Hard Core, Right Wing Idiocy

As most of you know by now, former Burleson County District Attorney Charles Sebesta was disbarred last week for hiding exculpatory evidence in his Capital Murder prosecution of Anthony Graves.  For those unfamiliar with this sad story, Anthony Graves spent 18 years on Death Row after being prosecuted by Sebesta.  The 5th Circuit overturned his conviction because Sebesta withheld exculpatory evidence and Kelly Siegler was ultimately appointed as the Special Prosecutor to retry Graves.  After reviewing the evidence, Kelly publicly stated that Graves was an innocent man and dismissed the case against him.

The story of Anthony's case is well documented.  It was covered by CBS's 48 Hours and was the subject of several articles (see here and here) by Texas Monthly's Pamela Colloff.  Sebesta responded to his earned public bashing by creating his own website, where he simultaneously defended himself while blasting Kelly Siegler and insisting upon Anthony Graves' guilt.  In April of 2011, I posted this article on him in response to his website.  Sebesta quickly became the poster child for the dirty, evidence-hiding prosecutor.  Ultimately, I think Charles Manson had more supporters than Sebesta.

His disbarment last week was something that was regarded as a small but very righteous event that everyone could support.

Right?

Well, apparently not everybody.

On Tuesday, it was brought to my attention that my article on Sebesta had been cited in this article by columnist Rachel Alexander of the conservative website townhall.com.  Just the title of the article "The Left Disbars Another Conservative Prosecutor" was enough to make me do a double take.  The idea of me being labeled as a leftist member of the media gave me a case of the giggles.  Her statement,  "Most accounts don't attempt to say that Graves was innocent," was just ridiculous.

So, I took to the Twitterverse to engage Ms. Alexander in conversation.  Hilarity ensued.

Seeing that Ms. Alexander's response was clearly well-thought out and not at all silly, I decided that Pamela Colloff might enjoy Ms. Alexander's musings.

And then we started really arguing.

The argument went from bad to worse.

So, um, she left out the fact that the Special Prosecutor (who was arguably one of Texas' most aggressive prosecutors) said that Graves was innocent because she "didn't think it was highly relevant" and then follows it with "We all know she really didn't think that."

Yes, because we all know that Kelly Siegler is constantly saying things that she doesn't mean . . .

At this point, I know I should have disengaged.  Ms. Alexander was clearly immune to logic.  But them Pamela Colloff joined in and it was too entertaining to walk away.  

And then Pamela delivered the message that I should have just realized before even engaging with Ms. Alexander.

I had actually started off the Twitter-dialogue with Ms. Alexander in hopes of showing her what Charles Sebesta really was and pointing out to her that even the most conservative ideology wouldn't support what he did.  Clearly, I failed in that, but it did make for an entertaining afternoon.

Sharing a Little History

I was 17 years old and a Junior at Bryan High School in November of 1989.  I was a pretty boring kid, for the most part.  I didn't drink.  I didn't smoke.  I didn't do drugs.  I usually came home long before my curfew.  I guess it was due to that same boringness that my parents signed off on letting me do the biggest adventure of my high school career.

On Wednesday, November 8th of 1989, my friends Marshal Crenshaw, Chris Wiseman, Brandon Pillans, Andy Winn, Brandon Crowe and I all borrowed Mrs. Crenshaw's mini-van and were allowed to drive from small-town Bryan, Texas to the big city of Houston to see the Rolling Stones play the Astrodome as part of their Steel Wheels concert tour.  Somehow, even though I was far from a good driver and I had never driven in Houston, I ended up being selected as driver.  Let's just say that was probably where my longstanding hatred of Houston METRO buses was born.

Because I was such a terrible driver and had no idea where I was going (in the days before Apple Maps and Waze), we got there a little later than anticipated, and the opening act of Living Colour had already begun.  Luckily, we got there in time to hear them play Cult of Personality and Glamour Boys as well as a lot of other songs that were pretty awesome, too.  They rocked it out on a great performance before leaving the stage.

It seemed like the time after the opening act and when they finally dimmed the lights took forever, but finally, the Astrodome went dark.  An instrumental build-up of Continental Drift started playing in the background, getting louder and louder. Then it abruptly stopped and the stage exploded into fireworks as Keith Richards started playing the first chords of Start Me Up and the Stones all came running onto the stage.

