Mike Anderson

As most of you in our courthouse community have probably heard by now, Harris County District Attorney Mike Anderson passed away overnight after a battle with cancer.  As someone who practiced in front of him, campaigned for him, admired him, and considered him a friend, I don't think I can adequately express how heartbroken I feel.

I know there are so many other attorneys and friends of Mike who knew him much longer and much better than I did, but I looked up to the man ever since I met him.  When you're a young baby prosecutor, it is very easy to be intimidated by judges, but Mike was always the friendly judge.  He conveyed to you that he was glad you were as interested in criminal law as he was, and his enthusiasm was contagious.  

Mike's enthusiasm was contagious because he was a born leader.  

I know that I have told the story here before about the first time I ever really had a conversation with Mike, but I'll tell it again.  We were attending the funeral of Harris County Sheriff homicide detective Jim Hoffman, and he drove me, Dan Rizzo, and John Jordan to the church for the service.  John and I were first time felony threes, I think, and we knew of Mike as not just a District Court judge, but a legendary former prosecutor.  We thought he was awesome.

Yet, Mike spent the drive telling us how we, the new generation of Assistant District Attorneys, were the awesome ones.  He talked about the camaraderie of the Office and how it was a proud tradition and he was so glad there were still those who wanted to carry on the torch.  To have been that young in our careers and to hear that from somebody we admired so much was so meaningful that I remember every word ten years later.

He loved working in the Criminal Justice System and he very much reminded me an old school Texas Lawman.  Before he shaved off his moustache, he actually always reminded me of Sam Elliott.  Prosecutors loved having cases in his court.  Defense attorneys . . . well, maybe not so much.  Mike definitely had a reputation for being tough on crime, which unfortunately overshadowed the work he did on Drug Court and other rehabilitative efforts.  

After the 2008 election, as the morale in the District Attorney's Office plummeted, he was approached by many, many people (myself included) who begged him to run for District Attorney.  He had announced that he wasn't running for re-election in 2010, and that only intensified the speculation that he might do so.

When I first approached him, he didn't seem to think he was going to be running for office again.  He had his retirement planned out and was looking forward to it.

But, I could tell he was struggling with the decision.

As time went by and things got worse at the D.A.'s Office, he ultimately changed his mind.  I highly doubt that any one person convinced him to run.  I think it was his love of the Office.   As I get older, the idea of a peaceful retirement off in the country somewhere sounds more and more attractive.  The thing that I think so many people fail to realize about the 2012 election was that Mike had that retirement in his hand when he decided to run for District Attorney.

The job of Harris County District Attorney needed Mike Anderson much much more than Mike Anderson needed the job of Harris County District Attorney.

But when duty calls, true leaders rise to the occasion.  Despite the fact that he had a well-deserved retirement in his clutches, Mike returned back to public service.  I don't know how many others would have done the same.  The world of politics in the Harris County arena is nasty and brutal.  Some of his political enemies have (tastelessly) wondered aloud if Mike knew he had cancer when he was running. 

I don't know if he did or didn't, but if he did and kept running, that makes him even more heroic in my book.  People going through cancer treatment usually don't have the energy to get out of bed in the morning, let alone make five campaign appearances a day.  Mike knew that Office needed him and he did everything in his power to live up to the expectations of those who asked him to run -- even at the expense of his own health.

Mike did accomplish what he set out to do and that was evident at his swearing-in ceremony on January 1st this year.  The Office may still be far from perfect, but that morning it was very evident that the enthusiasm was back.  Mike's inaugural speech reminded me so much of that conversation we had ten years earlier.  The prosecutors there were so pumped about their jobs again.  Even though I wasn't one of them, seeing their enthusiasm did my heart good.  To witness true leadership in action is an inspiring thing.

I last talked to Mike about two weeks ago.  He called me about my blog post on the overcrowding in the CJC mornings and said he was committed to doing something about it.  He said he agreed it wasn't fair for people to have their bonds forfeited when it wasn't their fault they couldn't get to the courtroom in time. He told me he wanted to work with the defense bar on finding solutions. Mike was definitely still "on the job" and he sounded great.  During our conversation, I mentioned to him that I was going through some medical issues at the moment.  In typical Mike fashion, he wanted to know what he could do for me.

I am so very glad that I was able to have that last conversation with him.

The loss of Mike Anderson the leader and District Attorney is a tragedy.  The loss of Mike Anderson the husband and father is heartbreaking.

Mike had the all-American family and the love he had for Devon was so evident and inspiring.  He never missed an opportunity to talk about how lucky he was to have her and how in love he was.  It was only rivaled by the love and pride he had in his children.  Nothing makes me sadder than to think of all his family is going through during this horrible time.  My heart goes out to them all.

