And Don't Let the Door . . . Nevermind

Today marks the final column from the Houston Chronicle's Rick Casey.  I haven't been so saddened since alleged journalist Alan Bernstein jumped ship for the Sheriff's Office.

Oddly enough, I remember reading Casey's first column many years ago, where he introduced himself to the community.  Long before there was the Rosenthal scandal and the election battle of 2008, I remember thinking that the new-to-town columnist seemed to think very highly of his own wisdom and intellect.

Don't get me wrong, he wrote many columns over the years that I did like.  On occasion, I would even send an e-mail in complimenting the articles.  There has even been a time or two on this blog that I've agreed with him publicly.

But Casey has also had his bumps and blunders over the years, as he has spoken with such authority about facts that he didn't have a complete grasp on.  My favorite question remains how a 24-year veteran of a Metro beat apparently went to almost the end of his career without ever going to jury duty.  Along the way, Casey also managed to libel Sam Siegler, write a bizarre "fantasy" piece about Kelly Siegler, and apparently do a little borderline plagiarism on the side.

But, thank goodness, he always let us know that he knew what was best for Houston --

No matter how ill-informed he was about so many issues.

Mr. Casey Goes to Jury Duty

Rick Casey has a column in today's Chronicle about his recent experience of serving on a jury panel in the 182nd on a drug case.   It is a well-written column, but I can't help but notice how genuinely amazed Casey seems to be with the process of voir dire.  It strikes me as rather ironic that he would seem so out of his element in jury selection considering how often he writes with such authority and indignation over the way "the System" works.

Casey interprets his experience on the jury panel as something very telling of the community's thoughts on the "Drug War", when in reality, it sounds like just another typical day of picking a jury to me.

The article is entitled (in print) as "Conscientious objectors in the war on drugs", and he goes on to describe the First Degree Felony of Possession of a Controlled Substance with Intent to Deliver 4-200 grams as a "low grade felony".

I sincerely doubt that the Defendant on trial (who was facing up to Life in prison) would agree with that description.

He downplays the seriousness of the charge by describing the jury selection as a "fascinating three-hour seminar on how Houstonians feel about the justice system in general and the war on drugs in particular."

He details how he was shocked that they brought over 60 people for the panel, thinking that was too many for the above-mentioned "low-grade felony".  He then marvels at how (after strikes for Cause had been made), the attorneys reached all the way to Juror # 55 on the panel.  This, Casey seems to imply, is due to the controversiality of the "Drug War".

Rick, my friend, that happens on every case, I hate to break it to you.

Try picking a jury on a murder case where self-defense is an issue, or a jailhouse snitch or co-defendant will be testifying.  Or perhaps a domestic violence case where the complainant no longer wants to prosecute.  Want to really see potential jurors get struck for cause?  Observe a sexual assault of a child case where the act was consensual but the age difference made it illegal.

Contrary to some of Mr. Casey's prior articles, the Judges, Prosecutors and Defense Attorneys around the Harris County CJC usually have some idea as to what they are doing.  They know that they need to pull about 65 prospective jurors on any felony trial because every felony case is chocked full of legal issues that you might never think of.

Hell, Rifi Newaz and I busted six jury panels trying to select a jury on one murder case.  And the case had nothing to do with drugs, believe it or not!

Casey goes on to list many of the reasons that the potential jurors were struck for Cause.  He details jurors who had bad prior experiences with law enforcement, those who would hold it against the Defendant if he didn't testify, and those who didn't want to participate if they didn't have a say in sentencing (upon conviction).

He makes note of one gentleman who talked in detail about the effectiveness of the "Drug War", and then jumps to the following conclusion.

But the overwhelming message was that about a fifth of the pool couldn't in good conscience take part because they found fault with the way the justice system deals with drug offenders.  They were, in effect, conscientious objectors in the war on drugs.

Wait.  Huh?

He just detailed how about twenty people got struck for Cause for various and sundry reasons like 5th Amendment issues and sentencing issues, and then leaps to the idea that of the 23 people struck for Cause that it was based on them finding "fault with the way the justice system deals with drug offenders"?

I don't follow his logic.  Nor his math.

He only mentioned one or two people who were taken off the panel due to "Drug War"-related questions.