It was the coolest thing I had ever seen in my life.  It will probably shock you to hear that not that many acts came through Bryan/College Station.  My illustrious career of concert attendance had begun with seeing Toto at G. Rollie White Coliseum on the A & M Campus.  I had never been outside of Brazos County to see a concert -- certainly not one of the magnitude of the Stones.  The next two hours were amazing as they cranked through song after song with pyrotechnics and special effects.  I remember two giant sized inflatable women flanking either side of the stage during Honky Tonk Women.   To paraphrase my 9-year-old, what happened after that "wasn't appropriate."

The Stones wrapped up with Jumping Jack Flash and Satisfaction and we all headed back to the car -- which we had lost.  In the Astrodome parking lot.  In Houston.  At midnight.  On a school night.

We pretty much had to wait for almost everyone to leave before one of us finally found Mrs. Crenshaw's non-descript mini-van.  We all piled into it -- for some reason, nobody wanted me to be the driver anymore -- and headed back for the two hour drive to Bryan.  A radio station replayed the play list of the concert as we drove back and we listened to it for as long as the car radio could pick up a Houston station.  At some point, I fell asleep and my body slid into the footwell as if I were in crash position.  We got home around 2 a.m. and all went to our respective homes.

I think if we were honest, all six of us would have admitted that we didn't really know that much about the Rolling Stones when we started out on our adventure.  We knew the idea of being able to casually tell our classmates "Yeah, we went down to Houston and caught the Stones concert last night," sounded really cool.  Quite frankly, I probably only recognized half the songs that they played that night.

But, man, that next day, we were all wearing our concert t-shirts to school and acting like we were founding members of the World's Greatest Rock and Roll Band.

If you know me at all, you know that when I get on a topic, I get obsessed, and for the years to come, I was obsessed with the Stones.  I bought all of their music, read up on the history of the band, went to their concerts any time they crossed into Texas.  I've gone to see them with friends, girlfriends, and even my mom and dad.  As a side note, it is really awkward to watch the stage production of Honky Tonk Woman when you are sitting next to your mother.

I've read Keith Richards' autobiography, Life and enjoyed it very much, because I loved Keith's enthusiasm for the origins of rock and roll music.  Bruce Springsteen is the same way.  Quite frankly, I think that the way I feel about the Stones is the way Keith felt about all of the old Blues musicians and early 1950s singers and bands.  I love that music -- from Buddy Holly to the Beatles, to the Band to Springsteen to the Stones, and all of those bands that kids today will look at as a history lesson rather than a playlist.

Yes, I just used the phrase "kids today."  Now get off of my lawn.

When my first son was born in 2005, he heard a lot more Beatles music than nursery rhymes growing up.  His first phrases started with "It's one for the money, two for the show . . ."  I taught him the names of all the Beatles and all the Stones and he could recite them when called upon (a party trick that impressed my current wife the first time she met 3 year old Luke.)  I would do my best Keith Richards' impression and ask him, "What are you doing, Mick?" Having been born right around the time that Hurricanes Katrina and Rita hit the Gulf Coast, my son will tell you very matter-of-factly that he, too, was born in a Crossfire Hurricane.

I suffered many an eye roll from his mother.

As he got older, we would listen to the songs and how they were written.  I developed a three act "bucket list" of bands that I wanted him to see before the groups stopped playing together on the road.

On November 14, 2012, I took him to see Paul McCartney at Minute Maid Park as he played all the Beatles songs.  He loved every minute of it.

On May 6, 2014, he saw the second band on the list when we went to see Bruce Springsteen and the E Street Band play the Cynthia Woods Mitchell Pavilion in the Woodlands.  He loved it and we got this close to Bruce when he first drove into the building.

And, finally, in a couple of hours, we are going to load into my car and take a father/son road trip to Arlington to see the Rolling Stones play AT & T Stadium.

I'm so ecstatic that I can't see straight.  After playing together for 51 years, I was starting to get worried that the Stones might not actually come back to Texas.  The first time I saw them play, the band members were all in their mid-40s -- now I'm the one in my mid-40s.

Come Monday morning, my 9 year old boy will get to go back to his summer day camp with his Rolling Stones t-shirt, acting like a founding member of the band.  Keith Richards' guitar intros on Satisfaction, Jumping Jack Flash, and the very "inappropriate" Honky Tonk Woman will be things he heard live.  And "moves like Jagger" will be something that he actually witnessed with his own eyes.   My dad told me that when he was younger, he got to see Elvis play, which I always thought was awesome.  When my son is older, he will be able to say that he saw the Stones.