My condolences go out to his family at the D.A.'s Office as well.  He was so proud to lead that Office and he was made proud by you all.  

I am proud just to have called Mike Anderson my friend.

Cold Justice Premiere Watch Party

Everyone is invited to the Ragin Cajun/LA Bar (4302A Richmond Avenue) on Tuesday, September 3rd for the official Houston watch party for Cold Justice.

The show doesn't begin until 9:00 p.m., but the party starts at 7:00 p.m.  Kelly Siegler will be there and there will drink specials and appetizers.

If you can't make it to the party, please don't forget to watch the show on TNT!   Tell your friends and family, too!

Hope to see you Tuesday.

STAR Drug Court Fundraiser

On Thursday, August 15th from 5:30 p.m. to 8:00 p.m., there will be a fundraiser held to raise money for Harris County STAR Drug Court.

The event will be at the Parador, 2021 Binz, Houston, Texas 77004 and will feature the entertainment from the Writ Kickers and admission is $30 a piece.

I will admit that when STAR Court was first created, I was very skeptical about how effective it would be.  Over the past years, I've been absolutely amazed by what a positive, life-changing program it has been for so many people that I would have never thought had the ability to succeed.

The STAR Court works and programs like it deserve our full support.

For more information, please click here.

New Cold Justice Promo

As most of you know, the premiere of Cold Justice starring Kelly Siegler and Yolanda McClary premieres on September 3rd at 9:00 p.m. on TNT.  TNT released this extended preview today, showing snippets from the first three cases we worked on.

A Simple Solution on Bond Forfeitures

As we have addressed time and time again on the blog, the Harris County Criminal Justice Center -- as a building -- is horrible.  It is the classic definition of poor design and architecture.  Whichever brain child came up with it never comprehended the mass of humanity that would be trying to cram into twelve elevators every morning.  From the floor layout and selection (i.e., having the courts on the top floors and all the other offices below them) to the lack of stair or escalator access to the lower floors, there is pretty much nothing right about that place.

Throngs of people are routinely lined up around the building, futilely hoping that they are going to make it inside, past security, and up the elevators in time for their 9:00 a.m. docket call.

Obviously, a large chunk of them fail to get there on time.

Many (if not most) courts call docket at 9:00 a.m., and if a Defendant's name is called with no answer, a prosecutor will dutifully call out: "State moves for bond forfeiture, your Honor."

And, depending on the Judge, that motion for bond forfeiture will usually be granted.

Now, the reality is that the Defendant who has been stuck waiting at the elevator banks for the past thirty minutes won't actually have his bond forfeited.  Usually, the Judge will call up the tardy defendant and admonish them with something that sounds a lot like this:

"Now Mr. Bynum, you know what time court starts and you know that you have to travel through traffic and long lines to get here.  In the future, you will need to plan to leave earlier to arrive here on time.  I'm going to make a notation on the docket sheet and the next time you are late, I'm going to grant the State's motion to forfeit your bond."

To truly avoid large amounts of people being late for docket call, the majority of them would need to camp out at the CJC overnight like they were waiting in line to get tickets to a Springsteen concert.  Even then, the doors to the building don't open to the public until 7:00 a.m., so those early arrivers would still have to wait before the flow of traffic into the building got started.

Some judges will have the late defendant sit in the jury box for a period of time as their punishment. Usually they have to sit their until their lawyer shows up and is able to relay their tardiness explanation to the judge, who will then release them to the general audience.  For some reason, that has always cracked me up.

Is the goal to publicly shame them by putting them in the penalty box?  If so, shame them to who?  Are we really expecting someone in the front row who is also charged with a crime to be judgmentally thinking: "Man, I may have shot a stranger in a road rage incident, but at least my happy ass wasn't late to court!"

Some more practical judges don't bother calling docket until they are satisfied that the crowd has died down.

In essence, the whole thing is like a big game of musical chairs.  The clock ticks, just like the music plays, and when it reaches 9:00 a.m., everybody needs to have their butts in a seat, or they lose the game.

Those judges who would defend the calling of the docket, despite the clearly visible crowd control issues, say that to not do so would be to get taken advantage of.  The guy who didn't roll out of bed until 10:15 in the morning before leisurely driving to court isn't held accountable.  I get that, but in most cases, that person probably isn't coming into court at all that morning.

So, after all that ranting, here's my simple solution:

What if the Harris County District Attorney's Office initiated a policy across the board where NO prosecutor in ANY court will move for bond forfeiture until the massive crowds in front of the building are gone.  The judge can call a defendant's name repeatedly, but if no prosecutor says anything, there will be no motion.