He also goes on to point out that both the Defense and the Prosecution were "able to dismiss up to 10 [jurors] without offering any reason" as if that were some sort of ominous back-room deal designed to do something unseemly.  Uh, Rick, those are called Peremptory Strikes, and nobody who practices criminal law really seems to mind them being around.  The Code of Criminal Procedure kind of provides for them.

I guess in the end, I have to commend Mr. Casey for actually attending a Voir Dire and trying to learn from his experience, but damn, if this was a science project, I'd have to give him a failing grade.  I'm not debating the validity of the Drug War here, but when you have such faulty conclusions drawn from his experience, he greatly diminishes his credibility in his analysis.

For more on Voir Dire and the Strikes for Cause, you can click here.

An Aggressive Prosecutor

One of the things that I am not proud to admit about myself is that I do actually have a subscription to the Houston Chronicle. In my defense, it is only a weekend subscription and I have it because I do like to kick back on Sunday mornings and read the newspaper and drink coffee.

This morning's edition, however, has a column in it from Rick Casey that (as of this writing) still hasn't hit the on-line edition, so I guess for once, it at least helped me get a head start on writing a post. The title of Casey's column nearly made me laugh out loud. It read:

My Fantasy: Siegler puts DA on trial.

Now, nevermind the fact that Freud could have a Field Day with Mr. Casey based on the title alone, I was still shocked to see Casey write something that could even remotely be considered complimentary of Kelly Siegler. Let's face facts, the Houston Chronicle wouldn't say nice things about Kelly if she took a dinner spoon, dug a mile into the earth, and rescued 33 Chilean miners completely by herself.

Kelly Siegler represents to the Chronicle and its staff something that they disapprove of: an "aggressive" prosecutor. One who actually knows her job and the law, and enforces it to the best of her ability, regardless of public perception. For some reason, we live in a city where the local newspaper treats the profession of prosecution with same resentment of a high school senior who got caught spiking punch by his teacher.

And in the world of those kill-joy prosecutors, there was never anyone better at it than Kelly.

But damn, what to do when Kelly actually is pointing her accusations at the actions of another prosecutor?

One like Charles Sebesta who truly broke the law, pressured and manipulated witnesses, and sent a factually innocent man to Death Row. A guy who decided that the preliminary readings of a high-profile case were enough to demand prosecution in his small town county, and then bent the facts to meet his theory of guilt. Someone who clearly didn't know what he was doing, but wanted to look good while doing it in the public perception.

Well, then, Rick Casey guesses it would be okay if Kelly were to prosecute somebody like Sebesta. I guess, in Casey's mind, as long as she were feeding on one of her own profession, then it would be okay to let her do her job.

The reality of the situation, however, is that Casey is just finally acknowledging something that most prosecutors have always felt, and that is that bad prosecutors like Charles Sebesta are hated even more by other prosecutors than they are hated by the general public. Prosecutors like Sebesta (and Mike Nifong before him) give prosecutors ulcers because they rock the credibility of prosecutors everywhere.

And yes, before somebody else points it out, Chuck Rosenthal gave all prosecutors a pretty big kick in the crotch with his actions, too.

My point is that while Casey and the Chronicle staffers loved taking potshots at Kelly Siegler when she was running for D.A. because she was too "aggressive", they would suddenly love to have her back to prosecute somebody like Sebesta. It is almost like they are suddenly getting a perspective on what it is like to be a victim of crime and hoping you have a good prosecutor trying it.

And don't get me wrong, an "aggressive" prosecutor is not necessarily synonymous with a "good prosecutor".

But the biggest fallacy in logic that the Chronicle always seemed to make was that being a good prosecutor was mutually exclusive from being an aggressive one as well.

Kelly was always both, and I know that the actions of prosecutors like Sebesta, Nifong, and even Rosenthal made her sick to her stomach. In all the criminals she prosecuted over the years, I can guarantee you that she has much more contempt in her heart for Charles Sebesta than for, say, Susan Wright.

I'm sure that based on this post, I will get my usual taunts from folks like Rage and Grits, pointing out that a defense attorney such as myself shouldn't have any clients since I'm so pro-prosecution.

Whatever.

Yeah, you know what, I'll admit it. I'm very pro-good prosecution. Even when it is aggressive.

