would be blatantly and outwardly racist and expect to get away with it. Say what you want to about the ADAs, but they aren't dumb. Well, the vast majority of them aren't.

More on this later.