The execution of such a plan would be pretty easy, if you think about it.

At 9 a.m. every morning, have someone from the Office walk over to the balcony on the 2nd floor that looks down into the entry lobby of the CJC. (NOTE:  Maybe Mike Anderson could make that new McShan guy do it as part of his initiation.)

If it is absolute chaos (as usual), send an office-wide e-mail that says "Due to a large backup in the security and elevator area on the first floor, all Assistant District Attorney's are instructed to refrain from moving for bond forfeiture until notified."

Then have that same person monitor the situation until the crowd clears out.  Once the crowd has actually dissipated, go back and send an office-wide e-mail that says, "All prosecutors are now instructed to move for bond forfeiture on all defendants who have not yet reported to court."

It could be just that simple.

There are other efforts by the judges, as we speak, to make the overcrowding situation more bearable through docket management.  But for now, something this easy could be the solution.

Reviewing How We Select Judges

I had a moment to sit down with a cup of coffee and read the print edition of the Houston Chronicle this morning when I came across this editorial, supporting Rep. Justin Rodriguez's bill that would change how Texas selects judges.

I usually get my information on criminal law-related Senate and House bills from Grits, so I was surprised I hadn't heard about this one.  If Grits wrote about it, I totally missed it.

Those of us who practice criminal law know that partisan politics have no place in the judiciary.  In addition to opening the doors to the influence of party hacks who have no understanding of how the criminal justice system works (i.e. Terry Lowry & Jared Woodfill), partisan elections for judges contradict the ideals of Separation of Powers.

What good is a judge if he or she is more loyal to following party lines rather than interpreting the laws of Texas and the United States?

I've said before that I don't believe that we will ever see our judges selected in non-partisan elections.  The Republican and Democratic parties are machines that rely on all candidates to help raise money for their respective parties.  They will never voluntarily agree to just waive the earning potential of all the judges who are running on any particular election slate.

Rep. Rodriguez's bill becoming law may be doubtful in my pessimistic opinion, but I hope Scott Henson over at Grits will chime in with a more educated analysis than I have.

Either way, the idea of steering judges away from partisan politics has my full support, as well as the support of most prosecutors and defense attorneys I know.

Todd Keagle Departs

There is a going away party this afternoon at 5:00 p.m. at OKRA Charity Bar (924 Congress) for Vehicular Crimes Chief Todd Keagle.

After nine years with the Harris County District Attorney's Office, Todd and his family are moving to San Antonio.  Todd's departure is a very big loss for the Office.

I didn't know Todd very well during my time at the D.A.'s Office, but I've worked with him extensively on the defense side on an extremely complicated case that seemed like it went on forever.  He knew what he was doing when it came to the intoxication offenses that he investigated and he always seemed about three steps ahead of everyone else.  He was professional and no nonsense when it came to handling the facts of his case.

However, Todd didn't let the strength of the State's case lead him to making unfair decisions on his recommendations.  He was fair and he was willing to hear out anything I brought to him on behalf of my client.

He turned over every last bit of evidence he had before I could even ask for it, and he checked into everything that he didn't have in his possession.  He was very clear on what his duties were on both Brady and Discovery, in general.  He stayed ahead of the curve by turning them over early and as additional evidence came in.  He also didn't subscribe to the idea that "prison is the only answer" and he was open to working on a rehabilitative solution that could make positive changes for all involved.

More importantly, Todd had integrity in how he handled his job and he didn't let a questionable administration (circa January 1, 2009-December 31, 2012) change that.  He was very clear that he would handle his cases the way he believed was right and if the Administration didn't agree with it, they could fire him.  Under the the former District Attorney, that was always a distinct possibility.

A good prosecutor who does his or her job in a professional, efficient and ethical manner is one of the best things that can happen to a defense attorney on many cases, and I'm sorry to see Todd go.

I wish him the best of success in whatever the future holds for him in San Antonio.

No Respect for the Elders

CLIENT:  That gun doesn't even work.  It was my grandfather's from World War II.  It's older than I am!

ME:  Okay.

CLIENT:  It's probably even older than you are.

ME:  "Probably??"

Bucknoid

A conversation between me and a client in the holdover today.

HIM:  I need you to call my girl, man.  She's gone bucknoid.

ME:  Bucknoid?

HIM:  Yeah.

ME:  You're saying "buck" and "noid"together?

HIM:  Yeah.

ME:  Like a combination between "buck wild" and "paranoid"?

HIM:  Exactly.

ME:  Alrighty then.

The Zimmerman Verdict

Unless you went to bed at sundown last night, I'm sure that by now you have heard or read that George Zimmerman was found not guilty in the Trayvon Martin murder case.