I will sing the praises of a good prosecutor who knows the law and knows the facts of his or her case. One who doesn't hide the truth or try to twist the law. One who will sign a dismissal when the facts or even compassion calls for it on one case, and then will turn around and seek the death penalty in the next one. One who, at the ends of the day, strives to do what is right, and isn't even afraid to do it aggressively.

I'm a defense attorney and the job of defending is on me. Dealing with a good prosecutor makes my life and my job easier, believe it or not. Even when that prosecutor is telling me things I don't want to hear. I can't change the facts of my cases, but I'll always respect a good fight with a good prosecutor who I trust.

And for the record, there are still many many good prosecutors left in the Harris County D.A.'s Office.

It strikes me as sad how much disdain the Chronicle had for Kelly Siegler during her 2008 campaign for District Attorney. I never quite understood why they thought Kelly's aggressiveness made her somehow less worthy of the job than a career-politician who was more adept at saying things the public wanted to hear. You would have thought that city newspaper folks would have dug a little deeper into what really makes a truly good District Attorney.

Who is truly the better candidate to be a District Attorney? A pandering politician or an "aggressive" prosecutor?

I'm sure that today Anthony Graves wishes he had an aggressive prosecutor like Kelly Siegler back in 1992.

Legal History

There were two great articles in the Chronicle this morning about the legal history of Texas that I found to be really interesting. I hope you will, too.

In the Opinions section, Baker and Botts' Bill Kroger, who has been appointed to co-chair the Texas Supreme Court's Historical Records Task Force talks about the efforts being made to preserve historical documents from the judicial system that date all the way back to the days of Sam Houston and Stephen F. Austin. You can read his post here.

And although you don't read this statement much on this blog: Rick Casey wrote a great column this morning on the importance of preserving Texas history and how we're losing that battle to time, the elements, and Ebay.

If you're interested in the history of the legal system, not to mention the Great State of Texas, these are really good articles and good causes that are worth your time.

Ken Magidson and the Rosenthal Investigation?

Y'all aren't going to believe this, but I'm irritated with the Chronicle again.

In yesterday's edition, Rick Casey ventured back into CJC coverage (after spending a few months in hiding, hoping that Sam Siegler would forget about his earlier articles on him) with a column blasting District Attorney Kenneth Magidson for refusing to confirm or deny whether or not there was an on-going investigation into any misdeeds that Chuck Rosenthal committed as D.A.

I mean, how dare Kenneth Magidson focus on doing his job rather than appeasing Casey's journalistic curiosity?

"But . . . but . . ." sputters Casey, "the public has an interest in the decision and the reasons behind it."

Probably true. I'm sure the public has an interest in it.

Just like I'm sure "the public" had an interest in what General Eisenhower's invasion plans were for D-Day.

But sometimes there are things that the "public" is just going to have to wait on.

"I don't care what the public thinks," Magidson retorted. "I will do what is right."

(NOTE: I love how Casey used the word "retorted". It's almost like you can see the foam coming from Mr. Magidson's mouth as he dared to oppose the crusading journalist.)

All kidding aside, I say good for Kenneth Magidson. This guy is proving time and time again that the Governor made the right choice in who he selected to be the interim District Attorney. As many people like touting leaders who are a "PR Dream", I'd rather follow the leadership of somebody who does what's right, as opposed to what "looks best", any day of the week.

The bottom line is that when a case is in an "investigative phase", it often does need to be "kept on the QT", as Casey notes in the title to his article. An investigation is just that, an investigation. It doesn't mean any type of conclusive proof that there has been wrong-doing. The pre-hyping of an investigation leads to the pre-supposition of guilt, and a trial by public opinion, which nobody deserves.

Not even Chuck Rosenthal.

I think many of us will automatically jump to the conclusion that, by virtue of the fact that the "investigation" in question involves Rosenthal that, therefore, there is no need to keep any of it under wraps. Interesting theory, but that pretty much violates the theory of "innocent until proven guilty", now doesn't it?

If the District Attorney's Office was investigating any other public figure, the leaking of that investigation would be blasted as a political maneuver to undermine the Defendant's presumption of innocence, wouldn't it?

Did you expect Magidson to chunk that ideal out the window simply because he was dealing with Chuck?

If you did, you shouldn't have. Magidson's got more integrity than that. This guy is the real deal and he's proving it more and more by every day he's on the job.