I can't wait to be standing right next to my son as he sees true Rock and Roll history.  I love seeing these bands play through his eyes.  I hope some day he will love the music as much as I do and feel the sense of history and emotion and excitement of the Rolling Stones as they play Texas one more time.

The Joys of Being a County Employee

As noted in my last post, the Harris County Criminal Justice Center was shut closed on both Tuesday and today (Wednesday) of this week in the wake of heavy rains that hit late Monday night.  As per usual, our beloved CJC building failed to withstand the devastating power of nature.  The garage flooded.  The elevators stopped running.  The tunnels flooded.  They were on reserve power.

Harris County employees were told not to come into work. They were then told that they had to take either Comp or Vacation time, instead.

For the lawyers in the building (whether they be prosecutors or public defenders), this wasn't really that big of an inconvenience.  Most of them have plenty of comp time from the hours they work before eight, after five, or on the weekends.   They could also probably get away with doing some trial prep at home or doing some field investigations, if they were feeling ambitious.

For support personnel, however, this wasn't really an option.  Although investigators may earn some amount of comp time in the course of their job, more often than not, it isn't a large amount that accumulates.  Administrative Assistants, however, are the ones who really get screwed.  They work straight eight hour shifts and never earn comp time.

So, basically, Administrative Assistants have no choice but to take their vacation hours, or just go unpaid.  This isn't a new thing.  It happened when we were all ordered out of the building in the wake of Hurricane Ike.  During that particular natural disaster, there was raw sewage backing up into the CJC and we were forbidden to be there.

But we still had to take vacation or comp time.

So, basically, Harris County builds a building that can't withstand a rainstorm and the employees are having to pay the price.  In an ideal world, the geniuses that built that piece of crap building would have to reimburse the county for the cost of an employee's salary on the day said employee couldn't go into the building.  Unfortunately, under county rules, shit runs downhill.  The Powers that Be have the authority to ban employees from working, but they don't get held accountable for failing to provide a safe work environment for them.  The employees have to give away their carefully accumulated (and usually already-planned-for) vacation time.

I can't imagine that ever working in the private sector.

Shades of Allison

I hope everyone weathered last night's crazy storm okay.  I don't know about y'all, but I was having some serious flashbacks to June 2001 and Tropical Storm Allison -- only this time I have flood insurance!

Judge Kristin Guiney is reporting that the CJC is closed today, per the Administrative Judge.  The building is running on reserve power and apparently the basement garage is flooded.

It doesn't sound quite as bad as Tropical Storm Allison, which forced the entire D.A.'s Office and all of the courts to relocate from the CJC for the better part of a year, but it doesn't sound good, either.

Our New Sheriff

Unless you pay absolutely no attention to Harris County politics, you are probably well aware that (now) former-Harris County Sheriff, Adrian Garcia resigned his position to run for Mayor of the City of Houston.  The move had been rumored for months, but since Garcia was required to resign before he could officially announce, he held off on making it official for some time.

What had also been rumored for months was that Harris County Commissioners were planning on appointing Harris County Constable for Precinct Four, Ron Hickman, to fulfill Sheriff Garcia's unexpired term.  That was a smart move -- Hickman is very politically active in the Republican Party and has a good reputation.  He's also a great campaigner.

Sheriff Hickman wasted no time in getting to work on cleaning up some of the messes created under the Garcia Administration -- focusing largely on problems that consistently plague the Harris County Jail.  Sheriff Hickman also set a goal for getting rid of some of his unnecessary administrative positions in favor of more deputies out on the streets.  One of those unnecessary administrative positions has apparently been the job of former-Harris County First Assistant Jim Leitner.

I've heard from several reliable sources this morning that Leitner was terminated from HCSO by the incoming administration.  Although Leitner and I aren't big fans of each other, I can empathize.  It really sucks to lose your job because of politics, doesn't it?  As of this writing, it does appear that Sheriff Hickman will be keeping Clint Greenwood, for some reason.

The path that Leitner takes from here will be interesting.  After leaving the Lykos Administration in 2008, he tried going back to the Defense Bar for a little bit before going to the Sheriff's Office.  He got started on a lot of appointed cases that he didn't finish.

The mayoral election is on November 3rd of this year.  Given that everybody and their dog are running for mayor, it will almost certainly go to a runoff (scheduled for December 12, if necessary).  If Adrian Garcia loses the election, it is rumored that he fully intends to try to reclaim the Sheriff's Office in 2016.  If that is ultimately what happens, Jim wouldn't be able to land himself another political hire with the Sheriff's Office until January 1, 2017 at the earliest.

