Tuesday, May 22, 2012

Which side of the fence am I on?

Poor Murray. Sometimes he just can't seem to decide if he's a defense lawyer or a prosecutor. There are times it seems as if he's angling to be Mike Anderson's Deputy Dawg should the angry one pull off the GOP nomination.

Yesterday Murray ran a guest post by an anonymous soul who, if I were so inclined, I would bet my house works in the Harris County District Attorney's Office. The guest writer tries to equate Pat Lykos' decision not to prosecute trace dope cases to judicial activism - but, the analogy is beyond flawed.

Ms. Lykos isn't a judge. She's the elected District Attorney for Harris County. As a prosecutor it is her ethical duty to see that justice is done. It is not a prosecutor's job to go all out to win every case (someone might want to remind John Bradley of that). A prosecutor should have the discretion to decide that justice is best served by dismissing a case, reducing a charge or finding an alternative way to work out the case.

A prosecutor who doesn't have the authority to use their own best judgment in resolving a case is nothing more than a law clerk with a license from the Texas Supreme Court hanging behind their desk.

Just because a law is on the books doesn't mean that it must be enforced. A police officer has the discretion to ignore a motorist who doesn't signal a lane change or a turn. A prosecutor has the discretion to charge an officer who stomps on the head of a prone teenager with either felony or misdemeanor assault (or neither).

Ms. Lykos made the decision that in so-called residue cases that if there wasn't enough evidence to be tested by both the state and the defense that her office wouldn't prosecute. The decision makes sense. Possessing crack cocaine is a crime. But is possessing a glass pipe with cocaine residue in it the same offense? The guest writer argues that possession of any amount of cocaine - even a trace - is verboten by the legislature. The guest writer is but a minion who adheres blindly, and without question, to the words on the page - a person who lacks the ability to think and to make decisions on his own.

Blind adherence is not a virtue. It's the sign of a small brain. It's a symptom of a person who is unable to think on their own. And, considering the writer equates Ms. Lykos' actions to judicial activism, it's the sign of one who is incapable of making a logical argument. By the way, the US Attorney General is in the executive branch and is, therefore, incapable of practicing judicial activism. But, hey, let's not let logic, or facts, get in the way of our little polemic against our boss.

It's quite interesting how Mr. Anderson and his supporters point to Ms. Lykos' decision not to prosecute trace dope cases as a sign that she's not being tough enough on crime yet they don't seem to recall how under prior regimes the DA's Office routinely looked the other way when a police officer was suspected of abusing his authority. Those cases were sent to the grand jury where, miraculously, they were no-billed more often than not.

Murray, you're a criminal defense lawyer. Why would you actively promote a candidate who is promising to prosecute more people? Why would you push a candidate who wants to return to a past in which the rights of the accused were trampled far more than they are today? Why would you support a candidate who has no new ideas and who is unable, or unwilling, to think outside the box?

Is he taking a page from the German communists in the 1930's who thought it would be better for the workers' revolution in the long run for Hitler and his Nazis to run Germany into the ground? How did that work out?


A Harris County Lawyer said...


You make the incorrect presumption that defense attorneys are pro-crime. One can be all for the enforcement of laws on the books and still be a criminal defense attorney. Just because I'm a defense attorney does it mean that I welcome the idea of my home being burglarized?

Do I invite murder, rape or robbery in because I'm a defense attorney?

I don't know where you live, but I actually live in the 5th Ward. There are problems with drugs and crackheads that have basically become squatters right down the street. Do I wish more could be done to clean up my neighborhood? Damn straight.

Does that fact mean that I won't get up tomorrow and go to work and fight like hell for my clients? Nope. I'll read through every letter of an offense report and look for every twist and turn that will benefit my client. I will argue until I'm blue in the face for a dismissal or a not guilty.

If I'm fortunate enough to get my client out of jail and I come home to see him smoking crack in front of my house, I'll call the cops. I hope they'll be allowed to do their job.

That doesn't affect my ability to do my job and do it well, if I do say so myself. I welcome anyone to look at my stats.

Remember, only a Sith thinks in terms of absolutes. That's a lesson that is valuable for every prosecutor to learn. It is also one that defense attorneys can benefit from as well.

Paul B. Kennedy said...

It would seem that Anderson's only argument as to why he should be elected is that he would be tougher on crime. That means harder on minorities and those who don't have the resources to defend themselves.

I would love to hear Anderson's answer as to how he would treat drug crimes. I asked him months ago and he's never responded. The jail is overcrowded as a result of dope cases and punitive bonds. What's Mike going to do about that?

Sure, Lykos' handling of trace cases created a lightning rod of sorts. But I would like to hear how Anderson would handle situations in which there isn't enough of a substance for the defense to have it tested.

DIVERT is illegal. On that we can agree. But, for all the problems with the way in which the plan was implemented, at least someone thought about the fundamental unfairness of the way Texas treats DWIs. The fact that the overwhelming majority of the judges bought into the minimum 30 days in jail on a DWI is proof that there was some serious ex parte fooling around at 1201 Franklin.