It is regrettable that the Attorney General's Office did not follow the same idea that Magidson had, but they can play by their own rules.

By the way, Rick, maybe you ought to ask Pat Lykos and Clarence Bradford about what they think about the possibility of Magidson running an investigation into Chuck? I'd bet that they would tell you they were glad that he was shouldering the fallout of it so that they won't have to. I'm sure that they are quite happy that you are whining in your articles about Magidson, rather than them.

Don't get too stressed out if Magidson still doesn't bow to your request though, Rick. You can always just re-write your same column five times in a row. I mean, hell, if Jeff Cohen lets Lisa Falkenberg do it, he should let you do the same thing, too, right?

Cry Me a River

I gotta admit that I thought it was pretty damn funny to read the Chronicle's editorial this morning lamenting Ken Magidson's decision to create a media office.

I mean, it just absolutely cracks me up.

Let's see, Jeff Cohen and crew have been calling the prosecutors at the Office racists, corrupt, and stupid for quite some time now, and yet they now seem stunned (just, stunned, I tell you!) that perhaps the Office has decided to exercise some "caution" in talking to reporters.

Don't get me wrong, I will freely admit that as a prosecutor, I love(d) talking to the media about my cases. It was always great to send a link to a website on one of my cases to the folks back at home. Its a sad day that it can't be done anymore, but I think Mr. Magidson's decision is a reasonable and prudent one.

Will it make the jobs of the roving reporters and columnists who work the courthouse more difficult? Yep.

Do I feel sorry for them? Well, yes and no. I like Brian Rogers and Peggy O'Hare and I don't think that they ever abused what a prosecutor had to tell them.

For them, I feel sorry.

For Lisa Falkenberg, Rick Casey, and my boy, Alan Bernstein? Not so much.
(As an aside, I did find the complaint about the "establishment of a fresh layer of bureaucracy" to be pretty funny as well. This is the same Chronicle that allows Falkenberg to write four articles a week advocating the creation of the Public Defenders Office, right?)

And do I feel sorry for the Chronicle as a whole? Absolutely not.

Over the past five months their "institution" has done everything it can to make the jobs of the people at the District Attorney's Office as difficult as they could. I'm not feeling much sympathy if the D.A.'s Office is doing the same thing to them now.

Cohen and Crew are griping about the Office talking to them in a more limited fashion?

Hell, they should be glad that the Office is talking to them at all.

Rick Casey's Article on Kelly Siegler

Rick Casey wrote an article on Kelly Siegler that has generated some conversation on the blogs. A defense attorney friend of mine pointed it out to me (since I've been trying to avoid reading the news for a week), and his opinion of it was that the article was designed to praise Kelly. One of the commenters on Casey's article thought the article was "kicking Kelly while she was down". And somebody in one of the comments on Bennett's article on the topic pointed out that we were all missing the boat, because the article was clearly satire.

Um, okay.

Me, I viewed the article from a more practical standpoint. It was a complimentary article that Rick Casey buried until after the election so as not to displease his boss, Jeff Cohen by saying something nice about Kelly Siegler. Casey was also writing the article in a weak attempt to make peace with Sam Siegler so that Sam doesn't sue Casey's rear-end.

Casey is the one who reported (without fact checking) that Dr. Siegler had been the sender of the racist e-mails on Chuck Rosenthal's computer, which was NOT true. Now, after Sam and Kelly had been called racists in public thanks to Casey's article, and he learned that it was untrue, he printed a tiny little retraction buried within another edition of the Chronicle, that I'm willing to bet that none of you ever saw.

Casey is trying to do a little bit of sucking up so that his own reputation doesn't get dragged through the mud like Sam Siegler's did.

The difference would be, however, that if Sam decides to file a lawsuit against Casey, it will actually be based on facts that he knows to be true.

If you go back and look at his columns during the election, Rick mysteriously didn't have a whole hell of a lot to say about the Republican race. That's a little out of character for him, wouldn't you agree?

The Reason? He screwed up so big time in his first column on Sam that he was a bit gun-shy for the rest of it.

Now, I know that libel and slander suits are about as popular with juries as trying a 88-year-old with cataracts for possession of marijuana. And yeah, there would be debates over whether or not Sam was a "public figure" and if that changed the standards.