So, does Jim return to the Land of Burned Bridges within the CJC as a defense attorney where he can deal with prosecutors (who detest him) on a daily basis?  Does he hope and pray that Garcia wins mayor and appoints him to be the King's Hand?  Will he go to work as a guest blogger over at Big Jolly's website?  Will he get to work early on Kim Ogg's inevitable 2016 campaign for District Attorney?  Does he get a job as in-house counsel at Don Hooper's energy trading firm, Kramerica Industries?

It will be interesting to see what happens next.

Uncle Pete

My great-uncle, Pete Newman, passed away last week at the age of 86.  He was the youngest brother of my paternal grandfather, Louis Newman.  I didn't know Uncle Pete all that well, but I always enjoyed talking to him whenever I got the chance, because he was wildly entertaining.  The last time I saw him was a couple of years ago, at his brother, Jim's, funeral.  He was sitting on his walker, smoking a cigarette and talking about grabbing a beer.

The reason I'm writing this post is because I thought his obituary in the local paper was pretty entertaining, as well.  So I thought I would just pass it along.

He was a damn good man.

Congratulations, Ms. Falkenberg

Congratulations to my friend, Lisa Falkenberg, for winning the freaking Pulitzer Prize for her series of articles on the Harris County Grand Jury system and the Alfred Dewayne Brown case.

Lisa and I didn't exactly get off to the best start.  She pointed out to me the first time that I met her in person that I had once referred to her as Pippi Longstocking in an early blog post.  Um, oops.

I don't always agree with her columns.  Hell, I usually don't agree with her columns.

But Lisa's columns always make me think and take stock of philosophical positions that I held in the past, philosophical positions I hold in the present, and those I may hold in the future.

In short, regardless of whether I agree with her or not, the way Lisa writes makes me think.  And that's the trademark of an excellent writer.

I'm very glad to see the folks over at Pulitzer recognize her talent.

Jamie Brooks

I was very saddened to learn this morning about the passing of my friend, Jamie Brooks.

Jamie was a fixture of the Harris County Defense Bar and a friend that I had known since I first started work at the D.A.'s Office in 1999.  He was one of the nicest people and truest friends that one could have at the Criminal Justice Center.

Jamie was generally a very soft-spoken attorney during docket, but he was also a strong advocate who was not afraid to go to trial and fight for his clients.  More importantly, Jamie was one of the first people to volunteer to lend a hand when a colleague needed help.  Any time a lawyer fell ill or passed away, you could always count on Jamie to be there to do whatever he could to assist.

Jamie was a good lawyer, a good friend, and a good person.  I am terribly sad to lose him.

My thoughts and prayers go out to his family.

Letting Go

"I believe your client, but you are still going to need to present something to the Grand Jury on it."

"I'll give you a probation on a lesser charge, but your guy is going to need to plead on all three cases.  I've been told that my court has too many dismissals."

"I don't know why the Grand Jury indicted your client, but I can't dismiss it unless the co-defendant pleads to something."

"I would never dismiss that case.  It's a First Degree!"

What do the above four phrases have in common?

They have all been said to me by a prosecutor as justification for not dismissing a case in the past year.

Now, before I go too much further down the road of angering every prosecutor who reads this blog, let me be clear:  Prosecutors and Defense Attorney disagree every freaking day over whether or not a case should be dismissed.  As Defense Attorneys, we are obligated to seek out the best resolution for our clients and we wouldn't be doing our jobs if we did not (at least) see if we can talk the prosecutor into a dismissal.

As you can imagine, the strength of a Defense Attorney's argument for dismissal can vary drastically from case to case.  Many of these "dismissal discussions" are very brief and the vast majority of them obviously don't end in dismissal.

The issue that I have here is absolutely NOT with the prosecutor who doesn't agree with my interpretation of the evidence.  My argument is NOT with the prosecutor who finds their witness' statements to be more credible than I do or the evidence more compelling than I see it.  I get that.  I don't always agree with it, but I get that.

My issue is with the prosecutor who will actually state to me that the reason they won't let go of a case is because of something that has absolutely nothing to do with the facts of that case.

Statistics should never be a consideration in whether or not a prosecutor dismisses a case.   I firmly believe that nothing adversely affects the Criminal Justice System more than statistics -- i.e. the police get recognized for how many felony arrests they make, so why not go hunt down jaywalkers who might be carrying crack pipes with residue?  The same applies to prosecutors when they start being judged on how many dismissals they may or may not have signed off on.