If you are on Facebook, I'm sure that your computer screen is completely full of your friends expressing outrage over the verdict and declaring it to be racist.   To read these types of statements coming from the general public is completely understandable.

To read them coming from criminal defense attorneys is completely inexcusable.

The fundamental principle in criminal law is that before a person accused can be convicted of a crime, it must be proven, by the evidence, to a jury beyond a reasonable doubt -- public perception of said crime and any other factor outside of that evidence be damned.  Criminal defense attorneys celebrate that principle and hold out Atticus Finch as our role model of the lawyer who stood and fought for an unpopular cause he believed in.

The public will rant and rave against the verdict as they are wont to do, but any defense attorney who has ever tried a case involving a self-defense statute should understand.

We all know from high school civics or government class that before any jury can return a verdict of guilty, the case must be proven to them beyond a reasonable doubt.  To many, the phrase "Beyond a reasonable doubt" is just a string of words told to a jury that mandate them to simply go figure out whether or not they think a person did what they are accused of.  For those of us who practice criminal law, we know that those words set forth what is supposed to be a theoretically-near-insurmountable challenge to the Government to prove a case.

A person can't be convicted because a jury thinks the accused is "maybe" guilty, "probably" guilty, or even if they are "clearly convinced" of their guilt.  The level of proof has to be so amazingly strong that the individual juror should be left with not a single reasonable doubt over whether or not the accused is guilty.

If you stop and think about it for a second, that's a huge burden for a prosecutor.  At least, it is supposed to be.

In the George Zimmerman-Trayvon Martin case, there was no dispute that Zimmerman had fired the fatal bullet that ended Martin's life.  The question was whether or not he was acting in self-defense.

What many non-criminal lawyers don't know about criminal law and self-defense is that a person accused of an assaultive offense (from simple assault to murder) does not have to prove self-defense.

Process that for a minute before we go on.

A person accused of murder who claims self-defense does not have to prove that he acted in self-defense.

Rather, a person accused only needs to raise the issue that self-defense may be involved and then it becomes the prosecution's job to show that self-defense does not apply and to do so beyond a reasonable doubt.  And if you think proving that a murder happened beyond a reasonable doubt is a difficult job for a prosecutor, it is simple compared to disproving self-defense.

As a prosecutor, I lost a case where a man claimed self-defense after running over and killing two alleged gang members in a parking lot.  I tried the case against Eric Davis, who is an outstanding criminal defense attorney (NOTE:  I didn't realize quite how outstanding until after he beat me in this case).  I thought that Eric's claims that his client acted in self-defense were ridiculous.  How could the driver of a truck claim he was acting in self-defense when he runs over and kills two unarmed men?

But at the end of the day, Eric raised the issue of self-defense and it was one that I could not successfully disprove beyond a reasonable doubt.  His client was found not guilty.

In Eric's case, he didn't have a lot to work with (in my opinion) but he made it work anyway.  I think that any defense attorney would have probably been much more comfortable to work with the self-defense factors that Zimmerman was able to claim.  The fact that Zimmerman had injuries on his face and head are a tremendous piece of evidence of self-defense that a prosecutor has to overcome.

If one could remove the racial overtones of this case from it and assume for a moment that Trayvon Martin had been a white 17-year-old kid, I don't think any defense attorney I know would have shied away from trying it.  I also can't imagine a prosecutor who would have wanted to try it.

But this trial was infused with racial tension from the start by the media.  Was there racial hatred in George Zimmerman's heart when he walked out his door to confront Trayvon Martin?  I have no idea.  Maybe.  Maybe not.  Did he walk out that door just to gun down a 17-year-old, unarmed kid without provocation?  I have no idea.  Maybe.  Maybe not.  I kind of doubt it.

My personal belief is that George Zimmerman initiated a situation that rapidly got out of hand in a manner he had foolishly not anticipated.  Is he morally responsible for what happened?  That's a completely different question.

Under the Criminal Justice System, however, people aren't tried for their moral responsibility.  They are tried for what can legally be proven against them.  If at the end of testimony, the jury cannot figure out whether or not the self-defense claim was legitimate, then the legally correct verdict is "not guilty."

Unless the prosecution disproves it beyond a reasonable doubt, that is what they are bound to do.

Moral outrage is to be expected, but if anyone understands why the verdict happened, it should be lawyers.

Otherwise, we are just feeding into the same mob mentality that we are supposed to be fighting against every day.

NOTE:  For additional reading, check out Brian Tannebaum's outstanding blog post this morning on The Embarrassment of the George Zimmerman Verdict.