But, by God, it would get some attention, wouldn't it?

The Defense Bar As Police

Rick Casey wrote a column earlier this week about the difference in sentences for disgraced ex-TSU president Priscilla Slade, and her (arguably less culpable) co-defendant, Quintin Wiggins. I think that the article brings up an interesting topic, although I think it makes an incorrect assessment in doing so.

Priscilla Slade, earlier this week, pled to a 10-year Deferred Adjudication with a significant amount of restitution. Her former chief financial officer, Wiggins, on the other hand, got ten years "to do" in the Texas Department of Criminal Justice. Casey acknowledges in his article that Wiggins had a criminal history (while Slade did not), and he even ventures that new District Attorney Ken Magdison may be a factor in plea deals without prison time (I'm not sure I agree with that premise much).

Casey, in my opinion, overlooks the biggest factor on why Slade was offered deferred adjudication: the case had already gone to trial and resulted in a hung jury after weeks and weeks of testimony. That may be a good topic for another day ("The Effect of a Hung Jury on Plea Bargain Negotiations"), but it's not what I want to address at the moment.

Casey writes:

The main difference: In hiring a defense attorney Wiggins went low-rent and Slade went name brand.

Slade had Mike DeGeurin. Wiggins had a lawyer that I'm not familiar with named L. Mickele Daniels.

Now, call me picky, but I'm always highly suspicious of our legal brethren that have the one letter initial at the start of their name. Casey is more than just suspicious, and he lists a series of grievances and concerns about Mr. Daniels.

I'm not going to address his competency to try the Wiggins case, because I wasn't there and I don't know what kind of job he did.

But as a broader, farther reaching topic, we all know that there are some attorneys that dwell in the CJC hallways that don't have any business being there. I'm not going to name any of their names, because I don't want them to sue me (and quite frankly, I would only be able to hire someone of their caliber to defend me). But, I do feel comfortable in pointing out the legendary C. Tom Zaratti as a classic example of exactly what I'm talking about.

NOTE: To those of you who aren't personally familiar with the CJC, none of the attorneys that I'm thinking about are allowed to do criminal appointments. They are much more likely to be roaming the hallways, soliciting clients, or using other unethical means to wrangle in the ill-advised.

They cause problems for both the defense and the prosecution. Believe it or not, prosecutors don't like trampling over a Defendant's rights just because they can. Prosecutors have to go above and beyond their usual duties and actually hold the hand of an incompetent defense attorney to make sure that a miscarriage of justice doesn't take place.

The Defense Attorneys hates what the incompetent attorneys do to destroy the reputation of the Defense Bar and the Criminal Justice System in general.

I can personally guarantee that every defense attorney and prosecutor that is reading this blog knows exactly who I'm talking about, too. (NOTE: But please don't post their names on the blog. Like I said, if one sues me, I'll have to hire one of the others to defend me!)

So, I guess the big question is, who should police the bad and incompetent attorneys?

Can anyone do something to stop them?

If so, what?

If "so" and "what" is identified, then who should be the ones who do it?

If the prosecutors do it, they will be labeled as "going after the defense attorney, because they just can't get the defendant".

If an individual defense attorney does it, he or she could be regarded as a traitor within their profession.

And is it all the Sound and the Fury signifying nothing? (Yes, I really like using that phrase).
Can a case be made? Can the State Bar do something? Will they do something?

Dare I say it (cue Superman theme song), Is this a job for HCCLA?

Rick Casey's Column

I enjoyed Rick Casey's column in today's Chronicle. He's been taking a more even-handed approach in his writings during the Rosenthal-crisis than Lisa Falkenberg and Alan Bernstein, so his "intellectual honesty" is way up in my book, especially compared to Lisa and Alan.

There were some things that I think are worth pointing out.

1. Jolanda Jones will never miss an opportunity to call a press conference. Those of us who have worked with her around the courthouse know that she has never let a lack of knowledge about a subject slow her down from speaking like an authority.

Seriously, Jo, you are going to call a media conference in the middle of a Federal proceeding just so you can accuse Rosenthal of hiring Ron Lewis because Lewis is African-American? How racist is that? The guy went to Princeton and Harvard and was a member of Baker-Botts. I'm pretty sure that your own resume wouldn't hold a candle to Mr. Lewis'.