Statistics are for politicians.  Not prosecutors.

The standard of whether or not a prosecutor should dismiss a case is simple:  if you don't believe it can be proven beyond a reasonable doubt, or (God forbid) you believe the person is (gasp!) factually innocent, you shouldn't be freaking prosecuting it.  Period.  Take all the time you need to thoroughly investigate the facts of the case, but if you can't prove it beyond a Reasonable Doubt, you need to be signing a dismissal.

When I was chief of the 339th District Court, I was observing Brent Mayr try an Aggravated Robbery case (which is a First Degree charge).  For those of you who don't know Brent, he's a fantastic trial lawyer and he's also very competitive.  In the middle of his trial, a witness testified to something that caused Brent to have hesitation over whether or not the Defendant was guilty.  I was his supervisor, so he came to me because he wanted to dismiss it in the middle of trial.

"I think he probably did it," Brent told me, "but I don't believe that beyond a Reasonable Doubt anymore."

So, we dismissed it immediately.  Nobody ever questioned either my judgment or Brent's.  A dismissal in the middle of a trial isn't exactly a positive statistic for a prosecutor's record, but that didn't dissuade him from doing the right thing.  I was proud of Brent.

Dismissals on First Degree cases do still happen, obviously.  I am still very appreciative of when Lance Long and Greg Houlton dismissed this murder case after carefully reviewing the evidence.

My point here is that a dismissal should ALWAYS happen based on the evidence and not ulterior concerns.  When I was a prosecutor, nothing offended me more than hearing a defense attorney say something like "all prosecutors care about is getting their conviction."  I didn't believe that then and I don't believe that now.

But statements like the four that begin this post should give you some insight into why defense attorneys sometimes feel that way.

If you believe my client's version of events when she explains that she isn't guilty, then dismiss the case.  Don't make her and her family have to experience the overwhelming stress of being charged with a felony if you don't think she did it.  We shouldn't have to wait for the Grand Jury to No Bill the case because you don't want to be the one who signs your name to a dismissal.

If you think that my client is worthy of being on probation on a lesser charge, then why make him technically be on three probations for statistics' sake?  It literally changes nothing about what his punishment will be like.

If you think that a Grand Jury shouldn't have indicted a case and that your links to my client aren't strong enough for trial, don't make her wait until the co-defendant pleads on something before you are willing to dismiss it.  The facts are either there or they are not.

And, finally, the inspiration for this entire post --

Just because the case is a serious, First Degree case, that doesn't mean that it can't be dismissed if the facts aren't there.  A First Degree felony case can sometimes be as weak as a questionable speeding ticket.  The same standard of proof applies regardless of degree.

If a prosecutor wants to tell me that, in their opinion, the case is strong enough to convince a jury Beyond a Reasonable Doubt, then that's fine.  I respect that.  But when even your own lead investigator states on the record that they aren't even sure a crime was committed at all, that might be a sign that you are wrong in your opinion.  That's when words like "I wouldn't dismiss that case.  It's a First Degree!" start becoming really really offensive.

When a juror flags me down in the lobby of the CJC (after an acquittal) and asks me to extend her apology to my client and his family for having to go through the trial, you might want to start evaluating your judgment on that policy.

Many moons ago, when I was working in another county, I heard a prosecutor on a DWI case say "I know we aren't going to win, but this kid needs a good trial."  I found the statement to be strange then.  Now I find it to be mortifying.

Unlike the private sector where one has to worry about economic trends and supply and demand, the Criminal Justice System will never run out of cases to try and people to prosecute.  It is a continuous growth industry.  There are plenty of cases where a prosecutor has more than ample evidence to prosecute and convict without hesitation.

But when the evidence isn't there, the case needs to be let go.

Forced Empathy

As I've noted here and there on blog posts since becoming a Defense Attorney six years ago, one of the things that I think I've gained on this side of the bench is a better grasp of empathy towards those accused of crimes.  When I was a prosecutor, I never got Mark Bennett's frequent assertion on his blog that every prosecutor should have to spend some time in jail to gain a full appreciation for what criminal defendants go through.  I still think Mark's position is a little extreme, but I understand his point.

Too often those who enforce the law and the punishment associated with breaking the law don't quite get the human effect that comes along with punishment.

And then something like this happens that kind of makes those who enforce the law have to feel the consequences of breaking the law . . .

Oops.

(H/T & Photo Credit to Mark Thering)