2. Casey is dubious over the possibility that Chuck truly has (or has ever had) a problem with prescription substance abuse.

I tend to agree with him, here. Chuck has always been a loose cannon throughout his career in some varying degrees. I don't think the drugs can really explain all of his erratic behavior. I think the article that came out a few weeks ago is the one that hit the nail on the head when it talked about Chuck's lack of judgment (or the "J word", as they cleverly called it). I don't think that was drug-induced.

3. I'm going to be bothered all day over the grammar of the article - "What drugs were he taking?" or should it have been "What drugs was he taking?".

Neither one sounds right. This is going to drive me crazy.

Lakewood Church & Rick Casey

I woke up earlier than I usually would this Sunday morning in an attempt to watch the TV broadcast of Lakewood Church services that air at 10 a.m. I wanted to see what, if anything, was said about Kelly Siegler's comments. While I was waiting for the show, I took time to read Rick Casey's column which listed Kelly's comments as part of a three-part column bashing Republican disingenuity in our county officials.

I came to a conclusion: Backseat Drivers irritate me.

Casey's column cites the fact that the juror that Kelly struck off of her panel had listed that he was "in favor of capital punishment, except in a few cases where it may not be appropriate". Casey then argues by inference that Kelly would only want a juror who would be so strong on the death penalty that they would even give the death penalty where it was inappropriate.

For those of you out there who have worked on death penalty cases, you know that Casey is twisting things that he clearly doesn't know enough about. He's backseat driving just like his comrade Lisa Falkenberg likes to do in her articles.

Here's a pop-quiz for both Falkenberg and Casey:

1. In capital jury selection, what does the terminology "5/5", "1/1", or "4/3" mean?
2. Name one prosecutor or defense attorney who would accept a juror on a death capital based solely on their questionnaire, without interviewing them?
3. What keys on a court reporter's machine capture tone and inflection?

I've been involved with multiple capital murders over my career (NOTE: the term "involved" can mean a lot of different things, and I acknowledge that). I know that attorneys on both sides go through the numbers "5/5" through "1/1" first off before even reading a juror questionnaire. It isn't unusual at all for a questionnaire to not even be read at all, if they are a "5/5" and a "1/1". They usually become the victims of trades.

A prosecutor or a defense attorney would be absolutely incompetent if they accepted a person based on questionnaire only and didn't talk to the potential juror. I don't know how many of the seasoned attorneys are reading this blog, but I'd love to hear from you if you've tried a DP case. How many times has a juror that seemed to be a "2/2" ended up being a "5/5" or a "4/3" ended up being a "2/1" after individual voir dire? My point is that for those who have worked on these cases know that the questionnaire is often a good preview of what you are going to get when you speak to them, but it is (by no means) dispositive, is it?

Finally, a record is a flat recording of words. I've never read one that illustrated the tone of someone speaking while they were talking. It would be pretty damn funny if they did, because a record would read more like a romance novel.

Picture two situations:

#1 - A prosecutor asks the prospective juror "Can you consider the death penalty as an option in the appropriate case?" and the answer is an emphatic "Yes."

#2 - A prosecutor asks the prospective juror "Can you consider the death penalty as an option in the appropriate case?". The juror frowns and then takes a deep breath. Looks at the defendant, who is looking at him, and then looks down at their hands, before softly answering "Yes."

How do they both read in the record?

Q: Can you consider the death penalty as an option in the appropriate case?
A: Yes.

Until we get a transcript written by Danielle Steele, I don't know that you can properly catch the mood of what is going on through just a transcript.

After watching Lakewood Church this morning, I came away with a couple of conclusions.

#1 - Pastor Joel Osteen may be just about the best public speaker that I've ever watched.
#2 - the show made me feel good and it made me feel optimistic and good about my fellow man.
#3 - these feelings conflicted very much with my usual jaded personality.
#4 - I'd be concerned over whether or not this was the type of outlook I'd want on a DP jury.

Folks, the people of Lakewood are good people. Probably better people than I am. I'd gladly have them on the vast majority of my juries.

I just don't know how I would feel about putting them on a death penalty case. I'm much less ambiguous about whether or not I'd put Rick Casey on.

Sorry dude.